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2016 DIGILAW 353 (KER)

High Court Legal Aid Committee v. State of Kerala

2016-03-29

K.VINOD CHANDRAN

body2016
ORDER : K. Vinod Chandran, J. 1. In our anxiety to preserve life of the mentally challenged, are we shredding them of their dignity, when we deny them even clothes in confinement, is the question that arises in the above Interlocutory Application. The right to life, it is trite, is the right to live with dignity and it applies equally to those of sound mental disposition and challenged otherwise. The petitioner, a Co-ordinator working with a Non-Governmental Organisation concerned with human rights; brings to focus the practise of confining in the nude, those mentally challenged with suicidal tendencies, which is a practise prevalent in the Mental Health Centres [for brevity "MHCs"] in our State. The position is the same all over the country and in many parts of the world. The petitioner specifically points out two instances which occurred in the MHC, Thrissur, about which a column appeared in a vernacular news paper on 19.01.2016. This Court had also noticed the news item and had called for a report, over the telephone from the District Judge, Thrissur, who is the Chairman of the Monitoring Committee. The District Judge had promptly conducted an enquiry and forwarded a report dated 27.01.2016. The report of the District Judge indicated that one of the incidents was true and the explanation offered by the Superintendent was that the subject inmate displayed clear tendencies to commit suicide which necessitated her confinement; even without clothes. The above report was placed along with this I.A. and by order dated 02.02.2016 the Superintendent of MHC, Thrissur was directed to file a report. 2. The report of the learned District Judge referred to a complaint from one panel lawyer, deputed by the District Legal Services Authority [for brevity "DLSA"] about the allegation of an inmate having complained of being kept naked, in isolation, as punishment for singing in the Cell. A further instance of one minor girl having been kept in isolation without any clothes had also been reported. The District Judge had also called for further explanation from the Superintendent, MHC. The Superintendent had admitted to two girls having been so confined for a short period due to the suicidal tendencies displayed by them. 3. A further instance of one minor girl having been kept in isolation without any clothes had also been reported. The District Judge had also called for further explanation from the Superintendent, MHC. The Superintendent had admitted to two girls having been so confined for a short period due to the suicidal tendencies displayed by them. 3. The Superintendent, MHC has conducted a detailed enquiry through a Committee comprising of herself, the Deputy Superintendent and the R.M.O. It would be more appropriate to look into that report, produced as Annexure-I along with the statement dated 18.02.2016 filed by the learned-Senior Government Pleader. According to the report, a patient who was a native of the State of Assam was admitted on 18.09.2015 as per the orders of the Chief Judicial Magistrate, Ernakulam with history of suicidal attempt; of jumping in front of a train. It is stated that at the time of admission, the patient was showing behavioral problems and was not at all communicative; which was accentuated by the language barrier, the patient being a native of the State of Assam. The patient had, in medical terms, shown clear "suicidal ideations and unpredictability due to perplexity" and was kept in insolation room without long clothes. In the succeeding days also the patient was very fearful and was reluctant to take food. But on her condition improving, she was shifted to the common ward on 23.09.2015. It is also stated that her relatives had subsequently turned up, to take her over, when she was shifted to the family ward and then was released to the custody of the relatives; on 27.09.2015, one of whom was her brother, and discharge intimation was given to the Chief Judicial Magistrate on 30.09.2015. 4. The other incident, of a minor girl was occasioned, when she along with her sister, was admitted to the MHC on 03.12.2015 as per the orders of the Chief Judicial Magistrate, Ernakulam dated 01.12.2015. The patients were brought by the Secretary of Dharmagiri Vikas Centre, a nun, and the minor girl had history of suicidal attempt which was disclosed by the Secretary of the Centre where she was earlier housed. She was initially kept in isolation without clothes and on 10.12.2015, she was shifted to common ward, wherein an Advocate had also visited her. The patients were brought by the Secretary of Dharmagiri Vikas Centre, a nun, and the minor girl had history of suicidal attempt which was disclosed by the Secretary of the Centre where she was earlier housed. She was initially kept in isolation without clothes and on 10.12.2015, she was shifted to common ward, wherein an Advocate had also visited her. On 21.12.2015, the patient was found crying loudly, disturbing other patients in the ward and she was also quarrelsome and attempted physical assault on the other inmates. She was then transferred to Aswani ward as per the recommendation of the duty Medical Officer, wherein again she created problems and attempted to commit suicide. During the isolation period the patient showed impulsive violent behavior and resorted to sudden deliberate falling. The patient was transferred to the common ward on 29.12.2015 and on 11.01.2016, an Advocate of the DLSA had visited her to make arrangements for rehabilitation. On 14.01.2016, she again quarrelled with inmates and abraded her wrist in an attempt to commit suicide. She is also reported to have broken a urine bottle and hidden the glass pieces in and around the ward. It was hence that the patient was transferred to isolation room, without clothes, since there was fear of her hiding glass pieces in the dress and also on using the dress to strangulate herself; which history was disclosed by the Secretary of the Centre in which she was earlier housed. It is also categorically reported that none of the patients were isolated for reason of singing or as a measure of punishment. Only persons having suicidal tendencies have been so isolated and the deprivation of clothes is not as a measure of punishment and is only to deprive them of external means and objects to aid any attempt of suicide. The Superintendent states that such isolation measures are resorted to only with the good intention of saving the life of the patients, with such acute tendencies and serious behavioral problems. 