RIGHTS OF MENTALLY ILL PERSON

Since the dawn of human civilization, mentally ill patients have received the scant care and concern of the community because of their unproductive value in the socio-economic value system. They have not only been neglected but received step motherly treatment from the health planners especially in the developing countries. It was only after the plea of progressive incorporation of the norms of human rights that has created the urgency and necessity of initiating appropriate steps for the care and treatment of mentally ill persons. Thus as a result of the growth of humanistic values it is now admitted on all hands that a mentally ill person needs more care and concern for his treatment and well being.

The provisions relating to the human rights of mentally ill patients have hitherto been neither specifically documented in any code nor been prescribed or elaborated by Judiciary in India. But it is admitted on all hands that barring few exceptions, the mentally ill person deserves the same privileges as enjoyed by any other human being. They include a right to better and more accessible care, to good recovery and increased hopes of reintegration into society. However, the Stigma, residual disability and its intolerance, and more importantly the inability of the mentally ill to protest against exploitation, have all made basic human rights of the mentally ill a major cause of growing concern. The term human rights in a broad sense mean “those claims which every individual has or should have upon the society in which he/she lives.

According to Richard Wasserstorm it means, one ought to be able to claims as entitlements (i.e. human rights) those minimal things without which it is impossible to develop ones capabilities and to live life as human beings. Thus Human Rights is about balancing the rights of all of us as individual within the community. In the context of mentally ill persons, it not only refers to their privileges but remedial right of protection against infringement of their human and other statutory rights. However, the Human Rights of mentally ill persons can be discussed under the following heads:

Right to Health and the Constitution of IndiaAs Citizens of India, they are entitled to all those human and fundamental rights which are guaranteed to each and every citizen by the Constitution of India. The Supreme Court has also laid down the maintenance and improvement of public health is one of the obligations that flow from Article 21 of the Constitution. This means that mentally ill have the fundamental/human right to receive equality mental health care and to humane living conditions in the mental hospitals. The right to life in Article 21 of the Constitution means something more than survival of animal existence. It would include within its ambit the right to live with human dignity, right to health, right to potable water, right to pollution free environment and right to education etc., which have been held to be part of right to life. In the context of mentally ill person, apart from above narrated rights, it also includes right to live, work as far as possible in the community, to privacy and to lead a normal family life. The seriously mentally ill are a very special group with disabilities.

The concern with this group is two folds not only providing the privileges to live in society along with other citizens but also ensuring their right to protection from exploitation.

Right to Health as a Basic Human Right and International Covenant:The United Nations has defined human rights to mean generally as “those rights, which are inherent in our nature and without which we can not live as human beings. Section 2(d) of the protection of Human Rights Act, 1993 has defined the human rights to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed under the Constitution or embodied in the international covenants and enforceable by the courts in India. In 1948, the United Nations through its Declaration of Human Rights affirmed the basic principle that a mentally ill person should at all times be treated with humanity and respect for the inherent dignity of the person. Every person with a mental illness should have the right to exercise all civil, political, social and cultural rights. The Declaration of the Rights of the disable, which includes person with mental illness was adopted by the United Nations in 1975.

The 1971 Declaration on the Rights of Mentally Retarded Persons:-This Declaration was adopted by the General Assembly on 20th December 1971, keeping in view the necessity of providing help to mentally retarded persons in order to enable them to develop their abilities and promoting their integration in the normal life.

The Declaration lays down following principles:1. The mentally retarded persons has to the maximum degrees of feasibility the same rights as other human beings.2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.4. The mentally retarded person, whenever possible should live with his own family, or with foster parents and participate in different forms of community life. The family with which he lives should be provided with assistance.5. The mentally retarded person has a right to qualified guardian when this is required to protect his personal well being and interests.6. Disabled persons are entitled to have their special need taken into consideration at all stage of economic and social planning.7. Disabled persons have the right to live with their families or with foster parents an to participate in all social, creative or recreational activities.8. Disabled persons shall be protected against all exploitation, and treatment of a discriminatory, abusive or degrading nature.9. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their person and property. If judicial proceeding are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

