Theme: Mental Health

Can research be conducted on a person with mental illness?

Research can be conducted on persons with mental illness in the form of psychological, physical, chemical or medicinal intervention. However,  this can be done only when the person’s free and informed consent has been obtained(( Section 99(1),  the Mental Healthcare Act, 2017.)). Research can be conducted based on a person’s case study notes even without his consent, as long as his identity is not revealed(( Section 99(4),  the Mental Healthcare Act, 2017.)). 

In case the person is unable to give consent but does not resist participation, the professional conducting the research can take permission from the State Mental Health Authority(( Section 99(2),  the Mental Healthcare Act, 2017.)). The Authority can give permission only after getting the consent from the person’s nominated representative and after ensuring the following(( Section 99(3),  the Mental Healthcare Act, 2017.)):

  • The research cannot be conducted on any other person, such as a person capable of giving consent. For example, Ram is suffering from a very rare form of a mental illness, and the proposed research must be conducted on a person suffering from that mental illness only. 
  • The research is necessary to promote the mental health of the population represented by that person. 
  • The knowledge that will be gained from the research is relevant to the health needs of the person
  • There is no conflict of interest in any kind. 
  • The research is in line with national and international guidelines and regulations, and ethical approval has been obtained from the relevant institutions. 

Please note that any consent given by the person with mental illness or his nominated representative can be withdrawn at any time(( Section 99(5),  the Mental Healthcare Act, 2017.))

Can a person with mental illness be subjected to solitary confinement or physical restraint?

A person with mental illness cannot be subjected to seclusion (solitary confinement), under the law(( Section 97(1),  the Mental Healthcare Act, 2017)). 

Further, a person cannot be physically restrained unless:

  • Physical restraint is the only way for preventing immediate harm to the person or others
  • Physical restraint is authorised by the psychiatrist who is in charge of the person’s treatment 

However, physical restraint cannot be used unless the medical professional wants to prevent any significant harm(( Section 97(2),  the Mental Healthcare Act, 2017)), and cannot be used as a punishment or due to shortage of staff(( Section 97(4),  the Mental Healthcare Act, 2017)). 

The details of the restraint, including the method, nature, duration and justification for its use, must be recorded in the person’s medical notes by the professional duty(( Section 97(3),  the Mental Healthcare Act, 2017)). Further, the nominated representative of the person needs to be informed within 24 hours(( Section 97(5),  the Mental Healthcare Act, 2017)).

What kind of procedures are prohibited on persons with mental illness?

The following forms of treatment cannot be performed on persons with mental illness(( Section 95(1),  the Mental Healthcare Act, 2017)):

  • Psychosurgery (i.e. surgery of a person’s neurological system, such as the rain), unless the person’s informed consent and approval from the Mental Health Review Board has been obtained(( Section 96(1),  the Mental Healthcare Act, 2017)).
  • Electroconvulsive therapy (passing small electrical currents through a person’s brain) without the use of muscle relaxants and anaesthesia
  • Electroconvulsive therapy for minors. However, it may be used if(( Section 95(2),  the Mental Healthcare Act, 2017)) the psychiatrist in-charge of the minor believes it is necessary with informed consent of the guardian and permission from the Mental Health Review Board.
  • Sterilisation (surgery to make one biologically incapable of reproduction), if it used for treatment for mental illness
  • Chaining in any manner. For example, to restrain a person physically by chaining them up.

What does an unsound mind mean?

Having a mental illness is not in and of itself grounds for having an unsound mind(( Section 3(5),  the Mental Healthcare Act, 2017.)). Having an unsound mind has been determined by Courts to mean that one has such a mental condition that one cannot be expected to be aware of the consequences of their actions. Some examples of such unsoundness of mind include dementia, loss of memory, hallucinations, etc.1. Under the law, medical insanity does not matter, but only legal insanity(( Hari Singh Gond v. State Of M.P)).

If one is considered to have an unsound mind, they cannot be held liable for an offence(( Section 84, the Indian Penal Code, 1860.)). Further the onus of proving that one committed a crime due to unsoundness of mind will be on the accused(( State Of Rajasthan v. Shera Ram)).

  1. State Of Rajasthan v. Shera Ram [↩]

What are mental healthcare establishments?

Mental health establishments are(( Section 2(p), Mental Healthcare Act, 2017)) any health establishments funded or run by the government, and meant for the care of people who are suffering from mental illnesses or where such people reside, temporarily or not, for treatment and rehabilitation.  These include establishments for Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy and any general hospital/nursing home, run or funded by the government. However, this does not include a family residential place where a person with mental illness resides with his relatives or friends. 

What are mental healthcare services?

Mental healthcare services refer to analysis and diagnosis of someone’s mental condition including treatment, care and rehabilitation(( Section 2(o), Mental Healthcare Act, 2017)).

What is Mental Illness?

