Time to face new realities; mental health care bill-2013

A young man has been brought by the family and got admitted with history of marked insomnia, excitement, violence, being boisterous, and spending away to an impending ruin. He demands to be released since “he is fine and does not need any treatment”. Familiar so far?

If the Mental Health Care Bill, 2013, tabled in the Rajya Sabha on the 19^th August, 2013, is passed by the parliament,which is likely, following will be a routine continuum of the above scenario.

The patient is offered a chair and explained about the concept of ‘supported admission’, which is the new and politically correct name for ‘involuntary admission’. He is given a phone number to call if he has any objection to being admitted. The phone rings in the office of the district mental health review panel and somebody listens carefully, jots down details, and reassures the patient that a team will visit shortly and look into this matter. The team, which is actually a judicial body headed by a former district judge does visit the hospital, conducts a court hearing, and decides whether the patient needs to continue staying in the hospital or not. If the decision is in patient's favor, he will be allowed to go home.

Welcome to the world of post admission judicial review.

All involuntary admissions, in all Mental Health Establishments, which is the new name for any and all such places, wherever a person with mental illness is admitted even for a day, whenever challenged by the patient; will undergo a review by panels of Mental Health Review Commission, which will be located at district levels. Theoretically, family as well as the psychiatrist can appeal against the decision, but appeal against the panel lies with the high court, which would mean several visits to the state capital and whatever else is involved in going in an appeal to a high court including costly lawyers.

Psychiatrists who have worked in the West will find some similarities in it to the system of Mental Health Tribunals.

The provision in principle is undoubtedly progressive. After all we are talking about civil detention and curtailing patients’ most basic right, that is, liberty; and so, a review if asked for by the patient, should be possible. It will also take care of an occasional complaint that patients file with the police, who having no sensitization about situations associated with severe mental illness, are sometimes a source of considerable trouble to mental health professionals. The mainstream judicial system is equally incapable of handling such complaints because of lack of sensitivity and also being clogged with a huge pendendency of mainstream cases.

But are we, as a society ready for this large scale, countrywide post admission review in almost all cases of involuntary admissions? Because let us face it, all patients who are admitted involuntarily believe that they do not need admission; that is why, it is involuntary admission in the first place? A cynic would say that it would officialize, bureaucratize, and stigmatize mental illness even more. Terms like ‘feasibility’, ‘ground reality’, and ‘administrative bottle-necks blocking access’; reflexely come to mind.

More importantly, in a country where families bear the total burden of mental illness, and constitute by far the largest manpower resource in treating mental illness in an otherwise resource strapped country, such a step would put families and patients on the opposite side of the legal fence, as adversaries and push a wedge between the two. It is argued that it will sabotage goodwill and bonding, and make families less willing to be as proactive in the treatment of their wards as at present, which will be an unmitigated disaster. In an ideal world, the state should be in a position to support treatment and rehabilitation of the mentally ill, so that dependence on families is minimized, but that does not seem to be happening very soon. So the question arises; are we being hasty in trying to implement something which is essentially good and should ideally be an essential part of a liberal society but for which society is not ready? Can one ever be too early in implementing such a progressive reform, would be the counter question?

We also have to face the fact that all families are not benign and benevolent. The activists point towards the extreme example of some families having paid truckers to abandon their wards on isolated highways.[1] The psychiatrists should prepare themselves for the changed situation, where the Review Commission will visit the premises and in an occasional case send the patient home. On the positive side, this would be without prejudice to the psychiatrist.

Apart from the judicial review of involuntary admissions, the next path breaking legislative innovation in MHCB is the advance directives. This provision enables all persons who have had mental illness in the past and are currently in a competent state to write down their wishes on a plain paper on how they would like to be treated in the event of a future episode and how they would specifically not like to be treated. A typical advance directive may be that the individual will like to be treated with only medication and not electroconvulsive therapy (ECT) or he would like to be treated as an outpatient and not be admitted to a hospital. Some riders apply to the provision, for example, advance directives will have to be signed by a general practitioner to ensure decision making capacity at the time of writing, advance directives not being applicable during 72 h of “emergency treatment” (please see below) and all advance directives of “no treatment at all” having to be registered with the review commission.

Advance directives will be legally binding on the psychiatrist and can also be made by individuals who have no past history of mental illness. 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 the East, where collective goals and rights of family are culturally considered at par with individual rights.[2] On the pragmatic side, an untreated patient with excitement whom review commission has just found fit to go home or a paranoid patient who is hostile towards his wife and who could not be admitted and treated with ECT as in the past, because of his advance directive are theoretically free to go home, but may not have a home to go to, because families might close ranks. Sooner or later some of such patients are more likely than not to have a brush with the law and be sucked into the criminal justice system, beyond the jurisdiction of review commissions and advance directives.

Sarin and Sarin et al.,[3,4] have reviewed in detail the issue of advance directives in mental health settings and points out that advance directives have not worked as intended even in the West. Sarin also highlights the fact that while the concept may have a certain kind of popular appeal, it has no scientific evidence to back it. In a comprehensive meta-analysis as part of a Cochrane Review by Campbell and Kisely,[5] the study concluded “Currently, it is not possible to recommend advance treatment directives for people with severe mental illness due to the lack of supporting data.” The authors suggest that Advance Treatment Planning as an inclusively thought out clinical tool, may be more effective than advance directives as a unilateral legally binding measure. Thara and Rameshkumar[6] have reported that in an Indian setting it was possible for the patients to understand the concept and participate in a decision making process about planning treatment for a future eventuality.

