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|Year : 2019
: 61 | Issue : 10 | Page
|Implications of Mental Healthcare Act 2017 for geriatric mental health care delivery: A critical appraisal
Palanimuthu Thangaraju Sivakumar1, Shiva Shanker Reddy Mukku1, Sojan Antony2, Vijaykumar Harbishettar1, Channaveerachari Naveen Kumar3, Suresh Bada Math3
1 Department of Psychiatry, Geriatric Clinic and Services, National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru, Karnataka, India
2 Department of Psychiatric Social Work, Geriatric Clinic and Services, National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru, Karnataka, India
3 Department of Psychiatry, Forensic Psychiatry Services, National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru, Karnataka, India
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|Date of Web Publication||8-Apr-2019|
| Abstract|| |
The prevalence of mental health problems in older adults is increasing globally as well as in India due to population ageing. Mental Healthcare Act (MHCA) 2017 has a rights-based approach and came into force in India in May 2018. Its provisions have significant implications for promoting mental health care and protecting the rights of persons with mental illness (PMI). Older adults with mental health problems such as dementia have a high risk for loss of mental capacity, abuse, violation of their rights, and institutionalization. This act advocates the development of specialized clinical services for the older adults in mental health care institutions. It also recognizes the rights of PMI to access a range of services required, including rehabilitation services. Several provisions of the act, such as those related to mental capacity, advance directive, nominated representative, and responsibilities of other agencies, have specific challenges related to older adults with mental illness. In this article, we present a critical appraisal of the implications of MHCA 2017 in the context of the care of the older adults with mental illness.
Keywords: Capacity, legal issues, Mental Healthcare Act 2017, mental illness, older adults
|How to cite this article:|
Sivakumar PT, Mukku SS, Antony S, Harbishettar V, Kumar CN, Math SB. Implications of Mental Healthcare Act 2017 for geriatric mental health care delivery: A critical appraisal. Indian J Psychiatry 2019;61, Suppl S4:763-7
|How to cite this URL:|
Sivakumar PT, Mukku SS, Antony S, Harbishettar V, Kumar CN, Math SB. Implications of Mental Healthcare Act 2017 for geriatric mental health care delivery: A critical appraisal. Indian J Psychiatry [serial online] 2019 [cited 2020 Aug 4];61, Suppl S4:763-7. Available from: http://www.indianjpsychiatry.org/text.asp?2019/61/10/763/255555
| Introduction|| |
Increase in the life expectancy and reduction in fertility rate have contributed to an increase in the proportion of elderly population globally as well as in India. Older adults (age 60 years and above) constitute 8.6% of the total population of India. This is projected to increase to 20% by 2050. Health care system has to gear up to meet this growing demand for care delivery, in the background of an anticipated increase in physical and mental health issues among the older adults.
Mental illnesses in late life contribute to significant morbidity. Mental illness in late life could be due to long-standing psychiatric disorders with onset in early life or with late onset after the age of 60 years. The National Mental Health Survey, 2016, reported that the lifetime prevalence of mental morbidity was 15.11% (14.95%–15.27%) after 60 years. The increase in the prevalence of chronic medical disorders, frailty, sensory impairment, mental illness, and cognitive impairment make them a special population with unique needs. Along with these, other social factors such as economic dependency, neglect, exploitation, abuse, and violence against the older adults make them a vulnerable population. Considering this scenario, it is imperative that policies and programs related to health in general as well as mental health in particular need to address specific concerns of the elderly population.
The recently introduced Mental Healthcare Act (MHCA) 2017 brought many changes compared to the Mental Health Act 1987. MHCA 2017 was brought after India ratified the United Nations Convention on the Rights of Persons with Disabilities in 2007. Here, we present a critical appraisal of issues related to MHCA 2017 in the context of geriatric mental health care in India. We did a selective review of the articles published in relation to MHCA 2017 and mental illness in the older adults for critical appraisal and to summarize the salient features.
