Assessment of Person with Mental Illness for Legal Guardian Appointment in India: A Case Report and a Viewpoint

A guardian’s appointment for an adult person with mental illness (PwMI) is a significant step, usually a last resort, when all other support systems fail to uphold the person’s interests and rights. ¹ Guardianship is a legal construct that removes a person’s civil rights. Mental illnesses can cause significant disability and limit the PwMI from full participation in the community and exercising their rights. The presence of mental illness, stigma, attitudinal barriers, and disability can even put them at risk of further exploitation of their rights. Unlike the Mental Health Act (MHA) 1987, the current legislation, the Mental Healthcare Act (MHCA) 2017, apart from appointing a nominated representative (NR) for healthcare and treatment decisions, does not have any provisions for appointing a guardian for an adult PwMI in other areas of life such as property (movable and immovable), reaching out for state benefits, legal matters, and exercising other civil rights.^2,3 However, the Rights of Persons with Disabilities Act (RPwD) 2016 gives provision for appointing both limited and full support guardians, but only in the context of persons with disabilities. Apart from the above concerns, there are no practice guidelines or standard procedures from the state for a practicing psychiatrist in this area, even though the RPwD Act 2016, Section 14, Subsection 1, clearly mentions the manner prescribed by the state government. ⁴ This article presents a court-referred case for guardian requirement assessment and discusses the domains requiring evaluation.

Index Case

Mr S, a 64-year-old retired teacher, was referred to a government hospital by a court order for evaluation of the “need for a guardian” following a traumatic brain injury (TBI) that occurred in 2015. The patient had comorbid diabetes and hypertension for 15 years and was well controlled with medications. The patient has one son, who settled in the United Kingdom, and a daughter, who is married and resides in India. The patient presented with progressive loss of memory, intermittent agitation, sleep onset and maintenance problems, and wandering behavior for nearly five years. During these years, as per his daughter, symptoms kept worsening despite hospitalization and the use of medications such as Risperidone, Quetiapine, Memantine, and Donepezil at different points in time. The patient was admitted for 10 days in an in-patient setting and was started on low-dose quetiapine 75–100 mg daily. The assessments conducted during the admission include a detailed analysis of symptom onset, progression in correlation with a head injury, and socio-occupational functioning; a serial mental status examination; a serial Mini-Mental State Examination (MMSE) ⁵ bedside assessment of cognitive functions; activities of daily living (ADL) using the Katz index; ⁶ and instrumental activities of daily living (IADL) using the Lawton-Brody instrument. ⁷ Finally, by enquiring about the patient’s assets, the approximate price, the total income from his property, and how it is spent, we evaluate the patient’s ability to manage movable and immovable properties. After serial assessments, the Mental Status Examination (MSE) consistently revealed hallucinations (visual and auditory) and delusions (persecution), significant impairments in sustained attention, immediate and recent memory, and abstract thinking. The MMSE score was 14–15 consistently, and he required 100% support in bathing, dressing, toileting, transferring, continence, feeding, using the telephone, shopping, food preparation, housekeeping, mode of transportation, the responsibility of his medications, and also handling finances. Blood investigations for the reversible causes of dementia and cognitive impairments were within normal limits. MRI findings suggested age-related diffuse cerebral and cerebellar atrophic changes and localized hypo-intense areas of the left parietal and temporal regions, suggesting prior hemorrhage and chronic small vessel ischemic changes. Finally, the authors determined that the nature of his illness, that is, dementia (mixed etiology: traumatic, vascular), was progressive and irreversible. He required long-term treatment and complete assistance in activities of daily living, instrumental activities of daily living, and all financial and property-related issues. The above findings determined his inability to make decisions about treatment and assets. Hence, it was reported that he required a guardian for his healthcare and financial management.

Discussion

While assessing a PwMI for the appointment of a guardian, there is a need to look into a few specific areas other than routine mental status examinations. A review of Western literature (United States of America, Canada, and the United Kingdom) and Australian laws showed a completely different picture. In most nations, as mentioned above, guardianship laws and application procedures for the mentally ill are well established. The assessments and appointments were made specifically for personal care or welfare, handling property or finances, or state benefits. In the United States, the evaluation and reporting of guardianship are diverse in various states. In some states, it is by a single qualified mental health professional who may be a psychologist, social worker, physician, or clinical mental health counselor, and in some states, it is an evaluation team consisting of a psychologist, social worker, physician, or representative of the cabinet from Health and Human Services. ⁸ In the United Kingdom, there are well-established community local social services, designated Approved Mental Health Professionals (AMHP), who are clinical psychologists, social workers, psychiatric nurses, occupational therapists, or nearest relatives to start the process and raise the requisition to responsible clinicians. Two clinicians do the assessment, and when they both agree to the requisition, guardianship is granted.^9,10 In Canada, for guardianship related to property, designated “capacity assessors,” who are doctors, psychologists, nurses, social workers, and occupational therapists, are involved in assessing the capacity following the request; these professionals are certified and charge fees on an hourly basis. In Australia, with well-developed adult guardianship laws, tribunals of different jurisdictions, following an assessment from a doctor or social worker, will decide about appointing the guardian. In all the above-described nations, in most instances, assessments were done by professionals other than primary treating doctors. They have special courts or tribunals to grant guardianship other than mainstream courts.^11,12,13

