Mental health and the law: An overview and need to develop and strengthen the discipline of forensic psychiatry in India.

Human rights and mental health care of vulnerable population need supportive legislations and policies. Both "hard" and "soft" laws relevant to mental health care have been devised internationally and locally. Amendments in laws and the formulation of new laws are often required and have been seen to occur in the area of mental health care in India. So far, reform in mental health care has largely been reactive, but newer legislations and policies carry the hope of proactive reform. The lack of trained human resources is one of the biggest problems in effective mental health care delivery in India. While postgraduate psychiatric guidelines recommend a 2-week training in forensic psychiatry, this is insufficient to develop the necessary competence in the area. There is, thus, a need to develop subspecialty of forensic psychiatry. Forensic psychiatric services also need to be developed, properly structured, and supported. There is a need to set up one or more centers of excellence in forensic psychiatry in India.

INTRODUCTION

People with mental disorders are vulnerable to abuse and violation of their basic rights.[1] Such abuse or violation may occur from diverse elements in society including institutions, family members, caregivers, professionals, friends, unrelated members of the community, and law enforcing agencies. This sets an imperative for a protective mechanism to ensure appropriate, adequate, timely, and humane health care services.[2] Such protective mechanisms include legislative provisions and policies to ensure that the rights of this vulnerable group are protected. In the undeniable context that every society needs laws in various areas to maintain the well-being of its people, mental health care is one such important area that requires appropriate legislation.

In this paper, we first provide a brief overview of the “hard” and “soft” laws that have been influential in mental health policy and care, both internationally and nationally. We then provide a brief glimpse of some of the efforts at the national level to address issues of human rights of persons with mental illness. This is followed by a summary of the broad areas that forensic psychiatry embraces. We then examine the status of forensic psychiatry in India and finally discuss the need to develop comprehensive forensic services and training in India.

“HARD” AND “SOFT” LAWS GOVERNING OR INFLUENCING MENTAL HEALTH CARE

“Hard” laws refer to laws that are binding and enforceable internationally or domestically. “Soft” laws, on the other hand, are not binding. However, soft laws if well constructed and reflect a broad consensus can become a model for future legislation.[3] In the last 70 years, there have been a number of international conventions, declarations, covenants, etc., that have reference to mental illnesses/mental health of an individual. Table 1 gives details of legally binding international instruments relevant to mental health. The Universal Declaration of Human Rights (UDHRs)[4] was adopted in 1948. Article 1 of the UDHRs, adopted by the United Nations in 1948, provides that “all people are free and equal in rights and dignity” – “establishing that people with mental disabilities are protected by human rights law by virtue of their basic humanity”

Table 1

International legally binding instruments

India is a signatory to many of these international declarations and thus has an obligation to align her laws to suit these.

In India, some of the hard laws pertaining to mental health include The Mental Health Act, 1987; The Protection of Human Rights Act, 1993; Persons with Disability Act, 1995; The National Trust Act, 1999; Protection of Women from Domestic Violence Act, 2005; Protection of Children from Sexual Offences Act, 2012, and related legislations. A prominent statutory legislation regulating narcotics is the Narcotic Drugs and Psychotropic Substances (NDPS) Act 1985.

Strictly speaking, “soft” laws are not really laws at all; they are rules or policies that are quasi-legal and not binding. They are defined as having “hortatory” obligations, i.e., statements in the nature of promises. It is argued that in the course of time, these may become binding. Some examples include the National Mental Health Policy 2014 and the National Mental Health Programme (with its operational arm, the District Mental Health Programme).[12] Another example is the National Programme on Noncommunicable Diseases.[13]

AMENDMENTS AND NEW LAWS

An amendment is a formal or official change made to a law. Such amendments may occur to improve the law, correct errors, improve equity, make the provisions more stringent, or to make sure that the law is compliant with international conventions. The NDPS Act was thus amended thrice, the last time in 2014. With respect to the Mental Health Care Act 1987, several shortcomings were recognized in the act; state rules were not formulated for decades after its enactment and the need for compliance with the UNCRPD led to several debates about whether to amend the existing law or enact a new one.[14] At present, the Mental Health Care Bill 2016 which was approved by the Rajya Sabha awaits ratification in the Lok Sabha. Similarly, the Rights of Persons with Disability Bill, which is intended to replace the Act of 1995, was introduced in 2014 and awaits ratification.

