The document discusses mental health law and the need for reform in India. It provides context on mental illness and definitions. It outlines key rights of the mentally ill according to international standards, including rights to treatment, privacy, and protection from exploitation. It also discusses the legal frameworks around mental illness in common law and statutes. World Health Organization guidelines for mental health legislation are presented.
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The document discusses mental health law and the need for reform in India. It provides context on mental illness and definitions. It outlines key rights of the mentally ill according to international standards, including rights to treatment, privacy, and protection from exploitation. It also discusses the legal frameworks around mental illness in common law and statutes. World Health Organization guidelines for mental health legislation are presented.
The document discusses mental health law and the need for reform in India. It provides context on mental illness and definitions. It outlines key rights of the mentally ill according to international standards, including rights to treatment, privacy, and protection from exploitation. It also discusses the legal frameworks around mental illness in common law and statutes. World Health Organization guidelines for mental health legislation are presented.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as PPTX, PDF, TXT or read online from Scribd
The document discusses mental health law and the need for reform in India. It provides context on mental illness and definitions. It outlines key rights of the mentally ill according to international standards, including rights to treatment, privacy, and protection from exploitation. It also discusses the legal frameworks around mental illness in common law and statutes. World Health Organization guidelines for mental health legislation are presented.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as PPTX, PDF, TXT or read online from Scribd
IN INDIA Divya Suresh | Radhika Agarwal | Swati Agarwal | Tushar Tarun Introduction Mental health law is the area of the law that is applied specifically to persons with a diagnosis or possible diagnosis of mental illness, and to the people involved in managing or treating others in this situation. Clearly it is a very crucial area of human well-being. This is a subject many do not want to talk about, so strong is the stigma attached to it. The Mental Health Act, 1987 - primary law applicable to mentally ill persons in India, providing for treatment and care of mentally ill persons and makes provisions with regard to their affairs, property etc. As will be seen subsequently in the course of this paper, it adopts a ‘medical school perspective’ in defining mentally ill persons; at the same time parts of it incorporate humanist elements as well. The progress in the field of Psychiatry and awareness of the rights of mentally challenged persons, as well as consciousness of human rights of the mentally ill has What is mental illness? Serious mental disorders like psychosis, severe depression, retardation etc affect only a small section of the population; Sizeable population suffers from common mental disorders like anxiety, depression, fear, somatic symptoms due to alcohol and drug abuse etc. What is mental illness? The World Health Organization prescribes that these common disorders also be included in the ambit of mental illness, as they affect a person’s mental wellbeing and health, even if to a less severe degree. World Federation of Mental Health Three-point method to define mental health: Are you comfortable within yourself?; Are you comfortable with other people?; Are you able to meet life’s demands?. If the Answer to all three is affirmative, then one is mentally healthy. Rights of the Mentally Ill and Stigmas Attached One of the greatest lacuna in relation to mental health issues relates to awareness about the same. Firstly, there is a dire need to educate the general public on the problems faced by the mentally ill and how, with the correct environment and help, they can potentially lead meaningful lives. In addition, mentally ill persons, their families, health workers, lawyers, and other persons working towards protection and promotion of mental health often have limited knowledge about the nature of such illness, or about the rights of the person. The crux of mental health care is that society has some moral and ethical duties to provide care to the mentally sick; this is apart from the legal duty to provide care. The mentally ill person deserves the same privileges enjoyed by normal or healthy human beings. Thus the human rights of a mentally ill person are two fold – first those that provide them the same privileges enjoyed by other members of the community, and secondly those that ensure them the right to protection against exploitation or degradation of any kind RIGHTS Human Rights – Same privileges enjoyed by other members of the community Right to protection against exploitation or degradation of any kind. right to be treated with respect right to privacy right to voluntary admission in a mental health care institution RIGHTS OF THE MENTALLY ILL Human Rights – Right to receive care and rehabilitation in the community Right to give informed consent for any treatment Right to socio-economic security Right to legal assistance and finally Right not to be subjected to any kind of social exclusion or ostracism. UN General Assembly: Fundamental Freedoms and Rights All persons have the right to the best available mental health care, which shall be part of the health and social care system. All persons with a mental illness shall be treated with humanity and respect for the inherent dignity of the human person. UN General Assembly: Fundamental Freedoms and Rights All persons with mental illness have the right to protection from economic, sexual, and other forms of exploitation, and degrading treatment. There shall be no discrimination on the grounds of mental illness. