MHCB 2013Overview and Critical analysis

Dr. Cijo Alex

PG trainee in Psychiatry,

SMVMCH, Pondicherry

Contents

Background and need for mental health legislation

Evolution of mental health legislation in India

Overview of MHCB 2013

Critical analysis of MHCB 2013

Background

The need of mental health legislationNecessary for protecting the rights of people with mental disorders, a vulnerable section

of society

To address the stigma, discrimination and marginalization in all societies and increased likelihood of human rights violations

Provide a legal framework for addressing critical issues such as:

• Community integration of persons with mental disorders

• Provision of high quality care, improvement of access to care

• Protection of civil rights, promotion of rights to housing, education and employment

(WHO Resource Book on Mental Health, Human Rights and Legislation, 2005)

Earliest Acts from Britain :

Act for regulating private Madhouses, 1774 and County Asylums Act, 1808.

In British India, treatment and care of the mentally ill were governed by the following acts.

1. The Lunacy Supreme court Act 1858(Act XXXIV of 1858)

2. The Lunacy District Courts Act 1858 (Act XXXV of 1858)

3. The Lunatic asylum Act 1858 (Act XXXVI of 1858)

4. The Indian Lunatic Asylums (Amendment)Act 1886 (Act XVIII of 1886)

5. The Indian Lunatic Asylums (Amendment)Act 1889 (Act XX of 1889)

Evolution of Mental Health Legislation in India

• Indian Lunacy act 1912

• Mental Health Act 1987

• Mental Health Care Bill 2013

• Disabilities act 1995

Mental Health Care Bill 2013

According to the Convention on Rights of Persons with Disabilities in December 2006 at UN HQ, New York, which India signed on October

2007, the MHCB 2013 was drafted.

The MHCB 2013 is intended to replace the MHA of 1987

Overview of MHCB 2013

The MHCB 2013 has 136 clauses arranged in 16 chapters

Chapter I - Preliminaries

Chapter II – Determination of Mental illness and Capacity

Chapter III – Advance directive

Chapter IV – Nominated representative

Chapter V – Rights of persons with mental illness

Chapter VI – Duties of appropriate government

Chapter VII – Central Mental Health Authority

Chapter VIII – State Mental Health Authority

Chapter IX – Finance, Accounts and Audit

Chapter X – Mental Health Establishment

Chapter XI – Mental Health Review Commission

Chapter XII – Admission, Treatment and Discharge

Chapter XIII – Responsibilities of other agencies

Chapter XIV – Restriction of functions by Professions

Chapter XV – Offences and Penalties

Chapter XVI – Miscellaneous

Salient clauses under each chapter includes

Chapter I - Preliminaries

Clause 1 – Title, Extent and Commencement

Clause 2 - Definitions

Mental health establishment means any health establishment, including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy establishment and will include general hospitals also

MHP means either a Psychiatrist , Psychologist , PSW , MHN or any one with a qualification in Ayurveda , Unani or Homeopathy

Minor means a person who has not completed the age of eighteen years

Psychiatrist means a medical practitioner possessing a post-graduate degree or diploma in psychiatry awarded by an university recognized by the University Grants Commission

Chapter II – Determination of Mental illness and Capacity

Clause 3 – Determination of Mental illness

Internationally accepted criterion like ICD to be used

Clause 4 – Capacity

Every person , including a PMI is deemed to have capacity to make treatment decisions if he/she can

Understand the relevant information

Retain that information

Use that information and

Communicate his decision.

Chapter III – Advance directive

Clause 5 – Advance directive

Every person , who is not a minor , shall have the right to make an advance directive in writing specifying

How to be cared for mental illness

How not to be cared for mental illness

Clause 6 – 13 – Clauses related to advanced directive

An advanced directive can be made in writing on a plain white paper with signature or thumb impression and attested by two witnesses And registered in the Board And signed by a MHP stating he is having the capacity to do so

The advanced directive can be revoked , amended or cancelled by the person at anytime

The advanced directive is not valid in emergency treatment under section 103

The board has the right to cancel or modify the advanced directive if needed

Chapter IV – Nominated representative

Clause 14 – Nominated representative

Every person , who is not a minor , shall have a right to appoint a nominated representative

The nomination can be made in writing on a plain paper with the persons signature or thumb impression

If no representative is available , a relative or any one appointed by the board will act as nominated representative

Clause 15 – 17 – Clauses related to nominated representative

The board has the right to revoke , cancel or change of the nominated representative

Duties of nominated representative includes giving support to the PMI

Chapter V – Rights of persons with mental illness

Clause 18 – Right to access mental health care

Clause 19 – Right of community living

Clause 20 – Right of protection from cruel, inhuman and degrading treatment - Right to live in safe and hygienic environment , to live in privacy , not to be forced to work in the MHE , not to be forcefully head shaven and not to be forced to wear uniforms

Clause 21 – Right of equality and non – discrimination

Clause 22 – Right to information - The PMI and nominated representative will have the RTI for the clause under which patient is admitted, nature of illness and treatment options available.