Such an elaborate system may not apply to Indian settings with resource and workforce limitations. In India, we face a gross deficit in human resources required to deliver services to PwMI. The National Mental Health Survey (NMHS) in 2015–2016 revealed a massive variation in the number of psychiatrists per 100,000 people. This variation ranges from 0.05 per 100,000 population in Madhya Pradesh to 1.2 per 100,000 population in Kerala. ¹⁴ According to international standards, even fewer psychologists, social workers, and nurses work for mental health in India.^15,16,17 In India, courts often order a psychiatrist working in a medical institute or hospital, either public or private, to assess the person and report. Most of the time, the treating psychiatrist will evaluate the person’s ability to handle finances, property, and legal decisions. The assessment schedules in Indian settings should be time-saving and quick to repeat, and the practicing psychiatrist, even at a community or district hospital, should be able to do so with available instruments within the court-stipulated time. The critical areas while assessing a person with mental illness for guardianship include evaluating (a) the level of cognitive deficits, (b) abilities for self-care and health, and (c) abilities to manage movable and immovable properties and other legal matters.^1,8 Multiple assessments may be needed to reach a meaningful conclusion, and in-patient care is advisable for this evaluation. In the index patient, the person was symptomatic for the last 5–6 years, had been hospitalized previously, and was onmultiple psychotropic medications. The court inquired about the general capacity for the requirement of a guardian. However, the court may ask for specific areas like finances, property, or legal contracts. In such cases, instead of appointing a full support guardian for a specific period, one might appoint a limited guardian for a particular domain. Long-standing psychopathology (delusions and hallucinations) should not stop psychiatrists from evaluating this area or domain, even though positive psychopathology represents a sign of incapacity.

The assessment of patients with recent-onset psychiatric disorders during the acute phase of the illness or when the person shows active symptoms is delayed. Furthermore, practicing psychiatrists require guidelines on conducting these evaluations, explicitly investigating certain areas, standard assessment procedures for limited and full support guardianship, and providing a standard report format for the judiciary. In Table 1, the authors describe the approach they followed and propose that this may be useful for practicing psychiatrists in a setting like India.

Table 1.

Guardianship Evaluation Procedure and Instruments Required at District Hospital/ Community Health Center Settings.

Components of assessment:
1. In-patient care, preferably for 2–3 weeks
2. Detailed assessment of symptom onset, progression, socio-occupational functioning, and response to treatment
3. Serial mental status examinations and behavioral observation during the ward stay
4. Investigations to rule out reversible causes of cognitive deterioration/dementia and other necessary consultation liaisons
5. Neuroimaging for new-onset, worsening cognitive states (otherwise optional based on feasibility)
6. Serial Mini-Mental Status Examination (in a language preferred by the patient or mother tongue of the patient)
7. KATZ index for abilities in the activities of daily living (ADL)
8. Lawton-Brody instrument for Instrumental Activities of Daily Living (IADL)
9. Capacity to manage movable and immovable properties:
a. Diagnosis: Temporary/permanent
b. Psychopathology: Is psychopathology influencing the decision-making ability of the person? For example, the delusion of grandiosity—grandiose ideas making the person donate or give away property; the delusion of persecution—any fear of others making him unable to handle property, mood, and emotional symptoms influencing his decisions
10. Details of the property:
a. Approximate value of his/her assets
b. Making day-to-day decisions about money and income
c. What is the income from property, and how is it spent?
d. Relevant hypothetical questions to understand the logical explanation of the expenditures
11. Report: Based on the above observations, the psychiatrist can make a report recommending either no support, limited support, or a total support guardian with a reassessment duration.

Conclusions

This view point highlights the critical legal and clinical gap in assessing and appointing guardians for adults with mental illness in non-healthcare domains, and there is an urgent need for state-prescribed guidelines to support psychiatrists in consistent decision-making.