PSYCHIATRY AND LAW

SUMMARY

LAW AND PSYCHIATRY: CONCEPTS,HISTORY, APPLICATION & UTILITY

• Law is generally a system of rules which are enforced through social institutions to govern behavior. There is no universally accepted definition of law.

• Human being is a civilized social animal.• Civilization came with certain requirements one of which is

regulation of behavior for security, peaceful coexistence and maintenance of some order in society.

• Law and governance came into picture to fulfill this requirement.

• Health was desired for happiness and well-being and that could happen through prevention and treatment of diseases. Medicine was invented to fulfill this requirement. The mental component of health has been there in medicine since ancient times and the specialty of Psychiatry developed gradually in the course of time.

ASCLEPIUS-GREEK GOD OF MEDICINE (& PSYCHIATRY)

JUSTICE-GREEK GODESS OF LAW

PSYCHIATRIST’S OFFICE: COOPERATIVE THERAPEUTIC PROCESS

COURT TRIAL: ADVERSARIAL PROCESS

WHEN IT COMES TO REGULATING HUMAN BEHAVIOR

LAW PUNISHES-CONCERNS ITSELF WITH RIGHT AND WRONG

PSYCHIATRY TREATS WITH THE KNOWLEDGE THAT ABERRANT BEHAVIOUR CAN BE DUE TO ILLNESS

PSYCHIATRY AND LAW-FRIENDS?

OR FOES?

THEY ARE INTERDEPENDENT FOR TECHNICAL INFORMATION, YET EACH HAVING THEIR OWN

CONSTRUCTS OF MENTAL ILLNESS

PSYCHIATRY AND LAW INTERFACE

• It can be approached in many ways. • The approach followed in this presentation is mentioned

below:

PSYCHIATRY AND LAW Law in psychiatry. Psychiatry in civil law. Psychiatry in criminal law. Law and psychiatric problems of children. Certification in psychiatry. Psychiatrist as expert witness. Ethics and law. Human rights and privileges of mentally ill persons.

LAW IN PSYCHIATRY: RELEVANT ACTS

• Indian Lunacy Act, Act 4 of 1912.• Mental Health Act , 1987.• Central Mental Health Authority Rules, 1990.• State Mental Health Rules, 1990.• State Mental Health (Amendment) Rules, 2007.• Mental Health Care Bill, 2013.• Narcotic Drugs and Psychotropic Substances Act, Act 61 of

1985 as amended up to Act 2 of 1989.• Narcotic Drugs and Psychotropic Substances Rules,1985.• Narcotic Drugs and Psychotropic Substances (Execution of

bond by convicts or addicts) Rules, 1985.• Prevention of illicit traffic in Narcotic and Psychotropic

Substances Act, Act 46 of 1988. • Consumer protection act, 1986.

PSYCHIATRY IN CIVIL LAW

• If there is a CIVIL LAWSUIT, it’s between a person and another person/s one or more of whom can be mentally disordered.

• Situations of significance in relation to psychiatry in civil law:• Contract-It’s validity. Indian contract act(act 9 of 1872). • Marriage-Nullity, restitution of conjugal rights, judicial separation, divorce. Special

marriage act, 1954 (applicable to all irrespective of religion), different marriage and divorce acts for different religions: Hindu, Muslim, Parsi, Christian; Family courts act, 1984; Domestic violence act, 2005.

• Testamentary capacity: Indian succession act,1925; Hindu Succession Act(amendment 2005); Muslim Personal Laws; Indian Registration Act1908; Various state amendments of Hindu Succession act.

• Adoption: Hindu Adoption and Maintenance Act(Act 78 of 1956).• Right to vote and stand for election: Act 326 and act 102 of constitution of India.• Witness: Indian evidence act, 1872.• Torts: Common legal principles are applied.• Civil proceedings: Regarding civil suits, guardianships etc.• Driving: Road traffic act and driving license act of India.

PSYCHIATRY IN CRIMINAL LAW

‘ACTUS NON FACIT REUM, NISI MENS SIT REA’ (An act does not make a person guilty unless his

mind is guilty).

