Mental Health Care Bill, 2016: A boon or bane?

INTRODUCTION On August 8, 2016, the Mental Health Care (MHC) Bill, 2016 was passed in the Rajya Sabha. If the Bill is passed in the Lok Sabha, then it repeals the Mental Health Act, 1987. The Government of India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007.[1] The Convention requires the laws of the country to align with the Convention. The new Bill was introduced as the existing Mental Health Act, 1987 does not fulfill the obligations of the UNCRPD.[2] The preamble of the MHC Bill, 2016 clearly depicts that this legislation is to protect, promote, and fulfill the rights of such persons during delivery of MHC and services.[3] The Bill is progressive and rights based in nature. The whole dedicated Chapter (v) on “Rights of the persons with mental illness” is the heart and soul of this legislation. However, the Bill mainly focuses on the rights of the persons with mental illness only during treatment in hospital and it is completely silent about the care of the persons with mental illness in community.[3] MHC priorities need to be shifted from psychotic disorders to common mental disorders and from mental hospitals to primary health centers. Increase in invisible mental problems such as suicidal attempts, aggression and violence, widespread use of substances, and increasing marital discord and divorce rates emphasizes the need to prioritize and make a paradigm shift in the strategies to promote and provide appropriate mental health services in the community.[4] There are several significant positive developments in the new Bill. First, there is a mention of decriminalization of attempted suicide. It is specifically stated that there is a presumption of severe stress in person with attempted suicide and such person shall not be tried and punished under the said code. Moreover, it is highlighted that the appropriate Government will be bound not only to provide care, treatment, and rehabilitation of such persons but also to take measures to reduce its recurrence. This is an important and progressive step which will have positive implication throughout the country.[5] Second, there is a detailed description on “Rights of person with mental illness.” This is highly significant step to make the Bill as patient-centric. There is a mention of the right to access MHC and treatment at affordable cost, good quality which is acceptable to person with mental illness, their family members, and caregivers. The onus will be on appropriate Government to make such provisions for range of services including outpatient and inpatient services, half-way homes, sheltered accommodation, supported accommodation, hospital- and community-based rehabilitation, free cost of medicines, specialized services of child and adolescent, and old age mental health. The appropriate Government will ensure necessary budgetary provisions for effective implementation along with integration of mental health services into general health care at all levels of health. Every person with mental health illness will have right to protection from cruel, inhuman, and degrading treatment. Third, the key feature in this new Bill is the provision for medical insurance for treatment of mental illness at par with physical illness by all insurers. Mental health insurance has remained a neglected area for long. This new feature will have huge and significant impact for the persons with mental illness, family, and caregivers.[6] Fourth, the new Bill clearly describes the “Duties of appropriate Government.” This is a unique feature as the appropriate Government will have responsibility to plan, design, and implement programs for mental health such activities related to promotion, prevention, reduction of suicide, stigma. The important aspect will also to address the human resource needs which include training of medical officers and other persons. There are many other favorable aspects of this new Bill, which are beyond the scope of description here. In general, there are several features which may be seen as welcome step by persons with mental illness, their family, caregivers, professionals, care providers, and significant others. However, it seems ambitious and poses a huge responsibility and challenge to all stakeholders for its effective implementation. The new Bill tries to be overinclusive in its approach stretching beyond its legislative limit, and despite noble intentions behind it, it would be a challenge for the stakeholders whether the contents of the Bill are legislation, program, policy, or even a treatment guideline. There are highly qualified and accountable bodies to design a program or to recommend the treatment guidelines. There is a need to draw a distinction between the act and the rules, while the former is stable and constant over the years and latter are subject to change. The major task would be to effectively formulate the Rules which take into the account the opinions of all stakeholders and in the best interest of the person with mental illness. On a closer look, this Bill premises on a hypothesis that the MHC providers and family members are the main violators of the rights of the persons with mental illness, which is unfortunate. On the other hand, the Bill does not take into account of family members’ significant contribution, caregivers’ burden, isolation, frustration, and violence they undergo because of persons with mental illness.