INTRODUCTION The population of older adults (aged ≥ 60 years) is increasing as a result of improvement in health services, particularly for infectious diseases, increase in life expectancy and decrease in mortality rates. In this background, the ongoing decline in the fertility rate is contributing to the population aging with increase in the proportion of older adults globally as well as in India. The proportion of older adults in India is increasing rapidly and is projected to grow from around 9%–10% in 2020 to nearly 20% by the year 2050. Population aging is also associated with a higher prevalence of chronic diseases in older adults including psychiatric disorders. The population of older adults in general as well as those with psychiatric disorders in particular have unique issues that increase the vulnerability for legal and ethical issues. Hence, it is important for the professionals in the field of mental health to be aware of the potential legal and ethical issues related to the practice of psychiatry for older adults.[1] This article attempts to summarize the important legal and ethical issues related to older adults with psychiatric problems and proposes the recommended clinical approach to be adopted during clinical practice in this context. However, the application of clinical judgment is very important as each clinical situation requires specific understanding and decision-making of the concerned Psychiatrist and other mental health professionals (MHP) involved in the clinical management. This clinical practice guideline will focus on the important clinical aspects of the interface of law and psychiatric problems in older adults in the Indian context. Important characteristics of the aging population in India Population of older adults in India was 103 million (census, 2011) and estimated to be 150 million by 2030 and 340 million by 2050 Significant variation in population ageing across the states Higher proportion of older adults in southern states like Kerala (12.3%) and Tamil Nadu (11.2%) 71% of older adults live in rural areas in India Higher proportion of females than males (male:female: 8.2%:9.0%) Low rates of literacy levels (44.5%) Increase in the proportion of nuclear families and those living alone Increase in old-age dependency ratio (14.2%) Less proportion of older adults (particularly women) receive sufficient pension Population aging before adequate development of economy and support systems. PSYCHIATRIC MORBIDITY IN OLDER ADULTS Psychiatric problems in older adults include those having the new onset of illness after 60 years of age and those having chronic illness with onset in younger age. The nature of psychiatric morbidity in older adults has many similarities with the mental health issues in younger adults. However, there are specific issues that are predominant in older adults. Some of these are very important in the context of legal and ethical issues. Important characteristics of psychiatric problems in older adults Higher prevalence of cognitive impairment is the most important feature Subsyndromal features of depression, anxiety, and cognitive impairment are common Subsyndromal symptoms can have influence on decision-making and functioning High rates of comorbidity with physical illness Increased risk for suicide particularly in older males Adverse impact on Mental Health capacity and functional ability Increases the risk of domestic violence and elder abuse Increases the risk for wandering behavior, self-neglect, and dependence on caregivers Increases the risk for institutionalization. LEGAL ISSUES RELATED TO GERIATRIC MENTAL HEALTH Mental health, in general, can contribute to many legal issues directly or indirectly. Mental health and legal issues can also have reciprocal relationships with each contributing to risk of other.[23] The extent of the interface between law and psychiatric problems in older adults is higher compared to younger adults.[4] Salient features of the interaction of the law and mental health in older adults Mental health problems with legal implications are more common in older age Several psychosocial situations in older adults contribute to legal and ethical issues Violation of human rights and elder abuse are more frequent Specific legal provisions related to older adults and mental health. MENTAL HEALTH PROBLEMS WITH LEGAL AND ETHICAL IMPLICATIONS There are specific mental health problems that are more commonly associated with legal and ethical implications.[5] Some of these conditions are more common in older adults. Alzheimer’s dementia Frontotemporal dementia Vascular dementia Dementia due to Parkinson’s disease Lewy body dementia Delirium Suicide Wandering older adult with mental illness. Psychosocial situations with potential legal and ethical issues Older adults have increased vulnerability for specific psychosocial situations that are commonly associated with legal and ethical issues. Understanding these psychosocial situations is important for effective recognition and management of legal and ethical issues. Older adults living alone Older adults living in residential care institutions Impairment in ability to manage complex or basic activities of daily living Older adults receiving assistance from professional caregivers Dispute among the family members about the support system and care management Difficulty in managing finances and property Palliative care and end of life care Elder abuse Difficulty in driving Lack of adequate social and family support. LAWS AND ACTS RELATED TO OLDER ADULTS AND MENTAL HEALTH There are laws that are relevant for issues in older adults and mental health. There is very low awareness among older adults as well as MHPs about the provisions of these laws. There are also several challenges related to the effective implementation of these laws. Mental Health Care Act, 2017 (MHCA) Rights of Persons with Disabilities