Psychiatry and Civil Law

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The Psychiatry and Civil Law:

Psychiatry and Civil Law

The interface between Psychiatry and Civil Law:

Psychiatry is closely connected with the civic law, and for most psychiatrists the legal aspects of their work represent a large part of their everyday practice.

This is quite a different situation from most other medical specialties, which may only encounter legal issues when they surround complaints or difficult ethical challenges. [1]

There are three main areas of Psychiatry and Civil Law:

  • Psychiatry and Civil law relating to the involuntary admission and treatment of patients with mental disorders (in the UK, this is outlined in the Mental Health Act 2007);
  • Civil law concerning issues of consent and capacity (the Mental Capacity Act 2005);
  • Criminal law as it relates to individuals with mental disorders.
reasons

In most circumstances mental health legislation will only relevant to those working within mental health services; however it is important to all doctors for the following reasons:

  • Laws, regulations, and official guidelines provide backing to some aspects of ethical decision making within medicine.
  • The law regulates the circumstances under which treatment can given without patients’ consent, and the compulsory admission of patients with a mental disorder to hospital. Primary care and hospital doctors may encounter situations in which patients refuse essential treatment, and may have to decide whether to invoke powers of compulsory admission and/or best interest treatments.
  • Doctors may asked for reports used in legal decisions, such as the capacity to make a will or to care for property, and claims for compensation for injury.
  • A minority of patients behave in ways that break the law. Doctors need to understand legal issues as part of their management of care.
  • Victims of crime may suffer immediate and long-term psychological consequences. [1]

The Mental Health Acts 1983 and 2007:

In the UK, the key legislation covering involuntary admission and treatment of individuals with mental health problems is the Mental Health Act 1983 (MHA 1983), and its recent amendments in the Mental Health Act 2007 (MHA 2007).

Psychiatry and Civil laws have three purposes:
  1. To ensure essential treatment is provide for patients with mental disorders who do not recognize that they are ill, and refuse treatment. Three criteria are use to decide whether treatment is essential: the safety of the patient, the safety of others, and the need to prevent deterioration in health that would lead to one of the former categories;
  2. To protect other people for example, from the violent impulses of a paranoid patient;
  3. To protect individuals from wrongful detention.

Mental health laws tend to provide legislation covering all of the areas shown in table below:

 

What is include in mental health legislation?

  • Definition of mental disorder
  • Procedures for the assessment of patients with mental disorders who may need involuntary admission and treatment
  • Urgent admission procedures for patient with mental disorders who are not in hospital
  • Criteria for and procedures of providing involuntary treatment
  • Emergency treatment by doctors (psychiatrists or generalists)
  • Emergency procedures for compulsory detention of patients already in hospital (general or psychiatric)
  • Police powers to detain for medical assessment
  • Criminal or forensic detainment and treatment
  • Safeguards: patient advocacy and mental health tribunals
  • Discharge and follow-up community treatment
  • Capacity and consent (in the UK, covered by the Mental Capacity Act)

 

Definition of mental disorder:

Under the MHA 2007, mental disorder is define as any disorder or disability of the mind.

The four categories of mental disorder described in the MHA 1983 are no longer include.

The only exclusion criterion is that dependence on alcohol or drugs alone is not consider to be a mental disorder.

Similarly, a person with a learning disability is not consider to be suffering from a mental disorder simply as a result of that disability unless it is associated with abnormally aggressive or seriously irresponsible conduct. [1]

Mental Health Act, 1987:

The Mental Health Bill became the Act 14 of 1987 on 22nd May 1987.

Later, the Government of India issued orders that the Act came in force with effect from April 1, 1993 in all the states and Union territories of India.

The Act is divide into 10 chapters consisting of 98 sections.