INDIAN PENAL CODE (ACT 45 OF 1860, IPC): Nothing is an offence which is done by a person who, at

the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

PSYCHIATRY IN CRIMINAL LAW

• If there is a CRIMINAL TRIAL, the legal matter is between the State and a person who can be mentally disordered.

Situations of significance in relation to psychiatry in criminal law:

• Criminal responsibility for serious crimes (e.g. murder): IPC(Act 45 of 1860; IPC); ‘Partial insanity’: Section 84, IPC; Section 335 CPC; Intoxication (forced or without knowledge): Sections 85 and 86 IPC. Competency to stand trial and subsequent procedure: Act 2 of 1974: CPC.

• Consent: Section 90 IPC, Section 89 IPC.• Suicide: Section 309 IPC, Section 84 IPC.

• Miscellaneous crimes:• Unnatural sex offences-IPC, Section 377.• Paraphilias- e.g. exhibitionism -IPC Section 294• Affrays- Disturbances caused by fighting etc. in public places- IPC, Section 159.• Misconduct in public while drunk-IPC, Section 510.

LAW IN RELATION TO CHILDREN AND THEIR PSYCHIATIC PROBLEMS

• Rights of Children clearly mentioned in Convention on the same by General Assembly of United Nations, Resolution 44/25 of 20 November 1989.

Relevant Indian Laws: • The persons with disabilities(equal opportunities, protection of rights

and full participation) act, 1995. Provides for prevention and detection of disabilities, education, employment, non-discrimination, research and manpower development, affirmative action, social security and grievance redress of people with disabilities.

• Juvenile justice (care and protection of children) act, 2000. Enacted by the parliament for to provide for the care, protection, development, rehabilitation and social integration of delinquent juveniles and for the adjudication of certain matters relating to, and disposition of , delinquent juveniles.

• The national trust for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities act, 1999.

LAW IN RELATION TO ORGAN TRANSPLANTATION & ROLE OF PSYCHIATRIST

• Transplantation of human organs act, 1994.• Transplantation of human organs rules, 1995.• Transplantation of human organs (amendment) act, 2011.• Transplantation of human organs and tissues rules, 2013.

The acts and rules make it mandatory for every proposed live voluntary donor to undergo psychiatric evaluation by a psychiatrist appointed by authorization committees at hospital, district and state levels. The authorization committee has to mention reasons for approval/rejection of application of every voluntary donor in a prescribed form. One of the conditions mentioned for approval is:

‘psychiatric clearance is mandatory to certify the applicant’s mental condition, awareness, absence of any overt or latent psychiatric disease and ability to give free consent.’

CERTIFICATION IN PSYCHIATRY

• Medical certificate for Involuntary Hospitalization.

• Certificate for invalidation from service (Unfitness).

• Treatment certificate.• Mental fitness certificate.• Certificate for leave and fitness to resume

duties.• Certification for mental illness for Government

benefits.

• Certification for disability.

INDIAN LAWS RELATED TO DISABILITY

• Mental health act, 1987. Mentions provision for rehabilitation activities in psychiatric hospitals and about licensing of convalescent homes for mentally ill persons.

• Rehabilitation Council Act of India, 1992. Deals with development of manpower for providing rehabilitation services. Handicapped in this act means a person who is visually handicapped, hearing handicapped, suffering from locomotor disability or suffering from mental retardation.

• Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) (PWD) Act, 1995. Came into force in 1995 with the purpose of providing equal rights to disabled persons and to protect their rights and full participation. Seven conditions recognized by this act: blindness, low vision, leprosy-cured person, hearing impairment, locomotor disability, mental retardation, mental illness.

• National Trust for welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities act, 1999. Has provisions for legal guardianship.

DISABILITY ASSESSMENT

• Disability has been defined as any restriction or lack of ability to perform an activity in the manner within the range considered normal for a human being. Disability can be temporary or permanent and can be certified accordingly.

• Disability assessment using IDEAS(Indian Disability Evaluation and Assessment Scale) developed by the Rehabilitation Committee of Indian Psychiatric Society, December 2000:

Items in IDEAS: self-care, interpersonal activities(social relationships), communication and understanding, work.

