The Mental Health Care Bill, 2013 (“Bill”), which was recently approved by the Union Cabinet, seeks to introduce a new legal regime with regard to persons affected by mental illness in India. Amba Salelkar, who works with the Inclusive Planet Centre for Disability Rights and Policy in Chennai and lives with recurrent psychosocial disabilities, gave us an overview of the Bill and commented on its genesis and the repercussions of its provisions.
Please scroll below to read the edited transcript of Ms. Salelkar’s talk.
Prior legislation and the UNCRPD influence
The Bill seeks to repeal the present Mental Health Act, 1987, which had repealed the Indian Lunacy Act, 1912. In both these statutes, the approach had been that persons with mental illness were to be treated as criminals. There was a focus on institutionalisation and the revocation of rights such as property.
The Bill is influenced by the ratification of the United Nations Convention on Rights of Persons with Disability (“UNCRPD”) by India in 2007 and has seen several drafts hotly debated by mental healthcare professionals, NGOs, and many who have been affected by psychiatry and institutionalisation. Internationally, there has been a shift from the approach of criminalisation to one of treating mental illness as a disability. The Bill however, has not treated mental illness on par with other disabilities, which have largely reached an “empowerment model”.
Scope of the proposed law
Under the Bill, mental illness has been defined as a disorder of mood, thought, perception, orientation, and memory, which causes significant distress to a person or impairs a person’s behaviour, judgment, and ability to recognise reality, or impairs a person’s ability to meet the demands of daily life, and includes mental conditions associated with the abuse of alcohol and drugs but does not include mental retardation. Mental retardation is covered under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and other Multiple Disability Act, 1999.
The Bill widens the definition of “mental illness” and at the same time, protects the rights of persons regarding the manner in which they would like to be treated. Though the politically correct term in the disability sector is “psychosocial disability”, the Bill uses the terms “mental illness” and “mentally ill”.
Mental illness and legal capacity
The Bill makes it very clear that a person does not lack the legal capacity to make decisions merely because that person has mental illness. Legal capacity is independent of having mental illness. Every person, including someone with mental illness, is deemed to have legal capacity to decide upon medical treatment if that person is able to (a) understand the information relevant to mental healthcare or treatment decisions, (b) retain that information, (c) use or weigh that information as part of the process of making the mental health care or treatment decision, and (d) communicate his decision by any means, including talking, using sign language, or any other means. This separates the confusion between a person being diagnosed with a mental illness and a person without the legal capacity to make decisions. Perhaps it also seeks to remove the stigma of persons coming out about their affliction and fearing that they may be subject to various restrictions upon their rights.
The Bill does not place any burden on the person or agency that requires the decision-making. To illustrate, if a person with mental illness wishes to vote, the test used will be whether that person can understand this decision and the information required to make this decision. It does not place any burden on the Election Commission to make this decision-making process more accessible to the person with mental illness. This goes against the concept under the UNCRPD of reasonable accommodation and assisted decision-making, which seeks to empower persons with disability. It is a huge drawback.
All persons, regardless of whether they are currently living with mental illness or not, under the Bill, will have the right to make an “Advance Directive”. The Advance Directive is a kind of “living will” which governs the manner in which they wish to be treated in case they develop mental illness and lose legal capacity. The Advance Directive will only be used in cases where there is no legal capacity to decide upon medical treatment by the patient. By following the procedure under the Bill, which requires a signed document with two witnesses and certification by a doctor that such a person has the legal capacity to make this document and registration with the local Mental Health Board (“Board”), a person can reject methods like electro-convulsive therapy, psycho-surgery, and even institutionalisation. The Advance Directive, however, is not absolute. It does not apply in the case of emergency treatment, and can be set aside by the Board.
A nominated representative can make decisions on behalf of a person with mental illness and lacking legal capacity. This person can be nominated by a person with mental illness or even without, for future contingency in the manner of the Advance Directive, and can also be appointed by the district Board. The Board may also set the appointment aside. The section recognises assisted decision-making but is unclear about what happens when there is a conflict between the decision of the person with mental illness and the representative.
Restrictions on long-term institutionalisation
One of the problems with the earlier Mental Health Act was the inability of persons to be discharged from a mental health institution, if no one was willing to stand surety for them — quite like jail. This could lead to persons being dumped in institutions, often indefinitely, and often by family members. The Bill specifically states that persons should not be institutionalised long-term, simply because they do not have any one to take care of them. This can be achieved by means of half way homes and other things, which the government is obliged to set up.
Rights of the mentally ill
Persons with mental illness are given rights to medical treatment. It is recognised that long-term treatment in institutions should be a last resort and should be used only in exceptional circumstances and that the focus should be on community-based rehabilitation. Alternate forms of treatment, like Ayurveda, homeopathy, and yoga, are also recognised. The rights of those below the poverty line to mental health care are also recognised.
Persons with mental illness are protected from cruel and degrading punishments, like tonsuring of the head and denial of sanitary conditions.
Mental health, under the Bill, will be treated at par with physical illness. This means that emergency services, treatment, and even insurance, will be available for the management of these conditions.
Persons with mental illness and their nominated representatives shall be given all information regarding admission, treatment, and potential side effects if any, of any treatment, in order to achieve informed consent. Unlike physical illness, psychiatrists can withhold information from the patients themselves, in certain circumstances, even when it pertains to their own treatment.
Confidentiality is to be maintained, although unlike physical illness, records may be publicised to prevent “harm” — the very vague term — to other persons.
Once institutionalised, persons with mental illness are guaranteed access to certain visitors and communication, subject to certain conditions. Similarly, they have access to legal aid and a complaint-making mechanism. The absence of an independent monitoring mechanism however, is problematic, especially if efforts are made to prevent these complaints from being heard.
