Interface of Law and Psychiatric Problems in the Elderly

INTRODUCTION

The population of older adults (aged ≥ 60 years) is increasing as a result of improvement in health services, particularly for infectious diseases, increase in life expectancy and decrease in mortality rates. In this background, the ongoing decline in the fertility rate is contributing to the population aging with increase in the proportion of older adults globally as well as in India. The proportion of older adults in India is increasing rapidly and is projected to grow from around 9%–10% in 2020 to nearly 20% by the year 2050. Population aging is also associated with a higher prevalence of chronic diseases in older adults including psychiatric disorders. The population of older adults in general as well as those with psychiatric disorders in particular have unique issues that increase the vulnerability for legal and ethical issues. Hence, it is important for the professionals in the field of mental health to be aware of the potential legal and ethical issues related to the practice of psychiatry for older adults.[1] This article attempts to summarize the important legal and ethical issues related to older adults with psychiatric problems and proposes the recommended clinical approach to be adopted during clinical practice in this context. However, the application of clinical judgment is very important as each clinical situation requires specific understanding and decision-making of the concerned Psychiatrist and other mental health professionals (MHP) involved in the clinical management. This clinical practice guideline will focus on the important clinical aspects of the interface of law and psychiatric problems in older adults in the Indian context.

Important characteristics of the aging population in India

• Population of older adults in India was 103 million (census, 2011) and estimated to be 150 million by 2030 and 340 million by 2050

• Significant variation in population ageing across the states

• Higher proportion of older adults in southern states like Kerala (12.3%) and Tamil Nadu (11.2%)

• 71% of older adults live in rural areas in India

• Higher proportion of females than males (male:female: 8.2%:9.0%)

• Low rates of literacy levels (44.5%)

• Increase in the proportion of nuclear families and those living alone

• Increase in old-age dependency ratio (14.2%)

• Less proportion of older adults (particularly women) receive sufficient pension

• Population aging before adequate development of economy and support systems.

PSYCHIATRIC MORBIDITY IN OLDER ADULTS

Psychiatric problems in older adults include those having the new onset of illness after 60 years of age and those having chronic illness with onset in younger age. The nature of psychiatric morbidity in older adults has many similarities with the mental health issues in younger adults. However, there are specific issues that are predominant in older adults. Some of these are very important in the context of legal and ethical issues.

Important characteristics of psychiatric problems in older adults

• Higher prevalence of cognitive impairment is the most important feature

• Subsyndromal features of depression, anxiety, and cognitive impairment are common

• Subsyndromal symptoms can have influence on decision-making and functioning

• High rates of comorbidity with physical illness

• Increased risk for suicide particularly in older males

• Adverse impact on Mental Health capacity and functional ability

• Increases the risk of domestic violence and elder abuse

• Increases the risk for wandering behavior, self-neglect, and dependence on caregivers

• Increases the risk for institutionalization.

LEGAL ISSUES RELATED TO GERIATRIC MENTAL HEALTH

Mental health, in general, can contribute to many legal issues directly or indirectly. Mental health and legal issues can also have reciprocal relationships with each contributing to risk of other.[2,3] The extent of the interface between law and psychiatric problems in older adults is higher compared to younger adults.[4]

Salient features of the interaction of the law and mental health in older adults

• Mental health problems with legal implications are more common in older age

• Several psychosocial situations in older adults contribute to legal and ethical issues

• Violation of human rights and elder abuse are more frequent

• Specific legal provisions related to older adults and mental health.

MENTAL HEALTH PROBLEMS WITH LEGAL AND ETHICAL IMPLICATIONS

There are specific mental health problems that are more commonly associated with legal and ethical implications.[5] Some of these conditions are more common in older adults.

• Alzheimer’s dementia

• Frontotemporal dementia

• Vascular dementia

• Dementia due to Parkinson’s disease

• Lewy body dementia

• Delirium

• Suicide

• Wandering older adult with mental illness.

Psychosocial situations with potential legal and ethical issues

Older adults have increased vulnerability for specific psychosocial situations that are commonly associated with legal and ethical issues. Understanding these psychosocial situations is important for effective recognition and management of legal and ethical issues.

• Older adults living alone

• Older adults living in residential care institutions

• Impairment in ability to manage complex or basic activities of daily living

• Older adults receiving assistance from professional caregivers

• Dispute among the family members about the support system and care management

• Difficulty in managing finances and property

• Palliative care and end of life care

• Elder abuse

• Difficulty in driving

• Lack of adequate social and family support.

LAWS AND ACTS RELATED TO OLDER ADULTS AND MENTAL HEALTH

There are laws that are relevant for issues in older adults and mental health. There is very low awareness among older adults as well as MHPs about the provisions of these laws. There are also several challenges related to the effective implementation of these laws.

• Mental Health Care Act, 2017 (MHCA)

• Rights of Persons with Disabilities Act, 2016 (RPWD)

• Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPS)

• Legal Services Authority Act, 1987

• Indian Succession Act, 1925

• Motor Vehicles Act, 1988

• Fitness to stand a trail.

