Mental Health Law Reform: Challenges Ahead

by Aditya Ayachit

mentalMental disorders are complex physiological infirmities of the nervous system. While they continue be the tough riddles in the field of medical research, they pose even more daunting challenges in the socio-economic and legal contexts. In recent times the mental health laws across the world have undergone a significant change. A policy of segregation has been abandoned in favor of a policy of integration and protection. The prima facie reason for this shift appears to be the increasing influence of the Human Rights discourse over laws and policy making. Thus, a new mental healthcare paradigm has emerged which advocates that the mentally ill are not objects of charity or social protection but are subjects with rights and States and the International bodies are under an obligation to provide them with the means of enforcing these rights.The international consensus about the new paradigm was strongly conveyed by the near unanimous acceptance of the United Nations Convention on the Rights of Persons with Disabilities 2006(commonly known as the Disability Convention’) and Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (or simply the MI Principles).

India is a signatory to the Disability Convention. However, it has failed to bring its laws and institutions in tune with the standards set by the convention. To fulfill its commitments under the Disability Convention, 2006 and MI principles of 1991, India needs a major overhaul of its disability laws and policies dealing with mental health care. The Ministry of Health and Family Welfare (MHFW) recently came out with the Mental Health Care Bill 2012 responding to this formidable legislative challenge. The reactions to this bill were mixed with some groups lauding provisions decriminalizing attempted suicide by a mentally ill person, ensuring the availability of insurance for treatment of mental illness at par with physical illness and prohibition of certain medical procedures like the Electro Convulsive Therapy (in case of minors), Sterilization and Chaining, while others opposing the bill on the ground that its provisions curtailed patient autonomy and liberalized the laws for involuntary admissions to mental institutions. This post does not aim to comprehensively review the bill. Rather, it attempts to map the issues that the Bill appears to address and contrasts the status quo with the regime the bill seeks to establish.

Few Mental Health Practitioners and Institutions in India

A recent statistic from the MHFW indicates that about 7 percent of the Indian Population suffers from some form of mental disorder. Another startling statistic is that 90 percent of these disorders remain untreated. The leading cause behind this paradox is the acute shortage of mental health institutions and qualified mental health practitioners in India. Our large and populous country of 1.2 billion people has about 40 mental health institutions, 3,500 psychiatrists, 500 clinical psychologists, 300 psychiatric social workers and 1,000 psychiatric nurses to treat its mentally ill citizens. In addition to this, most of the institutions and practitioners are located in urban areas. This creates a serious problem in a country like India where over 70 percent of the population lives in rural areas.

mAccording to the National Family Health Survey, the private medical sector remains the primary source of health care for the majority of households in both urban areas (70 percent) and rural areas (63 percent) of India. While private players contribute immensely to the health care industry, it remains the case that they generally shy away from investing in mental health institutions.  This is mainly due to low policy priority given to mental health sector, strict licensing requirements under the Mental Health Act 1987 and the lack of any special incentive for investing in this sector. Today in India, government health policies mainly focus on communicable diseases like HIV/AIDS, malaria and tuberculosis or on child malnutrition or on reproductive healthcare. Mental healthcare rarely finds mention in the policy. This underscores the importance of this sector and makes the investment environment in such services unattractive and discouraging.

Another factor that reduces the likelihood of private investment in mental health care is the strict licensing regime set up by the Mental Health Act 1987; the legislation that currently governs the mental health sector. This Act lays down a complicated procedure of issuing a non-transferable and non-heritable license to a person who wishes to open a mental healthcare institution. The act further discriminates between government established institutions and privately maintained institutions by exempting the government institutions from the statutory requirement of obtaining a license. If private participation is to be encouraged, this system of licensing needs to be rationalized.The Mental Health Care Bill 2012 goes a long way in this regard. The bill replaces the stringent licensing system with a simpler system of registration. The registration unlike a license is not linked to a particular person and is freely transferable for instance on the sale of the institution. It also allows the institution an appeal to the High Court if the grant of registration or renewal of registration or cancellation of registration is refused by the appropriate authority. While the bill seeks to relax the laws governing the setting up of mental health institutions it must ensure via its provisions that this does not in any way affect the quality of health care provided in these institutions. The issue of quality of health care will be taken up further in this post.

mental_health_disorders_other_issues_that_fuel_substance_abuseTo ensure that rural areas also benefit from private investment, the incentives given to invest in rural areas could be greater than those given for investment in urban areas. Another way in which the presence of mental health facilities in rural areas can be increased is by proper implementation of the District Mental Health Program which was initiated by the Government of India in 1996. Currently, the program is under implementation in only 123 of the total 657 districts of the country. A proper implementation of the program would go a long way towards ensuring that rural areas have adequate mental care facilities in near vicinity.