That the tool when available can be turned around and used against the patient has not been commented upon, but it is not far-fetched to imagine a situation where it is in the material interest of a relative that the patient remains untreated or not effectively treated, particularly when property is an issue. Advance directive as a concept was first proposed by Thomas Szasz, the legendary antipsychiatry psychiatrist, as an olive branch to psychiatry. Some think that introducing advance directives in the new bill is a similar tactical olive branch to user-survivor-activists of the country who have been vociferously critical of the MHCB. If that was the purpose, it clearly has not worked. Davar[7] in a highly critical article about the mental health legislation in general and the new bill in particular, thinks that the proposed advanced directives are hobbled by the large number of conditions that have been inserted. Within the scope of the MHCB, according to her, it becomes impossible for persons found to have mental illness to express choice on their own.

One is then entitled to wonder why does the government wants to push a change which nobody asked for, has not worked elsewhere, has potential to upset certain long standing societal balances, and is not going to make any of the stakeholders happy.

The third important change in the new MHCB-2013 that the psychiatrists have been uniformly unhappy about is to do with ECT. The new bill proposes to ban unmodified ECT. The psychiatrists argue that the fuzzzy logic of dainty looks and politically correct perceptions of a medical treatment being more important, than its safety and benefits, will ultimately work against patients’ interests. Andrade et al.,[8] have published a well-argued position statement regarding unmodified ECT in the context of the proposed prohibition.

The bill also stipulates that ECT to minors will be given only after permission from the Review Commission on a case-to-case basis. Psychiatrists point out that there is no evidence that ECT has more side effects in minors than in older adults. It is also important to know that youngsters with catatonic features where ECT is the treatment of choice, often present as an emergency when there is no time to run around for permissions (God forbid, if it is a long weekend!).

Having said above, the new MHCB-2013 has some unprecedented measures aimed towards a sea change for the better, regarding access to treatment for the mentally ill across the country and particularly so for the underprivileged.

According to Section 18, “Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate government”. If a particular district has no public mental health services, the individual has a right to access private services and get refunded. The governments are mandated by the bill to provide essential psychotropic medications free of cost. The insurance companies will have to consider mental illness at par with physical illnesses, and will not be allowed to include mental illness as one of the exclusion criteria. These measures have been hailed as progressive and ‘pro-poor’ by Gopikumar.[7] Combine this binding legislative measure with the policy measure of a revamped and upgraded District Mental Health Program which plans to cover all the districts in a graded fashion and one has an ambitious blue print of a network of mental health services free of cost to those who cannot afford it. According to Patel,[9] “If the draft MHCB is passed by Parliament, it will act as a legal entitlement to ensure that the vast majority of people with mental health conditions have the right to receive care close to their homes, through the established district-level healthcare system”. In view of this Davar's assertion[7] that the draft MHCB is a “total sell-out to the burgeoning private asylum business” seems contrary to the facts.

The current draft legislation, for the first time in the history of mental health legislation in India defines mental illness, “Mental illness means a disorder of mood, thought, perception, orientation, and memory which causes significant distress to a person or impairs a person's behavior, judgment, and ability to recognize reality or impairs a person's ability to meet the demands of daily life and includes mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation”.

The inclusion of conditions associated with alcohol and drug abuse will certainly be liked by psychiatrists since it will sort out the prevailing confusion about character of services catering to these conditions, which in turn stemmed from a lack of definition of mental illness in the current Mental Health Act (MHA)-1987.

Another important provision cuts down formalities in the first 72 h in case of emergencies. Where there is danger to patient's health or the patient is violent or suicidal, any Registered Medical Practitioner (and above) can give any appropriate treatment (except ECT) in any setting including home or community for the first 72 h (120 h for the northeast). The emergency treatment can include transportation of a patient to a mental health facility. This again fills a lacuna overlooked by the architects of the previous law, which led to transporting a disturbed patient, except on a court order, illegal.

Another landmark provision which should have been unreservedly welcomed by the mental health professionals is the section on attempted suicide which neutralizes the penal provisions of section 309 of Indian Penal Code (IPC). Henceforth, persons who attempt suicide will be deemed to be under exceptional stress and will not attract prosecution.

Murthy[10] finds the positive features of the draft bill to be the “civil rights” language, and greater attention to procedural details, in the spirit of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

While the incumbent law, the MHA-1987 was conceived, piloted, and drafted by the Indian Psychiatric Society (IPS); the incoming law is an initiative of the Ministry of Health and Family Welfare, Government of India, with technical help from Indian Law Society, Pune. It must be said to the credit of the government that the 3 years long process, which involved consultations over several drafts with various stakeholders like carers, users, and activists has been an inclusive and transparent one, even if factitious at times. The professional bodies on the other hand have throughout been strangely aloof. Before the draft bill is passed by the parliament, it is likely to go to a parliamentary committee which will invite inputs once again from interested parties. The IPS is well advised to use this last window of opportunity to get involved even at this late stage and provide its valued inputs, before the provisions, which are going to change the way we practice, become law of the land.