Year : 2019 | Volume
: 61 | Issue : 10 | Page : 798--803
The need for “code of practice” as a supplement to Mental Healthcare Act 2017
Divya Ganesh Nallur
Mind Care, People Tree Maarga, Bengaluru, Karnataka, India
Dr. Divya Ganesh Nallur
People Tree Maarga, 23/B, Sector A, Yelahanka New Town, Bengaluru - 560 064, Karnataka
Mental Healthcare Act (MHCA) 2017 is the current legislation overseeing and protecting the mental healthcare of patients with mental illness. All professionals working with this vulnerable patient population must abide by this legislation. This article is an attempt to make a case for the need for a “Code of Practice” (CoP) as a statutory guidance document to help all stakeholders in implementing the legislation. It is argued that the CoP is essential to effectively safeguard the rights and autonomy of the patients and to safeguard professionals from uneasy repercussions from unintended mistakes in implementing the legislation.
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Nallur DG. The need for “code of practice” as a supplement to Mental Healthcare Act 2017.Indian J Psychiatry 2019;61:798-803
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Nallur DG. The need for “code of practice” as a supplement to Mental Healthcare Act 2017. Indian J Psychiatry [serial online] 2019 [cited 2021 Oct 22 ];61:798-803
Available from: https://www.indianjpsychiatry.org/text.asp?2019/61/10/798/255561
Mental Healthcare Act (MHCA) 2017 was introduced with the noble vision of reinforcing a greater sense of responsibility in effectively providing mental healthcare in India. Implementation of the “Act” is likely to present a set of challenges though.
The Bare “Act” is a 71-page document with legal terminology which perhaps makes the comprehension little hard, considering the vast sets of stakeholders with a diverse background who are expected to be abreast with the “act,” viz., mental healthcare professionals (MHPs), police officers, non-governmental organisations in the domain, prison officials, other concerned government officials, and importantly, consumers of the service and their families.
Implementing MHCA 2017 by the spirit of it would demand diligence in allowing the patients' individual liberties while also ensuring the patients' safety. The “Act” casts a certain focus on “patient autonomy,” in decisions related to mental healthcare and its delivery.
The reality in Indian psychiatric practice so far has been that decisions are taken in the best interest of the patient by a treating clinician in liaison with the closest family member/caretaker. The new “Act” will mean a huge shift in the way psychiatrists would have to practice in providing the treatment. To fulfill the stipulated medical ethics in practicing within the boundaries of the legislation, MHPs will have to be conversant with the intricacies of the entire MHCA 2017.
Reading, understanding, and confidently practicing by the Bare “Act” may seem daunting for most proficient MHPs. Some may even choose to refrain from areas of practice such as inpatient services or treatment procedures that could seriously attract provisions of the “Act.” That disinclination could prove to be harmful, considering the acute shortage of MHPs and Mental Health Establishments (MHEs) in India. Any trend that can widen the need and supply gap would put decades of good work in the field of psychiatry in India, well ironically, in abridging that gap, at significant risk.
Effective implementation of the well-thought-out “Act” so as to achieve a global standard of mental healthcare in India makes it imperative that every MHP should understand, appreciate, and assimilate it with ease, in clinical practice. It can be argued that from here on, understanding MHCA 2017 is as crucial to all MHPs as practicing most appropriate pharmacotherapeutic or psychological interventions are.
In this article, a case for the need for Code of Practice (CoP) is made to disentangle the intricacies of the MHCA 2017. It is argued here that the MHCA without the CoP will be like an improved gadget without the user instruction manual on “how to.” In other words, with a CoP, the healthcare professionals would be able to imbibe the “Act” in their practice more effectively, safeguarding the rights and autonomy of the patients and also safeguarding themselves from uneasy repercussions from unintended mistakes. Simply put, the CoP will help avoid scope for erroneous interpretations leading to contentious conflicts.
Ethics in Medical Practice in India
All medical practitioners in India are subject to the Medical Council of India (MCI) recommended code of medical ethics, which includes codes for character, conduct, quality of care, and exposure of unethical conduct or care. One of the primary recommendations of the MCI is that all medical practitioners should follow the law of the land and ensure that they evade no legal stipulations.
