Mind Matters: Revisiting the Mental Healthcare Act, 2017

Cutting Edge

Mind Matters: Revisiting the Mental Healthcare Act, 2017

Dr. Madhusudan Dalvi | November 2024

The Hindu scriptures acknowledge the trials and tribulations of the mind. Additionally, they bring to the fore repercussions for those who do wrong. The biggest enemy of modern-day society is a mental illness which can be on a spectrum of mild to severe, which needs attention, and proper diagnosis, and necessitates admission under the Mental Health Act. Legislation is about protecting the most vulnerable section of society (patients with severe mental health problems certainly fall in this category), and it also helps by putting measures in place to punish those who manipulate or mistreat them.

MENTAL HEALTH LEGISLATION IN INDIA SINCE 1858

The 1858 Indian Lunacy Acts was enacted as a direct successor of the English 1845 and 1853 Lunatics and County Asylums Acts. Under these acts, patients were detained for an indefinite period, hence the Indian Lunacy Act (ILA) 1912 came into force to change this. This next big change was when the Mental Health Act 1987 (MHA 1987) came into force. However, this was only implemented in 1993 and this Act regulated and set standards for inpatient psychiatric facilities and est• Criteria for compulsory admission should be based on substantial risks of significant harm to the patient’s health and safety, present and continuous risks, and real and immediate risks. The Indian Act needs to identify a threshold for this.ablished procedures for guardianship for patients who needed it. The Mental Healthcare Act, 2017 (MHCA 2017), which repeals the MHA 1987, came into force in May 2018 to make it UNCRPD compliant. Unfortunately, the Act is not a fusion legislation, and it does not encompass physical and mental health needs in one legislation. The capacity provisions in the Act are limited to making mental healthcare decisions, and it does not specify the capacity to consent as a criterion for admission.

The guiding principles of any progressive mental health law should include the following:

Equity, Respect, and dignity, so that everyone, from children to the elderly, benefits from the law that the Indian Act embraces.
The purpose principle for admission needs a proportionality element in conjunction with a therapeutic benefit test for treatment. This needs to be better defined in the Indian Act.
Criteria for compulsory admission should be based on substantial risks of significant harm to the patient’s health and safety, present and continuous risks, and real and immediate risks. The Indian Act needs to identify a threshold for this.
Capacity test for compulsory admission in keeping with autonomy which is lacking.
Speedy rights to appeal against detention which are present but practical aspects are unclear.
Consider a Fusion Law, i.e. physical and mental health together which should be designed to prevent suicides. The Indian Act is not a fusion legislation.

The MHCA 2017 is a human rightsbased, culturally sensitive Act as it covers not only Western psychiatric approaches but also the most appropriate psychological and pharmacotherapeutic interventions from the Indian cultural perspective e.g. Ayurvedic treatments which is a unique aspect that distinguishes itself from other Western mental health legislations. Despite this highly progressive piece of legislation that looks at equity, least restrictive options, human rights, and dignity, this Act is rarely used for compulsory admission, and sadly in a subset of patients, it denies treatment that can be beneficial for some and lifesaving for others.

The MHCA 2017 has 126 sections contained in 16 chapters and the key reforms in addition to individual rights include Advanced directives in Sec 5(3), nominated representatives, and mental health review boards in Chapter 11.

CODE OF PRACTICE – THIS IS THE FACE OF THE ACT AND SHOULD BE ALWAYS FOLLOWED.

The Code of Practice is prescribed by the “Act” itself. Section 81 of the MHCA 2017 states “The Central Authority shall appoint an Expert Committee to prepare a guidance document for medical practitioners and mental health professionals, containing procedures for assessing, when necessary, the capacity of persons to make mental health care or treatment decisions.” It also states, “Every medical practitioner and mental health professional shall while assessing the capacity of a person to make mental healthcare or treatment decisions, comply with the guidance document referred to in subsection (1) and follow the procedure specified therein.” However, the standards of practice may need to be upgraded periodically based on the facts emerging from unconsidered scenarios, legal changes in the form of case laws or new legislation, governmental policy changes, recommendations of entities such as WHO and FDA, analysis of peer-reviewed research published in international journals, and development of new technologies.

