Civil issues in Psychiatry

CIVIL ISSUES IN DAY TO
DAY PSYCHIATRY PRACTICE
 Dr. G.Ramanujam M.D
Professor and Head
Department of Psychiatry
Tirunelveli Medical College

CIVIL ISSUES
 FINANCIAL – 1.Testamentary capacity
2. Owning a property and
managing affairs
3.Contract
 PERSONAL - 1.Marriage , Divorce
2. Child custody , Adoption
3.Informed consent
 PUBLIC 1. Contesting andVoting in
election
2.Driving

TESTAMENTARY CAPACITY
 Testament - proof or evidence
 After death of person his property devolves
in two ways
 1. INTESTATE – No will is made
 2.TESTAMENTARY- By way of will

ACTS OF WILL
 Indian Succession act 1925
 The Hindu succession act 2005
 The Muslims personal laws
 The Indian registration act 2008

STRANGE WILLS
 Heinrich Heine left his estate to his wife on
the condition that she remarry, so "there will
be at least one man to regret my death.“
 Samuel Bratt used his will to simply get even.
His wife never allowed him to smoke;so he
returned the favor.The embittered Bratt left
her £330,000, provided that she smoked five
cigars per day

PSYCHOTIC WILL?
 Predeceased by his wife and two daughters, John
Bowman, fromVermont, America, was
convinced that after his death, in 1891, the
family would be reincarnated.
 In anticipation, he left a trust fund for the
maintenance of his 21-room mansion, including
a demand that servants prepare dinner nightly in
case the Bowmans were hungry when they
returned.The money ran out in 1950.

STRANGEST OF ALL
 Luis Carlos de Nornha Cabral da Camara
 Portugese
 Divided his estate into 70 parts picking the
beneficiaries at random from the Lisbon
phone book.

WILL
 Legal Document
 Person must be competent
 Signature of the testator
 Attestation by two witness
 Any paper
 Registration not must
 Safe Custody of will
 Effective only after death of the testator
 Execution of the will

 Persons capable and competent to make aWill
 • According to Section 59 of Indian Succession Act
1925,
 Any person of sound mind can make aWill
 A person who has reached the age of majority can
make aWill. However, as per Section 60 of the Act, a
father whatever his age may be, may byWill may
appoint a guardian or guardians for his child during
minority.
 A married woman may make aWill of her property
which she could alienate by her own act during her
life-time.

 •The following persons cannot make aWill:
 Lunatic, insane persons
 Minor i.e. below 18 years of age.
 Corporate bodies by their very nature are incapable of making a
Will, though they may benefit under theWill of an individual
partner.

COMMON PESTS I confused in my
right mind (6,6)

COMPOS MENTIS
(COMMONPESTSI)

 Testamentary capacity refers to person’s full sense and mental
sanity to have confirmed and signed theWill after
understanding what his assets comprised and what he is doing
by making aWill.
 He understands in full mental capacity who he is naming the
assets to and how are they related to him and what
repercussions it may have later.
 Testamentary capacity is the legal status of being capable of
executing aWill.
DEFINITION

IMPORTANT ELEMENTS IN
TESTAMENTARY CAPACITY
• It is a voluntary act on the part of the testator
•Testator should have a sound disposing mind.
•Testator should know what he is doing by making aWill.
•Testator should have sufficient capacity to know the extent
of his/her property.
•Testator should be aware of potential beneficiaries.
•Testator should be aware of the consequences of his/her
decision.
•Testator should be free from undue influence/fraud/coercion.
•Testator must know the contents of theWill.

 (i) It is a voluntary act on the part of the testator
 •There is no compulsion or force on the testator to make theWill
 • It is his own decision to dispose off his property
 (ii)The testator should have a sound disposing mind
 •The testator should not be suffering from any mental disorder
which could possibly interfere in his decision making
 • He should not be in a state of intoxication due to alcohol, drugs
or disease
 •Testamentary capacity is task-specific, a person suffering from
mental illness can make a will provided his psychopathology is
not interfering in his decision making
 •Testamentary capacity is also situation-specific. Clinician
should explore the circumstances under which the testator is
making theWill.