MENTAL HEALTH CARE REFORM IN INDIA

Although the National Mental Health Programme in the country has been existent since 1982 and was re-strategized in 1996, it would be appropriate to state that policy and programming in mental health so far has been more reactive than proactive. Tragedies like Erwadi and a series of public interest litigations (PILs) that have been filed before the Supreme Court of India have been major drivers of change.[15] Some of the PILs have not only focused on institutional treatments but also focused on economic, social, and cultural rights of persons with mental illness. A series of reports from the National Human Rights Commission[1617] highlights the gross deficiencies that existed in institutional care of persons with mental illness and also demonstrated the positive changes that could be brought about with persistent monitoring, collaboration, and proactive intervention – structural facilities and living conditions improved, budgets improved, voluntary admissions became more frequent than court admissions, there was greater community participation, and the need for rehabilitation of persons with mental illness received greater focus. However, these reports have also highlighted the negative aspects in terms of inadequate human resources and poor psychosocial interventions, among others.

Meantime, the need to provide the least restrictive care for persons with mental illness and by extension to develop adequate community care facilities for persons with mental illness has been the driving philosophy of the National Mental Health Policy. However, a recent report compiling state and union territory reports of the status of mental health care reveals extremely low coverage of primary mental health care in the country.[18] The recently published Mental Health Survey Report[19] carried out in 12 states of the country estimates the prevalence of mental disorders at 10.6%, and the mental health care gap that has been calculated in these states as varying between 70.4% and 86.3%. In reality, given the huge inequity of mental health care resources across different states, and local ecologies that may aggravate mental distress, the mental health care treatment gap may be much higher. Mental health care, like other health care, requires human resources, facilities, and protected budgets. Whether the new Act will ensure equitable care to persons with mental illness remains to be seen. However, one stark truth is that there needs to be a concerted drive to improve human resources in mental health care, and that will be the biggest challenge in the decades ahead.[20] While there is a need to train all health providers in issues related to mental health, it is also important to develop specialists in different aspects of mental health care. In addition, strengthening undergraduate psychiatry training as well as postgraduate training in psychiatry is of primary importance.

POSTGRADUATE TRAINING IN PSYCHIATRY

In the postgraduate training guidelines formulated by the Indian Psychiatric Society,[21] a 2-week posting in forensic psychiatry is recommended. Unfortunately, there are few centers in the country that have any specialized forensic psychiatry service. Thus, many postgraduate students from different institutions throughout the country come to centers such as the National Institute of Mental Health and Neurosciences (NIMHANS) which have relatively more structured forensic psychiatry services. However, it is important to emphasize that throughout postgraduate psychiatry, whether in adult psychiatry, child psychiatry, addiction treatment services, emergency services, etc., it is very important for the postgraduate trainee to be aware of the medicolegal aspects of psychiatric practice. With this caveat, we further discuss more specialized training in forensic psychiatry and the need to develop forensic psychiatry as a specialized discipline within psychiatry. One such area of specialization is in forensic psychiatry.

THE EXPANDING HORIZON OF FORENSIC PSYCHIATRY

Over time, the narrow notion that forensic psychiatry mainly concerns itself with criminal responsibility and fitness to stand trial has long been dissipated, and it is clear that several civil aspects of mental health as well as issues related to treatment of mental illness come under the domain of forensic psychiatry. The interface between mental health and law is vast as shown in Figure 1.