Act, 2016 (RPWD) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPS) Legal Services Authority Act, 1987 Indian Succession Act, 1925 Motor Vehicles Act, 1988 Fitness to stand a trail. Mental Health Care Act, 2017 The provision of mental health services in India is governed by the MHCA, 2017. Before this, Mental Health Act, 1987 regulated the services related to mental health. The MHCA, 2017 has been enacted to make the mental health legislation align and synchronize with the requirements of the United Nations Convention on RPWD, 2008. The implications of MHCA, 2017 for geriatric psychiatry have been discussed in detail in a review by Sivakumar et al., 2019. The provisions of MHCA, 2017 are applicable to mental health issues in individuals across the life span. However, there are specific issues that could be more prominent in the context of the implementation of mental health care of older adults despite these being not unique or exclusive for older adults. Under MHCA, 2017 every citizen has a right to access mental health care. There is provision under MHCA, 2017 that the state need to provide shelter and rehabilitation facilities. Important aspects of MHCA, 2017 that are relevant for older adults include assessment of capacity for treatment, nominated representative (NR), advanced directive, and supported admission. Although all these are laid down to protect the right of patients, there are situations where all these provisions can come in the way of providing standard mental health care. MHP needs to be familiar with these rules in the context of intervention with older adults and their families to provide mental health-care services. MHCA, 2107 though mentions of shelter homes and rehabilitation facilities many states do not have these facilities in our country.[67] Mental illness and capacity to make mental healthcare treatment decisions Advance directive (AD) Nominated Representative Admission and discharge in older adults with dementia Right for mental health care for older adults Issue of application of MHCA,2017 act to old age homes and residential care facilities Issue of application of MHCA,2017 act to medical hospitals providing services to older adults with delirium Provision for the establishment of rehabilitation and shelter homes for older adults under MHCA, 2017. Nominated representative NR is a designated person whose aim is to assist the individual with the mental ailment in making decisions related to the treatment. Chapter IV of the MHCA (2017) described the conditions, appointment of NR. “Every person who is not a minor, shall have the right to appoint an NR.” Sub-section 1 of Section 5 of the Mental Health Act (2017) allows for revocation or alteration of an NR. The provision for appointment of an NR specifies the order of preference as the person documented in AD, family member, caregiver, followed by the representative nominated by the Mental Health Review Board. In the context of geriatric mental health care, the discord between family members might contribute to challenges in the selection of an NR. Psychiatrist has a role in facilitating the decision making process of selecting NR. NR usually has a role in treatment decisions. It is not clear whether NR can involve in the decision of the rehabilitation process. NR Assess the need for NR in older adults with psychiatric disorders Facilitate process of choosing NR Encourage shared decision between older adults and NR for treatment related decisions In older adults living alone, mental health review board can act as NR Be aware of conflicts in the role for NR and legal guardian. Advanced care planning/advanced directives AD is a record made by any person expressing how he/she wish to be treated or not to be treated. Chapter V of MHCA, 2017 deals with advanced directives. It comes in to action only when the person who made it loses the capacity to make independent decisions about his care. The patient and family members have the responsibility to bring to the notice of the treating psychiatrist about the existence of a valid AD. Through AD, the patient can make pre-planned decisions on admission, psychotropic usage, electroconvulsive therapy, or any other treatment or procedure. Within the setting of geriatric mental health, AD can have noteworthy implications related to institutionalization, palliative care, and end-of-life care. Psychiatrist has a role in the assessment of mental health capacity of older adults for treatment Enquire about AD in older adults AD has implications on palliative and end-of-life care in older adults Possibility of conflict between AD and end-of-life care approach Contact medical review broad, if the AD does not reflect the best interest of the patient or completely against the standard treatment Encourage older adults with severe psychiatric illness and mild cognitive impairment to make an AD when they have preserved capacity. TESTAMENTARY CAPACITY “Testamentary capacity refers to a civil competence regarding the ability of an individual to make a will, which he/she desires to execute after their death.” According to the Indian Succession act, 1925 it is assumed that “Every person of sound mind, not being a minor, may dispose of his property by will.” The law presumes that every person has adequate capacity to make a will, until proven otherwise. The “will” comes into action after the demise of the testator. Testamentary capacity is especially important in older adults. Older adults with mental illness or dementia or due to various psychotropics that affect cognition have challenges in executing their right of making a valid will. All these factors increase the risk of fraudulency if adequate measures are not taken in older adults with mental illness/dementia. There are often situations, where older adults will be brought by family members to a psychiatrist to assess his capacity prior make a will. There are also instances after the demise of testator, the “will document” get challenged in the court of law by family members and psychiatrist can be called as an expert witness to give opinion.