Preliminary Chapter I :
  • It deals with the various definitions.
  • The Act uses the term ‘ mentally ill person’ instead of ‘lunatic’ and defines it as ‘a person who is in need of treatment by reason of any mental disorder other than mental retardation’.
  • The term ‘mentally ill prisoner’ is use instead of ‘criminal lunatic’.
  • Other new terms, which are defined in the Chapter 1, are psychiatric hospital (instead of mental hospital), psychiatric nursing home and psychiatrist.
Chapter II:
  • It provides for establishment of Mental Health Authorities at Centre and State levels.
  • These authorities will regulate and coordinate mental health services under Central and State Government, respectively.
Chapter III:
  • It lays down the guidelines for establishment and maintenance of psychiatric hospitals and nursing homes.
  • In addition, there is a provision for a Licensing Authority who will process applications for licenses.
  • No private psychiatric hospital or nursing home will be allowed to function without a valid license, which has to be renewed every 5 years.

There is also a provision for an Inspecting Officer who will inspect the psychiatric hospitals and nursing homes to prevent any irregularities.

There is a provision for separate hospitals for:

  • Those under the age of 16 years,
  • Those addicted to alcohol or other drugs which lead to behavioural changes,
  • Mentally ill prisoners,
  • Any other prescribed class or category.
Chapter IV:

It deals with the procedures of admission and detention in psychiatric hospitals or nursing homes.

In addition to the 5 methods allowed by the Indian Lunacy Act of 1912, one more method has been incorporated.

Hence, the admission in a psychiatric hospital or nursing home can be made in one of the following manners:

1.Voluntary Admission i.e.

i. By the patient’s request, if he is a major.

ii. By the guardian, if a minor (a new provision).

2. Admission under Special Circumstances i.e.

This is an involuntary hospitalisation when the mentally ill person does not or cannot express his willingness for admission.

Admission is made, if a relative or a friend of the mentally ill person applies in writing for admission and the medical officer in-charge of the hospital is satisfy that the admission will in the interest of the mentally ill person. The duration of admission cannot exceed 90 days.

3. Reception order on application.

4. Reception order without application, on production of mentally ill person (e.g. wandering, dangerous, ill-treated or neglected mentally ill person) before the Magistrate.

5. Admission as inpatient, after judicial inquisition.

6. Admission as a mentally ill prisoner.

In addition, the Magistrate can order detention of an alleged mentally ill person for short periods pending report by medical officer (for a period not exceeding 10 days in aggregate) or pending his removal to psychiatric hospital or psychiatric nursing home (for a period not exceeding 30 days).

V Chapter:
  • This deals with the inspection, discharge, leave of absence and removal of mentally ill persons.
VI Chapter:
  • It deals with the judicial inquisition regarding the alleged mentally ill person possessing property, custody of his person and management of his property.
  • If the court feels that the alleged mentally ill person is incapable of looking after both himself and his property, an order can be issued for the appointment of a Guardian.
  • If, however, it is felt that the person is only incapable of looking after his property but can look after himself, a Manager can be appointed.
VII Chapter:
  • It deals with the liability to meet the cost of maintenance of mentally ill persons detain in psychiatric hospitals or nursing homes.
VIII Chapter:

This is aim at the protection of human rights of mentally ill persons. This is a new chapter in the Act.

It provides that: 

  • No mentally ill person shall subjected, during treatment, to any indignity (whether physical or mental) or cruelty.
  • No mentally ill person, under treatment, shall used for the purposes of research, unless

i. Such research is of direct benefit to him.

ii. A consent has been obtained in writing from the person (if a voluntary patient) or from the guardian/relative (if admitted involuntarily).

  • No letters or communications sent by or to a mentally ill person shall intercepted, detained or destroyed.
Chapter IX & X:
  • It deals with the penalties and the procedure, while Chapter X provides for miscellaneous sections.
  • In addition, the State Mental Health Rules, 1990 (which also contains the nine important forms required by the Mental Health Act, 1987) and the Central Mental Health Authority Rules, 1990, have also been passed by the Government of India on December 29, 1990.
  • Currently consultations are in progress to consider either modifying or updating the current Act. [2]

Professional roles within the MHA 2007:

Many terminology have been redefined between the MHA 1983 and MHA 2007 in order to allow a broader range of health professionals to carry out parts of the act.

