Authors: Aakarsh Kamra and Garima Tiwari
Pro-Patient? Pro-psychiatrist? Or just another addition to the numerous laws?
Science has progressed unfathomably in the realm of curing and treating various diseases and disorders. The legal framework pertaining to issues as regards such diseases and disorders is also being strengthened with time. However the same cannot be the case of persons suffering from mental illness. Being a vulnerable section of the society persons with such an illness have been recurring victims of cruelty, ridicule, abuse and neglect of their legitimate rights. Mental Disorders account for 13% of the global burden of diseases.
The World Mental Health Atlas 2011 (WHO) reports that only 59% people worldwide live in a country where there is a dedicated Mental Health Legislation. A recent article in THE WEEK magazine reported that in India we have over 10 crore people suffering from a mental illness, there are just 43 mental hospitals, about 4000 psychiatrists. Budget Allocation to Mental Health is about as low as 1% whereas experts put it close to 10% . Our approach in dealing with such an illness has been a disappointing one.
Traditionally, the idea behind incorporating any measure with respect to such an illness was to isolate the affected patients preferably in an institution, keep them away from the mainstream society as much as possible, thereby ignoring the overarching principles of equality and dignity of individuals as well as the International Instruments such as the Universal Declaration of Human Rights which inter alia provides that all human beings are born free and equal in dignity and rights.
The Lunacy Regulation Act, 1853, Indian Lunacy Act 1912 and the Lunatic Asylums Amendment Act 1853 were some of the archaic legislations that dealt with mental illness where persons suffering from such an illness were referred to as lunatics or idiots thereby treating them as persons who were extremely dangerous for the mainstream society. It was in 1920, that the name Mental Hospital was substituted for Lunatic Asylums.
The Mental Health Act 1987 was a positive step in ameliorating the conditions of persons with Mental Illness in India. The enactment of the Mental Health Act brought along with it a lot of positive changes from the erstwhile draconian legislations yet has left a lot to be desired. The Act suffers from various fundamental discrepancies and a need was felt to amend it so as to bring it in conformity with the changing times and international instruments. The Act has had serious problems with respect to its implementation since in most of the states, the Act was not notified.
The National Health Policy 2002 also dealt with mental health, recognizing that Mental Health Disorders have much more to them than what meets the eye having serious bearing on the quality of life of the person affected by it. The plan had envisaged a network of decentralized mental health services.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation )1995 includes Mental Illness and Mental retardation as a disability, however does not define clearly what mental illness actually amounts to. India is a signatory to the Convention on Rights of Persons with Disabilities 2006 and ratified the said instrument in October 2007. The convention inter alia provides that every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others (Article 17).
State parties to the convention must recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community (Article 19). State Parties shall protect the privacy of personal health and rehabilitation information of persons with disabilities on an equal basis with others (Article 22).States Parties must recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability (Article 25).
The World Health Organization in a document lists 10 basic principles of mental health care law which are as follows:
- Promotion of Mental Health and Prevention of Mental Disorders
- Access to basic mental health care
- Mental health assessments in accordance with internationally accepted principles.
- Provision of health care which is the least restrictive
- Self determination i.e consent to be necessary before any type of action can be taken with respect to that individual.
- In case of difficulty in exercising consent or understanding the implications of the decision, the person may seek assistance as regards the same from a known third person of his or her choice.
- Availability of a review procedure in case of decisions made by official or surrogate decision makers.
- Automatic review system in certain cases
- Decision makers to be qualified individuals
- Respect for rule of law
Mental Health care has found mention in the approach paper for the 12th Five Year Plan. It has been provided that there must be a focus on the special requirements of different groups, e.g., integrated health care and other needs specific to the elderly, ‘adolescent friendly’ health support services (and counseling) for victims of sexual or substance abuse, those infected with HIV/AIDS etc. Mental health services, including psycho-social care and counseling, should be prioritized, in settings of transition due to migration, areas of conflict and disturbances, especially in the North Eastern Region, J&K and in areas of natural disasters/calamities.
The experience with Mental Health Act 1987 has been far from satisfying. In order to devise a strong mechanism to address the concern of persons suffering with mental illness and to ensure compliance with International Instruments, the Draft Bill on Mental Health care has been prepared by the Ministry of Health and Family welfare.
