Legal Issues in Psychiatric Nursing

1. Legal Issues in Psychiatric Nursing

2. The mental health act, 1987 • The Indian mental health act governs the welfare of mentally ill patients in our country. • This act came to force on 22nd may 1987, mental health act was drafted by parliament in 1987 , but it cane into effect in April 1993 • This act replaces the Indian Lunacy act of 1912, which had earlier replaced the Indian Lunatic Asylum act of 1858

3. Reason for amendment of act 1987 • The attitude of the society towards persons afflicted with mental illness has changed considerably, and it is now realized that no stigma should be attached to such illness. Mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible • The experience of the working of Indian Lunacy Act, 1912, has revealed that it has become out mode, with rapid medical advances, it has become necessary to have fresh legislation, with new approach

4. Objectives of mental health act, 1987 • To regulate admission to psychiatric hospitals or psychiatric nursing homes of mentally ill persons who do not have sufficient understanding to seek treatment on a voluntary basis, and to protect the rights of such persons while being detained • To protect society from the presence of mentally ill persons who have become or might become a danger to others • To protect citizens from detained in psychiatric hospitals or psychiatric nursing homes with out sufficient cause

5. To regulate responsibility for maintenance charges of mentally ill persons who are admitted to psychiatric hospitals or psychiatric nursing homes. • To provide facilities for establishing guardianship or custody of mentally ill persons who are incapable of managing their own affairs. • To provide for the establishment of Central Authority and State Authorities for Mental Health Services.

6. To regulate the powers of the Government for establishing, licensing and controlling psychiatric hospitals and psychiatric nursing homes for mentally ill persons. • To provide for legal aid to mentally ill persons at State expense in certain cases

7. Chapters • Chapter I – defines various expressions occurring in the Act • Chapter II- empowers the State Government to establish State authority for Mental Health Services • Chapter III- empowers the central government or state government to maintain psychiatric nursing homes • Chapter IV- deals with admissions and detention in psychiatric hospital or psychiatric nursing home • Chapter V- deals with inspection, discharge, leave or absence and removal of mentally ill patients

8. Chapter VI- deals with judicial inquisition regarding alleged mentally ill person possessing property, custody of his person and management of his property • Chapter VII- deals with liability to meet cost of maintenance of mentally ill persons detained in psychiatric hospital or psychiatric nursing homes. • Chapter VIII- deals with protection of human rights of mentally ill persons. • Chapter IX- deals with procedures to be followed for establishing and maintaining psychiatric hospitals • Chapter X- deals with clarification in certain procedures , to be followed by medical officer in charge.

9. Criticism of the act • Change of older terminologies to new terminologies might be good from theoretical aspects but should be implemented. • Licensing authorities do not have a doctor who may be in a better position to access the facilities and services of these centers • Concept of establishing new hospitals might appear good but in developing country like ours, this may be a costly affair

10. There is no mention about incorporating General hospitals and centers in this act rather they are prohibited. Such hospitals if taken along may provide a better health care • More emphasis is given to hospital admission and treatment, where as there is no provisions for home treatment • No provisions are made for care and rehabilitation of patients after discharge • No provision for punishing the relatives and officers requesting unnecessary detention of ward in such hospitals.

11. Indian Lunacy Act 1912 • Indian Lunacy Act was derived from English Lunacy Act 1890 and it includes total 8 chapters • Chapter I- this section deals with preliminary information including some definitions:- The definitions are • Asylum-An asylum or mental hospital for lunatics established or licensed by the central or state Govt. • Cost of maintenance- it includes the cost of lodging, maintenance, clothing, medicine and care of lunatics and any expenditure incurred in removing such lunatic to and from an asylum

12. Criminal lunatic- it means any person for whose detention in, or removal to an asylum, jail or other place of safe custody, an order has been made in accordance with the provisions of section 330 or sections 335 and 336 of the Code of Criminal Procedure, 1973 or of section 30 of the Prisoners Act, 1900, or of section 103 A of the Indian Army Act, 1911.

13. Chapter II- It deals with reception of lunatic, reception order on petition, reception order in case of lunatics from foreign states in India, reception order otherwise than on petition, reception and detention of criminal lunatics • Chapter III- it deals with procedures to be followed for providing care and treatment including appointment of visitors, monthly inspection by visitors, discharge of lunatics, temporary release of lunatics, removal of lunatic, escape and re- capture

14. In chapter III, the term ‘PAROLE’ is defined as permission given to patients to perform certain rituals or attend certain family functions. During parole patient can leave hospital at any time, and can be brought back to the hospital forcefully, if he does not with in a maximum period of 90 days.

