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CLINICAL PRACTICE GUIDELINES

Clinical Practice Guidelines for human rights and privileges of mentally ill persons

Gautam, Shiv; Jain, Akhilesh1; Gupta, I.D.2; Gautam, Manaswi3; Gaur, Navendu4; Shekhawat, B.S.5

Author Information
doi: 10.4103/indianjpsychiatry.indianjpsychiatry_697_21
  • Open

SCOPE OF THE PAPER

  • Definition
  • Right to Health in constitution in India
  • International perspective
  • Human Rights of Mentally ill as outlined by National Human Rights commission
  • Human Rights as per Mental Health Care Act 2017
  • Treatment for involuntary patients and proxy consent to treatment
  • Special treatment medical and surgical procedures, seclusion, and restraint
  • Rights of families and caregivers of persons with mental disorders
  • Provision of penalties.
  • Conclusion.

DEFINITION

The term “human rights” in a broad sense means those claims which every individual has or should have upon the society in which he or she lives. Those minimal things without which it is impossible to develop one’s capabilities and to live life as human beings. In the context of mentally ill persons, it not only refers to their privileges but also remedial right of protection against infringement of their human and other statutory rights.

RIGHT TO HEALTH IN CONSTITUTION IN INDIA

As citizens of India, mentally ill are entitled to all those human and fundamental rights which are guaranteed to each and every citizen by the Constitution of India to the extent of their disability do not prevent them from enjoying those rights or their enjoyment is expressly or impliedly barred by the constitution by ant statutory law. The fundamental right to live and liberty as interpreted by the supreme court of India in the number of landmark cases includes the right to live with human dignity and right to health.

The Supreme Court has also laid down the maintenance and improvement of public health as one of the obligations that flow from article 21 of the constitution. This means that mentally ill have fundamental/human rights to receive mental health care and to human living conditions in mental hospitals.

The right to life in Article 21 of the Constitution means something more than survival of human existence. It would include within its ambit the right to live with human dignity, right to health, right to potable water, right to pollution free environment, and right to education, etc., which have been held to be part of right to life. In the context of mentally ill person, apart from above narrated rights, it also includes right to live, work as far as possible in the community, to privacy and to lead a normal family life.

Most of the literature mentions about the human rights of patients in mental hospitals but those outside the hospitals remain in silence.

INTERNATIONAL PERSPECTIVE

Most organizations concerned with human rights have passed resolutions at different point in time from 1948 to 2017. The authors have reviewed these resolutions which have been termed as instruments related to right of people with mental disorders and they describe them as instruments related to rights of such people. These instruments are tabulated as below [Table 1].

T1
Table 1:
List of instruments on human rights and year of inactment/ publication

HUMAN RIGHTS OF MENTALLY ILL AS OUTLINED BY NATIONAL HUMAN RIGHTS COMMISSION (INDIA)

Human Rights is about balancing the rights of all of us as individuals within the community (Australian Commission report 1995).

Rights in respect of person with mental illness refer to the privilege he should have in a society and also the safeguard of these rights. Such rights include involves the rights to live, work as close closely with the community, to privacy, and to raise a normal family. It becomes even more important when the person has serious mental disorder where the challenges to secure their right to live in to the society along with other person and protecting them from exploitation becomes a major concern. Such exploitation may be of any kind like economic, sexual, and physical abuse or any such ill treatment both within or outside the institution, public or private. Our constitution guarantees many such rights.

In 1948, The United Nations, through its Declaration of Human Rights, affirmed the basic principle that a mentally ill person should at all times be treated with humanity and respect for the inherent dignity of the person. Every person with a mental illness should have the right to exercise all civil, political, social and cultural rights (UN principal 1.4). The Declaration on the rights of the disabled, which includes persons with mental illness was adopted by the UN in 1975.

Mental health care and ensuring Human Rights should not confine itself to only remedial approach (dealing with abuse and its prevention), but also recognize the contribution which Mental Health Care can make toward the fulfillment of human rights and meeting the rights of the community to such care as necessary.

