consequences of one’s actions on the other (Eastman and Hope 1988). In this approach, a capacitous refusal would be respected where the consequences of doing so were not adversely very grave, but not where the consequences were grave, thereby negating any primacy of the patient’s best interests. There would then be a trade-off between autonomy and consequences and the extent of the trade- off would depend on whether the adverse consequences were for the patient or for others, with more weight being given if the risk of adverse consequences were for others rather than the patient. For example, a man with schizophrenia would be detained involuntarily if there were risks of harming others violently but another patient with a similar severity of illness but without the specific risk of harm to others will not be so detained. There would no doubt be a grading of risks on a spectrum rather than a dichotomous determination – risk present or absent, such that the risk of completed suicide would override the risk of slapping someone in the face. A variant of the balance model, described as a ‘discontinuous balance model’ (Eastman and Dhar 2000), was recommended to the UK government for consideration in its proposed amendment of the existing MHA of that country. It was argued that capacitous refusal should be respected unless there was “… a substantial risk of serious harm to the health or safety of the patient or to the safety of other persons if s/he remains untreated and there are positive clinical measures… which are likely to prevent deterioration or to secure improvement in the patient’s mental condition” (Department of Health1999). The key words are substantial and serious and their definition must be determined if this test is the basis of any new MHA. In general, substantial means ‘very large in amount or degree’, and in this case should represent a moderate to severe risk. Definition of what constitutes serious harm is one for debate, but it can be taken to represent any harm to members of the public who will be unlikely to recover from it, either in physical or psychological terms. In terms of harm to self, seriousness will be determined by the risk of suicide and/or self harm, e.g. the possibility of genital mutilation by a psychotic patient must be more serious than that of occasional head banging. As would be evident, it is difficult to define these terms and it is best left to individual clinical judgment with any definition acting merely to serve as guidance. 3) Status test The status test allows detention of persons against their will even if they have a proven capacity to make a decision, 107 A New Mental Act for India and when involuntary detention may not be in their best interests. In the English and Welsh MHA 1983, for instance, the status is: i) suffering from one of four recognized categories of mental disorder (see under What is mental disorder?) ii) that the disorder is of a nature or degree that makes it appropriate for the patient to receive such treatment in hospital, and iii) that it is necessary in the interests of his/her health or safety or for protection of others that s/he should receive such treatment, which cannot be provided unless s/he is detained. It is possible that a patient may be suffering from a recognized mental disorder but need not be treated in hospital because he can be treated in the community. As is readily apparent, the status test grants substantial discretion to those determining detention. The application for a Reception Order (Section 22) of Indian MHA ’87 (Mental Health Act 1987, pg 17) uses a status test. Clause 2a of this section specifies that patients must be suffering from a disorder of a nature and degree to make him liable to a reception order for involuntary treatment, while clause 2b establishes the necessity test where detention is ordered in the interests of patient’s health and safety or protection of others. What is mental disorder? Every psychiatrist knows what mental disorder is. However, a stringent definition of this term is necessary for legal purposes, the thrust and outcome of which can be very different to clinical purposes. Any legal definition of ‘mental disorder’ must reflect a realistic understanding of what is being defined and for what purposes. An MHA is created for the purpose of treating people against their will as they have lost the capacity to make rational choices as regards the need for and acceptability of treatment. The definition must be such so as to exclude those types of mental disorder where treatment is impossible or ineffective, beyond which any continued hospital detention will only amount to incarceration. At the very least, the definition acts as a sort of entry into an MHA. Only persons whose disorders meet the legal definition can be considered for treatment under the act. The MHA ’87 defines a “mentally ill person” as “a person who is in need of treatment for any mental disorder other