Approved Mental Health Professional (AMHP):
  • It is the term that has replaced Approved Social Worker (ASW).
  • An AMHP may be any mental health professional (e.g. social worker, nurse, psychologist) who has undergone specific training in assessing and dealing with patients with mental disorder.
  • They can apply for patients to assessed or treated under sections of the MHA.
Approved Clinician (AC):
  • It is use to be confined to doctors, but has been widened to include other health professions with the relevant training.
Responsible Clinician (RC):
  • It has replaced the Responsible Medical Officer (RMO).
  • Any Approved Clinician can act as an RC.
  • Each patient being treated under the MHA has an RC who is responsible for their overall care.
A ‘Section 12 Approved’ doctor:
  • Usually a consultant psychiatrist or senior registrar is a doctor with appropriate training and approval to certify patients under the MHA.
  • The requirement for at least two doctors, one Section 12 approved, to make recommendations for use of the MHA in patients under Section 2 and 3, has not changed.
Nearest relative (NR):

The nearest relative of a patient can now include any of the following (in order):

  • Spouse or civil partner,
  • Child, parent,
  • Sibling,
  • Grandparent,
  • Grandchild,
  • Uncle or Aunt,
  • Nephew or Niece.

A patient is now allow to apply to the courts for dismissal of their nearest relative if they feel they are not a suitable person for the job. [1]

Commonly used sections of the MHA 2007:

At any one time, approximately 10–15 percent of psychiatric inpatients in the UK are admitted under the MHA; the majority of patients are therefore admitted voluntarily—this comes as a surprise to many people.

2nd Section:

  • When psychiatrists are ask to go out into the community to do an MHA assessment, it is usually with a view to admitting the patient under Section 2 of the MHA.
  • This is an assessment order, allowing detention of the patient for up to 28 days for assessment of their mental disorder.
  • At the end of this time, the section must either converted to a treatment order (Section 3) or the patient discharged; it cannot renewed.
  • Application for a Section 2 is made by an AMHP, and two doctors (one of whom must be Section 12 approved) are need to recommend use of the section.

The criteria that the patient must fulfill to be held under a Section 2 are as follows:

FIRST i.e.:

The person must suffering from a mental disorder of a nature or degree that warrants their detention in hospital for assessment and

SECOND i.e.:

The person ought to be detained in the interests of their own health or safety or with a view to the protection of others.

THIRD i.e.:

The word nature refers to the exact mental disorder from which the patient is suffering, and the degree refers to the current manifestation and severity of the disorder.

3rd Section:

  • Section 3 is a treatment order and is the section under which most detained inpatients are held.
  • It lasts up to 6 months, after which it may be renewed for another 6 months, and then after that for a year at a time.
  • If a patient is deem well enough to no longer require involuntary treatment, the section may be lifted at any time.
  • As with Section 2, an AMHP must make an application for use of the section, and two doctors (one Section 12 approved), who must have seen the patient within 24 hours, recommend its use for the patient.
  • The criteria are as for Section 2, plus one additional criterion which is a new addition to the law from 2007.
  • This is that there must appropriate medical treatment available for the mental disorder from which the patient is suffering.
  • This can include nursing, psychological interventions, provision of new skills, rehabilitation and care, as well as traditional medical treatments.
  • When applying for the section, the RC must have a definite treatment and management plan for the patient.

4th Section:

  • Section 4 allows the emergency admission of patients not already in hospital for whom waiting for the paperwork or personnel to complete Section 2 would cause a dangerous delay.
  • An application from an NR or AMHP is made on recommendation from one doctor, who does not need to be Section 12 approved.
  • It is usually convert to a Section 2 upon arriving at hospital.
  • Section 4 can last up to 72 hours, and is non-renewable.

5(2) Section :

  • This section provides a means of detaining a patient who is already in hospital; this includes general and psychiatric hospitals, but not the emergency room.
  • Any doctor can detain a patient for up to 72 hours, during which time they should liaise with a psychiatrist to plan for admission under Section 2.