In order to reach such an ideal situation, it is important to understand the evolution of the care for the mentally ill in the country. This includes the transition from Institution to community care, legal provisions and the mechanisms visualized to protect Human Rights, the forces that have affected change. The possible reasons for a lack of consistency and maintaining the pace of change need to be examined. Community linkages and networking for effective delivery of mental health care to all those in need to be developed.

TEN BASIC PRINCIPLES FOR THE PROMOTION OF HUMAN RIGHTS OF PERSONS WITH MENTAL DISORDERS

  1. Promotion of mental health and prevention of mental disorders
  2. Access to basic mental health care
  3. Mental health assessments in accordance with internationally accepted principles
  4. Provision of least restrictive type of mental health care
  5. Self-determination
  6. Right to be assisted in the exercise of self-determination
  7. Availability of review procedure
  8. Automatic periodic review mechanism
  9. Qualified decision-maker (acting in official capacity or surrogate)
  10. Respect of the rule of law (as per the WHO 1996)

HUMAN RIGHTS AS PER MENTAL HEALTH CARE ACT 2017

In comparison to the Mental Health Care Act 1987 the revised Mental Health Care Act 2017 has taken adequate care of human rights and privileges of mentally ill people. Reader is advised to refer to chapter five of the act, which gives adequate rights to mentally ill people.

These provisions include rights to access mental health care where in the responsibility of the central and state governments has been fixed and they are expected to make sufficient provision as may be necessary provision of mental health care services, half way homes, services to support family of persons with mental illness, and rehabilitation of such persons at home. The law also directs the governments to organize community-based rehabilitation establishments, facilities for children and elderly. The governments have also been directed by the act to integrate mental health in general health by appropriate programs at primary secondary and tertiary health care.

The act also describes right and privileges of mentally ill with regard to short and long term care at district headquarters, rural areas including emergency care in the public health system run and funded by such governments and for people who cannot afford such arrangement should be made free at no financial cost. It also makes provision of inclusion of psychotropic medication and other medicines required for mental health care in the list of essential drugs published by the government.

The law has directed appropriate state governments to ensure necessary budgetary provisions in terms of adequacy, priority, progress, and equity for effective implementation of the provisions of the act. All these terms have been defined in the law.

MHCA also makes provisions for right to community living, right to protection from cruel, inhuman and degrading treatment and right to live with dignity.

The act also makes provision for right to equality and nondiscrimination, right to information and right to make complaints about deficiencies in provision of services.

Section 101 chapter 13 talks about report to magistrate of a person with mental illness in private residence who is ill-treated or neglected. It mentions about duties of in charge of a police station of that jurisdiction for obtaining legal orders from magistrate to get this person treated in a Mental Health Establishment but it does not mention about mentally ill being ill-treated at temples of faith healing or other such agencies.

After reviewing the rights the gray areas which appear in the field of Human Rights is that they talk about rights with reference to Mental Health establishments and talks very little about protection of Human Rights of persons living outside in the community, indiscrimination and cruelty towards mentally ill in community or in the so called places of faith healing [Table 2].

T2
Table 2:
Rights of mentally ill as per mental health care act 2017

TREATMENT FOR INVOLUNTARY PATIENTS AND PROXY CONSENT TO TREATMENT

Considering the probability of abuse for political, social or any other reason, the involuntary admission and treatment has been a controversial subject in Mental Health Services as it involves the issue of right to choose and personal liberty.

From another perspective, involuntary admission can help some people with mental disorders who are unable to manage themselves voluntarily, by preventing harm to themselves or others, thus assisting them in attaining their right to health.

However, it must be emphasized that only a very small number of patients with mental disorders may require involuntary admission.

In many situations where involuntary admissions have been made, if a humane approach and proper opportunity for voluntary treatment is provided, involuntary admission and treatment can further be reduced.

Mental Health Care Act 2017 makes a provision in section 89 of chapter 12 Admission and treatment of persons with mental illness, with high support needs, in mental health establishment, up to thirty days (supported admission).

For those patients who are not willing to treatment and where the treating psychiatrist is satisfied after seeing the patients and making necessary enquiries that the patient needs treatment, a letter may be taken from the nominated representative (a responsible family member/care taker) requesting for treatment.