A peek into Draft Mental Health Care Bill 2012 prepared by the Ministry of Health & Family Welfare.
The Act seeks to protect, promote and fulfill the rights of persons with mental illness and to provide treatment, care and rehabilitation to improve the capacity of the person to develop his or her full potential and to facilitate his or her integration into community life. The Mental Health Care Bill attempts to remedy the inaccuracy and ambiguity in definitions with respect to mental health.
Section 2(j) defines the term least restrictive alternative. This definition assumes importance as the Bill seems to comply with the basic requirements laid down by the WHO with respect to mental health legislation. Least restrictive alternative, opinion or environment means offering an option for treatment that meets with a persons treatment needs and imposes the least restriction on persons rights.
Section 2(r) defines ‘Mental illness’ as, ‘disorder of mood, thought, perception, orientation and/or memory which causes significant distress to a person or impairs a person’s behavior, judgment and ability to recognize reality or impairs the person’s ability to meet the demands of normal life and includes mental conditions associated with the abuse of alcohol and drugs, but excludes mental retardation.’ The Bill also lists the factors upon which mental illness shall be determined in accordance with section 3.
The definition of ‘mental illness’ is a major improvement from the earlier act which did not provide any guidance as to what would constitute mental illness except for stating that a person who was mentally ill was anyone needing treatment and who did not come under the definition of mental retardation, while the 2012 Bill seeks to understand mental illness from a social model, giving a broad and inclusive definition as to what may constitute mental illness. Section 20 of the Bill seeks to ensure that all persons with mental illness shall have a right to live with dignity and be protected from cruel and inhuman treatment.
Unlike the Mental Health Act 1987, section 25 of the Bill provides that Patients with mental illness will have the right to access complete information about their treatment, including all medical records. Such information shall only be withheld in exceptional circumstances where there is likelihood of harm to the patients or other persons. The Bill imposes a duty under section 23 upon health professionals treating the patients to keep information relating to their mental health strictly confidential.
Mental health services is sought to be integrated into general health care services at all levels of health care including primary, secondary and tertiary care level of health services and in all health programs run by the Government as provided under Section 18(5). The IRDA under the Insurance Regulatory Development Authority Act, 1999 shall endeavor to ensure that insurance shall be provided to treatment of mental illness at par with that of physical illness as given under section 21(2).
The Bill bestows upon the patient a legal status. It provides that any person with mental illness and his or her Nominated Representative, has the right to complain regarding deficiencies in provision of care, services in the mental health establishment to the medical officer or psychiatrist in charge of the establishment and if not satisfied with the response to the State Mental Health Authority and if not satisfied with the response or to the State Panel of the Mental Health Review Commission.
The Bill seeks to create various new bodies and completely overhaul the existing mental healthcare system in the country. It provides for the establishment of the Central and State Mental Health Authorities, which would be responsible for the registration and oversight of mental health establishments by laying down minimum standards and a monitoring mechanism to ensure statutory compliance. The Bill also sets up the Mental Health Review Commission (MHRC) and state-wise Mental Health Review Boards (MHRB).
The MHRC and MHRB are equipped with several administrative and adjudicatory functions and will form the first level of interaction of any person with mental illness or his/her representative with the mental healthcare system for violation of any of his or her rights. With the introduction of these new bodies, for the first time, a person with mental illness can directly approach a forum for protection of his/her rights.
The Draft Bill lists the following treatments that are prohibited from being performed on persons with mental illness under section 104:
- Electro Convulsive Therapy was invented in 1938. During such a procedure an electric current of 70 to 170 volts is passed for 0.5 to 1.5 seconds, which is slightly low in case of ECT procedures without anesthesia. Normally the process was repeated 6-10 times but in India a continuous dose up to 20 times is not unknown. The present Draft Bill seeks to prohibit the use of such treatment completely in case of minors. However after consultation with Doctors, Administrators and state government officials it was decided that such therapy could be allowed under anesthesia and with the consent of the guardian and prior permission of the concerned board since in certain extreme cases excepting minors it does prove to be a life saving exercise.
- Prohibiting the Sterilization of men or women when such sterilization is intended to treat or cure any person with mental illness, thus ending the traditional practice of sterilizing people with mental illness.