Mental Health Care Act, 2017

The provision of mental health services in India is governed by the MHCA, 2017. Before this, Mental Health Act, 1987 regulated the services related to mental health. The MHCA, 2017 has been enacted to make the mental health legislation align and synchronize with the requirements of the United Nations Convention on RPWD, 2008. The implications of MHCA, 2017 for geriatric psychiatry have been discussed in detail in a review by Sivakumar et al., 2019. The provisions of MHCA, 2017 are applicable to mental health issues in individuals across the life span. However, there are specific issues that could be more prominent in the context of the implementation of mental health care of older adults despite these being not unique or exclusive for older adults. Under MHCA, 2017 every citizen has a right to access mental health care. There is provision under MHCA, 2017 that the state need to provide shelter and rehabilitation facilities. Important aspects of MHCA, 2017 that are relevant for older adults include assessment of capacity for treatment, nominated representative (NR), advanced directive, and supported admission. Although all these are laid down to protect the right of patients, there are situations where all these provisions can come in the way of providing standard mental health care. MHP needs to be familiar with these rules in the context of intervention with older adults and their families to provide mental health-care services. MHCA, 2107 though mentions of shelter homes and rehabilitation facilities many states do not have these facilities in our country.[6,7]

• Mental illness and capacity to make mental healthcare treatment decisions

• Advance directive (AD)

• Nominated Representative

• Admission and discharge in older adults with dementia

• Right for mental health care for older adults

• Issue of application of MHCA,2017 act to old age homes and residential care facilities

• Issue of application of MHCA,2017 act to medical hospitals providing services to older adults with delirium

• Provision for the establishment of rehabilitation and shelter homes for older adults under MHCA, 2017.

Nominated representative

NR is a designated person whose aim is to assist the individual with the mental ailment in making decisions related to the treatment. Chapter IV of the MHCA (2017) described the conditions, appointment of NR. “Every person who is not a minor, shall have the right to appoint an NR.” Sub-section 1 of Section 5 of the Mental Health Act (2017) allows for revocation or alteration of an NR. The provision for appointment of an NR specifies the order of preference as the person documented in AD, family member, caregiver, followed by the representative nominated by the Mental Health Review Board. In the context of geriatric mental health care, the discord between family members might contribute to challenges in the selection of an NR. Psychiatrist has a role in facilitating the decision making process of selecting NR. NR usually has a role in treatment decisions. It is not clear whether NR can involve in the decision of the rehabilitation process.

NR

• Assess the need for NR in older adults with psychiatric disorders

• Facilitate process of choosing NR

• Encourage shared decision between older adults and NR for treatment related decisions

• In older adults living alone, mental health review board can act as NR

• Be aware of conflicts in the role for NR and legal guardian.

Advanced care planning/advanced directives

AD is a record made by any person expressing how he/she wish to be treated or not to be treated. Chapter V of MHCA, 2017 deals with advanced directives. It comes in to action only when the person who made it loses the capacity to make independent decisions about his care. The patient and family members have the responsibility to bring to the notice of the treating psychiatrist about the existence of a valid AD. Through AD, the patient can make pre-planned decisions on admission, psychotropic usage, electroconvulsive therapy, or any other treatment or procedure. Within the setting of geriatric mental health, AD can have noteworthy implications related to institutionalization, palliative care, and end-of-life care.

• Psychiatrist has a role in the assessment of mental health capacity of older adults for treatment

• Enquire about AD in older adults

• AD has implications on palliative and end-of-life care in older adults

• Possibility of conflict between AD and end-of-life care approach

• Contact medical review broad, if the AD does not reflect the best interest of the patient or completely against the standard treatment

• Encourage older adults with severe psychiatric illness and mild cognitive impairment to make an AD when they have preserved capacity.

TESTAMENTARY CAPACITY

“Testamentary capacity refers to a civil competence regarding the ability of an individual to make a will, which he/she desires to execute after their death.” According to the Indian Succession act, 1925 it is assumed that “Every person of sound mind, not being a minor, may dispose of his property by will.” The law presumes that every person has adequate capacity to make a will, until proven otherwise. The “will” comes into action after the demise of the testator. Testamentary capacity is especially important in older adults. Older adults with mental illness or dementia or due to various psychotropics that affect cognition have challenges in executing their right of making a valid will. All these factors increase the risk of fraudulency if adequate measures are not taken in older adults with mental illness/dementia. There are often situations, where older adults will be brought by family members to a psychiatrist to assess his capacity prior make a will. There are also instances after the demise of testator, the “will document” get challenged in the court of law by family members and psychiatrist can be called as an expert witness to give opinion.[8]

Salient points about testamentary capacity and older adults

• Capacity to write a valid will

• Section 59 of Indian Succession Act (1925) – ”Every person being of sound mind, not being a minor, may dispose of his (her) property by will”

• Components of testamentary capacity

  • Knowledge of the nature and extent of his property
  • Knowledge of the natural objects of his bounty
  • Knowledge of how the will would dispose of his property
  • The ability to make a rational plan as to the disposition of his property

• Components to assess in older adults

  • Was there consistency in the patient’s wishes over time?