5(4) Section :

  • Popularly known as the ‘nurses’ holding power’, Section 5(4) allows a registered psychiatric nurse (and since the MHA 2007, any AMHP) to detain an informal patient for up to 6 hours.
  • This is use when an informal patient is attempting to discharge against medical advice, and might cause serious harm to them self or others (e.g. commit suicide).
  • During the 6 hours, the nurse should contact the members of staff needed to place a Section 2.

Section 136:

  • This section allows police officers to remove a person believe to be suffering from a mental disorder from a public place and take them to a place of safety.
  • This is usually the local psychiatric ward/hospital, a designated room in the police station, or an emergency room.
  • Once there, a doctor and AMHP must assess the patient; 90 percent are then detained under Section 2 or 3.

Other sections of the MHA 2007:

Some less commonly used sections include:

Section 7 (guardianship) i.e.:
  • This enables patients to receive community care which could not otherwise provide without the use of another MHA section.
  • The guardian an AMHP can require the patient to live in a particular place, attend specific treatment, and allow authorized persons to visit.
  • Application is by an AMHP or NR and needs two medical recommendations.
17 Section i.e.:
  • This section permits patients being treated under Section 3 to go on leave from hospital whilst still under the section.
  • It requires the RC and a doctor to agree and sign the section.
Section 17A-G (compulsory treatment order, CTO) i.e.:
  • The CTO use to call a ‘supervised discharge’ and was under Section 25, but has been incorporated into Section 17 by the MHA 2007.
  • This requires a patient discharged from inpatient care to have to attend for/comply with treatment in the community (e.g. attend for depot antipsychotic doses or therapy).
  • There is also a power to recall the patient to hospital if they do not comply with restrictions.
aftercare Section 117 i.e.:
  • This is a legal requirement that all patients detained on longer-term sections (3, 37, 47, or 48). They are provided with formal aftercare.
  • All patients must have regular reviews of health and social needs. They are an agreed care plan, an allocated health worker. Additionally, regular progress reviews.
Sections 35 and 26 (criminal pre-trial orders) i.e.:
  • These are ally to Sections 2 and 3, but are for individuals with a mental disorder that warrants treatment in hospital, but who are awaiting trial for a serious crime.
  • The patient will then held in a secure hospital rather than a prison.
Section 37 (criminal post-trial order) i.e.:
  • This applies to patients who have a mental disorder that warrants treatment in hospital, but who have already convicted of an offence punishable with imprisonment by the courts.
  • There does not need to be a link between the offence and illness.
  • The procedure is then as for Section 3. [1]

Safeguarding of Patient In Psychiatry & Civil Law:

Individuals with mental health disorders are by definition a vulnerable group, and those who are acutely unwell are at high risk of exploitation by others.

In order to ensure that patients are not wrongfully detain, or kept under a Mental Health Act section for longer than necessary, the law contains various safeguards.

Appeals against detention:

  • An important safeguard against misuse of the power to detain is a system of independent review.
  • A patient can also ask for a hearing at any time.
  • In the USA, these proceedings are very similar, and are called ‘commitment hearings’.

The review panel consists of three people:

1. A legal member i.e.:
  • Chairs the panel, usually a lawyer with experience of mental health cases;
2. A doctor i.e.:

Typically an independent consultant psychiatrist, who must have examined the patient before the tribunal takes place;

3. A lay member i.e.:
  • This is a member of the public who has volunteered to sit on these panels.
  • The majority have practical experience of working in social or mental health.

The tribunal happens in a designated room within the hospital, and the patient, their NR, also members of the clinical treatment team all attend.

The patient may have their own legal representative with them.

The panel questions the patient about why they feel they do not need to be in hospital any longer also the team for evidence to the contrary.

If the panel decides the criteria for discharge have met, the section is lift also the patient must discharged.

The reality is that the majority of decisions recommend that the patient needs further involuntary treatment.