[8] Salient points about testamentary capacity and older adults Capacity to write a valid will Section 59 of Indian Succession Act (1925) – ”Every person being of sound mind, not being a minor, may dispose of his (her) property by will” Components of testamentary capacity Knowledge of the nature and extent of his property Knowledge of the natural objects of his bounty Knowledge of how the will would dispose of his property The ability to make a rational plan as to the disposition of his property Components to assess in older adults Was there consistency in the patient’s wishes over time? Were these wishes expressed during a “lucid interval” when the person was less confused? Were the patient’s wishes clearly expressed in response to open-ended questions? Is there a clear documentation of the patient’s mental status at the time of the discussion? Periodic assessment and documentation of cognitive function in older adults especially those with cognitive impairment is advisable for potential legal issues in future Retrospective certification or opinion on testamentary capacity is not advisable. FITNESS TO STAND TRIAL “Fitness to stand trial ‘deals with the mental capacity of a person to take part in legal proceedings.” The assessment of defendants’ capacity to fitness to stand trial is one of the components related to criminal responsibility. This assessment needs to be done with the following objectives in mind. The first objective is to confirm whether the defendant has any clear diagnosis of a mental illness. Detailed examination of the mental status will give an understanding of the clinical features if the individual has any mental illness. Following this, a detailed forensic assessment with the components mentioned below is required to recognize the impairment of capacity in this specific competency. This assessment is essential to ensure that the legal proceedings are conducted fairly as mandated by the legal system.[91011] Components of fitness to stand trial (CrPC section: 318, 329) Factual understanding Rational understanding Following the proceedings of the court Ability to consult with his lawyer Appropriate behavior in court Impact of mental illness or mental retardation Impact of medications. Mental health aspects that need to be assessed Presence of any features of mental illness Extent of Impairment Interference of the mental illness in the legal proceedings. Common mental illness in older adults where fitness to stand trial comes into question Severe depression Severe mental illness (Schizophrenia, Bipolar, Psychotic depression) Dementia Delirium. Practical points The severity of mental illness is important than just a diagnostic category Look at reversibility of the condition Advisable to assess the capacity to stand trial prospectively than at one cross-sectional encounter Advisable to take the second opinion or involve the team in the final decision. FITNESS TO GIVE WITNESS Individuals with mental illness participating in the legal proceedings for giving testimony and its acceptance represents an equal right for persons with mental illness. “As per the Indian Evidence act, 1872 it is one of the rights of the citizens.” The presence of a mental illness by itself should not discriminate an individual as a witness for an incident. However, there can be a concern about the influence of mental illness on the accuracy of the testimony. In this scenario, the psychiatrist may have to assess his mental state and give opinion. Similar procedure applies to older adults also, however apart from mental illness many things need to be considered such as hearing, vision, and cognitive issues. RIGHTS OF PERSONS WITH DISABILITY ACT, 2016 The Rights of PWD Act, 2016 replaced the PWD Act 1995 to comply with the United Nations Convention on the Rights of Person with Disabilities (UNCRPD). “The Section 12 says that every appropriate government shall ensure that persons with disabilities can avail the right to access any court, tribunal, authority, commission, or any other body having legal or quasi-judicial or investigative powers without discrimination based on disability.” “Section 13 (Legal Capacity) states that appropriate government shall secure that the people with disabilities have rights, similarly with others, to claim or acquire property, movable or immovable; to control their financial related undertakings.” Section 14 (Provisions for guardianship) articulates the provisions of limited guardianship and total guardianship. The section 7 of RPWD act, 2016 “protect persons with disabilities from all forms of abuse, violence, and exploitation and to prevent the same.” Section 27 of RPWD act, 2016 says that “the appropriate Government within their financial capacity and development should provide rehabilitation facilities.” The issues in geriatric mental health involve disability certification, taking into consideration multiple disabilities in older adults, lack of adequate rehabilitation facilities. The other issues are guardianship and protection against elder abuse.