The Understanding of ‘Capacity’ & Decision-Making Under Indian Law Lacks Nuance, Consistency & a Modern Scientific Approach

Part I of a II part series – legal capacity & decision-making in health and family law

The capacity and opportunity to exercise personal choice influences every aspect of human life, and is expressed through the decisions we make on a daily basis, as well as when we come to personal milestones. Capacity is governed by nature and nurture, while decision-making opportunities are governed by the law. The varied nature of the decisions one encounters necessarily requires some differences between the legal provisions dealing with different categories of decision-making. However, flaws in the rationale, drafting, and interpretation of such laws can lead to unintended consequences. Such is the case with provisions that prescribe a blanket presumption of a lack of decision-making capacity, without providing for the specificity and nuance of varying circumstances – they fail to acknowledge that impairment or lack of capacity in one context does not automatically translate to a lack of capacity in all contexts.

Many Indian laws contain specific provisions and exceptions for persons with impaired capacity. These laws tend to use outdated and vague terminology such as “lunacy” and “unsoundness of mind” (Section 13 of the Hindu Marriage Act, 1955) and often do not define or specify the parameters for the applicability of such terms. Thus, this results in discrimination against persons who, while affected by some temporary or long-term impairment, may, regardless, have the capacity to make decisions or enter into transactions contemplated under such laws, but are barred from doing so due to public perception and traditional misconceptions regarding their conditions or identities, as the case may be. Barring a few exceptions, the broad majority of laws and judicial decisions leave much to be desired in terms of a nuanced approach to decision-making.

For instance, under the Hindu Adoptions and Maintenance Act, 1956, no adoption is valid unless both the person who is adopting as well as the person who is giving the child up for adoption has the ‘capacity’ to do so (Sections 6(i) and (ii), the Hindu Adoptions and Maintenance Act, 1956). Similarly, under the Medical Termination of Pregnancy Act, 1971, the pregnancy of a ‘mentally ill’ woman above the age of eighteen years may be terminated only with her guardian’s consent, in writing (Section 3(4), Medical Termination of Pregnancy Act, 1971).

There are some exceptions to this trend, such as: (a) Section 12 of the Indian Contract Act which defines the parameters of ‘soundness of mind’ – tending towards a decision / situation-specific interpretation of legal capacity that permits a person to enter into a contract if they are capable of understanding it and forming a “rational judgment” as to its effects upon their interests, (b) Section 59 of the Indian Succession Act that provides explanations as to the varying states of mind that may render a person capable or incapable of making a valid will – for instance, a person may make a will during unimpaired intervals, despite being ordinarily affected by impaired capacity, and (c) Section 84 of the Indian Penal Code which provides a slightly lower standard for ascertaining capacity in the context of commission of a crime – it is sufficient that the person knows the “nature of the act” committed, or that it is “wrong” or “contrary to law”.

These provisions reflect the differing standards for determination of legal capacity under different areas of the law, and, indeed, the conflicting approaches, under different laws, to the inclusion of and provision for persons with impaired capacity and their interactions. Some of the ambiguity regarding the standards required to be applied in determining decision-making and legal capacity has been clarified through case law or judicial precedents in certain areas, including: (i) Marriage and Health-related rights, and (ii) Rights under Contracts and Procedural Laws. Indian courts have dealt with some aspects of the question of capacity, laying down certain principles for determination of capacity, thresholds for the exercise of decision-making capacity in certain scenarios, and the applicability of the various legal provisions relating to decision-making as well as legal capacity.

We will discuss some cases illustrating these principles in our two-part blog series. In Part I of this series, we will focus on the legal principles that govern decision-making and legal capacities in the areas of a) health and reproductive rights and b) marriage and adoption related rights to understand the kind of issues that arise in such contexts.  Part II will focus on contracts and property as well as on procedural laws.

Health and Reproductive Rights

In the sphere of health and healthcare, the question of capacity generally arises in relation to consent to treatment by or on behalf of an individual. In Common Cause v. Union of India, the Supreme Court laid down that “there is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted”, with the exception of an emergency or necessity, in which case it may not be practically possible to obtain the individual’s consent or the individual may not be in a condition where she has the capacity to consent. In such cases, the medical practitioner may act without the individual’s explicit consent, with such decisions often being taken by the medical practitioner, in close consultation with the individual’s close relatives and near friends. This type of decision-making process exemplifies substituted decision-making, wherein close relatives and friends of an individual take decisions on their behalf, when such individual lacks the capacity to consent.  Such decisions usually seek to replicate the decision that the individual would have made, had they been competent. Thus, this type of decision-making takes into account the supposed preferences and the wishes of the concerned individual.

