I. The Code of Criminal Procedure, 1973 (Sections 328–333) has ample provisions to safeguard a mentally ill prisoner in India. Some of these provisions are
Section 328: Procedure in case of the accused being a lunatic.
Section 329: Procedure in case of a person of unsound mind tried before court.
Section 330:
(a) Release of lunatic to relatives for treatment pending investigation or trial.
(b) Transfer of a lunatic to a psychiatric hospital for treatment pending investigation or trial.
Section 331: Resumption of inquiry or trial.
Section 332: Procedure for an accused appearing before Magistrate or Court.
Section 333: Procedure if an accused appears to have been of unsound mind.
Section 334: Judgment of acquittal on ground of unsoundness of mind.
Section 335: Detention in safe custody of a person acquitted on grounds of unsoundness of mind
Section 336: Power of the State Government to empower an officer in charge to discharge.
Section 337: Procedure by which a lunatic prisoner is reported capable of making his defense.
Section 338: Procedure by which a lunatic detained is declared fit to be released.
Section 339: Delivery of lunatic to care of relative or friend.
Ii. Section 84 Of Indian Penal Code: Based on the McNaughton rules it is stated that “Nothing is an offence which is done by a person of unsound mind who is incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law”.
Iii. Prisoners Act: The Indian Prisoners Act 1900 (Act III) has provision to transfer mental ill prisoners sentenced to a custodial sentence to a forensic ward of a psychiatric hospital for treatment.
11.4.1 Mentally Ill Prisoners in India
The admission and discharge of a mentally ill prisoner in India is governed by the Indian Mental Health Act 1987. There are three groups of mentally ill prisoners in forensic units of psychiatric hospitals and in secluded wards inside prisons in India.
1.
Prisoners under trial (Section 330 of the Code of Criminal Procedures 1973): Mentally ill prisoners who were mentally ill at the time of committing a crime and are unfit to stand trial.
2.
Sentenced prisoners (Section 30 of Act III of the Indian Prisoners Act 1900): Convicted prisoners who develop a mental illness during the course of imprisonment.
3.
Guilty but insane (Section 335 of the Code of Criminal Procedures 1973): mentally ill prisoners who are acquitted at trial. Since no social support systems exist to provide for their care and treatment in the community, these prisoners continue to stay in the forensic units of psychiatric hospitals as per Section 27 of the Indian Mental Health Act 1987.
There has been a serious concern about the inadequate medical and psychiatric care for all the groups.
For many decades, many mentally ill, both those with criminal record and those without, have been admitted to jails, especially so in the Eastern part of India. Mental health professionals had for many decades been demanding the abolition of the practice of admitting mentally ill persons to jails. Following a public interest litigation, the Supreme Court of India on July 18, 1993, passed a landmark judgment ruling that “The admission of non-criminal mentally ill persons to jails is illegal and unconstitutional”. As a result, the admission of mentally ill persons, in the absence of a crime, to prisons has almost ended all over the country.
Some of the (unpublished) studies of psychopathology of prisoners in Indian prisons reveal that there are nearly 60–80 % of prisoners who have one or more diagnosable psychiatric condition. The majority of male prisoners suffer from antisocial personality disorder and alcohol and drug addiction. Among women, most suffer from neurotic disorders. Nearly 95 % of mentally ill prisoners are men.
Among the mentally ill-prisoners in forensic units of psychiatric hospitals, the majority are under-trial prisoners (nearly 80 %); many of them suffer from psychotic disorders, especially schizophrenia, followed by antisocial personality disorder and substance use disorders. Most of the mentally ill in the forensic units of psychiatric hospitals have committed a major crime such as murder. Mentally ill prisoners constitute around 1–2 % of the patients in major psychiatric hospitals in India.
There are four options to develop the forensic psychiatric service in India:
1.
Separate wards for mentally ill-prisoners inside the prison itself.
2.
An exclusive forensic psychiatric hospital (special hospital).
3.
A forensic psychiatric unit/ward inside a state psychiatric hospital with high security and constant care by mental health professionals.
4.
Correctional settings for juveniles.
In the forensic ward of the psychiatric hospital, the emphasis should be on therapy and rehabilitation rather than control and containment.
As of now, mentally-ill prisoners are admitted to forensic units of psychiatric hospitals and are managed by psychiatrists. In some centers, the psychiatrists from the nearby hospitals visit the prisons periodically to treat the mentally-ill patients there. The juvenile delinquents are kept in safe correctional settings. As per the Care and Protection of Children Act of 2000 (Juvenile Justice Act 2000), children who commit crimes, irrespective of the presence or absence of a psychiatric diagnosis, are to be detained in special correctional settings. Children exhibiting severe abnormalities such as violence and unmanageable behaviors may be sent to psychiatric hospitals with agreement from the Juvenile Justice Board.