[7] The Bill is silent on the role and contribution of family members in providing care. Unlike the West, in India, family is the key resource in the care of patients with mental illness.[7] Families assume the role of primary caregivers for two reasons. First, it is because of the Indian tradition of interdependence and concern for near and dear ones in adversities. Second, there is a paucity of trained mental health professionals required to cater to the vast majority of the population;[8] hence, the clinicians depend on the family. Thus, having an adequate family support is the need of the patient, clinician, and the healthcare administrators.[7] Unfortunately, that Bill does not foster the need to support the family members in providing care. The Mental Health Act, 1987 legislation focused on admission and treatment of persons with severe mental illness in mental hospitals[9] when they were detained against their will.[1] However, the MHC Bill, 2016 tries to regulate almost all the MHC establishments. This could be avoided by legislation focusing on MHC institutes, where patients are admitted against their will for treatment. The Mental Health Act, 1987 was not implemented across the country because of severe shortage of resources;[9] however, a new MHC Bill, 2016 has been introduced without addressing the issues which haunted the Mental Health Act, 1987.[10] Although there are many positive aspects of the MHC Bill, 2016, the negative aspects have severe and negative impact of the MHC in India. This article focuses on the shortcomings of the MHC Bill, 2016. MENTAL HEALTH CARE BILL, 2016: CHALLENGES AND REMEDIES Definition of mental health establishment National Mental Health Programme (NMHP) (National policy) advocates integration of mental health into general and primary health care.[11] However, the Bill mandates all the establishments to take license for treating patients; this may come in the way of integrating mental health into general health and, thus, the implementation of the policy. Many private hospitals and nursing homes may refuse to treat patients with mental illness reporting that they do not have license to do so. Hence, the proposed Bill should be in line with the NMHP (Mental health policy). To encourage treatment in general hospitals, they need to keep those establishments out of the purview of licensing.[1] The proposed Bill enthusiastically moves forward (without acknowledging the available meager resources) to protect and promote human rights of persons with mental illness by mandating licensing of the mental health establishments. There are many hostels, prisons, jails, juvenile home, child protection centers, reception centers, centers for destitute, beggars’ home, religious places such as temples, churches, and dargahs, and faith healers need to take license to keep persons with mental illness. This will defeat the purpose of the Bill and will invite “license raj” of harassing the MHC providers. It would be prudent to keep the general hospital psychiatry units and nontreatment providing centers to be kept out of the purview of licensing.[1] Capacity to make mental health care and treatment decisions This issue of capacity to make MHC and treatment decisions is inadequate and may have dangerous consequences because person with mental illness may refuse treatment due to (a) absent insight, (b) severe mood symptoms, and (c) his/her symptoms are coming in the way of decision-making. Family members usually find it difficult to manage individuals with serious mental illnesses, who have no insight, and usually, they refuse admission and treatment. This clause by default considers that everyone has capacity and one has to prove that person with mental illness lacks capacity before initiating involuntary treatment. One has to approach the mental health board to take permission to initiate involuntary treatment. There is no scope to take guardians’ consent to initiate involuntary treatment under the new Bill. This will add an enormous burden to family members and MHC providers in treating involuntary patients with severe mental disorders.[12] This clause is either to be deleted or to be considered informed consent from the parents and family members, or two doctors (preferably one of them is a psychiatrist) opinion is taken to initiate involuntary treatment. This can help the patient and also the family members in providing timely care. The Supreme Court of Canada has dealt similar issue in a well-known celebrity case referred as “Canada's Beautiful Mind” that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.[13] Hence, the new Bill needs to make provision for treatment (involuntary) in all supported (involuntary) admissions through informed consent from the parents and/or by family members to restore liberty by treatment. It has been stated very rightly that in the regulation of involuntary treatment, a balance must be found between duties of care and protection and the right to self-determination.[14] Advance directives Person with mental illness may revoke, amend, or cancel advanced directives many times in a day, and family members will be finding difficult to handle such situations. Only the mental health board has powers to amend or overrule the advance directive. This needs to be done in very short time to enable the treatment (24–48 h). If patient has written costly treatment or private/corporate hospital (which family cannot afford) in advance directives, then who will bear the cost of costly treatment. Considering the available human resources (Medical and Judicial), economic constraint, and our collective community efforts in treating patients with mental illness, our Indian population is not ready for such advanced directives. Above all these, research studies data do not support the use of advance directives in person with mental illness (Cochrane review). It would be prudent to do more research in this area in our population before to introduce this advance directive.