Civil commitment of persons with mental illness: Comparison of the Mental Healthcare Act 2017 with corresponding legislations of the USA

Abstract

The policies and procedures for the treatment of psychiatric patients are within the boundaries of ethical and legal principles of medical practice, with equal importance to human rights and values. Both in India and the USA, the Mental Health Legislation/Act guides psychiatrists in performing their duty toward the patients within this framework. The objective of this review was to compare the Indian Mental Healthcare Act (MHCA) of 2017 with mental health legislations currently existing in the USA, taking New York State Mental Hygiene Law as an example. The evolution of the American mental health legislation over the years was reviewed, including the aspects of involuntary admissions and segregating the psychiatric patients from the community. Over the years, the assessment and treatment approaches inclined toward patient's “rights and liberty” such as assessment of competency to make decisions, the involvement of family members and mandatory requirement of procedure to be followed during admission, inpatient care, and discharge. The current American mental health system is compared and contrasted with MHCA 2017. In the context of existing American mental health legislation and practical issues, this review tried to anticipate possible shortcomings or difficulties that can occur during the implementation of MHCA 2017. Several differences and similarities exist between the two legislations. Added to this, in America itself, there are smaller variations in mental health legislation in each state, albeit the general principles remain the same. Whether this is going to be the case in India once the individual states form the rules is worth a consideration.

INTRODUCTION

Psychiatric illness affects the fundamental components of human experience, including perception and thinking, which limits safer functioning in the society and hence warrants clinical intervention. Providing such treatment in psychiatry is not an easy task due to diminished insight and judgment and the subsequent refusal of psychiatric treatment or hospitalization by the patients. Psychiatric hospitalization is the initial crucial step in the treatment process, which encompasses the involuntary hospitalization or civil commitment. The legal principle involved in civil commitment is that the Government has a responsibility (”parens patriae,” Latin word meaning “parent of his or her country”) to intervene on behalf of citizens who cannot act in their own best interest and that the state should protect the interests of its citizens (”police powers”) for the benefit of the society at large, even if it may come at the cost of restricting the liberties of certain individuals.[1]

HISTORY OF MENTAL HEALTH LEGISLATION IN THE USA

In the USA, mental health legislation incorporates the ethical principles of medical practice, including (1) non-maleficence (it means “do not harm” – such as using the least restrictive method), (2) autonomy (providing choices about the treatment to accept or reject it), and (3) beneficence (providing treatment for the benefit of the patient).[2] Psychiatrists are expected to perform their duty toward patients within this framework of mental health legislation in addition to adhering to the rules and regulations that apply to any medical practitioner. Although there are mental health legislations by the Federal Government, each state makes additional legislations to provide additional support to the mental health needs of their territory. In this review, we focus on mental health legislations of New York State in addition to federal statutes governing mental health care in the USA.

The first psychiatric hospital in the USA was established in 1773. By 1824, four privately funded psychiatric asylums were formed.[3] Dorothea Dix, an activist, successfully persuaded the US government in 1840 to build 32 hospitals to provide treatment in improved conditions with modesty and dignity.[4] All patients with mental illness were considered as lacking capacity to make decisions, and all admissions to psychiatric hospitals were involuntary.[5] In 1909, Clifford Beers founded Mental Health America to help the lives of the psychiatric patients.[6]

In 1946, President Harry Truman signed the National Mental Health Act, which created the National Institute of Mental Health (NIMH) and allocated Government funds toward research into the causes of and treatments for mental illness. NIMH in 1951 published a landmark “Draft Act Governing Hospitalization of the Mentally Ill”, which proposed streamlining commitment procedures, including a certification process that was entirely in medical hands.[7] Psychiatric institutes were under-funded, the living conditions were poor, and there were serious concerns of human rights violation. The US Government created Medicare and Medicaid in 1960, and as a result, the society assumed a shared responsibility to pay for the care of people suffering from mental disorders. With the emergence of antipsychotic treatment in 1950 and the Mental Health Study Act 1955, mental health treatment became available to every American citizen.

Community care

President John F Kennedy under the US Government took a bold approach for the treatment of psychiatric patients in the community and signed the Community Mental Health Centers Act of 1963.[8] Stringent criteria were passed so that patients with a serious threat to self or others were treated in inpatient settings. Gradually, deinstitutionalization took place by the year 2000, with the number of state psychiatric hospital beds reduced and a community-based mental health care developed.[9] Mental Health in Schools Act of 2015 was passed after the amendment of Public Health Service Act, to help providing comprehensive school mental health programs that are culturally and linguistically appropriate, trauma-informed, and age-appropriate (Health Reform Bill H.R.1211, 2015). Similarly, Assisted Outpatient Treatment (AOT) programs of individual states (e.g., New York State's Kendra's law) provide treatment for individuals with mental illness in the community setting.[10,11] AOT provides services such as case management services, medication, drug testing, educational and vocational training, group therapy, substance abuse treatment and counseling, and supervision of living arrangements. Mental Health Parity Act, passed in 1986,[12] brought insurance benefits for mental illness, equal to those for medical and surgical treatments.