DEFINITION OF MENTAL ILLNESS

Mental illness is now defined in Chapter 1. It is defined as a substantial disorder of thinking, mood, perception, orientation, or thought that seriously impairs behavior, capacity to recognize reality, or ability to meet daily needs; mental conditions associated with the abuse of alcohol and drugs; but does not include learning disability. The definition refers to a substantial disorder, but mental disorders are multidimensional, cut across a spectrum, and mild illness can become severe. The word “capacity”, which is referred to in the definition, is a legal term. Hence, it must be substituted with a clinical term such as “ability” or “competence”. Some other aspects of the definition need to be debated, e.g., whether to include severe challenging behaviour in patients with learning disability on the one hand and on the other hand, whether we need to exclude patients with substance abuse disorders who don’t present with mood or perceptual changes.

KEY PROVISIONS OF THE ACT

Important Rights of persons with mental illness are in keeping with the broad principles of human rights.

Section 20. Right to protection from cruel/inhuman/degrading treatment
Section 21. Right to equality and nondiscrimination
Section 22. Right to be informed about their mental health conditions
Section 23. Right to confidentiality of personal information. Do not disclose without their consent
Section 25. Right to access medical records. Therapists may withhold specific information if disclosure would result in serious harm to the patient/other persons.
Section 26. Right to personal contacts and communication so that they can communicate with family members
Section 27. Right to legal aid. It is the duty of the magistrate
Section 28. Right to make complaints about deficiencies in the provision of services to a health professional

ADMISSION, TREATMENT, AND CAPACITY –

Section 86(2)(c) states that independent admissions (i.e., informal/ voluntary) require the capacity to consent to make mental healthcare and treatment decisions without support or with minimal support. For admission under Section 89(1)(c) for supported (i.e., involuntary) admissions for 30 days (about 4 and a half weeks), there is no capacity to consent criterion for admission. 89(1)(c) states that the person is ineligible to receive care and treatment as an independent patient because the person is not able to make mental healthcare and treatment decisions independently and requires very high support from his nominated representative in making decisions.
Under Section 90 where a patient can be admitted as an involuntary patient for 90 days (about 3 months), extending this in the first instance to 125 days (about 4 months) and then to 180 days (about 6 months).
Sec 89 (7) also states that if the patient requires nearly one hundred percent support from his nominated representative in deciding concerning treatment, the nominated representative may temporarily consent to treatment on the patient’s behalf. There can be safeguarding issues here as a nominated representative may not act in a patient’s best interest. Hence, a best-interest decision with wider consultation is required to protect patients.
Mental Health administrative bodies – Central and State Mental Health Authority: These are administrative bodies that are required to:

Register, supervise, and maintain a register of all mental health establishments,
Develop quality and service provision norms for such establishments,
Maintain a register of mental health professionals,
Train law enforcement officials and mental health professionals on the provisions of the Act,
Receive complaints about deficiencies in the provision of services, and
Advise the government on matters relating to mental health.

DEBATES AND AMENDMENTS – KEY ASPECTS OF COMPULSORY ADMISSION THAT NEED A REVIEW.