  • Were these wishes expressed during a “lucid interval” when the person was less confused?

  • Were the patient’s wishes clearly expressed in response to open-ended questions?

  • Is there a clear documentation of the patient’s mental status at the time of the discussion?

• Periodic assessment and documentation of cognitive function in older adults especially those with cognitive impairment is advisable for potential legal issues in future

• Retrospective certification or opinion on testamentary capacity is not advisable.

FITNESS TO STAND TRIAL

“Fitness to stand trial ‘deals with the mental capacity of a person to take part in legal proceedings.” The assessment of defendants’ capacity to fitness to stand trial is one of the components related to criminal responsibility. This assessment needs to be done with the following objectives in mind. The first objective is to confirm whether the defendant has any clear diagnosis of a mental illness. Detailed examination of the mental status will give an understanding of the clinical features if the individual has any mental illness. Following this, a detailed forensic assessment with the components mentioned below is required to recognize the impairment of capacity in this specific competency. This assessment is essential to ensure that the legal proceedings are conducted fairly as mandated by the legal system.[9,10,11]

Components of fitness to stand trial (CrPC section: 318, 329)

• Factual understanding

• Rational understanding

• Following the proceedings of the court

• Ability to consult with his lawyer

• Appropriate behavior in court

• Impact of mental illness or mental retardation

• Impact of medications.

Mental health aspects that need to be assessed

• Presence of any features of mental illness

• Extent of Impairment

• Interference of the mental illness in the legal proceedings.

Common mental illness in older adults where fitness to stand trial comes into question

• Severe depression

• Severe mental illness (Schizophrenia, Bipolar, Psychotic depression)

• Dementia

• Delirium.

Practical points

• The severity of mental illness is important than just a diagnostic category

• Look at reversibility of the condition

• Advisable to assess the capacity to stand trial prospectively than at one cross-sectional encounter

• Advisable to take the second opinion or involve the team in the final decision.

FITNESS TO GIVE WITNESS

Individuals with mental illness participating in the legal proceedings for giving testimony and its acceptance represents an equal right for persons with mental illness. “As per the Indian Evidence act, 1872 it is one of the rights of the citizens.” The presence of a mental illness by itself should not discriminate an individual as a witness for an incident. However, there can be a concern about the influence of mental illness on the accuracy of the testimony. In this scenario, the psychiatrist may have to assess his mental state and give opinion. Similar procedure applies to older adults also, however apart from mental illness many things need to be considered such as hearing, vision, and cognitive issues.

RIGHTS OF PERSONS WITH DISABILITY ACT, 2016

The Rights of PWD Act, 2016 replaced the PWD Act 1995 to comply with the United Nations Convention on the Rights of Person with Disabilities (UNCRPD). “The Section 12 says that every appropriate government shall ensure that persons with disabilities can avail the right to access any court, tribunal, authority, commission, or any other body having legal or quasi-judicial or investigative powers without discrimination based on disability.” “Section 13 (Legal Capacity) states that appropriate government shall secure that the people with disabilities have rights, similarly with others, to claim or acquire property, movable or immovable; to control their financial related undertakings.” Section 14 (Provisions for guardianship) articulates the provisions of limited guardianship and total guardianship. The section 7 of RPWD act, 2016 “protect persons with disabilities from all forms of abuse, violence, and exploitation and to prevent the same.” Section 27 of RPWD act, 2016 says that “the appropriate Government within their financial capacity and development should provide rehabilitation facilities.” The issues in geriatric mental health involve disability certification, taking into consideration multiple disabilities in older adults, lack of adequate rehabilitation facilities. The other issues are guardianship and protection against elder abuse.[12]

Rights of Persons with Disabilities act, 2016

• Right to justice

• Right to equal status in terms of managing property and finances

• Right for guardianship

• Right to protect against abuse and exploitation.

Geriatric specific issues

• Disability certification

• Legal guardianship

• Protection of older adults rights and prevent abuse

• Rehabilitation facilities-old age homes, dementia care homes and assisted living facilities.

GUARDIANSHIP

Guardian is a person who is responsible for the care and protection of the person with disability. The two acts concerned with guardianship in India are the National Trust Act, 1999 and RPWD Act, 2016. The National Trust Act deals with persons with neurodevelopmental illness. Section 13 of Chapter II of the RPWD act (2016) deals with guardianship of persons with disability which states “The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law.” In the new RPWD act, there is the removal of the option of plenary guardianship. There is provision for only limited guardianship. “Limited guardianship implies a framework of joint choice which works on shared understanding and belief between the guardian and the individual with disability, which should be restricted to a particular period and for particular situation and circumstance and should work in accordance to the will of the individual with disability.” As per this definition of RPWD act, 2016 the guardian can take shared decisions related to health care, any contract, or handling his property. The guardianship is important in older adults in view of psychiatric disorders and dementia. In scenario such as conflict among the family members about care, handling older adult property and future contracts, guardianship is important to protect the interest of older adult patients. The procedure of guardianship involves application to the district commissioner for allotment of guardian. In cases which are not solved at the commissioner, level will be taken up as civil cases in the district civil court.[13]

RPWD act, 2016 deals with guardianship for older adults.

