Mental Healthcare Act 2017: Impact on addiction and addiction services

Abstract

The Mental Healthcare Act (MHCA) 2017 has been recently enacted with the objectives of providing mental health services and securing of rights of the persons with mental illness. Mental conditions due to abuse of alcohol or drugs have been included in the definition of mental illness. However, these conditions present some unique and difficult problems due to their very nature. Despite being an integral part of psychiatry, these disorders have traditionally been dealt with separately and even treated in dedicated facilities such as deaddiction centers and rehabilitation centers. In fact, some states have separate rules for treatment delivery of these disorders. Addiction also has major legal ramifications that are dealt with other acts such as the Narcotic Drugs and Psychotropic Substances Act (NDPSA). With this background, this article focuses on the issues of capacity and informed consent specific to addiction, addresses the admission issues in addiction including the issue of coerced treatment, and the treatment facilities, and deals with the some of the discordance and inconsistency between the NDPSA and the MHCA 2017. We believe that addiction-related provisions have not been addressed adequately in the MHCA 2017, and detailed procedures specific to addiction and its treatment will be required if the MHCA 2017 has to be implemented both in letter and in spirit.

INTRODUCTION

The MHCA 2017[1] or “the Act” is a landmark act. It is an act to provide mental healthcare and services for persons with mental illness; to protect, promote, and fulfill the rights of such persons during the delivery of mental healthcare and services; and for matters connected therewith or incidental thereto. Addiction to alcohol or drugs presents a unique problem in the MHCA 2017 due to the very nature of the disorders themselves and the associated legal issues. The scope of the article is restricted to MHCA 2017 and its impact on addiction and addiction-related services and will not touch on the other legal issues related to addiction, or the ethical issues involved in addiction or its treatment, including the supply of narcotic drugs and psychotropic substance for medical purposes. Although advance directives and nominated representatives in the context of addiction are a novel area and not much research has been done on them, we have not dealt with them since another article in this supplement is dedicated to discussing this issue.

ADDICTION AND MHCA 2017’S DEFINITION OF MENTAL ILLNESS

According to chapter 1(2) (s) of MHCA 2017,”mental illness means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.” Thus, the definition of mental illness in the MHCA 2017 includes mental conditions associated with the abuse of alcohol and drugs. The term “mental conditions” is not defined in Chapter 1 of the Act. However, as mentioned in Clause 3(1), mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease (ICD) of the World Health Organisation [WHO]) as may be notified by the Central Government.

Thus, the guiding document for the determination of mental Illness shall be either the ICD of the WHO or any such nationally or internationally accepted medical standard. Currently, the ICD-10[2] is in force. In the category F10–F19: mental and behavioral disorders due to psychoactive substance use, the various mental and behavioral disorders due to alcohol and other drug are included. These include acute intoxication, harmful use, dependence syndrome, withdrawal state, withdrawal state with delirium, psychotic disorder, amnesic syndrome, other mental and behavioral disorders, and unspecified mental and behavioral disorder. The word “abuse” itself has not been defined. It could mean nonjudicious use, excessive use, nonmedical use, hazardous use, harmful use, or illicit use or have any other meaning depending on the context. Although we cannot ascribe any particular meaning to the word abuse, we can assume, rightly or wrongly, any or all of the above meanings for our purpose.

Thus, a combined reading of the definition of mental illness in Section 2.(1)(s) together with the determination of mental illness in Section 3.(1) can be interpreted such that mental conditions associated with the abuse of alcohol and drugs includes Dependence, and other disorders and they are subsumed under the definition of mental illness in the Act and the provisions of the Act apply to them. This is extremely important to determine as these classes of patients are extremely vulnerable and open to stigma and discrimination, and their rights are frequently violated in the name of treatment.[3]

MENTAL HEALTH ESTABLISHMENTS AND DEADDICTION CENTERS

This is important from another perspective. The MHCA 2017 defines Mental Health Establishments (MHE) as: (p) ” MHE means any health establishment, including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy establishment, by whatever name called, either wholly or partly, meant for the care of persons with mental illness, established, owned, controlled or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person, where persons with mental illness are admitted and reside at, or kept in, for care, treatment, convalescence, and rehabilitation, either temporarily or otherwise; and includes any general hospital or general nursing home established or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organization or any other entity or person; but does not include a family residential place where a person with mental illness resides with his relatives or friends.”

Hence, if we consider that patients of alcohol and drug addiction come under the definition of mental illness, then each and every deaddiction center (DAC) or rehabilitation center where such patients are admitted for treatment must necessarily be registered under the MHCA 2017. This has important implications for deaddiction rules that have been promulgated by different states before the advent of the MHCA 2017. The status of these rules becomes questionable. We shall briefly discuss them later.

