The Benign Long Arm
On March 27, 2017, the Lok Sabha passed the Mental Health Care Bill (MHCB). Earlier cleared by the Rajya Sabha, the bill now awaits presidential ratification to become an act, a step that seems a formality. To move beyond the headline-grabbing provision to decriminalise suicide attempts, unpacking the MHCB is perhaps an overdue exercise.
There are at least three noteworthy things about the MHCB: the first to consider is how ‘lean’ mental health legislation should be. Traditionally, the need to regulate the process of involuntary admission—when the individual is at his/her most vulnerable, and can possibly be subjected to rights violations—has been seen to lie at the heart of mental health legislation. The MHCB takes the debate of ‘leanness’ completely out of the reckoning by enlarging the legislative mandate far beyond the involuntary admission process. It talks about access to care, making care available to everyone, provisioning of services, community care, and lays the responsibility of providing the care on the state. As such, it is a hugely progressive piece of legislation that goes way beyond earlier laws.
The second is the way it uses the ‘rights perspective’ to go further and look at what the nature of care should be. One aspect of this is focusing on the autonomy of the individual by creating legal tools like the psychiatric advance directive. These are fascinating, complex legal measures—‘living wills’ that a person makes when s/he is well and ‘competent’ to determine how one should be treated (or not treated, as the case may be) if one does actually fall ill or become ‘incompetent’. It’s also called the Ulysses clause, from the story of the Greek hero Ulysses, who wanted to hear the song of the Sirens even though he knew it would render him incapable of rational thought. What the advance directive does is to take the bipartite contract of the story and convert it into a tripartite affair between the individual, the psychiatric service provider and the state. What it also does is attempt to reconcile the seemingly contradictory tenets of personal autonomy and the need for involuntary treatment, hoping to find a via media. While this certainly seems like a good idea, the evidence that it does what is intended, namely to prevent messy litigation or preclude the possibility of coercive treatment, is, so far, lacking. The possibility of using the participative mode of advance treatment planning, rather than the inherently combative advance directive, is a suggestion that needs to be explored.
The third important feature of the MHCB is its prescriptive nature—specifying what community care and treatment modalities and procedures should be. Professional bodies take the view that this should be the subject of treatment guidelines—and not legal process— as these are liable to change. There is also the feeling that in the MHCB the rights perspective has supplanted the clinical perspective, rather than incorporating both, as it perhaps should.
The MHCB is deeply influenced by the thinking of the UN Convention for the Rights of People with Disability, and is a hugely ambitious and complex legal endeavour. It is also no doubt well intentioned, but what remains to be seen is how effectively it will deliver on its intentions. While the provisionagainst, ing of service delivery can scarcely be argued the question is whether this needs to be mandated as law, which makes the state liable to provide the service, when it is, in fact, the same state that is passing the legislation. While the creation of services is desirable, is the law the best—or only—way to effect this? Is it possible that introducing a legal aspect to complex clinical or societal dialogue will be detrimental? That we are moving towards becoming a more litigious society is clear, but do we, by introducing tools such as this, actively encourage it?