Mental illness is a health condition((Section 2(s), the Mental Healthcare Act, 2017. )) which involves substantial disorder of thinking, mood, perception and orientation or memory. This may lead to gross impairment of judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life. Abuse of drugs or alcohol may also result in a mental condition.Some examples of mental illness are substance abuse disorder, bipolar disorder, etc. This does not include mental retardation i.e. incomplete intellectual development. Persons with mental illness also have rights under the law including the right to confidentiality, right to treatment, etc. 

Determination of Mental Illness

To determine whether one has a mental illness it must be determined according to nationally/internationally accepted medical standards, like the International Classification of Disease of the World Health Organisation((Section 3(1), the Mental Healthcare Act, 2017 )) 

These reasons cannot determine whether a person is mentally ill((Section 3(3),  the Mental Healthcare Act, 2017 )):

  • Past treatment for a mental illness((Section 3(4),  the Mental Healthcare Act, 2017 ))
  • Political, economic or social status
  • Belonging to a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person; 
  • Refusal to conform to moral, social, cultural, work, political, or religious values prevalent in one’s community.

Please note that one cannot be considered as a person of unsound mind, merely because they have a mental illness. Only a Court can declare a person to be of unsound mind((Section 3(5),  the Mental Healthcare Act, 2017 )). 

Capacity to Make Treatment Decisions

The capacity to make mental healthcare-related decisions depends on the conditions given above((Section 4(1),  the Mental Healthcare Act, 2017 )) :

  • The ability to understand relevant information on mental healthcare related issues, such as admission, personal assistance or treatment. Please note the information given to the person has to be comprehensible. For example, Ram cannot hear properly. The information given to him will be using means that will enable him to understand it((Section 4(2),  the Mental Healthcare Act, 2017 )). 
  • The ability to understand the consequences of a decision on the treatment, admission or personal assistance
  • The ability to communicate the formed decision through speech, expression, gesture, etc. 

If one takes a decision that others think is incorrect or inappropriate, that solely will not mean that one does not have the capacity to make such a decision((Section 4(3),  the Mental Healthcare Act, 2017 )). For example, against the wishes of his parents, Ram decides not to go to a mental health establishment. The sole fact that Ram’s parents think that a decision is inappropriate does not mean they do not have the capacity to make such a decision.

Emergency Treatment

Under the law, emergency treatment refers to any medical and mental health care treatment. It can be provided by a registered medical practitioner to a person with mental illness((Section 94(1),  the Mental Healthcare Act, 2017 )). For this, the consent of the nominated representative is required, if they are available.

The immediate treatment prevents((Section 94(1),  the Mental Healthcare Act, 2017. )):

  • The death or harm to the person
  • The person from inflicting serious harm to themselves and/or to others
  • The person from causing serious damage to their or others’ property

However, this does not allow the use of electroconvulsive therapy((Section 94(3),  the Mental Healthcare Act, 2017 )). Further, it does not allow to use any treatment not directly related to the criteria mentioned above((Section 94(2),  the Mental Healthcare Act, 2017 )).

In addition, this treatment is limited to 72 hours under normal circumstances or up to 7 days during an emergency((Section 94(4),  the Mental Healthcare Act, 2017 )).

Mental Health of Children

The rules for admission and discharge of a child or minor (below 18 years of age) are different from those of adults. In case a child requires admission in a mental health establishment, the nominated representative should apply to the mental health professional in charge of the establishment for the child’s admission((Section 87(2),  the Mental Healthcare Act, 2017 )).

Criteria for Admission

The professional in charge may admit the child to the mental health establishment if((Section 87(3),  the Mental Healthcare Act, 2017 )) two health professionals, one of whom is a psychiatrist, have independently examined them in the last seven days. Both the professionals must independently conclude that:

  • The child has a mental illness severe enough to require admission
  • The admission will be in the best interests of the health, safety and wellbeing of the child
  •  Admission is required to satisfy the child’s healthcare need
  • All community-based alternatives to admission are unsuitable to the child’s needs

Provisions for Stay

Certain conditions need to be fulfilled, under the law, when a child is admitted at an establishment. These conditions are:

  • To accommodate the child separately from adults((Section 87(4),  the Mental Healthcare Act, 2017 ))
  • The child’s environment must consider their age and developmental needs((Section 87(4),  the Mental Healthcare Act, 2017 ))
  • The child’s environment should of the same quality as other hospitals where children are admitted for other medical treatment((Section 87(4),  the Mental Healthcare Act, 2017 ))
  • The nominated representative/an attendant appointed by the nominated representative must stay with the child in the establishment for the entire duration of their stay((Section 87(5),  the Mental Healthcare Act, 2017 )). For girls, the nominated representative must appoint a female attendant who will stay with her, if the nominated representative is male.((Section 87(6),  the Mental Healthcare Act, 2017 )).

Treatment

The nominated representative should give informed consent for any treatment given to a child. In other words, permission must given after complete knowledge of the treatment and its consequences((Section 87(7),  the Mental Healthcare Act, 2017 )).

Discharge

The mental healthcare establishment should discharge the child, if the child’s nominated representative does not support admission or requests discharge.((Section 87(8),  the Mental Healthcare Act, 2017 )).