| Abstract|| |
Forensic psychiatry is a subspecialty of psychiatry, in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional, or legislative matters. Forensic psychiatry is still in an infant stage in India and other developing countries. Law is the sanctioning discipline, and Psychiatry is the therapeutic discipline. Due to various reasons, Forensic Psychiatry is reared as Cinderella in our country; "which is much neglected, ignored, misinterpreted, and misunderstood. Legislation forms an integral component in the implementation of Mental Health Care; there is a dynamic relationship between the concept of mental illness, treatment of the mentally ill, and the law. Mental Health legislation is essential in protecting the rights and dignity of persons with Mental Disorders and for implementing effectively the mental health services. "Effective mental health legislation can provide a legal frame work to integrate mental health services in the community as to overcome stigma, discrimination, and exclusion of mentally ill persons. Legislations can also create enforceable standards for high quality medical care and improve access to care and protect civil, political, social, and economic rights of the mentally ill individual, including right to access to education, employment, housing, and social security."
Keywords: Forensic psychiatry, mental health care mental health legislations, mental health act, mental health care act
|How to cite this article:|
Nambi S, Ilango S, Prabha L. Forensic psychiatry in India: Past, present, and future. Indian J Psychiatry 2016;58, Suppl S2:175-80
| Introduction|| |
Forensic psychiatry is comparatively a new upcoming and developing field in India. The definition of forensic psychiatry as provided by the American Board of Forensic Psychiatry and the American Academy of Psychiatry and Law is as follows: "it is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal context, embracing civil, criminal, correctional, or legislative matters. Forensic psychiatry should be practiced in accordance with guidelines and ethical principles enunciated by the profession of Psychiatry.
The practicing Psychiatrists and the Postgraduates (PGs) in Psychiatry have very little practical knowledge of forensic Psychiatry. Although the Indian Psychiatry Society (IPS) has formed a separate specialty section in forensic psychiatry, there is not much progress in this area. The state mental hospitals are about 50 in number in India. Some of these Psychiatry hospitals do not have full-fledged forensic psychiatric units. Most of the private and government medical college psychiatry units do not have much exposure to Forensic Psychiatry except a few. Hence, teaching and training in Forensic Psychiatry is not adequate for the Psychiatry postgraduates throughout the country. Some medical colleges post their postgraduates students to some state-run hospitals forensic units for a short period of training. Many practicing psychiatrists especially youngsters find it difficult to handle cases related to psychiatry and law. Gone are the days when forensic psychiatry is more restricted to psycho-criminology and mental health Act. Today's psychiatry is involved in very, many spheres of our day-to-day life. There is a lot of interface between psychiatry and law.
Today, the practice of psychiatry is no longer defined by the psychiatrists and the patients as they were once. The law is omnipotent in the practice of psychiatry. Becoming legally knowledgeable is not optional for psychiatrist today. Psychiatrists do not need to choose between what is clinically good for the patient and what is legally good for the psychiatrist (defensive practice). Defensive psychiatry practice intended to protect the psychiatrists with marginal benefit for the patient is neither legally or clinically beneficial. Legally informed psychiatry and good clinical psychiatry do not happen serendipitously; they require specialized knowledge.
Another reason for psychiatrists to experience knowledge of law is not to respond to a threat, but to assist in achieving in the laws therapeutically potential. If properly understood, psychiatry and the law have much to offer each other.
The World Health Organization (WHO) and the International Guiding Principles for Mental Health Care mandate that all human rights, including the right to privacy, informed consent, confidentiality, freedom from cruel and unusual treatment, and nondiscrimination, should be guaranteed through mental health legislation.
In the Who Health Report (2001), it was reported that 67% of countries in South Asia have mental health legislation and rest 33% have no such law. Mental health care in India over the last 25 years has been an intense period of growth and innovation.
| Forensic Psychiatry in India-Past|| |
During the British rule in India, few mental asylums were established and mostly with the aim of removing the unfortunate mentally ill patients from human visibility. The British also brought about written laws and the Indian lunacy Act promulgated in 1912. They also brought the so-called modern systems of medicine in the country and with it comes the modern trends in psychiatry. In India, during the past many years and even now, the mentally ill was considered as being differing in nature from other men and, therefore, alienated from humanity.
