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Is it possible for a mentally ill patient to make a decision about his treatment? Are you curbing such a person’s right to life and liberty if you don’t give him a choice as to whether or not he should be admitted into an institution?
These questions — revolving around the tricky issue of “patient consent” — are being furiously debated by mental health experts and activists even as the draft of the new Mental Health Care Bill, 2012, is in the process of being finalised.
One radical group comprising caregivers, mental health activists, survivors of mental illnesses, and other stakeholders feels that under no circumstances can a mentally ill patient be treated without his or her consent. On the other hand, there are those who believe that such patients may not be able to think for themselves and critical decisions need to be made for them.
The earlier law, the Mental Health Act, 1987, dealt with just two rights of mentally ill patients — the right not to be cruelly treated and the right to informed consent to participate in clinical trials. The new bill, say experts, is an improvement as it “places the person with mental illness at the centre” and focuses on a plethora of rights related to the person’s care and treatment.
What has got experts divided into camps, however, is the fact that the new bill allows for “supported admissions” (into an institution) under some conditions for a period of 30 days.
Says Bhargavi V. Davar, founder of BAPU, a Pune-based non-governmental organisation working for the rights of people with mental disabilities, and a member of the National Alliance for Access to Justice for People with Mental Illness (Naajmi), “If the government professes to treat mental illness on a par with other illnesses, why should the law allow mentally ill patients to be kept in an institution without their consent even for a period of 30 days?” Incidentally, the current law allows a patient to be institutionalised without his or her consent for as long as 180 days.
Davar also points out that taking the “consent” of mentally ill patients is vital as otherwise, the system is prone to being abused by family members who may want to dispose of a person with psychological problems in this way.
The new bill lays down that once admitted to an institution, the patient may be discharged after 30 days, or if a psychiatrist has discharged the person on recovery, or if the patient has applied to the district level Mental Health Review Commission.
One of the key features of the bill is, in fact, the proposal to set up these district-level review boards consisting of a judge, mental health professionals, one caregiver, one survivor of mental illness, and members from civil society and NGOs.
However, some feel that this may not necessarily be a good idea. Ratnaboli Ray, founder of Anjali, a mental health rights organisation in Calcutta, points out that much of the decision making power over the fate of a mentally ill patient will now go into the hands of a district-level review board. “How will members of this board ascertain if a person is fit to be discharged? No guidelines are provided on this,” she argues.
But it is the issue of consent that is proving to be the most contentious. It is, of course, a somewhat grey area, admits Ray, as the person may not be in a lucid state to make his or her own decisions. “Still, we should keep trying for voluntary admissions. Consent is possible in lucid moments,” she says.
Psychiatrist Dr Alok Sarin of Sitaram Bharatiya Institute, Delhi, points out that mental illness often involves a conflict between patient rights and the patient’s right to adequate treatment and care. “The patient also has the right to treatment. Unlike other illnesses, the judgment of mentally ill patients is temporarily impaired and forcible treatment may be required for short periods of time. Yes, there can be misuse but the baby cannot be thrown out with the bathwater,” he says.
However, Dr Sarin feels that the mental health review boards will ensure that the provisions for involuntary treatment and admission are not misused.
Dr Soumitra Pathare, co-ordinator, Centre for Mental Health Law and Policy, Indian Law Society, Pune, and one of the architects of the new bill, echoes that viewpoint. “The bill has enough safeguards for supported admissions (when people are not in a position to make decisions themselves),” he says. Patients can nominate representatives of their family or friends to take decisions on their behalf when they are not in a state to make their own decisions.
In a significant development, the bill also introduces the concept of “advance directives”. “In lucid moments, the patient can write down his choice of treatment or hospital. This is to provide the patient control over his treatment, even when he is so unwell as to not be able to make decisions himself,” explains Dr Pathare. “The demand not to treat a mentally ill patient without his or her consent is an ideal one. Theoretically it is perfect but practically not possible,” he adds. Guidelines defining a person’s capacity to make decisions about treatment would be laid down after the bill is passed, says Dr Pathare.
Of course, involuntary admissions are permitted in other countries too. In those nations and in Europe, the State will appoint a person to make the choice for a mentally ill patient. “Here we have said that the patient can nominate a person of his choice to make decisions on his behalf when he does not have the capacity to make decisions. If such a patient does not nominate anyone, the law lays down a list of alternative persons that includes family members, caregivers and friends who can act as his representative in such situations,” says Dr Pathare.
Keshav Desiraju, special secretary, department of health and family welfare, too, defends the inclusion of involuntary or forced admissions. “Civil society involvement in the review of all cases of supported admissions should be regarded as a welcome measure,” he says.
Others point out that the boards will also help in the tricky issue of discharge of the patients. Says Akila Chiragi, founder of Naajmi, “The current act does not allow admission for more than six months, so patients are often discharged on paper and re-admitted the next day. In the new bill, the advantage is that the board will oversee and give permission for discharges.” So they may take place in a regulated and streamlined fashion, she adds.
It remains to be seen, however, if the new Mental Health Care Bill, once it passes into law, improves the lot of mentally ill people. But what with some measures to give patients greater say in their treatment, the bill is undeniably a step in the right direction.
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