Mental Health Rights in India
By: Ms Amvalika Senapati
Defining disability is a complex task. Though arising from physical or intellectual impairment, disability has social implications. A full understanding of disability recognizes that it has a powerful human rights dimension and is often associated with social exclusion, and increased exposure and vulnerability to poverty. Disability is the outcome of complex interactions between the functional limitations arising from a person’s physical, intellectual, or mental condition and the social and physical environment (DIFID, 2000). The Persons with Disabilities Act, 1995 defines disability as including the following seven conditions – low vision, blindness, loco motor disability, hearing impairment, leprosy cured, mental retardation and mental illness. Disability in rural India is defined according to an ability to work. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) defines people with disability as “including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (United Nations, 2006:4).
Though the rights based approach to disability acknowledges that disabled persons have human rights to be accepted as an integral part of society, disabled persons are still confronted with numerous social, economic, educational and political barriers. They have to struggle with stigma, discrimination, lack of accessibility that forces them to be invisible or excluded from being a part of development. Persons with disabilities have been recognized as one of the largest minority groups in India as disability remains one of the most unexplored fields in such a diverse and complex country. International institutions such as WHO, ILO, UN have gradually recognized disability as one very important issue, but the fact remains that in India, persons with psychosocial disabilities and developments disabilities are still stigmatized and continue to be one of the more marginalised class of disabled people compared to people with physical and sensory disabilities.
It must be appreciated that it is mental illness and issues related to it which needs to be addressed at the foremost to ensure mental health. Mental illness is any mental disorder other than mental retardation. A person with mental illness may have normal or high intelligence, and may be highly educated. An illness which can be triggered by biological or genetic factors, traumatic events, emotional problems and stressful experiences, or some illness affecting the brain, it can affect people from any age, gender, race, religion or income group. It includes a wide range of disorders like depression, attention deficit, hyperactivity disorder, bipolar disorder, eating disorders, phobias, panic disorders, schizophrenia, post traumatic stress disorder etc.
Juxtaposed with mental illness, is mental retardation, which is, of course, a completely different disability, where a person behaves in an abnormal way, usually because he or she has not learned the correct way to behave and needs to be taught. Unlike mental illness, mental retardation is a developmental disability and does not come under the purview of laws vis-à-vis mental illness.
To gauge an understanding on mental health services and facilities available, we need to ponder on the systems in place in our country to help understand and openly talk about mental illnesses, the treatment and rehabilitation needs and, most importantly, the right to live a life of dignity.
To begin with, The Mental Health Act, 1987, has special significance because it is not only the first disability specific legislation in independent India, but it also has the clear distinction of making a positive departure from the earlier concept of ‘lunacy’ under the Indian Lunacy Act of 1912, which had largely highlighted mental illness as a subject for stigmatization. The 1987, law for the first time recognizes mental illness as a form of mental disorder which needs to be treated and acknowledges that it is curable, particularly when diagnosed at an early stage. It also brings treatment of mental illness within a regulated regime, where all institutions other than licensed and appropriate government institutions are barred from providing mental health treatment or running nursing homes and shelter homes for mentally ill people. The law also provides for costs of maintenance of mentally ill persons to be borne by the State Government unless such costs are borne by family and kin. Safeguards against indignity or cruelty, right of government servants who become mentally ill during their tenure to not to be denied to entitlements to pay, pension, gratuity or any allowance on ground of disability, right of a mentally ill person to be entitled to the services of a legal practitioner by order of the Magistrate or District Court are some other positive measures in the Act.
Having said all that, it is ironic that for a statute providing for the treatment of mentally ill persons, the Act nowhere defines what mental health service is. “Mental Health Service” merely crops up as an explanation to a statutory provision outlining the constitution of a Central Authority for Mental Health Services wherein it is stated to include psychiatric hospitals and nursing homes, besides observation wards, day-care centres, inpatient treatment in general hospitals, ambulatory treatment facilities and other facilities, convalescent homes and half-way homes for mentally ill persons.
The law also for the first time introduces provision for rescue of homeless mentally ill person from streets under proper judicial order and provides for their medical care, cost whereof, is to be borne by the state government. However, it is indeed tragic that this provision has practically remained a non-starter even after two and a half decades of the law being in force.
Mentally ill persons, who constitute a major chunk of the homeless urban population, needs, not only shelter, but also proper medical treatment and rehabilitation. As a responsible citizen, duty is cast on each one of us to report mentally ill persons to the nearest police station so that the police may take them into protective custody and do the needful of producing them before the magistrate concerned who shall direct for the treatment of the person. Responsibility is also directly reposed on the men in khaki to ensure protection to the mentally-ill destitute. Perhaps, it’s time we ponder on the fact whether we ever acknowledge and act upon this initial duty cast upon us and the police? Save a handful of such reportings, taken at the behest of socially concerned individuals, mentally ill persons are hardly ever given a second glance when we come across them in our city. All we do is quietly avert our gaze from another sad but inevitable truth like clogged drains, heaps of un-cleared garbage on streets, bad roads or even the repeated and tragic loss of life in deathtrap manholes in the guise of flooded footpaths. We have all but resigned ourselves to a reality without a thought ever to change it or challenge it.