Further, under section 122 (1), the Central Authority may, by notification, make regulations, consistent with the provisions of this Act and the rules made thereunder, to carry out the provisions of this Act. These include the minimum standards of facilities and services under clause (a) of sub-section (4) of section 65 and (i) categories of different MHE under clause (a) of sub-section (5) of section 65. Curiously, the State Authority has been permitted to only specify minimum standards of facilities. Till now, DACs needed to comply with the other laws such as the Narcotic Drugs and Psychotropic Substances Act (NDPSA) and Rules, 1985[4] wherever applicable and Rights to persons with Disability Act (RPWD Act), 2016[5] during the provision of services. However, deaddiction rehabilitation centers’ registration under RPWD Act, 2016 has been specified under section 50. As per the RPWD Act 2016, an institution for the care of mentally ill persons, which holds a valid license under any Act for the time being in force, shall not be required to be registered under RPWD Act, 2016. Thus, the RPWD, 2016 provides for specific exemptions for MHEs that are registered under the MHCA 2017. It is suggested that such facilities register under the MHCA 2017 to avail this exemption clause.

CAPACITY AND ADDICTION

The MHCA 2017 determines that a person with mental illness is deemed to have capacity if such a person has the ability to–

1. Understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or

2. Appreciate any reasonably foreseeable consequence of a decision; or lack of a decision on the treatment or admission or personal assistance; or

3. communicate the decision under subclause (a) by means of speech, expression, gesture, or any other means.

It has been pointed out that the presence of all these components constitutes capacity and not the presence of any one of these since capacity is a very specific concept. Whether this is an oversight or intentional is debatable. However, in the context of addiction, we will restrict ourselves to capacity in making healthcare decisions only.

There is a debate among addiction specialists about the degree to which People Who Use Drugs (PWUD) can exert choice about seeking and using substances and about other behaviors related to addiction. Some, especially those who believe that addiction is a chronic and relapsing brain disease, think that seeking and using are solely or almost solely signs of a disease and that addicts have little choice about whether to seek and use. In contrast, there are also those who believe that seeking and using are constrained choices but considerably less constrained on average. There is a third group who believe that addiction is simply a consequence of the moral weakness of will and that addicts simply need to and can pull themselves up. These beliefs play up during the assessment of capacity.[6]

Charland[6] has argued that besides these, the personal and social circumstances; type and effects of various substances; the manner of metabolization; nature, duration, and severity of addiction; profiles of action; levels of intoxication or withdrawal; presence of concurrent psychiatric or medical conditions and complications; and degree of cognitive impairment among others, all have a bearing on determining capacity. Cognitive impairment due to long-term use of alcohol and drugs is an emerging area of neuroscientific research. Its clinical impact on judgment, decision-making capacity, and consent is yet to be characterized.

Decision-making capacity is derived from the doctrine of informed consent, which means that consent be informed, free and capable in order to be deemed valid. Accordingly, decisional capacity is divided onto four subcapacities: understanding, appreciation, reason, and choice. Some include an additional variable: value. However, the MHCA 2017 says that the presence of any one of the variables is enough to deem that a Persons with Mental Illness (PMI) has capacity; it may be difficult to reconcile both these definitions. Since capacity is specific to a particular person at a particular time in a particular context, applying it to addiction makes it quite restrictive and quite difficult to assess. However, worldwide, the PWUD are treated only with consent unless the capacity to consent for treatment is impaired.

APPLYING INFORMED CONSENT TO ADDICTION

Carter and Hall[7] suggested that for informed consent to be proper, the individual (1) must have the capacity to understand the treatment and communicate their wishes, or have cognitive capacity; (2) should be free to make decisions (i.e., internally or externally uncoerced), or have volitional capacity; and (3) should be informed of the risks and benefits of treatment as well as those of other treatment options; and (4) must have equal access to all effective forms of treatment, where treatment is appropriately operated and resourced. Accordingly, they proposed that first, when PWUD enter treatment, they are often in a desperate state. They may be willing to agree to almost anything to enter treatment. For these reasons, individuals in this situation should not be asked to provide detailed consent to a treatment program, apart from indicating their acceptance of the immediate offer of assistance. Second, when choosing what sort of treatment to enter, it is important that the client understands the likely effectiveness of the treatment, the benefits and risks of completing treatment, and the requirements of the program. Third, informed consent to a detailed treatment contract requires formal communication of the rules and regulations of treatment and an individual's obligations.