15. Chapter IV- it deals with Jurisdiction in Lunacy in presidency towns, powers of court in respect of attendance and examination of lunatic, power to direct district court to make inquisition in certain cases, judicial powers over person and estate of lunatic, power to dispose of lunatic’s property for certain purposes

16. Chapter V- it deals with custody of lunatics and management of their estates, remuneration of managers and guardians etc. • Chapter VI- it deals with establishment of asylums include establishment or licensure of asylums by the state government, provision for admission of lunatics in asylums outside a state.

17. Chapter VII- it deals with expenses of lunatics, payment of cost of maintenance in licensed asylums in certain cases by government, application of property in the possession of a lunatic found wandering, order of court and enforcement, fixation of costs of maintenance , saving of liability of relatives to maintain lunatic. • Chapter VIII- it deals with publication of rules, penalty for improper reception or detention of lunatics, provision as bonds, protection to persons acting under act, power to give effect to warrants and orders of certain courts outside India.

18. Bill of rights of mentally ill patients • Title V, section 501 of Mental Health Systems Act 42 U.S.C defines a Bill of Rights for Mentally Ill Patients. • Right to treatment and services under conditions that support the person’s personal liberty. • Once disability is certified, the person can avail benefits of travel allowances in Indian Railways, and an accompanying relative • Right to an individualized, written or service plan

19. 4. Right to ongoing participation in the planning of services to be provided . 5. Provision for certain tax benefits for psychiatric patients 6. Right to be provided with a reasonable explanation of all aspects of one’s own condition and treatment 7. Right to refuse treatment 8. Right to not to participate in experimentation in the absence of the patient’s informed, written consent

20. 9. Right to freedom from restraints and seclusions 10. Right to humane treatment environment that affords reasonable protection from harm and appropriate privacy 11. Right to confidentiality of records 12. Right to access, upon request, one’s own mental health care records 13. Right to have jobs in the public sector

21. 14. Right to have access to telephones and mails to converse with others privately 15. Right to assert grievances with respect to infringement of the bill of Rights 16. Right to referral as appropriate as appropriate to other providers 17. Right to wear own clothes

22. Nurse’s implications for protecting patient’s rights • To protect the patient’s rights the nurse should be aware of these rights • She should ensure that ward procedures and policies should not violate patient’s rights • Discussing these rights with the mental health team and including these rights in the nursing care plan is important in protecting the patient’s rights

23. Forensic psychiatry • Forensic psychiatry is the branch of medicine that deals with disorders of the mind and their relation to legal principles. The basic forensic psychiatry includes • Crime and psychiatric disorders • Criminal responsibility • Civil responsibility • Laws relating to psychiatric disorders • Admission procedures of patients in a psychiatric hospital • Civil rights of the mentally ill • Psychiatrists and the court

24. Crime and psychiatric disorders • It is common in schizophrenia, affective disorders, epilepsy, personality disorders and drug abuse cases. Usually they commit offence because • They do not understand the implication of their behavior • Due to delusions and hallucinations • Abnormal mental states like confusion, excitement etc • Drug related violence

25. Criminal responsibility • According to section 84 of the Indian Penal Code of 1860 “nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is ‘incapable of knowing the nature of the act. Or that he is doing what is either wrong or contrary to law.

26. Criteria used to determine criminal responsibility • M’Naghten’s rule • Irresistible Impulse Act • Durham’s rule / product rule • American Law Institute (ALI) test

27. Civil responsibility of a mentally ill • Management of property • Marriage • Testamentary capacity • Right to vote

28. Laws relating to psychiatric disorders • Laws relating to psychiatry in India • Mental health related legislations • Civil laws relating to mental ill persons • Civil laws relating to psychiatry • Suicide and Indian law • The narcotic drugs and psychotropic substances

29. Civil rights of the mentally ill • There are legal efforts to safeguard the human rights of mentally ill. A person who is supposed to look after the mentally ill person and who does not take proper care and shows cruelty, may be summoned by the court, on receipt of such an information either from the public or the police. Anybody subject the mentally ill to physical or mental indignity while in hospital also will be prosecuted, and a mentally ill person shall not be used in research with out obtaining from him or the significant others.