Advocacy psychiatry and civil law:

  • Advocacy ensures patients do not face discrimination or unfairness due to their mental health problems.
  • It provides the patient with a voice to express their views also defend their rights.
  • Whilst advocacy has been widely available throughout the UK for some years, the 2007 amendments to the MHA 1983 placed a duty on local authorities to provide an independent advocate for patients detained involuntarily.
  • They typically help the patient understand the process of what is happening to them (e.g. explaining the law), help them to complete paperwork (e.g. preparing for a MHRT), also stand up for their rights (e.g. to have vegetarian food provided in hospital). [1]

Other relevant parts of the MHA 2007:

Consent to certain treatments i.e.:
  • Generally, the legal authority to detain a patient carries with it the authority to give basic treatment even without the patient’s consent (e.g. intramuscular sedation).
  • Under a Section 3, medications can given for up to 3 months of detention.
  • After this time, either the patient has to consent or an independent doctor must provide a second opinion to confirm that the treatment is still in the patient’s best interests.
  • In some other countries, additional authority has to be obtained before any treatments may be given without consent.
  • Electroconvulsive therapy (in other words; ECT) has specific guidance relating to its usage.
  • ECT may not given to a refusing patient who has the capacity to refuse it, and may only given to an incapacitated patient where it does not conflict with any advance directive, decision of their NR, or decision of the courts.
  • The only exception to this is emergency (life-threatening) situations, in which the RC can authorize up to two ECT treatments for patients detained under Section 3.
Treating Physical illness i.e.:

The MHA 1983/2007 relates only to the treatment of mental disorders, not physical disorders.

It does not permit the treatment of any physical comorbidity that a detained psychiatric patient may have.

There are only two exceptions to this rule:

  • Enforced refeeding of a severely emaciated patient suffering from anorexia nervosa. This is allow because anorexia nervosa is a mental disorder. Additionally, refeeding constitutes a necessary first stage of its treatment sequelae;
  • Treatment of physical sequelae of an attempted suicide, which was direct result of an underlying mental disorder.
Age Appropriate Services i.e.:
  • The law now requires that for patients aged under 18 who are admitted to hospital. An environment suitable to their needs is provide.
  • In practical terms, this is suppose to prevent the treatment of adolescents on adult wards.
  • It was previously the case that if a child aged 16 or 17 refused hospital admission. Their parents could consent for them.
Laws concerning capacity and consent to treatment i.e.:
  • Across medicine it is essential that a patient’s consent is gain before a health practitioner treats them; without consent this treatment is an assault.
  • Consent must informed, given voluntarily without undue influence, and given by the patient.
  • It is good practice to document consent.
  • There are a variety of different groups of people within society who may not in a position to make decisions for themselves, and various other (often emergency) situations in which gaining consent can problematic. [1]

The Mental Capacity Act 2005 (MCA 2005) in Psychiatry and Civil Law:

In the UK, the MCA 2005 provides the first definite legislation to protect vulnerable individuals who are deem not to have capacity to make their own decisions.

It applies to people aged 16 or over, as those below the age of 16 can have consent given by their parents.

The act is underpinned by five principles i.e.:
  1. An adult is assume to have capacity unless it is established that they lack capacity.
  2. A person is not treat as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
  3. A person is not treat as unable to make a decision merely because they make an unwise decision.
  4. Anything done for, or on behalf of, the person must in their best interests.
  5. Anything done for, or on behalf of, the person should the least restrictive option with respect to their basic rights and freedoms.
Making a Will i.e.:

Doctors are sometimes ask to advise whether a patient is capable of making a will. That is whether he has ‘testamentary capacity’.

The requirements are that the person:

  • Understands what a will is;
  • Knows the nature and extent of his property (although not in detail);
  • Knows who his close relatives are and can assess their claims to his property;
  • Does not have any mental abnormality that might distort his judgement (e.g. delusions about the actions of his relatives).

Most patients with mental disorder are wholly capable of making a will.