 (iii)The testator should know what he is doing by
making aWill
 •The testator should be in full senses to appreciate the
nature of the act.
 (iv)The testator should have sufficient capacity to
know the extent of his property
 •The testator should know the nature and extent of his
assets which he is going to distribute
 • He should also know the approximate value of his
property

 (v)The testator should be aware of the potential beneficiary
 • The testator should have the knowledge about the legal heirs
of his property
 • He should also know the potential beneficiaries whom he is
likely to distribute his property and the relationship with them
 • He should be able to rationalize his decision.
 (vi)The testator should be aware of the consequences of his
decision
 •Testator should be aware of the possible consequences of the
distribution of his assets.

 (vii)The testator should be free from undue influence//fraud
 • Under Section 61 of IndianSuccession Act 1925, aWill or any part
of aWill, the making of which has been caused by fraud or by such
importunity as takes away the free agency of the testator is void.
 • However sound mind the testator may be having, if it has been
the subject of undue influence, the soundness of mind will not help
the will to be declared valid.

 (viii)The testator must have the knowledge of the
contents of theWill
 • It is the inevitable effect of the sound mind to know the
contents of hisWill.
 • If the testator does not know the contents of hisWill it
can not be said to be a validWill.
 • However such knowledge and approval of the testator
may be presumed on the proof of signature of the testator.

 There are several factors that can impact someone’s
capacity to create aWill that accurately reflects his or
her true wishes.
 These factors include:
 (i) Physical factors
 (ii) Psychiatric disorders
 (iii) Undue influence
FACTORS AFFECTING TESTAMENTARY
CAPACITY

 Physical factors
 Factors which lead to brain dysfunction either due to
certain diseases, trauma or medication may have impact
on the client’s ability to think clearly. Physical factors
include a wide range of medical disorders, including head
trauma, systemic diseases i.e. metabolic, endocrinal,
infectious and other disorders that affect brain functioning
and mental state. Certain drugs may have effect on
cognition and perception and hence may interfere in
decision making.

 Alcohol
 Alcohol abuse can have both acute and chronic effects on
cognition, judgment and behaviour. In the acute phase of
alcohol consumption even the small amounts of alcohol
may affect perception, judgment and impulsiveness.These
mental changes could affect testator’s decision regarding
the execution of aWill.The effects of chronic alcohol abuse
are similar

 Psychiatric disorders
 Dementia
 Dementias such as Alzheimer’s disease, Lewy body dementia,
and vascular cognitive impairment are characterized by diffuse
cognitive deficits. In cases of obvious and severe cognitive
impairment, there will be little need for subtle interpretations of
brain function, and the lawyers or the courts can assess the
impact of the impairment without the help of experts.
 However, in many disputed cases, the level of cognitive
impairment is relatively mild or subtle. Some individuals with
dementia maintain their social graces and appear perfectly
normal to a lay person.Therefore, probing and documentation of
the rationale disposition, particularly in suspicious circumstances,
are especially important to demonstrate that the individual is
capable.

 In dementia, executive impairment is particularly
important, as it can affect insight, perception and
judgment and impulse control
 Mild forms of memory impairment can be associated with
suspiciousness or even paranoid delusions as testators
attempt to compensate for their memory deficits.
 In retrospective assessments, evidence for progression of
dementia after the lastWill was executed can help to
support hypotheses about impaired thinking, perception,
or judgment at the time of the execution of theWill.

 Mood disorders
 Mood disorders, including depression and bipolar disorder, may
produce cognitive distortions (delusions), compromise
judgment, and cause irritability or impulsiveness.
 These acute and subacute changes may affect testamentary
capacity and vulnerability to undue influence.
 Usually these changes in mental state can be identified during
a specific episode, but in some cases they can become chronic.

 Delusions
 Paranoid delusions may be secondary to a number of clinical
syndromes, including schizophrenia, delusional disorders, and
other forms of neurological disease, such as dementia, delirium,
acquired brain injury, and other brain lesions.
 According to the Banks v. Goodfellow criteria, the testator must
be free of any delusions that directly affect the distribution of the
estate.
 Changes made in theWill on the basis of false belief make theWill
invalid. Even if such beliefs do not reach delusional intensity, they
can make the testator vulnerable to undue influence.
 Careful questioning and probing by the assessor will help to elicit
the impact of these beliefs on the distribution of assets.