| Older Adults and Mental Illness|| |
The elderly population has a high prevalence of mental illness, particularly in those having a chronic physical illnesses. The prevalence of mental illness is also more in those staying in residential care institutions such as old age homes. Depression, dementia, and delirium are some of the common mental illnesses in the older adults. The reported prevalence of geriatric psychiatric morbidity in the community varied from 8.9% to 61.2%. The reported median prevalence of depression in the older adults in India is 18.2% in the community. In clinic based samples, the prevalence of depression ranged from 42.4% to 72%. The standard prevalence of dementia as per 10/66 Dementia Research Group study in an urban and rural setting was 8.2% and 8.7%, respectively. Dementia India report estimated the prevalence of dementia in India in 2010 as 3.7 million, with a predicted increase to 4.1 million in 2016 and 14.3 million in 2050. The prevalence of delirium in the older adults, from the few studies done in medical settings from India, was 54%, with an incidence of 25%. Apart from psychiatric disorders, a significant proportion of older adults face neglect, negative expressed emotions, and abuse. In the recent survey by HelpAge India for older adults across 23 cities in India, nearly one-fourth (25%) of the interviewed reported abuse. Elder abuse in an institutional setting is 34% as reported by the very few studies from India.
| Mental Illness in the Older Adults and MHCA 2017|| |
The approach to the care of persons with mental illness (PMI) in India has progressed over the last century from primarily institution based care to community based care. The practices in institutional care of PMI also have improved over time. Legislations related to mental health care, interventions by judiciary and statutory bodies such as the National Human Rights Commission have contributed to the implementation of these reforms by the government. After nearly three decades of previous Mental Health Act 1987, the new MHCA 2017 came into force from May 29, 2018. The MHCA 2017 was laid down with high hope of ensuring accessibility and availability of mental health services to all. Along with above, another important change was the protection of the rights of mentally ill people during the provision of services in mental health establishments. In MHCA 2017, there are 16 chapters and 126 sections with numerous subsections and clauses. Most of the provisions of MHCA 2017 apply to patients with mental illness in general. There are no specific provisions that address issues related to the older adults with mental illness. The challenges and issues related to MHCA 2017 have been discussed extensively in the context of general mental health care. In this article, we discuss the specific provisions in the act that have significant implications for the mental health care of the older adults.
| Capacity to Make Mental Healthcare and Treatment Decisions|| |
MHCA 2017 Section 4, Capacity to make mental health care and treatment decisions, is significantly flawed and has potentially dangerous consequences. In a nutshell, this section dictates that if a person with mental illness has abilities for (a) comprehension or (b) understanding consequences of the decision or (c) communicating the decision, the person is considered to have preserved mental capacity and can refuse treatment. However, significant impairment in even one of the above three components (particularly related to understanding consequences of the decision) can impair the mental capacity. The section has adopted a liberal standard for interpretation of mental capacity. This provision is detrimental for protecting the interests of the patient as well as the family and will be a barrier to ensure treatment of the majority of patients with severe mental illness. Hence, there is an urgent need for clarification and a guidance document to be released for assessment of mental capacity and amendments need to occur for this section, by deleting “or” and introducing “and” between 4(1) a, b, and c, which means all the three criteria must be met before a person is deemed to be having mental capacity.
The impairment of mental capacity due to mental illness has specific issues in the older adults. Age and cognitive function have a significant effect on mental capacity compared to other factors such as gender, education, ethnicity, economic status, and severity of psychopathology., In most of the adult patients, the impairment in mental capacity is likely to be for short term, and they regain capacity after the treatment. However, the impairment of mental capacity in the older adults is more likely to be permanent due to progressive neurodegenerative disorders such as dementia. Illiteracy and sensory (hearing and visual) impairment being more frequent in older adults can also contribute to the challenges in the assessment of mental capacity in older adults. However, the act implies the individual should be assisted by providing information through other modes of communication if required, in a simpler way they can understand.
Fluctuating mental capacity in conditions such as delirium with alternating lucid periods and partial impairment of mental capacity in the initial stages of mental illness such as dementia are associated with unique challenges. Impairment of mental capacity need not be an all or none phenomenon. It can be a selective impairment in a limited context, depending on the complexity of the task. Periodic assessment of mental capacity is required to be documented as per the MHCA 2017 to enable the protection of rights of individuals with a likelihood to regain mental capacity over time. Provision of a separate act with a wider scope, along the lines of the “Mental Capacity Act (MCA) 2005” of England and Wales, may have some advantages. However, the lack of synergy between MCA 2005 and their Mental Health Act 2007 has been suggested to contribute to challenges in the implementation of the provisions of these acts in England and Wales.,
Section 81 of MHCA 2017 requires preparation of guidelines for assessment of mental capacity through a committee appointed by the Central Mental Health Authority. This guideline would probably give better clarity on these issues for facilitating better implementation of this provision.