Capacity	Debate	Outcome
Capacity criterion for compulsory admission	Should this be included to respect patients’ autonomy and wishes if the patient has the capacity and refuses admission?	If the capacity criterion is not included as it currently stands, does the risk threshold for admission need to be set at the right bar which should include Present and Continuous risk/ Real and immediate Risk and Proportionality
Capacity and suicide	This is a specialist assessment due to its complexity. This is a legal loophole that needs to be closed to prevent suicides.	Risk assessment may need to specify the patient’s values and whether these are now inconsistent with the patient’s past wishes to live.
Eating disorders and admissions (Prevalence increasing in India	Capacity assessment here is a complex specialist assessment.	Eating is a basic human right vs Risks of death due to starvation.
Treatability test	Admission should hinge on therapeutic benefits and treatment response.	Psychiatric treatment scrutiny by secondopinion doctors includes giving opinions on high doses, including treatment resistance
Scrutiny of detained patients	The Act protects patients who need to be treated for more than 30 days (about 4 and a half weeks) and states the case should be reviewed by 2 psychiatrists but fails to state whether these are independent of each other and whether this is only about review of admission and discharge or also should review medications. There needs to be a fair assessment by the second opinion authorized doctors to certify treatment.	There needs to be a role for the MH board psychiatrist to specifically look at a treatment or create a separate pool of second-opinion authorized doctors.
Nominated Representative Role of MH Administrative Bodies	SEC 89(7) NR can consent temporarily on behalf of the patient if the patient needs 100% support. Do these need review for them to assume greater power e.g. investigating suicides and root cause analysis?	This needs to be scrutinized by the board as the NR may not act in the best interests. The panel of doctors should be able to give directions about treatment to the inpatient facility

Mental Health Establishments: In the past, mental health facilities solely featured hospitals and nursing homes for those with mental illnesses. Later, under the Act, establishments for Ayurveda, Yoga, Naturopathy, Unani, Siddha, and Homeopathy were also included under government administration. Additionally, it says that the Act requires all mental health facilities to register with the appropriate central or state mental health authority. The Center and state-level medical institutes have a responsibility to keep track of people who are mentally ill and receiving medical treatment. A list of the professionals who are professionally qualified to deliver healthcare must be kept up to date by the state authority. These establishments must meet specific requirements as listed in the Act to register, and no person/ organization can establish or run a mental health establishment unless it has been registered with the appropriate Authority. The Authority may, suo motu or on a complaint received from any person for non-adherence to minimum standards specified by or under this Act or contravention of any provision thereof, order an inspection or inquiry of any mental health establishment, to be made by such person as may be prescribed.
Mental Health Review Commission (MHRC) and Board: The Commission shall, with the concurrence of the state governments, constitute Mental Health Review Boards in the districts of a state. The Board will comprise a district judge, a psychiatrist, a medical practitioner, a service user, and a carer and the board has the power to
- Register, review/alter/cancel an advance directive,
- Appoint a nominated representative,
- Adjudicate complaints regarding deficiencies in care and services,
- Receive and decide on an application from a person with mental illness/his nominated representative/any other interested person against the decision of a medical officer or psychiatrists in charge of a mental health establishment.
Decriminalizing suicide and prohibiting electro-convulsive therapy: A person who attempts suicide shall be presumed to be suffering from mental illness at that time and will not be punished under the Indian Penal Code. The Act recognized that not all suicides are due to mental disorders; some may be due to social issues, and some are due to interpersonal issues. Electroconvulsive therapy is allowed only with the use of muscle relaxants and anesthesia. The therapy is prohibited for minors.
Suicide and the MHCA 2017. Decriminalization of suicide has been a welcome move and will help to remove stigma. The very complex issue of suicide and capacity hence becomes relevant as it overlaps with the MHCA 2017 but isn’t addressed in the Act. This is particularly relevant as regards compulsory admission in some cases. There is a desperate need to close this legal loophole as suicide is a big and growing problem in India and the absence of a National Suicide prevention strategy puts a big responsibility on legislators. Hence, we need to use the MHCA appropriately to prevent suicide and this power should not be undermined. It should be used appropriately to save lives. If patients who commit suicide, were not detained under the MHCA, there should be procedures in place for the MHRC to investigate this. They should investigate whether the patient had been denied treatment or hospital admission (and if so, why), the capacity, and consent of the patient, and whether a breach in the duty of care led to the suicide. The Root Cause Analysis should be followed by a series of recommendations for future suicide prevention and the panel should provide a narrative verdict in patients not detained under the MHCA 2017 but should give an expanded verdict in those detained under the Act. The latter may suggest whether there was any causation and whether this minimally, negligibly, or trivially contributed to the death.
Responsibilities of Mental Health Professionals: Mental health professionals should be fully conversant with the provisions of MHCA 2017, and the rules and regulations made under this act. They should maintain legible contemporaneous medical records of all outpatients and inpatients and a report of the psychological assessments and release it upon request by the patient or appointed representative.
Penalties and offenses: Important liabilities are in the domains of the registration of professionals and institutions, maintenance of records, promoting the rights of persons with mental illness during treatment, and following the provisions of MHCA 2017 during admission and discharge. Punishment for contravention of provisions of the Act or rules or regulations made thereunder is clear and stringent and may vary from fines to imprisonment. Repeat offenders may face more severe fines and prison sentences.