It may be better to have nominated representative clearly mentioned by the patient in writing. Psychiatrist may encourage patients and family members to have a nominated representative.

SPECIAL TREATMENT-MEDICAL AND SURGICAL PROCEDURES, SECLUSION AND RESTRAINT

Legislation can be enacted by a country, if necessary for the safeguard of person with mental illness from the abuses in terms of certain treatment such as major Medical and surgical procedures, ECT, psychosurgery or other irreversible treatment. Countries may also step into ban certain treatment intervention for person with mental illness which are considered to be unjustifiable, for example, sterilization as the method of treatment for mental illness.

Merely having a mental illness should not become a reason for sterilization or abortion without informed consent.

MI Principles: Sterilization shall never be carried out as a treatment for mental illness.

MAJOR MEDICAL AND SURGICAL PROCEDURES

MI Principles: Major medical or surgical procedures

A person with mental illness may undergo medical or surgical procedure only when it is considered best for the health need of the patient and permitted by domestic law after seeking informed consent.

An independent review is required in case patient is unable to give informed consent before conducting the procedure.

SECLUSION AND RESTRAINT

MI Principles: Seclusion and restraint

Physical restraint or involuntary isolation should be restricted only to the situation where it is considered to be the only method for patient’s own safety as well as safety of others.

While applying such restraint or isolation, the officially approved procedure of the mental health facility should be strictly followed.

It should not be prolonged beyond a period of necessary requirement. Circumstances of restraint or isolation, reason of application, nature and extent of procedure should all be recorded in patient’s medical record.

A person under such procedure shall be treated with respect and dignity under humane conditions and direct supervision of a trained and qualified staff. A prompt information should be given regarding the procedure to a nominated representative if any.

RIGHTS OF FAMILIES AND CAREGIVERS OF PERSONS WITH MENTAL DISORDERS

It is the family members and caregiver who love and care about the person with mental illness and bear the burden of person’s behavior during illness or relapses. Sometimes, they may also face the stigma of the illness and get discriminated.

In some countries the legal responsibility for third party liability due to the action and behavior of person with mental illness is also borne by family members and caregivers; hence, the important role of family and caregiver cannot be ignored.

Family members and caregivers are entitled for full information about the illness and treatment strategy to enable them to take better patient care.

Legislation should consider this view and not arbitrarily refuse providing information merely on the ground of confidentiality, although the rights of individual confidentiality may vary in different cultures, for example, in some culture, the patient’s right of confidentiality is respected to an extent that no information is released to family members without patient’s consent, whereas, in other culture, family is deemed as an integrated structured unit and confidentiality may extend to such family members.

There are situations where patient himself may be willing to provide information to the family members. In countries where much emphasis is given to the individual then the family, a person may be less interested in sharing the information, so many variations are possible, depending on cultural practices. Families can play a significant role in planning and implementing treatment strategies, especially when the patient himself is not capable of doing it alone.

Families may have acquaintance with the several aspects of mental health services and legal processes through legislation. For example, family may have the right to appeal against involuntary admission and treatment decisions on behalf of their relative, if the later does not have the capacity to do so himself or herself. They may also be able to request for the discharge. Legislation may also have the provision of representation by family group on the review board. The involvement of family members in developing mental health policies and legislation as well as mental health service planning can also be ensured by legislation.

FAMILIES AND CAREGIVERS OF PEOPLE WITH MENTAL DISORDERS: KEY ISSUES

Care of the person with mental illness is primarily assumed to be the responsibility of families and caregivers and legislation needs to reflect this.

Although individual’s right to confidentiality may vary from culture to culture, nevertheless, legislation should not arbitrarily refuse information merely on the ground of confidentiality. The important role of family and caregivers in contributing to formulation and implementation of treatment plan for patient cannot be overlooked, especially when the patient is incapable of doing so.

Legislation should ensure that the services and support required by families and caregivers of the person with mental illness for his treatment should be accessible to them.

Involvement of families and caregivers in the different aspect of mental health services can also be ensured by legislation. This may also involve legal processes such as involuntary admission and appeal.