[12] Rights of Persons with Disabilities act, 2016 Right to justice Right to equal status in terms of managing property and finances Right for guardianship Right to protect against abuse and exploitation. Geriatric specific issues Disability certification Legal guardianship Protection of older adults rights and prevent abuse Rehabilitation facilities-old age homes, dementia care homes and assisted living facilities. GUARDIANSHIP Guardian is a person who is responsible for the care and protection of the person with disability. The two acts concerned with guardianship in India are the National Trust Act, 1999 and RPWD Act, 2016. The National Trust Act deals with persons with neurodevelopmental illness. Section 13 of Chapter II of the RPWD act (2016) deals with guardianship of persons with disability which states “The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law.” In the new RPWD act, there is the removal of the option of plenary guardianship. There is provision for only limited guardianship. “Limited guardianship implies a framework of joint choice which works on shared understanding and belief between the guardian and the individual with disability, which should be restricted to a particular period and for particular situation and circumstance and should work in accordance to the will of the individual with disability.” As per this definition of RPWD act, 2016 the guardian can take shared decisions related to health care, any contract, or handling his property. The guardianship is important in older adults in view of psychiatric disorders and dementia. In scenario such as conflict among the family members about care, handling older adult property and future contracts, guardianship is important to protect the interest of older adult patients. The procedure of guardianship involves application to the district commissioner for allotment of guardian. In cases which are not solved at the commissioner, level will be taken up as civil cases in the district civil court.[13] RPWD act, 2016 deals with guardianship for older adults. Limited guardianship involves shared decision making. Conditions in older adults where guardianship is required Severe mental illness Dementia-moderate and severe stage Older adults with multiple disabilities. Role of psychiatrist Assess the need for guardianship Provide proper advice to family on the guardianship In case of conflict among family members or neglect or ill treatment of older adults, Psychiatrist as third part has right to bring to notice of court for guardianship Continuation of guardianship need to be assessed depending the severity. MOTOR VEHICLE ACT, 1998 AND FITNESS TO DRIVING Driving has become an essential part of human life. Driving is a skill which requires complex cognitive process and executive functioning of the human brain. Many psychiatric illnesses contribute to the impairment of cognitive function that are essential for driving safely. In addition, psychotropic medications can also interfere with driving ability due to the effects on brain function by impairing psychomotor activity, information processing, and perception. Currently in India, for non-commercial drivers below age 40 can self-certify one’s own health. For commercial drivers and noncommercial drivers above age 40 has to submit a certificate filled, signed by a registered medical practitioner. There is no clear guidelines in India as per the Motor Vehicle Act, 1988 to screen for mental illness in all applicants. The fitness in mostly related to physical illness. Older adults with cognitive impairment have several challenges in terms of safe driving. In this context as MHP working with older adults need to assess their cognitive abilities and advice on the continuation of driving. In India, as there is no mandatory provision of reporting to the concerned authority of impaired cognitive skills that interfere driving in older adults, it is left to the discretion of the patient and family to continue driving. The psychiatrist has the responsibility to assess the overall mental capacity including the driving ability and advice the patient and family members.[14] Motor vehicle act, 1988 - older adults need to undergo medical examination to hold a valid driving license No specific screening for psychiatric illness There is no mandatory reporting of cognitive impairment or psychiatric illness in India Geriatric psychiatrists should enquire about driving in older adults Enquire about any legal issues related to driving in older adults Enquire about any difficulties in navigating or negotiating the traffic in older adults Thorough examination of mental state and cognitive assessment is advisable Need to check about the impact of psychotropic medication on driving skills Advice the patient and family on the continuation of driving. Illness/situations where driving skills will be impaired Moderate and severe stage of dementia Parkinson’s disease and Parkinson’s related dementia Older adults receiving electroconvulsive therapy Acute episode or exacerbation of severe mental illness Adverse effects of psychotropic medications. MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 The MWPS act was formulated in 2007 to ensure maintenance support to the parents and senior citizens. This is one of the landmark act to protect the interest of older adults. However due to lack of awareness still many older adults face neglect and abandonment. Parents refer to biological, adoptive or step parents. There is no restriction related to the age of parents for claiming maintenance under this act. Under this act, parents or senior citizens can claim maintenance from their children or grandchildren. The Act also proposed for establishment of the tribunal in every district to provide effective and timely relief to older adults. There is a time limit of 3 months to provide maintenance up to ten thousand rupees per month. The Section 19 of the act also mandates the setting-up of an old age home in every district. The acts also provides provisions for the protection of life and property of the elderly. Recently there are few proposed amendments in the Maintenance and Welfare of Parents (MWP) act, 2007. The amendment is currently being reviewed by the parliamentary standing committee. The provisions of the draft amendment bill of MWP act, 2007 include expansion of the definition of children under this act. Step-children, adoptive children, children-in-law, and the legal guardian of minor children are also considered as children under the proposed definition. Parent-in-laws, and grandparents are included in the proposed amendment of the definition of parents. The provision of healthcare, safety, and security for parents and senior citizens has been included under the maintenance. The scope of welfare measures has also been expanded to include other essential facilities like clothing, housing, safety, and other necessary for the physical and mental well-being of a parent or senior citizen. The proposed amendment bill has removed the upper limit of the maintenance emolument.