International Year of Disabled Persons(1981)The General Assembly on 16th December 1978, decided to observe the Year 1981 as International Year for Disabled persons with the following objective:1. Helping disabled persons in their physical and psychological adjustment to society.2. Promoting all national and international efforts to provide disabled persons with proper assistance, training, care and guidance, to make available to them opportunities for suitable work and to ensure their full integration in society.3. Encouraging study and research projects designed to facilitate the practical participation of disabled persons in daily life, for example, for improving their access to public buildings and transportation systems.4. Educating and informing the public of the rights of disabled persons to participate in and contribute to various aspect of economic, social and political life.5. Promoting effective measures for the prevention of disability for the rehabilitation of disabled persons.

Human Rights and Mental Health Act, 1987

Under the Mental Health Act, 1987, mentally ill persons are entitled to the following rights:

1. A right to be admitted, treated and taken care of in a Psychiatric hospital or Psychiatric nursing home established or maintained by the Government or any other person for the treatment and care of mentally ill persons (other than general hospitals, or nursing homes of the Government).

2. Even mentally ill prisoners and minors have a right to treatment in psychiatric hospitals or psychiatric nursing homes of the Government.

3. Minors who are under the age of 16 years, persons who are addicted to alcohol or other drugs which lead to behavioural changes and those convicted of any offence are, entitled to admission, treatment and care in separate Psychiatric hospitals or nursing, homes established or maintained by the Government.

4. Mentally ill persons have the right to have regulated, directed and co-ordinated mental health services from the Government which through the Central Authority and the State Authorities set up under the Act have the responsibility of such regulation and issue of licenses for establishing and maintaining Psychiatric hospitals and nursing homes.

5. Treatment at Government hospitals and nursing homes mentioned above can be had either as in patient or as out-patients.

6. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes and minors can seek admission through their guardians. Relatives of mentally ill persons on behalf of the latter can seek for admission. Applications can also be made to the local magistrate for grant of reception orders.

7. The police have an obligation to take into protective custody a wandering or neglected mentally ill person and inform his relative and have such person produced before the local magistrate for issue of reception orders.

8. Mentally ill persons have the right to be discharged when cured and entitled to leave in accordance with the provisions in the Act.

9. Where mentally ill persons own properties including land, which they cannot themselves, manage, the District Court upon application has to protect and secure the management of such properties by entrusting the same to a Court of Wards, by appointing guardians of such mentally ill persons or appointment of managers of such property.

10. The costs of maintenance of mentally ill persons detained as in-patient in any Government Psychiatric hospital or nursing home shall be borne by the State Government concerned.

11. Mentally ill persons undergoing treatment shall not be subjected to any indignity (whether physical or mental) or cruelty. Nor can such mentally ill person be used for purposes of research except for his diagnosis or treatment, or with his consent.

12. Mentally ill persons who are entitled to any pay, pension, gratuity or any allowance from the Government (such as Government servants who become mentally ill during their tenure) are not to be denied such payments.

13. A mentally ill person shall be entitled to the services of legal practitioner by order of the Magistrate or District Court if he has no means to engage a legal practitioner or his circumstances so warrant in respect of proceedings under the Act.

Patient’s Rights

In 1973,American Hospital Association issued a patient’s bill of rights that many hospitals & community based settings throughout the U.S have adopted.

1. Right to Treatment Early court cases extended the right to treatment to all mentally ill and mentally retarded people who were involuntarily hospitalized. The courts defined three criteria for adequate treatment:

A humane psychological & physical environment. A qualified staff with a sufficient number of members to administer

adequate treatment. Individualized treatment plans.

2. Right to Refuse Treatment The relationship between right to treatment and right to refuse treatment is complex. The Right to refuse treatment includes the right to refuse involuntary hospitalization. Nurse s are often on the front line in dealing with who refuse treatments and Medications. It is clear that voluntary patients have the right to refuse any treatment and Should not be forcibly medicated except in exceptional situations when the patient is actively violent to self or others. Nurses must know the guidelines identified by the courts and the legislature in the same State on which they practice to administer medications properly to involuntarily Committed patients.