The Banks v. Goodfellow
Criteria
• Understanding of the nature of the act (Will making) and its
effects
• Knowledge of the nature and extent of one’s assets.
• Knowledge of persons who have a reasonable claim to be
beneficiaries.
• Understanding of the impact of the distribution of the
assets of the estate.
• A confirmation that the testator is free of any delusions
that influence the disposition
of the assets.
• Ability to express wishes clearly and consistently in an
orderly plan of disposition.

Will of John Bank
JUSTICE COCKBURN

 Process for assessing testamentary capacity (Jacoby and Steer
2007)
• Get a letter from the solicitor detailing legal tests
• Set aside enough time for evaluation.
• Assess (in the standard way) whether the client has
dementia
-Thorough physical and neurological examination
- Psychiatric examination, presence of delusions,
hallucination, thought disorder, mood state, cognitive
functions and their effect on decision making
• Record the answers verbatim
• Check facts such as extent of assets, with the solicitor
• Ask about and review previous Wills
• Ask why potential beneficiaries are included or excluded.
• Check that client understands each of the Banks v.
Goodfellow points
• If in doubt about mental capacity seek second opinion

 One should keep four criteria in mind used for determining
whether a person has testamentary capacity:
 (i)The testator understands that he is giving instructions for the
disposal of his property after his death.
 (ii)The testator can recollect the extent and character of his
property and dispose it off with understanding and reason;
 (iii)The testator can recall and understand the claim of potential
heirs such as his family; and
 (iv)The testator is not suffering from any disorder of mind such
as delusions and hallucinations which influence his decisions.

 MMSE
 If the client has the possibility of suffering from dementia,MMSE
should be administered.The examination of the client should be
conducted in the absence of anyone who stands to benefit or
might exert influence.
 Limitations of MMSE include the fact that it does not test
specifically for frontal lobe or executive brain functions.
 The MMSE is heavily weighted towards orientation, short-term
memory, and language skills.
 The score alone is not necessarily a reflection of dementia or
clinically significant cognitive impairment (LandmarkTrust v.
Goodhue 2001).
 The scores below 26 suggest impairment. However, the MMSE
score may be significantly influenced by factors such as native
language, education and pre-morbid IQ.

 The Clock-drawingTest
 The Clock-drawingTest which has been widely used as a
cognitive screening instrument (Shulman
 2000)

 Documentation for assessment of testamentary capacity and
undue influence
 • Rationale for making changes
 • Appreciation of consequences and impact
 • Clarification of concerns about potential beneficiaries
 • Evidence of presence of specific neurological or mental disorders
 • Evidence of psychiatric symptoms‘ at the time of execution of
Will.
 • Emotional/psychological milieu
 •Testator’s understanding and appreciation of any conflicts
 • Evidence of pathological or dependent relationship with a formal
or informal caregiver.
 • Evidence of inconsistencies in expression.
 • Any indication of undue influence.

MANAGING PROPERTY
 If the alleged mentally ill person is incapable
of taking care of himself and also incapable of
managing his property, the court can appoint
a guardian (Mental Health Act 1987 sec 53).
 If a mentally ill person is capable of taking
care of himself but incapable of managing his
property alone, the court can appoint a
manager for him. (Sec 54).

CONTRACT
 A person must be major and of sound mind,
i.e. he is capable of forming a rational
judgement as to its effect upon his interests.
(Indian Contract Act 1872. Sec11)

WITNESS
 A lunatic is incompetent to give evidence in a
court of law if he is unable to understand the
questions asked or to give rational answers to
them by virtue of lunacy.
 Indian Evidence Act 1872

TRANSFER OF PROPERTY
 UnderTransfer of PropertyAct 1882
(Section 7 ) only persons competent to
contract are authorized to transfer property.

MARRIAGE ACTS
 The Special Marriage act 1954
 Hindu marriage act 1955
 Dissolution of Muslim Marirage Act 1939
 Indian Divorce Act 1869 amended 2001(For
christians)
 Parsi Marriage and Divorce Act

Matrimonial issues
 Annulment of marriage
 Restitution of Conjugal rights – Right to live
together.When one spouse deserts other
 Judicial Separation
 Divorce

Mental illness can be a
ground for
 1.NULL ANDVOID- is marriage is legal?
 2.DIVORCE- Can the relationship continue?