Limited guardianship involves shared decision making.

Conditions in older adults where guardianship is required

• Severe mental illness

• Dementia-moderate and severe stage

• Older adults with multiple disabilities.

Role of psychiatrist

• Assess the need for guardianship

• Provide proper advice to family on the guardianship

• In case of conflict among family members or neglect or ill treatment of older adults, Psychiatrist as third part has right to bring to notice of court for guardianship

• Continuation of guardianship need to be assessed depending the severity.

MOTOR VEHICLE ACT, 1998 AND FITNESS TO DRIVING

Driving has become an essential part of human life. Driving is a skill which requires complex cognitive process and executive functioning of the human brain. Many psychiatric illnesses contribute to the impairment of cognitive function that are essential for driving safely. In addition, psychotropic medications can also interfere with driving ability due to the effects on brain function by impairing psychomotor activity, information processing, and perception. Currently in India, for non-commercial drivers below age 40 can self-certify one’s own health. For commercial drivers and noncommercial drivers above age 40 has to submit a certificate filled, signed by a registered medical practitioner. There is no clear guidelines in India as per the Motor Vehicle Act, 1988 to screen for mental illness in all applicants. The fitness in mostly related to physical illness. Older adults with cognitive impairment have several challenges in terms of safe driving. In this context as MHP working with older adults need to assess their cognitive abilities and advice on the continuation of driving. In India, as there is no mandatory provision of reporting to the concerned authority of impaired cognitive skills that interfere driving in older adults, it is left to the discretion of the patient and family to continue driving. The psychiatrist has the responsibility to assess the overall mental capacity including the driving ability and advice the patient and family members.[14]

• Motor vehicle act, 1988 - older adults need to undergo medical examination to hold a valid driving license

• No specific screening for psychiatric illness

• There is no mandatory reporting of cognitive impairment or psychiatric illness in India

• Geriatric psychiatrists should enquire about driving in older adults

• Enquire about any legal issues related to driving in older adults

• Enquire about any difficulties in navigating or negotiating the traffic in older adults

• Thorough examination of mental state and cognitive assessment is advisable

• Need to check about the impact of psychotropic medication on driving skills

• Advice the patient and family on the continuation of driving.

Illness/situations where driving skills will be impaired

• Moderate and severe stage of dementia

• Parkinson’s disease and Parkinson’s related dementia

• Older adults receiving electroconvulsive therapy

• Acute episode or exacerbation of severe mental illness

• Adverse effects of psychotropic medications.

MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

The MWPS act was formulated in 2007 to ensure maintenance support to the parents and senior citizens. This is one of the landmark act to protect the interest of older adults. However due to lack of awareness still many older adults face neglect and abandonment. Parents refer to biological, adoptive or step parents. There is no restriction related to the age of parents for claiming maintenance under this act. Under this act, parents or senior citizens can claim maintenance from their children or grandchildren. The Act also proposed for establishment of the tribunal in every district to provide effective and timely relief to older adults. There is a time limit of 3 months to provide maintenance up to ten thousand rupees per month. The Section 19 of the act also mandates the setting-up of an old age home in every district. The acts also provides provisions for the protection of life and property of the elderly. Recently there are few proposed amendments in the Maintenance and Welfare of Parents (MWP) act, 2007. The amendment is currently being reviewed by the parliamentary standing committee. The provisions of the draft amendment bill of MWP act, 2007 include expansion of the definition of children under this act. Step-children, adoptive children, children-in-law, and the legal guardian of minor children are also considered as children under the proposed definition. Parent-in-laws, and grandparents are included in the proposed amendment of the definition of parents. The provision of healthcare, safety, and security for parents and senior citizens has been included under the maintenance. The scope of welfare measures has also been expanded to include other essential facilities like clothing, housing, safety, and other necessary for the physical and mental well-being of a parent or senior citizen. The proposed amendment bill has removed the upper limit of the maintenance emolument.[15]

ADMISSION TO RESIDENTIAL CARE HOME

With the increasing number of older adults in India, there is steady growth in the number of older adults moving to residential care centers. This could be due to change in the social support system and changing family structure. Residential care facilities include old age homes, assisted living facilities, dementia care facilities, hospice care facilities, and palliative care residential facilities. The decision to move to residential care is an important decision for older adults. It has to be a carefully weighed decision taking into consideration the needs of older adults, support systems, preference of older adults. Many residential care facilities in India do not have mental health care facilities. Older adults with psychiatric illness or cognitive impairment are at higher risk of involuntary admission in residential care facilities.

• Psychiatrist has a role in assessing the capacity of older adults in making choice on residential care

• Psychiatrist can advise the family about the kind of care and assistance required for older adults with dementia.