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights recognized by the Universal Declaration of Human Rights. LEGAL FRAMEWORK CONCERING MENTAL ILLNESS This subject includes issues in both common law and statute law. Common law, which is based on case law rather than statutes, issues include such concepts as mens rea, insanity defences, sane and insane automatism amongst others. Statute law usually takes the form of a Mental health act or equivalent. An example is the Mental Health Act 1983 in England and Wales, the Indian Mental Health Act etc. SIGNIFICANCE OF MENTAL HEALTH LEGISLATION In some jurisdictions court orders are required for compulsory treatment while in others treating psychiatrists may treat compulsorily by following set procedures. In the latter case there are usually methods of appeal or regular scrutiny to ensure compliance with the law. Not all countries have mental health acts. The World Health Report (2001) lists the following percentages by region for countries in those regions with and without mental health legislation SIGNIFICANCE OF MENTAL HEALTH LEGISLATION Regions With Legislation No Legislation Africa 59% 41%
The Americas 73% 27%
Eastern Mediterranean 59% 41%
Europe 96% 4%
South-East Asia 67% 33%
Western Pacific 72% 28%
WHO GUIDELINES WHO provides support to countries in developing and implementing progressive mental health laws that promote and protect the rights of people with mental disorders. Through direct technical assistance to countries, regional and national training workshops, and distance learning programmes, WHO provides technical information and training on international human rights standards related to the rights of people with mental disorders, as well as practical guidance on steps required to assess, develop and implement progressive mental health law. A number of materials and tools have been developed to provide a clear framework for technical assistance and training in this area, including the WHO Resource Book on Mental Health, Human Rights and Legislation and the WHO Checklist on Mental Health Legislation. WHO GUIDELINES Promotion of Mental Health and Prevention of Mental Disorders Access to Basic Mental Health Care Mental Health Assessments in Accordance with Internationally Accepted Principles Provision of the Least Restrictive Type of Mental Health Care Self-Determination Right to be Assisted in the Exercise of Self- Determination Availability of Review Procedure Automatic Periodical Review Mechanism Qualified Decision-Maker Respect of the Rule of Law Policy Perspective Hospitalization Family/Community Care Module Counseling patient’s family US and UK Law U.K. Major Enactments Care Standards Act, 2000 Disability Discrimination Act, 1995 Health Act, 2006 Health Act, 2009 Health and Social Care Act, 2008 Mental Capacity Act, 2005 Mental Health Act, 2007 History: UK The Lunacy Act 1890 granted power to hospital or asylum power to detain “lunatics, idiots and persons of unsound mind”. The Mental Deficiency Act 1913 made few amendments and gave power establishing Board of Control to monitor these asylums. Mental Health Act 1959 is the current law which got amended by Mental Health Act 2007 Mental Health Act-UK mental disorder - any disorder or disability of the mind – Pre-amendment - mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind Person with learning disability is not suffering from mental disorder Approved Social Worker – approved Mental Health Practitioner – Pre –amendment – social worker with extensive knowledge of working with people of mental disorder Mental Health Act-UK Mental Health Act Commission It is authorised to keep under review all aspects of the care of formal patients. It can investigate complaints, appoint panels to give a second opinion on consent to treatment (including treatment given to community patients and certain informal child patients). Mental Health Act-UK Compulsory admission to Hospital or Guardianship for patients not involved in Criminal Proceedings – Maximum duration of detention – 28 days – Application for admission – by Approved Mental Health Practitioner or nearest relative – Discharge by – Clinician Hospital manager Nearest relative with 72 hours notice Mental Health Review Tribunal Mental Health Act-UK Admission for treatment Duration – 6 months extended by 6 months then for a year and further Guardianship Duration – six months extended by six months AMHP or nearest relative can be guardian Two doctors must confirm that the patient need guardian Mental Health Act-UK Warrant for search and removal of patient in case there is reasonable belief that patient - is being ill-treated or neglected is unable to care for him or herself and lives alone In that case a magistrate can issue a warrant authorising a police officer (with a doctor