| Abstract|| |
The Mental Healthcare Act (MHCA), 2017, is enacted with an aim to promote and protect the rights of and improve the care and treatment for people affected by mental illness in India. The Act purportedly includes substance use disorder (SUD) specifically in the definition of mental illness itself. However, some of the phrases used in the definition such as “abuse” are not clear, as the current classificatory systems of mental illnesses do not have any diagnostic category termed “abuse.” Another important issue is the lack of clarity on which categories of SUD would be covered under MHCA. Simple reading of the text of the Act seems to suggest that SUD is a single entity for the purpose of this law. In such case, many provisions of the act such as supported admission that are meant for the treatment of people with severe mental illnesses with gross impairment may become applicable to all types of SUD. This can create potential problems for addiction treatment providers. On the other hand, certain other provisions of the Act are good news for patients suffering from SUD. The Act lays down various rights that include, among others, protection from cruel, inhuman, or degrading treatment in any mental health establishment. This is very important from the perspective of treatment of SUD in the context of India, where human rights violations in the name of addiction treatment are often reported. The inclusion of SUD in MHCA, 2017, slots SUD as a health issue, rather than a law-and-order issue alone. This displays the intent of policymakers toward SUD, which, in itself, is laudable. There are certain ways in which the potential pitfalls mentioned earlier can be addressed, which is discussed in the article.
Keywords: Abuse, addiction treatment, human rights, involuntary treatment, Mental Healthcare Act, 2017
|How to cite this article:|
Rao R, Varshney M, Singh S, Agrawal A, Ambekar A. Mental Healthcare Act, 2017, and addiction treatment: Potential pitfalls and trepidations. Indian J Psychiatry 2019;61:208-12
|How to cite this URL:|
Rao R, Varshney M, Singh S, Agrawal A, Ambekar A. Mental Healthcare Act, 2017, and addiction treatment: Potential pitfalls and trepidations. Indian J Psychiatry [serial online] 2019 [cited 2019 Dec 8];61:208-12. Available from: http://www.indianjpsychiatry.org/text.asp?2019/61/2/208/253834
| Introduction|| |
Care and treatment for people affected by mental illness has moved into a new era in India with the enactment of the Mental Healthcare Act, 2017 (MHCA), which seeks to align and harmonize the existing laws on mental health care. This is pursuant to India signing the United Nations Convention on the Rights of Person with Disabilities in 2007. Even while this law was debated in the parliament, and after its enactment on April 7, 2017, it has dominated the academic and professional discourse of the psychiatric community in India. Overall, the reaction to this Act has been mixed; it has received both bricks and bouquets from various quarters.,,, The Act has been praised for protecting and upholding the rights of people with mental illnesses. Most importantly, the Act has been lauded for enabling people with mental illness to declare in advance how they can (or cannot) be treated. In addition, the Act empowers them to choose a person to make treatment decisions on their behalf when they are not in a position to do so. On the other hand, concerns have been expressed regarding the difficulties this Act may pose for the psychiatrists who want to genuinely help their patients. Many commentaries and opinion pieces have discussed the implication of this Act on the practices of psychiatry in India. However, to the best of our knowledge, these discussions have not addressed the implication of the Act on a specific area of psychiatry – treatment of addictive disorders. In the present article, we interpreted the Act in the context of practice of addiction psychiatry in India. Specifically, we discuss some potential pitfalls that, we feel, can arise if certain provisions in MHCA are applied on addiction treatment.
| Definition Issues|| |
The earlier law (Mental Health Act [MHA] 1987) did not specifically provide a definition of mental illness. MHA, 1987, defined a “mentally ill person” as “a person who is in need of treatment by reason of any mental disorder, other than mental retardation.” Substance use disorder (SUD) was not specifically mentioned anywhere else, except in Chapter III, where MHA, 1987, obligated the government to set up separate psychiatric hospitals or psychiatric nursing homes for “those who are addicted to alcohol or other drugs which lead to behavioral changes in a person.”
The current act, MHCA 2017, has purportedly included SUD in the definition of mental illness itself. However, the exact phraseology used in the definition gives rise to some ambiguities, which unfortunately have not been clarified elsewhere in the Act. Section 1(s) mentions “mental conditions associated with the abuse of alcohol and drugs,” which purportedly includes SUD within the ambit of mental illness. The use of the term “abuse” is, however, ambiguous. Does the Act refer to the term “abuse” as was defined in the Diagnostic and Statistical Manual (DSM), version-IV? The current version of DSM (DSM-5) has abolished this term and clubbed different diagnoses in the earlier DSM-IV (i.e., “abuse” and “dependence”) under a single entity “Substance Use Disorder.” The current version of International Classification of Diseases (ICD) of the World Health Organization (WHO), version 10 (and the most recent, ICD-11) too, does not have any diagnostic category termed “abuse” If the term “abuse” has been used in the Act as a lay, nontechnical, nondiagnostic term, then this would constitute offensive, pejorative, and stigmatizing language (something the Act purports to address, ironically). The Oxford Dictionary defines “abuse” as to “use (something) to bad effect or for a bad purpose.” If applied to SUD, this conveys more of a moralistic and judgmental position, which should be avoided in a law that deals with patients suffering from SUD.