ADMISSION, TREATMENT, AND DISCHARGE

The issues of admission, treatment, and discharge are dealt with under the sections 85–99. The MHCA 2017 has provisions for “independent” admission and admission for PMI with “high support needs.” Thus, as highlighted earlier, patients of alcohol and drug dependence who have the capacity and give consent can be admitted as voluntary patients. MHCA 2017 states that independent patients who request discharge should be discharged immediately although there is a clause for a holding period. Once the withdrawal symptoms subside and craving persists, most patients are seen to request discharge. If we strictly follow MHCA, it is quite possible that for most patients, we will be able to do only the detoxification part of addiction management and not the more important part of relapse prevention. The individual with high support needs can be admitted in an MHE if he or she:

• (a)
  • i.
    Has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself/herself; or
  • ii.
    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; or
  • iii.
    Has recently shown or is showing an inability to care for himself to a degree that places the individual at risk of harm to himself/herself;
• (b)The psychiatrist or the mental health professionals or the medical practitioner, as the case may be, certify, after taking into account an advance directive, if any, that admission to the MHE is the least restrictive care option possible in the circumstances; and
• (c)The person is ineligible to receive care and treatment as an independent patient because the person is unable to make mental healthcare and treatment decisions independently and needs very high support from his/her nominated representative in making decisions.

A bare reading of the above provisions shows that these are based on maintaining the balance between the principles of public health versus human rights and on the principle of harm. In the context of addiction, these are tenuous and debatable and require a formal evaluation of both these principles. A detailed review is beyond the scope of this article; however, it is important to highlight the following:

1. How does one balance the public health perspective and the person's human rights when addiction related issues are involved?

2. What is “harm” in the context of addiction? Can a person, for example, repeatedly injecting heroin with a used or shared syringe, or a person driving under the influence of alcohol, be admitted since he/she is engaging in “harmful behaviour?”

3. Can a person with dependence who lacks insight and motivation be subjected to involuntary hospitalization during the state of intoxication or withdrawal or otherwise, or during periods of abstinence if there is a high probability of relapse?

4. How does one assess capacity in a person dependent on alcohol and drugs, and at what stage? How often does one do it? Craving is an integral component of dependence and can affect treatment decisions

5. How does one factor the fundamental right of “right to refuse treatment?”

6. What about legally coerced treatment in an otherwise competent patient?

7. Most patients of alcohol and drug dependence are usually kept in a custodial environment. In this context, the MHCA 2017 calls for a “least restrictive care option.” Are custodial settings “least restrictive?”

8. Other practical problems in section 89 include the problem of readmission within 7 days after discharge. As per section 89 (15), “In a case, a person with the mental illness admitted under this section has been discharged, such person shall not be readmitted under this section within a period of 7 days from the date of his discharge.” So, if a patient brought in intoxication or delirium tremens is admitted under section 89, and discharged within days once he improved, regained capacity and refused further treatment; if the person is brought back within a week in another severe intoxication, it is possible that we would not be able to admit him under that section

9. There are many centers that keep patients for a “course” of 3 months up to even a year, and in all such cases, section 90 and permissions from Mental Health Review Board interventions will be needed.

These are some of the unanswered questions as far as the MHCA 2017 as related to addiction is concerned. Admission of persons with mental illness including mental conditions associated with the abuse of Alcohol and drugs, to any MHE needs to comply with sections of MHCA, 2017. Any deprivation of liberty of persons with substance abuse without complying the section 89 or 90 of the MHCA, 2017 will be dealt under the law.

COERCED TREATMENT IN ADDICTION

It may be useful to briefly touch on the difficult issue of coerced treatment. There is sufficient proof that treatment works; that individuals benefit from treatment; and that the longer they remain in treatment, the better off they will be. A persistent and recurring problem in treating addiction is getting individuals with addiction into effective treatments and keeping them there long enough to benefit. The reluctance of many individuals with addiction to enter treatment and the sociopolitical dimensions of addiction itself have led to the use of various forms of coerced treatment.[8] It is suggested that any proposals in favor of mandatory treatment policies and programs must provide reasonable evidence that: (1) people experiencing addictions are incapable of making treatment decisions, (2) treatment provided under mandates is effective, (3) there are no iatrogenic effects of mandatory treatment, and (4) negative effects of not providing mandatory treatment are likely. Unless clinical and neuroscience research in addiction can show sufficiently strong evidentiary basis to satisfy these four criteria, there appears to be no reasonable justification at present for overriding or suspending potential clients’ right to informed consent in the provision of addiction treatment.[8] This is apparently also the direction taken by the MHCA 2017. However, treatment as an alternative to criminal justice sanctions is specifically encouraged in the international drug control conventions, and it is more effective than imprisonment in encouraging recovery from drug dependence and reducing drug-related crime. It can be provided in ways that do not violate the rights of the patients, provided that the decision to refuse treatment remains in the hands of the drug user and the patient's autonomy and human rights are respected.[9] In what situations and how coerced treatment can be factored in the MHCA 2017 while preserving the rights of the persons who use drugs or alcohol remains to be seen.

