Business Standard

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

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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

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