and AMHP) to enter any premises where the person is believed to be and remove him or her to a place of safety. Mental Health Act-UK Patients involved in criminal proceedings – 28 days renewable to further 28 days (maximum 12 weeks) – Crown Court or Magistrates' Court remands the accused person to hospital on evidence from one doctor that – there is 'reason to suspect' that he/she is suffering from a mental it would be 'impracticable' for a report on his or her mental condition to be made if he/she were remanded on bail. Mental Health Act-UK Transfer of patient to hospital from prison – Duration of detention – 6 months renewable by 6 months and then 1 year till treated the Home Secretary orders the transfer, if satisfied by evidence from two doctors that – – an offender has a mental disorder of a nature or degree that makes detention for medical treatment appropriate – appropriate medical treatment is available for him/her. Mental Health Act-UK Supervised Community Treatment – Patient can be put under SCT when his/her formal detention ends – CTO must be supported by AMHP – Patient must be liable to be detained – a CTO does not authorise treatment without consent of the community – a patient may be held for up to 72 hours. After this time, either the patient must be released back into the community or the CTO revoked – If it is revoked, he or she once again becomes 'liable to be detained' and treatment can continue Mental Health: USA Is covered by various state legislations like Alaska, Illinois etc. Mental Health Courts Veteran Treatment Courts Mental Health Parity Act Veteran Treatment Courts: USA Established to address the needs of veteran defendants with substance dependency and/or mental illness issues For non violent felony or misdemeanour offenses Eight Such courts in existence – Buffalo, New York; Orange County, California; Tulsa, Oklahoma; Santa Clara County, California; Rochester, New York; Anchorage, Alaska; Madison County, Illinois; and San Bernardino County, California Mental Health Court More than 150 in number A specialized court which employs a problem solving approach to court processing in lieu of more traditional court procedures for certain defendants with mental illnesses; Judicially supervised, community based treatment plans for each defendant participating in the court, which a team of court staff and mental health professionals design and implement; Regular status hearings at which treatment plans and other conditions are periodically reviewed for appropriateness, incentives are offered to reward adherence to court conditions, and sanctions are imposed on participants who do not adhere to the conditions of participation; Criteria defining a participant’s completion of (sometimes called graduation from) the program. Mental Health Court Essential Elements – Planning & Administration - A broad based group of stakeholders representing the criminal justice, mental health, substance abuse treatment, and related systems and the community guides the planning and administration of the court. – Target - Eligibility criteria is to address public safety and consider a community’s treatment capacity, in addition to the availability of alternatives to pre-trial detention for defendants with mental illnesses. Eligibility criteria also take into account the relationship between mental illness and a defendant’s offenses, while allowing the individual circumstances of each case to be considered. Mental Health Court Essential Elements – Timely participant identification - Participants are identified, referred, and accepted into mental health courts, and then linked to community-based service providers as quickly as possible. – Terms of Participation – to promote public safety, facilitate the defendant’s engagement in treatment and provide for positive legal outcomes for those individuals who successfully complete the program Mental Health Court Essential Elements – treatment supports and services – Mental health courts connect participants to comprehensive and individualized treatment supports and services in the community. – Confidentiality – court team - A team of criminal justice and mental health staff and service and treatment providers receives special, on going training and helps mental health court participants achieve treatment and criminal justice goals by regularly reviewing and revising the court process. Mental Health Parity Act It provide a legal framework for acting and making decisions on behalf of individuals who lack the capacity to make particular decisions for themselves. Mental Health Parity Act The Act assumes that everyone can make their own decisions just that some people need support. The Act makes provision for people to plan ahead for a time when they may need support. This introduces advanced decisions to refuse treatment. The Act is decision specific in that it deals with difficulties a person may have with a particular issue. The Act upholds the principle of Best Interest for the individual concerned. Mental Health Parity Act A Court of Protection will help with difficult decisions. The Office of the Public Guardian (formerly Public Guardianship Office), the administrative arm of the Court of Protection, will help the Act work. An Independent Mental Capacity Advocate (IMCA) service will provide help for people who have no intimate support network. The Act makes it a criminal offence to wilfully neglect someone without capacity. Mental