ELDER ABUSE

Elder abuse defined as a “single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person. It can be of various forms: physical, psychological/emotional, sexual, financial abuse and neglect.” Older adults have a higher prevalence of abuse. This is not limited only to the acts of commission. It includes the possibility of neglect by the family members as well as caregivers. Surveys done globally as well as in India have indicated high prevalence of elder abuse. Many older adults would hesitate to report and seek help due to stigma as well as fear of negative effects from the perpetrators. MHPs need to be vigilant to suspect elder abuse and assess sensitively to initiate necessary measures and support to the older adult facing this issue. Providing individual and family intervention, guidance to seek help from the Elder’s Helpline, Legal Services Authority, and statutory authorities under the MWPS act, 2007 could be helpful to the older adults suffering from abuse. In a recent multicenter survey in India on older adults, 25% of participants reports they have faced abuse. Older adults with psychiatric illness and dementia increase of risk of abuse and exploitation. The laws that deal with the abuse on older adults are the Indian Penal Code (IPC), 1860, the Criminal Procedure Code, 1973 – Section 125. The acts which deal with abuse in older adults are MWPS act, 2007 and section 16 of RPWD act, 2016 [Figure 1].

Figure 1.

Older adult abuse/neglect evaluation

• Keep high index of suspicion on the possibility of abuse in older adults

• Any unexplained deterioration and discrepancy in history should raise suspicion of abuse

• Interviewing the older adult patient alone will help in bringing out issues such as abuse

• Assess the medical issues and medical emergency in case of abuse

• Ensure the safety of older adults who are victims of abuse

• Consider notification of the relevant authorities (Police, Legal Services Authority).

ASSESSMENT OF MENTAL CAPACITY IN OLDER ADULTS

“Mental Capacity is assessed based on the ability of an individual to make a decision related to a specific situation or context. They should be able to understand, retain and weigh the information and communicate the decision.” Professionals may consider capacity evaluation as challenging due to the complexities and implications. Many cognitive domains such as attention, memory, executive function, and language are impaired in persons with dementia. These cognitive capacities are critical components of mental capacity as they are required for thinking and decision-making. Capacity assessment includes functional assessment by a clinician to assess the ability of the individual to make the decision in a specific context. Some of the common reasons for evaluation of capacity in a person with dementia include assessment of ability to make a will, managing the financial transactions and consent to participate in research, decision about living independently, and fitness for driving. The assessment of mental capacity includes determination of the presence of mental illness (e.g., dementia), ability to understand the context and nature of the decision, understanding of the available options, evaluation of the consequences of choosing any of the options, finalizing and communicating a decision.[16,17]

Mental health capacity assessment

• Capacity assessment is specific to a particular time and a task

• Capacity evaluation needs to be done in a systematic manner

• The information given to the individual should be comprehensible and understandable

• Capacity assessment should be done after maximum effort to increase decision-making ability is implemented

• Trusting and collaborative professional relationship is important for doing the capacity assessment [Figure 2].

Figure 2.

Situations where mental capacity is challenged in older adults

Tools to assess mental health capacity in older adults for the treatment

• Capacity Assessment Guidance Document issued by the Ministry of Health and Family Welfare, Government of India (MHCA, 2017)

• UCLA decision-making capacity assessment tool

• Macarthur competence assessment tools for treatment

• Capacity to consent to the treatment instrument

• Hopemont capacity assessment interview

• Thinking rationally about treatment

• Aid to capacity evaluation.

ETHICAL ISSUES RELATED TO GERIATRIC MENTAL HEALTH

Providing care for older adults with psychiatric conditions brings an array of challenging ethical issues. Aging adults with cognitive impairment may retain the capacity for some kinds of decisions and activities while lack the capacity for others. Determining the demarcation between capacity and impairment can be very difficult. The cardinal ethical principles that should be followed include respect for persons (preserving individual worth and dignity), autonomy (upholding individual self-governance), beneficence (seeking to provide care that provides the greatest benefit, promoting clinical excellence), and non-maleficence (“first, do no harm”). Along with these principles, psychiatrist should also keep in mind the trust of patients, privacy, and maintain integrity to the profession. All these make the task of a psychiatrist much more complicated while providing care and research that involve older adults.

Specific issues in geriatric mental health care include end-of-life care and withdrawal of life support. The issues related to the continuation of life support and parenteral nutrition is debatable in India. Article 21 of the Indian Constitution elaborates on the right to life. There are no laws for physician-assisted death in India. In the landmark case of “Aruna Shanbag versus Union of India,” the supreme court of India upheld the right to live and favored continuation of life support for the patient. However subsequently, the Honorable Supreme Court of India passed clear guidelines in terms of passive withdrawal of life support. In patients with irreversible, terminal illness and insurmountable suffering can apply to court for life support withdrawal. In these cases, the court will order for three-member doctor team who will independently evaluate the patient and give an opinion to the court.

