THE NEED for a comprehensive law on mental health was first realised in October 2007 when India ratified the United Nations Convention on the Rights of Persons with Disabilities. The existing Mental Health Act of 1987 was only a slight improvement on the colonial Indian Lunacy Act of 1912, which focussed on protecting the “rights of the sane not to be judged insane [ sic ]” or the mentally ill who were condemned to spend the rest of their lives behind closed walls in institutions. But it upheld the regressive provisions of the Lunacy Act such as “to protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others”. Whereas the 1987 Act focussed on institutionalisation, the new Mental Health Care Bill talks of community care and individualised treatment.
Even as activists and psychiatrists have expressed reservations on the efficacy of the new law for separate reasons, there is no denying that it is more humane in its approach than previous laws. One of the prime concerns of persons living with mental illness is the degree of autonomy that the Bill would provide for them. A major portion of the Bill revolves around ways to protect, promote and fulfil the rights of persons with mental illness “during delivery of mental health care services”. It assures the right of access in each district to good and affordable mental health care for all without discrimination and lays stress on bringing the services on a par with those available in the general health system.
Given the degrading state of mental health institutions in the country as exposed by the media several times, it is welcome that the Bill mandates certain safeguards for people living in such places. It assures people with mental illness the right to safety, hygiene, privacy, education, wholesome food and protection from all forms of physical, verbal, sexual and emotional abuse. It also promises them the right not to be subjected to compulsory tonsuring and the right to wear their own clothes, and includes provisions for preparing them to live within the community. It also talks of halfway homes and group homes and has a proviso to support the family of a person with mental illness or home-based rehabilitation.
For the mentally ill destitute, services are to be free of cost at all government-run facilities. Free legal-aid services are to be provided to the mentally ill but within the purview of the rights enshrined in the Bill. Even as the Bill lays out comprehensive guidelines on these, it is silent on other aspects of care, integration or awareness building for the mentally ill that do not relate to services.
Comprehensive definition For the first time in the history of mental health legislation in India, the Bill comprehensively defines “mental illness” as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation, which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence”.
In a definite improvement from the past, it recognises that persons with mental illness are capable of making their own decisions provided they are given the right kind of opportunity. It is a widely held belief that persons with mental illness are incapable of or unable to think. “The moment a diagnosis of mental illness is made, the family, friends and sometimes even psychiatrists begin to believe that the person cannot think at all. That is not true. Sure, it is an illness, but the person is not condemned to impaired thoughts 24/7. There are moments when the symptoms override the sense of reality, but with proper treatment and care people do come back. There is a wide range under the umbrella of mental illness, and not all are chronically ill at all times,” said Dr Nirmala Srinivasan, Founder FACEMi, or the Families’ Alliance on Mental Illness.
The Bill, however, is silent on aspects such as financial responsibilities. In February, the Reserve Bank of India issued guidelines to accept legal guardianship certificates under the Mental Health Act, 1987, for the purpose of operating bank accounts of persons with disabilities. While the question of guardianship itself is fraught with issues, several persons with mental illness ask why they cannot decide on what to do with their money.
“There is a big debate happening around the idea of guardianship, especially in financial matters. A question I am often asked is, why can’t I decide if I want to save my money or spend it on a vacation like other people? The idea is not that the decision should be correct; it is that one should have the choice to make the decision. So what if it is wrong? Don’t other people make wrong financial decisions? Nobody takes their right away from them. Guardianship regime should change as it has been discarded the world over. It takes away the power to make decisions and the legal capacity,” said Poonam Natarajan, former Chairperson of the National Trust for Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and the founder of Vidya Sagar, an organisation advocating rights for persons with disabilities.
Nirmala Srinivasan says that over a period of time, the mentally ill can be empowered enough to manage their own financial affairs.
Redress mechanism The Bill provides for the creation of Central and State Mental Health Authorities and a Mental Health Review Commission. The commission or board would act as a redress mechanism for various things covered by the Bill and even have powers to recommend closure of a certain mental health establishment if it is found to be in contravention of the law. In what is a step in the right direction, the Bill provides for “advance directive” that empowers a person with mental illness to put in writing the kind of care and treatment he or she would want or not want in the future. It can be revoked by the decision of the board on the basis of several factors. However, Keshav Desiraju, former Secretary, Ministry of Health and Family Welfare, who was instrumental in formulating the Bill, said: “The grounds for revocation are clearly stated and are intended to protect the rights of the person. The advance directive can be revoked only under exceptional circumstances if there is evidence of undue influence or if the provisions are against the provisions of the Constitution, to give just two examples.”
According to the Bill, persons with mental illness can specify a nominated representative to act on their behalf wherever required. Nirmala Srinivasan says though these provisions are welcome, the families and parents of the mentally ill would have wanted elaborate points concerning nominated representatives. While families often fret over who will take care of their mentally ill ward once they are not around or no more, they are also wary of an outsider that their ward may like to choose. “Also if they had provided some graded introduction for advance directives, preparing the families and mentioning some mechanisms, it would have tremendously helped facilitate the process,” she said.
A positive aspect of the Bill is the decriminalisation of attempt to suicide. But it is unclear whether all forms of attempted suicides, including that of farmers, dowry-related suicides, and suicides in educational institutions and in political movements, will be seen as relating to mental illness. Desiraju says it would not be so. “The Bill uses the term ‘severe stress’. There is no attempt to brand those attempting suicide as ‘mentally unstable’. Those attempting suicide are presumed to be under severe stress and hence should not be prosecuted. The Bill is only stating the reality that persons who attempt suicide are under severe stress,” he said.
Mandating insurance companies to provide medical insurance to mentally ill persons as in the case of physical illnesses and banning the use of electroconvulsive therapy (ECT) for minors and without anaesthesia for adults are other key features of the Bill. “No country in the world has banned ECT for adults. In exceptional and severe cases it can be life-saving. This is what we know from medical research. There are also safeguards to prevent abuse,” said Desiraju.
Some misgivings Given the severe shortage of infrastructure, personnel, psychiatrists and counsellors, activists wonder if it would not have been prudent for the Bill to specify fund allocations. Desiraju disagrees. “Legislation is not required to provide for fund allocation. That is the business of the government in the budgetary process for which there are well-established procedures. The government has to make adequate fund provisions to achieve improvement in infrastructure, services and number of professionals. This is a law for the foreseeable future, and it is to be hoped that the government will respond through administrative and budgetary measures to respond to the provisions of the law,” he said.
Dr Vikram Patel, Professor of International Mental Health at the London School of Hygiene & Tropical Medicine and the Public Health Foundation of India, sounds a word of caution even while hailing the positive aspects of the Bill. He feels that the government and civil society will have to work in tandem to ensure a system of accountability. According to him it is imperative to form State- and district-level coalitions of the mentally ill, their families and mental health professionals to ensure proper implementation of the law.