[15] This advance directive operates on the basic premise that “if a person develops mental illness” Which mental illness? If multiple illnesses occur? If it becomes comorbid with physical illness? What severity? Under what circumstances? Above issues are wide open and threaten each individual. If an MHC provider writes an advance directive, he/she need to write for each disorder “if I develop mania,” “If I develop schizophrenia,” like a textbook, how he/she should be care or not to be cared. This advance directive will welcome more litigations and heavy burden on family members. It is advisable that advance directive needs to be kept out of the purview of the Bill.[16] The Cochrane database of systematic review on advance treatment directives for people with severe mental illness reported that there are too few data available to make definitive recommendations to introduce it.[17] Even in the West, this has certainly not had its intended benefit. For the Indian reality, to be rushing in with legislation on this count is rather hasty and ill conceived.[1418] Nominated representative A person with mental illness may revoke his/her decision of nomination of a representative as he/she suffers by reason of severe mental illness coloring his/her perception, alter many times in a day too. (1) Only mental health board has powers to overrule the nominated representative. (2) This needs to be done in very short time to enable the treatment. (3) If nominated representative is requesting for costly treatment (which family cannot afford), then who will bear the cost of costly treatment: is it family? or nominated representative? or the State? (4) Considering the available human resources (Medical and Judicial), economic constraint, and our collective community efforts in treating patients with mental illness, our Indian population is not ready for such a departure from family as a caregiver to a patient chosen nominated representative. (5) This nominated representative breaks the Indian family system who cares and bears the brunt of patents unpleasant behavior and still willing to support his/her treatment.[7] Ultimately, family may disown the patient and which may have serious consequences in the form of abandoning the patient and wandering mentally ill at large, which defeats the very purpose of the Bill in protecting the patient. Family members are the true value and assets in the Indian context to provide community care for persons with mental illness. Hence, family members are the natural guardians until proven otherwise. This “Nominated Representative” breaks the very backbone and fabric of our society “the family.” In all most, all the cases, family members are the caregivers this needs to be fostered and enhanced. This clause on Nominated Representative needs to be removed from the Bill.[16] Mental health review boards The district-level mental health review boards, which are quasi-judicial bodies overseeing the effective implementation of the MHC delivery could introduce new for treatment delivery and This could be because of of and other resources to at If issues are not this may in initiating treatment, which may enormous of stress on the care providers. in addressing the issue can defeat the purpose of the Bill. If boards do not on at each hospital then this can serious impact on the MHC of the Unfortunately, MHC is an similar to country where involuntary MHC is in the of MHC is a and costly mental health review boards need to have time to take with to capacity to consent for treatment The system is of such because of of and also with a huge of boards need to from the of review could be hospital review which can address those issues in a and timely at the Hence, it would be prudent to MHC hospital boards at hospital This MHC hospital board could be of health professionals, family caregivers, and patient. is to a board of at each hospital the of Mental Health Act, to similar to The Bill also to nominated representative to access to the of the persons with mental illness. Mental health professionals have over of it as of as the However, to the Bill, MHC needs to be with the nominated representative. This issue on the rights to Hence, there is a need to introduce a clause that will be only with family members and will be in form or medical will be only with on a written for of of the provisions of the are too and there is no provision for whether is or due to or is under such as Act, and and laws for medical There are other such as Rights and to protect the rights of the persons with mental illness. Unlike the other behavior and of mentally ill are in patients with people are to against or other which may true because of his/her illness but are not This MHC can to a and to care of such patients will only such patients and their family members. This will also the cost of There should be a provision for an health board at hospital levels to review such and only which have found to be true should be referred to the Mental Health there will be the hospital and other more time in the in hospital treating The is to be for patient care and treatment in the This clause is but may not be in care and