Poor Quality of Mental Health Institutions

The second core issue in this area is the unacceptable quality of medical care provided to the mentally ill in the existing mental health institutions in our country. It would not be an overstatement to say that the patients who receive mental health treatment in India are treated in a most inappropriate and inhuman way in our mental institutions. The institutions usually resemble prisons where the mentally ill are debased and deprived of their dignity. They are made to live in unacceptable living conditions and are shackled down in chains for long hours. They are fed unhygienic prepared unwholesome meals, are subjected to painful medical procedures without their consent, are regularly beaten and in some cases are also subjected to sexual assault. Sometimes they are sterilized on the basis of a medical myth that sterilization cures mental disability. In essence, the patients never receive adequate treatment. Rather the treatment aggravates their condition and makes them sick and infirm for life completely eliminating any hope of rehabilitation or a chance of leading a normal life (see here and here for more). Any mental health care legislation must develop a structured mechanism for ensuring that our mental health institutions do not fall short of the internationally accepted standards of treatment and care. The Mental Health Act 1987 and the State Mental Health Rules 1990 provide detailed safeguards to ensure that the health institutions meet the statutory standard. While building upon this legacy, any new legislation must incorporate the minimum standards laid down in the Disability Convention of 2006 and the MI Principles of 1991. Further, steps must be taken to bring government maintained institutions under the purview of these regulatory procedures. It may be noted here that the Mental Health Act 1987 is quite inconsistent with the principles and safeguards laid down in the aforesaid international instruments and as government hospitals are deemed to be licensed institutions under the act, it is unclear whether the procedures laid down for revocation of license in cases of non-compliance are applicable against  government facilities.

Consent of the Mentally Ill Patients

depression-4Another aspect that would have to be substantially addressed in mental health legislations is with respect to consent of the patient to receive treatment. It is a cardinal principle of medical science that no one may be subjected to any medical procedure without his/her express consent and such procedure may not continue after the person has withdrawn his consent. Mental Healthcare raises complex questions regarding consent. The Mental Health Care Bill 2012 provides innovative solutions to the problem of consent. The bill allows persons to register an ‘advance directive’ with the appropriate mental health board. An ‘advance directive’ is a legal document containing details of the kind of treatment a person wishes to receive or does not wish to receive in the event of mental illness. It also contains the details of the person’s nominated representatives who are entitled to give consent on the person’s behalf when he is not in a position to give consent. The bill provides procedures for amendment or cancellation of advanced directives and also gives powers to the Central or State mental health board to review advance directives and to suspend or amend them in some special cases (for instance when the advance directive has been made under force, coercion, undue influence etc. or when it was made without proper knowledge). While many groups are touting advance directive as a foolproof solution to the problem of consent, it remains to be seen how this statutory tool would operate in real life. This provision has been opposed on the grounds that it would be susceptible to gross misuse especially in rural areas where the patients are illiterate and are not aware about their rights.

Rehabilitation and Social Awareness

Another issue that the bill attempts to address is rehabilitation and social awareness. These concepts are inter-related. The extent to which a patient can be restored back in his life (family, community and occupation) depends on the social understanding of mental illness and the attitude of the society towards the mentally ill. A society which rejects the mentally ill or which despises them cannot possibly assist in rehabilitation of the patient. As societal attitudes are shaped to a large extent by education, an awareness program which aims towards creating social understanding about mental illness can directly assist in making the society more suitable for rehabilitation of the patient. Mental Health Act 1987 does not contain any provisions regarding social education or patient rehabilitation. The Mental Health Care Bill 2012 addresses this lacunae and creates an obligation on the Central and State governments to spread awareness about mental illness and its appropriate treatments. The Bill lays emphasis on lowering the stigma associated with mental illness so that a patient’s rehabilitation in the society may be facilitated. It may be noted here that a proper implementation of the aforesaid provisions may go a long way in debunking the long standing myths about mental illness (like mental illness is caused due to demonic possession or that mental illness is incurable) and make the society a better place for the mentally ill.

socialHuman well-being in a country cannot be ensured unless its citizens are physically and mentally fit. Mental health is prone to neglect because it is difficult to detect, difficult to cure and also difficult to explain to the people. The Mental Health Care Bill 2012 appears to be a commendable effort towards addressing the long standing problems encountered by patients and practitioners alike in the sector of mental healthcare and restoring the long lost dignity of the mentally ill.

