India beat England – and not just at cricket.
On 12 April 2017, we referred to The Indian Lunacy Act 1912 and a paper, summarising the history of mental health legislation in Britain extending back 172 years. We noted the word, ‘Lunacy’ was not replaced in Indian Law until The Mental Health Bill 1986.
Now, in the field (pun unintended) of mental health, leading academics¹, write of the new Indian Mental Healthcare Act 2017 (“IMHA):
“In theory, the IMHA is a highly progressive piece of legislation, especially when compared to legislation in other jurisdictions subject to similar analysis.
“Overall, it is likely that India’s new mental health legislation will impact on more individuals than any other piece of mental health legislation in the world”
They found India’s compliance with the World Health Organisation’s ‘Resource Book on Mental Health, Human Rights & Legislation’ (“WHO-RB”) standards generally good and more compliant with these standards than legislation of Eire or England & Wales.
In particular, they claim that the UK Mental Health Act inadequately addresses the fundamental rights of voluntary patients, vulnerable patient groups, emergency treatments and economic and social rights.
So let’s look at some important sections of the IMHA [paraphrased] in comparison with UK legislation:
“S.18(1) and (2): Every person has the right to access mental health care treatment and services run or funded by Government which are affordable, of good quality, in sufficient quantity, available nearby, and without any discrimination.”
Are our mental health services of sufficient quality and quantity and always available locally? Clearly not.
“S.19(1): A patient with mental illness (“PMI”) has the right to live in the community and be part of and not segregated from society.”
Are UK Community Mental Health Teams (including Crisis Teams) adequate for this to be a realistic objective? Clearly not.
“S.20(2): PMIs shall be protected from cruel, inhuman or degrading treatment and have the right to live in a safe and hygienic living environment, proper sanitation and facilities for leisure, recreation, education, religious practices and privacy.”
In the UK, the availability of a safe environment and adequate facilities, free from inhuman and degrading treatment, cannot be guaranteed. See also s.97(1) below.
“S.21(1): Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare.”
Speaking on 10 October 2013, Norman Lamb MP said it all:
“There is an institutional bias against mental health within the NHS.” (Read full speech here→.)
Some politicians do tell the truth!
“S.21(4): Every insurer shall make provision for treatment of mental illness on the same basis as is available for treatment of physical illness.”
If UK insurers had to cover mental illness on the same basis as physical illness, it would relieve the pressure on NHS mental health services considerably.
“S.27(1): PMIs are entitled to receive free legal services to exercise his/her rights available under the Act.”
In UK, non-means tested legal aid is available only whilst a PMI is detained under a section. Otherwise a PMI, who wishes to take legal action, must fund it themselves, even if breaches of mental health legislation have life-changing consequences.
“S.97(1): Seclusion and solitary confinement is totally banned and physical restraint is to be used sparingly, when absolutely needed, and deemed the least restrictive method.”
Seclusion and solitary confinement are not unusual in the UK: ask Bethany, 17, who has autism and extreme anxiety; has been locked in a seclusion room for almost two years; and is fed through hatches. Her father had to fight off Walsall Council’s bid for a gagging order stopping him from speaking out about his daughter’s treatment. Read more here→
Physical restraint (including ‘face down’ restraint) has increased in recent years with reports of PMIs being fed through hatches in seclusion, forcibly injected with powerful drugs to sedate them, and violently restrained by up to six adults. Read more here→
“S.98 (1): When a PMI is discharged into the community or to a different mental health unit or a new psychiatrist takes over, the existing psychiatrist must consult the PMI, the nominated representative and the relevant family member or carer. (2): The existing psychiatrist will, in consultation with the persons referred to in s.98(1), ensure a plan is developed as to how treatment of services are to be provided.”
How many Inquests identify lack of adequate care plans as a contributor to suicide when PMIs are discharged? How many PMIs and families complain about lack of consultation before discharge; transfer between units and/or a change in Consultant Psychiatrist?
Regarding family involvement, it is worth noting that WHO-RB specifies:
“Two occasions exist when the family and carers are automatically involved; these are: when planning discharge and in the case of a person found wandering in the community.”
Incorporating this into the Mental Health Act would put an end to Trusts using data protection legislation as an excuse not to involve the family at key stages.
“S.108: Any person who contravenes any provision of the IMPA (or related rules and regulations) is liable to imprisonment for up to six months or a fine of up to 10,000 rupees [£110³] or both for the first offence and imprisonment for up to two years or a fine of up to five lakh rupees [£5,500³] or both.
We believe it oppressive to incorporate criminal law against individual clinicians in the Mental Health Act. There are sufficient sanctions in UK law (including common law) to cover serious cases, such as manslaughter, false imprisonment and Misconduct in Public Office. Other aspects of professional misconduct are for Regulators to determine.
The difficulty is that the police are reluctant to investigate medical professionals (save in the most blatant cases, such as Dr Shipman) and UK Regulators are insufficiently robust to hold medical professionals to account.
“S.109: Where an offence is committed by a company or organisation, every person who, at the time the offence was committed, was in-charge of and responsible to the company as well as the company shall be deemed guilty … and be punished accordingly.”
At Southern Health (and probably elsewhere) we know the difficulty (some may say impossibility) in holding Trust Directors to account. For this reason, we believe there are benefits of incorporating a clause based on S.109 of the IMHA into the Mental Health Act.
Of course, there are common barriers to full implementation of the IMHA, including inter alia funding, staffing, public health priorities and stigma, which cast a shadow on the new legislation. But then, don’t these barriers apply in UK too?
Also, adequate diagnosis of mental illness is essential for high quality mental healthcare, as is the need for high level clinical training and judgement for accurate diagnosis. In UK, it is evident that accurate diagnosis and effectiveness of training is patchy, and revalidation and regulation of psychiatrists is poor.
But overall, Duffy and Kelly¹ conclude:
“Other countries revising their legislation would undoubtedly benefit from studying India’s constructive, pragmatic and enlightened approach to this matter.”
³ Exchange rates on 26 November 2018