Mental Health & the Law

Listen to the article here!

INTRODUCTION

Historically, in times of great distress communities tend to band together and work through the turbulent times but the very nature of Covid-19 forced people to isolate. On top of which, India was already suffering from a mental health crisis due to a dearth of funding, mis-diagnoses, lack of qualified professionals with unequipped clinics[1] etc.

This developed the perfect breeding ground for mental health problems to germinate and spread rapidly. To put into context the state of mental health in India, there are nearly 150 million people in India suffering with some form of mental illness and the number of qualified psychiatrists are around 9,000 for the whole of that population. Out of the 1.6% of the GDP which is allocated for the Health Budget, only 0.06% is dedicated to Mental Health services[2]. This essay will attempt to look at the surrounding issues which are critical to the detoriation of mental health as well as the complications that our current system of legislations presents.

BEYOND THE PARCHMENT

Firstly, before delving into the legislation, we ought to see the U.S Supreme Court’s Justice Scalia’s opening statement for a Judiciary Committee in the Senate, in which he gave a fascinating example about how the Soviet Union had way more liberal rights in their Constitution than the U.S did on theirs. But since there were no regulations and administrative mechanisms to enforce these rights in the USSR, the system failed to withstand the erosion of these rights, he referred to them as ‘Parchment Guarantees/Paper Rights’. Similarly, mental health provisions will remain ‘on paper’ unless other aspects of the society are dealt with.

Let’s take for example, children living on the streets who are stated to be the most susceptible to having mental health issues. Directly correlated with lack of adult supervision, primary education and lack of nutrition amongst other hazards like violence which could be sexual or otherwise. Even in metropolitan cities like Kolkata and Delhi, there are more than one million children living on the streets sans parental supervision.[3] In Chennai, a study conducted amongst street based sex workers showed that those who experienced sexual violence at their workplace coupled with domestic violence, were more likely to face mental health issues like Post-Traumatic Stress Disorder, Depression and suicidal ideation.[4] As well as the stories of the Transgender community in Kerala, which sheds light on the lack of expertise of the psychiatrists leading to their failure in following the protocol for gender re-assignment surgery, causing severe mental degradation.

Even the recent budget allocated only 40 crores to Mental Health Programmes whereas the rest of the fund (approx. 500 crores) is being put into privately owned institutions. There are well known advantages and disadvantages of privatisation, especially for the purposes of mental health systems in a developing country, a case can be made for either. However, privatization does not preclude the government’s responsibility to simultaneously empower state bodies through increased funding.

Another seemingly peripheral but a significant component of degrading mental health is nutrition which has worsened considerably as we see India slip down seven ranks in Global Hunger Index making India 101st out 116 countries. Even air pollution is shown to be intrinsically linked with severe mental health disorders, a glance at India’s Air Pollution Index would highlight the need to mentioned such a link and then evaluating the gravity of the current scenario .

These are only some of the many facets of a citizen’s life wherein reformation work on targeted groups, providing the essential infrastructure, increasing funding and enforcement of regulations will prove worthwhile. Hence, requiring  the government to view the issue comprehensively, in order to fulfil the aim of a better mental health for the country.

MENTAL HEALTHCARE ACT, 2017

The Mental HealthCare Act 2017, (hereinafter MH Act) was ratified by the President on 7th April 2017, this piece of legislation has undoubtedly been monumental in the sense that  there is clear shift to a rights based view of mental illnesses, like a much needed reform which took place through the MH Act, was the inclusion of mental health treatment in Life Insurance coverages, the compliance, however, remains in air due to resistance from Insurance Companies[5].

Moreover, the MH Act has two distinct and focal points, one is pointed towards guaranteeing that the State actualises its commitment to work on the mental health of people and the second is the autonomy that is granted to the patient in their own treatments.

The Authorities mentioned under the Act are State and Central Mental Health Authorities and Mental Health Review Boards. States are entrusted with regulating these authorities and ensure that a minimum standard is followed. The Authorities are empowered to enforce such standards through grievance redressal. However, delayed action can be seen in the formation and upkeep of such Authorities and boards, for example unlike the Delhi Government which has formed the State Mental Health authority as required by the Act and specified the minimum standards to be met for being registered as a mental health establishment, along with publishing a list of such establishments that can easily be accessed on the internet, almost all states have not done the same, like Goa.

The second prong that deals with autonomy has come under the scanner for reasons of practicality like in the case of an Advance Directive (hereinafter directive).These directives serves the purpose of providing the method of treatment that the mentally ill person prefers. Since, it is hard to decide whether the Person with the Mental illness at the hour of making such directives had the ability to do so. It is likewise hard to decide if he was ensured by a therapist, along with which these directives can be repudiated, altered or dropped by the individual. This will prove to impractical for the purposes of execution[6].