CIVIL COMMITMENT IN THE USA

In 1964, US legislature, Washington DC instituted a standard for civil commitment, which established that a person must be determined to have a mental illness before he or she could be hospitalized against his or her will. Second, the person had to pose an imminent threat to the safety of himself or herself or others or be shown to be “gravely disabled,” meaning that he or she could not care for self for basic survival.[1] The general structure of the legislation, rights, and privileges of the patient in each state of the USA remains the same, but a state-wise extension of the legislation occurs based on the local needs. However, each state's civil commitment criteria still reflect standards set forth in an important Supreme Court case – O’Connor V. Donaldson – of 1975.[13] This landmark case laid out criteria that person with mental illness (PMI) must either present a known risk of harm to himself or herself or others, be in such a state that he or she would be “hopeless to avoid the hazards of freedom” and in need of psychiatric treatment.[13] The patients admitted directly to hospitals against their wishes which could only be done for a short period, varied by state, from 2 days to approximately 2 weeks.[14] After that time, in New York State patients were entitled to a Hearing before the Court, with a guaranteed legal representative from the Mental Hygiene Legal Service to ascertain the continuity of involuntary civil commitment.[14]

LEGISLATION IN INDIA

Since the enactment of the Indian Lunacy Act of 1912, the mental asylums in India were renamed as mental hospitals, with regulatory monitoring and supervision by a central authority. This transformation was the main guiding direction for the mental health care in India. The Lunacy Act clearly defined the procedure involved in the admission to a psychiatric hospital, including a provision for voluntary or independent admission.[15] The initial focus seemed to be in isolating the patient from the society, a practice similar to that of the United States during the initial half of the 20^th century. The first significant transformation took place with the enactment of Mental Health Act 1987, where human rights and privileges were given equal importance. Nonetheless, support and involvement of the family were the keys to inpatient care and treatment.

In the case of MHCA 2017, the main foundation is based on the patient's rights and autonomy in decision-making. The act implies now that the clinicians will have to offer the available treatment options. The MHCA clearly regulates the detention to psychiatric hospitals and emphasizes the approach of least restrictive community care. The act empowers the detained patients, giving a willful choice to appeal against their detention and treatment. The Mental Health Review Board (MHRB) evaluates such appeals and has powers to discharge the person from the detention. MHRB ensures that the procedure for admission is followed as per the legal framework.[16] Unlike in the USA, where the appeal procedure involves a hearing before the court with a guaranteed legal representative, in India, the MHRB will do the review and make the decision. The process that will be adopted to implement such reviews is yet to be framed.

ADMISSION AND TREATMENT UNDER MENTAL HEALTH LEGISLATION

In New York State, “Article 9” of Mental Hygiene Law contains the provision for treatment and hospitalization of the psychiatric patients.[17] When a patient is admitted to a hospital for psychiatric treatment, he or she will receive a notice that gives information on the admission status and states the rights to receive assistance from the Mental Hygiene Legal Service. In MHCA 2017, the provisions of admission and treatment have been described under Chapter XII from section 85 to section 98.[18]

Informal (§9.15) admission

If a person has a mental illness for which care and treatment in a mental hospital is appropriate and does not pose a substantial threat of harm to self or others, he/she is suitable for admission on an informal basis under section 9.15. The patient gets admitted without a formal or written application. The patient is free to leave at any time admitted under this section.[11]

Voluntary (§9.13) admission

This occurs when someone who is 16 or older applies in writing for admission. If the person is under 18, the parent or legal guardian or next of kin may apply on the person's behalf. A qualified physician should evaluate and confirm that the patient meets such standards to be admitted to a psychiatric hospital, voluntarily. If the patient decides to get discharged from the hospital, he/she should notify the hospital in writing 72 hrs before the intended time of discharge. If he or she is under 18, the person may also request discharge through the individual who applied for the patient's admission, by another person of an equal or closer relationship, or by the Mental Hygiene Legal Service.[11]

In India, the voluntary admission is included under section 86 of MHCA 2017, with an age limit set at 18. If a person admitted under this section requests discharge, he/she can be detained, against wish, for up to 24 hrs, as per section 88. This vital period provides an opportunity for the hospital to arrange a psychiatrist to evaluate this person for any risk to self or others due to the mental illness. Subsequently, if the necessary criteria are met, the admission can be converted to section 89 (involuntary detention) or else the person will have to be discharged.[18] There seems to be no equivalent to informal (§9.15) admission. MHCA 2017 recognizes the importance of the safety of the patients and the general public. In general, in most of the psychiatric units in India, the family members can stay with the patient if the units are not locked and the patient is voluntary.