- A gruesome tragedy took place in a mental asylum at Ervadi in Ramanathapuram District wherein around 25 mentally challenged patients were charred to death. The inmates could not escape the fire as they were chained inside the asylum to poles and beds. The Apex court took suo-motu cognizance of this incident (W.P (C) 334 of 2001) and ordered a ban upon chaining of patients suffering with mental illness. The present Bill seeks to prohibit the chaining of patients in any manner.
Restrictions on the use of Psychosurgery as a treatment has also been incorporated as a provision (section 105) for persons with mental illness and such a procedure shall only be undertaken when there has been an informed consent of the person upon whom the surgery is to be performed and when an approval from the state Mental Health Authority has been taken to perform the surgery.
According to a recent report, WHO estimates that about 1, 70,000 deaths by suicides occur every year in India. The maximum suicide rate is in the age bracket of 15-29 years. The Bill seeks to decriminalize attempt to suicide due to mental illness under section 124. Any person who attempts to commit suicide shall be presumed to have mental illness and no investigation or prosecution shall be carried out. The government shall be duty bound to take care of such a person and ensure his proper treatment and rehabilitation to reduce the risk of suicide attempts in future.
A provision under section 114 has also been incorporated whereby a proof of a person’s past or present admission or treatment in a mental health establishment for mental illness shall not be a ground for Divorce.
With respect to Penal Provisions, Section 116 and section 117 of the Act prescribe that Mental Health Establishments which have not been registered shall also be dealt with severity under the Draft Bill. A fine of 50,000 rupees shall be imposed for the first offence. A fine of 2 lakh rupees and thereafter a fine of 5 lakhs rupees shall be imposed for subsequent offences. Persons knowingly serving in such unregistered mental health establishments shall also be liable to pay a fine of 25000 rupees.
Contravention of any provision of the Act also entails punishment by the State Panel of Mental Health Review Commission with imprisonment for a term upto 6 months and fine of 10,000 rupees. In case of a subsequent offence the imprisonment shall be for 2 years and a minimum fine of 50,000 rupees which may extend to 5 lakhs rupees. Under section 91(4), where a mental health establishment does not comply with the orders of the commission or the board or willfully neglects such order or direction, the commission or the Board may impose a penalty of 5 lakh Rupees or can also order the central or state authority to cancel the registration of such establishment.
Chapter XII of the Bill deals with Admission, Treatment and discharge. The Bill provides that as far as possible all admissions to the mental health establishments should be independent admissions i.e where a person suffering from mental illness has the capacity to take decisions as regards his illness without depending on anyone. But is is imperative to understand that in certain cases, supported admissions become a necessity.
The Bill covers the circumstances of discharging independent patients however clarity is still lacking on the fate of patients who are unable to fathom the consequences of their judgment. The Bill also restricts the duration to 72 hours under section 103 for which emergency treatment in exceptional circumstances may be carried out.
Even though the previous legislations on mental illness incorporated provisions for ameliorating the conditions of persons with mental illness, there was no provision or step considered necessary to reduce social stigma attached to such an illness. Unless this issue is addressed no matter how strong legislation may be drafted, the predicaments of such persons shall never cease.
In 2009, the Delhi High court had ordered to create wards for women with mental illness within three months, when a former model Gitanjali Nagpal was found begging on the streets of south Delhi. What is appalling is the fact that in spite of court orders nothing substantial has been done in that direction. The present Bill mandates the government to take measures so that the provisions of the Bill are publicized and communicated to the general public. In order to reduce social stigma associated with mental illness, programs shall also be devised and implemented.
Despite the attempts in the bill to ameliorate the conditions of the mentally ill people, the bill has been criticized severely, by disabled rights activists as an ‘apartheid’ against mentally ill people, making it easier to forcibly confine a person into a mental asylum. Some call it ‘anti-patient’ and some label it a ’pro- doctor’ Bill.
Thus, even before the draft has been tabled in the parliament there have been protests from all corners as to certain provisions of the Bill claiming that the Bill still allows the practice of involuntary admissions. However it must be seen in the context that sometimes there are circumstances when the patient is unable to take a decision on his own as regards his treatment and due to the nature of his illness it becomes imminent that special care be taken.
