BEFORE
THE HON’BLE HIGH COURT OF ANANDA PRADESH
BEFORE
THE HON’BLE HIGH COURT OF ANANDA PRADESH
AS. No: ______ / 2023
(UNDER SECTION 83 OF THE MENTAL HEALTHCARE ACT, 2017)
AS. No: ______ / 2023
(UNDER SECTION 83 OF THE MENTAL HEALTHCARE ACT, 2017)
Asta ………………………………………………….. Appellant
Vs.
Asta ………………………………………………….. Appellant
Onelife , Vs.
Psychiatric hospital …………………………………………. Respondent 1
Livo,Onelife ,
Medical Psychiatric
Healthcare Center
hospital……………….……………………. Respondent
…………………………………………. 2
Respondent 1
Livo,
Medical Healthcare Center ……………….……………………. Respondent 2
(Humbly submitted by the Counsels appearing on the behalf of the Appellant)
(Humbly submitted by the Counsels appearing on the behalf of the Appellant)
1|Page
TABLE OF CONTENTS
List of Abbreviations…………………………………………………………………….. 03
Index of Authorities ………………………………………………………………………. 04
Statement of Jurisdiction …………………………………………………………………. 05
Statement of Facts ………………………………………………………………………... 06
Issues Raised ……………………………………………………………………………… 07
Summary of Arguments ……………………………………………………………………08
Arguments Advanced ………………………………………………………………………10
ISSUE I: ....................................................................................................................10
Whether the Electroconvulsive Therapy performed in Livo is valid?
ISSUE II: …………………………………………………………………………...14
Whether the acts of Dr. Jamie Fraser would amount to Medical negligence?
ISSUE III: ..…………………………………………………………………………17
Whether the establishment “Livo” is jointly liable with “One life” for emergency treatment of
Asta?
Prayer …………………………………………………………………………………….. 18
2|Page
LIST OF ABBREVIATIONS
MHCA – The Medical Healthcare Act, 2017
MHCB – The Medical Healthcare Board
NICE- National Institute for Health and Care Excellence
UNCRPD- United Nations Convention on the Rights of persons with Disabilities,2006
ECT – Electroconvulsive Therapy
PMI- Person with Mental Illness
MHE- Mental Health Establishment
3|Page
INDEX OF AUTHORITIES
STATUES:
1. The Medical Healthcare Act, 2017
2. The Constitution of India, 1950
3. The Consumer Protection Act, 1986
GUIDELINES:
1. Guidelines on the Use of Electroconvulsive Therapy issued by NICE
2. Clinical Negligence – The Bolam Test
3. The Theory of Paternalism
4. Charter of Patients’ Rights for adoption by NHRC
CASE LAWS:
1. Consumer education and research centre vs. UOI
2. Dr. Vinod G Kulkarni vs. State of Karnataka (PIL)
3. Bolam vs. Friern Hospital Management Committee
4. N.D. Jayal v. Union of India, 2003 Supp(3) SCR 152
4|Page
STATEMENT OF JURISDICTION
Asta vs. Onelife and Livo
A.S. No.: ______ / 2023
The Counsel humbly submits that, this Appeal petition was filed before the Hon’ble
High Court of Ananda Pradesh under Section 831 of The Mental Healthcare Act, 2017, which
signifies the Appellate Jurisdiction of this Hon’ble Court.
This case of Appeal is well within the Jurisdiction of this High Court and the matter of issue
involves Substantial Question of law.
.
1
Section 83 of The Mental Healthcare Act, 2017,
“Any person or establishment aggrieved by the decision of the Authority or a Board may, within a period of
thirty days from such decision, prefer an appeal to the High Court of the State in which the Board is situated…”
5|Page
STATEMENT OF FACTS
Inshia is a Quasi – federal country in Acia. The Laws of Inshia are pari – materia to the
Laws of India. The Covid- 19 signifies that, Health plays major role in the Development of
Country and Mental Health is an Integral part of Health and the foundation for well – being and
effective functioning of Individuals.