| Advance Directive|| |
The advance directive (AD) is a new concept introduced in MHCA 2017 to protect the rights of patients with mental illness when they develop impairment of mental capacity. This provision attempts to enable implementation of decisions related to mental health care and treatment according to the previously indicated preferences of the patient, after they develop impairment of mental capacity. They can give an AD to communicate how they wish or not wish to be cared for and the choice of individuals for appointment as nominated representative (NR). The implementation of the AD provision, even in general adult population with mental illness, has several challenges.,
In the context of geriatric mental health care, an AD can have significant implications related to institutionalization, palliative care, and end-of-life care. These situations are more common in the older adults with chronic degenerative conditions such as dementia. Many older adults with advanced stages of dementia die in the hospital after exposure to tube feeding, parenteral nutrition, and other intensive care interventions. Experiences in the developed countries have indicated the emergence of a palliative care approach for dementia. In the severe stage of dementia, many patients develop swallowing difficulty, recurrent infections, etc. In a patient with advanced dementia, according to a palliative care approach, interventions such as tube feeding, invasive procedures such as percutaneous endoscopic gastrostomy, cardiopulmonary resuscitation, or prolonged support with parenteral nutrition or artificial ventilation are not recommended. Legal recognition of AD in terminally ill patients has been upheld by a five-judge bench of the Honourable Supreme Court of India in a recent judgment. In a case titled “Common Cause (A Registered Society) versus Union of India, 2018,” the apex court held that the right to die with dignity in terminally ill conditions is a fundamental right., In this perspective, patients with advanced dementia are considered as terminally ill patients. There is a need for clarity about implications of procedural difference in the implementation of the provisions of MHCA 2017 in comparison to the guidelines issued by the Supreme Court.
The practice of implementation of an advance decision to refuse treatment in the context of dementia is well established in several developed countries. Advance care planning is recommended as a care management strategy with the involvement of patients as well as their caregivers. This requires consultation with a patient having early stages of cognitive impairment when they have capacity to understand the implications.
The acceptability of the concept of the AD and the discussion with patient and caregivers for advance care planning in a terminal disease may have significant cultural differences. Discussion about death and terminal diseases may be considered as a social taboo by many in the Indian context. This is particularly challenging in the absence of well developed palliative care and long-term care services for persons with dementia in the country. Another challenge is that the majority of patients, particularly from rural areas, seek treatment usually in the moderate stages of dementia, with significant impairment of mental capacity. This prevents any opportunity to discuss advance care planning.
It is important to note that the public awareness about dementia as well as palliative care approach in its management is still very low in India. Effective implementation of this provision of MHCA 2017 for geriatric mental health care requires extensive public awareness campaign among senior citizens about dementia and the relevance of AD in this context.
| Nominated Representative|| |
The provision for appointment of an NR specifies the order of preference as the person documented in AD, family member, caregiver, followed by the representative nominated by the Mental Health Review Board. In the context of geriatric mental health care, the possibility of discord and problems in the relationship between family members might contribute to challenges in the selection of an NR. Many families have a dispute among themselves about the responsibility of care for the older adults as well as rights to the share of the property. MHCA 2017 does not specify the selection of NR if there are disputes among family members about the responsibility of the care of the older adults.
According to “The Maintenance and Welfare of Parents and Senior Citizens (MWP) Act 2007,” children are obliged to take care of parents when they are unable to maintain a normal life by themselves. If there are no children, relatives having the possession or rights of inheritance of property of the senior citizen would be responsible for maintenance. MHCA 2017 enables a provision to nominate any individual trusted by the person with mental illness as “NR.” If a senior citizen nominates a non-family member or non-relative as the NR, there is a possibility of conflict with the provisions of MWP Act 2007 regarding the responsibilities of children and relatives for the maintenance of the senior citizen. Older adults with mental illness need awareness and sensitization about the provisions of MWP Act 2007 and MHCA 2017 to enable them to make informed decisions in this regard after understanding the implications of the provisions of both the acts.
| Rights of Persons With Mental Illness, Duties of Government, and Responsibilities of Other Agencies|| |
The major transformation from the Mental Health Act, 1987 to MHCA 2017 is the prominent emphasis given for the rights of PMI. MHCA 2017 has a dedicated chapter (sections 18–28) on this aspect and mandates rights to access to mental health care; community living; protection from cruel, inhuman, and degrading treatment; equality; non-discrimination, etc. It also specifies duties of the government for mental health promotion and preventive programs, creating awareness, and reducing stigma and human resources development.
Section 18(4)e articulates that provision of old age mental health services at each district level is a right under the “Right to access mental health care” and if not fulfilled, compensation has to be provided as per the section 18(5)f. This is a revolutionary health statute for bringing in the compensatory mechanism to make the state responsible for providing care. Furthermore, MHCA 2017 also emphasizes that old age patient shall not have to travel a long distance to avail these old age mental health services as per section 15(5)d.
