VIEWPOINT/PERSPECTIVES (THEMESECTION: MENTAL HEALTH CAREBILL, 2013)
Year : 2015 | Volume
: 31 | Issue : 2 | Page : 130--133
Involuntary admission and treatment
Anirudh Kala, Kunal Kala
Consultant Psychiatrists, Mind Plus Retreat, Vil- Raul, Teh- Payal, Ludhiana, Punjab, India
Mind Plus, 95-A, Model Gram, Ludhiana - 141. 002, Punjab
Provisions for involuntary admission proposed in the Mental Health Care Bill, which is currently before the parliament, are discussed. Concerns about feasibility and cost-effectiveness of the postadmission judicial review, which is a novel feature in the Indian context, are put forward.
|How to cite this article:|
Kala A, Kala K. Involuntary admission and treatment.Indian J Soc Psychiatry 2015;31:130-133
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Kala A, Kala K. Involuntary admission and treatment. Indian J Soc Psychiatry [serial online] 2015 [cited 2020 Oct 31 ];31:130-133
Available from: https://www.indjsp.org/text.asp?2015/31/2/130/173293
Involuntary admission is the raison d'être for mental health legislation. Although there are many other functions, which mental health acts around the world perform additionally (e.g. ensuring standards of care and regulating mental health establishments), the fact of the matter is that all those functions can be equally well carried through executive orders. Since involuntary admission of the mentally ill is probably the only example of the state taking away an individual's liberty in a noncriminal context, it cannot be done arbitrarily and necessitates special legal provisions to be made by country's legislative bodies.
In the Indian context, prior to the enactment of the current law which is Mental Health Act, 1987, no person with a mental illness could be admitted against his consent, without an order from a court (also called a reception order). The Mental Health Act, 1987, introduced a significant qualitative change in the process of involuntary admission by making it partly independent of the judicial system. Now, patients who need to be admitted, but refuse consent because of the lack of insight and fulfill certain criteria could be admitted “under special circumstances” by the psychiatrist, on family's request (supported by certificates from two medical practitioners), without a magistrate coming into the picture at all. The Mental Health Care Bill (MHCB) currently before the parliament carries this process even further by making almost all involuntary admissions possible outside the judicial system; the only exceptions where some sort of court intervention is required are the situations where families are absent or are negligent. However, what the new law has brought in, on a very large scale is a postadmission judicial scrutiny of involuntary admissions.
This is entirely new, unprecedented, and untested concept for Indian patients, Indian families, mental health professionals, and society at large and like all radical changes is a cause for both hope and trepidation. Colleagues who have worked in the West will find some similarities in it to the system of Mental Health Review Tribunals, as detailed briefly in the next article by Malhotra et al. in this issue.
The preamble to the bill mentions that the proposed law is one of the attempts by the government to realign its laws with the UNCRPD, “Whereas the Convention on Rights of Persons with Disabilities and its Optional Protocol was adopted on the 13th December, 2006 at United Nations Headquarters in New York and came into force on the 3rd May, 2008; and where as India has signed and ratified the said convention on the 1st day of October, 2007, and where as it is necessary to align and harmonise the existing laws with the said Convention, be it enacted by Parliament…….”
However, this does not imply by any stretch of the imagination that the proposed bill was either the only or the best way to fulfill country's international obligations.
The new bill certainly borrows from the UNCRPD terminology. Thus, involuntary admission is now “supported admission” implying varying degrees of support a person with mental illness may require in exercising his capacity. In the new bill sections, which primarily deal with supported admission are the following:
Section 98. Admission and treatment of persons with mental illness, with high support needs, in mental health establishment, up to thirty days (supported admission).
Section 99. Admission and treatment of persons with mental illness, with high support needs, in mental health establishment, beyond thirty days (supported admission beyond thirty days).
Requirements for admission under section 98 are that:
The person has been independently examined on the day of admission or in the preceding 7 days, by one psychiatrist and the other being a mental health professional or a medical practitioner, and both independently conclude based on the examination and if appropriate, on information provided by others, that the person has a mental illness of such a severity that the person:
Has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself; orHas recently behaved or is behaving violently toward another person or has caused or is causing another person to fear bodily harm from him; orHas recently shown or is showing an inability to care for himself to a degree that places the individual at risk of harm to himself.There exists nothing in the Advance Directive (if any signed by the patient, earlier) contrary to an admission without patient's consent.
If a person with the mental illness admitted under this section requires nearly 100% support from his nominated representative in making a decision in respect of his treatment, the nominated representative may temporarily consent to the treatment plan of such person on his behalf.
All admissions under this section have to be reported to the concerned local panel of the Mental Health Review Board within 7 days (within 3 days if the person is a woman or a minor). The panel which may exist in every district will be a full time dedicated judicial body headed by a judge, who will be a sitting or retired sessions judge. The admitted person, if aggrieved, has a right to approach the panel to have his/her admission revoked by the panel. Such a review will have to be decided within 1 week, will be binding on all parties, and any appeal against the decision of the panel either by the family or the admitting psychiatrist or the patient will lie in the high court of that state.
If the patient needs to remain admitted beyond a period of 30 days, Section 99 will apply which necessitates following additional requirements:
The decision would have to be now made by two psychiatrists (not one psychiatrist and one mental health professional/medical practitioner)The person has “consistently over time” threatened or attempted to cause bodily harm to himself; or behaved violently toward another person or caused another person to fear bodily harm from him; or shown an inability to care for himself to a degree that places the individual at risk of harm to himself.