Asta an Inshian, despite blessed with a happy Family, suffers emptiness and depression from
childhood by convincing himself that no one loves him, during his college days, he met with an
accident and lost his Parents and was Traumatized by the Event. Asta’s loneliness was vanished
when he met Lilah. They fell in love and got married in 2019. She filled his Emptiness. A year
later Lilah died of pancreatic cancer on 18/08/2020 and Subsequently Asta fell into an Abyss of
Loneliness. He Lived alone and began to hate himself for his wife’s demise.
Asta’s sister requested her friend Dr. Emma, to aid her Brother’s mental health and Agony. On
12.03.2021, Asta went to Onelife Psychiatric Hospital and filled an Intake form and an Advance
directive. Emma assigned Dr. Jamie Fraser to aid Asta.
Dr. Jamie Fraser observed that Asta had a severe depression, which relapsed the therapy session.
Owing to inadequate response to other Kinds of Treatments, after discussion with the Director,
they decided to adopt Electroconvulsive Treatment (ECT), and obtained consent from the
concerned parties. Asta’s condition was worsening and on 18/08/2021 Dr. Jamie Fraser received
a text from Asta, he suspected that Asta may be planning to commit suicide. Dr. Jamie Fraser
rushed to his apartment and prevented his suicide and admitted him to a nearby Health care
center ‘LIVO’ and ECT was performed on 21/08/2021 , considering the High Suicidal Risk.
After therapy he had severe symptoms of Fatigue, Nausea, Headache and Temporary Amnesia
and suffers Dissociative Amnesia. He filed a complaint in MHCB challenging section 94(3) of
MHCA but he was ruled against. Aggrieved by the decision he filed an Appeal before the
Hon’ble High court.
6|Page
ISSUES RAISED
ISSUE I:
Whether the Electroconvulsive Therapy performed in Livo is valid?
A. Whether ECT Treatment can be performed during emergency in India?
B. Whether ECT can be performed without formal consent from concerned parties?
ISSUE II:
Whether the acts of Dr. Jamie Fraser would amount to Medical negligence?
ISSUE III:
Whether the establishment “Livo” is jointly liable with “One life” for emergency treatment of
Asta?
7|Page
SUMMARY OF ARGUMENTS
ISSUE I: Whether Electroconvulsive Therapy performed in Livo is Valid?
The Counsel humbly States that, the very preamble of the Mental Healthcare Act, 2017 is
to provide healthcare to the person with mental illness with protected individual rights 2, and the
fundamental rights guaranteed to every individuals under Article 213 of the Constitution, in its
widen horizon includes Right to health and Right to be informed in related matters. In relation
with performed ECT to Asta, the individual rights being seriously violated in instances of
depriving informed consent before ECT performance, which is in relation with medical ethics,
and performance of ECT in Livo healthcare centre in emergency situation in violation of Section
94(3)4 of The Mental Healthcare Act, 2017. Hence, the counsel States that ECT performed is
Livo is not valid as it involves Breach of Medical Ethics and Violation of Individual Rights.
A. Whether ECT Treatment can be performed during emergency in India?
The Counsel humbly States that, the MHCA has specifically restricts the ECT as the form of
treatment during emergency, with due consideration and in account of ensuring protected and
quality healthcare to every mentally ill person without discrimination and prejudicial notion.
B. Whether ECT can be performed without formal consent from concerned parties?
The Counsel humbly States that, Obtaining Consent is an essential and well needed element
before Performing ECT as it binds with the concept of medical ethics. It should not be Violated
or contravening in the circumstances of Emergency. The Counsel with due respect Submits that,
2
Preamble of The Mental Healthcare Act, 2017,
“An Act to provide for mental healthcare and services for persons with mental illness and to protect,
promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters
connected therewith or incidental thereto.”
3
Protection of Life and Personal Liberty
4
Section 94(3) of The Mental Healthcare Act, 2017,
“Nothing in this section shall allow any medical officer or psychiatrist to use electro-convulsive therapy as
a form of treatment.”