Health Parity Act Basic Principles (S. 1) – A person must be assumed to have capacity unless it is established that they lack capacity. – A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. – A person is not to be treated as unable to make a decision merely because he makes an unwise decision. – An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. – Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Mental Health Parity Act It provides that employers can retain discretion regarding the extent and scope of mental health benefits offered to workers and their families, including cost sharing, limits on numbers of visits or days of coverage, and requirements relating to medical necessity. Mental Health Parity Act The law covers mental illnesses (i.e. mental health services); it does not cover treatment of substance abuse or chemical dependency. Existing state parity laws are not preempted by the federal law (i.e., a state law requiring more comprehensive coverage would not be weakened by the federal law, nor does it preclude a state from enacting stronger parity legislation). The law applies only to employers that offer mental health benefits; it does not mandate such coverage. Mental Health Parity Act The law allows for many cost shifting mechanisms, such as adjusting limits on mental illness inpatient days, prescription drugs, outpatient visits, raising co-insurance and deductibles, and modifying the definition of medical necessity. – Therefore, lower limits for inpatient and outpatient mental illness treatments are expected to continue, and in some cases, actually expand to help keep costs down. The law applies to both fully insured state regulated health plans and self insured plans that are exempt from state laws under the Employee Retirement Income Security Act (ERISA), which are regulated by the Department of Labor. Mental Health Parity Act The law has a small business exemption which excludes businesses with 50 employees or less. The law allows an increased cost exemption; employers that can demonstrate a one percent or more rise in costs due to parity implementation will be allowed to exempt themselves from the law. Law in India – The Mental Health Act HISTORY OF THE MENTAL HEALTH LAW IN INDIA Traditional, indigenous medicine recognised separate category of mental illness but treatment was part of general health care separate lunatic asylums and institutions were established – these mostly provided services for British citizens HISTORY OF THE MENTAL HEALTH LAW INLunacy Indian INDIAAct, contnd. 1912 The terminology used in this Act was stigmatizing and degrading - words such as ‘lunatics’ and ‘idiots’ were used in this act to describe mentally ill persons. The procedure for admission and discharge was tedious and full of red-tapism. Only a board of visitors could discharge a patient and this board used to meet once in a month. In spite of being cured, a person who had mental illness continued to be institutionalized for a long period of time. 1987 – MENTAL HEALTH ACT OBJECTIVE OF THE MENTAL HEALTH ACT Stop stigmatisation of mental illness as it is curable – words like lunatic were removed and it was recognised that mental illness can be cured Treatment of mentally ill persons like other sick persons – shift from institutionalisation and protection of society to treatment To be in tune with advances in medical science – recognising the medical and clinical aspects of mental IMPORTANT ASPECTS OF THE ACT Right to admission and treatment in a psychiatric hospital/nursing home available to mentally ill persons (including prisoners and addicts) Procedure for admission and release of patient Licensing of institutions and practitioners and supervision of the same Removal of stigmatizing language VOLUNTARY ADMISSION AND DISCHARGE UNDER A person can request THE medical ACT officer for admission to a psychiatric hospital or psychiatric nursing home for treatment In case of a minor, request by the guardian Medical officer makes an inquiry within 24 hours and if the person is satisfied that there is a need for admitting the person then the same is done Such a person has to be discharged within 24 hours of request being made Or a Board of two medical officers has to be constituted and if they decide that the person should not be discharged then the person can be treated for 90 days more INVOLUNTRAY ADMISSION On the request of a relative or friend of mentally ill person who is unable to express his desire for admission, medical officer can admit the person if he feels that it is in interest of the person Discharge by request to Magistrate Also a Magistrate can give a reception order for detaining a person in a psychiatric hospital on request of medical officer, relative or spouse Medical officer can make a request only when treatment has to be extended for six months or the person must be detained for his health and personal safety or for protection of others Relative can make a request only in absence of the spouse IN V O LU N TA R Y A D M IS S IO N O N D E T E N T IO N B Y P O LIC E Police officer can detain any person whom he has reason to believe to be so mentally ill as to be incapable of taking care of himself He has to detain a person if he has reason to believe to be dangerous by reason of mental illness. The person or his friends/relatives have to be informed Has to be produced before a Magistrate within 24 hours Magistrate can pass a reception order