3. Right to Treatment In the Least Restrictive Settings The right to treatment in the least restrictive setting is closely related to the right to

adequate treatment .Its goal is evaluating the needs of each patient and maintaining the greatest amount of personal freedom,autonomy,dignity,and integrity in determining treatment. Issues related to seclusion and restraints are of particular concern. There must be adequate rational for the use of these practices. Documentation should include a description of the event that lead to seclusion or restraint, alternatives attempted, the patients behavior ,while secluded or restrained, nursing interventions and ongoing evaluation of the patient.

4. Right To communicate With People Outside the Hospital The right allows the person to visit and hold telephone conversations in privacy and send unopened letters to anyone of their choice, including judges, lawyers, families and staff .although the patient has right to communicate in an uncensored manner, the staff may limit the telephone or visitors when it could harm the patient or to be a source of harassment for the staff.

5 Right To Keep Personal Effects The patient may bring clothing and personal items to the hospital, taking into consideration the amount of storage space available. The hospital is not responsible for their safety, and valuable items should be left at home. The hospital is responsible for maintaining a safe environment and should take dangerous objects away from the patient, if necessary.

6. Right To Education The constitution guarantees this right to everyone, although many states have not provided adequate education to all citizens in the past and now required to do so. 7. Right To Enter Into Contractual Relationship The court considers contract valid if the person understands the circumstances of the contract and its consequences. Related to this right is the issue of mental incompetency.Incompetence is a legal term Without a precise medical meaning. To prove incompetence in court, all of the Following must be shown:

The person has a medical disorder. This disorder causes a defect in judgment. This makes the person capable of handling personal affairs.

If the person is declared incompetent ,the court will appoint a legal guardian to manage his or her affairs.

8. Right To Privacy The right to privacy implies the person’s right to keep some personal information Completely secret or confidential. Confidentiality involves disclosure of specific information about a person to some one else unless authorized by that person. Every psychiatric professional is responsible for protecting a patient’s right to confidentiality, it including even the knowledge that a person is in treatment or in a hospital. Confidentiality builds on the element of trust necessary in a patient-clinician relationship.

9. Right to Habeas Corpus Habeas Corpus is an important constitutional right patients retain in all states even if they have been involuntarily hospitalized. It provides for the speedy release of any person who claims to be detained legally.

10.Right to Informed Consent The goal of informed consent is to help the patients make better decisions. Informed consent means that a clinician must give the patient a certain amount of information about the proposed treatment and must attain the patient’s consent ,which must be informed, competent and voluntary. The clinician should explain the treatment and possible complications and risks. The patient must be able to consent not be a minor or judged legally incompetent. For patient not able to consent and for minors, informed consent should be obtained from a substitute decision maker.

Role Of Nursing The National League For Nursing, 1977 issued a statement on the nurse’s role in patients rights. It identified respect and concern for patients and competent care as basic rights along with patients receiving the necessary information to be able to understand their illness and make decisions about their care. The League identified many of the previously mentioned rights plus the following:

Right to health care that is accessible and meets professional standards. Right to courteous and individualized health care that is equitable, humane, and

without discrimination. Right to information about their diagnosis, prognosis,and treatment including

alternatives to care and risks involved. Right to information about the qualifications, names, and titles of health care

personnels. Right to refuse observation by those not directly involved in their care. Right to coordination and continuity of health care. Right to information on the charges for services.

Bibliography:1.Stuart Gail W,et al,Principles and Practice of Psychiatric Nursing,8th edition, Elsevier publishers,Pp154-161.2.WWW.legalserviceindia.com/article/mentai.htm3.WWW.democraticunderground.com

RIGHTS

OF

MENTALLY ILL PERSONS

Submitted to: Ms Amarjit Kaur M.Sc Psychiatric Nsg Professor Dr.SLT,CON,Moga

Submitted by: Manu M.Sc Nsg 1st Year