Another important issue is seclusion and restraint in older adults with psychiatric illness or dementia. The practice of restraining patients has a long history in the management of aggressive individuals with mental illnesses. Often older adults with dementia or delirium have behavioral problems which are major reasons for hospitalization and seeking psychiatrist help. In these situations, MHP might use restraint to protect the older adults from self-harm or harm to others. Restraint is also used in instances where there is the requirement of parenteral infusion in agitated/aggressive older adults patients. Restraints are known to have deleterious effects on physical health as well as on mental health. The MHCA, 2017 also mentions against the use of coercion and restraints. It also mentions documentation and reporting of any restraint to the medical review board every month. In terms of geriatric mental health, the MHP should be aware of medical complications of using restraints to older adults such as fractures, bruises, and worsening of medical condition. It is also advisable to follow advanced directive and also to avoid using restraints as much as possible in older adults.

In terms of research involving older adults, it is important to provide adequate information about the details of the study, investigations, and interventions related to the study protocol, potential risks, and benefits. If the research involves persons with dementia, the family members or Legally Authorized Representative consent is necessary.[18] In “The Indian Council for Medical Research National Ethical Guidelines for biomedical and health research’ persons with dementia are considered as vulnerable population.”[19]

Cardinal ethical principles

• Autonomy

• Justice

• Beneficence

• Nonmaleficence.

Other ethical issues in geriatric mental health

• End of life care

• Withdrawal of life support

• Use of restraints.

Role of psychiatrist

• Assess the mental health capacity in older adults requesting for withdrawal of life support

• Role of psychiatrist in ensuring the safety of older adults with behavioral problems and better avoid use of any restraint

• Assess the capacity and follow the ethical principles in terms of research that involve older adults.

OTHER LAWS AND POTENTIAL LEGAL ISSUES RELATED TO OLDER ADULTS

Legal Services Authority Act, 1987

Legal Services Authority act was passed in 1987 and last amended in 1994. This act has the objective to create legal services authorities at various levels and ensure the provision of legal services to those who do not have access to it due to economic constraints or other vulnerabilities related to disability or other social reasons. “The article 41 of the constitution lays down that the state shall provide within the limits of economic capacity and development, make provision for securing the right to work, and education in case of unemployment, sickness, old age and disability”. National Legal Services Authority (NALSA) is established under the legal services act. The objective of NALSA is to strengthen legal aid and representation at the national and state level for senior citizens. To ensure access to various government schemes and programs to senior citizens. To create awareness about the rights and entitlements for senior citizens. To facilitate the establishment of appellate tribunals and old age homes for senior citizens under the MWP Act, 2007.[20,21]

Beggary act, 1960

This is an act brought to prevent beggary in India. Under this act, beggary is an offense. This act mandates detention of the individual in a sick home or a beggar’s home for 1–3 years in the case of first offense and for 7 years if the individual is found guilty for the second time. A proportion of older adults due to this act will be detained in beggar’s home. Many of the older adults in these homes may have mental health issues or cognitive impairment and have they poor access to mental health care. In a study at NIMHANS, weekly teleconsultations are provided successfully to inmates of this homes through collaborative care model.

Do not resuscitate order

Patients having cardiac or respiratory arrest requires cardiopulmonary resuscitation (CPR) to resuscitate them. Hospitalized older adults in critical care units often require this procedure to revive their life. However, in certain situations, there can be an ethical dilemma for implementing CPR. In patients having terminal illness, reviving their life through CPR may contribute to additional suffering with poor quality of life. Many countries have legal provisions for an individual to specify that they do not want to be resuscitated in situations that has higher chances of prolonging the suffering due to terminal illness if CPR is attempted. This is likely to help in preserving the dignity of the patient. It is advisable for older adults to make an advanced directive regarding their treatment in terminal illness and about resuscitation. Besides this older adults can also choose their NR, who can take the decision in their best interest in these situations. The Indian Medical Council Research (ICMR) policy document provides guidelines on “do not attempt resuscitation.”[22]

Euthanasia or physician-assisted death

Euthanasia is a relatively new field in our country, though few developed countries have already clear laws and rules for several years. “The Article 21 of the Indian Constitution provides equal right to everyone on protection of life and personal liberty.” There is ambiguity on whether the same article covers right to die with dignity. The landmark case “Aruna Shanbaug versus Union of India” (2009) has attracted the attention of everyone on the topic of euthanasia. Subsequently, the Supreme Court in 2011 on a landmark verdict on this case has laid the initial foundation on passive euthanasia in India with clear guidelines. “The court clarified the difference between active and passive euthanasia. It also further specified that the active euthanasia would attract Section 302 of IPC (murder) and Section 306 of IPC (abetment of suicide).” The court has come up with what is known as the “Doctrine of Parens Patriae” (court acts as a guardian). The court recommended that the High Court of India should act as “Parens Patriae.” It ruled that the High Court has the authority to decide about withholding life supports in a patient with terminal illness if it receives a petition from relatives and treating doctors. The High Court will decide this based on the consultation with a medical expert panel of 3 members. These guidelines were subsequently formulated to Bill by Law Commission of India in 2012 (Passive Euthanasia - A Relook).[23,24]

Passive Euthanasia in India (with drawl of life support)

• Application by relative or doctor

• Filing of petition under Article 226 to high court (bench of 2 judges)

• Bench to constitute a Medical Committee of three reputed doctors

• Notice to the state and near relatives

• View of near relatives and next friend taken into consideration

• Decision by high court.