after examination of the person D IS C H A R G E O F IN V O LU N TA R Y PA T IE N T S MO on the recommendations of two medical practitioners can order discharge in writing The person who had request admission can also make a request for discharge and MO can order discharge The mentally ill person can make a request to the Magistrate with a certificate from the MO The procedure for discharge is focused on protecting the society rather than treating the patient No rehabilitation procedure LICENSING AND REGULATORY PROVISONS UNDER THE ACT Government may establish or maintain psychiatric hospitals or psychiatric nursing homes Every person establishing or maintaining a psychiatric hospital or psychiatric nursing home must get a license – Not applicable to Government hospitals and nursing homes The applicant should be in a position to prescribe minimum facilities The license can be revoked if the institution is not maintained properly Inspection can be done by inspecting officer CRITICISM OF THE ACT and RECOMMENDATIONS Consolidation of general health care and psychiatric care – no more segregation and stigmatisation Lesser role of Magistrate in admission and discharge – transfer of responsibility to medical practitioners Equivalent regulatory and licensing measures for government and private hospitals Licensing of only those hospitals which want to admit mentally ill patients The Act should not allow research on a MI person who is incapable of consenting on the basis of consent of guardian – international best practice requires independent body to Role of the Judiciary Tamil Nadu v. Union of India (2002) Ervadi case : Mentally ill persons chained by a dargah and died in accidental fire Supreme Court criticized implementation of the Act Asked for a district wise survey to make a list of licensed and unlicensed institutions and asked the police to stop unlicensed institutions Asked Government to consider licensing for Role of the Judiciary State of Gujarat and Another v. Kanaiyalal Manilal and Others, (1997) – looked at maintenance provisions under the Act – duty of the Government to bear the costs – said that there is statutory obligation on the government to provide for maintenance of mentally ill persons Sheela Barse v. Union of India, 1993 – mentally ill persons who are not criminals can not be detained in jails – examination of mentally ill persons by a practitioner and then treatment. Implementation Efforts Implementation of MHA What the NMHP has achieved District Mental Health Programs are present in several districts. Grants have been released for the modernization of the psychiatric wings of 75 Government Medical colleges and General Hospitals and 26 Mental Hospitals. Rs.1000 crore in general has been allocated to the NMHP and Rs.70 crore has been allocated to implement the NMHP in 2008 – 09. PROBLEMS WITH IMPLEMENTATION OF THE ACT Very few mental hospitals and psychiatrists (as most have private practice) Lack of adequate finance Exploitation of inmates in the state run institutions Continued focus on old remedies like drugs, ECT etc rather than innovative treatment like counseling, rehabilitation etc. NHRC reported human rights violation of MI persons (especially right to chose) Lack of safety and hygiene Unnecessary detention Critique of the NMHP It follows a ‘medical model’ as opposed to a ‘community model’. Role of NGOs, community action groups and people’s collectives reduced to ‘referring cases’ to the nearest hospital. Potential of community care not recognized. ‘Grassroots’ work involved doctors setting up out- reach sites and providing consultation and medication services, essentially what was provided by hospitals. Funds get lost in trivial issues such as how many jeeps to buy. Training of PHC staffers and medical officers to recognize mental illnessis counter-productive as they cannot be expected to turn into mini- psychiatrists with a few weeks of training. Interview with Dr. Nirmala Srinivasan A Separate Mental Health Policy? THE WAY AHEAD Community based model of care – strengthening the PHC system Integration with general health care Training of the persons working with MI persons Spreading awareness about MI – sensitizing people about mental health issues. Different treatment for MI persons depending on the seriousness of MI Rehabilitation and follow up including support for vulnerable groups THE WAY AHEAD Changes in licensing policy – more transparency, less red-tapism, simplification of procedures and services of medical practitioners Criminal sanctions to prevent exploitation Moving away from focus on mental illness and its traditional medical treatment – more attention to the patient’s needs and incorporation of new methods. What can we learn from foreign jurisdictions Civil and criminal aspects of the mental ill should be handled differently. Guidelines similar to the Mental Health Parity Act in the UK can be adopted so that the mentally ill can be properly represented. Given the higher incidence of stressful jobs in India and the attendant issues, provisions such as the US Mental Health Parity Act can be incorporate i.e. employers calling the shots about the kind of mental health support then can provide to their employees. Something similar to a Mental Health Court can be adopted to deal with crimes committed by the mentally ill. This can only be done after an aggressive campaign to spread awareness and sympathy for the mentally ill. Thank You