Ethics for Psychiatrists in India
The MCI does not specify a code of ethics for psychiatrists. The Indian Psychiatric Society (IPS), in its 1989 annual conference, formed a committee to recommend a code of ethics, particularly for psychiatrists. The article  sets out core ethical standards such as responsibility, maintaining professional competence, benevolence toward the patient, having high moral standards, always working toward patient welfare, and guarding confidentiality.
The paper goes on to describe the need for informed consent and in the case of the patient who lacks capacity, the need to get consent from a family member. The paper states, “The decision to hospitalize a patient will essentially rest on the consideration of his welfare and will also take into consideration legal and administrative constraints as well as its social appropriateness.”
A 2010 review article  on Indian Psychiatry Research and Ethics concluded that “ethical aspects of psychiatric practice have not been properly discussed and there are no effective guidelines to guide the psychiatrists in their clinical work… There is a need to evolve ethical guidelines applicable to psychiatry in this country.”
More recently, in December 2018, the Ethics Subcommittee of the IPS published version 1.3 of the code of ethics for psychiatrists in India. It stipulates 13 principle statements which include patient's well-being being the paramount criteria of treatment, ensuring competence in the field of practice, maintaining discretion, consulting and collaborating with colleagues as needed, maintaining professionalism in all interactions, advocating for patient rights and confidentiality, updating knowledge regularly, respecting professionals and acting appropriately if colleague or professional acting unethically, upholding the dignity of the medical profession, working to raise awareness about mental illness among the general public, adhering to ethical principles of academic conduct when involved in medical education, and adhering to ethical principles of research conduct when involved in research. The thirteenth principle stated is “abide by all laws that apply in the context of his/her clinical work.”
In MHCA 2017, the legalities related to admission, discharge, consent to treatment, the capacity to consent, and role of the nominated representative (NR) are clearly set out. As per the above ethical principle, responsibility for ensuring clarity in understanding and implementing stipulations of the law in the day-to-day clinical care of the mentally unwell patients is vested with the MHP.
Interpretation of the Legislation
As psychiatrists, we understand that any statement can have more than one interpretation based on factors such as the context in which the statement is written or understood. It must, therefore, be assumed that the new legislation can potentially be interpreted in different ways. The next part of this article focuses on the possible inappropriate interpretations of the legislation and hence the need for further clarity and discussion.
Case laws over a period can aid in clarifying interpretations of any legislation. As professionals, by the depth of experience in the field of psychiatry and being aware of the well-known problems in the management of the mentally unwell patients, we can foresee difficulties in the interpretation or implementation of certain stipulations of the act well before possible conflicts move to the courts. It is therefore important that potential dilemmas in the legislation must be clarified and discussed in a guidance document.
In the landmark judgment, “Dr. Sangamitra Acharya and ANR vs. State (NCT of Delhi) and ORS, the Delhi High Court said,” If there is no code of ethics for psychiatrists in this country, it would be indeed a serious lacuna which ought to be remedied.…. The MCI should formulate a separate code of ethics for psychiatrists to follow, which will reinforce the law.” In its recommendation, the High Court went on to prescribe, “The Delhi Police shall prepare a manual detailing how to deal with cases under the MHA and after July 8, 2018, the MHCA 2017. It must prepare a protocol in consultation with legal experts as well as experts in mental healthcare and spread awareness on the issue of mental health.”
It could be argued that the interpretation of the “Act” by various professionals in the above case was flawed in many ways. Clarification in this regard is needed for all professional groups involved.
Possible Scenarios Where Interpretation/clarification is Needed
Definition of mental illness
The “Act” defines mental illness as “substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by subnormality of intelligence.”
For clinicians, further clarity is needed of this broad definition. Consider this: What would constitute “substantial”? Is major depressive disorder of moderate degree, a “substantial” disorder?
The inclusion of all mental conditions associated with the abuse of alcohol and drugs will need further clarifications.
Let us take the scenario of a family which is in distress due to persistent abuse of alcohol by one of its members. The family approaches an MHE for the treatment of alcohol abuse when the patient is intoxicated. The intoxication at the time of the assessment will fulfill the mental illness definition- “substantial disorder in thinking and grossly impaired in his/her judgment.” Would it be legal to use MHCA 2017 to admit such a patient if we can prove that he/she lacked the “capacity” at the time of admission and there are significant risks in not insisting admission? If yes, what would be the course of action once the patient recovers from his/her inebriated state and is unwilling to continue the treatment? The clinician in this scenario may understand that if this patient is allowed autonomy to discharge himself, the scenario of the original admission assessment will be repeated within a matter of days. Hence, what will be the interpretation of the act if the family brings the same patient under the same circumstances the next day?