TYPES OF MARRIAGE
 VOID – illegal – No formality is required
 VOIDABLE – Marriage can be annuled after
filing a case
 VALID

MARRIAGE IS VALID IF
Special marriage act
 (i)neither party has a spouse living at the time of
the marriage
 (ii) at the time of the marriage, neither party,-
 (a) is incapable of giving a valid consent of
it in consequence of unsoundness of mind; or
 (b) though capable of giving a valid
consent has been suffering from mental disorder
of such a kind or to such an extent as to be unfit
for marriage and the procreation of children; or
 (c) has been subject to recurrent attacks of
insanity

 (iii) the bridegroom has completed the age of
twenty one years and the bride the age of
eighteen years at the time of the marriage;
 (iv) the parties are not within the degrees of
prohibited relationship unless the custom or
usage governing each of them permits of a
marriage between the two;
 (v) the parties are not sapindas of each other,
unless the custom or usage governing each of
them permits of a marriage between the two;

An ANNULMENT is a legal
procedure which cancels a marriage
between a man and a woman.
Annulling a marriage is as though it
is completely erased - legally, it
declares that the marriage never
technically existed and was never
valid.

A DIVORCE, or legal dissolution of
a marriage, is the ending of a valid
marriage between a man and a
woman returning both parties to
single status with the ability to
remarry.

Bigamy - either party was
already married to another
person at the time of the
marriage
REASONS FOR
ANNULMENT

Forced Consent - one of the
spouses was forced or threatened
into marriage and only entered
into it under duress
REASONS FOR
ANNULMENT

Fraud - one of the spouses agreed
to the marriage based on the lies
or misrepresentation of the other
REASONS FOR
ANNULMENT

Marriage Prohibited By Law -
marriage between parties that
based on their familial
relationship is considered
incestuous
REASONS FOR
ANNULMENT

Mental Illness - either spouse was
mentally ill or emotionally
disturbed at the time of the
marriage
REASONS FOR
ANNULMENT

Mental Incapacity - either spouse
was under the influence of alcohol
or drugs at the time of the
marriage and was unable to make
informed consent
REASONS FOR
ANNULMENT

Inability to Consummate
Marriage - either spouse was
physically incapable of having
sexual relations or impotent
during the marriage
REASONS FOR
ANNULMENT

VOID MARRIAGES
 UNDER AGE
 BIGAMY
 UNABLETO GIVE CONSENT, SEVERE
MENTAL ILLNESS , RECURRENTATTACKS
OF INSANITY
 IMPOTENCE

VOIDABLE MARRIAGE- By decree
 UNCONSUMMATED MARRIAGE
 PREGNANT BY OTHER PERSONATTHE
TIME OF MARRIAGE
 FRAUD AND COERCION

Adultery
 Adultery is any kind of sexual relationship outside
marriage.
 Adultery is a criminal offence.
 Substantial proofs are required to establish adultery.
 One single act of adultery is enough to file for divorce.

Cruelty
 Cruelty is any kind of mental and physical injury that
causes danger to life, limb and health.
 One single act is not enough to establish mental torture.
There has to be a series of incidents.
 Cruelty includes:
 Denial of food
 Continuous ill treatment
 Abuses to acquire dowry
 Perverse sexual act

Desertion
 Desertion is the voluntarily abandonment of
spouse
 Divorce can be filed only after a period of two
years of abandonment

Venereal Disease
Disease has to be:
 Serious
 Easily communicable
Includes sexually transmitted diseases like AIDS

Not Heard Alive
Spouse is presumed to be dead if he/she:
 Is not seen or heard alive
 For a continuous period of seven years

Other Grounds For Divorce
 Conversion - Conversion to another religion
 Mental Disorder - Incurable mental disorder and
insanity
 Leprosy – A ‘virulent and incurable’ form of leprosy
 Husband accused of rape, sodomy, bestiality
 Husband sentenced for seven years of imprisonment

 Section 13 1 (iii) Hindu marriage act
 —Incurably of unsound mind, or has been
suffering continuously or intermittently from
mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably
be expected to live with the respondent.