Figure 1

Various facets of mental illness and law

FORENSIC PSYCHIATRY AS A SUBSPECIALTY OF PSYCHIATRY

Pollack defined Forensic Psychiatry as a “broad general field in which psychiatric theories, concepts, principles and practices are applied to any and all legal issues.” The American Academy of Psychiatry and the Law endorses the definition of Forensic Psychiatry adopted by the American Board of Forensic Psychiatry. “Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, and correctional or legislative matters; forensic psychiatry should be practiced in accordance with guidelines and ethical principles enunciated by the profession of psychiatry.”[22]

The origin of Forensic Psychiatry in India dates back to the drafting of the Indian Penal Code (IPC) by Thomas Babington Macaulay during the mid-19th century. During the same time, the Mc Naughten's rules were incorporated into the IPC, Section 84, and are the basis for the insanity defense. This has not changed till date. However, there have been many landmark judgments with regard to Section 84, IPC.[23]

Regarding civil responsibilities, mental illness is relevant across diverse areas. For example, issues such as marriage, divorce, testamentary capacity, contract, voting, consent, fitness for holding and continuing jobs, succession of property rights, guardianship, and social welfare benefits have reference to mental health and illness either directly or indirectly. The new provisions in the Mental Healthcare Bill, 2016, and the Rights of Persons with Disabilities are expected to bring a paradigm shift in the conceptualization of care of those with psychiatric disorders.

CURRENT STATUS OF TRAINING IN FORENSIC PSYCHIATRY IN INDIA

In India, there is very little infrastructure and organized training in forensic psychiatry. Most psychiatric units do not have a dedicated forensic psychiatry ward/unit. Most forensic evaluations are done by the treating psychiatrist who has had little or no formal training in forensic psychiatry. Thus, in many cases, decisions occur by trial and error or in good faith, rather than being based in skill and competence.

There are no specialized training programs in forensic psychiatry in India. Countries like UK offer a 3-year advanced structured training program in forensic psychiatry, which can be taken after 3 years of core psychiatry training. There are a few centers in the country where training in Forensic Psychology has been initiated.

The programs in developing competencies in forensic psychiatry need to concentrate on multiple areas and contexts. These are summarized in Table 2.

Table 2

Skills and competencies required in forensic psychiatry training

A BRIEF NOTE ON RESEARCH IN FORENSIC PSYCHIATRY

Indian literature on forensic issues such as negligence, informed consent, confidentiality, certification, seclusion, suicide, homicide, and the complication of various therapies is very negligible.[24] In the last 50 years, there are hardly 50 articles published on forensic psychiatry in the Indian Journal of Psychiatry. There articles can be broadly arranged under the following three headings: (a) criminology related psychiatric aspects, (b) mental health legislation related, and (c) others. More recently, a survey conducted by NIMHANS in the Bengaluru Central Prison[25] showed that 79.6% prisoners had either mental illness or substance use disorder. After excluding substance use, 27.6% had diagnosable mental disorder. There were high rates of tobacco use within the prison and in fact a 4-time increase in tobacco consumption after getting into prison. On conducting a random urine drug screen, 61.3% of those screened anonymously tested positive for one or the other drug. About 12.7% has life time history of major depressive disorder and 9.1% had current episode of major depression. Nearly 2.2% of prisoners had psychosis with substantial of them being substance use related psychosis. Another study done by Chadda and Amarjeeth in Tihar jail of Delhi in 1998[26] revealed that prevalence of psychiatric illness in prisoners was 3.4%. They also found that depression and schizophrenia were the most common diagnosis in patients involved in major crimes and majority of patients with schizophrenia were implicated in cases of homicide. These studies highlight the need for mental health care in prisons.[25]

ETHICAL ISSUES IN RESEARCH IN FORENSIC PSYCHIATRY

Soundness of mind is generally assumed in other branches of medicine, but in psychiatric research, there are often individuals who lack full judgment capacity or decision-making capacity.[25] The most common ethical dilemma in forensic psychiatry is between the two principles of (a) beneficence or promotion of welfare and (b) respect for justice.[27] The forensic psychiatrist often has to make a choice between well-being of the patient and well-being of the society as a whole. In India, the psychiatrist practicing forensic psychiatry has the dual role of both carrying out forensic assessments as well as providing medical treatment. In settings with well-established forensic services, one way of overcoming this dilemma has been to have forensic psychiatrists carrying out mental assessments of mentally ill offenders on behalf of the legal system, and treatment provision by a different set of treating professionals.