Fitness to Drive i.e.:
  • Patients may drive recklessly if they are manic, depress and suicidal, or aggressive, or if they abuse alcohol or drugs.
  • Concentration on driving may impaired in many kinds of psychiatric disorder, and also by the sedative side effects of drugs used in treatment.
  • The issue should consider in all cases in which a patient drives a motor vehicle.
  • Advice to stop driving should given if necessary and the patient reminded of his duty to report illnesses to the licensing authority.
  • In the UK, the DVLA publishes a guide for clinicians as to which conditions should be reported, and with which the patient’s license is invalid.
  • Examples include mania, acute psychosis, and severe depression with suicidal ideation.
  • Particular caution is require for patients who drive public service vehicles or goods vehicles.
Compensation for Personal Injury i.e.:
  • Doctors are often ask to write medical reports about disability following accidents or other trauma and in relation to claims of medical negligence.
  • Such reports are concern mainly with the nature. In detail, outlook of physical disability, but they should include any psychiatric consequences directly attributable to the trauma or induce by the physical disability.
  • In many cases there is evidence that there were psychological problems or social difficulties before the event, and it is important to decide how far the psychological and social changes found after the trauma represent a continuation of these previous difficulties rather than new developments.
  • Evidence from a close relative or other informant, interviewed separately, should obtained whenever possible. [1]

This applies both to the civil and criminal proceedings in the court of law.

The Hindu Marriage Act (Act 25 of 1955) under Psychiatry & Civil Law:

It provides for conditions for a Hindu marriage under Section 5.

One of the conditions, i.e. Section 5 (ii) introduced by Act 68 of 1976, states that ‘at the time of the marriage, neither party,

          a. is incapable of giving a valid consent (due to) unsoundness of mind; or

          b. though capable of giving consent. It has been suffering from mental disorder of such a kind or to  such an extent as to be unfi  for marriage and the procreation of children; or

          c. has been subject to recurrent attacks of insanity or epilepsy.’

Section 12

Any marriage solemnised in the contravention to this condition shall be voidable and may be annulled by a decree of nullity under Section 12 of the Act.

Another ground of nullity under the same section is the fact that the consent for marriage was obtain by ‘fraud’...‘as to any material fact or circumstance concerning the respondent’, for example, the fact of mental illness or treatment for the same.

Section 13

Divorce can granted under Section 13 of the Act on a petition presented by either spouse on the ground that the other party ‘has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such kind and to such an extent that the petitioner cannot reason ably be expected to live with the respondent’ (Section 13 (iii) inserted by Act 68 of 1976).

Here, the term mental disorder means ‘mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia’.

The term psychopathic disorder means ‘a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment’.

Muslim Marriages Act 1939under Psychiatry & Civil Law:

  • Under the dissolution of Muslim Marriages Act 1939, a woman married under Muslim law is entitled to obtain a decree for the dissolution of marriage on the ground of her husband being insane for a period of 2 years.
  • Additionally, The husband under the Muslim law has the power to pronounce divorce (talak) at anytime, anywhere, also without assigning any reason.

Parsi Marriage and Divorce Act 1936under Psychiatry & Civil Law:

  • Any married person may granted divorce, under the Parsi Marriage and Divorce Act 1936. On the ground that the other party had of unsound mind at the time of marriage (and the petitioner was ignorant of the fact). Additionally, has habitually so till the date of petition, which should within 3 years of the date of marriage.

Hindu Adoptions and Maintenance Act (Act 78 of 1956)under Psychiatry & Civil Law:

  • Under the  Hindu Adoptions and Maintenance Act (Act 78 of 1956), any Hindu male ‘who is of sound mind and is not a minor’ can adopt a child, with the consent of his wife unless ‘…(she) has been declared by a court…to be of unsound mind’ (Section 7).
  • Similarly, any Hindu female ‘who is of sound mind’, is not a minor, and is not married, can adopt a child.
  • If she is married, ‘then her husband is dead, or has renounced the world, or cease to be a Hindu, or has been declared by a court to be of unsound mind’ (Section 8).
  • In addition, the person capable of giving in adoption of a child should be of sound mind.

Indian Evidence Act 1872 under Psychiatry & Civil Law:

  • Under the Indian Evidence Act 1872, a ‘lunatic’ is not competent to give evidence if he is prevent by virtue of his ‘lunacy’ from understanding the questions put to him and giving rational answers to them (Section 118).
  • However, such a person can give evidence during a lucid interval on discretion of the judge (and the jury).