Test for capacity
The “Act” specifies the criteria to be fulfilled when assessing “capacity” but with an apparent grammatical error. The three points needed to qualify the test have been linked with “or” instead of “and.” It makes a person qualifying in one of the three parts to be deemed to have “capacity,” whereas internationally accepted tests of capacity insist that the patient qualifies in all three parts of the test. This needs correction and explanation in the guidance.
Assessment of “capacity” in itself needs full guidance and explanation as this happens to be the fundamental criterion in ensuring patient autonomy.
Safety versus autonomy in the presence of mental illness
In the case of personality disorders, what is the clinician's responsibility when the safety of the patient or others is in question? The patient typically will clear the “capacity” assessment to take treatment decisions, but risks to themselves or others are usually quite high and acute.
Consider the case of a patient with emotionally unstable personality disorder who has recently had a serious incident of self-harm or attempted suicide. Medical treatment for this attempt was given under the clause of “emergency life-saving treatment.” After the necessary treatment is completed, the patient demands to be discharged and has full “capacity” to make such a decision. The treating clinician is fully aware that such a discharge would be detrimental to the patient, as the circumstances that led to previous self-harm attempt has neither changed nor has the intent of the patient to cause further harm to self. How can then we use the MHCA to protect the patient? Should the patient be discharged despite having a clear mental health diagnosis and clear risks of harm to self? This needs further debate and clarification.
Another example would be the case of a person with persistent delusional disorder. The patient is delusional about his wife and believes that she is having an affair with a neighbor. The patient may fulfill the “capacity” criteria for treatment and healthcare decisions and refuse admission. If the clinician's assessment reveals a risk to the wife from the patient, can the clinician use Section 89 of the act despite the patient passing the tests of “capacity?”
Section 89 (1) (c) of the MHCA states, “the person is ineligible to receive care and treatment as an independent patient because the person is unable to make mental healthcare and treatment decisions independently and needs very high support from his nominated representative in making decisions.” This compels the interpretation that Section 89 cannot be applied if the patient has the capacity.
Mental capacity and advance directives
The MHCA 2017 incorporates the need for capacity assessment for all admissions and treatment procedures for mental health issues.
In the UK, the Mental Health Act trumps the Mental Capacity Act. Treatment under the Mental Health Act can be given without reference to the capacity if deemed essential. There are obvious safeguards such as Mental Health Tribunal and Second Opinion Appointed Doctors to ensure that the treatment is appropriate and that the least restrictive options are always being used.
Let us take the example of Mr. X who has chronic schizophrenia and needs lifetime treatment with antipsychotics. After the most recent admission and treatment with antipsychotics, he goes into full remission from his symptoms. He now has the capacity to make decisions about his treatment. He makes an advance directive stating that he does not want to be treated by any antipsychotics due to the side effects of such medication. He then stops all his medication and becomes acutely psychotic again. In the UK, under the Mental Capacity Act, this patient cannot be treated with any antipsychotics due to the presence of a valid advance directive. However, under the Mental Health Act, the clinician can treat him for his psychotic symptoms with antipsychotics.
With no such exceptions in the MHCA 2017, what would the treating clinician in India do in a similar scenario? This needs further clarification.
The Act does not clarify its position on the hierarchical order of family members who can represent the patient as the NR if the patient has not specified it. If there are two family members with opposing ideas about treatment, then whose opinion/instruction should the clinician consider? For example, it is quite common to find that when a married woman is admitted, the parents and the husband of the patient may have significantly differing views about the illness and its management.
The UK CoP  specifies the hierarchical order as the “nearest relative” who should be consulted by the clinician. The process for revocation of the NR also needs further elaboration.
The MHCA 2017 has provision for admission of patients to MHE voluntarily. The current clause and its interpretation seem to suggest that a person cannot admit himself/herself voluntarily into any MHE unless the patient has a mental illness of severity that needs admission and treatment as an inpatient. This seems to imply that those persons who have a mild-to-moderate illness and the full capacity to make treatment decisions have no autonomy in making the choices about where and how they should be treated. The principles of our legislation guide us toward patient autonomy, and hence, it would be erroneous to allow scope for flawed interpretations. Clarity in this regard in the guidance document will be useful.
