How to Cite:
Prithivi, R. A. J., & Patil, J. (2022). Mental health laws in India: A critical analysis. International
Journal of Health Sciences, 6(S1), 9775–9786. https://doi.org/10.53730/ijhs.v6nS1.7288
Mental health laws in India: A critical analysis
Prithivi RAJ
Assistant Professor of Law, Narsee Monjee Institute of Management Studies
(NMIMS) Deemed-to-be-University
Jatin Patil
BBA; LL.B.; Narsee Monjee Institute of Management Studies (NMIMS), Deemed-tobe-University
Abstract---Supportive legislation and policies are needed for human
rights and mental health treatment for disadvantaged people.
Internationally and regionally, both "hard" and "soft" legislation
relating to mental health treatment have been drafted. In the field of
mental health care in India, amendments to existing laws and the
formation of new laws are frequently necessary and have been seen.
So far, mental health care reform has primarily been reactive, but
current legislation and policies provide the prospect of proactive
change. One of the most serious issues in providing good mental
health treatment in India is a shortage of qualified human resources.
While postgraduate psychiatric standards prescribe a two-week
forensic psychiatry course, this is insufficient to establish the
essential competency. As a result, forensic psychiatry requires the
development of a specialisation. In addition, forensic psychiatric
services must be created, organised, and maintained. In India, one or
more centres of expertise in forensic psychiatry are required.
Keywords---mental health, health treatment, psychiatry.
Introduction
Suicide is decriminalised under the law, but only as a stopgap measure, with a
presumption of mental disease in all attempted suicide instances unless proven
differently. Suicide should be completely decriminalised, with no limits, to help
reduce stigma, enhance openness, and make it easier to seek help. Following
India's adoption of the United Nations Convention on the Rights of Persons with
Disabilities in 2007, the Mental Healthcare Act 2017 replaced the Mental Health
Act 1987. The Mental Healthcare Act of 2017 (MHCA) safeguards patients'
autonomy, dignity, rights, and choices during mental health treatment, and thus
represents a significant advancement in Indian mental health legislation. This
new law marks a fundamental shift in the way mental health treatment is
International Journal of Health Sciences ISSN 2550-6978 E-ISSN 2550-696X © 2022.
Manuscript submitted: 27 March 2022, Manuscript revised: 18 April 2022, Accepted for publication: 9 May 2022
9775
9776
provided, as it aims to preserve and promote people's rights while delivering
mental health care. Under this Act, no one can be forced to seek mental health
treatment, and inpatient admissions can be 'independent' or 'supported.' The
term 'supported admission' replaces the term 'involuntary admission' from prior
legislation. State mental health authorities and mental health review boards will
have a big say in how the new Act is implemented. The 2017 Mental Healthcare
Act aims to radically overhaul India's mental health care system. The relationship
between psychiatry and legislation frequently comes into play when it comes to
treating PMI. Personal liberty of psychiatric patients is commonly reduced as a
result of PMI treatment. The majority of countries have laws controlling the care
of mentally ill people. Despite the fact that there are thorough accounts of
different mental disorders in various treatises in the literature, Ayurveda is not
one of them.1 The care of mentally ill patients in India's asylums was invented by
the British. Following the British crown's capture of India's government in 1858, a
flurry of laws were enacted in quick succession to control the care and treatment
of mentally ill persons in British India.2 These laws were:
The Lunacy (Supreme Courts) Act, 1858
The Lunacy (District Courts) Act, 1858
The Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886
and 1889)
The Military Lunatic Acts, 1877.