Image Courtesy: here, here, here, here and here

(Aditya Ayachit is an Assistant Editor with the Journal of Indian Law and Society)

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7 Responses to Mental Health Law Reform: Challenges Ahead

  1. Pingback: Mental Health Law Reform: Challenges Ahead « The Dispatch Blog

  2. Pingback: Mental Health Law Reform: Challenges Ahead | THE DISPATCH…On Mental Health

  3. captainjohann says:

    “Our large and populous country of 1.2 billion people has about 40 mental health institutions, 3,500 psychiatrists, 500 clinical psychologists, 300 psychiatric social workers and 1,000 psychiatric nurses to treat its mentally ill citizens. In addition to this, most of the institutions and practitioners are located in urban areas.” This is the crux of the problem.There are more Psychiatric nurses and psychiatric social workers in Sri Lanka than in India!!!Why? Because almost all the Psychiatrists who pass out of institutions like NIMHANS go to Australia, Canada or UK the Psychiatric social workers work as HR professionals in private firms and that they just do not get the pay packet necessary for continuing in the profession for which they studies.
    The most important lacunae is like the Lawyers do not understand the views of patients and carers who are the 7% of Indian population. You will find all the lawyers and judges attending seminar conducted by Mental health professionals which in any case is funded by DRUG MNCs and do not care to take the views of ordinary carers who do not have an organisation or ttake views of same professional carers who are funded by Drug MNCs. and occupy positions permanently in the health sector.
    “”The extent to which a patient can be restored back in his life (family, community and occupation) depends on the social understanding of mental illness and the attitude of the society towards the mentally ill. A society which rejects the mentally ill or which despises them cannot possibly assist in rehabilitation of the patient.”” Who gave you this LIE? With whatever best trreatment, medicines, caring, social awareness as in nordic countries or even in advanced western countries, the plight of Mentallly ill who do not get cure with best possible treatment and care stands at constant 30% I repeat 30%..What about Rehabiliatation council act 1992? Why the Rehabilitation council does NOT run a course and rehabiliation centre for disabled due to Mental illness unlike theother 6 disabilites of PWDEA act 1995 and also the national trust act 1998?Why ?Why?the Bureacracy of Union Health Ministry and also the India Psychiatric society are the main culprits in this case. One can go on and on.

    • @ captainjohann:

      1) “The extent to which a patient can be restored back in his life (family, community and occupation) depends on the social understanding of mental illness and the attitude of the society towards the mentally ill. A society which rejects the mentally ill or which despises them cannot possibly assist in rehabilitation of the patient.””
      “Who gave you this LIE?

      Response: The so called LIE (that the extent of recovery and rehabilitation is depends on the social attitude towards mental illness) has been acknowledged by the World Health Organization in the World Health report 2001. See here
      (http://www.who.int/entity/whr/2001/en/whr01_ch3_en.pdf).

      “…the plight of Mentally ill who do not get cure with best possible treatment and care stands at constant 30% I repeat 30%”.

      If I understand it correctly you are saying that the rate of cure of mental disorders is 30% in the western countries despite the better social awareness and superior mental healthcare facilities available in such countries. (If you are saying otherwise, that 70 % of the people from western countries get cured, it just strengthens my point that social awareness and attitude towards mental illness increases the chances of recovery)

      To this I would respond that the very idea of a complete and permanent CURE to mental illness has been a source of controversy among psychologists and psychiatrists across the world and many eminent practitioners in this field have acknowledged that a complete full proof CURE may not be possible. You would be hard pressed to find a doctor who would claim to provide a complete cure to mental illness (unless of course the doctor is a quack). Further the rate of cure varies between different types of mental disorders. Thus making a sweeping statement that the rate of cure of mental illness stands at X % in a certain country is inappropriate and requires further qualification and analysis. Perhaps the statistic quoted by you describes the rate of cure of mental infirmity that is not easily curable. 30 % in such cases would still be a very high rate of cure.

      For more on this see here (http://psychcentral.com/blog/archives/2009/05/22/how-do-you-cure-mental-illness/).

      And since I could not find the statistic quoted by you anywhere; I would request you to cite the source for everyone’s benefit.

      3) In a substantial part of your comment you systematically blame everyone, from lawyers to judges to the Indian Psychiatric association to the Bureaucracy, for the plight of the mentally ill in India. Such ‘blame games’ are an unfortunate feature of the social discourse in India seen most prominently in our news channels. And while they do generate the much needed TRPs, they serve no useful purpose. Shifting blame on someone else does not resolve any social problem. And yes, one can go ON and ON blaming everyone under the sun.

