Critical Analysis of Mental Health Laws in India

Abstract

The need for legislation which secures the rights of people with mental illness is a necessity for a nation like India where there is extreme apathy towards the mentally disabled. In a report published by the World health Organisation, it was reflected that close to about 50 million people suffered from depression in India, making it dismally apparent how mental health is perceived in our conservative country.

The government in an effort to help the mentally ill and provide greater protection to their rights enforced the ordinately discussed Mental Healthcare Bill into an enactment in 2017. The act also provides for scope of different treatment methods that must be made available to the citizens of the country to further prevent the mistreatment and neglect.

Various mental health experts and non-governmental organizations initiated public debates and have raised various issues. The object of this research is to find out and outline these issues or shortcomings in this Bill and how the prevailing situation of neglect pertaining to mental health can be addressed.

Keywords: Mental Capacity, Mental Disability Mental health, Mental Healthcare Act, Mental Health Laws, Mental Treatment

Introduction

The National Mental Health Survey (NMHS) and studies based on the Global Burden of Disease 2013 data, published as part of the China-India Lancet series, sought to analyse the mental, physical and neurological burden of substance abuse. The NMHS covered a representative population of 39,532 individuals from various regions in India and estimated the prevalence of mental, neurological, and substance use disorders. It aimed at highlighting the gaps in treatment patterns along with healthcare systems and services.

In a similar state-level study in India by The Lancet Psychiatry, the prevalence and disease burden due to mental disorders for every state of India from 1990 to 2017 was brought to light. According to this study, one in every seven Indians was affected by mental disorders (197·3 million people, 95% uncertainty interval [UI] 178·4–216·4), the proportional contribution of mental disorders to the total disease burden in India almost doubled from 1990 to 2017 (increasing from 2·5%, 95% UI 2·0–3·1, in 1990 to 4·7%, 3·7–5·6, in 2017), and marked regional variations in the prevalence of disorders were observed.[1]Anyhow, some disorders like dementia and epilepsy, along with substance use disorders were excluded and their burden associated with suicide was not studied.

The number described in the study is thus probably an underestimate of the actual situation prevalent in India. The study has found sex-specific differences in the distribution of mental disorders and association of older age with increased prevalence of depression, which is a unique finding compared with previous literature from high-income countries. It is also a matter of grave concern because the population of India is ageing rapidly. It is being widely discussed how an evidence-based mental health service system is the only method that holds any potential at all to address the huge concern over mental health in India.

Health encompasses the composite union of physical, spiritual, mental, and social dimensions according to the World Health Organization (WHO), which recognizes that “mental health and well-being are fundamental to quality of life, enabling people to experience life as meaningful, become creative and active citizens.” Mental health is significantly different from general health as in certain circumstances mentally ill people may not be in a position to make decisions on their own.[2] (Kleinman, 2003)

The recently enacted Mental Healthcare Act, 2017 was enforced pragmatically to comply with the United Nations Convention on the Rights of Persons with Disabilities but to a rather sad execution. The Act optimistically aims to grant a legally enforceable right to mental health to an overwhelming number of 1.3 billion people, one sixth of the planet’s population.

However, key challenges relate to resourcing both mental health services and the new structures proposed in the legislation, the appropriateness of apparently increasingly legalized approaches to care (especially the implications of potentially lengthy judicial proceedings), and possible paradoxical effects resulting in barriers to care.
There is ongoing controversy about specific measures (e.g., the ban on electro-convulsive therapy without muscle relaxants and anaesthesia), reflecting a need for continued engagement with stakeholders including patients, families, the Indian Psychiatric Society and non-governmental organizations. Despite these challenges, the new legislation offers substantial potential benefits not only to India but, by example, to other countries that seek to align their laws with the United Nations’ Convention on the Rights of Persons with Disabilities and improve the position of the mentally ill.

