The Role of Legislative Intervention in Upholding the Human Rights of Persons with Mental Illness

I. Introduction

Mental Illness is a disorder grappling a substantial proportion of the World Population WHO. It is generally in the form of abnormality in the thought process and behavioral pattern of the person. Mental illness include depression, schizophrenia and other developmental disorders². The most common disorder affecting the population across the globe is Depression. It is assumed that around 264 million people around the world are struggling with Depression³. The Prevalence of mental illness is not restricted to any one area of the World.

The disorder has been inflicting the masses both in urban and rural areas. The Popular belief is mental disorders cannot be treated and people with these disorders are unstable and violent. However truth is Mental disorders can be successfully treated and vast majority of people with mental disorders are nonviolent and they are capable of leading a peaceful community life.

The apathy shown towards the rights of Persons with Mental illness has contributed in their marginalization across the world for ages. Protection of Human Rights of People with mental disabilities is a dire call which has to be taken care of at the earliest. A Person needing mental health care is generally dependent upon either close relatives or society. At the time when his illness is grave he is not capable of decision making. The disadvantageous position of the mentally challenged persons is being exploited in Psychiatric Institutions. The Treatment meted out to them is often not humane.

At the global level there has been a consciousness to fight this disability with great vigor. The efforts became more obvious after the adoption of UN Convention on the Rights of Person with Disabilities in 2006. The Convention was the major milestone in acknowledging that Persons with disabilities should be given access to all the human rights. In order to uphold the rights of persons with mental disabilities and to bring in a law which complies with the Convention on Rights of Persons with disabilities, Indian government has brought in Mental Health care Act, 2017. The Statute is an important milestone in the backdrop of National Mental Health Survey 2015-16. It is a matter of Concern that India spends less than 2 % of its total health budget for Mental Health Care(PTI). However enacting the Mental Health Care Act definitely displays that India will surely allot a sizable portion of its Health budget for Mental Health.

II. Human rights violations

In 2017, there were 197·3 million people with mental disorders in India, comprising 14·3% of the total population of the country⁴. India like other countries across the globe is no exception when it comes to human rights violation. There is a need for proper implementation of legislations pertaining to rights of women and children, who being vulnerable and often marginalized while preserving rights.

The horrifying stories of Mental Asylums in India need urgent attention. The forced institutionalization of women on pretext of Psychological or Intellectual incapacity needs to be checked. The patients are being treated without their consent even in cases wherein they are capable of giving it. The patients are kept in caged beds and subjected to forced treatments which neither takes care of their privacy nor respect their human rights. The Persons are being kept in seclusion for weeks and months. They are often isolated from their family members and loved ones which makes their life worse. Probably the cure is bitter than the illness. Often at these mental Health Establishments their sanitation and hygiene is neglected. The lack of access to proper food and clean water can be unhealthy and more disease prone. It is heartening that husband forcing his wife to be taken to Mental Health Establishment and making her undergo treatment in inhuman circumstances with an Ulterior Motives of getting divorce from her wife by labelling her to be a person with unsound mind.

There are cases wherein even after being declared fit by the Mental Health Establishment the person is being kept in mental asylums as there are no family members to take them home. The Person with Mental illness suffer discrimination at the hands of society. The stigma of mental illness may deprive them of employment, right to education and even right to shelter. As per reports around 150 million people in India requires therapy for their mental disorders, however only 30 million as sought any kind of help⁵.

The Irony lies in being stripped of legal capacity after being declared as a person of unsound mind. In India such person will not be able to make decision on his/her behalf. This needs an urgent attention as such a position in Law is quite crucial in upholding the human rights of a person. As per Convention on Rights of Person with Disabilities, All persons including person with disability has legal capacity. India is a signatory to the convention. It has greater role to play on international arena on account of being largest Democracy in the World.