THE MHCA 2017 AND THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

The NDPSA is another special Act enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, in effect dealing with trafficking issues and illicit use of the narcotic drugs and psychotropic substances. Drug users, by the very nature of their problem, will possess variable quantities of illicit drugs depending on different factors. This possession itself without license or authorization is illegal and is a criminal offense. In fact, section 27 of the NDPSA states: punishment for consumption of any narcotic drug or psychotropic substance – “Whoever, consumes any narcotic drug or psychotropic substance shall be punishable.” The punishment extends up to 1 year with or without a fine depending on the substance and the circumstances. Further, section 39 of the NDPSA gives power to the court to release certain offenders on probation by entering into a bond and agreeing for detoxification or deaddiction. There are various problems with this provision, and they are in direct conflict with the MHCA 2017:

1. The NDPSA treats every illicit possession (even for personal use) as a criminal act and thus mandates sentencing depending on the quantity possessed; while the MHCA 2017 provides for treatment of all persons with mental illness, including drug and alcohol dependence

2. The NDPSA puts an undue burden on the PWUD to abstain by undergoing deaddiction or detoxification. It focuses on the abstinence-based model and even calls for punishment if the “addict” fails to remain abstinent. It, thus, does not take into account the chronic relapsing nature of drug addiction

3. By not providing for evidence-based treatments such as opioid substitution therapy or other harm reduction treatments, the questions of violation of certain rights of the mentally ill persons arise, including the right to health and the right to best possible treatment, among others

4. The NDPSA provides for treatment in a hospital or center only and excludes any other mode of treatment that may be more suitable for the persons who use drugs.

MHCA 2017 AND STATE DEADDICTION RULES

Many states have enacted deaddiction rules as part of demand reduction. Many of these have been enacted under sections 71 and 78 of the NDPSA. These are mainly related to the power of the government to establish centers and the supply of narcotic drugs and psychotropic substances. The DAC and rehabilitation centers running in these states need to get a license from the State Governments to run them. However, the section 120 of the MHCA 2017 specifically mentions that “The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” If, as elaborated earlier, Persons with Mental Illness as defined in the MHCA 2017 includes alcohol and drug dependence, then it is conceivable that according to section 120, State Rules become redundant (since the MHCA 2017 has an overriding effect) and all DAC and rehabilitation centers need to come under the ambit of MHCA 2017 only and need to register as MHEs and adhere to the minimum standards as prescribed by Rules made under the Act. Simply put, we are proposing that multiple registrations and licensing can be dispensed with by simply registering under the MHCA 2017. This includes registrations under the RPWD 2016 and various State Deaddiction Rules. Besides this, it only seems logical that registration under different authorities needs to be avoided not only to minimize administrative and regulatory hurdles, but also to streamline treatment, and the MHCA 2017 provides for the setting up of a Central and State Authority specifically for the purposes of the Act. It is pertinent to mention here that only the Central Authority has the power to make regulations under section 122 which includes (e) the minimum standards of facilities and services under clause (a) of sub-section (4) of section 65; and (i) categories of different MHE under clause (a) of sub-section (5) of section 65. The State Authority does not have the power to specify categories of different MHEs. It only has the power to specify the minimum quality standards of mental health services under sub-section (9) of section 18 as provided for under section 123 of the MHCA 2017. A particularly vexatious issue that may be troublesome is related to the use of narcotic drugs and psychotropic substances. If all standalone deaddiction and rehabilitation centers register only as MHEs under the MHCA 2017 and not additionally as DAC under any notified State Rules, then the supply of narcotic drugs and psychotropic substances for medical and scientific purposes may raise some practical problems including regulatory issues.

CONCLUSIONS

There is little doubt that the MHCA 2017 is a landmark act as far as the mental health services and protection of rights are concerned. However, we feel that specific issues related to drug and alcohol addiction have not been dealt with adequately. There are gray areas which need further elaboration or clarity. The applicability of the MHCA 2017 to addiction hinges on whether all patients of drug and alcohol abuse and dependence (with or without cooccurring and comorbid disorders) come under the definition of mentally ill persons as defined under the MHCA 2017. We believe they do then other issues such as capacity assessment and admission into MHEs, minimum standards, and different categories of such MHEs come into play. The issue of DAC and rehabilitation centers, their registration, custodial care, and the supply of medications and drugs to patients, may nevertheless create further issues during the process of implementation of the provisions. It is quite possible that we may have to rely on case laws for further clarity.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.