Indian Succession Act (Act 39 of 1925) under Psychiatry & Civil Law:

Testamentary disposition is regulate by the Indian Succession Act (Act 39 of 1925).

Some of the salient points regarding testamentary disposition are as follows:

  1. A will must in writing, though it need not be registered.
  2. It must signed by testator in the presence of at least two witnesses.
  3. A legatee cannot attest a will.
  4. An executor(s) is appoint under the will by the testator to carry out its terms after his death.
  5. A will can revoked or modified any time before the death of the testator.
  6. A will comes into effect after the death of the testator. It is said to speak from grave and to be ‘ambulatory’.
  7. The testator must be of a ‘sound and disposing mind’. Section 59 of the Act states that ‘every person of sound mind, not being a minor. It may dispose of his property by will’.
Explanation 4

Explanation 4 of this section states that ‘no person can make a will while he is in such a state of mind. Whether arising from intoxication or from illnesses or from any other cause, that he does not know what he is doing’.

If a medical practitioner call to examine a testator as to his fitness to make a valid will, the following points must kept in mind:

1. Testamentary capacity consists of i.e.:

i. Firstly, an understanding of the nature of the will,

ii. Secondly, a knowledge of the property to dispose of, and

iii. Thirdly, an ability to recognize those who may have justifiable claims on his property.

2. The testator should test on the above mentioned points by thorough questioning.

3. If the testator is seriously ill. He must be made to read out aloud the will in the presence of the doctor.

4. A will is invalid if it execute under undue influence of any other person. If there is reason to suspect that such is the case, the testator should be questioned when he is alone.

5. A will is invalid under the following conditions (for example) i.e.:

i. imbecility arising from advanced age or by excessive drinking.

ii. impulsive delusions making the testator incapable of rational views and judgement.

6. A will is valid under the following conditions (for example) i.e.:

i. Firstly, deaf, foolish or blind persons who are not thereby incapacitated for making a will and are able to know what they do by it.

ii. Secondly, lucid intervals.

iii. Thirdly, if testator commits suicide immediately after making the will, in the absence of evidence of mental disorder.

iv. Fourthly, presence of delusions not affecting in any way the disposal of the property or the persons affected by the will.

7. A will may be declared invalid if the testator disposes his property in a way. Which he would not have done under normal conditions.

Transfer of Property Act 1882 (Section 7):

  • Under the Transfer of Property Act 1882 (Section 7), only persons competent to contract, authorise to transfer property.

Indian Contract Act 1872 (Section 11):

  • Under the Indian Contract Act 1872 (Section 11). Every person to competent to contract must be a major and of sound mind.
  • A person said to of sound mind for the purposes of a contract. If at the time of making a contract he is capable of understanding it. Additionally, of forming a rational judgement as to its effect upon his interests.

Driving:

  • It is important that advice give regarding driving if there is likelihood that driving can impaire by the nature of illness. Prescribed medication and/or misuse of alcohol or drugs. [2]

Frequently Asked Questions

What is Psychiatry and Civil Law?

Psychiatry is closely connected with the civic law. Additionally for most psychiatrists the legal aspects of their work represent a large part of their everyday practice.

What is the purpose of Psychiatry and Civil Law?

  • Ensure essential treatment is provide for patients
  • To protect other people
  • To protect individuals from wrongful detention.

What is Mental Capacity Act 2005?

In the UK, the MCA 2005 provides the first definite legislation to protect vulnerable individuals. Who are deem not to have capacity to make their own decisions.

Name of 3 main areas of Psychiatry and Civil Law?

  • Involuntary admission and treatment of patients with mental disorders
  • Concerning issues of consent and capacity
  • Individuals with mental disorders.

References for Psychiatry and Civil Law:

  1. Psychiatry, Fourth Edition – Oxford Medical Publications -SRG-by John Geddes, Jonathan Price, Rebecca McKnight / Ch 12.
  2.  A Short Textbook of Psychiatry 7th edition by Niraj Ahuja / Ch 20.

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