5. After the reports were received, this Court had, by order dated 16.02.2016, directed the Psychiatric Society (Kerala) to offer suggestions as to the alternate arrangements that could be made without exposing the mental health patients to the indignity of being confined nude in the MHCs. The Psychiatric Society, through their counsel Sri. Litto Palathingal, has filed a detailed statement dated 01.03.2016. The Psychiatric Society, through their counsel Sri. Litto Palathingal, has filed a detailed statement dated 01.03.2016. The Psychiatric Society also expresses its helplessness in dealing with aggressive behavioral issues in the given infrastructural and social situations. The Society has, after consultation with medical practitioners - both working with the Government and in the private sector-put on record the need to have a definite protocol in dealing with the aggressive suicidal tendencies displayed by certain patients taking into account the volatile nature of their behavioral patterns and the disastrous consequences, if they are not subsided effectively. The Society in its statement emphasises the need to strike a balance between saving life, ensuring the dignity of an individual and avoiding possible violation of human rights, with emphasis given to the protection of life, at any cost. 6. The Society addresses its concerns with respect to: (i) the nonavailability of seclusion rooms in the MHCs of the State; (ii) the large intake of patients as compared with the woefully short staff strength; (iii) the lack of training of the staff attached to the MHCs; and (iv) the available seclusion rooms being distanced from the nursing station, making constant supervision an impossibility. 7. The Psychiatric Society also, with their experience, state that seclusion by itself may not be an issue in the case of patients having acute behavioral deficiencies, since they would be better suited in such non stimulating atmosphere especially when their mental state could be upset even by a normal action or reaction by another inmate. The Psychiatric Society has also emphasised the need for providing more seclusion rooms which are designed and arranged in a better manner to facilitate constant supervision of the patients secluded. The Society has indicated that the seclusion rooms available in the State, being akin to prison-cells, are primitive, stigmatising and more traumatic to the patients; and stand abolished in the developed countries. The need to provide for better designs and the need for construction of such specifically designed seclusion rooms is one of the measures indicated to change the system. The statement also speaks of a Standard Operating Procedure (SOP) evolved on the Minimum Standards of Care Document by the National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru and seeks that a similar procedure be introduced for the MHCs in Kerala. 8. The statement also speaks of a Standard Operating Procedure (SOP) evolved on the Minimum Standards of Care Document by the National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru and seeks that a similar procedure be introduced for the MHCs in Kerala. 8. The further suggestion of the Society is to set up Psychiatric Intensive Care Units (PICUs), ensuring- (i) Safety of patient, caretakers and medical personnel; (ii) Dignified and humane care of the patients; and (iii) Minimum violation of personal freedom of the patient for the shortest period of time and faster recovery. 9. Based on the report, this Court had called for a meeting of the representatives of the Psychiatric Society and Secretary, Kerala State Mental Health Authority [for brevity "MHA"]. Dr. D. Raju, Secretary, MHA, Dr. S.V. Subramanian, Mental Hospital, Thrissur and Dr. Jayaprakasan. K.P., Medical College, Thiruvananthapuram were present before this Court today, the 29.03.2016. This Court had fruitful discussions with the abovesaid Doctors and the learned Senior Government Pleader, the Amicus Curiae and the learned counsel for the petitioner. 10. The Secretary of the MHA, a retired Head of the Psychiatry Department of the Medical College Hospital, Thiruvananthapuram has emphasised the need for providing Psychiatric Intensive Care Units and the need to have better designed seclusion rooms with proper ventilation and provision for light, unlike the present rooms akin to prison cells and designing them in such a manner as to ensure manual supervision of a number of patients by one or two attendants who could be placed in a strategically located nursing station having direct physical and visual access to a number of such seclusion rooms, preferably located in a circle with the vantage point being located at the centre of the circle. 11. The Secretary also emphasised the need for providing forensic wards in the jail itself for housing those convicted and under trial prisoners released from the MHCS before they are kept in the company of other prisoners. The representatives of the Psychiatric Society also support this suggestion, especially in the context of such measure aiding in better rehabilitation of the patients as also enabling a supervision by the doctor attached to the jail, though he would not be a psychiatrically trained person. 