III. Evolution of human rights of mentally disabled person

Human Rights are the basic rights which are conferred on an individual irrespective of sex, caste, creed, religion, political affiliations, status etc. from birth of a person until his /her death. These are inherent rights vested in every man and woman on this earth. After witnessing atrocities of Second World War there was a need to adopt the declaration which can formally bestow these human rights on every person. Universal Declaration of human Rights along with International Covenant on Civil and Political Rights is called International Bill of Rights. Apart from these documents, human rights convention have been adopted by Europe and Africa and also different countries brought in their own individual Legislations.

The world leaders have shown the way further when the Convention on Rights of Person with Disabilities was adopted at the United Nations on 13^th December, 2006. It is an attempt at the International level to disrupt the attitude towards Person with disabilities. Further the ratification of the convention by 181 countries further shows that world is ready to treat its disabled population in a better way⁶.

The ailments pertaining to Mental health has engulfed a vast population across the world. Depression has been considered as one of the deadliest diseases which can potentially become the primary mental illness.

Sustainable Development Goals and Disability

Disability has even found place in Sustainable development goals⁷. The Goal 4 of the SDG focuses on the education for all including persons with disabilities. It aims at providing life-long learning opportunities for all. Goal 8 aims at providing equal employment opportunities to all by promoting inclusive economic growth. Goal 10 aims at political inclusion of all including Person with Disabilities. Goal 11 provides that Public transport system should be made accessible to the Persons with disabilities. Goal 17 stresses upon proper collection of data which can induce proper monitoring within the system and integrated efforts towards common goals at the international level.

IV. Salient features of mental health care act

Mental illness is a health condition which impairs with the emotions or behavior or thinking patterns of the person associated with problems in work or family or social activities(“What Is Mental Illness?”). Mental Health is defined as a state of an individual where he/she is able to overcome the day to day stresses of life normally and is able to make a positive contribution to his/her communityWHO(World Health Organization), ‘Investing in Mental Health’ [2003] Investing in mental health 3.. The Share of population, with any mental health disorder, globally, is around 792 million(Hannah Ritchie and Max Roser). The Share of males and females with disorder is 9.3 % and 11.9% females respectively(Hannah Ritchie and Max Roser). The Mental Health is becoming one of the top priority of the World Health Organisation in the light of the fact that in every 40 seconds someone loses his/her life to suicide(WHO(World Health Organization), World Mental Health Day 2019: Focus on Suicide Prevention). The Prevalence of mental health and substance abuse worldwide is highlighted in the chart below⁸:

Mental disorders which are common in India includes depression, anxiety disorders and substance use disorders and it affects nearly 10% of the population in India(NMHS Collaborators). The economic loss due to the mental health conditions from 2012-2030 is around 1 trillion dollars(WHO(World Health Organization), World Health Organization, Mental Health in India). From 1997 to 2017, proportion of the mental illness to the total disease burden of India has doubled(Sagar et al.). Looking from this perspective, India needed a right based legalism in the mental health care, which gets fulfilled by the adoption of the Mental Health Care Act, 2017.

Section 2(s) of the Mental Health Care Act, 2017 provides the definition of “mental illness”. The Act provides a comprehensive definition of the term mental illness. The inclusion of considerable impairment of thinking and disorder relating to mood and perception makes it quite realistic. The definition further mentions that state of mind where behavior and judgment making capacity of a person is so severely impaired which makes him incapable of meeting the demands of life are also included in the definition of mental illness. Even mental conditions due to over usage of alcohol and drugs are also included in the definition of Mental illness. However definition excludes retarded state of mind owing to partial development of brain.

The Act also defines right to access mental Health care⁹. According to the act it means services at affordable cost which are of good quality and in sufficient quantity. The provision of service shall not discriminate on the basis of gender or sexual orientation, religion, caste, social and political beliefs. The service should be such which is acceptable to persons with mental illness.

The Indian society has shown resilience to fight many odds. However regressive mindset at times has limited its battle with many crucial issues confronting the fellow citizens. Mental Health is such a stigmatized issue which is taken as a taboo in the Indian Society. To cure a disease requires proper acknowledgment of all ailments. The fear of being sidelined by society generally prevents people to come forward and approach for proper medical advice. The other side of the coin is poor health infrastructure of Public Health in India. Lack of trained Medical Professionals is another Problem reeling the whole system.