8|Page
if the Person is not in the state of giving consent, the consent shall be obtained from the
Nominated representative of the person with mental illness.
ISSUE II: WHETHER THE ACTS OF DR. JAMIE FRASER WOULD AMOUNT TO
MEDICAL NEGLIGENCE?
The Counsel with due respect submit that, the medical negligence in part of Dr. Jamie
Fraser can be witnessed in several instances like, admitting person with mental illness (PMI) in
healthcare instead of mental health establishment (MHE), performing ECT during emergency in
healthcare centre, and mainly without following concern form procedures which is in relation
with medical ethics. Because of the resulted negligence Asta suffers from Dissociative Amnesia.
ISSUE III: WHETHER THE ESTABLISHMENTS “LIVO” IS JOINTLY LIABLE WITH
“ONELIFE” FOR EMERGENCY TREATMENT OF ASTA?
The Counsel humbly submits that, the Onelife Psychiatric Hospital is liable for the act of
negligence of Dr. Jamie Fraser for ECT to Asta in capacity as an association of individual to
Onelife, and Livo Healthcare is equally liable for neglecting the needed medical procedures in
need for followance during ECT.
9|Page
ARGUMENTS ADVANCED
ISSUE I: WHETHER ELECTROCONVULSIVE THERAPY PERFORMED IN LIVO IS
VALID?
The counsel humbly submits that, the admission of Asta in Livo Healthcare centre for
emergency is in compliance with need of situation, and perfectly legal5,6, but performance of
ECT to PMI in healthcare during emergency on 21.08.20217 is in violation of Section 94(3) of
The Mental Healthcare Act, 20178. The objective behind the restriction is in consideration of
ensuring protected individual rights, by performing ECT during emergency in Livo without
informed consent from concerned parties, the Livo violates,
1. The mentioned condition of informed consent during emergency in Section 94(1) of
MHCA, 2017, as it also violated right to be informed9 to Asta side.
2. The restriction upon performing ECT during emergency treatment as mentioned in
Section 94(3) of MHCA, 2017.
These mentioned action of Livo questions the authenticity for performed ECT, in turn doubts the
validity of the performance.
5
Para 5, Page 2 of the Fact Sheet
6
Section 94(1) of The Mental Healthcare Act, 2017,
“Notwithstanding anything contained in this Act, any medical treatment, including treatment for mental illness, may
be provided by any registered medical practitioner to a person with mental illness either at a health establishment or
in the community, subject to the informed consent of the nominated representative,…”
7
Para 5, Page 2 of the Fact Sheet
8
Section 94(3) of The Mental Healthcare Act, 2017,
“Nothing in this section shall allow any medical officer or psychiatrist to use electro-convulsive therapy as
a form of treatment.”
9
Section 22 of The Mental Healthcare Act, 2017
10 | P a g e
A. Whether ECT can be performed during emergency in India?
The Counsel humbly submits that, Asta was admitted to nearby Livo Healthcare centre for
the emergency treatment on 18.08.2021, because of the relapsed depression of Asta, as the date
relates with the demise of his love wife Lilah10. In consideration of High suicidal risk, Dr. Jamie
Fraser and his team performed ECT to Asta in Livo Healthcare without considering the legal
restriction laid by Section 94(3) of The Mental Healthcare Act, 2017, and primary condition laid
down in Section 94(1) of the Mental Healthcare Act, 2017.
Section 94 of MHCA is a provision in relation to emergency treatment in which Sub Section (1)
have mentioning that,
“any medical treatment, including treatment for mental illness, may be provided by any
registered medical practitioner to a person with mental illness either at a health establishment
or in the community, subject to the informed consent of the nominated representative,…”
this provision is in concern with emergency treatment alone, and permission upon admission of
PMI in health establishment or in the community is only in relation with emergency treatment,
that’s the reason behind mentioning restriction upon ECT during emergency treatment in Section
94(3) of MHCA, 2017.
