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Jan-Mar2003-11(1)
CONFERENCE REPORT
Medico-legal concerns in
dementia
C J Vas
The 8th Annual Conference of the Alzheimer's
Disease and Related Disorders Society of India (ARDSI) was held in Goa from
October 4 to 6, 2002. The theme was timely: "Improving the Quality of Care" for
the demented in this country, a number estimated by some at 26.6 lakh people
over the age of 65 years. The meeting was attended by about 180 persons from
India and abroad. At the inaugural session, Dr K Jacob Roy, President of ARDSI,
detailed what his Society had done and what remained to be achieved. Dr C J Vas,
Vice-President of the Goa Chapter, talked of the Alzheimer's home - India's
first - to be established by the Goa group and the need to raise Rs 1.5 crore
for the restoration and renovation of a 400-year-old house donated by a well
wisher, the Gonsalves family of Britonna, Goa, and Bombay.
Among the many sessions of interest to physicians,
carers, social workers and others was a medico-legal session attended by experts
in medicine and the law including many judges, lawyers, social workers and
activists in the field. This was in continuation of the medico-legal sessions
held in Mumbai during 1997 and 1998 organised by the Holy Family Hospital, the
FIAMC Bio-Medical Ethics Centre [FBMEC] and the ARDSI which concentrated on the
problems of the aged and demented. On this occasion, the session was sponsored
by the Dementia Society of Goa, the FBMEC and the ARDSI and concentrated on the
problems faced by family members of the demented and the carers.
During the earlier medico-legal conferences, the
term 'dementia' was medically and legally defined, the diagnosis and grading of
dementia considered, the legal expression 'competence' carefully thought about
and the medical aspects of the decision making capacity studied. Other topics
such as proxy-decision making, advance directives and informed consent were
examined. It was realised that in the presence of dementia a person may be
rendered incompetent and, therefore, incapable of making decisions and taking
executive actions. This placed tremendous responsibilities on relatives and
carers of the demented as well as restricted trusted friends and relatives from
exercising a power of attorney if such had been executed by affected individuals
while they were competent.
This raised the question as to what society could
do to help the relatives of the demented in cases of nuclear families where both
parents had invested their life's earnings jointly in their names and that of
their son or daughter. It would appear that these savings had to be frozen for a
few years until the end of life of the demented. Such happenings were not rare.
The medico-legal session was, therefore, organised to enable consideration of
legal and medical remedies available to India's ageing population which is
increasing, as is dementia among them.
The session began with a statement of the problem
by Ms Serena Jacob who had nursed her mother through a long and tedious
Alzheimer's illness during which her family's joint funds were frozen. This was
followed by a report by Dr C J Vas dealing with the prevailing medical situation
concerning the definition and problems raised by dementia. Adv J F Reis then
outlined the legal status and enumerated the precedents in law relevant to
dementia. He was followed by Mr Justice P B Sawant who discussed the possible
solutions in law. Mr Justice S N Variava then concluded with a discourse on the
legal status and what needed to be done. A general discussion then ensued under
the able guidance of Dr Wilfred de Souza and Sen Adv M S Usgaonkar. It appeared
that legal opinion was divided and needed to be studied in greater detail.
While there was no great difficulty in respect to
competence and the medical aspects of 'decision making capacity', topics such as
proxy-decision making, advance directives and informed consent were
controversial even though it was generally agreed that individuals had the right
to make up their own minds. It was accepted that in the presence of dementia a
person may be rendered incompetent and, therefore, incapable of making decisions
and taking executive actions.
Mr Justice Sawant advocated the view that a new
comprehensive law was needed to deal with all the issues consequent on advancing
age and Mr Justice Variava concurred. The learned judges agreed, however, that
this would take some considerable time and it was for this reason that Adv J
Reis suggested that judicial activism might help in prodding legislators to do
their utmost for the aged. Justice Variava responded that judges could not
create new laws but could only give liberal interpretations to existing laws.
Some argued that this was precisely what was required as many international
precedents existed and even in India the basic issues had been accepted some
time ago.
Reference was made by many to the Mental Health Act
1987 which defines a mentally ill person as one who is in need of treatment by
reason of any mental disorder other than mental retardation. It was asked if a
person with dementia or Alzheimer's disease could be considered as being
mentally ill. To this, Dr Vas retorted that dementia could not be considered by
any stretch of the imagination to be either a gynaecological or a dermatolgical
illness but, indeed, a disorder of the mind. Nevertheless, all agreed that the
Mental Health Act was in need of amendment.
In respect to the specific problem which was the
subject of the seminar, Sen Adv Mr Usgaonkar reminded the participants that the
pre-liberation law, i.e. the Portuguese Civil Procedure Code, was the procedural
law in Goa meant for the administration of the substantive law. He also outlined
the procedure that was permissible under Article 944 in regard to interdiction
on account of dementia: a) the opinion of the council of the family; b)
examination of the defendant by medical experts; and c) interrogatory of the
defendant by the Court.
The assembled group then agreed to a suggestion
from the floor that a core group be established for a detailed study of the
subject and the drafting of a new law which would take into consideration all
the advantages and disadvantages of the law as seen in India, in Goa and abroad.
The functioning of this Group was left in the hands of Mr Usgaonkar and Dr Vas
with Justice Sawant prepared to help. This development hopefully augurs well for
the future.
C J Vas, Goa Medical College, Goa. Email:cjvas@vsnl.com