It categorizes disabilities from no disability to profound disability. It can be used for evaluation of four mental illnesses: schizophrenia, bipolar disorder, OCD, dementia.

• Disability assessment schedule(WHO-DAS, 1988) is a well validated but research oriented instrument for assessment of disability.

ASSESSMENT OF DISABILITY IN PERSONS WITH MENTAL RETARDATION (ADPMR)

• Developed for assessment of disability in mentally retarded children.

• Items-Perceptual motor, self-care, communication and social, academic, occupational.

• Categorizes disability from no disability to profound disability.

• For the purposes of welfare benefit, cut-off of disability is 40%.

PSYCHIATRIST AS EXPERT WITNESS

• Indian Evidence Act, 1872: Common witness, expert witness.• Psychiatrist in Court-as a common witness, as a professional

witness, as an expert witness, as a defendant.• Expert witness may be summoned by: Prosecution, defense,

judge or tribunal.• Non-testifying expert versus testifying expert.• Summons is issued by Registrar of the Court to appear as

witness.• Attending Court is mandatory except in rare specific

circumstances.• Courts rely on oral evidence by the witness and documental

evidence. • Preparation of testimony.

CONTINUED

• Appearance in court: Aim-to assist Court in dispensation of justice.

• Order of examination of witness: Examination in chief, cross examination by opposing lawyer, re-examination by first party.

• Court verdict is not bound by expert’s testimony.• Expert witness is liable for negligence and perjury.• There is a presumption in favor of sanity and the contrary

has to be proved to the satisfaction of the court.• There is a presumption of continuity of sanity as well as

insanity. The return of soundness of mind, as well as lucid interval , must be proved to the satisfaction of the court.

ETHICS AND LAW

• The word ethics is derived from the Greek term ethikos, which stands for rules of conduct that govern natural disposition in human beings. Encyclopedia Britannica defines ethics as systematic study of the ultimate problems of human conduct. These ultimate problems are concerned with the concepts of right and wrong, morality and similar other issues. Ethics usually represents a system of internal control and is usually voluntary. In contrast, law represents a mechanism for external control and it’s enforced by the state. Ethics is guided by moral principles whereas law is guided by reality principles. They supplement and complement each other.

• Medical ethics is as old as the art of healing itself and the earliest code of medical ethics was formed by Hippocrates in 5th century BC.

• Psychiatric ethics is rather of a recent origin. The APA appointed a committee to develop a code of ethics. Subsequently , in 1977, the WPA developed a code of ethics which is known as the ‘DECLARATION OF HAWAII’. IPS adopted its ethical code in 1985.

CONTINUED

Main objectives of professional ethics are as under: To provide guidelines of conduct among the professionals

themselves. It includes area like referral from one therapist to another, giving comments on the opinion of another professional, and charging consultation fee from coprofessionals and their families.

To formulate guidelines in dealing with patients, their relatives and third parties. The areas to which these guidelines relate are mainly the following:

• Psychiatric diagnosis.• Informed consent.• Voluntary and involuntary treatment and hospitalization.• Confidentiality.

CONTINUED

• Respect for the patient and his human rights. • Third party responsibility.• Psychiatric research.

A committee comprising of Professors J S Neki, D N Nandi, P K Agarwal, V N Vahia and J K Trivedi was requested to

prepare the recommendations for a code of ethics for psychiatrists in India. The draft recommendations prepared by the committee were approved by IPS at its annual conference held at Cuttack, Orissa in1989. It has mentioned principles and recommendations.

CONTINUED

PRINCIPLES:

• Responsibility• Competence• Benevolence• Moral standards • Patient welfare• Confidentiality

RECOMMENDATIONS

It’s proposed that ethical committees may be formed at central and zonal levels. These are supposed to consider complaints either from the public or from fellow professionals and then carefully investigate them.

HUMAN RIGHTS AND PREVILEGES OF MENTALLY ILL PERSONS

• The term human rights in a broad sense means “those claims which every individual has or should have upon the society in which he/she lives.” According Richard Wasserstorm, it means ones that ought to be claimed as entitlements –those minimal things without which it is impossible to develop one’s capabilities and to live life as a human being.