Explanation
 The expression “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 expression “psychopathic disorder”
means a persistent disorder or disability of
mind (whether or not including sub-normality
of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct
on the part of the respondent, and whether or
not it requires or is susceptible to medical
treatment

Rita Roy v. Sitesh Chandra
 Calcutta High Court in where it has been held
that the petitioner has to prove two elements
 firstly, the party concerned must be of
unsound mind or intermittently suffering
from schizophrenia or mentaldisorder
 secondly, that the disease must be of such
kind and of such an extent that the other
party cannot reasonably be expected to live
with that party.

Ram Narain Gupta vs Smt.
Rameshwari Gupta 1988
 JusticeVentakachalliah, J Supreme Court who
delivered the judgment has finally concluded
by observing that for purposes of Section
13(1)(iii) SCHIZOPHRENIA ISWHAT
SCHIZOPHRENIA DOES.

Other Grounds For Divorce
 Renunciation - If spouse renounces worldly pleasures to
follow a religious order
 No Resumption of Cohabitation – If couple fails to
resume cohabitation after the court has passed a decree
of separation.

MENTAL ILLNESS AND ANNULMENT
IN VARIOUS LWAS
 Indian Divorce Act 1869
 Section 19 (3)
A Christian Marriage is voidable if either party was lunatic
 Parsi Marriage and divorce act 1936
Unsoundness of mind not a ground for annulment
Divorce granted if that the defendant has been incurable
of the unsound mind for a period of two years or upwards
immediately preceding the filing of the suit or has been
suffering continuously or intermittently from mental
disorder of such kind and to such an extent that the plaintiff
cannot reasonably be expected to live with the defendant.

DIVORCE IN MUSLIM LAW
 There are two categories of divorce under the
Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
The second category is the right of the wife to
give divorce under the Dissolution of Muslim
Marriages Act 1939.

EXTRA JUDICIAL
 The category of extra judicial divorce can be
further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.

DIVORCE BY MEN
 TALAQ
 Various types
 Unsound mind
 Under influence
 ILA –Temporary abstinence for four months
 ZIHAR- husband compares wife with women of
prohibited relation
After ILA and ZIHAR wife can apply for divorce
after four months

Dissolution of Muslim
marriage act 1939
 The divorce by wife can be categorized under
three categories:
(i)Talaaq-i-tafweez- husband delegates
power toTalaq – often pre maritaly
(ii) Lian – False charges of adultery
(iii) By Dissolution of Muslim Marriages Act
1939.

 Impotent before marriage
 If the husband has been insane for a period of
two years or is suffering from leprosy or a
virulent veneral disease
 But this act does not specify that the
unsoundness of mind must be curable or
incurable.

PAST H/O MENTAL ILLNESS
DISCLOSE OR NOT?
 After complete cure
 Obligation to reveal past history?
 Controversial
 Stigma associated with mental illness
 Fraudulent and nullification of marrage

ADOPTION
 Hindu adoption and maintenance act 1956
 A person of unsound mind cannot adopt a
child

MEDICAL TERMINATION OF
PREGNANCY MTP act 1971
 Women whose physical and/or mental health
were endangered by the pregnancy
 Women facing the birth of a potentially
handicapped or malformed child]
 Rape
 Pregnancies in unmarried girls under the age of
eighteen with the consent of a guardian
 Pregnancies in "lunatics" with the consent of a
guardian
 Pregnancies that are a result of failure in
sterilization

ORGAN TRANSPLANT
 Similar to managing property
 Ability to understand the act and
consequences
 Guardians can give consent in case of
mentally ill being the recipient
 For being donor it is wise to avoid mentally ill.
 In extreme stages to get court orders
 Routine examinations of donors.

INFORMED CONSENT
 A mental disorder should not prevent a
patient from
 Understanding what s/he consents to;
 Choosing decisively for/against the
intervention;
 Communicating his/her consent
 Accepting the need for a medical intervention.

RIGHT TO VOTE AND RIGHT TO
CONTEST IN ELECTION
 Under article 326 of constitution of India
person with unsound mind cannot vote
 Under article 102 of constitution of India
person is disqualified from being chosen as
being member of either house of parliament

GENERAL PRINCIPLES
 We are not legal experts. Only medical experts.
 We are giving only our clinical opinion
 Don’t worry about other doctors’ opinion
 When two judges can differ in their
interpretation of laws why can’t two doctors?
 Don’t give any certificates unless ordered by
court.
 Right to information- patient’s details are
privileged information- Only through court 0rder

Civil issues in Psychiatry

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