12. The representatives of the Psychiatric Society also support this suggestion, especially in the context of such measure aiding in better rehabilitation of the patients as also enabling a supervision by the doctor attached to the jail, though he would not be a psychiatrically trained person. 12. It is pointed out by the representatives of the Society, that inmates from prisons all over the State, whether under trial or convicted, on the slight indication of mental aberration, are brought to the MHCs to avoid untoward incidents. After providing treatment, on their condition having improved, necessarily they have to be sent back to the prisons to complete their conviction or to face trial. It is pointed out that it would not be advisable for those prisoners released from the MHCs, to mix with the other prisoners; who often would not be sensitive to their condition and an adverse word or deed could lead to relapse of the patient. It is in such circumstance that the need of a rehabilitation centre in the prisons itself, to house the inmates released from the MHCs is stated to be expedient. 13. The other concern expressed unanimously by the Doctors is the issue of transfer to and from MHCs, of under trial prisoners. The convicts who are found to be mentally deranged when transmitted to the MHCs for the first time, there is absolutely no detail of the subject patient made available to the MHCs for the Doctors to commence treatment. Such mentally challenged persons being unable to speak for themselves, the Psychiatrists are often left to stumble in the dark as to the history of their illness. It is also stated that treatment in psychiatric cases depends on the history of the illness, the family details (genetics), earlier treatment undertaken and the course of such treatment. In that context, the actual offence committed and any previous offences is also significant in the prescription of further treatment. The submission is that, it would be expedient that the Superintendent of Prisons make available such history, preferably by the Medical Officer attached to such prisons. In that context, the actual offence committed and any previous offences is also significant in the prescription of further treatment. The submission is that, it would be expedient that the Superintendent of Prisons make available such history, preferably by the Medical Officer attached to such prisons. With respect to persons who are taken back to the prisons after a course of treatment, it is the suggestion that they be kept in the rehabilitation centres attached to the prisons with constant monitoring by the Medical Officer attached to the prison and on the Medical Officer thinking it fit; a visit of the Psychiatrist of the MHC or one available in a nearby Government facility could also be sought for. This would ensure that the relapse of the convict so brought back after treatment is avoided and would save time insofar as transporting a convict to and fro from the prison and MHCs. 14. Coming back to the issue projected in the I.A., the District Judge, Thrissur has placed on record a final report dated 08.03.2016, after conducting a thorough enquiry about the allegations raised in the news report. The District Judge had summoned and examined the Superintendent, three Doctors and four staff members of the MHC, Thrissur. The District Judge had also visited the MHC on 26.02.2016 and perused the records, including the case sheets. The District Judge also talked to the nun attached to the Dharmagiri Vikas Centre who had brought one of the patients to the MHC and the Advocate deputed from the DLSA. The nun who brought the patient has confirmed that the patient showed suicidal tendencies even when she was in their custody. The facts which are stated in the report of the Superintendent was found to be correct. The District Judge also found that there is nothing to indicate that the subject patient was isolated without even minimal under-garments as was alleged. It is also stated that only when the patients display acute states of agitation which could lead to an attempt to suicide that the Doctors resort to the measure of keeping the subject in isolation without any clothes. It is also indicated in the report that in the capacity of the Chairman, Monitoring Committee, the District Judge has issued directions to ensure that patients kept in isolation are provided with sufficient suitable clothing. 15. It is also indicated in the report that in the capacity of the Chairman, Monitoring Committee, the District Judge has issued directions to ensure that patients kept in isolation are provided with sufficient suitable clothing. 15. One cannot but over emphasise the need to preserve life; even when an individual attempts to take out his own life. It is a subject of debate whether S. 309 of the Indian Penal Code, which makes an attempt to commit suicide, an offence, should be retained or not in the Code. The advocates of dissent also point out that, it is the only act, which is deemed to be an offence under the I.P.C.; on successful execution of which there could be no prosecution launched, since the accused would no more be available to face trial. There is a school of thought that an individual has the right to decide on when to snuff out his life, especially when, that individual on ground of debilitating illness or other handicaps decides for himself/herself and in the case of those without such capacity; by the next friend, that further life is futile. 