The malady does not end with the rescue of the mentally ill person from the street. Even when treatment orders are issued by magistrates, admission in hospitals is very often refused merely for the fact that the mentally ill person is without guardian. Even when, homeless mentally ill persons receive treatment, yet another problem arise as to where he or she can be sent to, post recovery. In the absence of rehabilitation programs, shelter homes and day-care centers for them, their fate is often back to square one – homeless on the streets and vulnerable to mental illness again without proper medication and supervision. So then, these are classic reasons why mentally ill persons continue to remain shelter-less and without any prospects for treatment and rehabilitation. It is the sheer apathy of the state to address the needs of such homeless mentally ill persons in an effective way which has led to failure of forming effective linkages and networks between the concerned departments to deliver justice as it should have been. It is the absence of clear outlining of roles and responsibilities of each department, be it health, home affairs or social welfare, which has absolved them all of any guilt of non-performance. And bearing the brunt of this vicious cycle of lackadaisical approach of the authorities are the destitute mentally ill persons left completely shelter less due to the system not working on its own.
Though the Act envisages constitution of a State Authority for Mental Health Services to be in charge of regulation, development and co-ordination with respect to mental health services under the state government, to supervise psychiatric hospitals and nursing homes and other mental health service agencies and to give advice to the state on matters related to mental health, the same had not even been notified until a couple of years back.
Another pressing concern in the area of mental health facilities is the acute shortage of in-patients capacity in the handful of psychiatric wards across the government hospitals and other licensed nursing homes etc. in the state. The in-patients capacity offering mental health services in the state at the present times are not more than a mere couple of hundreds and this is woefully insufficient to meet the needs of thousands and thousands of mentally ill persons, destitute or otherwise, who require treatment. It was only after Sheila Varse, a long drawn public interest litigation pending before the Gauhati High Court regarding the upkeep of mental health centers, that the central institute of Lokapriya Gopinath Bordoloi Regional Institute of Mental Health in Tezpur was established. The said PIL had also directed for each district in the state to have a mental health center with at least a 100-bed capacity for mental health care system, of which, of course, we are yet to see the light of day. Coupled with this, is the shortage of acute trained manpower, be it qualified psychiatrists, psychiatric social workers, staff nurses or medical officers in the required ratio, which hampers in the delivery of proper care and treatment.
To top it all, the Act is further rendered ineffective by the teeth less penal provision of a paltry thousand rupees for conviction on ground of reception or detention of mentally ill persons in psychiatric hospitals and nursing homes otherwise than in accordance with the provisions of the Act. Moreover, the state has also fallen short on its clear mandate to come up with a comprehensive state mental health policy so far.
The shift in the approach to mental illness brought about by the 1987 Act from the Lunacy Act of yore, though had initially been embraced with positive vigour and enthusiasm, it has somehow fallen by the wayside, with inactions and indifference of authorities negating rights of mentally illness persons. Though a step in the right direction, practice proves that the Act was not a very well thought out statute. That aside, there is an urgent need to educate the masses on the importance of addressing issues of mental illness. Only with increased awareness, will the country be able to fight long held notions of mental illness and stigma faced by persons with mental illness in the society. Furthermore, the focus needs to change from the treatment of the ill to treatment of the illness, where the concept of treatment should be based on the social definition of the illness and not on the long existing medical definition. This is also so clearly reiterated by the inclusion of mental illness in the realm of disabilities under the Persons with Disabilities Act, 1995 thereby underlining the need for assurance of necessary social support.
While the abysmal mental health scenario continues with practically no effective implementation of the laws in place, endeavours are on to bring the present law in conformity with the United Nations Convention on the Rights of Persons with Disabilities, 2007. The Convention, with underlying principles of inherent dignity and non-discrimination, specifically recognizes the right of persons with disabilities to equal recognition before the law with equal right to property, control over own financial affairs and right of equal access to bank loans, mortgages and other forms of financial credit. Correspondingly, the Convention lays obligation on State Parties to provide access to support that persons with disabilities require in exercising legal capacity and to safeguards against abuse in the exercise of legal capacity.
The Mental Health Care Bill of 2013 is indeed a step ahead of the Act of 1987. This new law will replace the 1987 Act once it is passed. While the present law only provides for request to be made for treatment of mentally ill persons without giving a clear right for treatment, the new law in the offing plainly gives a right to access mental health care and treatment from mental health services run or funded by the appropriate government. The new law has not only given an outline of the rights and dignity of mentally ill person to ensure fair treatment without any discrimination, but it has also made significant provisions for restricting such traditional treatments like sterilization, electric shocks and chaining of patients. Responsibility has also been cast upon the government to provide half-way homes for those patients who have recovered but need 24-hour monitoring and rehabilitation, community caring centres and other shelters for mentally-ill people. The new law also envisages a mental health review commission, which will review all admissions in mental health institutions beyond 30 days. The Bill has also introduced for the first time such concepts as ‘informed choice’ and ‘advance directive’ reiterating the rights of mentally ill persons for proper care and treatment.
While we look ahead to the positive new bill, we do have an undefined waiting period before the law is passed and, even then, the Act will only come into force within a period of three months of receiving the Presidential assent. As far as the central and state mental health authorities are concerned, the same shall be effective within a period of nine months from the date on which it receives the assent of the President.
We can only learn from yesterday, live for today, hope for tomorrow. The important thing is not to stop questioning ( Albert Einstein ) Let us hope that the new law in the anvil would be implemented with vigour and determination and would bring into reality the rights as envisaged by the Convention to ensure a life of dignity and equal participation for person with mental illnesses on an equal basis with others in the society.
About the author:
Ms. Amvalika Senapati, a lawyer by profession, is presently engaged in the disability field and heads the Disability Law Unit – North East, a unit of Shishu Sarothi which advocates for the rights of persons with disabilities through legal aid and literacy, awareness creation and advocacy with a rights based approach
Content Credit:
Shishu Sarothi,
Centre for Rehabilitation & Training for Multiple Disability
Off Ramkrishna Mission Road, Birubari, Guwahati – 16
Contact: 9207049810, (0361) 2478912, 2470990
Email: shishu_sarothi@yahoo.com
Website: www.shishusarothi.org