The mentally ill person seems always to have inspired fear because of the strangeness of his behavior and the frequently unpredictable nature of his reactions. In certain societies, he was considered as being of a divine nature and as such he was both respected and feared. At other stages in the evolution of human ideas, he has been considered as being possessed by evil power, by a demon, and consequently has been either ill-treated, driven out of the community, or killed. The aim of such ill treatment, moreover, was to expel the evil spirit rather than to cause suffering to individual, so that it marks the beginning of therapeutic attitude.
Mental health legislation was first enacted in India in 1858. Based on the two Acts of 1853, law relating to custody of lunatics and management of their estates was introduced in India through three separate Acts (1) the Lunacy (Supreme Court) Act, 1858 relating to judicial inquisition as to lunacy in presidency towns, (2) The Lunacy (District Courts) Act, 1858 relating to proceedings outside presidency towns, and (3) The Lunatic Asylum Act, 1858 relating to confinement of lunatics in asylums (Beotra, 1965).
The English Acts of 1853 after frequent amendments were replaced by the Lunacy Act, 1890 and amended by the Lunacy Act, 1891. The Indian Lunacy Bill, 1911 was enacted within 1 year as the Indian Lunacy Act, 1912 (Act IV of 1912) to amend and assimilate the law relating to custody of lunatics in India with English law on the subject and to rearrange and consolidate as far as possible the whole law relating to lunatics (Statement of Objects and Reasons of the Indian Lunacy Bill, 1911). India became an independent nation in 1947. On the eve of Country's independence, Indian Psychiatric Society, the national organization of psychiatrists in this country, was founded in 1947. During this period, India and Myanmar were functioning under the Lunacy Act, 1912.
The Mental Health Bill, 1986 was adopted by the Rajya Sabha and sent to Lok Sabha. It was adopted by the Lok Sabha in 1987 after sailing through the parliament for 9 years and received the assent of the President on May 22, 1987 to become the Mental Health Act, 1987.
Currently, the scenario of forensic psychiatry is changing a lot in India. Compared to many other SAARC countries and other developing countries, mental health care legislations are much progressive, client oriented, and protect the rights of the persons suffering from mental health problem.
| Various indian acts related to mental health care|| |
Mental health care legislations:
- Mental Health Act 1987
- Mental Health Care Bill 2013
- Persons with Disability Act 1996 with amendment act 1988
- Juvenile Justice Act (care and protection of children) Act 2000, amendment Act 2006
- Others like Consumer Protection Act (CPA) 1986.
| Civil laws related to persons with mental illness|| |
- Marriage and mental health legislations. Various laws related to marriage and divorce existing in India and family court Act 1984
- The evidence Act 1925, section 118
- Law of contract section 6, 11, and 12
- Right to vote and stand for election Act 326,102 of the constitution of India
- Testament capacity - Indian Succession Act 1925, section 59.
| Criminal laws of mentally ill offenders|| |
- Mentally ill persons who commit a crime are dealt in sections 328-329, CrPc 1973
- Criminal responsibility - Section 84, IPC 1860(Based on McNaughton Act)
- Attempt to commit suicide - section 309 IPC
- Right to private defense against an insane person-section 98 IPC
- Misconduct in public under intoxication. Example alcohol intoxication section 510 IPC.
| Other special acts related to mental health|| |
- Narcotic Drugs and Psychotropic Substances Act (NDPSA) 1985 (amended 1988)
- Domestic Violence Act 2005.
| Mental Health Act 1987|| |
Since 1987, the mental health care in India is governed by the mental health Act. There are a lot of positive changes in mental health care in this act compared to the Indian lunacy act of 1912.
Some of them are as follows:
- More humane approach to the problems of the mentally ill, changing the old terminologies such as lunatics and criminal lunatics as mentally ill persona and mentally ill prisoners
- There is also emphasis on the better management for the property of the mentally ill persons and protection of the human rights
- Creation of central and state mental health authorities was a welcome step
- The admission and discharge procedures have been simplified and liberalized
- Even minor with mental health problems can be admitted by the consent of the guardian as per this act
- Even if a mentally ill person not willing to give consent for admission, he can be admitted using the category of "admissions under special circumstances" where their relatives or even friend or employer can give consent.
In spite of lot of positive qualities in the mental health Act, there were a lot of criticisms leveled against this MHA, 1987.
Some of them are as follows:
| Critical Aspects of MHA 1987|| |
- The act does not reflect the government policy on mental health framed in 1987 as well as the Mental Health Programme, 1987
- No attention to the WHO guidelines
- Legal considerations have been given more weightage in comparison to medical ones
- Failed to remove the criminal flavor by keeping the power of criminal court to exert its control over admissions and discharge of noncriminal mentally ill persons
- No importance to family and community psychiatry
- There are no provisions for punishing the relatives and officers requesting unnecessary detention of a person to such hospitals
- Once a person is admitted to mental hospital, he is termed as insane or mad by the society. There should be provisions in the act to educate the society against these misconceptions
- Much stress is laid on hospital admission and treatment. This again increases the cost of health care. No provisions are made for home treatment.
