INDIAN MENTAL HEALTH LAWS: EMERGENCE AND ANALYSIS by Aparna Goswami

Posted on: November 19, 2020 Posted by: admin Comments: 0

Author : Aparna Goswami, Student at University Institute of Legal Studies, Punjab University.

INTRODUCTION

Each year since 1992 the World Mental Health day has been celebrated on October 10. With the increasing emphasis on destigmatizing mental illnesses it is imperative that Mental Health Laws, which still remain a mystery to laypeople, should be given a bigger platform for discussion and evaluation. When trying to understand current day laws for people with mental illnesses we must follow the historical route which led to their emergence and analyse the rights given to the people with recognized mental illnesses under our legal system.

HISTORICAL BACKGROUND OF INDIAN MENTAL HEALTH LAWS

Mental Health legislations in India existed since mid-19th Century and have undergone numerous changes over the years.

The first law related to mental health recognised in British India was the Lunatic Removal Act 1851.[1] The main purpose for which was to regulate the return of British patients back to England. This was followed by the Lunacy (Supreme Courts) Act 1858, Lunacy (District Courts) Act 1858, Indian Lunatic Asylum Act 1858 and then the Military Lunatic Act 1877. 1

These acts were however largely criticised as the ill were generally subjected to poor living conditions with no hope for treatment or recovery.

This led to the emergence of Indian Lunacy Act in 1912, this act brought considerable change in management of mental asylums but lacked in rights of people with mental illnesses and was only concerned with the legal custody and procedures. It focused on protecting the general public from people with mental disorders rather than protecting the already vulnerable mentally ill. Therefore, it led to further strengthening of the stigma around mental health and posed the mentally ill as a danger to society.

Then the Indian Psychiatric Society helped to draft a mental health bill. This bill came into being on May 1987 as Mental Health Act of 1987.

Mental Health Act, 1987

  • The Advantages of the Mental Health Act (MHA) 1987:
  • Definition provided for mental illness was progressive.
  • Focused primarily on care of mentally ill rather than custody.
  • It explained in detail the admission procedures, guardianship and management of the property of people with a mental illness.
  • It highlighted the need for protecting their human rights.

Criticisms to MHA1987:

  • In this act there is no clear demarcation between involuntary and forced treatment.
  • This act does not highlight the concept of consent of an individual for treatment.
  • The proceedings elaborated under this act for appeals and the procedures for license procurement are very exhausting and unrealistic.
  • No mention of emergency crisis service for families of people with mental illnesses.
  • Under this act government hospitals were excluded from the necessary licensing which shielded poor quality and, in some cases, unsuitable treatment for patients.
  • This act is questioned on its constitutional validity as it is seen as an infringement of Right to life and personal liberty due to its provisions which trespass on liberty of patients.
  • The rights for people who receive treatment under the provisions of this act do not receive the required spotlight.

These shortcomings coupled with signing of United Nations Convention for Rights of persons with disabilities by India led to Mental Health Care Act to 2017.

United Nations convention for rights of persons with disabilities-2006

India became a signatory of UNCRPD in December, 2006. This required India to bring its laws and policies regarding people with disabilities in accordance with the convention.

UNCRPD defines the rights of people with disabilities and the obligation of the countries towards them. It mandates the signatories to provide the following rights to persons with disabilities:

  • Right to accessibility extending to information technology[2]
  • Right to live as an independent individual.3
  • Right to have equal recognition before the law and legal capacity.[3]
  • Right to personal mobility. [4]
  • Right to habitation and rehabilitation.[5]
  • Right to recreation and participation in political, public life and cultural life.[6]

All parties were mandated to spread awareness about human rights of people with mental disabilities. [7]

MENTAL HEALTHCARE ACT, 2017

Mental Healthcare Bill became a law on 17 April, 2017. This Act is an alignment between MHA,1987 and the guidelines and protocols of UNCRPD, signed by India in 2006. The major motive of this act is to provide for the people suffering with mental illnesses by protecting their rights and providing healthcare.

Mental Illness has been defined in section 2 (1) (s) of Chapter 1 in this act as “a substantial disorder of thinking, mood and perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs. But it doesn’t regard mental retardation, a condition of arrested or incomplete development of mind of a person, specially characterized by sub normality of intelligence, as mental illness” [8]

SALIENT FEATURES

PROHIBITED PROCEDURES:

Certain Procedures held to be barbaric and unlawful are prohibited under this act in Chapter XII. These include

  • Electro-convulsive therapy without the use of anaesthesia and muscle relaxants and for minors.[9]
  • Sterilisation of men and women done as a procedure for treatment.[10]
  • Physically chaining or restraining in any manner.[11]
  • Psychosurgery without informed consent of the patient on whom surgery is being performed.[12]
  • Surgery being performed without the approval from the concerned board to perform the surgery.[13]

DECRIMINALISATION OF ATTEMPT TO SUICIDE

  • In Section 115(1) it is stated that a person who has tried to commit suicide will not be charged and tried under Section 309 of IPC.[14]
  • It shall be presumed that the person was under significant stress, unless it could be proven otherwise.15
  • The Government shall have a duty to provide care, proper treatment and structured rehabilitation to a person who attempted to commit suicide to reduce the risk of recurrence of such an attempt at one’s life.[15]

ADVANCE DIRECTIVE:

