Liabilities and penalties under Mental Healthcare Act 2017

Abstract

Introduction:

Mental Healthcare Act (MHCA) 2017 is an act passed to regulate and provide mental health care and services. The act considers psychiatrists as one of the main mental health providers. Liabilities are prescribed under various chapters of MHCA 2017. It is imperative for practitioners to be completely aware of and follow the rules as per MHCA 2017, now that the rules are already framed.

Materials and Methods:

A thorough review of MHCA 2017, Central Mental Health Rules, and State Mental Health Rules 2018 was done. In addition, related scientific articles were accessed in PubMed and Google Scholar using keywords such as mental health legislation, law, and mental health. Relevant articles were reviewed to arrive at suggestions.

Observations:

Important liabilities are around the domains of registration of professionals and institutions, maintenance of records, promoting the rights of the persons with mental illness during treatment, and following the provisions of MHCA 2017 during admission and discharge. Punishment for contravention of provisions of the Act or rules or regulations made thereunder is clear and stringent and may vary from fine to imprisonment.

Suggestions:

Mental Health Professionals should understand the provisions of MHCA 2017 along with the rules and regulations made under this act. Please maintain basic medical records of all outpatients and inpatients and basic report of psychological assessments and release it upon request by the patient or nominated representative.

“These unhappy persons (mentally ill) are outcasts from all social and domestic affection of private life…and have no refuge, but in the laws”

– Lord Ashley, 1853

INTRODUCTION

Mental Healthcare Act (MHCA) was passed in India in 2017. MHCA 2017 is an act passed to regulate and provide mental health care and services.[1] State and central authority rules have been already framed and released by the Government of India, and the act has come into force from May 2018.[2] Henceforth, it has become mandatory for all mental health practitioners to practice according to the new law. The MHCA 2017 in itself is human rights based, aimed to empower persons with mental illnesses with several facilities as a matter of right and dignity. A lot of liabilities are prescribed under various chapters of MHCA 2017. It is imperative for practitioners to be completely aware of and follow the rules as per MHCA 2017, now that the rules are already framed.

REVIEW OF LITERATURE

MHCA 2017 is hailed as a revolutionary legislation as well as a hindrance to appropriate patient care. The act considers psychiatrists as one of the main mental health providers.[3,4] Hence, there has also been an uproar of criticism about the new law. Narayan and Shekhar,[5] in their critical appraisal, report that the act has measures aimed toward a sea of change for the better regarding access to treatment for the mentally ill across the country and particularly for the underprivileged. It is important to ensure that treatment of nonpsychotic psychiatric patients should not be hindered by stigma. They note that families are a great asset in the management of psychiatric patients.[5] Duffy and Kelly reviewed the concordance of MHCA 2017 with World Health Organization (WHO) legislation on mental health legislation. They concluded that, in theory, MHCA 2017 is a highly progressive piece of legislation, especially when compared to legislation in other jurisdictions subjected to similar analysis. Along with the Rights of Persons with Disabilities Act 2016, it will bring Indian law closely in line with the WHO-Resource Book.[6]

MATERIALS AND METHODS

A thorough review of MHCA 2017 was done. Mental Healthcare (Central Mental Health Authority and Mental Health Review Board) Rules 2018, Mental Healthcare (State Mental Health Authority) Rules 2018, and Mental Healthcare (Rights of persons with Mental Illness) Rules 2018, published by the Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi, dated May 29, 2018, were reviewed. Furthermore, related scientific articles were accessed through PubMed and Google Scholar using keywords such as mental health legislation, law, and mental health. Relevant articles were reviewed to arrive at suggestions.

LIABILITIES AS PER THE ACT

As per MHCA 2017, mental health professionals (MHPs) can be held liable under various sections. Here, we discuss them under three main broad headings, i.e., liabilities related to:

1. Registration and records maintenance

2. Promoting the Rights of Persons with Mental Illness

3. Treatment, admission, and discharge.

Registration and records maintenance

Registration of mental health professionals

Psychiatrists’ names have to be entered in the state medical register as a medical practitioner, to practice in the particular state. It is not prescribed to have separate registration with the state mental health authority (SMHA).