These Acts outlined the procedures for constructing mental asylums and
admitting mental patients. The insanity statutes in India at the time were based
on a mid-nineteenth-century British scenario. The 1858 Acts established a legal
framework for the treatment of mentally ill persons.3 Indian intellectuals'
increased public awareness of the terrible circumstances in mental health
institutions throughout the first decade of the twentieth century fostered rising
political consciousness and nationalistic feelings.4 The Indian Lunacy Act of 1912
was adopted as a result. Rising political consciousness and nationalistic feelings
are fueled by Indian intellectuals' greater public knowledge of the heinous
conditions in mental health institutions throughout the first decade of the
twentieth century.5 Nonetheless, the main focus was on safeguarding society from
the dangers posed by mentally ill persons, as well as ensuring that no ordinary
person had access to these institutions. Psychiatrists were employed as full-time
authorities in these hospitals. The Act also authorised judicial inquisitions for
mentally sick individuals. Following World War II, the United Nations General
Assembly adopted the Universal Declaration of Human Rights. To replace the
obsolete ILA-1912, the Indian Psychiatric Society developed a Mental Health Bill
in 1950. After a long and drawn-out process, the Mental Health Act of 1987
1
2
3
4
5
Somasundaram O, Kumar MS. Changing patterns of admission in a state mental hospital. Indian J
Psychiatry. 1984;26:317–21
Banerjee G. The Law and Mental Health: An Indian Perspective. 2001. [Last accessed 2012 Jun 21]. Available
from: http://www.psyplexus.com/excl/lmhi.html
Somasundaram O. The Indian lunacy act, 1912: The historic background. Indian J Psychiatry. 1987;29:3–14
Banerjee G. The Law and Mental Health: An Indian Perspective. 2001. [Last accessed 2012 Jun 21]. Available
from: http://www.psyplexus.com/excl/lmhi.html
Somasundaram O. The Indian lunacy act, 1912: The historic background. Indian J Psychiatry. 1987;29:3–14
9777
(MHA-87) was ultimately passed in 1987. The following are the Act's main
elements:
a) A evolving definition of mental disease, as well as the introduction of a
modern treatment concept that emphasises care and therapy rather than
confinement.
b) Establishment of a Federal/State Mental Health Authority to oversee and
supervise psychiatric facilities and nursing homes, as well as provide
mental health recommendations to the federal and state governments.
c) In exceptional circumstances, admission to a psychiatric facility or nursing
home. Both voluntary admission and admission based on reception orders
were preserved.
d) The police and magistrate's roles in cases of wandering PMI and PMI who
have been treated cruelly..
e) Protection of human rights of PMI.
f) Guardianship and Management of properties of PMI.
g) Provisions of penalties in case of breach of provisions of the Act.
Despite its numerous positive attributes, the MHA-1987 has received criticism
since its inception. It's reported to be mostly concerned with PMI's licencing and
admissions procedures, as well as guardianship issues. This Act does not
effectively address human rights issues or mental health service delivery. 6 Due to
a plethora of extremely complex processes, defects, and absurdities, the Act, as
well as the Rules promulgated under it, will never be successfully implemented.7
Human rights activists have questioned the MHA's constitutional legitimacy,
alleging that it restricts personal liberty without allowing for adequate judicial
examination.8 MHA-87 is currently being amended to comply with the United
Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
This measure took more than three decades to get the President's consent (in May
1987), and it was only passed into law in 1993. The Mental Health Act (MHA) of
1987 had the advantage of defining mental illness in a progressive manner,
emphasising care and treatment over institutionalisation. It included specific
processes for hospital admission in unusual cases and emphasised the need of
safeguarding human rights, guardianship, and property management for persons
with mental illnesses.
The MHA 1987 is criticised mostly for the legal procedures of licence, admission,
and guardianship. Human rights and the delivery of mental health treatment
were also not effectively addressed in this Act9. Human rights organisations have
questioned the constitutional legitimacy of the MHA 1987 since it restricts
personal liberty without the opportunity of judicial review. Similarly, the MHA
6
7
8
9
Narayan CL, Narayan M, Shikha D. The ongoing process of amendments in MHA-87 and PWD Act-95 and their
implications on mental health care. Indian J Psychiatry. 2011;53:343–50
Dutta AB. The Long March of Mental Health Legislation in Independent India; Dr.L.P.Shah Oration delivered at IPS-WZ
Conference at Goa. Goa Psychiatric Society; 2001. [Google Scholar]
Dhandha A. Status Paper on Rights of Persons living with Mental Illnessin light of the UNCRPD, in Harmonizing Laws
with UNCRPD, Report prepared by the Centre of Disability Studies. Human Right Law Network. 2010 May [Google
Scholar]
Narayan C. L., Narayan M. & Shikha D. (2011) The ongoing process of amendments in MHA-87 and PWD Act-95 and
their implications on mental health care. Indian Journal of Psychiatry, 53, 343–350
9778
1987 remained silent on patient rehabilitation and care following discharge from
the hospital.10 In addition, a lack of treatment facilities puts financial, social, and
emotional strain on caregivers and their families. As a result of these criticisms,
the MHA 1987 was revised, culminating in the Mental Health Care Bill 2013,
which was introduced in the Rajya Sabha (upper house of parliament) on August
19, 2013. The MHA of 1987 is repealed by this measure, but it has yet to become
law.