The Mental Health care Act 2017 has certain key peculiarities. The Act lays down the provisions for Advance directive¹⁰. This provision gives rights to the person with Mental Disabilities to make an advance choice as to how he/she will like to be treated during one’s illness and whom they want their representatives to be.

The Act envisages an affordable and accessible Mental Health care system for all Person with Mental Disabilities and enables that a person with mental illness can get treatment from services provided by government. The Act ensures equality of treatment amongst Persons with Physical disability and mental disability.

There are other welcome moves like mentally disabled persons have been given access to legal services under legal services authority Act, 1987¹¹. This provision enables the person to have easier and economical way of approaching the court in order to protect one’s right. Any Right based society can function by protection of rights of people. If a society provides rights to its citizens without having a mechanism wherein these rights can be protected, then that system is sure to create a disbelief and trust deficit among its citizens.

The Act has provisions wherein the Person with Mental disability can approach the appropriate authority to file complaint if there are deficiency in providing the services¹². Again this is a progressive move which empowers the persons with mental disabilities. This ensures that these are not namesake provisions.

The Mentally ill person has been conferred with a right to privacy in any Mental Health Establishment. The Provision mentions that persons with mental illness has a right to proper clothing in order to ensure the dignity of the person. This right under Section 20 of the Act ensures that a person, who is incapable of taking his own care, and who is dependent upon the services of any mental Health Establishment, should be treated humanely. It confers the right to live with dignity. It Protect the persons from any cruel or degrading treatment. Generally the person with mental illness has to face unhygienic environment even at Mental Health Establishments due to dependence upon others. The Act has taken care of these issues.by laying down that persons with mental illness has a right to proper sanitary and hygienic environment.

Another watershed step in the act is the provision for insurance of person with mental illness. The mental illness has been put at par with another illness and the insurance companies cannot discriminate on the basis of illness¹³. The Act also stipulates that person with mental illness is not supposed to be engaged in any work at Mental Health establishment. However if he is so engaged then there should be adequate compensation that as to be provided to him.

The Act has provided for some very important provisions for women. A women undergoing any treatment of mental illness should not be separated from her child. However if it is required then it has to be done on the recommendation of a Psychiatrist. The recommendation should be on the basis of harm to child. The separation has to be temporary, however access to the child should still be available under the supervision of the staff of the Health Establishment¹⁴.

The Person with mental illness and his nominated representatives has been provided with a statutory right of information in the Act¹⁵. The Person can have access to his medical records. The person can make an enquiry regarding the Provisions of the Act under which the person has been admitted. The enquiry can also be regarding the proposed treatment plan and the probable side effects of the treatment. The information has to be provided in the language understood by the patient. If anyhow the information is not provided at the time of admission to person with mental illness then it has to be made available to the nominated representative and when the person himself becomes capable of receiving it, the Psychiatrist or Medical officer will provide the information. However information can be withheld if the mental Health Professional is of the opinion that such information may be detrimental to the mental health of the person and it can aggravate the things for him or the information may harm others.

The Person with mental illness also has right to personal contacts and communication¹⁶. The person can refuse any person from visiting or attending to the calls from him. If the person informs regarding the same to the medical officer then the said officer has to ensure this directive. However there are certain exceptions being provided under section 26(4) of the Act which allows Judges authorized by the court, lawyer of the said person, medical Health professional of the said person, Member of Parliament and legislature, to visit and communicate with the person with mental illness.

The Mentally ill person is also vested with the right of confidentiality¹⁷. The health professional treating the person should maintain the confidentiality regarding the treatment. However certain exceptions has been laid down. The information regarding the illnkess can be shared with the other health professional and also in the interest of public safety as and when required. The confidentiality clause has also been waived while sharing information with the nominated representative. The information can also be shared with the board and under the directions of High Court and Supreme Court¹⁸.