Inability to sign and manage the bank account

Banking is an important essential service in everyday life. People usually manage their banking independently or with little assistance. Older adults face many challenges in handling their bank account. The difficulties could be due to due impairment in recalling account number, pin of credit/debit card, difficulty in writing denomination, affixing signature, and difficulty in calculation. This difficulty could be due to dementia, tremors such as in Parkinson’s disease and psychiatric disorders due to impaired judgment. In these situations, the Reserve Bank of India made provisions to allow sick/old/incapacitated people to hold their accounts and do transactions. As per these provisions, persons who cannot affix their signature can use their thumb impression instead. In the case of persons who cannot physically appear in banks can nominate another family member or guardian to handle his bank transactions. To avail of these provisions, the respective banks might ask for disability certificates from medical/mental health professions. MHP have to assess the cognitive status, mental health capacity, and involuntary symptoms before issuing any certificate for banking purposes.[25]

Dispute among the children regarding caregiving

Aging is associated with dependency on others for their day-to-day needs. In older adults with dementia and severe psychiatric illness requires assistance in their basic activities of daily living. Currently, India, caregiving is mostly informal provided by family members. This leads to caregiver burden, stress among the caregivers, loss of pay, and other indirect losses. Often there will be dispute among the children about caregiving responsibility. This leads to neglect and violation of the rights of older adults. The poor cooperation among the children also leads to ignoring mental health issues and inadequate care of their physical health. In these situations, MHP can help in protecting the rights of older adults. Measures such increasing awareness about the MWP act, 2007 among the children, reporting to the elder’s helpline, and discussion with family members will help in improving care to older adults. In cases, where there children are not forthcoming to provide care, legally perusing the issues and guardianship will ensure the care of older adults.[26]

Issues in residential care institutions

Admission of a person with dementia in a residential care institution can be challenging as the patient may not have the capacity to give consent, there may be disagreements among the patient/other family members about the decision. Discussion with the patient and other stakeholders to facilitate a consensus decision may be explored. The possibility of a brief trial stay in the facility may be considered to facilitate the smooth transition in the living arrangement. AD (if available) or the consultation with the NR will be helpful to understand the preference of the individual and take this decision in the best interest of the individual considering the ethical and legal aspects involved in this.[27]

OLDER ADULTS WITH COGNITIVE IMPAIRMENT IN PRISONS

A study in 2015 by Srinivasan and Ilango, reported that among the prison inmates, older adults aged 50 years and above were 17.8% among the convicted prisoners and 11% among the under-trial prisoners.[28] As in-mates age in prison, there is risk of cognitive impairment and dementia. The higher risk could be due to poor nutritional status, lack of cognitively stimulating activities, isolation, associated poor physical health condition, and lack of regular medical care. Often subtle/mild cognitive impairment in older adults in prisons may not come to attention. In these places, there is the role for regular screening of older adults inmates for psychiatry illness and cognitive impairment. The older adults will be brought for psychiatry consultation, if there is obvious cognitive impairment or dementia. In these situations, the psychiatrist along with history and examination, need to check for observation report from the prison medical doctor. In these situations, diagnosis can be considered on prospective examination. As per the RPWD act, 2016 and MHCA act, 2017 older adults with dementia has the right for treatment, rehabilitation, and care.

MENTAL ILLNESS IN CONVICTED PRISONERS

Prisons are stressful environments and many in-mates might be staying for several years beyond the age of 60 years. In a landmark study from Bangalore central prison on 5024 inmates reported psychiatric morbidity in 79.6%. This study also found a higher proportion of convicted prisoner been much older compared to under trail prisoners.[29,30] In epidemiological studies in prison in-mates, it was observed that substance-use disorders, followed by personality, depression, and psychosis were reported in descending order though these not specific to older adults. Only a smaller proportion of older adults in prisons with severe psychiatric illness will be brought for professional treatment. There is a need to increase the awareness among the prison staff about mental health issues in older adults. There also a need for legislation for older adults with severe psychiatric illness staying in prison in terms of their rehabilitation.

SUICIDE AND ABETMENT TO SUICIDE

The suicide rate in the older adult population aged 55 years and above has been reported to be 189/100,000. Nearly 20% of all completed suicides are done by individuals aged 65 years and above. Psychosocial adversity in late life, psychiatric illness, and comorbid physical illness increase the risk of suicide in older adults.[31] Section 309 of the IPC specifies the punishment related to suicide attempt as follows: “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or both.” Section 305 and 306 of IPC deals with the punishment related to abetment of suicide. As per the section 309 of IPC, the suicide attempt is considered as an offense and MHP has to report about suicide attempts of their patients. Section 115 of MHCA, 2017, decriminalized the suicide act. As per the MHCA act, 2017, “suicide attempters are presumed to have severe stress, not to be punished and the government should have the duty to provide care, treatment, and rehabilitation to reduce the risk of recurrence.”[32] MHP treating patients with suicide attempt has to report to the mental health review board. There will be an inquiry with regard to abetment of suicide which is still an offense.