PROVISION OF PENALTIES

Chapter 15 of the Mental Health Care Act 2017 talks about offences and penalties and deals with penalties for Penalties for Establishing or maintaining mental health establishment in contravention of provisions of this Act, Punishment for contravention of provisions of the Act or rules or regulations made there under.

All these provisions are applicable to mental health establishments, personal/or companies running it, but it remains silent on the violation of human rights outside the mental health establishments. Let us look forwards to further amendments at some point in time.

CONCLUSION

An individual with mental illness deserves the same rights of dignity, respect, and politeness during the treatment as any other individual. The mentally ill person does not become a nonindividual, simply because of specific incapacities. Article 21 of constitution describes the essential rights of life as below:

Right to living accommodation, food, potable water, education, health, medical treatment, decent livelihood, income, a clean and congenial existence.

Right to privacy, speedy trial (if involved in any criminal offence), information and means of communication.

Treatment principles for a person with mental illness are as follows:

The psychiatrist should treat mental illness ethically with best of his or her ability and evidence based knowledge and promote the health.

The patient must be given the best available therapy as deemed suitable by the psychiatrist to the best of his knowledge with tremendous concern and respect to the dignity of the individual.

The psychiatrist must seek for a therapeutic rapport that is based on reciprocal agreement which requires faith, confidentiality, collaboration, and mutual responsibility.

The psychiatrist should apprise the patients about the type and nature of illness, best possible treatment alternatives and probable outcome.

Patient’s consent is mandatory and no treatment or procedure should be carried out against patient’s will unless it is established that his mental illness incapacitates him from making a decision and serious impairment may occur with patient’s health or others.

Soon after patients regain his ability to give consent, the compulsory nature of the treatment must be released and voluntary consent must be obtained for further treatment.

All persons with mental disorders and disabilities should be recognized at par with other citizens with regard to the value of positive mental health and their rights.

Mental health service recipients, regardless of age, gender, ethnic group, or disorder, should have the same opportunity and treatment approach as other individuals in need of health care, while also preserving their basic human rights and freedoms.

SECURING THE PRIVILEGES OF THE MENTALLY ILL

Ease and use of access, quality and acceptability are the core responsibility and predominant component of right to health. A mentally ill individual needs unique care and consideration both at home and in clinic as they cannot protect themselves. The duty regarding exceptional care and consideration equally lies with the care providers as given below:

At home

  • Treating person with mental illness with dignity, respect, sympathy, and concern
  • Not to conceal the facts about the mental illness of family
  • Timely consultation with mental health professionals for assessment
  • Providing correct information about postal address of the admitted individual during admission
  • Not to hold back any relevant information about the patient’s illness and relationship with the patient
  • Communicating the interest to stay with the admitted relative in the family ward/open ward, as the case may be
  • In case of inconvenience to stay with the person with illness for any reason, frequent visits and interactions to the hospital must be observed
  • After discharge, the patient should be taken to home and given best possible attention, regard and timely medications as advised
  • Regular follow-ups of the patients as advised must be ensured
  • Encourage the recovering patient by instilling hope, trust and confidence that after effective treatment he or she may resume normal life like any other illness
  • In case psychiatric social worker visits home for follow-up, he should be properly supported
  • Mental health care and human rights in the treatment setting:
    • During his visit to hospital or in ward, no individual should be chained or tied with ropes
    • In the outpatient department (OPD) setting, facilities to sedate such patients if needed should be available
    • In OPD, an appropriate provision of sitting arrangement for patients and family members must be available
    • OPD should be spick and span with adequate ventilation and illumination along with provision of drinking water, toilet, newspaper stand, and a television
    • Availability of canteen should be made if the average turnout of patients and the number of treating professionals are adequate
    • Sufficient number of registration counter in OPD should be available to cater the needs of people with different age group and gender
    • Persons sitting on registration counter should be trained in public dealing, courteous and thoughtful to respond to everyone seeking help
    • Strict prohibition of abusive or offensive treatment toward mentally ill person or their family members should be ensured; instead a compassionate, courteous and utmost friendly environment should be provided to them
    • Any person, who visits for seeking help for mental distress or illness should not be refused examination at the OPD on any ground whatsoever

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

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