      4) As a response to your comment about brain drain in medical profession, I would say that brain drain may be one cause but not the leading cause of shortage of medical practitioners in India. The problem is much wider and is caused due to the interplay of a variety of factors like lack of the required number of medical schools, the comparative unpopularity of medicine as a profession, the inadequate pay packages, lack of medical infrastructure etc. You are quite right when you say that the policymakers need to do more to make the profession attractive to prospective doctors but a high pay package is not the only solution to this problem.

  4. Pingback: #iNDIA- Mental Health Law Reform: Challenges Ahead « kracktivist

  5. Date: Wed, 26 Dec 2012 17:47:22 +0530

    Dear Aditya

    I read your write up with lot of interest and appreciation. As a care giver, activist and MH Policy group member besides other assignments in GOI and KA Govt, I am deeply concerned about one principal issue. Does the PDA 2012 draft by MSJE contradict the health rights of MHC Bill 2012?

    Further, are there any other incompatibilities between the two Bills that works against the needs and rights of person with MI or PMIs?

    It will be nice of you to create time and examine the two bills to guide us parents and family members.

    PDA draft is available here fyi: http://socialjustice.nic.in/pdf/draftpwd12.pdf

    best regards

    nirmala

    • @ Nirmala Srinivasan

      The Mental Health Care Bill (MHCB) and the Rights of Persons with Disability Bill 2012 (RPWDB) deal with question of legal capacity of a person with disability (PWD) specifically the legal capacity to make decisions about treatment and care differently. While the RPWD gives greater importance to the personal autonomy of the PWD with regard to his/her legal capacity to make decisions pertaining to various aspects of life , the MHCB adopts a narrow, restrictive and paternalistic approach that effectively denies equal legal capacity to the mentally disabled. The conflict between these two bills arises on this point.

      Clause 7 of the RPWDB recognises the absolute legal capacity of persons with disabilities. The recognition conferred under this clause is wide (applicable to all aspects of life) and absolute (under no circumstances is the legal capacity of a person with disability to be denied by reason of his/her accessing to any level or extent support to exercise legal capacity). This capacity includes the capacity to make decisions regarding the medical treatment to be given to such a person to cure or control his physical or mental infirmity. Further more Clause 7(2) states that any express or implied disqualification on the grounds of disability prescribed in any legislation, rule, notification, order, bye-law, regulation, custom or practice which has the effect of depriving any person with disability of legal capacity shall not be legally enforceable from the date of enforcement of this Act.

      The MHCB 2012 fails to grant such a wide and absolute legal discretion to persons with disabilities. Clause 4 of the bill declares that every person including a person with mental illness shall be deemed to have a capacity to make decisions about his medical treatment and care if he can understand, retain and analyse information pertaining to the treatment and communicate his decision to the concerned medical personnel. Thus it categorically denies the existence of such capacity in a person who does not meet the above requirements.

      Once a person’s incapacity is established, the right to make decisions pertaining to medical treatment and care slides into the hands of the person’s ‘nominated’ representative and the Mental Health Review Board. The word ‘nominated’ can be called a misnomer. Clause 14 (4) of the bill gives wide ranging powers to the Mental Health Review Board to appoint ‘nominated’ representatives when such a mentally disabled person has not nominated such representatives under clause 14 of the bill. Also, the kind of guardianship envisaged by the MHCB is substantially different from the limited guardianship envisaged by the RPWDB . While the latter establishes a system in which the guardian and the PWD take a decision jointly with the guardian paying due regard to the legal capacity of the PWD; the system of nominated representative envisaged by the former grants substantial personal discretion to the guardian. The guardian under the latter is a more of an accessory or a support through which the PWD exercises his/her legal capacity while nominated representative in the former is where the the legal capacity of the PWD is manifested. This is further evident when one considers the role of the nominated representative in the provisions related to advance directive and those related to admission treatment and discharge of a mentally disabled person under Chapters III and XII respectively of the MHCB. These distinction creates substantial conflict between the two proposed legislations.

      RPWDB is a general legislation applicable to a large number of physical and intellectual disabilities. As a legislation aimed specifically to tackle the legal challenges associated with mental disability, the MHCB does not seem to be very a satisfactory policy response and is on many counts contrary to the Disability Convention and the MI Principles. The highly institutional approach adopted by this legislation coupled with the superficial and unsubstantial recognition of the claims of the mentally infirm, makes it an improper approach towards dispensing India’s international commitments.

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