16. The Hon'ble Supreme Court has refused to permit euthanasia even in the case of a person in a Permanent Vegetative Stage [PVS] for a long 37 years. In Aruna Ramchandra Shanbaug v. Union of India and Ors., 2011 (3) KLT SN 26 (C. No. 30) SC, AIR 2011 SC 1290 the issues with respect to passive euthanasia and active euthanasia were tested and even the former was held to be permissible only on the principle of self determination or informed consent and the latter was found to be illegal. There is no question of importing the principles of self determination or informed consent in the case of mentally challenged persons; and it is the duty of the Doctors and other persons having care of such persons to protect their lives at any cost and even from themselves. 17. There can, hence, be no conflict of opinion in the case of mentally challenged persons prone to suicidal tendencies, which tendency cannot be attributed to any reasonable thought process. Such desire to snuff out life comes from acute depression, which distorts perceptions of reality and emanates from abnormal negative thoughts about oneself and the world around them. 17. There can, hence, be no conflict of opinion in the case of mentally challenged persons prone to suicidal tendencies, which tendency cannot be attributed to any reasonable thought process. Such desire to snuff out life comes from acute depression, which distorts perceptions of reality and emanates from abnormal negative thoughts about oneself and the world around them. What essentially is intended by rehabilitation is to enable them to get out of such depressive mental state and to provide an environment more conducive to their existence. Preservation of life being the paramount consideration at the initial stage, drastic measures taken of isolation and ensuring that the patient has no access to means by which he/she can take one's own life is necessary, at least till the medication stabilises their moods and thoughts. But such measures cannot be without ensuring the basic dignity of an individual; who whether mentally stable or otherwise, is entitled to an amount of privacy; at least to cover his/her body not exposing it to the public or even to the few Doctors and attendants visiting them. 18. This Court is quite aware of the pressure of the Doctors and the other staff in the MHCs, while dealing with the concerns of the life of the inpatients and the backlash of public opinion; which would occur in the event of an inmate committing suicide while under their treatment and in their exclusive custody. The accusations of negligence on such an event occurring and the allegations of human rights violations in a contrasting situation of isolation of patients; are two sides of the same coin and put an unintended pressure on the Doctors and staff of the MHCs. It is such anxiety and the balance of consideration that prompt the Doctors to confine patients with suicidal tendencies, in acute situations, even without clothes, to avoid any stray attempt to suicide by means of the clothes supplied; given the ingenuity with which such tendencies are seen to develop, with single minded devotion, in the depressive states in which the patients find themselves. The patients in their acute disturbed state is involved in a dangerous game of intrigue, with the Doctors and the staff, the desired outcome of which, for the patients is the end of their life and their miseries. The patients in their acute disturbed state is involved in a dangerous game of intrigue, with the Doctors and the staff, the desired outcome of which, for the patients is the end of their life and their miseries. A normal mind by itself is often unpredictable and more so a tormented one; devoted to the one single purpose of a means to take out ones own life. The inexplicable manner in which a troubled mental state would react and the un-predictability of the situations, even by those trained to treat the mentally challenged, cannot be totally discounted. This Court, in such circumstance, cannot find fault with the measures adopted by the Doctors in the two reported incidents; given the facilities available at the MHC, the dearth of Doctors, attendants and other staff and the huge number of inmates which makes constant supervision of an inmate almost next to impossible. 19. That having been said, this Court is also quite concerned about the measure of inmates being kept nude in isolation, even given the lofty intention of preserving life; which has to be sustained with atleast the minimum dignity possible. Any man or woman, more so the latter; brought up in the present society would not like his private parts to be exposed to any other, without consent. This would be acute in the case of individuals with heightened unstable thoughts whose helplessness in such states, would only drive them to further desperation and depression. Confinement in cells that too nude, would only result in the inner torments assuming an ominous form driving them to sure death at their own hands; if not when in confinement, when released therefrom. Considering the various factors and adopting a perspective conducive to the welfare of those mentally challenged and the practices as placed on record; as for the violent patients being confined in the nude, it is directed that clothes be provided of suitable material, which would make it impossible for the patients to use it to snuff out their own life. Suggestions were made of providing sleeveless shirts and short knickers of rough cloth, double stitched, or of very light texture, so as to ensure that they are not torn and used as props to aid suicide. This however would be left to the experts to decide. 20. Suggestions were made of providing sleeveless shirts and short knickers of rough cloth, double stitched, or of very light texture, so as to ensure that they are not torn and used as props to aid suicide. This however would be left to the experts to decide. 