Mental Health and Constitution of India
The Indian Constitution Article 21 of India's constitution states that no one may
be deprived of his or her life or personal liberty unless in accordance with legal
procedures. According to this article, "facilities for reading, writing, and
expressing oneself in varied forms, freely moving about, and mixing and
comingling with fellow human beings" are included in the right to life and
personal liberty.11 According to the Representation of People Act, 1950 (sec 16), a
person is disqualified for registration in an electoral roll if he is of unsound mind
and stand so declared by a competent court. As a result, the person is ineligible
to hold public posts such as President, Vice President, Ministers, Members of
Parliament, and State Legislatures under the Constitution. 1995 Act on Persons
with Disabilities (Equal Opportunity, Protection of Rights, and Full Participation)
(PDA 95). PDA 95 was created in 1995 to eliminate discrimination in the
distribution of developmental benefits between disabled and non-disabled people,
as well as to prevent abuse and exploitation of disabled people (PWD). It created a
barrier-free environment and specified the government's responsibilities, which
included formulating comprehensive development policies and providing specific
measures for the integration of PWDs into society. Under PDA 95, mental
retardation and mental sickness are also considered disabilities. As a result, the
PMI are entitled to the benefits provided by the Act to PWDs. There is a 3%
reserve provision in government employment, but it is not available to the PMI.
This Act is also being revised in light of the UNCRPD 2006.
Provisions of the Mental Health Care Bill (MHCB) 2013
Under the MHCB 2013, everyone has the right to receive mental healthcare and
therapy from government-run or funded services. As a result, if a district mental
health service is unavailable, a patient with mental illness will have access to
services and facilities such as free psychotropic medication, mental illness
insurance coverage, and money for a private consultation. Treatment and
rehabilitation will be available in the least restrictive environment possible, and
patients' rights and dignity, particularly those from low-income families, shall be
protected, according to the MHCB 2013. As a result of these recommendations,
10
Dhandha A. (2010) Status Paper on the Rights of Persons Living with Mental Illness in Light of the UNCRPD.
In Harmonizing Laws with UNCRPD. Report prepared by the Centre of Disability Studies Human Rights Law
Network. [Google Scholar]
11
Singh MP. In: Shukla’s VN Constitution of India. 9th ed. Lucknow: Eastern Book Company; 1994. p. 165
9779
the financial and mental difficulties imposed on caregivers will be considerably
eased.12
Advanced directives and nominated representatives are two new concepts
introduced by the MHCB 2013, which give people with mental illnesses more
control over how they want to be treated in the future if they lose their ability (i.e.,
mental capacity), as well as who will be their nominated representative to manage
their affairs. The law calls for the creation of national and state mental health
bodies. Every mental health facility will also be required to register with the
appropriate central or state mental health authority.
A quasi-judicial mental health review commissioning committee will assess the
usage and processes for giving advance directives on a regular basis and advise
the government on how to preserve the rights of mentally ill people. Suicide is still
a crime in India, but this law proposes that it be decriminalised13. By
decriminalising suicide, the stress caused by societal and legal factors can be
reduced, easing the strain on patients and caregivers while also reducing the
impact on India's already overcrowded legal system.
Finally, it is advocated that direct (unmodified) electroconvulsive treatment (ECT)
be prohibited14. That is, only muscle relaxants and anaesthesia will be permitted
when ECT is employed. Minors are not permitted to get this treatment.
