Post on 11-Jul-2015
transcript
The Mental Health Care Bill :
Dark Clouds !
Ajit Avasthi
Sudhir Mahajan
Department of Psychiatry
PGIMER, Chandigarh
Salient Features of Mental Health Care Bill
2013
Objectives:
1. To provide for mental health care and services for
persons with mental illness
2. To protect, promote and fulfill the rights of such
persons during delivery of these services
Much emphasis have been given on the rights of
persons with mental illness to the extent that it
hinders the service delivery to them
Chapter I: Definitions
New Names
“Person with mental illness” for “mentally ill” –
less stigmatizing, separating the person from the
illness
It defines mental illness which also includes mental
conditions associated with the abuse of alcohol and
drugs
The definition of mental illness is over-inclusive –
will hurt a large no. of victims of even minor mental
illnesses- Stigmatize
This will sort out the prevailing confusion about
character of services catering to these conditions
Chapter I: Definitions
Mental health establishment
General hospital psychiatric units run by Govt. or
private sector will also come under the Act
This will increase the stigma associated with
psychiatry
To establish a psychiatric unit in general hospital
one has to go through the cumbersome procedure
Rehabilitation facilities will also come under its
purview
• Kill general hospital psychiatry!!
• Corporate sector will not provide care!!
• So anyone who wants to start a rehabilitation
facility will have to go through the same
cumbersome procedure
• Will eventually hinder delivery of these services
Chapter II: Capacity to make mental
health care & treatment decisions
Mental health professional includes professional
with MD (Ayurveda) in “Mano Vigyan Avum Manas
Roga” or MD (Homeopathy) in psychiatry
And mental illness to be determined in accordance
with latest edition of ICD
Decision of whether a person is of unsound mind to
be taken by “competent” court & not psychiatrist
People with mental illness have been granted legal
capacity to take decisions about their health care
and treatment
So these specialists are expected to follow allopathic
system of classification!!So who will issue the fitness certificate: Psychiatrist
or Court??
• No other law in the country dealing with
disability - mental or other – grants such a right
• What if patient refuses treatment but is likely to
improve with treatment?? What about the rights
of caregivers who might have to suffer because of
person’s illness??
Chapter II: Capacity to make mental
health care & treatment decisions
Recommendation of Rajya Sabha Standing Committee:
Clause 4 (1): Capacity to make mental health care &
treatment decisions
There shall be a presumption in favour of persons
with mental illness
Every person, including a person with mental
illness shall be deemed to have capacity to make
decisions regarding his mental health care or
treatment unless proved otherwise
• Ministry has accepted this suggestion saying that
it upholds the constitutional norm of equality &
accordingly suggested the change in Section 4 (1)
Chapter III: Advance Directive
Advance directive to be signed by medical
practitioner and not necessarily a psychiatrist
That means a medical practitioner will assess the
capacity to make advance directive!!!
It might contain refusal of all future medical
treatment for mental illness
One can change previously written advance
directive as many no. of times as one wants & every
time Board have to certify the validity of it after
hearing – increases the work load - enough
manpower??
Maintenance of online register of all advance
directives
What to do, in such a case??....not mentioned !!!
Is online register valid?? What if hacked??
Chapter III: Advance Directive
Power to review, alter, modify or cancel advance
directive by mental health professional, relative or
care-giver
For minor, legal guardian shall have the right to
make advance directive
It has been said that the provision of an advance
directive will give people more control over their
treatment and give them an opportunity to exercise
choices even when they are incapacitated by mental
health problems
But what is the evidence??
Contravenes rights of minors!!
Rajya Sabha Standing Committee: makes it
mandatory to write to the Board if one desires
not to follow it
They will first have to write to Board & wait till the
decision. How long??
