Mental Health Laws in India

Health encompasses the composite union of physical, spiritual, mental, and social dimensions according to the World Health Organization (WHO), which recognizes that “mental health and well-being are fundamental to quality of life, enabling people to experience life as meaningful, become creative and active citizens”. For a nation like India where there is extreme apathy towards the mentally ill, a sphere significantly different from general health, the need for legislation that secures their rights is a necessity.

The neglect of mental health is evident from a World Health Organization report which estimated that 50 million Indians suffered from depression. The enactment of the Mental Healthcare Act in 2017 by the government was an attempt to protect mentally ill people and enable citizens to decide on the method of treatment in such a case to curb the prevalent mistreatment, neglect, and stigma.

The Act seeks explicitly to comply with the United Nations Convention on the Rights of Persons with Disabilities. It grants a legally binding right to mental healthcare to over 1.3 billion people, one-sixth of the planet’s population. However, key challenges relate to resourcing both mental health services and the new structures proposed in the legislation, the appropriateness of apparently increasingly legalized approaches to care (especially the implications of potentially lengthy judicial proceedings), and possible paradoxical effects resulting in barriers to care such as the revised licensing requirements for general hospital psychiatry units.

Also, there is an ongoing controversy about specific measures like the ban on electro-convulsive therapy without muscle relaxants and anesthesia, reflecting a need for continued engagement with stakeholders including patients, families, the Indian Psychiatric Society, and non-governmental organizations. Despite these challenges, the new legislation offers substantial potential benefits not only to India but, by example, to other countries that seek to align their laws with the United Nations’ Convention on the Rights of Persons with Disabilities and improve the position of the mentally ill.

Keeping in view the massive health burden of mental illness in our country, existing inadequate infrastructure/workforce, the social stigma attached, and glaring shortcomings of the Mental Healthcare Act 1987, it becomes imperative for the government and various stakeholders to address these issues. There is also a need to work on the country’s international obligation toward the mentally ill people as per the Convention on Rights of Persons with Disability (2007) and its optimal protocol. Hence, a patient-centric bill that safeguards available, affordable, and accessible mental healthcare services was long overdue in India.

The act defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs”. It rescinds the Mental Healthcare Act 1987 which had been widely criticized for not recognizing the rights of a mentally ill person and paving the way for isolating such dangerous patients. This has also overturned Section 309 of the Indian Penal Code which criminalizes attempted suicide by a mentally ill person. Another highlight of the Act is to protect the rights of a person with mental illness, and thereby facilitating access to treatment and by an advance directive, how they wish to be treated.

The Act empowers accessibility to mental health services for all. This right is meant to ensure that services be accessible, affordable, and of good quality. It also mandates the provision of mental health services be established and available in every district of the country. However, with already inadequate medical infrastructure at district and subdistrict levels, the financial burden to be borne by the state governments will be massive unless the central government allocates a larger portion of the budget to incur the expenditure.
The concept of advance directive, which gives patients more power to decide certain aspects of their own treatment, has been picked up from the West. However, unlike developed countries, local factors such as existing mental health resources and lack of awareness about mental illness in India have not been taken into account. Mentally ill persons who suffer from serious psychological disorder often lack the ability to make sound decisions and do not always have a relative to speak on their behalf. In such a situation, treating physician is the best to take decisions because patients or their nominated representatives have limited knowledge on mental health and mental illness. Hence, from a physician perspective, this new directive will definitely lengthen the time of admission of mentally ill persons.

The act also recognizes the right to community living; right to live with dignity; protection from cruel, inhuman, or degrading treatment; treatment equal to persons with physical illness; right to relevant information concerning treatment, other rights and recourses; right to confidentiality; right to access their basic medical records; right to personal contacts and communication; right to legal aid; and recourse against deficiencies in provision of care, treatment, and services. However, the estimate of expenditure required to meet the obligations under the law is not available. It is also not clear how the funds will be allocated between the central and the state governments.
The act also assures free quality treatment for homeless persons or for those belong to below poverty line (BPL), even if they do not possess a BPL card. In our country, where mental illness is considered equal to depression, the obvious financial burden on government will be too high. For the financial year 2017–2018, the proposed health expenditure of 1.2% of gross domestic product in India. It is among the lowest in the world and the public health expenditure has consistently declined since 2013–2014. India spends 0.06% of its health budget on mental health care, which is significantly less than what Bangladesh spends (0.44%). Most developed nations spend above 4% of their budgets on mental health research, infrastructure, frameworks, and workforce, according to 2011 WHO report. While the new act makes several provisions, it provides no guidelines or rules of implementation.

The newly introduced decriminalization of suicide is definitely a welcome move. There could be very much a possibility of misuse of this bill. However, in cases of dowry-related burning/attempted homicide, this can be twisted as attempted suicide and will not warrant the needed attention.
In developing countries like India, persons with mental illness and their situations are being aggravated by socioeconomic and cultural factors, such as lack of access to healthcare, superstition, lack of awareness, stigma, and discrimination. The bill does not direct any provisions to address these factors. The mental healthcare bill does not offer much on prevention and early intervention.

Vidhit Verma

Vidhit Verma

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