Other issue that arose with the MH Act is the potential risk to the privacy of mentally ill individuals with the linking of Aadhaar in case of registration. Even though there exists various advantages to data collection and sharing, but with judiciously placed limitations. None of which have been laid out in the Act itself or in any of the following rules and regulations[7]. Additionally, since India has been a signatory of the United Nation’s Convention For Rights Of Persons With Disabilities and its Optional Protocol (hereinafter UNCRPD) which came into force in on 3rd May 2008, the MH Act is made to be compatible with the treaty. However, it’s compliance with the UNCRPD fails at various levels, like the right of families of the patients have not been made abundantly clear and the scope is rather narrow, for example in case a patient revokes the appointment of their nominated representative, the family/next of kin of the patient does not have a right to be notified of such information. Nevertheless, the domestic legislation’s compliance as concerned with the patient’s autonomy, definitions of disorders etc., is at par with international standards and ought to be appreciated.[8]

DIGNIFYING THE MENTALLY ILL

Apart from the MH Act, various legislations and precedents define the contours of access to rights in a citizens life thereby affording them dignity, these contours, however, often fall short of engulfing within themselves, mentally ill individuals. A facet of dignity is bodily autonomy vis-à-vis reproductive rights, wherein the concerned statute is Section 3(4)(a) of The Medical Termination of Pregnancy Act (hereinafter MTP) which mandates the consent of a guardian in case of access to abortion for major (above 18) women who is mentally ill. The statute came under the radar in the case of Suchita Shrivasatava vs. Chandigarh Administration  wherein a mentally ill women who pregnant as a result of rape, expressed the desire to give birth. Since she was an orphan and did not have a legal guardian, the High Court assumed the role of parens patriae, and ordered to terminate the pregnancy of the women. An appeal in Supreme Court, however rejected the same, stating that the consent of the ‘mentally ill’ is necessary in abortion, premised on the bodily autonomy jurisprudence. Even though what the judgment tells us is progressive for bodily autonomy but still what it refuses to acknowledge is vital for the future of mental health. Here, the Court refused to either posit guidelines or differentiate between different types of mental illnesses and the varying level of autonomy that each disorder holds. If the above-mentioned Section of MTP Act was to apply where a guardian was present, the same would yield different results and the women’s autonomy would entirely be in the hands of the guardian, irrespective of her particular disorder.[9]

As evidenced above, the diversity within the mental illness spectrum is not recognised in legislations and judiciary alike. The U.K suffered the same plight but their parliament in 2005 passed a bill called the ‘Mental Capacity Act’, which employs a two tier test to determine capacity. First, the existence of any impairment is tested and secondly the degree of the impairment is checked. The Indian judiciary and legislation miss the second tier of the examination, which is crucial. Hence, a remedy which can be prescribed in India to avoid the bundling up of mental disorders which result in blanket loss of autonomy is a legislation which employs the first and second tier of such ‘testing’.

CONCLUSION

Legislations and concrete studies do not always guide the views of the society, but literature often reflects attitudes.

Hence, a glimpse at Manto’s infamous and revered story called Toba Tek Singh which shows the protagonist languishing in an asylum and then being transported to another country at whim, even though a figment of Manto’s imagination as a character but this portrayal was accurate in terms of the isolation, stigma, dehumanisation that came with Mental illness, during the British era. Even though the mental health framework has improved but the stigma persists, perfectly exemplified in a recent Netflix Special called House Of Horrors[10]. Even though harrowing, it highlights the lack of knowledge about mental health that persists in India, the media houses jumping on misinformation and pushing a ‘supernatural/paranormal’ narrative, which has plagued India for long. Hence with these views, unfortunately, the story of mental health in India still represents a failure of perception compounded by the failure of policy.

With the advent of a discourse, however, a glimmer of hope persists.

[1] Parisha Jijina, Mental Health Concerns and Challenges in India: The Way Forward, 4 LIBERAL Stud. 239 (2019).

[2] A. Mukherjee, G. Bandopadhyay & S. S. Chatterjee, COVID-19 pandemic: mental health and beyond – the Indian perspective, 38 Irish Journal of Psychological Medicine 140–144 (2021).

[3] Tushar Savarkar & Shankar Das, Mental Health Problems Among Street Children: The Case Of India, 2 CURRENT Res. J. Soc. Sci. & HUMAN, 39 (2019).

[4] Geetha Suresh, L. Allen Furr & Aylur Kailasom Srikrishnan, An Assessment Of The Mental Health Of Street-Based Sex Workers In Chennai, India, 25 J. CONTEMP. CRIM. Just. 193 (2009).

[5] Madhurima Ghosh ,Mental health insurance in India: lack of parity, The Lancet Psychiatry, 8 (August 17, 2021)

[6] Sireesha Srinivas Rao, The mental health care act 2017: A critical review, Telangana Journal of Psychiatry,:4(2):55-56 (July-December 2018)

[7] Ameya Bondre, Soumitra Pathare, John A. Naslund, Protecting Mental Health Data Privacy in India: The Case of Data Linkage With Aadhaar, Global Health: Science and Practice, 9 (3) (2021)

[8] Richard M. Duffy and Brendan D. Kelly, Concordance of the Indian Mental Healthcare Act 2017 with the World Health Organization’s Checklist on Mental Health Legislation, INT J MENT HEALTH SYST (2017).

[9] Malavika Parthasarathy, Integrating Mental Health Perspectives into the Legal Discourse on Reproductive Justice in India, Journal of NLU, 6 (2019)

[10] A documentary about the deaths of 11 family member in the Burari Region of Delhi.


ABOUT THE AUTHOR

Garima Tyagi

Garima is a third-year student of LL.B program at O.P. Jindal Global University.

One response to “Mental Health & the Law”

  1. […] Historically, in times of great distress communities tend to band together and work through the turbulent times but the very nature of Covid-19 forced people to isolate. On top of which, India was already suffering from a mental health crisis due to a dearth of funding, mis-diagnoses, lack of qualified professionals with unequipped clinics[1] etc. […]

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: