Advance directive: An explainer

Living will to specify treatment for mental illness An advance directive is a written document, like a living will. To specify how a person wishes to be cared for or treated for a mental illness; how they wish to not be cared for or treated for a mental illness; and the name of the person who they wish to appoint as their nominated representative.The nominated representative is someone who will make decisions on their behalf when they do not have the capacity to do so.

New provision under the Act

Conditions under which you can make an advance directive Any person who is above eighteen years of age can make an advance directive, irrespective of their history of mental illness, or any treatment they may have received for it.The person making the advance directive should have made it out of their own free will and free from force, undue influence or coercion; they must be sufficiently well informed while making this decision; they must have the capacity to make a decision about their mental healthcare or treatment; and the content of the advance directive can’t go against any laws or constitutional provisions in India.

When an advance directive kicks into place It will be used when the person who has made it doesn’t have the capacity to make a decision about their mental health or treatment. It will be made use of until the person regains this capacity.

Stopping usage of an advance directive If the person who made the advance directive makes a decision about their mental healthcare or treatment after the directive was made, this later decision will be used, not the directive.If the advance directive was made by the person against their free will and under force, undue influence or coercion; or, where the person did not mean for the advance directive to be applicable to the present circumstances that are different from what they had anticipated; or, where the person was not sufficiently well informed about the decision they were making; or, they did not have the capacity to make a decision on their mental healthcare or treatment at the time of making the advance directive; or, if the advance directive contains any instruction that would be illegal to follow in India, Then such an advance directive — upon an application made by the mental health professional treating the person, or the person’s relative or their caregiver — can be reviewed, altered, modified or canceled by the relevant Mental Health Review Board.

No longer wanting to follow an advance directive It can be changed, canceled or withdrawn by the person who made the advance directive at any point in time.

Mental health professional's responsibility It is the responsibility of every medical officer in charge of the mental health establishment and the psychiatrist in charge of your treatment. But they will not be liable for any unforeseen consequences of following instructions given in the advance directive.

Communication of an advance directive The person who has made the advance directive or their nominated representatives need to make sure that the mental health professional who is in charge has a copy of the advance directive when it is required. If they don’t do this, the mental health professional can’t be held liable for not following it.

A minor's rights No, but their legal guardian can. And this can be used when required until the minor is eighteen years old. In case a mental health professional, relative or caregiver thinks the guardian is not acting in the minor’s best interests, they can make an application to the relevant ental Health Review Board about this. Reference: Mental Healthcare Act, 2017, https://www.prsindia.org/uploads/media/Mental%20Health/Mental%20Healthcare%20Act,%202017.pdf