Though Indian Courts have not authoritatively engaged with the question of how parties should engage in substituted decision-making, some cases have discussed the limited question of who can undertake substituted decision-making. For instance, in Aruna Shanbaug v. Union of India, the Supreme Court, while considering the question of who can engage in substituted decision-making for a person who was in a persistent vegetative state, held that “in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.” Here, the Court refers to the principle of parens patriae, under which the State has a duty and corresponding right to make decisions for persons who lack legal capacity (See Mahendra Pratap Singh (Deceased) v. Padam Kumari Devi;  Aidal Singh And Ors. v. Karan Singh And Ors).

In Samira Kohli v. Dr. Prabha Manchanda, the Court examined the scope of consent granted by a patient, and the validity of the substituted consent which was obtained while she was unconscious. In this case, the doctor stood accused of having conducted an unnecessary and invasive procedure on the patient while she was under anaesthesia for another procedure, for which her consent had been obtained. The doctor had obtained the consent of the patient’s mother while the patient was still unconscious pursuant to the initial procedure. The Court held that in the specific circumstances, the necessary consent had not been obtained from the patient, and that the mother’s consent was invalid considering that the patient herself was “a competent adult”, only temporarily unconscious, and the additional procedure was not warranted by any medical emergency. In this case, the Court laid down a few principles to decide whether the patient is said to have consented to a certain medical treatment or procedure. Among other pronouncements, the Court held that the consent obtained by the doctor from the patient should be both real and valid. This means that the patient should have both the capacity as well as the competence to consent, such consent should be voluntary in nature, and be based on adequate information relating to the treatment concerned so that the patient knows what she is consenting to.

The Court also held that consent given by a patient for one therapeutic procedure cannot be automatically extended to another additional procedure, no matter how beneficial such additional procedure may be, in the doctor’s subjective opinion. However, the only exception to allowing such unauthorised procedure by the doctor, which has not been explicitly consented to by the patient, is an emergency scenario where the additional procedure, though unauthorised, is important to save or preserve the life and health of the patient and it would be unreasonable to delay such procedure unless the patient regains consciousness or capacity to consent. Though in this case, the Court did not specify the standard of capacity that is needed for the consent to be valid, it is still clear from this case that a person’s decision-making capacity would impact the quality of the consent given by them. In the present case, since the patient was in an unconscious state when the doctor decided to perform the additional medical procedure on her, and her prior informed consent obtained while conscious did not extend to the additional procedure, it was held that she could not have validly consented to such additional procedure. Thus, the Court highlighted the importance of informed consent and also that temporary unconsciousness was not adequate to render a person incapacitated for the purpose of making medical decisions for themselves, barring unforeseen emergencies.

In Suchita Srivastava & Anr v. Chandigarh Administration, the Supreme Court evaluated the capacity of a woman who had undergone medical assessment, and was found to be suffering from “mild to moderate mental retardation”, to consent to medical termination of her pregnancy. Despite detailed medical assessments recommending that the woman’s consent to such termination be obtained, the High Court had ruled that the pregnancy be terminated regardless of consent. The Supreme Court overturned this decision, upon taking into account the woman’s expressed willingness to bear the child. The Court held that while the state may claim guardianship of the woman since she had been an orphan raised in state-run institutions, this guardianship could not be extended “mechanically” to decisions about the termination of her pregnancy. The Court considered the distinction between the conditions of ‘intellectual disability’ and ‘mental illness’ under The Medical Termination of Pregnancy (‘MTP’) Act, 1971to say that simply because the woman suffered from some mental retardation, it did not mean that her lack of consent to the termination of pregnancy would be rendered invalid, and her willingness to bear the child would be disregarded. While taking recourse to the definition of a ‘mentally ill person’ under the MTP Act, 1971 which says that “a mentally ill person means a person who is in need of treatment by reason of any mental disorder other than mental retardation” and then reading it in conjunction with the respective definitions of ‘mental illness’ and ‘mental retardation’ given in the erstwhile Persons with Disabilities Act, 1995, the Court said that ‘mental retardation’ was different from ‘mental illness’ and while a guardian can make decisions on behalf of a person with mental illness under Section 3(4)(a) of the MTP Act, 1971, the same could not be done on behalf of a person who had a condition of “mental retardation”. The Court did this by looking into the 2002 amendment to the MTP Act, 1971 by which the word “lunatic” was replaced by the phrase “mentally ill person” (the definition of which excludes a person with mental retardation). Thus, the Court opined that since the purpose behind the 2002 amendment clearly showed that the legislative intent was to narrow down the class of persons on behalf of whom their respective guardians could make decisions vis-a-vis the termination of their pregnancies, the Court would be remiss in permitting the termination of a woman’s pregnancy without her consent, when she only suffered from some degree of mental retardation.