[15] ADMISSION TO RESIDENTIAL CARE HOME With the increasing number of older adults in India, there is steady growth in the number of older adults moving to residential care centers. This could be due to change in the social support system and changing family structure. Residential care facilities include old age homes, assisted living facilities, dementia care facilities, hospice care facilities, and palliative care residential facilities. The decision to move to residential care is an important decision for older adults. It has to be a carefully weighed decision taking into consideration the needs of older adults, support systems, preference of older adults. Many residential care facilities in India do not have mental health care facilities. Older adults with psychiatric illness or cognitive impairment are at higher risk of involuntary admission in residential care facilities. Psychiatrist has a role in assessing the capacity of older adults in making choice on residential care Psychiatrist can advise the family about the kind of care and assistance required for older adults with dementia. ELDER ABUSE Elder abuse defined as a “single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person. It can be of various forms: physical, psychological/emotional, sexual, financial abuse and neglect.” Older adults have a higher prevalence of abuse. This is not limited only to the acts of commission. It includes the possibility of neglect by the family members as well as caregivers. Surveys done globally as well as in India have indicated high prevalence of elder abuse. Many older adults would hesitate to report and seek help due to stigma as well as fear of negative effects from the perpetrators. MHPs need to be vigilant to suspect elder abuse and assess sensitively to initiate necessary measures and support to the older adult facing this issue. Providing individual and family intervention, guidance to seek help from the Elder’s Helpline, Legal Services Authority, and statutory authorities under the MWPS act, 2007 could be helpful to the older adults suffering from abuse. In a recent multicenter survey in India on older adults, 25% of participants reports they have faced abuse. Older adults with psychiatric illness and dementia increase of risk of abuse and exploitation. The laws that deal with the abuse on older adults are the Indian Penal Code (IPC), 1860, the Criminal Procedure Code, 1973 – Section 125. The acts which deal with abuse in older adults are MWPS act, 2007 and section 16 of RPWD act, 2016 [Figure 1].Figure 1: Older adult abuse/neglect evaluation Keep high index of suspicion on the possibility of abuse in older adults Any unexplained deterioration and discrepancy in history should raise suspicion of abuse Interviewing the older adult patient alone will help in bringing out issues such as abuse Assess the medical issues and medical emergency in case of abuse Ensure the safety of older adults who are victims of abuse Consider notification of the relevant authorities (Police, Legal Services Authority). ASSESSMENT OF MENTAL CAPACITY IN OLDER ADULTS “Mental Capacity is assessed based on the ability of an individual to make a decision related to a specific situation or context. They should be able to understand, retain and weigh the information and communicate the decision.” Professionals may consider capacity evaluation as challenging due to the complexities and implications. Many cognitive domains such as attention, memory, executive function, and language are impaired in persons with dementia. These cognitive capacities are critical components of mental capacity as they are required for thinking and decision-making. Capacity assessment includes functional assessment by a clinician to assess the ability of the individual to make the decision in a specific context. Some of the common reasons for evaluation of capacity in a person with dementia include assessment of ability to make a will, managing the financial transactions and consent to participate in research, decision about living independently, and fitness for driving. The assessment of mental capacity includes determination of the presence of mental illness (e.g., dementia), ability to understand the context and nature of the decision, understanding of the available options, evaluation of the consequences of choosing any of the options, finalizing and communicating a decision.[1617] Mental health capacity assessment Capacity assessment is specific to a particular time and a task Capacity evaluation needs to be done in a systematic manner The information given to the individual should be comprehensible and understandable Capacity assessment should be done after maximum effort to increase decision-making ability is implemented Trusting and collaborative professional relationship is important for doing the capacity assessment [Figure 2]. Figure 2: Situations where mental capacity is challenged in older adultsTools to assess mental health capacity in older adults for the treatment Capacity Assessment Guidance Document issued by the Ministry of Health and Family Welfare, Government of India (MHCA, 2017) UCLA decision-making capacity assessment tool Macarthur competence assessment tools for treatment Capacity to consent to the treatment instrument Hopemont capacity assessment interview Thinking rationally about treatment Aid to capacity evaluation. ETHICAL ISSUES