The objective behind MHCA, 2017 is to provide healthcare and services to the person with
mental illness and to protect, promote and fulfill the rights of such person in course of treatment,
Chapter XII of MHCA, 2017 specifically deals with Admission, Treatment and Discharge, in this
Chapter, Sections 8511 and 8612 intends to eliminate prejudice against PMI and mentioned those
persons as capable of being admitted in MHE for mental treatment by themselves, and
recognized them as independent patient, entitled for quality of healthcare treatment without
discrimination between person with physical illness and person with mental illness13. Asta in his
personal capacity approached Onelife psychiatric hospital for mental treatment on 12.03.202114,
Asta is an independent patient of Onelife Hospital and entitled for healthcare in onelife, and as
10
Para 3, Page 1 of Fact Sheet
11
Admission of person with mental illness as independent patient in mental health establishment
12
Independent Admission and Treatment
13
Section 21 of The Mental Healthcare Act, 2017
14
Para 4, Page 2 of Fact Sheet
11 | P a g e
per Chapter XII, the admission of PMI for treatment is specifically mentioned as in Mental
Health Establishment15 along, and not like the wording of generalized terms in Section 94 of
MHCA, 2017. And Asta being Inshia citizen entitled for constitutionally guaranteed fundamental
right upon Right to Life16, which in widen horizon includes right to health17 and healthcare as
well.
The Counsel humbly submits that, the established restriction on ECT during emergency
treatment is in binding with moral and legal rights valuation of individuals, and the performance
of ECT during emergency treatment in healthcare centre is not legally permitted treatment
method in India.
B. Whether ECT can be performed without formal consent from concerned parties?
ECT is a biological therapy with objective to produce seizure by application of electronic
stimuli, considering the risk factor attached with this treatment, specific prohibited procedures18
were mentioned in MHCA, 2017, like,
• electro-convulsive therapy without the use of muscle relaxants and anesthesia;
• electro-convulsive therapy for minors;
as prohibited procedure, with conditional clause as, in case of required ECT for minor, the
informed consent of guardian and prior permission of concerned board as mandatory, which
emphasis the seriousness attached with the treatment. The ECT in itself is not prohibited or
illegal treatment in Inshia, the complications and side effects of the treatment emphasis the need
for consent form from concerned parties, as they are entitled for knowledge upon information19
relates to risk factor in relation with treatment, and because of medical ethics for informed risks.
And ECT consent form being regarded as mandatory condition for performance of ECT in the
Clinical Practical Guidelines for the use of Electroconvulsive Therapy. The ECT consent form
mandates the independent patient to provide consent for treatment, in case the independent
patient in not in the state to provide consent, the nominated representative is in need to provide
consent prior to the performance of ECT upon informed concern. In Asta case, he didn’t appoint
15
Section 85 of The Mental Healthcare Act, 2017
16
Article 21 of The Constitution of India, 1950
17
N.D. Jayal v. Union of India, 2003 Supp(3) SCR 152
18
Section 95 of The Mental Healthcare Act, 2017
19
Section 22 of The Mental Healthcare Act, 2017, Right to Information
12 | P a g e
any person as nominated representative as prescribed in Section 1420 of MHCA, 2017, but Asta’s
sister being in capacity of relative can be considered as nominated representative as per the
mentioning in Section 14(4)(b) of MHCA, 201721.
The Counsel humbly submits that the mandatory prior condition upon requirement of informed
consent from concerned party is for the need to protect legal and moral rights of PMI, and ECT
can’t be performed without formal informed consent form from the concerned parties.
20
Appointment and revocation of nominated representative
21
Where no nominated representative is appointed by a person under sub-section (1), the following persons for the
purposes of this Act in the order of precedence shall be deemed to be the nominated representative of a person with
mental illness, namely:—
(b) a relative, or if not available or not willing to be the nominated representative of such person; or
13 | P a g e
ISSUE II: WHETHER THE ACTS OF DR. JAMIE FRASER WOULD AMOUNT TO
MEDICAL NEGLIGENCE?