PRINCIPLES OF MEDICAL ETHICS AND HUMAN RIGHTS –

Western medicine is underpinned by the Hippocrates’ oath “Primum nocere nocerum,” i.e., first, do not harm. Ancient Hindu scriptures speak about ethics in various texts. In modern times, Emmanuel Kant speaks about beneficence, nonmaleficence, autonomy, and justice, and after the Second World War, bioethical principles adopted this model as well. The principles of choice, capacity, and consent are in keeping with human rights and underpin a doctor-patient relationship. Shared decision-making hence becomes fundamental when a patient’s choice, which can be value-based, conflicts with the doctor’s opinion based on his or her professional knowledge. Here the patient’s values, beliefs, and unwise decisions need to be respected on the one hand and a best-interest decision should be made on the other hand if the patient lacks capacity. Where a patient’s past wishes conflict with present wishes, the strength of current wishes and factors of magnetic importance need to be considered. Specific Ethical issues in Psychiatry other than professionalism (specialist knowledge, and they should only practice within their field of competence and not stray out), include not abusing their power in therapeutic relationships, confidentiality, respect for patient’s autonomy, and professional independence.

ETHICS OF CONSENT IN CHILDREN.

Neuroscientific evidence states that myelination of the frontal lobe can continue till age 21. The frontal lobe is involved in judgment and higher-order cognitive functions hence generally 18 years is the cut-off, but this cannot be generalized and patients as young as 12 years can also have the capacity to consent. However, a careful distinction needs to be made between Consent and Assent.

THE ROLE OF THE MEDICAL COUNCIL OF INDIA

All medical practitioners in India are subject to the Medical Council of India’s (MCI’s) code of medical ethics, which includes codes for character, conduct, quality of care, and avoiding unethical conduct or care. One of the primary recommendations of the MCI is that all medical practitioners should follow the law of the land and ensure that they evade no legal stipulations. However, the MCI does not specify a code of ethics for psychiatrists.

CHANGES REQUIRED – A NATIONAL FRAMEWORK FOR GOOD MEDICAL PRACTICE CONSIDERING

Capacity	Debate	Debate	Outcome
GMP domain	Yearly appraisals by an appointed medical practitioner who marks against these standards	Standard of care in defined Levels Level 1- Generic skills Level 2- Specialty Level 3- Subspecialty Level 4- specific job	Fitness Panels comprised of experts to look at doctors failing in standards of care
Knowledge and skills	CPD certificate	Meets/doesn’t	To look at whether the doctor keeps up with the standards required to practice safely
Safety and Quality	Deaths, Drug errors	Meets/doesn’t	Breach of care and causation
Communications MDT feedback	Patient feedback Meets/doesn’t		Has the doctor reflected on feedback and taken remedial measures
Trust	Patient feedback	Meets/doesn’t	Has the doctor reflected on feedback and taken remedial measures

DIAGNOSTIC INACCURACY IN PSYCHIATRY, NEED FOR 2ND OPINIONS.