All admissions under this section (even if not challenged) will be reviewed by the panel and will be initially for a period of 90 days.
In addition to the above sections for “involuntary admission,” the law for the 1st time provides a provision for the treatment of urgent situations caused by mental illness.
Section 103 entitled “Emergency Treatment” allows any registered medical practitioner to provide any treatment (except ECT) Electroconvulsive Therapy to any patient with a mental illness, either in a hospital or in the community, “to prevent – (a) death or irreversible harm to the health of the person; or (b) the person inflicting serious harm to himself or herself or to others; or (c) the person causing serious damage to property belonging to himself or herself or to others where such behaviour is believed to flow directly from the person's mental illness.”
Emergency treatment includes transporting a patient to a mental health establishment if required and will not last beyond 72 h in all. The section on emergency treatment would be welcomed by professionals and families since it does away with formalities which many times impede immediate treatment in the event of a serious psychiatric emergency. It also covers a very important legal lacuna, which has so far come in the way of transporting a seriously disturbed psychotic patient, since there is at present no specific provision for transporting such patients who have not yet been properly assessed or admitted.
Provisions of the new bill pertaining to involuntary admission are undoubtedly progressive and less cumbersome than those of the current and earlier acts. Nobody could find fault with a mental health bill leaning heavily toward human rights of the mentally ill. That is, indeed, the primary function of a mental health act. After all this is about civil detention and curtailing a person's liberty; and so, a review if asked for by the individual should be possible. However, the new bill seems to go beyond the minimum requirement even by the UNCRPD. UNCRPD laid down, “regular review by a competent, independent, and impartial authority or judicial body.” Thus, while the UNCRPD requirements could have been fulfilled through review by an independent administrative or social audit of involuntary admissions, the bill has chosen to straight away lay down a vast country-wide network of courts just for this purpose, something like the network of consumer courts meant for another purpose. Three questions spring up right away:
Is this not a unnecessary and expensive overreach? Considering that India has one of the lowest psychiatric beds/population ratios in the world, do we even have a sufficient number of dubious involuntary admissions to justify this exorbitantly costly web of courts and associated abracadabra? Is this feasible? The real test of implement ability of a law, unfortunately, comes only some years after it has been implemented. However, some concerns are clearly foreseeableSince in all probability, a review panel in each district will neither be necessary nor feasible in view of the very small number of mental health facilities in the country, chances are that we will end up having a panel for several districts and in case of smaller states, just one in each state. Provision for such administrative convenience is available in the bill. What it might end up as, in the real world a year later, is a centralized court system where the patient, the family, and officers of mental health facilities line up; the patients or their nongovernmental organization representatives to file grievances over the patient having been involuntarily admitted, families with requests that patient should continue remaining admitted, and personnel from mental health facilities to justify the admission and also to submit records of all involuntary admissions and to get approvals for longer admissions. If it sounds familiar, it is because it resembles so much the mainstream court system!Families are by far the largest human resource in the care of the mentally ill in India and any law which for the 1st time chooses to pit the family and the patient on the opposite of the legal fence, as adversaries, is likely to frustrate the already option less families, in a resource-strapped country with nominal mental health services. For example, if a family manages to admit an excited paranoid patient to a hospital, only to be released by a panel, the patient may be free to go home, but may not now have a home to go to!
The critics argue that it will sabotage goodwill and bonding, and make families less willing to be as proactive in the treatment of their wards, which, of course, would be an unmitigated disaster.
In the wake of the UNCRPD, while the health ministry was busy drafting the new mental health act over the last 4 years, the Ministry of Social Justice and Empowerment had been having equally hectic parleys over writing the new Bill for The Rights of Persons with Disabilities. Interestingly, both the bills are before the parliament at present. However, what is not so interesting is the fact that the disability bill has some provisions pertaining to involuntary admission which are in apparent conflict with those in the MHCB. For the uninitiated, for the mental health professionals, both the bills are important because mental illness, in addition to being an illness is a disability too, under the current Disability Law. The new disability bill stipulates that any guardianship of a physically challenged person has to be mandated by a court, and this may come in the way of admitting and treating a mentally ill in urgent situations. Some experts opine that when two laws differ on a point, it is the special law which will prevail, special law, in this case, related to treatment of the mentally ill being the MHCB, but as of now, it is an unresolved territorial dispute between two key ministries.
It is important to note that the disability law is understandably much more influenced by the UNCRPD which in fact according to interpretation by some activists and lawyers who does not allow involuntary admission at all. Article 12.2 of the convention states that, “States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” The interpretation that it means negation of all involuntary admissions was taken so seriously around the world that many countries issued their own interpretative declarations, before signing the convention, clarifying what UNCRPD means to them and what it does not.
Thus, Australia issued this clarification before signing, “Australia further declares its understanding that the convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safe-guards.”
Moreover, Canada issued an even stronger interpretation, “Canada recognizes that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law. To the extent, Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 128, Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal.”
India did not issue any interpretative clarification. Importantly, India is one of the countries which has ratified the convention. Ratification legally binds the countries to obey the convention. Signing indicates only intent to ratify at a later date and meanwhile accept this as an international standard.
To conclude, concerns about feasibility and cost-effectiveness of the postadmission judicial review, which is a novel feature in the Indian context, are put forward for the readers in this article.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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