Criticism of the MHCB 2013
Given the lack of infrastructure, manpower, and resources, there are fears that
the new law is too ambitious and unrealistic, and that it will not be able to
accomplish what is planned15. In India, there are just 0.2 psychiatrists per
100,000 people, compared to a global average of 1.2 psychiatrists per 100,000
people. Similarly, the numbers of psychologists, social workers, and nurses
working in mental health treatment in India are 0.03, 0.03, and 0.05 per 100,000,
respectively, compared to global averages of 0.60, 0.40, and 2.00 per 100,00016.
Second, this measure contains an overly broad definition of mental illness, which
would significantly increase stigma. A preferable way would be to establish a
specific and narrow definition of mental illness since this would prevent the great
majority of people from having to deal with stigma17. The bill is unclear on how
minors should be managed. Only under extreme situations may a minor be
accepted; however, these criteria are not totally obvious18. Nearly half of all ECT
administrations in India are done directly, limiting their utility. However, services
12
Gopikumar V. & Parasuraman S. (2013) Mental illness, care and the bill: a simplistic interpretation. Economic and
Political Weekly, 48(9), 69–73. [Google Scholar]; Kala A. (2013) Time to face new realities: Mental Health Care Bill,
2013. Indian Journal of Psychiatry, 55, 216–219. [Europe PMC free article] [Abstract] [Google Scholar]
13
Bhaumik S. (2013) Mental health bill is set to decriminalise suicide in India. BMJ, 347, f5349
14 14
Narayan C. L., Narayan M. & Shikha D. (2011) The ongoing process of amendments in MHA-87 and PWD Act-95 and
their implications on mental health care. Indian Journal of Psychiatry, 53, 343–350
15
Antony J. (2014) Mental Health Care Bill 2013: a disaster in the offing? Indian Journal of Psychiatry, 56(1), 3–7
16
World Health Organization (2005) Mental Health Atlas. WHO.
17
Antony J. (2014) Mental Health Care Bill 2013: a disaster in the offing? Indian Journal of Psychiatry, 56(1), 3–7
18
Narayan C. L., Narayan M. & Shikha D. (2011) The ongoing process of amendments in MHA-87 and PWD Act-95 and
their implications on mental health care. Indian Journal of Psychiatry, 53, 343–350
9780
are being enhanced19. Modified ECT is more costly than direct ECT20, and
anaesthesiologist support for psychiatric hospitals is rare. In the long run, this
change might result in a shift in emphasis toward the creation of improved setups for modified ECT. To assist make the improved ECT available and accessible,
national goals should include mobilising resources, increased public education,
professional training, and effective audit processes. This will meet the concerns
expressed by numerous human rights organisations while also protecting
patients' rights.
The measure decriminalises suicide, but only as a band-aid solution, by
establishing a presumption of mental disorder in all attempted suicide cases
unless proven differently. Suicide should be decriminalised totally, with no
restrictions attached, in order to remove stigma, increase openness, and make it
simpler to seek aid.
On August 19, 2013, the Rajya Sabha introduced the Mental Health Care Bill,
2013. The Mental Health Act of 1987 is repealed by this bill. The government
ratified the United Nations Convention on the Rights of Persons with Disabilities
in 2007, according to the Bill's Statements of Objects and Reasons. The
Convention requires that the country's legislation be in compliance with it.
Because the present law does not sufficiently protect the rights of people with
mental diseases or encourage their access to mental health treatment, a new bill
was introduced. The key features of the Bill are:
Rights of persons with mental illness: Persons with mental illnesses have the right
to get mental health treatment and care from government-run or funded services.
The ability to acquire services that are both economical and of good quality, as
well as having simple access to them, is part of the right to mental health care. In
addition, people with mental diseases have the right to fair treatment, protection
against harsh and degrading treatment, free legal assistance, access to their
medical records, and the ability to protest problems in mental health care.
Advance Directive: A mentally sick individual has the right to write an advance
directive that specifies how he wishes to be treated for his disease in the event of
a mental health emergency, as well as who his designated representative will be.