The Bill also sets up a Mental Health Review Commission to be headed by a retired judge and comprising survivors or those afflicted with mental illness, their caregivers, and those with experience in administration. This body is responsible for ensuring the rights of persons under the Bill.
Role of the government
The role of the government and agencies are detailed under the Bill. The government is obliged to create awareness about mental health, mostly in an effort to reduce suicides and to ensure that medical professionals are trained in mental health care issues. The state and central Boards are large bodies with various persons appointed to them but these persons do not include survivors or persons with mental illness, merely their representatives. In that sense, the Bill denies legal capacity for decision-making in practice. The Central Board is more concerned with administration and registration of psychiatric institutions. There is no specific focus on the obligation to monitor physically.
Mental health institutions
Institutionalisation, though frowned upon by the UNCRPD, and even the first part of the Bill, is given a lot of focus. Some minimum standards, which are determined by the central authority, must be met for mental healthcare institutions to be registered in accordance with this Bill. Applications will be made public and objections can be raised. Audits are to be done by the authority that grants the licenses, which affords a possible conflict of interest.
The fine under the Bill for maintaining an unregistered mental health care institution is just Rs. 5000/- and can extend only to Rs. 50,000/-. It would be lucrative therefore, for unregistered institutions to get away by just paying the fine.
Admission to mental health institutions
Persons can be admitted to mental health care institutions voluntarily or involuntarily. All adults can apply for admission if they find it necessary and once certified by a psychiatrist that their institutionalisation is necessary for treatment. “Independent admittees” of this nature have the luxury of informed consent. If however, the certifying psychiatrist deems that the person lacks capacity, the admission will not be taken to be a voluntary one.
A nominated representative can seek the admission of a person with high support needs to an institution. They are called “supported patients” under the Bill. Though institutionalisation is initially limited to a period of ninety days, it can be extended beyond that in certain circumstances to 120 days in the first instance and 180 days thereafter. There is no maximum period given under the Bill. During this period, “leave applications” may be entertained under certain circumstances.
Minors can also be institutionalised on application by their nominated representatives. This is quite controversial even though minors are afforded a lot of protection under the Bill with regard to issues such as segregation.
Independent admittees however, may not be able to walk away from an institution when they feel like it or when they feel that their treatment has been successful. Those administering the institution can prevent them from doing so. They may be reassessed and if they show signs of inability to take care of themselves, or violence to self or to others, they can be re-admitted as involuntary patients.
Any medical treatment can be given by any registered medical practitioner to a person with mental illness. This is one of the most controversial sections of the Bill. This is only in cases of emergency however, but it is not clear who determines the emergency. Therefore, there is scope for misuse. The period extends to seventy-two hours and up to seven days in case of calamities or disasters.
Electro-convulsive therapy, an extremely controversial treatment popularly known as “shock treatment”, is permitted under the Bill but only when anaesthesia and muscle relaxants have been used. It cannot be used for minors unless it is a life-threatening situation where the consent of the guardian and the permission of the Board are granted.
Sterilisation as a means of treating mental illness is barred but not in general. For example, in many institutions, women are mass-sterilised on the pretext of promoting hygiene since they are unable to handle menstruation.
Psycho-surgery, which is also controversial, has also been banned, except in cases where informed consent of the person undergoing the surgery — not even the nominated representative — and the permission of the Board, have been taken.
Chaining is barred but other forms of physical restraint and seclusion are permitted even on the sole opinion of the psychiatrist. Anything short of a complete ban on solitary confinement is in violation of the United Nations General Assembly resolution on Solitary Confinement. Also, while there is a ban on physical restraint, chemical restraint — the use of chemicals or medication to restrain patients — has not been spoken about.
Clinical testing on the mentally ill
Persons with mental illness, who are institutionalised, can be used for clinical testing and trials. Permission for this can be given by nominated representatives or even the state authority in cases where the person cannot give consent but does not resist trials. The potential outcome or harm, which can be caused by the use of clinical testing and trials, has not been discussed in the Bill.
Extensions in some areas of India
All minimum periods under the Bill, such as for detention and emergency treatments, are extended in several areas such as the states in the north-east of India, the islands off the Indian coast such as Lakshadweep and the Andaman and Nicobar Islands, Uttarakhand, Himachal Pradesh, and Jammu and Kashmir. The reasoning is the inaccessible terrain and transport difficulties. The north-east, further, may have just one Board for the entire region.
The Bill does not deviate from the old procedure of reception orders, whereby the police produce persons suspected of being mentally ill before a Magistrate for orders of detention. This goes back to the criminalisation approach nder previous laws.
Insanity as a ground for divorce
Insanity is a common ground for divorce under family law. The Bill states that evidence of past or present institutionalisation or treatment for mental illness will not by itself be a ground for divorce. It also provides that any evidence of mental illness would have to be vetted by the District Board. No civil court has the power to determine unsoundness of mind any more.
Decriminalisation of suicide
The most popular provision in this Bill in the media relates to the decriminalisation of suicide. That is a bit of a misnomer because all the Bill really does is that every person who attempts suicide is deemed to be mentally ill. While that may protect someone from prosecution, it also means that the provisions of the Bill kick in and may lead to undesirable side effects. Not all suicides are related to mental illness and not all persons who are mentally ill choose to commit suicide.
An improvement but a lot of scope for misuse
The Bill seems to be an improvement over the past but there also seems to be a lot of scope for misuse. It also does not entirely conform to the UNCRPD. The UNCRPD does not distinguish between disabilities but mental illness has a special law here.
For any questions, please email Amba Salelkar at firstname.lastname@example.org.
(Aju John is part of the faculty on myLaw.net)