Involuntary admission

When someone has mental illness and his/her judgment is too impaired due to the illness and the person is not able to understand the need for care and treatment, there is a need for provisions for involuntary admission. However, the admission under §9.37 (involuntary, Director of Community Services [DCS], or designee), §9.39 (Emergency Involuntary Admission), and §9.40 (Comprehensive Psychiatry Emergency Program) adds the clause “Likelihood of serious harm,” which means (1) substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself/herself and (2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm. At any stage of the treatment, if appropriate, a patient can be converted to the voluntary admission.[11]

Similar guidelines and standards are provided by MHCA 2017 for involuntary admission and treatment, defined in sections 89 and 90. The principles governing these sections seem similar. The essential criteria for involuntary admission are threat or risk of harm to self or others or risk to self due to inability to care for self.

Objections and appeal against admission

In the past, involuntarily admitted patients could be treated for their mental illness against their wish. In New York, patients admitted in psychiatric hospitals who object to treatment must file their objections in writing to the Office of Mental Health. Physicians and administrators then review the objections and decide whether the medication is appropriate. In 1986, landmark decision in New York State Court of Appeals case “Rivers V. Katz” indicated that a competent patient could refuse treatment. Treatment can be administered against his or her wish only if the court finds that the patient is incompetent to make treatment decisions or if the patient presents a danger to themselves or others.[19]

Under MHCA 2017, when a person is admitted under section 89 or 90, the person's nominated representative or the family members are involved in decision-making. The act also recommends that the detained patient's capacity to treatment is assessed every 7 days. Individuals admitted under section 89 or their nominated representative or representative from a registered Non-Governmental Organization with the consent of the individual can write to the concerned MHRB for review, and the Board is required to provide its report on such an admission within 7 days of receipt. However, in case of section 90, the medical officer of the Establishment is required to inform the Board within 7 days of admission, and the Board will provide its decision either permitting admission or discharge of the patient within 21 days of the receipt of the intimation.[18]

In New York, involuntary admission to a psychiatric hospital can take place in one of the following four ways.

Two physician certificate (§9.27)

A certificate from two physicians must accompany an application for admission made by someone familiar with the individual or by a Government official. It is valid for up to 60 days. The patient may be held involuntarily beyond 60 days if the director of the hospital applies for a court order of retention, and the court is satisfied that the patient continues to meet the involuntary standard (§9.33). If the patient, a relative, friend, or the Mental Hygiene Legal Service believe that the patient does not need to be involuntarily hospitalized, they may apply to a Mental Health Court for Discharge Hearing.[11]

This is comparable to section 90 of MHCA 2017 where the person can be detained for up to 180 days. In the USA, section 9.27 can be initiated if two physicians are available at the facility at the time of admission and the patient does not need to be in emergency section initially. For section 89 of MHCA 2017, one psychiatrist and another mental health professional are required to certify, whereas for section 90, two psychiatrists are required to certify. MHCA 2017 does not require someone familiar to the individual or one of the Government officials as mentioned in the US regulations, where there is a process called making an application for involuntary or supported admission.

Certification by a Director of Community Services (§9.37)

The patient is retained for up to 60 days after application by Director of Community Services (DCS) or an examining physician designated by the DCS. The staff psychiatrist must, within 72 hrs after admission (excluding Sundays and holidays), examine and certify that the patient meets the involuntary (§9.27) standard.[11] The patient may be held involuntarily beyond 60 days if the hospital applies for a court order of retention, and the court is satisfied that the patient continues to meet the involuntary standard (§9.33).

Emergency Admission (§9.39) and Comprehensive Psychiatric Emergency Program (§9.40)

In an Emergency Admission (§9.39) PMI can be retained for up to 15 days. The staff Psychiatrist must, within 48 hrs of admission, examine the patient and confirm the first Physician's finding that the patient meets the emergency standard. The patient may be held involuntarily beyond 15 days and converted to a §9.27 involuntary admission if he/she meets the involuntary standard. Under Comprehensive Psychiatric Emergency Program (CPEP) (§9.40) a Physician examines the patient within 6 hrs and staff Psychiatrist no later than 24 hrs confirms Physician findings that the patient meets the emergency standards and can be held up to 72 hrs in CPEP.[14]

Capacity to consent for the treatment

Decision making capacity reflects functional abilities that a person needs to possess to make a specific decision.[20] Currently, a patient's right to self-determination is protected by the legal doctrine of informed consent. Informed consent for medical treatment has been defined as an autonomous action undertaken by a patient, authorizing a professional to initiate a medical plan or to withdraw health care, including life-sustaining care.[21] The patient can reject medical advice if he or she can understand the consequences and is able to express that. It is not wrong for physicians to assist the patient to understand to arrive at a decision.[21] On comparison of the principles governing the capacity to consent, the Indian MHCA 2017 and US legislation seem to be similar.