Other MHPs, namely clinical psychologists, mental health nurses, and psychiatric social workers in the state, are required to register with the concerned SMHA. Section 2(y) says that other professionals (nonallopathic) having a postgraduate degree including Ayurveda in Mano Vigyan Avum Manas Roga or Homoeopathy in Psychiatry or Unani in Moalijat (Nafasiyatt) or Siddha in Sirappu Maruthuvam are also counted here. Section 55 (d) says that only those whose names are published by the authority are permitted to practice in the state.

Registration of mental health establishments

Every mental health establishment (MHE) must fulfill minimum norms as specified by the SMHA (Section 65.4)

1. The minimum standards of facilities and services

2. The minimum qualifications for the personnel engaged in such establishment

3. Provisions for maintenance of records and reporting.

These minimum norms will be published by the concerned SMHA in their state rules. Currently, because the minimum norms have not been published, the provisional registration, which is valid for 12 months, will be issued after application and payment of the prescribed fee. This requires to be renewed before 1 month of expiry (Section 66.10). If failed to do so, then the establishment is liable to pay a renewal fee of ₹ 20,000 for new provisional registration.[2]

Maintenance of records

State Mental Health Rules 2018 has mandated the following documents to be maintained and provided on demand.[2]

1. Basic outpatient (OP) record

2. Basic inpatient (IP) record

3. Basic psychological assessment record

4. Basic psychotherapy record.

The format in which all basic minimum records are to be maintained in all mental health facilities can be accessed from draft rules.[2] Whenever patient/nominated representative (NR) request for information related to diagnosis/treatment, the above documents must be released in the prescribed format.

Suggestions for other registers that should be maintained at the MHE:

• An inventory of all physical facilities available in the institution, such as buildings

• An establishment register showing details about various categories of personnel, including their qualification, experience, and service conditions

• Census register

• Treatment registers.

Display of information

Section 72 says that an MHE must display information in a conspicuous area regarding contact details, including address and telephone numbers, of the concerned board. Furthermore, it has to provide the person with necessary forms to apply to the board and give free access to make telephone calls to the board to apply for a review of the admission.

Rights of Persons with Mental Illness (Chapter 5)

The Act quotes a few specific rights of patients that need to be upheld during services [Table 1]. All of these need to be thoroughly understood and essentially practiced during the delivery of care. Human rights that are given major importance include the right to access mental health care and treatment without discrimination and good quality mental health services at affordable prices. The facilities include acute care and OP and IP treatment. The onus is upon government, MHPs, and MHEs to ensure that the rights are not violated.

Table 1.

Depicting the Rights of Persons with Mental Illness

Rights of Persons with Mental Illness under MHCA 2017
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 the Release of Information in Respect of Mental Illness
Right to Access Medical Records
Right to Personal Contacts and Communication
Right to Legal Aid
Right to Make Complaints about Deficiencies in the Provision of Services

MHCA – Mental Healthcare Act

Note:

• Without the consent of the patient or his/her NR, information cannot be usually shared. If the patient has violent thoughts or plans about another person, Section 23 (c) allows the medical officer to alert the person at risk. Only that information which is necessary for the protection of the person at risk can be shared. The MHP can discuss with the patient and make a list of people with whom the information can be shared, before starting treatment, to prevent penalty for breaking the confidentiality clause

• The Act allows the release of necessary patient-related information in the interest of public safety (Section 23 2c, (g)). This may be necessary if an absconded patient poses a serious risk to the public. However, Section 24(1) prohibits the release of a photograph or any other patient-related information to the media without the consent of the patient. Thus, MHEs would need to seek consent from the patient or NR beforehand to ensure that little time is lost in issuing a safety alert in such specific situations

• Right to Access Medical Records – Section 25 – when in doubt whether to disclose information or not, the clinician may approach the Mental Health Review Board (MHRB), which will decide after listening to the applicant and about further proceedings

• Right to Legal Aid – Section 27 – The best practice would be to put up a chart regarding rights and free legal aid at working places, both OP and IP settings.

