The Mental Healthcare Bill of 2013 was introduced before the Rajya Sabha ( the Upper House in India), with a view to provide mental healthcare services to persons with mental illness, while also protecting their rights.
In our country mental illness is still stigmatized. People often do not get access to good quality treatment, and end up going to quacks and “Godmen”. Cases of chaining, physical abuse and sexual abuse have been reported from mental health institutions. The ‘pagalkhana’ (madhouse) as it was traditionally called, looms large in the imagination as a terrible and forbidding place. However, a change is in the air. Or at least the desire for a change.
The Mental Healthcare Bill, which if enacted will replace the previous Mental Health Act of 1987, has several revolutionary features regarding the rights of mentally ill persons, including well-defined rights, the definition of capacity, modes of treatment, and the decriminalization of suicide. I will keep this article simple enough for non-lawyers to understand the features of this bill. Some features have drawn severe criticisms and some have been hailed as much needed changes in the law. The features (in no particular order) are:
1) The decriminalization of suicide.
This Bill clearly lays down (S 124) that any person who attempts to commit suicide shall be presumed to be mentally ill (unless proved otherwise) and will not be punishable under the Indian Penal Code.
This was a much-needed change in a very outdated law, and has been generally hailed to be a welcome feature.
2) Electro-convulsive therapy prohibited without muscle relaxants and anesthesia being used.
While electro-convulsive therapy without administering muscle relaxants/anesthesia does seem barbaric, this provision has been criticized for making the treatment more ‘expensive’ and inaccessible to certain sections of society. Of course medical professionals will be better suited to talk about the validity of this criticism.
3) A rights frame-work for mentally ill persons.
This Bill gives certain rights to mentally ill patients. These are:
a) The right to access mental health care services run by the appropriate Government. These services are defined as being of affordable cost, good quality, available in sufficient quantity, accessible geographically and available without any discrimination. While creating a rights framework is a great thing, one wonders how in a country where access to healthcare is such an elusive concept, can such a right be crystallized.
b) A right to live in society and not be segregated
c) A right to live with dignity and a right against cruel and degrading treatment.
d) A right to be treated at par with persons with physical illnesses.
e) A right to meet or refuse to have visitors
The right to be treated at par with persons with physical illnesses is perhaps the most ambitious feature of this charter of rights, since even the drafters of the Bill had difficulty in making this a reality. The Bill has a section allowing for involuntary admissions to mental health establishments in certain cases, something that mental health groups have described as being in clear violation of principle of equality between the mentally and physically ill. However, drafters of bill have to look at the bigger picture, and involuntary admissions are regrettably a necessity in certain cases.
4) The concept of capacity
The Bill defines capacity by stating that a person will be deemed to have the capacity to make decisions regarding his treatment if he can:
a) understand relevant information
b) retain the said information
c) use or weigh that information to make the decision
d) can communicate that decision through talking, sign language or any other means.
The key thing here, aside from that very definitive understanding of capacity, is the fact that communication need not just be through talking, or sign language. This takes into account the needs of those who can neither speak nor use sign language and need to use special techniques/ technology to communicate.
The bill goes further to say that if a person makes a decision about his mental health-care or treatment which is perceived by others as inappropriate or wrong, that by itself shall not mean that the person does not have the capacity to make the mental health care decision.
This recognizes the concept of patient autonomy, and moves away from the culture of paternalism by recognizing that as long as the patient has capacity he has the right to make ‘wrong’ decisions too.
5) Advance directive.
Patients can, according to this Bill make an advance directive regarding whether they want to receive treatment for mental illness and the manner in which they want to be treated, who their nominated representative is etc. This is to ensure that their wishes are recorded and enforceable at a subsequent period when they lack the capacity to take mental health decisions.
However, any subsequent decision made when the patient has a capacity to make such decision, over-rides an advance directive, thereby leaving room for the mentally ill person to change their mind.
6) Non- segregation
At various points the Bill reiterates the right of mentally ill persons to not be segregated from society. It also focuses on rehabilitation, by stating that persons with mental illnesses shall not be kept in establishments merely because their families do not wish to accept them. To this end the Government is directed to set up places such as half-way homes, group homes etc, for persons who do not require treatment in restrictive establishments.
7) Limiting physical restraint
While the Bill absolutely prohibits chaining, physical restraint and seclusion are limited to cases where it is necessary to prevent immediate harm, or on the authorization of a psychiatrist, who has to make the cause for physical restraint a part of his medical notes.
The Bill has several procedural aspects too, but that is outside the scope of this post.
Some of the changes suggested by the Bill such as decriminalising attempted suicide, may not seem revolutionary prima facie. But to change a draconian law that has built up considerable inertia is a revolutionary step, in my opinion.
Incorporating elements of patient autonomy, affirming the right to non-segregation, seem noble and desirable, but are likely to engender a backlash given that a proper understanding of patient autonomy is still in nascent stages in India.
There have also been criticisms that the Bill’s definition of mental illness is too broad for a society where mental illness is still stigmatized. There have also been misgivings about whether the rights frame-work created by this Bill will be well implemented.
I am inclined to think that sometimes a law is required to jolt a society out of its slumber and apathy. If the Bill is enacted it will do some amount of good with its more easily realizable goals. But the true power of the Act will be that it will make the country, medical community, and civil society wake up to the needs of its mentally ill citizens.