The bill addresses even this issue by limiting such forced admissions to 30 days (section 98). There is appreciation of ‘patient autonomy ‘as a medico-ethical principle and in the absence/reduction of this decision-making capacity, the second principle of “beneficence” supersedes it. The question of surrogate decision-making arises in this context across all medical fields, psychiatry included and in this context to quote Dr. Jayakumar Menon who is a neuropsychiatrist at the Royal Adelaide Hospital, Australia said that:
The Mental Health Act, in its final form, should assure proper care for such patients, who are at the risk of harming either themselves or others. The assessment of capacity in a person with major mental illness is a skilled task and there is guidance on assessment of capacity by doctors in the proposed bill. A robust act would be a corollary to the Rights of Persons with Disabilities Bill 2011 that assures equal rights for people with mental illness. Provisions in the act to make amendments based on feedback from stakeholders will go a long way forward in reducing unnecessary concerns that may arise out of regional variations of needs and societal mores. Overall, the proposal to make access to treatment the right of the patient is revolutionary and laudable.
For what it is appreciated, it is also deprecated, implying that it is argued that under the Bill, mental health care professionals such as psychiatrists have been given power to decide whether a person needs to be put in a mental asylum or not. Under the Mental Health Act 1987, such a power was with the Magistrate. Any mentally ill person admitted to a mental health establishment or his or her relative or friend may apply to the Magistrate for discharge of such person.
Under the Bill as mentioned, Magistrate is removed from the picture completely, and is replaced by mandatory reviews of all such cases by mental health panels, which comprise judges but also administrators and persons with mental illness and their care-givers. This has been called as taking away the voluntary admission aspect. But it should be noticed that, in a way this whole new regime is an improvement over the unbridled power to the Magistrate in the mental health system, which has now been reduced to only a few specific cases.
Also it is argued by many groups that, even though there is a provision for advance directive in the bill, which provides for a person to detail in advance as to what treatment he prefers in case of mental health in future, the provision is watered down by giving the caregivers, relatives and NGOs the right to seek cancellation of such directives by appealing before the Mental Health Review Commission. It is also said that in a way, if the electro convulsive treatment for children and without anaesthesia is barred, it would be much against scientific and logical thinking. Such things are best left to the experts. So is the restriction of the period of treatment which should again be a professional case-by-case decision.
Moreover, the lenient rules regarding establishment of mental health establishments/institutions with a general form and provision registration within 10 days is totally underestimating the importance of expertise needed in the treatment and care of mentally ill people. India has ratified the United Nations Convention on Rights on Persons with Disability in 2007 which advocates for community health care than such rapid mushrooming of institutions, without any deterrent punishments for those who run such institutions illegally. There is an argument for more community health care provision, than more psychiatric facilities.
India needs to look at the experience of countries that have moved away from asylum-based treatments and embraced community integrated psychiatry as the treatment model, which has also been stressed by the Rights of Persons with Disabilities Bill 2012 recently unveiled by the Ministry of Social Justice & Empowerment (MSJE) which guarantees the ‘legal capacity’ and the ‘right to choice’ of all persons with disabilities, including those with psychosocial disabilities.
In spite of such concerns, arguments or protests, it is an undisputed fact that this Bill has addressed many problems faced by the persons with mental illness. It has definitely encouraged people to have healthy discussion and debate on the protection and promotion of rights of the persons suffering from mental illness. The very fact that the Bill recognizes that The Mental Health Act, 1987 has not been able to adequately protect the rights of persons with mental illness and promote access to mental health care in the country is a welcome step.
Thus, persons with mental illness should be treated like other persons with health problems and the environment around them should be made conducive to facilitate recovery, rehabilitation and full participation in society. The Bill brings about a rights-based protection of mentally-ill persons, for the first time and is definitely giving a humane perspective to the issue, with the first government-led effort. But all will come to a standstill if the implementation is not true to the law. In addition, what would be needed is some strong workable policy which will take care of the administrative bottlenecks, and provide for a smooth implementation of the Act.
- Article 1, http://www.un.org/en/documents/udhr/index.shtml#a18
- Dharmendra Chatur, Novermber 5, 2012 available at http://clpr.org.in/