Chapter III: Advance Directive
Evidence base for Advance Directive
• Some researchers have reviewed the practical
issues of advance directives in mental health
settings & pointed that advance directives have not
worked as intended even in the West; also states it
to have no scientific evidence to back it(Sarin, 2012; Sarin et al, 2012)
• Cochrane Review: concluded “Currently, it is not
possible to recommend advance treatment
directives for people with severe mental illness due
to the lack of supporting data”(Campbell et al, 2009)
Impact on Psychiatric Service delivery
• Advance directives are seen by both the service
providers and the carers as yet another wedge
being pushed between family and the patients in
the name of transplanting individual rights as
understood in the West
• The great premium put on individual autonomy in
the Western societies is at wide variance with the
concept of familial interdependence in our country,
where collective goals and rights of family are
culturally considered at par with individual rights(Kala, 2013)
It is undesirable to have too many controls on the
professional functioning of psychiatrists
Chapter IV: Nominated Representative
Appointment of Nominated Representative by
Director, Dept. of Social Welfare in case no person
is available
The representative of the organization working for
persons with mental illness, may temporarily be
engaged by the mental health professional to
discharge the duties of a nominated representative
pending appointment of a nominated representative
by the concerned Board
Too many responsibilities put on nominated
representative
Are they willing to undertake this task??
What authority mental health professional has
over NGO?
• What if nominated representative does not
discharge his duties??
• Nominated representative not a family member:
will have access to family or home based
rehabilitation services– conflict with family!
• Too many duties for the Board!
• Will Board have the capacity to deal with so many
demands?
• Board is replacing professional – Psychiatrist!
Chapter V: Rights of persons with mental
illness
Provisions:
Right to access mental health care
Right to community living
Right to protection from cruel, inhuman and
degrading treatment
Right to equality and nondiscrimination
Right to information
Right to confidentiality
Restriction on release of information in respect of
mental illness
Right to legal aid
• All these are good provisions & if implemented
may led to betterment of services
• Many provisions sound like poverty alleviation
program!
• But how much implementable these are, given
the resources we have??
It does not seem to be in accordance with the
policy measure of District Mental Health Program
which plans to cover all the districts in a graded
fashion and this bill is an ambitious blue print of
a network of mental health services free of cost to
those who cannot afford it (Kala, 2013)
Chapter V: Rights of persons with mental
illness
Provisions:
Right to confidentiality:
There are few exceptions to this right – some
modifications recommended by Rajya Sabha
Standing Committee pointing that the clause (23:2)
is very vague, leaves scope for ambiguity &
confusion
Right to access medical records: controversial
Right to personal contacts and communication:
Responsibility of Psychiatrists, but how to block e-
mails?
Rajya Sabha Standing Committee recommends
that there is a scope of misuse of medical records
which may be relooked & suitably addressed
before finalizing the Bill
Chapter V: Rights of persons with mental
illness
Provisions:
Right to legal aid:
Clause 27 (2) imposes duty only on the medical
officer or psychiatrist in charge of a mental
health establishment to inform the person with
mental illness that he is entitled to free legal
services
Rajya Sabha Standing Committee: Recommends
that it shall be the duty of the magistrate, the police
officer, person in charge of a custodial institution in
addition to doctors
Good Provision: Due to the ignorance, people with
mental illness are not deprived of legal remedies
and rights guaranteed to them through various
provisions of the Bill
Chapter VI: Duties of appropriate
Government
Provisions:
Promotion of mental health and preventive
programmes
Creating awareness about mental health and illness
and reducing stigma associated with mental illness
Appropriate Government to take measures as
regard to human resource development and
training, etc
Co-ordination within appropriate Government
Good provisions
But how much implementable?
Chapter VII & VIII: Central and State
Mental Health Authority
Psychiatrists should have adequate representation
in these bodies.
Because they are the only group, among
professionals in this field, who by their training and
experience, have the required expertise in
managing mental health establishments
It would be better to have a person with judicial
background as chairman of State Mental Health
Authority, rather than having the Health Secretary
of the state Government – can take up the
important task of protecting human rights of
inmates of all Mental Health Establishments
(Antony, 2014)
Psychiatrists marginalized by other stake-holders.
Bureaucrats rule the roost!!
Chapter IX: Finance, Accounts and Audit
Grants by Central Government to Central Mental
Health Authority – Central Mental Health Authority
Fund
Grants by State Government to State Mental Health
Authority- State Mental Health Authority Fund
It’s a good provision that the bill proposes to
constitute two separate funds for delivery of
committed services
• But the bill has not indicated anywhere, about the
manner in which the Government would mobilize
the huge resources that would be needed to render
care for such a large no. of mentally ill persons
• Strangely, in the Financial Memorandum, it is
stated that “there is no easy way to estimating the
full financial burden likely to be incurred”
• It also reminds that “Health is a “State Subject” as
per the Constitution – thereby implying that the
entire responsibility for implementation of various
commitments in the bill would be on State Govt. &
not Central Govt. (Antony, 2014)
• The bill has been written in the fashion of an
“announcement” by the government & not like an
“Act”
• If the objective is just to improve the plight of the
mentally ill, it could be achieved more effectively by
having a well thought of “National Mental Health
Program” with the required budgetary support
• If the Govt. of India creates a funding agency for
mental health care in the whole country, in the
form of University Grants Commission, State Govt.