It is becoming increasingly concerning as the Indian population keeps increasing at a high rate while simultaneously ageing as well; the existing infrastructure is overwhelmingly insufficient. Moreover, in light of the prevalent health burden of mental illness in our country, in addition to the social stigma attached, it is very important for the government and various stakeholders to address these issues. From another perspective, it also imperative to take bigger steps and measures in accordance with India’s international obligations toward the mentally ill as per the Convention on Rights of Persons with Disability (2007) and its optimal protocol.[3] Hence, a patient-centric bill that safeguards available, affordable, and accessible mental healthcare services was a long due in India.[4]

An Overview of the Act

The new Mental Healthcare Act was passed by the parliament in March 2017 defining “mental illness” as a disorder comprising of a significant impairment in judgment or ability to meet the ordinary demands of life due to disorderly thinking, mood, perception, orientation, and other mental issues in relation with the abuse of alcohol and drugs.[5]
The Act succeeded the Mental Health Act of 1987 which was overwhelmingly limited in its scope and was largely criticised for the constraint in enforcing the rights of the mentally ill which ultimately resulted in isolation of mental health patients throughout the country.[6] This act has overturned 309 Indian Penal Code which criminalizes attempted suicide by mentally ill person. Further, this new legislation is sought out to protect the rights of the mentally ill and empowering them through easy access to treatment and by an advance directive pertaining to how he/she wants to be treated for his/her illness. [7] The various provisions under the Mental Healthcare Bill are as follows: [8]

Rights of persons with mental illness

The act guarantees every citizen a right to access convenient, quality, affordable and accessible mental healthcare services. The Act also aims to protect the mentally ill from inhuman treatment, and make free legal services along with the right to complain in the event of deficiencies in provisions available to them.

The Act also seeks to provide the mentally ill empowerment through the right to make an advance directive toward the way she/he wants to be treated for the requisite illness and who her/his nominated representative shall be; but at the instance of a registered medical practitioner only.

The Act mandates the government to establish institutions Central Mental Health Authority at national level and State Mental Health Authority in every state. It requires all the mental health practitioners and institutes throughout the country to be registered with this authority. These institutions are mandated to:

register, supervise, and create and maintain record of all mental health establishments;

develop quality and service provision norms for such establishments;

maintain a register of mental health professionals;

train law enforcement officials and mental health professionals on the provisions of the act;

receive complaints about deficiencies in provision of services; and

advise the government on matters relating to mental health.

All the procedures and processes for admission, treatment, and subsequent discharge of the mentally ill has also been outlined and listed under the Act.

Decriminalizing suicide and prohibiting electroconvulsive therapy

The Act has abolished the long-standing legal provision for criminalising attempt to suicide by the mentally ill. Rather, it has created an imposition on the government to ensure rehabilitation of such persons in order to ensure non-recurrence. It is also laid down that the mentally ill must not be made subject to electroconvulsive therapy (ECT) therapy in the absence of muscle relaxants and anaesthesia in addition to the therapy procedure being made completely restricted to be performed on minors.

Responsibility of certain other agencies

Going into further detail, the Act lays down provision to mandate the police to create a reporting duty to the Magistrate if there is probable cause to believe that a mentally ill person is being mistreated. In addition to this it also mandates the officer in the charge of a police station to take under protection any wandering person who must be then examined by a medical officer. Further, it is decided through the examination whether that person needs to be treated for their mental illness or to be taken back to their home or a homeless shelter.

Critical Analysis

The Mental Healthcare Act 2017 aims to provide mental healthcare services for persons with mental illness. The Act has been aimed at providing the mentally ill with a right to live life with dignity and not be mistreated, discriminated against or harassed in any kind. There are many positive/constructive aspects to this bill, but it is not without its shortcomings, it is not failproof in the Indian context. The legislation has provided legal enforceability to the right to mental health services the mere act of which is extremely laudable. Mandate for the establishment of provisions of mental health services in every district of the country has also been laid down in this ambitious legislation. But it is also pertinent to note here that given the insufficient infrastructure, the financial aspect to the execution of all these provisions is a matter of concern. The increasing spending is becoming a concern with the economic slowdown and recession.