PSYCHIATRIC ADVANCE DIRECTIVE

Health Reformation Bill (H.R.4449) led to the Patient Self-Determination Act of 1990, which gave clear guidelines on Psychiatric Advance Directive (PAD). PADs are the legal documents that allow individuals to express their wishes for future psychiatric care and to authorize a legally appointed proxy to make decisions on their behalf during incapacitating crises. The PAD is valid only if a patient is legally competent when he/she signs it. A mental health professional is required to conduct a mental status examination and note it in the medical record that the patient is of sound mind to sign it. The PAD will become active when the treating physician determines that the patient is not capable of making decisions on his/her behalf.[22] The MHCA 2017 does not mention the need for conducting the mental status examination and documentation, at the time of completing Advance Directive document.

COMPLEXITIES SURROUNDING THE IMPLEMENTATION OF MHCA 2017

There is serious criticism of the US legislations that strict adherence to the criteria of harm to self or other for involuntary admission can compromise access to psychiatric care for non-dangerous PMI who need treatment but refuse to comply. For these patients, there will be significant delay in treatment until they decompensate to the level of dangerousness,[23] which can lead to “criminalization of mental illness.” The violent acts were committed by patients due to significant relapse, where this also has contributed to the stigma on mental illness that could have been prevented by early admission. It appears unwise to wait for someone to actually develop and demonstrate acts of harm to self or others. In addition, this delay in the treatment has serious negative consequence including increasing severity of psychopathology, resistance to treatment, and deteriorating cognitive ability and functioning level in the community.[24] The experience with MHCA 2017 can be anticipated to be similar, but a lot will depend on the mental health care system. The MHCA 2017 relies on the physicians’ judgment and ability to gather evidence to determine the magnitude of the risk to self or others.

Mental health courts in the USA help decriminalize psychiatric patient by detaining the patient in the hospital for treatment, instead of a custodial prison-like setting. When a person appeals against retention, the court hearing that takes place is a labor-intensive, time-consuming process that utilizes large amount of financial and human resources. It would have been relatively cost-effective if court appointed legal representative assess the patient in the hospital and authorizes or denies the treatment or evaluates the legal standards of retention. For similar supported admissions, MHCA 2017 has given the provision for appealing to the MHRB which has the authority to review and take decisions on cases presented to them. Therefore, the delays and the costs related to the court hearing and legal assistance do not arise when the case is handled by the Board. Whether this appeal to the Board against the detention satisfies the rights provided under Article 22 of the Constitution of India needs to be examined legally.[25]

Treatment in the community has decreased the cost of treatment and helped to reintegrate the PMI with the society but has increased the risk of self-medicating with street drugs that causes psychosis in the predisposed, and increases the risk of violence.[26] To provide the AOT (community) service for a patient is a cumbersome process. It takes anywhere from 6 to 12 weeks, after the patient does not meet the criteria for inpatient hospitalization, though needing mental health care. A patient is in the community despite under treatment from AOT, can still refuse to the treatment, and there is no provision in the legislation to give a treatment against the patient's wish. To have AOT service available, the patient should have a safe and stable living arrangement. The community care in India is still developing, and there is no care similar to AOT. At the same time, the MHCA 2017 mentions that a person needs to be treated in the least restrictive way.

CONCLUSION

Overall, the general principles in both mental health legislations are to provide autonomy of choice to patients in deciding on treatment setting and care. Historically, mental health care that began with widespread involuntary admissions leading to institutionalization, moved on to focus more on community care. Further, these legislations explore the least restrictive options to ensure that the human rights are preserved. New provisions in the MHCA 2017 would require appropriate documentation of care provided to PMI as it may be requested by the review boards for a further determination regarding the need for psychiatric treatment. As per section 21 (4) of the MHCA 2017, there has to be insurance provision to offer for mental illness that seems to be similar to the Mental Health Parity Act, which is more than three decade old legislation of the USA that brought insurance benefits for mental illness. This article provides an understanding of the MHCA 2017 in the context of existing American legislation. Due to the similarities in the Federal system of governance in India and the United States, each state may be framing their rules under the framework of the MHCA 2017 and related policies. The functioning of MHRBs in each state and their role in the care of PMI would be worth studying for improving mental health care across India.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.