The diagnostic method used in psychiatry is behavioral observations and for functional disorders like anxiety, depressive illness, and schizophrenia, there are no blood tests or any other investigations that can clinch the diagnosis. Diagnoses are polythetic inequal, and symptoms used in diagnosis are on a dimension and spectrum from mild to severe e.g. anger, impulsivity, and grief can be understandable in the right context, but the only difference is in the frequency or severity and persistence, so what initially starts as an adjustment disorder can spill into a depressive disorder. The duration of hypomania of less than 4 days is debated widely by experts and hence these often need good expert assessments and sometimes a second opinion. Though the reality of mental illness is now accepted by all, there are still gray areas that do not fulfill the robust criteria of diagnosis, e.g., personality disorders, which can range from mild to severe, and the impact of their actions can be devastating for their victims. The addition of new illnesses, a variant of old illnesses to the diagnostic criteria is the norm e.g. obsessivecompulsive disorder has moved out of the anxiety disorder group into its category and PTSD has its category under Traumarelated disorders. In child psychiatry, Variants of old illnesses like Anorexia taking a new form of drunkorexia, and Dilimia (diabetes and bulimia) have appeared and new ones like Parental alienation syndrome have now been debated widely on whether this should be included.

Continuous revision and updating of diagnostic criteria are the only ways by which psychiatry can avoid the criticism of being labeled a pseudoscience. Mental health professionals must document their observations correctly and in detail (especially about family dynamics), get inputs from multiple sources such as family members, employers, school or college teachers, and primary physicians, and then only draw their conclusions. A scientific diagnosis is essential to ethical practice.

CONCERN ABOUT THE LACK OF A CODE OF ETHICS FOR PSYCHIATRISTS PRACTICING IN THE COUNTRY.

After the MHCA 2017 had come into force in 2018, the Delhi High Court expressed concern about the lack of a code of ethics for psychiatrists practicing in the country. The Court was concerned because the interpretation of the “Act” by various mental health professionals was flawed in many ways. In the landmark judgment “Dr. Sangamitra Acharya and ANR vs. State (NCT of Delhi) and ORS, the Delhi High Court had said,” If there is no code of ethics for psychiatrists in this country, it would be indeed a serious lacuna which ought to be remedied.…. The MCI should formulate a separate code of ethics for psychiatrists to follow, which will reinforce the law.” In its recommendation, the High Court went on to prescribe, “The Delhi Police shall prepare a manual detailing how to deal with cases under the MHA and after July 8, 2018, the MHCA 2017. It must prepare a protocol in consultation with legal experts as well as experts in mental healthcare and spread awareness on the issue of mental health.”

ERRORS OF OMISSION AND COMMISSION IN PSYCHIATRIC PRACTICE

Rushing to a diagnosis. To arrive at a primary psychiatric diagnosis, all secondary causes must be ruled out. This includes systematic screening for druginduced psychopathology, ruling out the possibility of an underlying medical condition, asking questions about medical and family history, a review of organ systems, and ordering key laboratory tests.
Skipping a baseline cognitive assessment. A standardized cognitive battery can provide a valuable profile of brain functions. Knowing about the patient’s cognitive strengths and weaknesses before initiating pharmacotherapy is essential to assess the positive or negative impact of the medications.
Inaccurate differential diagnosis. Is it borderline personality or bipolar disorder? Is it unipolar or bipolar depression? Is it a conversion reaction or a genuine medical condition? The answers to such questions are critical because inaccurate diagnosis can lead to a lack of improvement and prolonged patient suffering or adverse effects that could be avoided.
Using a high dose of a medication immediately for a first-episode psychiatric disorder. Gradual titration can circumvent intolerable adverse effects and help establish the lowest effective dose. Patient acceptance and adherence are far more likely if the patient’s brain is not “abruptly medicated.”
Using combination therapy right away. It always makes sense to start with 1 (primary) medication and assess its efficacy, tolerability, and safety before adding an adjunctive agent. Using drug combinations as the initial intervention can be problematic, especially if they are not evidence-based and off-label.
Selecting an obesogenic drug as first-line. Many psychotropics, such as antipsychotics, antidepressants, or mood stabilizers, often come as a class of several agents. The major difference among what often is called “me too” drugs is the adverse effects profile.
Using benzodiazepines as a firstline treatment for anxiety. Although certainly efficacious, and rapidly so, benzodiazepines must be avoided as a first-line treatment for anxiety. The addiction potential is significant, and patients with anxiety will subsequently not respond adequately to standard anxiolytic pharmacotherapy, such as an SSRI, because the anxiolytic effect of these other medications is gradual and not as rapid or potent.
Low utilization of some efficacious agents. This includes lithium for a manic episode; a long-acting injectable antipsychotic in the early phase of schizophrenia; clozapine for patients who failed to respond to a couple of antipsychotics or have chronic suicidal tendencies; lurasidone or quetiapine for bipolar depression (the only FDA approved medications for this condition); or monoamine oxidase inhibitors for treatment-resistant depression.
Not recognizing tardive dyskinesia (TD). TD is a serious neurologic complication of dopamine-receptor working agents (antipsychotics). It is essential to identify this adverse effect early and treat it promptly to avoid its worsening and potential irreversibility.
Other errors of omission or commission includ:

