MHCA 2017 -Chapter 3

Advance directive

5. (1) Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely:––
(a) the way the person wishes to be cared for and treated for a mental illness;
(b) the way the person wishes not to be cared for and treated for a mental illness;
(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14.

(2) An advance directive under sub-section (1) may be made by a person irrespective of his past mental illness or treatment for the same.

(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall
remain effective until such person regains capacity to make mental healthcare or treatment decisions.

(4) Any decision made by a person while he has the capacity to make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such
person.

(5) Any advance directive made contrary to any law for the time being in force shall be ab initio void.

Manner of making advance directive

6. An advance directive shall be made in the manner as may be specified by the regulations made by the Central Authority.

Maintenance of online register

7. Subject to the provisions contained in clause (a) of sub-section (1) of section 91, every Board shall maintain an online register of all advance directives registered with it and make them available to the concerned mental health professionals as and when required.

Revocation, amendment or cancellation of advance directive

8. (1) An advance directive made under section 6 may be revoked, amended or cancelled by the person who made it at any time.

(2) The procedure for revoking, amending or cancelling an advance directive shall be the same as for making an advance directive under section 6.

Advance directive not to apply to emergency treatment

9. The advance directive shall not apply to the emergency treatment given under section 103 to a person who made the advance directive.

Duty to follow advance directive

10. It shall be the duty of every medical officer in charge of a mental health establishment and the psychiatrist in charge of a person’s treatment to propose or give treatment to a
person with mental illness, in accordance with his valid advance directive, subject to section 11.

Power to review, alter, modify or cancel advance directive

11. (1) Where a mental health professional or a relative or a care-giver of a person desires not to follow an advance directive while treating a person with mental illness, such mental health professional or the relative or the care-giver of the person shall make an application to the concerned Board to review, alter, modify or cancel the advance directive.

(2) Upon receipt of the application under sub-section (1), the Board shall, after giving an opportunity of hearing to all concerned parties (including the person whose advance directive is in question), either uphold, modify, alter or cancel the advance directive after taking into consideration the following, namely:––
(a) whether the advance directive was made by the person out of his own free will and free from force, undue influence or coercion; or
(b) whether the person intended the advance directive to apply to the present circumstances, which may be different from those anticipated; or
(c) whether the person was sufficiently well informed to make the decision; or
(d) whether the person had capacity to make decisions relating to his mental healthcare or treatment when such advanced directive was made; or
(e) whether the content of the advance directive is contrary to other laws or constitutional provisions.

(3) The person writing the advance directive and his nominated representative shall have a duty to ensure that the medical officer in charge of a mental health establishment or a
medical practitioner or a mental health professional, as the case may be, has access to the advance directive when required.

(4) The legal guardian shall have right to make an advance directive in writing in respect of a minor and all the provisions relating to advance directive, mutatis mutandis, shall apply to such minor till such time he attains majority.

Review of advance directive

12. (1) The Central Authority shall regularly and periodically review the use of advance directives and make recommendations in respect thereof.

(2) The Central Authority in its review under sub-section (1) shall give specific consideration to the procedure for making an advance directive and also examine whether the existing procedure protects the rights of persons with mental illness.

(3) The Central Authority may modify the procedure for making an advance directive or make additional regulations regarding the procedure for advance directive to protect the
rights of persons with mental illness.

Liability of medical health professional in relation to advance directive

13. (1) A medical practitioner or a mental health professional shall not be held liable for any unforeseen consequences on following a valid advance directive.

(2) The medical practitioner or mental health professional shall not be held liable for not following a valid advance directive, if he has not been given a copy of the valid advance directive.