Taking ideas and concepts from the West, the parliament has taken up the provision for “advance directive” which provides mental health patients empowerment to choose the methods of their treatment. But as opposed to developed countries of the West, the already available mental health resources and awareness about mental illness is of much greater lacking in our ever-developing country. Despite the legislation being ambitious and forward-looking, the actual means and the end to the objectives laid down in the Act remains uncertain and has been said to lack confidence from the public. In addition to this, with the directive to provide greater decision-making power to the patient, who might lack the ability to make decisions in their best interest due certain mental disorders, the time of admission and treatment of the mentally ill will greatly lengthen. It is so because in such scenarios, treating physicians is the best to make decisions because patients or their nominated representatives have limited knowledge on mental health and mental illness. [9]

The act also assures free quality treatment for homeless persons or for those belonging to below poverty line (BPL), even if they do not possess a BPL card. In our country, where mental illness is considered equal to depression, the obvious financial burden on the government will be too high. It was among the lowest in the world and the public health expenditure has consistently declined since 2013–2014.[10] India in the past has spent 0.06% of its health budget on mental health care, which is significantly less than what Bangladesh spends (0.44%). Most developed nations spend above 4% of their budgets on mental health research, infrastructure, frameworks, and workforce, according to 2011 WHO report.[11]

Even though the decriminalisation of attempt to suicide under the new Act is laudable, it cannot be denied that it was long overdue and that there is a great probability that this provision might be misused. For instance, in dowry related cases involving burning/attempted murder, the facts can easily be altered to show it as attempted suicide and consequently, the situation is most likely to be neglected.

The new Act fails to address the factors of culture, lacking access to healthcare, the unreasonable stigma and the advertent discrimination in India. The mental healthcare bill does not offer much on prevention and early intervention but rather aims to reduce the consequences of an already existing mental health issues. Looking to address the mental health burden in idea in the ideal manner, these facts can be inferred as the limitations to the Act.

Conclusion

Mental Healthcare Act 2017 has been anticipated to change the fundamental approach on mental health issues. Including a sensible patient-centric health care, instead of a criminal-centric one, in India, the second most populous country and one of the fastest economies in the world. The guidelines need to be reviewed on aspects such as primary prevention, reintegration, and rehabilitation because without such strengthening, its implementation would be incomplete, and the issue of former mental health patients will continue to exist.
It is anyhow, a great step in addressing the mental health issues in India.

Citations and References

1.“Unburden Mental Health in India”, Rahul Shidhaye, December 20, 2019
https://www.thelancet.com/journals/lanpsy/article/PIIS2215-0366(19)30524-3/fulltext

2. Patel V, Kleinman A. Poverty and common mental disorders in developing countries. Bull World Health Organ. 2003; 81:609–15

3. World Health Organization. Disability and Health, Fact Sheet. Geneva: World Health Organization; 2016

4. Evaluation of District Mental Health Programme – Final Report Ministry of Health and Family Welfare Government of India. New Delhi: Indian Council of Marketing Research; 2009

5. What is Mental Healthcare Bill? The Indian Express. 2017. Mar 28, available from:
http://www.indianexpress.com/article/what.is/mental.healthcare.bill.passed.parliament.lok.sabha

6. Ginneken N, Jain S, Patel V, Berridge V. The development of mental health services within primary care in India: Learning from oral history. Int J Ment Health Syst. 2014

7. Mental Healthcare Bill Decriminalizes Suicide Attempt Passed by Parliament. Hindustan Times. 2017. Mar 27, available from:

http://www.hindustantimes.com/india-news/mental-healthcare-bill-that-decriminalises-suicide attempt-passed-b-parliament/story-iL3DXiatxP7BFhS2t4zGCM.html

8. New Mental Health Bill Provisions-and Some Challenges in their Implementation. The Indian Express. 2016 available from: http://www.indianexpress.com/article/explained/new-mental-health-bill-provisions-rajya-sabha-2964545/

9. Mental Healthcare Bill: Despite the Positive Reforms, a Lot More Needs to be Done for the Mentally Ill. First Post. 2017. Apr 08, available from: http://www.firstpost.com/india/mental-healthcare-bill-despite-the-positive-reform-a-lot-more-needs-to-be-done-for-the-mentally-ill-3373156.html

10. Center State Government Spends 1.3% of GDP on Health Care in 2015-2016. Times of India. 2016. Aug 2, available from:

http://www.timesofindiaindiatimes.com/india/Centre-state-governments-spent-1-3-of-GDP-on-healthcare-in-2015-16/articleshow/53509406.cms

11.World Health Organization. Spending on Health: A Global Over View. Geneva: World Health Organization; 2012 available from: http://www.who.int/mediacentre/factsheets/fs319/en/

About the author –
The said Critical Analysis has been written by Vidhit Verma, 2nd Year B.B.A. LL.B (Hons.) student at School of Law, Christ (Deemed to be University), Bengaluru

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