30. Acts related to narcotic and psychotropic substances and illegal drug trafficking • The Opium Act of 1857 was revised first in 1878 • In 1950, the Opium Act 1878 was revised as the Opium and Revenue Laws Act 1950. • On 16th September 1985, the above Act was replaced and Act 61 of NDPSA 1985 was enforced

31. Contents of the Act • The Act includes narcotic drugs (opium, poppy, straw, cannabis, cocaine, coca and all related drugs) and psychotropic substances (76 drugs and their derivatives) • In this act if a person produces, possesses, transports, imports, sells, purchases, or uses any narcotic drugs or psychotropic substances (except Ganja), he shall be punishable with • - rigorous imprisonment for not less than 10 years which may extend up to 20 years, and fine 1 lakh to 2 lakh rupees

32. -for repeat offense a rigorous imprisonment of 15 years , which may extend to 30 years, and a fine of 1.5 lakh to 3 lakh rupees • -for handling ‘Ganja’, a rigorous imprisonment up to 10 years and a fine up to 1 lakh rupees • - NDPSA Act will seize the property, and death penalty if a person is found to be trafficking more than or equal to 1 kg of pure heroin, despite warning on first attempt.

33. Admission and discharge procedures (gvrnd by MHA) • Admission on voluntary basis- patient has to apply to medical officer, if he is a minor, the guardian can make this. The Medical Officer should make an enquiry with in 24 hours, and should admit patient if needed and treatment will be continued for a period not exceeding 90 days • Admission under special circumstances- any mentally ill persons who does not or is unable to express his willingness for voluntary admission is kept in a mental hospital or psychiatric nursing home on an application made by his relatives. The prescribed application form along with certificates of 2 medical officers is required to admit him

34. Admission under reception order • On application- an application can be made only by the relatives not other than husband, wife, guardian or a friend for the admission of mentally ill persons. This application is made out to magistrate in writing along with two medical certificates, one of them issued by gazatted medical officer. The magistrate now obtains consent from medical officer in charge of mental hospital for the admission of a mentally ill person

35. On production before the magistrate- A police officer, may take in to protection of any person wandering with in the limits of his station who is a suspect of mentally ill, and can be a threat to himself or others, and this person should be produced in front of the magistrate with in 24 hours of detention. Magistrate gives an order to the medical officer to examine and admit the patient

36. Admission in emergency- a medical officer may order the admission of a mentally ill person if he thinks the mentally ill person is a threat to self or others, and the patient should be produced before magistrate with in 24 hours of detention. Magistrate can pass an order on examination. • Temporary admission- the magistrate can issue an order for temporary admission if he finds the mentally ill dangerous to the public or to self.

37. Discharge of mentally ill patients • Voluntary discharge- the voluntary admitted patients may give a written request to leave the hospital, when maximum relief has been attained from treatment • Discharge of patient admitted under special circumstances- a friend or relative can make a request for discharge of a mentally ill patient to the concerned medical officer. If the medical officer feels satisfied with the treatment outcome, then the friend or relative has to assure the security of the patient after discharge.

38. Discharge of patient admitted on reception order- an application can be made to the magistrate along with a medical certificate from medical officer in charge, and if the magistrate finds the patient fit, may issue an order for discharge. • Discharge of a patient admitted by police- it can be done when family members are ready to give an agreement in writing to take care of their patient and also the satisfactory opinion of medical officer isneeded

39. Leave of absence- an application for leave of absence on behalf of the mentally ill person, not being a mentally ill prisoner undergoing treatment as an inpatient in any mental hospital or psychiatric nursing homes may be made to medical officer in charge. The application should be duly signed by the family member along with an agreement stating about proper care and safety of patient and others. The Leave of Absence is granted for a maximum of 60 days.

40. Roles and responsibility of nurses • Approach the client with warm and accepting manner • Should have adequate knowledge about admission and discharge procedure of patient • Take informed consent from patient or family members to perform various procedures in the client • Follow various guidelines giver regarding application of restraints and seclusions • She should protect the basic human right of patient • Maintain confidentiality of patient’s data

41. Maintain privacy of patient while doing any procedures • All records should be kept strictly confidential • Inform concerned person if client escapes from unit • Keep hazardous objects away from patients • Make sure that hospital policy does not violate patient’s rights • Watchful for mentally ill criminals.