The Counsel Humbly submits that, Dr. Jamie Fraser being the mental health professional
in Onelife psychiatric hospital is morally and legally bound to follow the code of ethics for
medical profession. Being the medical practitioner, Dr. Jamie Fraser is obliged to follow the
sanitary laws and regulations in the interest of public health22, and responsible for his patient’s
necessary medical care23. In case of Asta’s ECT performance, Dr. Jamie Fraser performed ECT
during emergency treatment not considering the legally established restriction upon such
performance for the patient interest, and the duty upon ensuring necessary medical care was
neglected by performing ECT for PMI in healthcare centre, instead of MHE. Asta being the
independent patient of Onelife psychiatric hospital, entitled for least restrictive care option24 as
his basic legal and fundamental right upon right to health25, which is within the widen horizon of
right of life guaranteed under Article 21 of the Constitution26.
In this case Dr. Jamie Faser’s negligence upon admission in treatment, deprives the necessary
medical care right to Asta, and neglection upon non- compliance with prior informed consent
from concerned parties before ECT performance violates Rights to information27, which is also
in violation of fundamentally guaranteed constitutional right upon right to life.
If a medical practitioner attempts to treat a person without valid consent, then he will be liable
under both tort and criminal law. And every patient has a right that informed consent must be
sought prior to any potentially hazardous test/treatment, and it is the duty of the primary treating
22
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, Chapter 1.9 Evasion of
Legal Restrictions: The physician shall observe the laws of the country in regulating the practice of medicine and
shall also not assist others to evade such laws. He should be cooperative in observance and enforcement of sanitary
laws and regulations in the interest of public health.
23
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, Chapter 2.4 The patient
must not be neglected: …, Provisionally or fully registered medical practitioner shall not willfully commit an act of
negligence that may deprive his patient or patients from necessary medical care.
24
Section 89(1)(b) of The Mental Healthcare Act, 2017
25
State of Punjab & Ors vs Mohinder Singh Chawla Etc, SLP (C) No.12472/96
26
Protection of Life and Personal Liberty
27
Section 22 of The Mental Healthcare Act, 2017
14 | P a g e
doctor administering the potentially hazardous test / treatment to explain to the patient and
caregivers the main risks that are involved in the procedure.28
The counsel humbly states that, the most valuable wealth every individual possess is their
memory, which is also considered as irreplaceable wealth, because of the neglection in part of
Dr. Jamie Fraser, Asta suffers from dissociative amnesia which is not the common side effect of
ECT, and the term informed consent is not only is relation with right upon information, but also
in concern with bodily privacy of individual, the consent upon treatment via using ECT cannot
be considered as consent for performing ECT as potential life threatening treatment for Asta.
The Counsel Humbly Submits That, The ECT is recommended to achieve rapid and short term
improvement of severe symptoms after am adequate trial of other treatment options has proven
ineffective and/or when the condition is considered to be potentially life-threatening in
individuals with catatonia and prolonged maniac episodes.
The Counsel with Due respect Submits that, even for these type of chronic disease the ECT is not
recommended but in this case the ECT is used to Asta for depression without analyzing the
sequel of risk factors. Dr. Jamie Fraser Negligently treated Asta which showed a positive change
in the mental state with a therapy session. Asta was performed ECT for a Mental state of
Depression which does not need this kind of serious Treatment mode. Which made him
vulnerable by the act of Dr. Jamie Fraser.
After a while on 18.08.21 Dr. Jamie Fraser, received a message from Asta quoted., “ I THANK
YOU FOR YOUR HELP AND COMPANIONSHIP, TIME WE SPENT IS PRECIOUS TO ME.
I THANK YOU FOR EVERYTHING YOU HAVE DONE TO ME DOCTOR .THANK YOU
DOCTOR. GOOD BYE DOCTOR” .Dr. Jamie Fraser Suspected that Asta may be planning to
attempt suicide and rushed to Asta’s apartment to save him because he feared that his successful
carrier may get a black mark if Asta is dead.