• First human rights legal resolutions: Declaration of Human Rights, 1948. It did not specifically address rights of the mentally ill.

• Later resolutions: Declaration on the Rights of Mentally Retarded Persons,1979 and Declaration on the Rights of the Disabled Persons, 1975; began the process of establishment of minimum international standards for the treatment of persons with mental disabilities.

CONTINUED

• Right to health in constitution of India: Mentally ill have fundamental/ human right to receive mental health care and to humane living conditions in the mental hospitals.

• Declaration of Hawaii, 1992 by the General Assembly of World Psychiatric Association also talks about rights of the mentally ill.

MAJOR HUMAN RIGHTS STANDARDS APPLICABLE TO MENTAL HEALTH:

• UN Principles for the protection of persons with mental illness and the improvement of mental health care, 1991.

• Standard rules on the equalization of opportunities for persons with disabilities (Standard Rules, 1993).

CONTINUED

• WHO TECHNICAL STANDARDS: In 1996, WHO developed the Mental Health Care Law:

Ten Basic Principles and the Guidelines for Promotion of Human Rights of Persons with Mental Disorders, which is a tool to help understand and interpret the principles mentioned by it and to evaluate human rights conditions in institutions.

TEN BASIC PRINCIPLES: • Promotion of mental health and prevention of mental

disorders.• Access to basic mental health care.• Mental health assessments in accordance with

internationally accepted principles.

CONTINUED

• Provision of least restrictive type of mental health care.• Self-determination.• Right to be assisted in the exercise of self-determination.• Availability of review procedure.• Automatic period review mechanism Qualified decision maker.• Respect to the rule of law.

Chapter VIII of Mental Health Act, 1987 contains explicit provision of protection of human rights of mentally ill persons. But it does not spell out any enforceable right of the mentally ill to a minimum standard of care and treatment. Besides it does not spell out much on human rights and fails to cover neglect or cruelty to mentally ill persons sustained in families or alternate systems of care like faith healers. It does not mention anything about protection of rights of the mentally ill in areas such as employment, education and housing.

CONTINUED

IMPORTANT RIGHTS OF THE MENTALLY ILL:• Informed consent• Confidentiality.• Access to information.• Rights when admitted in mental health facilities.• Voluntary and involuntary mental health care.• Rights during emergency situations.• Rights related to special treatment.• Rights related to competence, capacity and guardianship.• Rights related to seclusion and restraint.• Rights related to clinical and experimental research.

FUTURE: BETTER UNDERSTADING AND COOPERATION BETWEEN LAW & PSYCHIATRY AND CONTINUED

EFFORTS FOR IMPROVEMENT

TRANSCENDENCE

We often talk of right and justice, but we find that in the world right and justice are mere baby’s talk. There are two things that guide people’s conduct: might and mercy. The exercise of might is invariably the exercise of selfishness. All men and women try to make most of whatever power or advantage they have. Mercy is heaven itself. To be good, we have all to be merciful. Even justice and right should stand on mercy.

SWAMI VIVEKANANDA

HINDU DEITIES OF MEDICINE & LAW

VAIDYANATH PARVATI

CONSCIOUSNESS

PROJECTION

judge love

MOTHER TERESA

UNITY

HARMONY

REFERENCES AND ACKNOWLEDGEMENT

• Textbook of postgraduate psychiatry, second edition. Editors: J N Vyas, Niraj Ahuja. JAYPEE Publications, 1999.

• Forensic psychiatry: Clinical Practice Guidelines for Psychiatrists in India. Editors: Prof. Shiv Gautam, Prof. Ajit Avasthi. Published by Indian Psychiatric Society, 2009.

• Dr. Nambi, for article on legal aspects of psychiatry in IPS publication for young psychiatrists.

• Wikipedia and wikimedia for images and information.

• www.digitalcomposting.files.wordpress.com.• Other websites on internet for free pictures.

FEEDBACK AND SUGGESTIONS

Feedback and suggestions from the audience are welcome.

ERRORS AND SHORTCOMINGS REGRETTED

THANK YOU