Semantics aside, the more important issue with the definition is to do with the lack of clarity on which categories of SUD would be covered under MHCA. Evidently, some gradation has been ensured with regard to other psychiatric illnesses (other than SUD). The definition of mental illness in the Act includes only those illnesses in which there is a “gross impairment of judgment, behavior, or capacity to recognize reality or ability to meet the ordinary demands of life.” However, it is not clear whether such gradation applies to SUD as well (or “conditions associated with the abuse of alcohol and drugs,” as per the Act). Section 3 further states that mental illness shall be determined “in accordance with such nationally or internationally accepted medical standards (including the latest edition of the ICD of the WHO).” Currently, the two ICD-10 diagnostic entities usually used by addiction treatment physicians are “harmful use” and “dependence syndrome.” Simple reading of the text of MHCA, 2017, seems to suggest that, for the purpose of this law, SUD is a single entity. However, it remains unclear whether all categories of SUD, including different severities of dependence syndrome, have been brought under the ambit of the Act or only those with “gross impairment of judgment, behavior, or capacity to recognize reality or ability to meet the ordinary demands of life.” This can create potential problems for addiction treatment providers. For example, many provisions of MHCA such as supported admission that are supposed to be meant for the treatment of people with severe mental illnesses with gross impairment may become applicable to all types of SUD, as can be seen in the next section.
| Involuntary/coerced Treatment|| |
Section 89 of the MHCA allows a person with mental illness to be admitted and treated without his consent, but with request from a nominated representative. The Act stipulates that an individual with mental illness can be admitted without his consent if he has “……tried or threatening to harm himself or has behaved violently or is causing another person to fear bodily harm from the person with mental illness, or has shown/is showing inability to care for himself to a degree that places the individual at risk of harm to himself” (emphasis added).
To understand the implications of implementing the above-mentioned conditions in SUD treatment, let us consider a hypothetical (but realistic) case scenario. Consider a middle-aged male executive who consumes about half a bottle of whisky every other day. As his wife does not approve of alcohol use, they have frequent fights (including physical violence) at home. The wife is fed up and afraid of these fights for her and her children. Routine health checkup showed that the husband has deranged liver function tests. The husband continues to consume alcohol despite these problems. He has promised to cut down his alcohol use, but not willing to stop it completely. The family members, however, want him to stop his alcohol use completely and have forcefully bought him to a mental health establishment for admission. The husband is not willing to get admitted.
On the basis of the available information, the mental health professional may entertain a diagnosis of harmful alcohol use as per the ICD-10 (as his alcohol use has led to physical problems, despite which the person continues to use alcohol). Can this person be admitted under Section 89 of MHCA, 2017? This scenario fulfills the first requirement of MHCA, 2017 – mental illness as diagnosed under the diagnostic system followed nationally or internationally. As per the requirement of Section 89 of MHCA, 2017, the wife fears bodily harm from the person (her husband) with mental illness (harmful use of alcohol). It may also be argued that the person, by continuing his alcohol use, is showing his inability to care for himself to a degree that places him at risk of harm (liver derangement) to himself. The individual has neither named anyone as his nominated representative nor has he made any advanced directive as he did not believe that he has a mental illness. The wife becomes the nominated representative in this scenario. As the various requirements of Section 89 of the MHCA, 2017, are met, one can argue that the individual can be admitted without his consent. Thus, the Act, which was brought in force precisely for protecting the rights of people with mental illness, may be used to violate the rights of this individual. In a clinical situation like the one described above, inpatient treatment is not the preferred intervention. Studies show that brief interventions delivered in an outpatient setting are effective for harmful use of alcohol and can be delivered in primary care settings., How justifiable, then, is compulsory (supported) admission in this case? Similarly, most individuals who suffer from dependence syndrome would be using the psychoactive substance despite incurring harm. In fact, “use despite harm” is one of the criteria of dependence syndrome. In that case, can every person with dependence syndrome be admitted without his consent under Section 89 of MHCA, 2017, if his family insists on admitting him? A literal interpretation of the MHCA, 2017, seems to indicate that involuntary admission is possible for most individuals suffering from SUD.
If one can indeed make such inferences, then it is clearly not only against the principles of human rights laid down internationally, but also against the principles of effective treatment laid down in most guidelines. The Committee on Economic, Social and Cultural Rights, the UN body monitoring compliance with the covenant, has emphasized the state's obligation to refrain “from applying coercive medical treatments, unless on an exceptional basis for the treatment of mental illness or the prevention and control of communicable diseases. Such exceptional cases should be subject to specific and restrictive conditions, respecting best practices and applicable international standards…” The principles of drug dependence treatment document by the UNODC and WHO (2008) state “As any other medical procedure, in general conditions drug dependence treatment, be it psychosocial or pharmacological, should not be forced on patients.” Scientific evidence too does not support compulsory treatment for people suffering from drug dependence. At a time when there is a global outcry against the involuntary treatment of SUD and the UN agencies have released a statement specifically asking the member states to close down such facilities; undertake necessary legal reforms; and ensure the implementation of “voluntary, evidence-informed, and rights-based health and social services,” it will be awkward for India to have a law on the books which empowers the state and the service providers to forcefully admit patients against their explicit consent.
