Too soon to celebrate Mental Healthcare Act
Despite the incorporation of crucial measures in the new Bill, stakeholders worry that it could still deprive patients of individual liberty, writes Pranav J Sharma
Despite the incorporation of crucial measures in the new Bill, stakeholders worry that it could still deprive patients of individual liberty, writes PRANAV J SHARMA
In December 2014, the international advocacy group Human Rights Watch released a report documenting wideranging and intense humanrights abuses involving women in 24 institutions across India that house those perceived to be mentally ill. Most striking amid the blocks of text describing the abuse were the stark images of women and girls forcibly deposited in these institutions. Deepali, a 46-year-old with a perceived mental illness, was pictured on the first page of the document, alongside a quote: “I woke up one night and I couldn’t move; my body was in intense physical pain. A nurse came and jabbed an injection into my body, without even taking off my clothes. You are treated worse than animals.”
Though Deepali described the institution as “an alternate reality,” her situation should not have been reality at all. All institutionalisations for those considered to be mentally ill were, at the time of the report’s release, governed by the Mental Health Act (1987). It offered patients a few basic rights — for instance, it technically allowed people such as Deepali to sue for release within 60 days of their involuntary institutionalisation. Yet, the report said, “in none of the 52 cases … documented … was the woman or girl informed of her right to appeal or provided the opportunity or assistance to do so.” In the realm of mental healthcare, realities on the ground bear little relation to legal frameworks — a rupture that has been central to understanding and evaluating India’s mentalhealthcare policy.
Even so, on 30 March 2017, the country received new legislation, the Mental Healthcare Act, which was passed unanimously by voice vote in parliament to jubilation from politicians and activists. The health minister, J P Nadda, called the act’s passage “historic”, while the psychiatrist Soumitra Pathare, who was one of the bill’s drafters, wrote in
The Hindu that it marked “a paradigm shift in the care and treatment of persons with mental illness in India.” The renowned psychiatrist and researcher Vikram Patel called a recent version of the bill “one of the most progressive mental health care bills in the world.”
Going through the Mental Healthcare Act, one can somewhat understand the reason for this exultation. The law sets up a framework for three critical advances in India’s mental healthcare system. First, it establishes a “right to access mental healthcare” — regardless of a person’s income, place of living, or any other factor — compelling either state governments or, in the case of union territories, the central government to provide mental healthcare in every district by 7 January 2018. Second, the act introduces new patients’ rights through provisions for advance directives, which allow patients to choose in advance their desired course of treatment, and nominated representatives, whom patients can authorise to make decisions about their care if a severe episode of illness renders them incapable of doing so themselves. Third, the law presumes severe stress to be at work in the case of any person’s attempt to commit suicide. This means that suicide, earlier a criminal act under the Indian Penal Code, is now seen as symptomatic of a medical illness that must be treated. With 90 percent of the roughly 60 million Indians suffering from mental illness currently not receiving any treatment, these measures are necessary and welcome.
Conflicting opinion
However, two major sets of stakeholders — disability-rights activists and the Indian Psychiatric Society, or IPS — have been loudly critical of the legislation. The activist Amba Salelkar, in an online-exclusive for
The Caravan in April, argued that the act would simply create new frameworks for “deprivation of individual liberty and capacity” among the mentally ill. Several other disability-rights activists had earlier taken much the same view. The IPS opposed the law for over-regulating psychiatric practice. The vice president of the organisation protested to the Times of India that it “treats mental health professionals as persons never above suspicion,” harming a psychiatrist’s ability to treat patients effectively.
The criticism from these two camps, often at odds over their respective conceptions of patients’ rights, raises uncertainty about the fitness of the act. Both groups were consulted in the process of drafting the legislation, which took about 10 years. Their arguments had a significant role in making the act what it is today. Following the process of the act’s creation allows a gateway into the source, and so the relevance, of each group’s opposition — and offers a more nuanced understanding of the challenges that lie ahead.
The need for new legislation arose in 2007, when India signed the United Nations Convention on the Rights of Persons with Disabilities, or CRPD — a global human-rights treaty. However, the process to make the necessary policy started only in February 2010, when the ministry of health convened a committee to draft amendments to the existing 1987 law in line with the convention. Before that work even began, disabilityrights activists protested against the very conception of legislation being crafted exclusively by the ministry of health, and also questioned the committee’s makeup — then including justices and psychiatrists. This was in keeping with the disability-rights movement’s famous slogan: “Nothing about us without us.” They demanded a central role in both setting up the committee and drafting the bill, and the resulting pressure they created forced two justices on the committee to resign. The process stalled.
The reform process
After a couple of months, the reform process was put in the charge of Keshav Desiraju, an additional secretary at the ministry of health. He took a keen interest in reforming mental healthcare, and determined that a simple touch-up of the existing law would not fit the patient-rightsoriented framework of the CRPD. Desiraju opted to undertake the creation of a new law altogether.
Desiraju’s choice invited far more work than was initially asked of him, and anticipated extensive consultations in drafting effective legislation. These consultations, it quickly became clear, also allowed those who absolutely opposed any ministry-driven changes to the law to be heard. In the later months of 2010, Desiraju held meetings with psychiatrists, disability-rights activists, family caregiver groups and other actors in mental healthcare. This engagement culminated in a draft bill released in December 2010. A subsequent national consultation filled a 365-seat auditorium.
This deeply engaged work, something we do not often expect of easily caricatured bureaucratic processes in India, laid the foundations for a drafting and redrafting process led by both Desiraju and Soumitra Pathare. Three different draft bills were made public for comment, one each in 2011, 2012 and 2013, and debates over the legislation filled the pages of numerous specialist and popular publications. Most actors collaborated with the government to make sure the legislation would provide the best possible protection for those they represented. However, the IPS and the disabilityrights sector demonstrated staunch opposition.
The reaction of the disabilityrights sector was grounded in a deep distrust of the government and its regulations regarding the mentally ill. In her 2000 book Legal Order and
Disorder, the activist Amita Dhanda details how, after 1987, the Indian psychiatric establishment remained independent of regulations even as it collaborated with regulators and lawenforcement agencies. Psychiatrists formed informal, and illegal, partnerships with police officers and hospital superintendents so as to circumvent limiting laws and more easily institutionalise patients. Court magistrates routinely looked the other way. This environment bred the abuses described in the Human Rights Watch report, and undermined the entire regulatory framework. The new act calls for quasi-judicial bodies that govern institutionalisation, advance directives and nominated representatives. These bodies can dismiss a patient’s decisions, including those communicated via advance directives or nominated representatives, if these are determined to have been made under duress or in a moment of incapacity. The fact that these bodies will partially comprise psychiatrists has particularly troubled disabilityrights activists, who feel that the law simply sets the stage for further oppression of the mentally ill.
The IPS, in the years before the legislation’s passage, was also critical of the bill. The group opposed the same legal framework that disabilityrights activists saw as too lax for, in its eyes, interfering too heavily in psychiatric practice. For instance, the IPS argued that matching a patient’s treatment exactly to the specifications in an advance directive could be too onerous and ultimately “drive psychiatrists into highly defensive practices” to the detriment of patient care.
With 90 per cent of the roughly 60 million Indians suffering from mental illness currently not receiving treatment, the new measures are welcome