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