This refers to the right of a person who is not a minor with mental illness to make an advance directive to state how she/he wants to be and how not to be treated for the illness[16] and ascertain her/his nominated representative as specified in section 14.[17]

This directive will only be referred to when they lose their capacity to make decisions regarding their treatment.[18] The medical board should have the directive registered or the directive could be attested by a medical practitioner. It also specifies that such a directive can be amended or revoked by the person who made it, the procedure for which is specified in the act.[19]

RIGHTS GRANTED UNDER THIS ACT

  • The Bill grants every individual the right to access mental health care facilities of affordable cost, good quality and without discrimination[20].
  • People with mental illnesses also have a right to not be segregated from their community and live as a part of their community. In cases of abandonment, it is the duty of the government to provide support and legal aid.[21]
  • Right of people with mental illnesses to live with dignity and be protected from cruel, inhuman and degrading treatment [22] which are further specified in the act.
  • People who mentally ill have a right to be treated as equals to those with physical illnesses and be subjected to no discrimination.[23]
  • The patients have the right to information.[24]
  • A person with mental illness shall have the right to confidentiality regarding her/his mental healthcare, treatment and physical healthcare. [25]
  • The photograph or any other information of the person cannot be released without the consent of the concerned person.[26]
  • The patients shall have the right to access their basic medical records which could be withheld when there is a risk of serious mental harm to the patient or harm to others.[27]
  • A person admitted to a mental health institution has the right to receive or refuse visitors and phone calls according to the norms of that institution.[28]
CRITICISMS TO MHA, 2017

This Act is essential but it still is not free from drawbacks. The act is criticised for the following reasons.

  1. Due to the lack of resources such as infrastructure its required implementation is very far-fetched.
  2. Secondly, the definition of mental illness provided under this act is vast and open to interpretation. It can convey wrong ideas about the meaning of mental illness further increasing the stigma encircling mental illnesses. A concise, clear and precise definition would have produced better results.
  3. The treatment of Minors is ambiguous in the act. The special circumstances under which a minor can be hospitalised are not clearly stated.
  4. The decriminalization of suicide, however commendable, is conditional. Suicide should be completely decriminalised. This step if taken could help in normalizing the idea that people who attempt at suicide need medical help rather than punishment.
  5. The financial burden on the government will be enormous as the existing medical infrastructure is very inadequate.
  6. Allocation of funds between the state and central government for ensuring accessible treatment is not specified in the act.
  7. In a developing country like India, socio-economic factors like superstition, lack of awareness, discrimination and prejudice, play a big role in destigmatizing important and sensitive topics like mental illnesses. No provision of this act is aimed at dealing with these factors.
CONCLUSION

The Mental Health Care Act 2017 expands on elaborate and patient-centric healthcare in contrast to the early Indian laws for the same. As a revolutionizing act it changes the historic approach to laws on mental illnesses from that of a custodial legal framework to Legal and protected rights and welfare of people suffering with mental disorders. However, there is still a need to revise and review this act. This act needs to be revamped to not just aim at the healthcare but also focus on the mandated prevention and accessible rehabilitation for people suffering from mental illnesses. Today we can see that the implementation of this act will be deficient and the problems of people will continue to exist without the strengthening it needs. Hence while this is a step forward there is still a long way ahead to remove the deeply imbedded shame and stereotypes surrounding mental illnesses so that seeking treatment and medical help can be normalized.

REFERENCES

[1] Firdosi MM, Ahmad ZZ. Mental health law in India: origins and proposed reforms. (BJPsych Int. Aug 2016) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5618879/#r9> Accessed on October 9,2020.

[2] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art 9.

[3] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art 12.

[4] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art20: Personal mobility.

[5] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art 26: Habilitation and rehabilitation.

[6] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art 29: Participation in political and public life and Art 30: Participation in cultural life, recreation, leisure.

[7] Convention on the Rights of Persons with Disabilities, (adopted on December 13 2006) Art 8: Awareness-raising.

[8] The Mental HealthCare Act 2017 s 2 (1) (s).

[9] The Mental HealthCare Act 2017 s 95 (1) (a) and (b).

[10] The Mental HealthCare Act 2017 s 95 (1) (c).

[11] The Mental HealthCare Act 2017 s 95 (1) (d).

[12] The Mental HealthCare Act 2017 s 96 (1) (a).

[13] The Mental HealthCare Act 2017 s 96 (1) (b).

[14] The Mental HealthCare Act 2017 s 115 (1).

[15] The Mental HealthCare Act 2017 s 115 (2).

[16] The Mental HealthCare Act 2017 s 5 (1) (a) and (b)

[17] The Mental HealthCare Act 2017 s 5 (1) (c).

[18] The Mental HealthCare Act 2017 s 5 (3).

[19] The Mental HealthCare Act 2017 s 8.

[20] The Mental HealthCare Act 2017 s 18 (1) and (2).

[21] The Mental HealthCare Act 2017 s 19 (1) and (2).

[22] The Mental HealthCare Act 2017 s 20.

[23] The Mental HealthCare Act 2017 s 21

[24] The Mental HealthCare Act 2017 s 22

[25] The Mental HealthCare Act 2017 s 23

[26] The Mental HealthCare Act 2017 s 24 (1)

[27] The Mental HealthCare Act 2017 s 25 (1) and (2)

[28] The Mental HealthCare Act 2017 s 26

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