- The act has no provision for transportation of an unwilling patient except by police.
There are other acts such as Juvenile Justice Act 2000 (child care and protection Act) which protects the rights of the mentally ill, disabled or deviant children. There is a separate Act known as Disability Act 1995 - Equal opportunities, protection of rights, and full participation and later there was an amendment for this Act known as The National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. Through this Act, lot of opportunities and concessions are available for the mentally disabled along with other physically disabled persons.
Another important landmark is the NDPSA 1985. This Act provide stringent control and regulation of operations relating to narcotic drugs and psychotropic substances to provide for the forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances to implement the provisions of the international conventions on narcotic drugs and psychotropic substances.
| Consumer Protection Act 1986|| |
In recent times, CPA has gained much importance and at times looked upon by the mentally ill persons and their care givers and providing means to get quick justice.
Protection of Women from Sexual Offenses and Domestic Violence Act has gained a greater momentum in the past. There are stringent laws for sexual offences such as rape, unnatural sexual offences, and obscene acts. If rape is committed against a mentally ill person even with his/own consent, it is considered to be a crime and punishable. The protection of women from domestic violence Act 2005 provides far more effective protection of the rights of woman.
| Marriage mental illness and indian legislation|| |
As per the Hindu marriage act 1955, the special marriage act 1954 and the Indian divorce act for Christian consider unsoundness of mind is a condition affecting the capacity to marry. In the Parsi marriage and divorce act unsoundness of mind is not a ground for divorce. Even though the Muslim law also considers unsoundness of mind before marriage is a criterion for nullity of the marriage, there are some exceptions.
| Unsoundness of mind as a ground for divorce|| |
According to Hindu Marriage Act, Parsi marriage Act, and Christian marriage Act, respondent has been incurably of sound mind or has been suffering continuous or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expected to live with him.
As per the Muslim marriage Act, Muslim women can seek divorce on the ground that her husband has been insane for a period of 2 years. Indian divorce act (for Christians) - unsoundness of mind is a ground for divorce on two conditions:
- It must be incurable
- It must be at least for 2 years immediately before filing the petition.
| Criminal responsibilities|| |
According to the Indian penal code section 84, nothing is an offence done by a person who is of unsoundness of mind at the time of the crime, not knowing the nature of the act, not knowing what he is doing is right or wrong, not knowing the act is contrary to law, and not knowing the consequences of the act.
| Civil responsibilities|| |
As per the Indian legislations, a person with unsoundness of mind who is incapable of knowing what he is doing is right or wrong cannot write a valid will, cannot enter into a contract, cannot stand or vote in the election, cannot adopt or giving adoption of a child, and cannot give his organ for transplantation to others. Hence, the law protects these civil rights of the mentally ill.
| Suicide and indian law|| |
As per today's Indian Legislation, attempt to commit suicide is a crime and punishable under IPC.309. Since attempted is considered as a cry of help, an act of despair, and a disease of hope, many mental health professional and nongovernmental organizations continue to remove this section. Recently, the parliament is taking up this Bill to decriminalize the attempted suicide and very soon this section will be repelled. Euthanasia, the act of killing oneself, is legally not permissible in India. Very recently, in India, they have enacted a legislation called The Protection of Children from Sexual Offences Act (POCSO 2012). As per this act, sexual offences against children are considered in a serious way and the punishment will be very severe. The National Commission for Protection of Child Rights (NCPCR) and the State Commission for the Protection of Child Rights (SCPCR) are monitoring the implementation of this act.
| The Protection of Children From Sexual Offences Act 2012|| |
Some salient features are as follows:
- Setting up of special juvenile courts for this purpose
- Evidence of the child to be recorded within 30 days ad trial to be completed within a year
- The statement of the child has to be recorded where the child is comfortable - e.g., at home
- A woman police officer should investigate
- No child to be detained overnight at the police station
- Assistance of a special educator or interpreter can be arranged
- The medical exam to be conducted in the presence of parents
- The child should not be called repeatedly during the trial
- In camera trial must be done
- No aggressive questioning to the child is allowed
- The media had been barred from disclosing the identity of the child victim
- The attempt to commit a crime, even if not successful, is liable for punishment
- The central and the stare government should execute an awareness and wide publicity regarding this crime
- The NCPCR and SCPCR have been made the designated authority to monitor the implementation of the Act.
| Forensic psychiatry and ijp|| |
"Forensic psychiatry is a poorly defined specialty with little organizational training in most countries" (WHO working group).