V. Implementation of mental health care act

India spends considerably less on Health Sector. The Budget allocation for 2019-20 was Rs. 61, 398 Crore which is around 1.2 % of GDP¹⁹. The Allocation was 2.2% of the total budget and in comparison with the Defence budget it is dismally several times less. The Government should realize that any disease which adversely affects the public health is nothing short of enemy of the nation. The Priority of Government towards Mental Health Care is visible from the fact that Mental Health Budget of India is less than 1% of India’s total Health Budget(Central Bureau of Health Intelligence).The healthcare facilities vary from 14.8 facilities per lakh in Uttar Pradesh to 31.2 facilities per lakh population in Rajasthan(NMHS Collaborators). The Mental Health Human Resources vary from less than 0.1 per lakh population in Madhya Pradesh to 1.9 per lakh population in Kerala²⁰.

The Figures pertaining to proportions of suicide in comparison with world average is startling. India witnesses 28% of the total suicides across the world due to mental illness reasons. The significant thing to note is people in India are not aware of Mental Health care and apathy from the government side is quite obvious as it is difficult to find a Mental Health facility within a radius of 20 km²¹.

According to the Study conducted on the status of implementation of the Mental Health Care Act an Estimate of Working Professionals at present in India against the number of Professionals required in order to ascertain that India achieves the proportion of 3 human resources per 1 lakh population, are given below in the table²²:

The Spending on Mental Health is significantly meagre across the low and middle income nations and Indian Position is not different²³. The significant part of the spending on mental health is on Mental Hospitals. This makes it difficult to solve the crisis of Mental illness which India is going through.

VI. Conclusion

The Mental Health Care Act is a watershed moment for the deprived and marginalized persons grappling with Mental illness. Shaping the basic human rights of the persons with mental illness into statutory rights is a welcome move. No doubt the Act has been brought in, to comply with the Convention on the Rights of the Persons with Disabilities requirements. The Act is there to ensure the treatment meted out to the Disabled person is more humane and generally not against his/her wishes. The Act gives more rights to the person with mental illness in his individual capacity. The Path breaking Provision under section 115 has tried to decriminalize any attempt to commit suicide. Another welcome provisions are regarding privacy and confidentiality of the person with disabilities. The Statute has tried to fill in the vacuum which has been there for such a long time. The Act has taken care of the interest of minor and women. The Act has tried to de-stigmatize any mentally ill person and has attempted to provide legal capacity to him/her which cannot be taken away on the pretext of mental disorder. Undoubtedly the implementation of the Act requires financial assistance from the government. There is lack of Infrastructure and Skilled manpower in this sector. The Statute will go a long way in sensitizing the authorities and society in understanding the difficulties confronted by mentally ill all throughout the period of disorder. Any Civil society can only prosper when it shows its willingness to uphold the basic human rights and this Statute can enable the victims to understand their human rights and fight for them.

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VII. References

1. Central Bureau of Health Intelligence, ‘National Health Profile (NHP) of India- 2019 , ‘Ministry of Health and Family Welfare’ (2019) http://cbhidghs.nic.in/showfile.php?lid=1147

2. Hannah Ritchie and Max Roser, ‘Mental Health - Our World in Data’ (Global Change Data Lab, 2018) https://ourworldindata.org/mental-health#licence

3. NMHS Collaborators, ‘National Mental Health Survey of India, 2015-16: Summary’ [2016] National Mental Health Survey of India http://www.nimhans.ac.in/sites/default/f iles/u197/National Mental Health Survey -2015-16 Summary_0.pdf

4. PTI, ‘Budget 2019: Rs 62,398 Cr Outlay for Health Sector; Rs 6,400 Cr Earmarked for AB-PMJAY’ The Economic Times (2019) <https://economictimes.indiatimes.com/ne ws/economy/policy/budget-2019-rs-62398-cr-outlay-for-health-sector-rs-6400-cr-earmarked-for-ab-pmjay/articleshow/70092337.cms?from=mdr>

