Capacity to consent in mental health care bill 2013: A critique

Abstract

Mental capacity refers to the ability of an individual to make one's own decisions. Decision-making capacity has been described as the “key to autonomy” and an important ingredient of informed consent. Limited or impaired mental capacity embarks on a minefield of ethical and legal issues, which doctors need to be aware of while dealing with a particular patient. The objective of this article is to critically analyze the provisions of “capacity to consent” in Mental Health Care Bill (MHC Bill 2013), under the framework of the United Nations Convention on the Rights of Person with Disabilities (UNCRPD 2006). This article also attempts to offer a practical legal framework and some concrete suggestions, for psychiatrists operating in an ethically and legally challenging area of mental capacity. Some of the highlights include attempts to translate aspirations of the UNCRPD into MHC Bill 2013, which were out of context given the available resources, the family structure of our society, and inadequate research inputs. However, there is a need to introduce the capacity to consent to the MHC Bill 2013 after comprehensive research and to study the impact of such a revolutionary idea on the family aspects of our society. There is an urgent need to formulate and validate a capacity assessment tool for our population. The MHC Bill needs to consider the repercussion and impact of capacity to consent, thereby making room for the compulsory community treatment order empowering affected family members in providing much needed treatment for persons with mental illness.

Keywords

• Capacity
• competence
• Mental Health Care Bill
• mental health legislation