Right to information
The act specifies that the patient and his/her NR have the right to access certain basic information on the nature of the illness, the treatment being used, and its side effects. The general consensus on most medical records is that the information contained in them is the patient's property, and hence, the patient must be given full access to all the medical records. In the case of mental healthcare records, a lot of information within patient notes may come from collateral history from other people such as family and friends. These collateral historians sometimes may not want their information released to the patient. In this case, what is the right of the patient? The act does allow withholding of information in the acute setting but says that the entire information should be released later on when appropriate. This needs further clarification. It may be detrimental for the patients if all medical records, including therapy records, are made available to them. Specific guidance on legally withholding such information from the patient is needed for safe psychiatric and psychological practice.
Mental Health Review Board
The “Act” specifies the formation and the composition of the Mental Health Review Board. A patient or his/her NR can appeal to the board against any MHE, seeking redressal of misjudgment or mistakes. The patient or his/her NR, unless knowledgeable of the MHCA and competent otherwise, can hardly make a case of any wrongdoing. The “Act,” however, does allow a representative of a registered nongovernmental organization to represent the patient on consent. These processes would necessitate a good understanding of the act, necessitating the need for a CoP.
Community Treatment Orders
The MHCA 2017 has no provision for compulsory community treatment. A considered directive on that in the Act would have been useful in helping practitioners provide treatment with least restriction. An example of a person with chronic schizophrenia can be discussed in this context. These patients can usually be managed well in the community if they are compliant with their medications. In the absence of any legal structure to aid the enforcement of consumption of regular medications in the community, the patient will remain a revolving door phenomenon at the MHEs. Guidance on the management of people with such chronic mental illness in the community will be useful.
Filling the Grey Areas in the Act
Collins dictionary defines “CoP” as “a set of written rules which explains how people working in a particular profession should behave.” The CoP complements the legislation in describing it and provides guidance to practitioners on how to imbibe the law appropriately. CoP usually does not have the same authority as the legislation but would surely reinforce the purpose of the legislation. Although the CoP is not legislation, it is considered as a statutory document and any deviation from that can lead to legal challenge.
A large part of the Indian Act is a copy of the UK Mental Health Act. Section 118 of the UK Mental Health Act specifies the need for a CoP.
“Section 118 (1) – The Secretary of State shall prepare and from time to time revise, a CoP – (a) for the guidance of registered medical practitioners, managers and staff of hospitals, and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under this Act and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.”
Section 81 of the MHCA 2017 states “The Central Authority shall appoint an Expert Committee to prepare a guidance document for medical practitioners and mental health professionals, containing procedures for assessing, when necessary or the capacity of persons to make mental health care or treatment decisions.” It also states that “Every medical practitioner and mental health professional shall, while assessing the capacity of a person to make mental healthcare or treatment decisions, comply with the guidance document referred to in subsection (1) and follow the procedure specified therein.”
Thereby, the CoP appears to be prescribed by the “Act” itself.
In the UK, the CoP for mental health legislation is published by the Department of Health (DoH, UK). The CoP is written in simple language that can be understood by the common man. It describes each section of the mental health legislation in detail, giving guidance on each MHP's roles and responsibilities in implementing every section of the Act. For example, the section on admission of a person with mental illness with high support needs (in the UK, admission under section 2 or 3) describes, in detail and in plain language, the grounds for making such an admission; requirements to qualify for the detention; alternatives that needs to be thought of before subjecting the patient to such detention; the detailed process of assessment before such detention is placed; responsibilities of the various professionals including the family, medical practitioner/psychiatrist, and local health authority during this process; and the process of managing any disagreements between professionals.
The CoP is necessary to ensure that all patients are treated as stipulated by the law to receive safe and effective mental health care.
Potential Disadvantages of a Code of Practice
The author fervently believes that a CoP will benefit the appropriate implementation of the act. Nevertheless, the disadvantages of a CoP need to be considered.
Competent MHPs endeavor to create individualized plans for their patients based on multiple variables in the patient's presentation. The CoP, though meant to broaden the scope of the legislation to include moral and ethical practice of the MHP, may be seen as a restriction to practice in flexible ways.
