What is Advance Directive? What is Nominated Representative under Mental Healthcare Act, 2017?
Advance directives are documents stating treatment preferences in case of future lack of decision making capacity. MHCA 2017 legislation revolves around “autonomy” and gives every person the right to make an advance directive. This is a written statement which explains “how they want to be cared” and “how they should not be cared for” in case they become incapacitated because of the mental illness. Further, the person (except minors) can also choose a NR to assist him/her with treatment-related decisions. In India, as in many other countries, legislators advocate Psychiatric Advance Directives (PADs), while evidence on its use is limited.
MHCA 2017 is heavily influenced by the western model of legislation. It is based on individual rights, is patient centric, and gives the individual total autonomy over them, which comes in the way of the treatment unless the patient gives informed consent. On a closer look, this act is premised on a hypothesis that the mental healthcare providers and family members are the main violators of the rights of the PMI
The heart and soul of this legislation are in Chapter 5 which safeguards the patients’ right to access a range of mental healthcare facilities (such as inpatient and outpatient services; rehabilitation services in the hospital, community, and home; halfway homes; sheltered accommodation; and supported accommodation). If the services are not available, PMI are entitled to compensation from the state. Right to community living, right to confidentiality, right to access medical records, right to protection from cruelty and inhumane treatment, and right to equality and nondiscrimination are all ensured by the law. The act seeks to ensure that mental healthcare facilities are available to all.
Implementation of AD and NR in India can be a challenging issue with respect to current availability of human resources and also socioeconomic constraints. Other challenges are multiple revocations of AD and NR and the supremacy of MHRBs in decisions related to challenging AD and NR. These issues may result in difficulties to provide care by other stakeholders such as family, nongovernmental organizations, and mental health professionals. The above situations may result in disharmony between patient and family. Ultimately, the family may disown the patient, and this may have serious consequences in the form of abandoning of the patient who may end up as wandering mentally ill, and all this would defeat the very purpose of the act in protecting the patient. We need to consider the fact that the family members are the true value and assets in the Indian context. Hence, the family members should be the natural guardians until proven otherwise. AD and NRs break the very backbone and fabric of our society, “the family.” The clause on NR may need amendment in consideration with the Indian society.