Treatment, admission, and discharge

Advance directive

Medical officer/psychiatrist in charge must follow a valid advance directive (AD) under Section 10. The act has also provided the MHRB the power to review, alter, modify, or cancel AD under Section 11. The MHP can apply to the MHRB regarding the same, which will then listen to both parties and arrive at a decision. Under Sections 13 and 14, MHCA 2017 clearly states that MHP is not liable for unforeseen consequences of following AD and the duty of making the AD available to the MHP lies upon patient/NR.

Informed consent

When a person is deemed to have capacity, he/she is eligible to provide consent. In cases of incapacity, NR and AD have to be considered for the consent for admission and various modalities of treatment.

Treatment

Least restrictive care: Section 2(j)

A person should only be detained in a mental health facility if that is the least restrictive environment consistent with safe and effective care and treatment. “Least restrictive alternative” or “least restrictive environment” or “less restrictive option” means offering an option for treatment or a setting for treatment which

1. Meets the person's treatment needs, and

2. Imposes the least restriction on the person's rights.

Determination of mental illness (Section 3)

Diagnosis must always be done based on national/international guidelines such as the International Classification of Diseases (ICD). It would be good practice to make an ICD diagnosis and coding it accordingly to all patients, in the OP/IP records.

Assessment of mental capacity

Every person is considered to possess the capacity to make decisions regarding his/her mental health care unless proved otherwise. When he/she can understand the information that is necessary to make a decision on the treatment or admission, can appreciate consequences of a decision or lack of decision on the treatment, and can communicate the decision, he/she is deemed to have the capacity. Documentation regarding the assessment of capacity is crucial for using other provisions under the act, like AD and NR.

The central government is supposed to form a committee to frame a standard format for the assessment of capacity, which then can be applied to assess and establish capacity.

Admission

According to Section 86 of MHCA 2017, any person who considers himself/herself to be mentally ill can request for admission in MHE under the section. The MHP may admit such person if he/she feels the illness is severe and the patient will benefit from admission. According to the act, the presence of NR/caregiver is not mandatory during the IP course of an independent patient.

According section 87, a minor may be admitted only after following procedures. The NR of the child has to apply to medical officer incharge of MHE. Two psychiatrists, or one psychiatrist and one MHP, or one psychiatrist and one medical practitioner should independently examine the minor and conclude about need for admission. The MHRB must be informed within 72 h of such an admission. A minor must be admitted in separate accommodation from adults, with consent taken from NR. If admission lasts more than 30 days, it should be again informed to the board. In the case of minor girls, where the NR is male, he should appoint a female attendant. Only a female attendant can stay with the minor girl in the MHE during her IP stay.

Supported admission (Sections 89 and 90)

The MHRB must be informed within 7 days of a supported admission (3 days in the case of a minor or woman). The admitted person, his/her NR, or an appropriate organization may appeal this decision. If a Section 89 admission has to continue beyond its allowed maximum duration of 30 days and ongoing supported admission is required, this can be done under Section 90. At this stage, the MHRB should be informed, and they must review the admission within 21 days and either permit the admission or order discharge of the individual. These reviews of a supported admission continue at a maximum frequency of 180 days. Should an individual no longer fulfill the criteria for a supported admission, the supported admission must be terminated.

Suggestions:

1. Document the need for IP treatment and the incapacity of the patient

2. Treat and review regularly to convert into independent admission

3. Get informed consent of the patient with the support of his/her NR (Subsection 6 of Section 89); if that person requires nearly 100% support from his/her NR, the NR may temporarily consent to the treatment (Subsection 7 of Section 89).

Emergency treatment

Any medical treatment, including treatment for mental illness, may be provided by any registered medical practitioner to a person with mental illness either at a health establishment or in the community, subject to the informed consent of the NR, where he/she is available, and where it is immediately necessary to prevent:

1. Death or irreversible harm to the health of the person; or

2. The person inflicting serious harm to himself/herself or others; or

3. The person is causing serious damage to the property belonging to himself/herself or to others where such behavior is believed to flow directly from the person's mental illness.

Note:

1. Patients who are already admitted may not be covered under this provision

2. If the patient is directly brought to an MHE for psychiatric assessment, from a community setting, provisions of Section 94 are not applicable. (Subsection 4 of Section 94 says, emergency treatment shall be limited to 72 h or till the person has been assessed at a MHE, whichever is earlier).