For the purpose of Emergency treatment Asta was admitted to the nearby Health care Center
known as “Livo” ,on 21.08.2023 Dr. Jamie Fraser and his team performed ECT in” livo “which
directly abridges the section 86(5) the mentioned provision that the independent patient shall not
be given treatment without his informed consent.
The Counsel humbly states that, According to section 94 of MHCA which says that the
Emergency treatment referred in this section is limited to 72 hours (3days),even though there is
28
Medical Council of India Code of Ethics section 7.16
15 | P a g e
enough time to ask the consent from the patient or from the concerned parties , no consent is
obtained from the side of Asta before Performing ECT, And not even provide a sufficient
information about the risks and side effects of ECT. After the treatment of ECT Asta began to
experience severe Fatigue, Nausea, Headache, Confusion and slight memory loss(dissociative
amnesia).
The counsel humbly submits that, there is theory which supports our contentions that the acts of
Dr.Jamie Fraser amounts to medical negligence ,the exception not the rule Modern medicine
seeks to avoid a paternalistic (doctor knows best) approach to their patients. Instead it considers
the doctor and patient mutually engaging in the decision making with the final decision on
treatment options being that of the patient. Respect for autonomy, informed consent and
confidentiality are now key markers for ethical practice and there must be exceptional
circumstances or reasons for breeching them.
Hence as the appellant side counsel, we conclude by this points that Dr.Jamie Fraser acts
Amounts to medical negligence and he is liable for damages.
16 | P a g e
ISSUE III: WHETHER THE ESTABLISHMENT “LIVO” IS JOINTLY LIABLE WITH
“ONELIFE” FOR EMERGENCY TREATMENT OF ASTA?
The counsel humbly submits that, LIVO is a health care institution where the Asta is
admitted and assessed for emergency treatment on( 18.08.2021)29 , after the attempt to suicide
were intervened by the Dr. Jamie Fraser.
The counsel with Due respect states that, Asta was admitted in the healthcare center LIVO As it
is the Nearby Healthcare establishment for aiding his illness , by the breach of the Section
94[1](a)(b)and 94(3) of the MHCA ,2017, as there was no consent before ECT performed.
The counsel states that, there is a need of informed consent of the nominated representative of
Asta regarding the Treatment that the medical practioners going to give to the mentally ill
patient(Asta) and according to MHCA, ECT cannot be performed as an emergency treatment30 .
The counsel with Due respect Submits that, even though the Dr. Jamie Fraser admitted Asta, it is
an independent admission under section 86 of mental healthcare act,2017 considering this the
LIVO has abridged that independent patient shall not be treated without the informed consent of
his own .
The consent to perform ECT was brought by Dr Jamie Fraser to perform in ONELIFE only.
After the suicide attempt was intervened, the consent was never taken by LIVO, before
performing the Treatment.
The counsel as conclusion states that, LIVO is jointly liable with ONELIFE and both are liable
to pay damages.
29
Para 5, Page 2 of Moot Preposition
30
Section 94(3) of The Mental Healthcare Act, 2017
17 | P a g e
PRAYER
WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND
AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON ‘BLE COURT
MAY BE PLEASED TO DECLARE THAT:
1. Issue an appropriate Order or direction, in favour of the Appellant and against the
Respondents, by declaring the Electroconvulsive Therapy performed in “Livo” is not
valid, and Livo is not the authentic establishment to perform ECT.
2. Issue an appropriate Order or Direction, against Respondent that Dr.Jamie Fraser’s act is
well within the scope of Medical Negligence and he is liable for the Damages of Asta.
3. Issue an appropriate Order or Direction, that “Livo” and “Onelife” is Jointly Liable as the
establishments sharing the common wrong.
AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM
FIT IN THE INTEREST OF JUSTICE, FAIRNESS, EQUALITY, AND GOOD
CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL
FOREVER PRAY.
18 | P a g e