India, being the largest democracy in the world, is known for its diversity in culture, traditions, and values, across various regions. The question may then arise that should the interpretation of the legislation across various states differ? In the UK, England and Wales have differing CoP for the Mental Health Act. Individual states in India may want to create independent CoPs based on local practices, customs, and any applicable state laws.
A further critique of the need for a CoP is that all aspects of the use of the legislation in clinical practice cannot be fully articulated in a simple document. The standards of practice may need to change periodically in light of facts emerging from unconsidered scenarios, legal changes in the form of case laws or new legislation, broader governmental policy changes, and development of new technologies. This would necessitate the need for some freedom for interpretation within the legislation.
Role of Professional Bodies
All key stakeholders affected by the MHCA 2017, such as MHPs, police services, the State and Central Mental Health Authorities, legal representatives, patients, and caretakers need to be consulted to create a comprehensive CoP in India. The MHCA authorizes the Central Authority to appoint an Expert Committee to prepare the “guidance document.” State Mental Health Authorities, IPS, and other key stakeholders need to have representation in this Committee. The guidance document has statutory status as mentioned in Section 81 of the act.
Once created, the CoP should be made available widely to all stakeholders, in digital and print media. Workshops to raise awareness and to train professionals in the use of the CoP/legislation would surely prove useful.
How Can We Ensure That All Mental Health Professionals Are Knowledgeable About the MHCA 2017?
MHPs in the UK educate themselves of the legislation by reading the Bare Act, the CoP, RCPsych training pack, and guidelines from the Mental Health Act Commission and also by having access to training and certification (Section 12 (2) training and certification) on the use of the Act. Despite this, a survey of psychiatrists in the UK  revealed that in spite of specific training in the mental health legislation, many psychiatrists had difficulty in understanding basic concepts of the act.
Ensuring the creation of a uniform, easy to read, and detailed CoP is but the first step in educating the masses about this crucial legislation. The CoP would be a tool for effective execution of the legislation.
The MHCA 2017 is a bold step to provide, monitor, and enforce world-class standards of mental healthcare in India. It identifies mentally unwell patients as vulnerable and aims to protect and promote their rights. However, in clearly specified circumstances, the “Act” also confers some powers to MHPs/psychiatrists to override patient autonomy. Practicing psychiatrists ought to be aware of the intricate details of the powers bestowed and the responsibilities attached to such power. With the ongoing practice of the MHCA, clinicians will have to keep abreast of case laws that will serve as additional clarification in the interpretation of the MHCA. Although there is no substitute for reading the Bare Act in full, a CoP will help understand the legislation at the practical level with interest. Hence, there is a strong case for the need for a guidance document from a statutory body to help all stakeholders with the day-to-day implementation of the MHCA 2017.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
|1||The Mental Healthcare ACT, 2017; The Gazette of India, Extraordinary; Part 2 Section 1; New Delhi; Ministry of Law and Justice (Legislative Department), India. 2017.|
|2||Code of Medical Ethics Regulations. Medical Council of India notification Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. No. MCI-211(2)/2001/Registration. New Delhi, India; 2002.|
|3||Neki JS, Nandi DN, Agarwal AK, Vahia VN, Trivedi JK. Code of Ethics for Psychiatrists in India, Ethics, Psychology. Approved by the Indian Psychiatric Society at its Annual Conference, Held at Cuttack; 1989.|
|4||Agarwal AK. A review of Indian psychiatry research and ethics. Indian J Psychiatry 2010;52:S297-305.|
|5||Chandra S, Innaje R, Duddu V. Code of Ethics: Version 1.3. Endorsed by the IPS Executive Council on 8th December, 2018. Patna, Bihar: Indian Psychiatric Society, India; 2018.|
|6||Acharya S. In the High Court of Delhi at New Delhi + w.p. (crl.) 1804/2017 & cm no. 9963/2017. Versus State (NCT of Delhi) & ORS. New Delhi, India; 2018.|
|7||The Code of Practice: Mental Health Act 1983. UK; By the Department of Health, UK: The Stationery Office; 2015.|
|8||Bhatti V, Kenney-Herbert J, Cope R, Humphreys M. Knowledge of current mental health legislation among medical practitioners approved under section 12 (2) of the mental health act 1983 in the West Midlands. Health Trends 1999;30:106-8.|