Discharge of independent patients (Section 88)

Any person admitted under Section 86 as an independent patient should be immediately discharged on request. The discharge may be delayed for 24 h to allow assessment necessary for admission under Section 89 if the mental health professional thinks that he/she is unable to understand the nature and purpose of the decisions and requires substantial or very high support from the NR.

If patient has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself/herself; has recently behaved or is behaving violently toward another person or has caused or is causing another person to fear bodily harm from him/her; has recently shown or is showing an inability to care for himself/herself to a degree that places the individual at risk of harm to himself/herself, such person can be either admitted as a supported patient under Section 89 or discharged from the establishment within 24 h or on completion of assessments for admission as a supported patient under Section 89, whichever is earlier.

Other important sections related to treatment

Prohibited procedures (Section 95)

1. Electroconvulsive therapy (ECT) without muscle relaxants and anesthesia

2. ECT for minors. In cases where ECT is necessary, consent by guardian and approval by the board should be received beforehand.

   • Note: ECT cannot be given if a patient with capacity refuses it. The consent of the NR is required only if the patient has no capacity. Patients can refuse ECT with a valid AD. ECT cannot be administered to such patients when they lose capacity even if the NR consents to it. The medical officer would need to approach the MHRB to review the AD.

Psychosurgery (Section 96)

According to WHO-Resource Book, psychosurgery is under prohibited procedures. MHCA 2017 still allows the procedure if and when required, but needs written informed consent from the patient and approval from the board before the surgery.

Physical restraint (Section 97)

This may be used when it is the only means to prevent harm, after authorization by a psychiatrist for the minimum period possible. It should never be used as a punishment

• Note: Seclusion is prohibited. Seclusion for short periods could be useful in deescalating a potentially aggressive situation. Low-stimulus areas could be particularly useful. However, this could also be interpreted as seclusion.

PENALTIES

Penalties for establishing or maintaining mental health establishment in the contravention of provisions of this Act

The MHE without registration shall be liable to a penalty which may extend to ₹ 50,000 for the first contravention, up to ₹ 2 lakh for a second contravention, and up to ₹ 5 lakh for every subsequent contravention.

Punishment for contravention of provisions of the Act or rules or regulations made thereunder

For initial contravention, imprisonment for a term up to 6 months or fine up to ₹ 10,000 or both. For any subsequent contravention, imprisonment up to 2 years or fine up to ₹ 5 lakh or both.

Offenses by companies

Where a company has committed an offense under this Act, every person who, at the time the offense was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

SUGGESTIONS

1. Always strictly follow the provisions of MHCA 2017, rules, and regulations during admissions and delivery of care

2. All patients should be examined in detail before admission and documentation needs to be done

3. As a part of the emergency treatment, any medical and psychiatric interventions (except ECT) may be carried out by a medical practitioner in community/health establishment during the initial 72 h or until transported to a MHE, whichever is earlier

4. Preventing lawsuit

   • Refrain from unprofessional behavior
   • Refer patients who are out of your area of competence
   • Maintain documents
   • Establish a treatment contract and acknowledge limitations
   • Anticipate forensically significant events and write records with clarity.

5. Always employ/work with MHPs (clinical psychologists, Section 2 (g); psychiatric social workers, Section 2(x); and mental health nurses, Section 2 (q), who are registered with the SMHA (under Sec 2(r)) in a registered MHE

6. Maintenance of records and proper documentation – Basic OP, IP, psychological assessment, and psychotherapy records must be maintained in prescribed format. Release these documents upon request by the patient and NR

7. Institutions which are catering for permanent/temporary residents (such as nongovernmental organizations/ashrams/old-age homes) must be registered as MHE to SMHA, for a psychiatrist to visit and treat inmates. If not, then offering treatment would be violating MHCA 2017 and you may be fined. Charity may turn out to be expensive. However, the psychiatrist can administer care at OP camps.

Note: Procedures are summarized in Flowchart 1.

Flowchart 1.

Protocols to be followed to prevent penalties under MHCA 2017

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.