By Vandita Morarka
The law in India, as in several other countries, shows a stark divide in how it treats minors and adults. Most especially this divide is seen in aspects of law that give persons agency to make decisions and exercise their choices. Similar legal attributes determine rights of minors with regard to decision-making relating to personal mental health issues as well as admission, treatment and discharge to mental health institutions. A minor, as defined under the Mental Healthcare Act, 2017, is anyone who hasn’t completed eighteen years of age.
Advance Directive and Nominated Representatives
The law gives every adult the right to make an Advance Directive, in writing, which has to specify the manner in which they wish to be treated (or not be treated) for a mental illness, along with provisions to appoint a Nominated Representative.
A minor clearly does not have the right to make an Advance Directive or to elect a Nominated Representative, here the legal guardian of the minor shall have the authority to make the advance directive in writing and the legal guardian would be the default Nominated Representative, unless otherwise directed by the concerned Board. Basically saying that anyone below the age of eighteen cannot decide how they would like to be treated in case of any mental illness or whom they would want to monitor their treatment in case of such illness.
A minor cannot be appointed as a Nominated Representative.
If a mental health professional or any person who is seen as acting in the best interest of the minor feels that the legal guardian is not acting in a manner that is beneficial for the minor or that the legal guardian is not fit to act as the nominated representative of the minor, they can apply to the relevant Board with necessary evidence requesting a change of the nominated representative.
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The Board can then appoint any person, with their consent, to be the nominated representative of the minor with mental illness. In the case where no person is available to be appointed as the nominated representative, the Board would then appoint the Director of the Department of Social Welfare of the State, where the Board is located, or a person nominated by them, as the nominated representative of the minor.
Admission to and Discharge of Minors: Mental Health Establishments
Minors are not allowed to independently admit themselves to a mental health establishment for treatment. A minor can be admitted to a mental health establishment only on following the procedure laid down in S. 87 of the Mental Healthcare Act, 2017:
The nominated representative has to apply to the medical officer or the mental health professional in charge of the mental health establishment for such admission of the minor.
Once said official receives the application, they may admit the minor to the establishment if two psychiatrists, or one psychiatrist and one mental health professional or one psychiatrist and one medical practitioner, independently examine the minor on the day of admission or at any point in the seven days prior to such admission and both independently conclude that:
the minor has a mental illness that is severe enough to require admission to a mental health establishment;
such admission will be what is best for the minor, keeping in mind her well being, health and safety. Here the wishes of the minor will also be taken into account if such wishes can be understood with certainty. [What is not clearly outlined here though is the procedure to be followed if the minor does not wish to be at the mental health establishment.];
the mental healthcare needs of the minor cannot be fulfilled unless she is admitted;
no other community based alternatives to admission will be of equivalent help.
The minor is to be given living arrangements separate from adults and at par with what arrangements minors admitted to hospitals for other illnesses would get. The environment here would have to be conducive to her age and developmental needs.
The nominated representative or the attendant appointed by the nominated representative will have to stay with the minor, under all circumstances, at the mental health establishment for the entire duration of the stay of the minor at the mental health establishment. If the minor is female and the nominated representative is male, then a female attendant will have to be mandatorily appointed.
A minor shall be given treatment with the informed consent of his nominated representative. [This does not speak of taking informed consent from the the minor]
The minor can be discharged at will of the nominated representative.
The concerned Board has to be informed of the admission of any minor to a mental health establishment, by the official in charge, within seventy-two hours of such admission.
The said Board has the right to visit and interview the minor and/or review the medical records.
Any admission of a minor which continues for a period of thirty days shall be immediately informed to the concerned Board.
The concerned Board is to carry out a mandatory review within a period of seven days of being informed, of all admissions of minors continuing beyond thirty days and every subsequent thirty days.
The concerned Board shall review the clinical records of the minor and may interview the minor if necessary.
Attaining adulthood during the period of admission at the mental health establishment: S. 88 states that if a minor attains the age of eighteen years during his stay in the mental health establishment, the official in charge would have to reclassify her as an independent patient and thereafter relevant provisions would apply.
Restrictions on treatment of minors: Electro-convulsive therapy is not to be used as treatment for minors unless it is seen as mandatory in the opinion of the psychiatrist treating the minor. Then such treatment can be carried out after taking informed consent of the guardian and prior permission of the concerned Board.
What are the key dilemmas surrounding treatment of minors?
A major flaw seen in the law is the complete lack of autonomy it provides to minors to make their own mental healthcare decisions.
It does not provide any gradation in ages for providing more rights and the stark differentiation at the age of eighteen takes away from minors the ability to be able to exercise their personal agency decide what they want their care to be like. It does not account for the need for consent on behalf of the minor.
It may also affect the relationship of mental healthcare professionals with their patients who are minors, eventually harming the nature and process of mental healthcare for minors itself. For example, The Protection of Children from Sexual Offences Act, 2012, (POCSO) makes it compulsory for all child sex abuse (CSA) cases that one learns of, to be reported.
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A counsellor who gets to know of such a case during therapy would also be liable under law to report the case, with or without the consent of the minor or even the consent of the guardians of the minor. What the law here doesn’t do is account for the psychological impact of CSA and the ethical dilemmas of confidentiality and agency surrounding counselling and related therapy. What does such mandatory reporting do for the relationship between the counsellor and the minor client? What of the several social consequences it can have for the child? It is pertinent to resolve this conflict and ensure the agency of the minor.
A way to do this is to bring in gradation of rights for those below eighteen years of age, in keeping with average development indices at each age. This would at least ensure that agency of minors is not completely lost in the process of providing them mental healthcare.
About the Author
Vandita Morarka is an independent policy consultant, legal researcher and gender rights facilitator. She is currently the Policy, Legal and UN Liaison Officer at Safecity (Red Dot Foundation). She is working on a series for The Health Collective looking at The Law and You, an attempt to understand the law that governs mental health in India and its resultant rights and duties.
Views expressed are personal. Material on The Health Collective cannot substitute for professional mental health advice from a trained professional.