The Mental Healthcare Act, 2017 (“Act”) came into force to give effect to India’s obligation under the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”). This paper analyzes the provisions relating to advance directives in the Act. Advance directive is an essential tool to affirm personhood and autonomy for persons with psychosocial disabilities. Currently, the provisions on advance directives are contrary to the letter and spirit of the UNCRPD. The Act provides for suspension of advance directives during an emergency treatment when it should be honoured the most. It also provides for revocation of the directives by others which compromises the integrity of this instrument. The Act provides for community living, an essential shift from substituted capacity to supported capacity, to realize universal legal capacity under Article 12 of the UNCRPD. This paper argues that for an effective implementation of advance directives deinstitutionalization and a shift to community living is essential. We must look to the General Comment I (on universal legal capacity) and General Comment V (on living independently and being included in the community) of the UNCRPD to strengthen advance directives under the Act.
About the Author
Gowthaman Ranganathan holds an LL.M. in Human Rights & Comparative Constitutional Law from The University of Texas School of Law, where he was a 2019-2020 Fulbright-Nehru Master’s Fellow, 2019-2020 MD Anderson Research Fellow in the Institute of Transnational Law, and a Spring 2020 Rapoport Center Human Rights Scholar.
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