Not collaborating actively with the patient’s medical doctor to integrate the medical care to improve the patient’s overall health, not just mental health. Collaborative care improves clinical outcomes.
Not using pharmacogenetics testing to provide patients with “personalized medicine,” such as establishing if they are poor or rapid metabolizers of certain epatic enzymes or checking whether they are less likely to respond to antidepressant medications
“Lowering expectations” for patients with severe psychiatric disorders, giving them the message (verbally or nonverbally) that their condition is “hopeless” and that recovery is beyond their reach. Giving hope and trying hard to find better treatment options are the foundation of good medical practice.

CONCERN ABOUT THE USE OF ANTIDEPRESSANTS IN PATIENTS UNDER THE AGE OF 24 YEARS, HIGH-DOSE ANTIPSYCHOTICS, UNLICENSED USE OF MEDICATIONS

In 2006, the Food and Drug Administration (FDA) issued a black box warning for nine antidepressants (citalopram, fluvoxamine, paroxetine, fluoxetine, sertraline, venlafaxine, mirtazapine, nefazodone, and bupropion) after a meta-analysis showed that children taking anti-depressants were almost twice as likely to have suicidal thoughts or to attempt suicide as the children receiving placebo. The black box is the most severe warning the FDA can place on a drug, and it warns that antidepressant usage for children and adolescents increases the risk of suicidality. Later that year, the FDA expanded the warning to include 36 antidepressants and raised the upper age limit of potentially vulnerable patients from 18 years to 24 years (so that it includes children, adolescents, and young adults). If medications are not licensed and have certain grave side effects but may in some cases be effective like antidepressants in patients under the age of 24 years, and high-dose antipsychotics in very disturbed patients’ policies and protocols need to be followed and documented. The current Act protects patients who need to be treated for more than 30 days (about 4 and a half weeks) and states it should be reviewed by two psychiatrists but does not state whether these are independent of each other and whether this is only about the review of admission and discharge or also should review medications.

RESPONSIBILITY OF THE MENTAL HEALTH PROFESSIONAL TO MAKE THEIR PATIENTS’ HOMES SAFER.

It is the responsibility of the Mental Health Provider to protect those at risk for suicide by helping and guiding their families in making homes safer. Although, it is not possible to make a home perfectly safe, asking the families to follow the suggestions listed below, can help reduce the risks and chance of a suicide attempt.

Lock away guns, knives, razor blades, and other sharp objects.
Keep all medications, both prescribed and non-prescribed, in a locked box.
Keep track of bottles of alcohol and lock them away.
Keep your vehicle keys with you or consider locking them in a lock box when not in use.
Lock all toxic household cleaners, pesticides, and industrial chemicals away
Consider limiting ropes, electrical wire, and long cords within the home or lock them away
Do not live in high-rise buildings, secure/lock high-level windows and access to rooftops.
Parents and caregivers should monitor the online activities of their loved ones.