In reviewing forensic psychiatry articles published in the Indian Journal of Psychiatry for more than 60 years now, it is noted that there around 55 articles of forensic psychiatry cited in the journal. If we were to classify these articles, they would fall under the following headings:
- Psycho-criminology-related articles
- Mental health legislation-related articles
It is heartening to note that there are four presidential addresses with the theme of forensic psychiatry during IPS annual conferences.
| Forensic Psychiatry - Future in India|| |
The very important milestone in the mental health legislation in India is going to take place most probably by the beginning of the next year.
The Mental Health Care Act which is going to be enacted and implemented soon in India is a progressive and a comprehensive Act. The Act defines the mental illness, mental health professionals, and mental health establishments in a very clear way. It has controlling authority, i.e. the review board in the state, central and district levels. The new concepts in the forthcoming act are as follows:
- Changes in admission procedures which include emergency treatment
- The change of nomenclature of psychiatry hospitals to mental health establishments and mentally ill renamed as persons with mental illness.
There are other new concepts in the Bill like psychiatry advanced directive, consent and nominated representative. As per the Bill, the general hospital psychiatric units are also brought under the umbrella of mental health establishments. This Bill prohibits unmodified act.
Very soon, the juvenile justice Act (child care and protection Act) is going to get a new shape, which will protect the disturbed and deviant children.
| Future as per mhca|| |
Rights of the mentally ill as per the fourth coming mental health care Act, the rights of the mentally ill persons are much taken care of. "Rights may be legal protection or simply moral imperative as agreed by a professional group or society at large"
- The right to get considerate and competent treatment
- The right to be informed about the treatment
- The right to give consent
- The right to privacy
- The same fundamental rights as other citizens, including the right to a decent life as normal as possible
- Protection against exploitation and discriminatory, abusive or degrading treatment
- Assistance including legal aid to protect their rights.
The freedom of the mentally ill person cannot be ensured by legal formality alone and it requires a human touch.
| Future of forensic psychiatry|| |
All practicing psychiatrist and postgraduates should have a better understanding and knowledge about the interface between psychiatry and law. They should be familiar with the various aspects of psycho-criminology which includes the relationship between mental illness and crimes, criminal responsibility and others. They should also be familiar with civil issues such as (civil responsibility), the role of mental illness in assessing testamentary capacity, fitness to give witness, entering into contract and transfer of property of mentally ill, the right to vote and right to stand for election by mentally ill, the civil issues include marriage, and mental health and Indian legislations. The civil issues also include the fitness regarding the mentally ill to get driving license and accepting or donating organ transplants. It is very essential for the psychiatrist to understand the difference between medical insanity and legal insanity. The younger psychiatrists should be thorough in the latest legislations such as mental health care act in the future which is going to govern the practice of psychiatry. In the area of child sexual abuse, the recent Act POCSO should be familiar with the practicing psychiatrists. All medical institutions having PG in psychiatry should sensitize there students in forensic psychiatry with periodic Continuing Medical Education (CME), guest lectures and also make it mandatory to have training in state psychiatry hospitals where there is forensic psychiatry units. The young psychiatrists should not think that rarely they have to face legal problems in their practice and somehow or other will manage whenever necessary. Facing the legal problem in psychiatry is akin to a road traffic accident, where even one accident in lifetime may make the person incapacitated or fatal. In future, psychiatrists can offer valuable expert service for the welfare of the society at large, safe guard his own interests as well as that of the patients.
Mental health professionals, PGs in psychiatry, lawyers, police officers, and judicial officers are all expected to know the basic mental health legislation in India. There should be periodic sensitization programs. The forensic psychiatry in India is to focus the followings:
- Active training of postgraduates in forensic psychiatry
- Research activities
- Better understanding and implementation of the mental health legislations
- Improving prison psychiatry units.
Finally, we have to understand that the majority of psychiatric patients do not require any intervention from the law and can be managed comfortably in day-to-day practice without any clinical or legal conflict.
"Psychiatric practice is as much a moral as a medial endeavor"
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Conflicts of interest
There are no conflicts of interest.
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Source of Support: None, Conflict of Interest: None