The advance directive must be certified by a physician and recorded with the
Mental Health Board. If a mental health professional, relative, or caretaker
refuses to follow the directive while treating the patient, he or she can petition the
Mental Health Board to have the advance directive reviewed, changed, or
cancelled.
Central and State Mental Health Authority: These administrative bodies are in
charge of (a) registering, supervising, and maintaining a register of all mental
health establishments, (b) developing quality and service provision norms for such
establishments, (c) maintaining a register of mental health professionals, (d)
training law enforcement officials and mental health professionals on the Act's
provisions, (e) receiving complaints about service deficiencies, and (f) advising the
government on matters relating to mental health.
19
Chanpattana W., Kunigiri G., Kramer B. A., et al. (2005) Survey of the practice of electroconvulsive therapy in teaching
20
Gangadhar B. N. (2013) Mental Health Care Bill and electroconvulsive therapy: anesthetic modification. Indian Journal of
Psychological Medicine, 35, 225–226
hospitals in India. Journal of ECT, 21, 253–254
9781
Mental Health Establishments: Every mental health facility must be registered
with the appropriate federal or state agency. The establishment must meet a
number of requirements set out in the Bill in order to be registered.
The bill also lays out the steps for admitting, treating, and releasing mentally ill
people. Except when he is unable to make an autonomous decision or conditions
exist that make a supported admission necessary, the decision to be admitted to a
mental health facility should be made by the person with the mental illness as
much as feasible.
Mental Health Review Commission and Board: The Mental Health Review
Commission will be a quasi-judicial body that will regularly assess the use of
advance directives and the process for obtaining them, as well as advise the
government on how to protect the rights of mentally ill persons. The Commission
will establish Mental Health Review Boards in each of the state's districts, with
the agreement of the state governments.
The Board will have the authority to (a) register, review, alter, or cancel an
advance directive, (b) appoint a nominated representative, (c) adjudicate
complaints about care and services deficiencies, and (d) receive and decide an
application from a person with mental illness, his nominated representative, or
any other interested person, challenging the decision of the medical officer or
psychiatrists in charge of a mental health establishment.
Decriminalising suicide and prohibiting electro-convulsive therapy: Suicide attempts
are believed to be the result of mental disease at the time and are not punishable
under the Indian Penal Code. Electro-convulsive therapy is only permitted when
muscle relaxants and anaesthesia are used. Minors are not permitted to get
counselling.
The Mental Healthcare Act, 2017
The legalising of suicide is the most laudable provision in the 2017 MHA. 21 The
Act assumes that the person who tried suicide was under mental stress and/or
sickness, and hence is not subject to the Indian Penal Code's penalties (IPC). The
appropriate governments have been entrusted with the responsibility of ensuring
that the person who attempted suicide receives the necessary care and protection,
in order to reduce the number of suicide attempts in the future. At several points
throughout the Act's development, the Indian Psychiatric Society (IPS) was invited
and consulted. They were not, however, allowed to contribute to the Act's
formulation. Though the IPS has misgivings about the NHA, 2017, it has said
expressly that the legalising of suicide (based on their recommendations) has
been the single most significant improvement. Reading down section 209 of the
IPC, according to the IPS, will help with better suicide reporting (which would be
beneficial from a legal and social standpoint).
Medical insurance (for treating mentally ill people) should be supplied by
insurers, according to Section 21(4) of the Act, in the same way as other
insurances are provided for illnesses. In a highly encouraging move, the
Insurance Regulatory and Development Authority of India (IRDAI) has issued
directions to health insurers across the country to include mental diseases in
medical insurance coverage.
21
The Mental Healthcare Act, 2017 § 115
9782
In the year 2018, the IPS and the MHA, 2017 were a successful pair in
decriminalising homosexuality in India. While closely aligned with the MHA, the
IPS' policy statement in 2017 has always maintained that "homosexuality is not a
mental disease." This IPS statement and the applicable MHA, 2017 provisions
paved the way for them to be included in the verdict in this important decision.
