Jaydip Sarkar erroneous decision, as it will amount to assault and battery. The only way that this person can be treated, when he has not consented to what is potentially going to be done to his body is, if he is either unconscious or if it is demonstrated that he lacks the mental capacity to make that decision. Mental capacity to make a decision on whether to accept (or refuse) treatment is based upon professionals providing information to a patient about appropriate treatment, the benefits and the risks (side effects, complications) associated with such treatment, and any available alternatives to the treatment. A person is said to be mentally capacitous if he is able to understand and retain the health related information provided, believe it and be able to balance the pros and cons of accepting (or refusing) the treatment before arriving at a decision (Re M.B 1997). Such capacity forms the basis for a valid consent regarding any form of treatment, be it for physical or mental disorders. A person with a demonstrably intact mental capacity can even agree to or refuse treatment for physical disorders when mentally disordered, suggesting that capacity is a flexible and can vary in terms of what is at issue (Re C 1994). When a person accepts treatment voluntarily then there ought not to be any need to legally coerce him because he is accepting the advice given. The need to legally sanction the treatment and detain a voluntary patient, a requirement of the Indian MHA ’87, is therefore contrary to ethical notions of what is just, fair and reasonable and can be challenged in a court of law. A capacity based test to determine involuntary admission will insist that patients are only admitted and treated under compulsion when they do not possess adequate mental capacity. People with dementia, mental retardation and those with severe and florid psychosis are likely to lose their capacity and not be autonomous in their choices as they are unlikely to meet the necessary criteria. However, it is perfectly possible for someone with severe depression who is also suicidal to fulfill all the criteria, be found to be capacitous but refuse the treatment offered and thereby pose a grave risk of self harm and completed suicide. The capacity based model, therefore, will allow a depressed suicidal patient to avoid necessary treatment and be ethically justified in harming themselves. As is obvious this test allows very little discretion to a clinician. 1b) Principle of best interest When a person is capacitous, no consideration is given to the consequences (to self or others) of their refusal of treatment. It is only when the patient lacks capacity does the law turn towards the principle of ‘best interest’. This 106 determines that although the patient is unable to (e.g due to unconsciousness) or refusing (e.g. mentally ill) to consent, treatment can still be given against his wishes as it is: a) necessary to save life, prevent a deterioration or ensure an improvement in the patient’s physical or mental health; and b) in accordance with a practice accepted at the time by a reasonable body (often taken to be more than 50%) of medical opinion skilled in the particular form of treatment in question (Re F 1990). Treatment in these cases is in the best interest of the patient as determined by professionals, and is also referred to as treatment under common law, i.e. law that is not grounded in statute but one that has emanated on the basis of previous practice. Usually such practice is based upon the first principles of medical ethics, one of beneficence to the patient (Beauchamp and Childress 1989), which emphasises that it is obligatory for a doctor to provide treatment, if it can be provided and will be beneficial to the patient who receives it. ‘Best interest’ treatment is consonant with a doctor’s duty of care towards his patient. Most treatments provided in India, either physical or psychiatric, is based upon this principle where the doctor decides what is in the best interest of the patient, who on his part often remains a passive recipient. Treatment given to psychiatric patients under ‘best interest’ principle can only be legally defensible if he is floridly ill and is a threat to his own self and that of others (e.g. an extremely violent and psychotic patient brought to the casualty department). However that treatment must be the minimum necessary response to avert any particular danger that non-treatment may lead to, and administration of such treatment cannot be an alternative to giving treatment under the MHA. In Indian MHA ’87, the Order for Admission under Special Circumstances (section 21, Part II), is an example of the use of the best interest principle. It is noteworthy that the Act makes no distinction between patients “who does not, or is unable to consent to admission” (Mental Health Act 1987, pg 15). Choosing not to consent when capable of doing so and not consenting because one is incapable are obviously two different issues and the law must take cognizance of it. 2) Balance test This approach recommends drawing a balance of the ethical considerations of autonomy/capacity on the one hand and