only the patient can be or the treatment. The decision of treatment or not is the of the patient. should not be considered as as it is not without of the patient and family members. If the law are very serious about this issue of “the of then they should enable the MHC providers and family members by the Unfortunately, the Bill is silent on the community treatment of community treatment may a significant role in providing care for the ill patients and also the of the family members and caregivers. of community treatment to the family members and caregivers them to provide care. The community treatment to of person with mental illness, use of of inpatient treatment, violence, and to the of the mentally Hence, there is a need to have a community treatment in The community treatment is and can be with our society and of such law can in of care for research The Bill mandates Mental Health to permission for many and can or research in persons with mental illness. There is a need to this clause to permission for and to with the of family members during admission and treatment The Bill the role of family members in providing care in hospital The Bill needs to make provisions that at one family needs to be with the patient during inpatient treatment. There is a need that family members need to be in the provision of the care. This not only rights but also family members in treatment such as and family to be and also in rehabilitation which huge in and of the treatment.[7] If there are no family members, the medical board two mental health will of the of family Hence, there should be on such admissions along with their or to encourage family support during which physical support to the person with mental illness.[7] family members will the mental hospital to the of and Many such as and many other centers for across India have the of family during inpatient care. A clause needs to be introduced involuntary inpatient treatment is by default one family needs to and be with the persons with mental illness during inpatient treatment. The for inpatient for supported admission needs not when family members are in the and in treatment and A for admission with family members needs to be introduced and family support system to provide to the that have been beyond in Indian research across the of of persons with severe mental illness is completely and integration of mentally ill into the community and of their assets and are completely There is a need to have this issue of of of persons with severe mental illness to be in the proposed Bill. The treatment and need to be as the guidelines. The board needs to take the bodies opinion in case of in treatment and is a form of treatment for patients with of suicidal and and In treatment, is a form of treatment and in has been in the Bill. If this clause is not effective treatment will be to the patient can be is usually in ill for the for in or is the treatment. needs to have the right to about treatment with the consent of family members. The Bill should not or on acceptable of resources The Bill is highly with the which is similar to the society resources are in many India. The issue in our society with to the of implementation of the MHC Bill is the of There have been serious about the of resources such as and and also will for implementation of the Bill. The major is of in the and There are problems such as inadequate mental health for and of the available mental health resources to general health In of mental health the and to the If mental health services are not available in the where the patient then that such person is to access other mental health in the and the of treatment at such establishments in that will be by the appropriate This based mental health issues can to and many of them of the existing meager of the the Bill needs to and make provisions and a through and detailed in the Bill for mental health on similar of Mental Health of in the The Bill needs to introduce for of a time There is also an need to introduce at the that should to treat mental This responsibility needs to be to a for and the of The need of the is in addressing major such as of mental health and which are the major to psychiatric services in the community.[4] of The Bill is silent and does not the to for of or the resource for the Bill is highly in the and also in the area of mental health treatment. Hence, training of needs to be considered to the existing The Bill should provision of adequate resources for of There has been a major shift from or care as in the Indian Act, when the effective treatment was to the Mental Health of 1987 that mainly focused on the treatment and care of mentally ill with efforts to reduce and cater for their human to the MHC Bill of 2016 that focuses mainly on the human rights of persons with mental illness and their the care of the persons with mental illness. the Bill, there an of the and of mental ill patients along with that the It is prudent for the to account for the of the developments in the mental health the needs of the patients and family, make provisions to the treatment make provisions to the resources and health in the of mental provide services, promote such and make provisions for adequate and while law of the The need of the is a law that can be implemented in that can cater to the health needs at all levels of and levels of while protecting the human rights of the mental health as as the and their support and of interest There are no of

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