The MHA, 2017, non-discrimination clauses were incorporated into the ruling. It
was also observed that section 377 was invalid due to the inconsistencies it had
with MHA, 2017.
Section 29 of the Mental Health Act of 2017 requires the government to create
and implement initiatives that increase mental health awareness and minimise
stigma. Section 30 mandates that the government communicate critical mental
health information as widely as feasible. The provisions of the MHA, 2017, are
also widely promoted as part of this dissemination. It is also required that
relevant public authorities participate in timely awareness and training initiatives
related to mental health issues.
Section 31 bolsters the government's responsibilities by stating that it is the
government's responsibility to ensure that medical and mental healthcare
professionals in public hospitals and prison cells are adequately trained in
accordance with internationally accepted standards—a link can be seen between
this provision and Principle 3 of the UN Principles. As a result, when compared to
MHA, 1987, MHA, 2017, has a greater international character.
According to MHA, 2017, a person diagnosed with a mental disease who is
involved in a legal dispute (as a result of exercising his rights under MHA, 2017)
would be supplied with the necessary legal assistance to pursue their case.
Section 2(s) of the Mental Health Act of 2017 offers a broad definition of mental
illness based on medical and societal concerns. It generally defines any significant
disorder affecting a person's mood, thinking, perception, memory, or orientation,
and seriously affecting and diminishing his or her sense of judgement and
behaviour. Such a person may have difficulties comprehending and identifying
reality, as well as carrying out simple living duties. This definition of mental
illness covers problems that develop as a result of alcohol and drug misuse. The
term, however, excludes "mental retardation" from its scope. With a balanced,
medically sound definition in the MHA, 2017, a firm foundation has been laid for
any prospective legal disputes that may arise as a result of this legislation.
Section 5 of the MHA, 2017 allows for the issuance of "advanced directives,"
which essentially gives a patient the ability to exercise his right and provide
directions for the care they want for their disease or the remainder of their illness
well in advance. They may also designate a representative for this cause. These
directions must be thoroughly reviewed and authorised by the proper medical
authorities.
Chapter V of the MHA, 2017, delves into the rights of mentally ill people, just as
its predecessor, the MHA, 1987. However, in order to protect patients' social,
financial, physical, and emotional well-being, the rights defined in the MHA, 2017
are more thorough, forceful, and liberal. Sections 18-28 of Chapter V of this Act
9783
are its most important provisions. The MHA, 2017, has included the right to
confidentiality, emergency services, the freedom to decline visits, medical
insurance, the right to be included in society without discrimination, and a
variety of other welfare-related rights. The Central Mental Health Authority is
required by Section 33 of the Mental Health Act of 2017. The State Mental Health
Authority must be established under Section 45. The development and design of
Mental Healthcare Programs, as well as the successful implementation of the
MHA, 2017, would be the responsibility of these authorities.
Criticisms of MHA, 2017 and Suggestions
Even with the enormously commendable provisions of the MHA, 2017, the Act
falls short in various areas:
MHA, 2017, surely took mental healthcare professionals' and the IPA's
perspectives into account; yet, the IPA was excluded from the drafting process.
This has been one of the most contentious and criticised sections of the 2017
MHA. Section 5 of the Act makes no mention of a consistent method for providing
advanced directives. Because the method is not included in the Act, doubt
regarding the exercise of the right arises. Such ambiguous rules undermine the
legislative objective of allowing for the issuance of advanced directives.
Surprisingly, there isn't a single provision in MHA, 2017 that deals with removing
a Nominated Representative. Furthermore, not even medical officials have the
power to dismiss such a representative (even if their counsel is not in the best
interests of the patient). Although this appears to be a hastily worded provision,
personal contracts can be entered into between the parties to regulate the
potential removal of a Nominated Representative, despite the fact that it is a
difficult obstacle to surmount (when the need may be).
Electroconvulsive therapy has been outlawed as an emergency treatment under
section 94 of the MHA, 2017 to prevent the patient's death or irreversible injury.