could build all kinds of institutions and services for
the welfare of mentally ill (Antony, 2014)
Chapter X: Mental Health Establishments
Procedure for establishing and maintaining Mental
Health Establishments is cumbersome - might
hinder service delivery
All other kinds of institution, like GHPUs, or even
designated areas in a mental hospital where a
patient has a constant presence and support of a
relative or friend, need not be treated as a “mental
health establishment” for the purpose of the Law
As per Clause 65 (4), Central Authority is
empowered to make regulations for regulating
mental health establishment
Rajya Sabha Standing Committee
Recommended that the State Authorities will
be in best position to understand the
requirements & practical difficulties in their
own state & regulations made by them will be
more suited to administration
Chapter XI: Mental Health Review
Commission
For its implementation, “District Mental Health
Review Boards” for each revenue district are made
“District Review Boards” are vested with powers to
regulate the professional conduct of psychiatrist
And the Board consists of only one psychiatrist!!
Further as per section 86, all proceedings before
the “Commission” and the “Board” shall be deemed
as judicial proceedings, as laid down in IPC
There is a serious danger that the functioning of
district boards would go against the federal nature
of governance in the country
Rajya Sabha Standing Committee
Recommended that the Mental Health Review
Board proposed under Clause 81 (C) should be a
Psychiatrist & not “any other mental health
professional” as being a specialist Psychiatrist is
better equipped to protect the interests of
patient
Chapter XI: Mental Health Review
Commission
As “Mental Health” is a “state subject”, how could
district boards which are created by the Centre &
controlled directly by a central body, be legally
acceptable?? (Antony, 2014)
And how could these “Boards” control mental
health professionals, over the heads of the
administrative machinery, Medical Councils and
even the Judicial System, of concerned states??
In Section 90, it is laid down that the Commission
will appoint an expert committee, who would
prepare “guidance document” to tell psychiatrist
regarding assessment and treatment decisions!!
• All required skills and wisdom are to be
“prescribed” by “guidance” documents issued by
the Commission!!
Chapter XII: Admission, Treatment and
Discharge
As per the bill, patient can challenge the
involuntary admission (supported admission)
A panel of Mental Health Review Commission will
then take a call and patient may be allowed to go
home
• In our country families bear the total burden of
mental illness, and constitute by far the largest
manpower resource in treating mental illness
• But instead of using them, they have been
marginalized
• Similarly, expertise of Psychiatrist in making
decisions about involuntary admission have
been challenged
• Psychiatrists and patients have also been put on
the opposite side of legal fence
Chapter XII: Admission, Treatment and
Discharge
Prohibited procedures
Unmodified ECT
• Beneficial and safe procedure especially if there are
no facilities for anesthesia
ECT for minors
• The bill stipulates that ECT to minors will be given
only after permission from the Review Commission
on a case-to-case basis
• ECT cannot be given in emergency: what to do with
youngsters having catatonic features - run around
for permissions!!!
• Where is evidence that ECT has more side effects in
minors than in older adults? Why such a
prohibition?
Recommendation of Rajya Sabha Standing Committee:
• The Committee is of the opinion that Clause
104 prohibiting certain treatments, such as
unmodified ECT and sterilization and restrain on
chaining are highly desirable pro human right
provisions
• Reservations on ECT for minors: The committee
suggests the provision of prohibiting the use of ECT
on minors below a certain age based on the concept
of maturity of minors - However no such cut off
for age suggested!!
Conclusions
The bill has imported ideas from the West without
due consideration of the ‘cultural & ground
realities’ of our country
Rather than using family as an important resource
they have been marginalized
Role & position of Psychiatrists diluted
Too much legal hassles for delivery of mental health
care. Too cumbersome procedures
Future of GHPU’s at stake- will stigmatize
psychiatry more
Commitment made in the bill for provision of
various mental health services seems non-
implementable for the Government
Thank You