False incarceration of persons accused of suffering from mental illness has been a long-standing issue.
This indiscriminate institutionalisation was brought up by Human Rights Watch in their report on how women were being put into mental health institutions by their families and spouses. Similarly, in the case of Uma Manickam vs The Inspector of Police And Ors., the Madras High Court provided relief in a Habeas Corpus petition filed by the neighbour of a person who was falsely put in a mental health institution by his relatives over property. The person’s neighbour grew suspicious of his absence and approached the court. Sadly, not everyone has diligent and caring neighbours.
On 22 February, 2017 the Supreme Court gave the Centre eight weeks to frame a policy on rehabilitation of inmates in mental asylums who have made a full recovery. The apex court said it was wrong and inhuman to make such individuals live with those still suffering from mental illness. This was in furtherance to a public interest litigation filed in 2016 to seek release of 300 persons from various mental hospitals in Uttar Pradesh, alleging they were languishing despite being cured of their ailments; most of them belonging to poorer sections of society.
However, much has changed since that order as the much awaited Mental Health Care Act, 2017 came into force on 7 April, 2017 almost three years after first being introduced in the Rajya Sabha. This law marks a sharp change towards the classification and treatment of mental illness and is an attempt to harmonise domestic law with the Convention on Rights of Persons with Disabilities, of which India is a ratifying party.
The law features an entirely new approach to mental illness: Section 2 (r) defines the term “mental illness” as a substantial disorder of thinking, which grossly impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life and includes mental conditions associated with the abuse of alcohol and drugs.
This is in sharp contrast to the previous law which simply sought to define a “mentally ill person” as a person who is in need of treatment by reason of any mental disorder. The new law shows an altered understanding. It doesn't look at mental illness in a linear point of view of a disease which requires treatment but as a condition which manifests as a person interacts with family and society.
The new Act specifically deals with identifying mental illness and the legal capacity of persons with mental illness to make decisions regarding treatment.
Section 3 (1) talks about determining mental illness in accordance with national or international standards as notified by the central government.
Section 3(2) prohibits any person or authority from classifying any person as a person with mental illness for any reason beyond the scope of the Act and effectively provides them protection from discrimination. The Act provides specific protection to persons from being persecuted for membership to any social group.
Section 3(3)(a) provides protection to persons for membership of a cultural, racial or religious group.
Section 3(3)(b) which provides protection for non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. This can be seen to protect even sexual minorities which should be seen in the backdrop of both the Nalsa Judgment which provided both recognition and protection to transgenders as well as the pending curative petition challenging the Section 377, and the International Covenant on Civil and Political Rights.
For persons afraid of ill treatment or false admission by family members in case of occurrence of mental illness or otherwise, there is a specific provision for advanced directives under Section 5 which allows persons to give written directions. These directions are to take effect in case they cease to have capacity to make decisions regarding their own treatment and shall remain effective until such person regains capacity to make mental health care or treatment decisions, concerning
(a) the way the person wishes to be cared for and treated for a mental illness
(b) the way the person wishes not to be cared for and treated for a mental illness
(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14 of the new Act.
The nominated representative under Section 14 is the person meant to effectuate the advance directives almost like a executor of a will. A nominated representative is to look after the welfare of a person with disability and further to control his admission and treatment. If such a person is not appointed then persons who will be deemed to be nominated representatives are also provided under Section 14.
These provisions will ostensibly be useful for persons who believe their family will try to exploit their mental illness and can also be useful for people diagnosed with or with high likelihood of developing a degenerative mental illness. These provisions are considerably liberal considering that the draft bill on Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) proposed by the Ministry of Health and Family Welfare in Section 11 mandates that the any advance medical directive shall be void.
The Act also makes special provision for protection of the rights of persons with mental illness; Section 18 makes access to government run mental healthcare a right. It also seeks to promote community living as opposed to institutionalisation under Section 19 and right to dignity and equal treatment under Sections 20 and 21.
There is a marked change in the admission process for non-voluntary treatment. Sections 89 and 90 both mandate that the medical officer or mental health professional in-charge of the mental health establishment where any non voluntary patient is being admitted, shall mandatorily report the concerned Board
(a) within three days the admissions of a woman or a minor
(b) within seven days the admission of any person not being a woman or minor.
This can be contrasted with Section 19 (1) of the Mental Health Act, 1987 which allowed for mental health institutions to incarcerate people with impunity, allowing mental institutions to involuntarily admit persons on the request from family members or friends for a period of 90 days without any judicial scrutiny.
While the new Act has drastically changed both the understanding of mental illness as well as the mechanism to implement the act and protect the interests of persons with mental illness, whether it will lead to an actual shift in the experiences of persons with mental illness is yet to be seen. We should familiarize ourselves better with the new act so as to best enforce it in conformity with the United Nations Convention on the Rights of Persons with Disabilities to work toward minimization of involuntary internment.
This article first appeared in FirstPost on Wednesday on 14 June, 2017, (http://bit.ly/2w2j1H4)
Kartikeya Bahadur & Sumati Thusoo