This type of therapy is a traditional life-saving emergency treatment for mentally
sick people (especially for those with higher suicidal tendencies). Several mental
health specialists have slammed this section of the MHA, 2017, because
electroconvulsive therapy can help control and manage patients in emergency
situations. Mental health specialists can make a joint request to the Central and
State Mental Health Authorities, which could investigate the situation quickly.
MHA, 2017, does not provide a common set of qualifications for medical and
mental health professionals. This lowers the standard of mental health care and
calls into question the workforce's competency in entrusting the country's minds
and brains to them in the hopes of recovery. To investigate this significant flaw,
immediate action is essential. In the long run, however, proper adjustments to
standards qualifications should be made.
An important judicial decision that needs to be mentioned at this juncture is that
of Meenu Seth v. Binu Seth22. The problem in this case was that a case was
already in progress under the MHA, 1987. Following the implementation of MHA
22
FAO No. 411/2017, High Court of Delhi
9784
2017, the appellants requested that their case be handled in accordance with the
provisions of MHA 2017. Despite the fact that MHA, 1987 was abolished by MHA,
2017, the Delhi High Court dismissed the appeal, stating that section 126 2(f) of
MHA, 2017 clearly indicates that any issues that were continuing and pending in
any Indian court under MHA, 1987 will continue to be covered by MHA, 1987.
Mental Health legislations in other countries
a) There are extremely few psychiatrists or medical practitioners with
knowledge and experience of psychiatry in South Africa's rural communities
and poorer metropolitan areas.
b) The Mental Health Act of 1983 in England and Wales, as well as the Italian
Public Law issued in 1978, are notable examples of a change away from
custody and incarceration and toward integration and rehabilitation of
people with mental illnesses.
c) In 1950, Japan passed the Mental Hygiene Law, which supported the
building of psychiatric facilities and provided financial assistance to
involuntarily confined patients.
United Nations convention for rights of persons with disabilities-2006 and
Indian laws
The UNCRPD was adopted in December of 2006. The Indian Parliament ratified it
in May of 2008. Countries that have signed and ratified the UNCRPD are required
to align their laws and policies with it. As a result, India's whole disability
legislation is currently being revised. The pact marks a shift in the treatment of
people with disabilities from a social welfare issue to a human rights issue. The
new paradigm is based on everyone's legal capacity, equality, and dignity.
According to article 2 of the treaty, PWDs would enjoy equal legal competence in
all areas of life. Article 3 mandates that the state take reasonable steps to ensure
that people with disabilities have access to assistance in exercising their legal
rights. Article 4 calls for safeguards to prevent abuses of the system of support
required by PWD. There is no explicit prohibition of forced interventions in the
UNCRPD, but neither does the Convention permit compulsory mental health
care.23 The process of modifying MHA 87 began, and a draught Mental Health
Care Bill – 2011 (MHCB) was created. MHCB proposes that mental health
facilities be registered rather than licenced, and that a Mental Health Review
Commission with state panels be established. Significant modifications have been
made to the admissions process. The MHCB's most important feature is that it
holds the government accountable for establishing and providing mental health
services to all individuals, as well as taking appropriate action. Human rights are
well-protected in the PMI, with a whole chapter devoted to the subject. PDA 95 is
also being changed, and a draught of "The Rights of Persons with Disabilities Bill,
2011 (RPWD Bill)" has been received by the Ministry of Social Justice and
Empowerment (MSJE). According to Section 18 of the proposed bill, PWDs will
have legal capacity on an equal footing with others in all aspects of life, and any
legislation, rule, byelaw, custom, or practise that imposes disqualification on the
23
Dhandha A. Status Paper on Rights of Persons living with Mental Illnessin light of the UNCRPD, in Harmonizing Laws
with UNCRPD, Report prepared by the Centre of Disability Studies. Human Right Law Network. 2010
9785
basis of disability will become unenforceable. PWDs have the right to get the help
they need to execute their legal rights, but they also have the flexibility to change,
modify, or abolish any support system they have. Plenary guardianship has
mostly been phased out in favour of restricted guardianship. PMI has been
allocated a 1% quota out of the planned 7% reserve for PWDs in government
posts. The MHC Bill and the RPWD Bill have irreconcilable clauses. The drafting
committee of the RPWD was dominated by human rights campaigners. A group of
human rights advocates believes that every PMI should have full legal authority,
and that compulsory institutionalisation and the closure of all mental institutions
should be outlawed. They say the MHCB makes no assumption of universal
capacity and has no plan to help people make educated decisions about their own
lives. They've even urged that MHA 87 be repealed totally, and that the issue be
addressed by a reworked and comprehensive RPWD Bill under MSJE's control.
