Decisional Capacity or Clinical Risks in the Provision of Emergency Treatment: Mixed Signals in the MHCA 2017

The Mental Healthcare Act 2017 was aimed at bringing Indian legislation in line with the Convention on Rights of Persons with Disabilities (CRPD). ¹ There remain some unresolved questions, particularly in a subsection of cases where clinical risks coexist with seemingly intact decisional capacity. This article aims to present the ethical background of these scenarios, summarise relevant provisions of the Act, highlight clinically relevant ambiguities and briefly review approaches that have been described in the literature.

Discussion Beneficence or Autonomy

Psychiatry has always been subject to unique tensions between the ethical concepts of beneficence and autonomy.^2,3 With beneficence as the guiding principle, psychiatrists have held exceptional powers to enforce treatments on mentally ill patients. ³ These powers have been defended as measures to enable vulnerable sections of society to realise universal human rights to the highest available standard of health and a minimum standard of living. ² However, these powers have, in some instances, been abused and have been fiercely criticised for infringing on individual autonomy and dignity. ⁴ In this context, there has been a global push to balance the powers granted to psychiatrists in the interests of beneficence with safeguards that protect patient autonomy. This push has culminated in the United Nations Convention on the Rights of Persons with Disabilities, arguably the strongest-worded consensus in favour of patient autonomy in clinical decisions in psychiatry. ⁵

Beneficence and Autonomy in the Law

Various legislative strategies have been employed to negotiate this tricky ethical balance in psychiatric treatment. Literature on the subject often groups these as ‘risk-based approaches’ and ‘capacity-based approaches’.^6–8 Risk-based approaches use the presence or absence of apparent risks of harm to mentally ill individuals themselves or to others around them as the deciding point between competing imperatives of autonomy and beneficence. Such approaches have been defended as ‘disability neutral’ and thus less discriminative. ⁹ They have, however, been criticised for being difficult to define and subjective.^4,7

Capacity-based approaches use the presence or absence of an individual’s ‘capacity’ or ‘competence’ to make clinical decisions as the key deciding factor. The concept of capacity in this context is usually that of a time- and decision-specific ability, and is often defined in purely cognitive terms. ⁸

A shift from a risk-based approach to a capacity-based approach has been a trend in legislation globally. ⁷ This shift is grounded in the hope that such assessments are more objective. ¹⁰ However, the inherent subjectivity of capacity assessments has been highlighted by the CRPD. ⁵ The Mental Healthcare Act, 2017 is part of the global move towards ‘capacity-based’ approaches.

Summary of Relevant Provisions in the MHCA ¹

Capacity

Section 4 of the MHCA details three conditions that should be fulfilled for a person to be deemed to have the capacity to make healthcare decisions. The person must understand information about the decision that is conveyed to them, must be able to appreciate the consequences of their decision and must be able to communicate their decision by any means. A decision that is perceived to be wrong or inappropriate does not amount to a lack of capacity.

Supported Admission

Section 89 of the MHCA details the conditions under which an individual with mental illness can be admitted to a mental health establishment upon application by the nominated representative. Such an admission is only possible in the presence of significant clinical risks and if the person is unable to make treatment decisions independently.

Emergency Treatment

Section 94 of the Act details provisions for emergency treatment of persons with mental illness. The section states that ‘Notwithstanding anything contained in this act’ any treatment can be given on an emergency basis to persons with mental illness to prevent death or irreversible harm, serious harm to the person or others or serious damage to property belonging to the person or others, where such behaviour is a consequence of the person’s illness.

Contradictions in the Emergency Setting

MHCA 2017 has made decisional capacity, and thus the ethical principle of autonomy, the guiding principle of its vision of mental healthcare in India. Confusingly, however, the Act abandons this focus in its section on emergency treatment. The relevant section goes back to the more traditional risk-based approach in guiding treatment decisions ‘notwithstanding anything contained’ in the Act. Decisional capacity is not mentioned in this section. This provision has been seen by Indian psychiatrists as an important balancer between competing priorities. ¹¹

The context in which the Act envisages these provisions to be applicable is, however, unclear. A plain reading of the provisions in Section 94 suggests that these are applicable only in settings outside a mental health establishment, as it specifies the duration that emergency treatment provisions are applicable for as 72 hours, or until assessment at a mental health establishment, ‘whichever is earlier’.

It is not uncommon, especially in emergency settings, to see cases with significant operational clinical risks (e.g., a recent high-intentionality suicidal behaviour, voicing of suicidal or homicidal ideation or extreme neglect of self in a patient with anorexia nervosa) in an individual who fulfils the narrowly defined criteria for decisional capacity. Presumably, when such an individual is transported to a nearby mental health establishment (explicitly included in the definition of ‘emergency treatment’ in the section), it is the provisions for supported admission (Section 89) that come into force, with decisional capacity as the focus and autonomy as the guiding ethical principle.

Thus, the Act seems to suggest that in an emergency, with evident serious risks due to mental illness, any establishment except a mental health establishment should follow a risk--based approach to navigating the ethically fraught tensions between beneficence and autonomy, but a mental health establishment, arguably the most appropriate setting to manage emergencies resulting from mental illness, should follow a capacity-based approach. Having different ethical approaches to the same clinical scenario depending on the healthcare setting is neither a consistent nor a logical stance. If an emergency physician in a general hospital is given directives to prioritise clinical risk over decisional capacity when deciding about psychiatric emergencies, why does that same directive not apply to a psychiatrist working in the emergency room of a mental health establishment? The ethical dilemma is the same.

Global Approaches

This is not a dilemma unique to the Indian context.^7,12 Discussed as ‘hard cases’ in the literature, legislatures globally have taken varied approaches to this problem. England’s legal system has provisions that specify that, in an emergency setting, clinical risks take precedence over decisional capacity. Ontario splits admission and treatment, with risks taking precedence on the question of admission but capacity for subsequent treatment. Northern Ireland has aimed for a ‘fusion’ of mental health decisions, with all health decisions under the common rubric of decisional capacity as the only deciding factor in all situations.^10,13,14 Thus, different legislatures have taken different stances on this ethical dilemma, but none have argued for different ethical guidelines based on where emergency psychiatric care is delivered or by whom. This contradiction is unique to Indian law.

Conclusion

There are many things to be said for and against any approach in this complex clinical situation fraught with ethical issues. There is no broad consensus within the psychiatric establishment. It is precisely in such areas of ethical and clinical uncertainty that clinicians look to the law for clear instructions and guidelines. MHCA 2017 has not taken a clear conceptual stand on this issue. There is an urgent need to revise ambiguous sections of the law, as these can easily be misinterpreted by clinicians, exposing them to risks of litigation. More clarity in the Act will help clinicians in providing mental health services with ease and avoid unnecessary litigation.