MHCA 2017 mandates the Government to develop of a range of mental health services, including old age mental health services and comprehensive rehabilitation services required for supporting the patients and caregivers. It also provides for the integration of mental health services in all health programs by the Government. This provision should enable integration of geriatric mental health care in the National Programme for Health Care of the elderly. MHCA 2017 emphasizes the right to live with dignity for PMI and mandates development of appropriate facilities that are less restrictive for those abandoned by family members and living in long stay mental hospitals. Geriatric mental health problems like dementia have significant disability and caregiver burden. It requires appropriate supportive care facilities to ensure the dignity of life for the affected. Effective implementation of these provisions will help to improve the services for geriatric mental health care.
Sections 100 and 101 specify the responsibilities of police in the management of wandering PMI. Older adult patients with cognitive impairment and dementia have a high risk of wandering behavior. They are more vulnerable in view of the difficulty in proper communication. Pro-active assistance from the police would be very helpful for appropriate care of wandering older adults with dementia and other mental illnesses. There is an urgent need to sensitize all the law implementing agencies regarding their role and responsibilities related to MHCA 2017.
| Institutions Providing Residential Care and Rehabilitation Services|| |
Social changes in the joint family system have contributed to an increase in the requirement of residential care institutions such as old age homes and other assisted living facilities for the older adults. Many older adults develop mental health problems when they are living in these institutions. Some older adults with advanced mental health problems such as dementia may have been admitted in general nursing homes or old age homes to provide supportive nursing care. Strict application of the current definition of “mental health establishment” under MHCA 2017 will include old age homes providing shelter to the older adults with mental illness. These facilities may not fulfill the norms for mental health establishments according to MHCA 2017. However, if a person living in an old age home for many years develop a mental health problem like dementia, it may be preferable for him/her to continue to live in that familiar environment, as dedicated facilities for dementia are very limited and are not easily accessible and affordable. There is a need for better clarity on the essential infrastructure and human resources required for institutions such as old age homes providing shelter for some patients with mental illness even if they are not a dedicated facility for the care of PMI.
| Other Legal Provisions|| |
The care of older adults with mental illness would also be supported by other important legislation such as “MWP act 2007” and “The Rights of Persons with Disabilities Act 2016.” The MWP Act 2007 also mandates provision of health care, shelter, and other facilities required for the older adults. Mental health professionals need knowledge and awareness of these legal provisions to facilitate the care of the older adults with mental health problems.
The rights-based approach is viewed as being closely allied to the achievement of the Sustainable Development Goals of the UN and the poverty reduction strategies of the World Bank. The approach was developed to enable people to fulfill their basic needs by demanding basic rights from the Government. These legislations are entirely dependent upon the state – to make pro-active strategies and provide the rights, or ignore the provisions and deny the rights enshrined in the statute. However, the patients do have mechanisms placed in the legislation to approach Court for the remedial measures if required.
| Implications of MHCA 2017 for Family Caregivers|| |
The role of family caregivers in providing care for the older adults with mental illness is enormous. The care of the older adults with severe mental illness like dementia is predominantly managed by family caregivers, particularly in the Indian context. The support services for the care of persons with dementia in India is very limited. In this context, MHCA 2017 has provisions to help development and improvement of mental health care services through its rights-based approach. However, some of the provisions (particularly related to mental capacity, AD, and NR) appear to undermine the role of the family caregivers. The complexities in the implementation of some of the provisions of MHCA 2017 need to be addressed urgently to prevent an increase in the burden for the caregivers and avoid adverse impact on the patients.
| Conclusion|| |
Older adults are well recognized as a special population with unique needs, and their number is growing. Older adults in India face the burden of non-communicable diseases, mental illnesses, and abuse. Older adults with mental illness are at risk of violation of their rights due to their increased vulnerability. MHCA 2017 has brought many systemic changes for the protection of rights of PMI. Some of the provisions of MHCA 2017, such as mental capacity, AD, and NR have unique challenges related to geriatric mental health care. There is a need for more systematic research on the implications of MHCA 2017 for geriatric mental health care including the perspectives of older adults, caregivers, and mental health professionals.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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Dr. Vijaykumar Harbishettar
Department of Psychiatry, Geriatric Clinic and Services, National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru - 560 029, Karnataka
Source of Support: None, Conflict of Interest: None