THE USE AND MISUSE OF PSYCHIATRY

It is important to realize that psychiatry has been misused in many countries to crush dissent among non-conformists, and this applies to the controlling parent who wants the child to abide by their wishes. Practitioners who treat children and adolescents must be extra vigilant about the motivation or psychopathology of the parent or guardian, and the possibility of child abuse, reckless endangerment, and instigation of suicide. In a study, published in the journal Suicide and Life-Threatening Behavior, the researchers identified a stark correlation between both poor mother-daughter relationships and high degrees of conflict – with the likelihood of suicidal thoughts. The researchers found that rates of suicidal thoughts and recurrent thoughts of death were higher among teenage girls with a history of maltreatment than those without. Maltreatment includes emotional, physical, and sexual abuse, and emotional and physical neglect. Their findings suggest that disruptions to a positive mother-teen relationship are one reason why children who experienced abuse or neglect are at risk for suicide as teens or young adults.

According to the researchers, relationship-based interventions are a promising approach to depression treatment for maltreated youth, such as interpersonal psychotherapy for adolescents, which focuses on the interpersonal context of depression. Attachment-based family therapy has also proven useful in reducing suicidal thoughts among teenagers by strengthening the functioning of the family and the parent-adolescent attachment relationship.

PARENTAL FILICIDE

Several recent cases of filicide, and child murder by parents, have drawn national attention to this gruesome tragedy. Specific motives for filicide are: (i) altruistic (ii) acutely psychotic (iii) accidental filicide (fatal maltreatment) (iv) unwanted child, and (v) spouse revenge filicide. Altruistic filicide is murder committed out of love to relieve the real or imagined suffering of the child. Acutely psychotic filicide occurs when a parent in the throes of acute psychosis (e.g., experiencing command hallucinations) kills their child with no comprehensible motive. Fatal maltreatment filicide may occur because of child abuse or neglect. Some such parents may force the abused teen or adolescent to commit suicide. Parents committing spouse revenge filicides kill children in a specific attempt to make the spouse suffer. A sizeable majority of parents who commit filicide show evidence of psychiatric symptoms or personality disorders before their deed. The legal system needs to recognize such cases and not falsely label them as suicide by saying that a parent cannot kill their child.

NEGLIGENCE WITHIN THE MENTAL HEALTH ACT

Within the framework of the Mental Health Act, negligence is a significant concern. Mental health professionals who fail to adhere to the standards outlined in the act may find themselves facing legal consequences. This brings to light the critical importance of maintaining a balance between patient autonomy and the duty of care. Central to the theory of clinical negligence is the duty of care owed by mental health professionals to their patients. This duty encompasses the responsibility to provide treatment that meets acceptable standards, ensuring the well-being and safety of those under their care. The crux of clinical negligence often lies in the breach of duty – a situation where mental health professionals fail to meet expected standards. This breach can manifest in various forms, including misdiagnosis, improper treatment, not having the patient’s best interests at heart, or lack of timely intervention, all of which can have severe consequences.

Causation becomes a pivotal element, requiring a thorough examination of whether the professional’s actions directly led to the adverse outcomes experienced by the patient. The but-for test for causation is commonly used in tort and criminal law to determine actual causation. The test asks, “But for the existence of X, would Y have occurred?” Courts have taken a multitude of approaches to solve these issues. The field of torts solves the tenuous relationship issue by requiring proximate cause in addition to but-for causation for liability. Criminal law has its own set of solutions. Some courts use the “substantial factor” test, which states that if a defendant’s actions were a substantial factor in the crime, then that defendant can be found guilty. As per the Likelihood of Survival Test, if the defendant’s actions decreased the victim’s chance of survival, then the defendant is guilty.

THREE YEARS AFTER THE MHCA 2017 CAME INTO EFFECT.

