'Wills & Preferences' Of Mentally Ill Person Not Defined For Nomination Of Representative, Courts Step In As Parens Patriae: Allahabad High Court

The Allahabad High Court has observed that there is a statuary vacuum in the Mental Health Act, in so far as it does not lay down the standards and mechanism to determine the “wills and preferences” of a mentally ill person while appointing their representative and the Courts step in as parens patriae to nominate the representative considering the best interests of the mentally ill person.

While dealing with nephew's plea to be nominated as his mentally disabled aunt's representative, the bench of Justice Rajan Roy and Justice Om Prakash Shukla held

“the MH Act had laid down certain standards and factors to be considered while determining the "best interest" of the mentally ill person. However, no guidance exists as to what would constitute the "wills and preferences" of the person. Even in the proviso to Section 14 (1), the factors to be considered for providing total support are conspicuously absent.”

Further, the Court held that

“The MH Act has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the movable/immovable property of the mentally ill person is to be taken care of. Thus, there is a clear statutory vacuum.”

Case Background

Opposite party no.4's father was working as a Noter and Drafter in Madhyanchal Vidyut Vitran Nigam Limited at Ayodhya. After retirement, he was receiving pension. The mother of Opposite party no.4 had already passed away. After the death of her father, Opposite party no.4 applied for family pension as she is suffering from Moderate Intellectual Disability IQ-44 (VSMS). She was granted Rs. 14,400/- towards family pension till her marriage or death.

Petitioner, being nephew of Opposite party no.4, applied to the Mansik Swasthya Punarvilokan Board, Barabanki under Section 14 of the Mental Healthcare Act, 2017 to take care of her as no other relative would come forward. This application was rejected on grounds of pendency of 2 criminal cases against him.

Petitioner challenged the rejection order before the High Court on grounds that since the cases were at the admission stage, he was not guilty until proven. He pleaded that Article 21 was violated by rejecting his application.

High Court Verdict

The Court had passed an order issuing notice and prima facie observing that the Opposite party no.4 was residing with the petitioner and other heir of her father had given no objection certificate regarding petitioner being her caregiver. The Board in its affidavit stated that though the offences which the petitioner was accused of were not heinous, they involved moral turpitude.

Rejecting the stand taken by the Board in the affidavit, the Court held that the reasons given earlier cannot be supplemented later by filing affidavit in Court. It held that the alleged offences do not involve moral turpitude.

“Section 4 of the MH Act, 2017, every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental healthcare or treatment. Thus, a deemed capability is envisaged by the MH Act, 2017 itself and as such Section 5(1)( c) of the MH Act, 2017 says that every person, who is not a minor, shall have a right to make an advance directive in writing to the effect that any individual or individuals, in order of precedence, he or she wants to appoint his nominated representative as provided under section 14 of the MH Act, 2017.”

The Court observed that since the Opposite party no.4 was 75% disabled without an advanced directive, her case would be governed by Section 14(4)(d) of the Act which provides that in absence of a nominated representative, the Board may appoint a suitable person. It observed that Section 14(4)(b) of the Act puts a relative of the disabled at a higher pedestal than others and only if a relative is unwilling to the representative can the Board appoint someone else.

The Court observed that since no mechanism was available for nomination of such persons, the Apex Court acting as parens patriae had appointed representatives and guardians under the Act.

Since the Opposite party no.4 was unable to give her “will and preference” due to her physical and mental disability, the Court stepped in as parens patriae to nominate petitioner as her representative.

Accordingly, the writ petition was allowed.

Case Title: Saurabh Mishra v. State Of U.P. Thru. Prin. Secy. Deptt. Of Medical Health And Family Welfare U.P. Lko. And 3 Others 2025 LiveLaw (AB) 211 [WRIT - C No. - 10898 of 2024]

Case citation: 2025 LiveLaw (AB) 211

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