Clause 23 – 25 – Right of confidentiality and right to access medical records

Clause 26 – Right to personal contacts and information - Right to receive and refuse visitors , Right to receive and make phone calls

Clause 27 – Right to legal aid

Clause 28 – Right to make complaints

Chapter VI – Duties of appropriate government - Clauses 29 –32

Chapter VII – Central Mental Health Authority - Clauses 33 – 44 – Composition and duties of CMHA

Chapter VIII – State Mental Health Authority - Clauses 45 – 56 –Composition and duties of SMHA

Chapter IX – Finance, Accounts and Audit - Clauses 57 – 64 –Grants, Funds and auditing

Chapter X – Mental Health Establishment - Clause 65 – 72 -Registration, review and inspection of MHE by board

Chapter XI – Mental Health Review Commission

Clause 73 – 93 - Composition and duties of MHRC and MHRB - Board The MHRC will be HQ at Mumbai MHRC shall consist of a President and four members President would be a High Court Judge Members include a Psychiatrist , a PMI , a Care giver or NGO and a Public

administrator

The MHRB or Board will be headed by the District Judge Members include two MHP with at least one Psychiatrist , Representative

of District Collector and two PMI/Care givers/NGOs

Chapter XII – Admission, Treatment and Discharge

Clause 95 – Independent admission

Any person , who is not a minor and who considers himself to be mentally ill can be admitted to any MHE for treatment , provided

He has the severity needed for admission

He will benefit from the admission and

He has the capacity to consent.

Clause 96 – Admission of a minor

The nominated representative should apply to the Psychiatrist

Two Psychiatrists or One psychiatrist and one MO or One psychiatrist and one MHP should independently see the minor and certify the need for admission.

Minor should be accommodated separately from adults and along with the nominated representative

Board should be informed within 3 days of admission.

Clause 97 – Discharge of Independent admission

Any patient admitted under section 95 as an independent patient has the right to be discharged at any time.

However a MHP can prevent the discharge of a PMI admitted under section 95 for a period of 24 hours so as to assess him for admitting under section 98.

Clause 98 – Supported admission

The nominated representative should apply to the psychiatrist

Two Psychiatrist or One psychiatrist and MO or One psychiatrist and one MHP should independently see the PMI and certify the need of admission as

Threat to self

Threat to others or

Threat to objects and

Inability to make valid and competent decisions

Admissions under section 98 should be informed to the board within 3 days if minor or lady or else within 7 days.

The period of admission under section 98 would be 30 days

After 30 days , PMI may be admitted under section 99

Clause 99 – Supported admission beyond 30 days

If a PMI needs supported admission beyond 30 days or if a PMI needs readmission within 7 days of discharge , then section 99 should be used

Clause 100 – Absence on leave

A PMI admitted under section 96 , 98 or 99 maybe granted leave from the MHE by the psychiatrist

Clause 101 – Absence without leave or discharge

A PMI who absents himself from the MHE without leave or discharge is liable to be taken under protection by the Police upon request from the MHP

Clause 103 – Emergency treatment

Any Registered Medical Practitioner can initiate emergency treatment to any PMI if there is

- Threat to self

- Threat to others or

- Threat to objects or property

Advanced directive is not valid for emergency treatment

ECT should not be used as an emergency treatment

Clause 104 – Prohibited procedures

ECT without anesthesia

ECT for minors (below 18)

Sterilization as a treatment for mental illness

Chaining in any manner

Clause 105 – Psychosurgery

Psychosurgery needs informed consent and permission of the board

Clause 106 – Physical restraints

Should be used only when absolutely needed and least restrictive method to be used

Chapter XIII – Responsibilities of other agencies

Clause 109 – Duty of police

It is the duty of the police to bring any PMI wandering to a MHE

They should not be put in lock up or jail

Chapter XIV – Restriction of functions by Professions

Chapter XV – Offences and Penalties

Chapter XVI – Miscellaneous

Clause 124 – Decriminalization of Suicide

Any person who attempts to commit suicide shall be presumed to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under this section. (ie dissolution of IPC 309)

Critical Analysis of MHCB 2013

Comparison of MHA 1987 and MHCB 2013

MHA 1987 MHCB 2013

Terminology Mentally ill PMI , MHE , MHP

Focus Law Rights of PMI

Authorities Government CMHA , SMHA , MHRC , MHRB

Newer provisions Advanced directive ,

Nominated representative , Emergency

treatment , Prohibited ECT and MECT to

minors , Prohibited Chaining,

Decriminalization of suicide.

IPS position statement of MHCB 2013

Modern in terminology and its approach is progressive

Exemption from prosecution to those who attempt suicide is much needed and most welcome

Blanket prohibition of ECT for patients below 18 years is based on sentiments rather than on science. There is no evidence whatsoever that ECT is unsafe below age 18 years.

Prohibition of Unmodified ECT would stop the ECT from being administered at small and remote locations - anesthetic support is not available even for routine surgery.

Advance Directives: Most of the countries where it has been used have had mixed results.

Also James Antony et al and Narayan et al have critically evaluated the MHCB in IJP along with many others in various journals like Delhi

Journal of Psychiatry and popular media.

Summary of Critical appraisal of MHCB 2013

Merits of MHCB 2013

Newer and reformed terminology like PMI , MHP and MHE

Decriminalization of suicide

Focus on the rights of PMI

Stringent rules in supported admission

Newer options like advanced directive, nominated representative etc.

Drawbacks of MHCB 2013

Over inclusiveness of mental illness Avoidance of MR from mental illness An array of new bodies like CMHA , SMHA , MHRC and MHRB which

requires huge funding Poor representation of Psychiatrist in bodies like MHRC and MHRB Over inclusion of traditional system professional’s into the definition of

MHP Avoiding MECT in minors without any scientific basis Need to report to MHRB every details which may cause delay in patient

care How advanced directive will be accepted in a traditional country like India

Thank You