Thus, the crucial takeaway from the above case is that it turns on the degree of intellectual incapacity to decide whether or not a person’s consent would be considered essential before their pregnancy was terminated. If they suffer from ‘mental retardation’, their consent would be needed while if they suffer from ‘mental illness’, it is not theirs but the guardian’s consent that would be needed to terminate the pregnancy. While the Court protected the rights of the individual in the present case, it was, however, following the provisions of the statute.  There is a concern that these statutory provisions legitimise discrimination against all mentally ill persons, further marginalise them and strip them of their decision-making ability and autonomy when it comes to making reproductive decisions. This approach fails to realise that persons with mental illnesses are not a homogenous category and that even within the said category, there may be persons with differing levels of awareness, who are able to appreciate the scope and consequences of their decisions to varying degrees. Thus, with a broad-brush, all people with mental illnesses are classified as being incapable of making reproductive decisions under the MTP Act, 1971, as well as this judgment which deals with the interpretation of such Act.

Rights Relating to Marriage and Adoption

Under the Special Marriage Act (‘SMA’) and the Hindu Marriage Act (‘HMA’), a marriage cannot take place where either party’s capacity is impaired so as to prevent them from giving valid consent to the marriage, living with their spouse, or procreating (Section 4, SMA and Section 5, HMA). The provision is expressed using the terms – “unsound mind”, “mental disorder”, being “unfit” for marriage or procreation, and “recurrent attacks of insanity”. However, soundness of mind is not defined in either Act. Both these laws also provide for divorce on the ground of “unsoundness” of mind, without defining the term, although the terms mental disorder and psychopathic disorder are explained (Section 27, SMA; Section 13, HMA).

Under both these Acts, a marriage between two parties can be solemnised only if neither party “has been suffering from mental disorder of such a kind or to such an extent so as to be unfit for marriage and the procreation of children”, even though they may be capable of giving “valid consent” (Section 4, SMA; Section 5, HMA). This position is rather anomalous and leads to the dubious outcome where the Acts, despite recognising that some persons with a ‘mental disorder’ may be capable of giving valid consent, fail to elucidate the facets of such capacity, and to explain the rationale to be applied in determining ‘fitness’ for decision-making in regard to marriage. By drawing vague linkages between suffering from a mental disorder and being unfit for marriage and procreation, these provisions veer dangerously close to the U.S. Supreme Court’s pronouncement nearly a century ago, in Buck v. Bell, where while upholding the forced sterilisation of an intellectually challenged woman, Justice Oliver Wendall Holmes Jr. infamously remarked: “three generations of imbeciles are enough.”

Meanwhile, Muslim personal law provides for dissolution of a marriage on the ground that the husband has been “insane” for a period of two years (Section 2(vi) of the Dissolution of Muslim Marriages Act, 1939), and the Indian Divorce Act 1869, applicable to Christians, provides that a marriage may be declared null and void if either party was a “lunatic or idiot” at the time of the marriage. The Supreme Court, in adjudicating a case for divorce under Section 13(1)(iii) of the HMA, highlighted the importance of nuance in the evaluation of mental capacity, and in determining the applicability of terms such as ‘unsoundness of mind’, while observing that: the “medical concern against too readily reducing a human being into a functional non-entity” is also the concern of the law, “and is reflected, at least partially, in the requirements of Section 13(1)(iii)…the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) ‘schizophrenia’ is what Schizophrenia does.” It is necessary for the spouse claiming the existence of the requisite degree of “mental disorder,” to prove it, in order to claim a divorce under this provision (Ram Narain Gupta v. Rameshwari Gupta).

Similarly, as already mentioned, under the Hindu Adoptions and Maintenance Act, 1956 (Section 6(i) and (ii)), no adoption is valid unless both the person who is adopting as well as the person who is giving the child up for adoption has the ‘capacity’ to do so. The Act also specifies that in order for the adoption to be valid, the person who is being adopted must be ‘capable’ of being taken in adoption (Section 6(iii)). However, the Act does not define ‘capacity’ or delineate the contours of such capacity. The CARA Guidelines, which lay down the framework for adoption in India, mention that prospective adoptive parents must be “mentally stable” (Regulations 5(1), the Adoption Guidelines 2017); once again – there is no attempt here, to define what such stability means or entails. The Model Guidelines for Foster Care, 2016 too, prescribe that both spouses belonging to the prospective foster family must be in ‘good’ mental health, without laying down any standard for determination of the same. This essentially means that many children and desirous adoptive parents are left out of the adoption process simply because the law does not clarify in a nuanced manner the level of ‘capacity’ that it requires for an adoption to be valid.

Thus, a critical look at the legal provisions surveyed above, and their various possible unintended consequences, highlights their significance to all our lives in one way or another, but none more so, than the lives of so many categories of people who are already denied their rights and discriminated against as a result of ignorance, misunderstandings, stigma, and neglect in the spheres of mental and intellectual capacity and neurodiversity. The existing legal framework needs to be re-evaluated, to address its inconsistencies and shortcomings, including those discussed above.

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