SEXUAL MISBEHAVIOR IN DEMENTIA

Patients with dementia have range of psychological reactions and problematic behavior known as behavioral and psychological symptoms of dementia. Among these inappropriate sexual behavior is one of the distressing symptoms for family members. These can range from gazing at the opposite sex, making livid comments, inappropriate touching, genital exposure or manipulation and any inappropriate sexual advances. Often these behaviors create conflicts in public places and lead to interpersonal issues in their community. These behaviors also increase legal consequences. In certain types of dementia such as frontotemporal dementia, these behaviors might precede the actual cognitive decline. Patients usually brought to MHP for consultation. In older adults presenting with these behaviors, it is advisable for in-patient evaluation and assess the behavior prospectively. Investigations such as neuropsychological assessment, neuroimaging are advisable. Interventions such as addressing the needs of the patient and short duration of appropriate psychotropic and educating the family will help. In few severe cases notifying the concerned authorities about the risky behaviors might be needed.[33]

LIFE CERTIFICATE

This is one of the common requirements for pensioners in India to submit their life certificate to their respective departments every year. This used to be cumbersome issue few years ago, with many older adults approaching their family physicians for life certificates. Currently, the whole process is digitalized though biometric authentication through the Aadhaar platform (Jeevan Paramaan). Successful authentication generates a digital life certificate which is available to the pension disbursing agencies. Older adults who are unable to this platform can write a self-declaration letter with signature or thumb impression and can submit in the respective pension providing agency.

Some of the welfare benefits available to older adults in India are provided in Table 1.

Table 1.

Government Schemes and Welfare Benefits for Senior Citizens in India

Scheme/policy/Act	Welfare benefits
Indira Gandhi National Old Age Pension Scheme	BPL persons aged 60+ receive a monthly pension of Rs. 200 up to the age of 79 years and thereafter Rs. 500
Travel benefits	Reservation of two seats for older persons in state road transport and fair concession
	Air fare allowance up to 50% for males aged 65+ and females 63+ 40% concession on rail fare males aged 60+ and 50% concession for females aged 58+
Annapurna scheme	BPL person aged 60+ will receive 10 kg of food grains per month free of cost
Law and Justice	Provision of free legal aid
NHCPE, 2011	Geriatric clinics, referral services, separate ques, mobile health care facilities
Integrated program for Older persons (IPOP)	Facilitates setting up elderly helpline, old age homes and mobile health care units
MWPS act, 2007	Establishment of old age homes in every district with capacity of 100
Rashtriya Vayoshri Yojana	BPL persons aged 60+ will receive free assistive devices (wheelchairs, hearing aids)
Income tax benefits	60+ up to 3 lakh nontaxable
	80+ up to 5 lakh nontaxable
Higher interest	Senior Citizen’s Saving Scheme offer interest of 8.4% per/year
Telephonic Benefits (BSNL)	Priority for registration and also eligible for waiver off charges for registration

NHCPE – National Program for Health care of Elderly; MWPS Maintenance and Welfare of Parents and Senior Citizens; IPOP: Integrated program for Older Persons, BPL: Below Poverty Line

Forensic Evaluation of geriatric patient

• Describe details on physical issues such as vision, hearing, and disabilities.

• Carry out a detailed mental state examination and identity any clinical syndrome if present or suspected

• Assessment of suspected and diagnosed clinical syndrome by appropriate psycho-geriatric tests and make a final/provisional diagnosis

• Carry out appropriate biochemical, neuroendocrinal, radiological tests to confirm the diagnosis

• Identify the problem or issues which need legal interventions

• Evaluate the issue vis-a-vis, diagnosis and legal status - provisions as given in MHCA 2017, other Acts meant for elderly protection and rights

• Opine on physical, mental, psycho- socio-familial resources available to elderly and what he/she does in view of existing laws for the issue(s)/problem(s) for which legal stand is being sought

• Identify the time of activity, nature of the activity, understanding of the activity, other relevant details and give your opinion as per the applicable law.

CONCLUSION

Population Ageing is a significant demographic change that is becoming evident in every passing decade. Increase in older adult’s population brings several challenges in terms of health and social care. Older adult population has increased vulnerability due to the biological, psychological, and social changes associated with aging. Frailty, infirmity, and dependency rates are higher in this population. The mental health care of older adults is associated with many legal and ethical challenges compared to the younger adult population. Higher prevalence of cognitive impairment, loss of mental capacity, homelessness, neglect, abuse, and institutionalization are some of the important contributing factors for the legal and ethical issues in this population. There is a greater need for awareness about legal and ethical issues among the professionals dealing with the mental health care of older adults to ensure appropriate care and protection of the interests of older adults. This clinical practice guidelines provide an overview and approach to the legal and ethical issues related to older adults with mental health problems.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.