| Mental Healthcare Act 2017 and Addiction Treatment: Silver Linings|| |
The MHCA, 2017, lays down various rights of a person with mental illness in Section 20. These include, among others, protection from cruel, inhuman, or degrading treatment in any mental health establishment. This is very important from the perspective of the treatment of SUD in the context of India. There are ample indications that cruel and inhuman treatment is routinely meted out to patients with SUD in many “Rehabilitation” centers. Deaths due to torture have also been reported in such centers. Indeed, this is one of the reasons why the High Court of Delhi issued an order to the Delhi State Legal Services Authority to conduct inspections of various de-addiction and rehabilitation centers in Delhi in response to various petitions against such center. Unfortunately, such rehabilitation centers are currently not regulated in most parts of the country. Here, it must be noted that at least two other legislations empower the government to take measures for regulating such centers through notifying rules and enforcing them. These are the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the Clinical Establishment Act (CEA), 2010. While a few state governments have notified rules under the NDPS Act for licensing and regulation of “de-addiction” centers, most of the state governments have not utilized this provision. Similarly, CEA has also not been uniformly enforced by most of the state governments. The MHCA, 2017, takes a much more humane perspective for the treatment and protection of human rights of people affected by all mental illness (including SUDs) and thus provides an opportunity to bring about the needed reforms. The provisions under MHCA, 2017, would help in ensuring that patients admitted in such centers are not subject to inhuman treatment. These centers would also have to be registered as mental health establishments and subject to inspections by the Mental Health Review Board periodically.
Importantly, the inclusion of SUD in MHCA, 2017, also displays the intent of the policymakers and planners toward SUD (however imperfect, this inclusion may appear). By including SUD within the ambit of MHCA, 2017, SUD is now slotted as a health issue, rather than a law-and-order issue alone. This, in itself, is laudable. It is also worth mentioning here that a law is enacted for the first time that will regulate addiction treatment to a great extent in India. Apart from prescribing certain practices that are carried out in the name of the treatment, the Act also makes the mental health authorities responsible for laying down standards to be followed in mental health establishments. The Government of NCT of Delhi has already notified the various minimum standards to be followed for the treatment of persons with SUD. All such measures would definitely help in improving the standards of treatment provided to patients with SUD.
| Rectification Measures|| |
There are various ways in which the potential pitfalls mentioned earlier can be addressed. One option would be to remove addiction and addiction treatment from the ambit of MHCA, 2017, altogether by removing the reference of SUD from the definition of mental illness. A number of countries (e.g., the United Kingdom, many Australian states, and New Zealand),, have kept SUD out of their mental health Acts and have enacted separate laws for addiction and its treatment. This can help in two ways. It can help clear confusion over many provisions which are applicable to severe mental illnesses rather than to SUD. For instance, advance directive provision may serve its use for severe mental illnesses, where individuals may be incapable of taking most decisions of their life for extended periods of time. The capacity for taking decisions is preserved in most cases of SUD, even in those with dependence syndrome, except for periods of intoxication or during severe withdrawals. The utility of advance directive in case of SUD is, thus, not clear. Keeping SUD out of the purview of MHCA, 2017, can also help address issues specifically related to SUD, and not to other mental illnesses, in a holistic manner.
Another way to resolve this confusion can be to include only some types of SUD by introducing gradation in the definition of SUD, as is done in case of other mental illnesses. Some countries allow involuntary admissions only for those with severe substance dependence who can cause harm to themselves or to others. For example, New Zealand has enacted the “Substance Addiction (Compulsory Admission and Treatment) Act” in 2017. The Act clearly lays down the process of assessment of severe substance dependence and procedures to assess capacity to make decisions. If it is felt that SUD has to be retained under MHCA, 2017, then there needs to be similar severity criteria developed for defining who can and who cannot be admitted on an involuntary basis. More importantly, there needs to be clear definition of what constitutes SUD and remove outdated terms such as “abuse” used in the current definition of SUD in MHCA, 2017.
Proposing drastic amendments to the law which has only recently been enacted may be a challenge. However, most state governments are yet to notify specific rules regarding the implementation of the Act. At the level of formulation of rules, some of the concerns expressed above can be addressed.
| Conclusion|| |
There is much to celebrate about MHCA, 2017, in terms of rights accorded to persons with mental illnesses. By including SUD within the ambit of MHCA, 2017, much of these provisions would also be accorded to patients with SUD. However, the Act in its current form is ambiguous regarding which categories of SUD would come under the purview of MHCA, 2017. Either the Act needs to be suitably amended or the rules need to be formulated addressing the aforementioned concerns, before patients with SUD can derive full benefits from the provisions in the act, and avoid potential problems that can occur.
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Conflicts of interest
There are no conflicts of interest.
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Dr. Atul Ambekar
Department of Psychiatry, National Drug Dependence Treatment Centre, All India Institute of Medical Sciences, New Delhi - 110 029
Source of Support: None, Conflict of Interest: None