In September 2021, the Jharkhand High Court directed the State to constitute the Mental Health Review Board (MHRB) under Sections 46 and 73 of the Mental Healthcare Act, 2017 within 6 weeks (about 1 and a half months). The Board was sanctioned to be set up within nine months from enactment as per statute. The Division Bench consisting of Chief Justice Ravi Ranjan and Justice Sujit Prakash directed the government to appoint non-official members to the State Mental Health Authority. The State reacted that the arrangement of the ex-officio individual for non-official members had been notified by section 46 (1) of the MHCA 2017.
In the same month, the Supreme Court expressed ‘serious concern’ over women who are staying in various mental health institutions across the country facing several indignities and violations of human rights, i.e., conditions that violate Section 104 of the Mental Healthcare Act 2017. The Constitutional Bench comprising Justices DY Chandrachud, Vikram Nath, and Hima Kohli was dealing with a petition about the condition of women in mental hospitals. The Court observed that “Based on certain research studies conducted by NIMHANS in 2016 and the National Commission for Women (NCW) in 2020, it has been highlighted that women in mental healthcare institutions face several indignities and violation of human rights…issues flagged are of serious concern.” The Bench issued directions to the Union Ministry of Social Justice and Empowerment to discuss this issue with the concerned authorities of the states during its monthly monitoring meetings and accordingly ensure compliance and further directed the Centre to submit a report on the same by a week before the new hearing date in December 2021.

FIVE YEARS AFTER THE MHCA 2017 CAME INTO EFFECT.

Even after five years of its existence, the Act appears to be a non-starter in many parts of India. Constitution of State Mental Health Authorities, Mental Health Review Boards, and framing of Rules and Regulations, as mandated in May 2018 by the Act, have not been done in many states (barring a few exceptions) or are not fully functional. This poses a major hindrance in the delivery of services to persons with mental illness. The government has done little to fulfill its obligations. There is a massive need to augment services and infrastructure on a priority basis, The affected women, children, and adolescents do have rights, and cutting short their lives is of grave concern. The suicide rate amongst the young has not fallen perhaps as the MHCA 2017 hasn’t been used to its full extent and hence this problem needs serious thinking.

REFLECTION

The MHCA 2017 is a fine piece of legislation but is underused and hence authorities need to take this matter seriously and an Implementation Task force needs to monitor this. As outlined in the Table the mental health review boards should play an active role in scrutinizing, the use of medications with FDA black box warnings and detentions. The thorny issue of suicide and capacity needs further debate and wider use of the MHCA 2017 will help prevent suicides.

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About Author

Dr. Madhusudan Dalvi

Dr. Madhusudan Dalvi, FRCPsych, MRCPsych (UK), DPM (Royal College of Surgeons, Ireland), Diploma Neuropsychiatry (University of Birmingham) Dr. Dalvi is a Fellow of the Royal College of Psychiatrists, and his current appointment is as a Consultant Old Age Psychiatrist for Kent & Medway NHS Partnership Trust and as Consultant Liaison Old Age Psychiatrist to the William Harvey Hospital, Kent. He has also been appointed as an Honorary Senior Lecturer at Kings College London. He was the Principal Investigator for the RADAR study and PROMS Dementia. It was a Department of Health Study. He is a college advisor for curriculum and a member of the Clinical Advisory Group for Dementia for the NHS in England. He is a medical appraiser for KMPT and developed the Neuroimaging and Early Diagnosis Service for Dementia within the KMPT. He chairs this weekly. He is a Higher Specialist trainer for the Kent, Surrey, Sussex Deanery and a Medical Undergraduate teacher and examiner for 3rd-year medical students at Kings College, London. He trained at the Charing Cross basic and higher specialist Psychiatric Rotation. He obtained his MRCPsych in 2003 and worked as a Specialist Registrar in Old Age, General Adult and Liaison Psychiatry at the Chelsea & Westminster Hospital. On the West London First Episode study, he was an Academic SpR & Honorary Research Fellow with Professor Barnes and Professor Joyce within the Division of Neurosciences in Imperial College School of Medicine. He obtained his CCT in General Adult & Old Age Psychiatry with a Liaison sub speciality in October 2007. He worked as an expert medical member on the Charing Cross Research & Ethics Committee.