What is currently not available is an exclusive forensic psychiatric hospital (special hospital) despite the Indian Mental Health Act 1987 having made a provision for such an establishment. The most feasible model for forensic psychiatric services in a developing country like India is to have forensic units in psychiatric hospitals with high security and constant care by well-trained personnel. The concept of exclusive forensic psychiatric hospitals poses additional costs, additional trained personnel and increases the stigma of mental illness.
11.4.2 Forensic Psychiatric Services in India
The World Health Organization (WHO) Expert Committee on Mental Health, in its fourth report (1955), suggested that “Mental hospitals should not be asked to take custodial care of dangerous criminals. They should be cared for in special establishments for criminals, if detained in mental hospital premises, security by the police should be provided in a specially created ward for mentally ill prisoners.”
However, forensic psychiatric services in India are poorly developed compared to the West. Persons suffering from mental illness, who are also offenders, are now considered as “mentally ill prisoners”. Earlier, they were known as “criminal lunatics” but this terminology is not commonly used anymore. There are 37 state-run mental hospitals in India with a total bed number of around 20,000. The majority of these mental hospitals have a separate ward for mentally-ill prisoners.
11.5 Psychiatric Services in Prison – Indian Scenario
Psychiatric symptoms are common among many prisoners in the first 2 months of imprisonment but not all of them qualify for a diagnosis according to the International Classification of Diseases. Antisocial personality and substance abuse are usually the most common diagnoses. High rates of psychotic disorders exist in prisoners either under trial, remanded or convicted. The prevalence of psychotic disorders among prisoners is almost similar to that seen in the general population.
The most common reasons for transfer of mentally ill offenders from prison to a psychiatric hospital are the following:
Violent and unmanageable behavior.
Potential danger to self or others.
Significant deterioration of a psychiatric illness.
Treatment refusal in a highly disturbed patient.
In India, opinions are divided between the mental health professionals and the prisoners with regards to the question in which place to detain mentally ill prisoners. Mental health professionals often prefer to keep these patients in prisons or if necessary in a forensic ward of a psychiatric hospital. Occasionally, they prefer to visit the prison periodically to give their opinion and take care of the mentally ill offenders. However, the majority of mentally ill prisoners in India prefer to stay in prison and are reluctant to go to a psychiatric hospital because they feel the comfort and facilities are much better in prisons than in the mental hospitals.
The plight of the mentally disordered offenders in India is pathetic. To quote Halleck (1986), “the insane criminals” have nowhere to go – no age or nation has provided a place for him. They are unwelcome and objectionable everywhere. The prisons thrust them out, the hospitals are unwilling to receive them. The law will not let them stay in their houses, the public will not let them go abroad and yet humanity and justice, the sense of common danger and a tender regard for those deeply degraded men, all agree that something should be done for him.
The discharge of the mentally ill prisoners from psychiatric hospitals in India is carried out in one of the following methods:
1.
Under-trial prisoners who are admitted to a psychiatric hospital through a detention order under Section 330 of the Criminal Procedure Code 1973 are given active treatment in the psychiatric hospital. The visiting committee of the hospital – which meets every 3 months – monitors and assesses the mentally ill prisoners in psychiatric hospitals and recommends those fit for trial. At this point these under-trial mentally ill prisoners will be transferred to jail to await their respective court dates for trial. The fitness of mentally ill offenders for trial is mainly based on whether they are able to comprehend the questions put to them, whether they are oriented to person, time and place, whether they are in a position to understand the charges against them and the court proceedings, whether they are able to instruct their lawyer and whether they understand what type of punishment they may receive.
2.
Ethics Within the Prison System
Overcrowded Prisons and Low Psychiatric Provision: The Situation of Mentally Ill Prisoners in Kenya
Ethical Issues in Prison Psychiatry in the Netherlands
Psychiatric Treatment in the Detention Systems of Quebec: Trying to Merge Prison and Therapeutic Cultures
Application of the AMA Code of Medical Ethics to Psychiatric Practice in Correctional Facilities and Access to Psychiatric Care in the U.S.A.
Current Ethical Challenges in Prison Psychiatry in England and Wales
Prisoners who are admitted under the Criminal Procedure Code 335 (not guilty by reason of unsound mind) will also be given active treatment in hospital and once their mental state has improved and their relatives are willing to assume responsibility, they will be discharged and sent back to the community. If no relatives come forward to take care of the individual, they are transferred either to a non-forensic ward of a psychiatric hospital or to a rehabilitation center outside as per the direction of the hospital visitors.
Related posts:
Ethics Within the Prison System
Overcrowded Prisons and Low Psychiatric Provision: The Situation of Mentally Ill Prisoners in Kenya
Ethical Issues in Prison Psychiatry in the Netherlands
Psychiatric Treatment in the Detention Systems of Quebec: Trying to Merge Prison and Therapeutic Cultures
Application of the AMA Code of Medical Ethics to Psychiatric Practice in Correctional Facilities and Access to Psychiatric Care in the U.S.A.
Current Ethical Challenges in Prison Psychiatry in England and Wales
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