Conclusion
There is a need to create preparations to improve the resources and skills of
mental health professionals/workers, as well as to provide enough financial
support/budget. The previous law (the Mental Health Act of 1987) didn't provide a
definition of mental illness. A "mentally ill person" was defined as "a person who
requires treatment for any mental disorder other than mental retardation." Except
in Chapter III, no mention of substance use disorder (SUD) was made elsewhere.
The current act, the Mental Health Care Act of 2017, has included SUD in the
definition of mental illness. A flaw in the MHCA, 2017, is Section 89, which allows
a person with mental illness to be admitted and treated without his agreement if a
chosen representative requests it. The Act overlooks the fact that the family is the
primary caregiver. Even clinicians are reliant on their patients' families. As a
result, the patient, the practitioner, and the healthcare administrators all require
proper family support. The Act also ignores the fact that the government has a
mental health programme. The Act should have required all states to develop a
National Mental Health Program and made the state mental health authority
responsible for it. There are a number of approaches that can be used to avoid the
hazards. One method to do this is to remove the concept of addiction therapy
from the scope of the Mental Health Act of 2017, by removing the reference to
SUD from the definition of mental disease. Many countries, like the United
Kingdom, Australia (in many of its states), and New Zealand, have kept drug
abuse out of their mental health legislation and passed distinct laws for addiction
and its treatment since people with substance misuse act differently and require
different treatment. Mental health programme should be started at educational
institutions, schools and colleges. A fixed budget should be allocated to
implement such programmes in India.
References
Antony J. (2014) Mental Health Care Bill 2013: a disaster in the offing? Indian
Journal of Psychiatry, 56(1), 3–7
Bhaumik S. (2013) Mental health bill is set to decriminalise suicide in India. BMJ,
347, f5349
9786
Chanpattana W., Kunigiri G., Kramer B. A., et al. (2005) Survey of the practice of
electroconvulsive therapy in teaching hospitals in India. Journal of ECT, 21,
253–254
Dhandha A. (2010) Status Paper on the Rights of Persons Living with Mental
Illness in Light of the UNCRPD. In Harmonizing Laws with UNCRPD. Report
prepared by the Centre of Disability Studies Human Rights Law Network.
Dutta AB. The Long March of Mental Health Legislation in Independent India;
Dr.L.P.Shah Oration delivered at IPS-WZ Conference at Goa. Goa Psychiatric
Society; 2001.
Gangadhar B. N. (2013) Mental Health Care Bill and electroconvulsive therapy:
anesthetic modification. Indian Journal of Psychological Medicine, 35, 225–226
Gopikumar V. & Parasuraman S. (2013) Mental illness, care and the bill: a
simplistic interpretation. Economic and Political Weekly, 48(9), 69–73.
Kala A. (2013) Time to face new realities: Mental Health Care Bill, 2013. Indian
Journal of Psychiatry, 55, 216–219. [Europe PMC free article] [Abstract]
Narayan C. L., Narayan M. & Shikha D. (2011) The ongoing process of
amendments in MHA-87 and PWD Act-95 and their implications on mental
health care. Indian Journal of Psychiatry, 53, 343–350
Singh MP. In: Shukla’s VN Constitution of India. 9th ed. Lucknow: Eastern Book
Company; 1994. p. 165
Somasundaram O, Kumar MS. Changing patterns of admission in a state mental
hospital. Indian J Psychiatry. 1984;26:317–21
Somasundaram O. The Indian lunacy act, 1912: The historic background. Indian
J Psychiatry. 1987;29:3–14
World Health Organization (2005) Mental Health Atlas. WHO.