5. Sagar R and others, ‘The Burden of Mental Disorders across the States of India: The Global Burden of Disease Study 1990–2017’ (2020) 7 The Lancet Psychiatry 148 <https://linkinghub.elsevier.com/retrieve/pii/S2215036619304754>

6. ‘What Is Mental Illness?’ (1957) 8 Pastoral Psychology 27 <https://www.psychiatry. org/patients-families/what-is-mental-illness> accessed 8 August 2020

7. WHO (World Health Organization), ‘World Health Organization, Mental Health in India’ <http://origin.searo.who.int/india/topics/mental_health/about_mentalhealth/en/>

8. ‘World Mental Health Day 2019: Focus on Suicide Prevention’ <https://www.who.in t/newsroom/events/detail/2019/10/10/defaultcalendar/world-kmental-health-day-2019-focus-on-suicide-prevention>

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Footnotes

1. Author is an Assistant Professor at Institute of Law, Nirma University, India.

2. Who.int. 2021. Mental disorders. [online] <https://www.who.int/en/news-room/fact-sheets/detail/mental-disorders> [Accessed 12 July 2021]. ↩

3. Ibid. ↩

4. India State-Level Disease Burden Initiative Mental Disorders Collaborators, 'The burden of mental disorders across the states of India: the Global Burden of Disease Study 1990–2017'(2019) 7(2), The Lancet Psychiatry https://doi.org/10.1016/ S2215-0366(19)30475-4 accessed 10 February, 2020 ↩

5. Kalpana Sharma, ’We need more mental health care professionals in India’ The Times of India(New Delhi, 10 October, 2018) https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/we-need-more-mental-health-care-professionals-in-india/articleshow/66146320.cms> accessed 21 February, 2020 ↩

6. United Nations Enable - Disability. 2021. Convention on the Rights of Persons with Disabilities (CRPD) | United Nations Enable. [online] Available at: <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html> [Accessed 12 July 2021]. ↩

7. Ibid ↩

8. Hannah Ritchie and Max Roser (2018) - "Mental Health". Published online at OurWorldInData.org. Retrieved from: 'https://ourworldindata.org/mental-health' [Online Resource] ↩

9. Mental Health Care Act, 2017, s. 18 ↩

10. Mental Health Care Act, 2017, s.5 ↩

11. Mental Health Care Act, 2017, s. 27 ↩

12. Mental Health Care Act, 2017, s. 28 ↩

13. Mental Health Care Act, 2017, s.21(4) ↩

14. Mental Health Care Act, 2017, s. 21 ↩

15. Mental Health Care Act, 2017, s. 22 ↩

16. Mental Health Care Act, 2017, s. 26 ↩

17. Mental Health Care Act, 2017, s. 23 ↩

18. Mental Health Care Act, 2017, s. 23(2)(f) ↩

19. T.S. Ravikumar & Georgi Abraham, https://www.thehindu.com/opinion/op-ed/we-need-a-leap-in-healthcare-spending/article26196313.ece (accessed on 21 February, 2020) ↩

20. Ibid ↩

21. Sushmi Dey <https://timesofindia.indiatimes.com/india/access-to-mental-healthcare-is-tough-for-50-of-peopl e-study/articleshow/71512849.cms> accessed 12 February 2020 ↩

22. Math SB, Gowda GS, Basavaraju V, Manjunatha N, Kumar CN, Enara A, et al., ‘Cost estimation for the implementation of the Mental Healthcare Act 2017’, (2019),61(10), Indian J Psychiatry <http://www.indianjpsy chiatry.org/article.asp?issn=00195545;year=2019;volume=61;issue=10;spage=650;epage=659;aulast=Math> accessed 18 February 2020 ↩

23. Preetam B. Mahajan, ‘Analyzing Indian mental health systems: Reflecting, learning, and working towards a better future’,2019, 5(1), Journal of Current Research in Scientific Medicine <http://www.jcrsmed.org/citatio n.asp?issn=24553069;year=2019;volume=5;issue=1;spage=4;epage=12;aulast=Mahajan;aid=JCurrResSciMed_2019_5_1_4_260634> accessed 11 February, 2020 ↩