20. On the strength of the discussions with the various persons present today, both professionals and activists, the following directions are issued: (i) The Superintendents of MHCs in the State and the Doctors attached thereat shall ensure that none of the patients, even those showing acute suicidal tendencies, when placed in seclusion, shall be so placed nude; unless very acute situation warrants the same. If there is such a warrant then it would have to be approved by a Committee of Doctors with the Superintendent in the Chair and consisting of two other Psychiatrists; other than the attending physician. In the rare event of such a seclusion being ordered and approved, it shall be ensured that the subject patient is not exposed to anyone of the opposite sex, not even from amongst the staff of the MHCs. (ii) But for these rare cases, suitable dress for patients, kept in seclusion, can be devised by the Superintendent of the MHCs in consultation with the Doctors in a Centre. In this context, it would be necessary to provide for the specific dress which is to be used in the case of the inmates in each of the MHCs, for which the respective Superintendents shall consult with the Doctors within the MHCs and issue specific orders in writing on that aspect. The respective Superintendents shall ensure that such orders are issued within a period of one month from the date of receipt of an authenticated copy of this order, after consultation with whomsoever they think fit, and place a report enclosing such orders within six weeks from today. Dr. S.V. Subramanian, attached to MHC, Thrissur points out that the said MHC has devised a dress suitable for such secluded patients having suicidal tendencies and the same has been approved by the Monitoring Committee forthe District. The MHCs at Thiruvananthapuram and Kozhikode shall get necessary inputs from the Trichur MHC before a decision is arrived at. Dr. S.V. Subramanian, attached to MHC, Thrissur points out that the said MHC has devised a dress suitable for such secluded patients having suicidal tendencies and the same has been approved by the Monitoring Committee forthe District. The MHCs at Thiruvananthapuram and Kozhikode shall get necessary inputs from the Trichur MHC before a decision is arrived at. It is also directed that sufficient number of the dress so prescribed in seclusion, shall be stocked in the respective MHCs within one month of the decision taken, which shall be verified on physical inspection by the District Judges of Thiruvananthapuram, Thrissur and Kozhikode, who are holding the post of Chairman of the Monitoring Committees for the respective Districts. (iii) Director General of Prisons and Correctional Services, Kerala, Thiruvananthapuram is suo motu impleaded as additional respondent in this I.A. The learned Senior Government Pleader is directed to take notice for the said officer and the Director General of Prisons shall call for a meeting of the Superintendents of various Jails in the State within a period of one month from today and place a report as to the availability of space for providing a rehabilitation centre in each of the prisons to house the inmates released from the MHCs before they are allowed to mix with the general population of the convicts. (iv) The DGP shall also issue necessary orders to the Superintendents of the Jails to ensure that any convict or under trial prisoner sent to any of the MHCs shall be accompanied with a report of the Medical Officer of the Prison, indicating the exact offence/crime committed, the history of the patient, any earlier treatment undertaken and the details of the family as available from the records of the prison and a short note by the Medical Officer, as to the behavioral tendencies of the individual convict. (v) The representatives of the Psychiatric Society have magnanimously agreed to conduct a study of the necessary infrastructural modifications needed at the MHCs and the manpower requirement and file a report within six months from the date of receipt of a copy of this order. (v) The representatives of the Psychiatric Society have magnanimously agreed to conduct a study of the necessary infrastructural modifications needed at the MHCs and the manpower requirement and file a report within six months from the date of receipt of a copy of this order. The Psychiatric Society is also requested to suggest the training measures which could be carried on for the staff members of the MHCs and whether they could voluntarily take up such training activities which could be commenced and continued in the various MHCs at their convenience and in the frequency they would deem fit. The Psychiatric Society would also think in lines of laying down a specific protocol for dealing with oppressively distressed patients and place it for consideration before this Court. (vi) With respect to under-trial prisoners, the Secretary, MHA and the members of the Psychiatric Society express concern that they are not taken back in time, after they are declared fit for standing trial and the cases are also not taken up for trial within a reasonable period, causing relapse of the condition, more for reason of they being again mixed with the general population of convicts. These persons also could be placed in the rehabilitation centres, proposed above, till the trial is commenced, carried on and concluded. The Registrar General, High Court of Kerala, Kochi-682031 is also suo motu impleaded in the above I.A. and is directed to place on record the measures which could be adopted to expedite the trial of such mentally ill persons immediately on their being declared fit for trial so as to ensure that they are not incarcerated indefinitely, pending trial. This Court places on record its appreciation of the valuable suggestions made by the Secretary, MHA, the representatives of the Psychiatric Society, the Amicus Curiae and the learned Senior Government Pleader, and expresses the hope that they would carry forward the good work with all earnestness; for which this Court could only act as a catalyst. Handover the order to all sides.