The ultimate aim of the forensic psychiatrist should be revelation of truth as part of pursuit of justice without affecting privacy and autonomy of the patient.[28] As per the American Academy of Psychiatry and Law, forensic evaluation should never be conducted for either prosecution or government until the evaluee has had access to legal counsel.[29]

MENTALLY ILL OFFENDERS

Although most prisons do have facilities to address basic physical health issues, prison-based mental health services are in a very rudimentary state in India. Many of the prisons have facilities of a visiting psychiatrist but not a full-time psychiatrist. Routine assessments for mental disorders or substance use are rarely carried out and a psychiatrist is usually only called upon only if there any signs of mental illness in an undertrial prisoner or convict. Another issue of serious concern is that there is no practice of routine mental status assessment in prisoners condemned to death.

After a landmark observation in the 1980s of “noncriminal lunatics” languishing in jails in very poor conditions, such a practice was considered unconstitutional and a violation of human rights.[30] These findings indicate urgent need for the diversion of prisoners with mental illness to mental health care settings.[26] However, mental health care settings are ill equipped to take on this responsibility at present.

The mental condition of the offender is specifically of concern to the judicial system in two scenarios, one to ascertain mental state at the time of committing the crime and the other to assess fitness to stand trial. Such patients may be evaluated as outpatient or where facilities exist, as inpatients. Security is a prime concern when prison referrals occur as such patients are under the dual custody of the superintendents of the jail and the mental health facility. Apart from security, there are several other challenges in the inpatient assessment and care of undertrial and convict prisoners referred to a psychiatric facility. An important issue is the lack of background information about the patient's history, behavior, and serial mental state examinations before referral. The second is the lack of clear guidelines about the involvement and engagement of the family and legal counsel in patient care and decision-making. Determining mental state at the time of committing the offense is also challenging as the individual is often referred to psychiatric services long after incarceration and commencement of the trial. The lack of access to objective forensic investigations makes it difficult to identify offenders feigning insanity.

Inpatient forensic services require appropriate infrastructure, well-trained human resources, adequate security, facilities for close behavioral observation and monitoring, specialized investigations, and well-developed and structured assessments and procedures. This can be implemented only by creating dedicated infrastructure and human resources for forensic psychiatry.

FUTURE DIRECTIONS

Forensic psychiatry remains a neglected area in India and other countries in South-East Asia. This is unlike many of the developed settings where it has become an established subspecialty with a focus on clinical services, training, and research. Academic centers need to actively engage in developing this area. They need to consider the fast-growing need of developing this specialty, recognize the vast scope of the field, and device curricula that cater to the diverse needs of the country. Dedicated clinical services need to be started for this vulnerable patient population. Apart from the dedicated fellowships and super-specialties, training courses catering to the different mental health disciplines (psychiatry, clinical psychology, psychiatric social work, and psychiatric nursing) students in other branches of medicine and law also need to be trained in the forensic aspects of mental health care. In addition, various other stakeholders who need regular sensitization and training in issues relating to mental health include law enforcement agencies, judiciary, advocates, and women and child welfare departments, commissions related to the mental health (including the Human Rights Commissions, Women's Commissions, Child Welfare Commissions, etc.). Support for focused research in many areas of overlap between mental health and the law is also critical. It is important for government to take initiatives to establish centers of excellence in forensic psychiatry.

One such effort has begun at the NIMHANS, Bengaluru, where such a center has been conceptualized, and a postdoctoral fellowship in forensic psychiatry has been initiated in 2016. The proposed center, called the Centre for Human Rights, Ethics, Law and Mental Health, has the objectives of (a) enhancing trained human resources in the areas of forensic psychiatry, law and human rights of persons with mental illness, (b) establishing and providing the highest standards in diagnostic and investigative approaches in forensic psychiatry, (c) developing a state of art clinical and resource facility in forensic psychiatry, (d) facilitating the development of quality forensic services in different parts of the country, (e) contributing to capacity building by providing training in forensic psychiatry for mental health, medical, police personnel, human rights activists and law professionals, (f) developing and strengthening inter-disciplinary, inter-institutional and international collaboration to foster research in forensic psychiatry, (g) developing guidelines, standard operating procedures, providing expert opinion in the area of forensic psychiatry, (h) conducting research with regard to mental health laws, medico-legal psychiatry, forensic psychiatry and child forensic psychiatry, and to (i) guiding national policy and develop national guidelines for developing quality forensic psychiatric services in India.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.