The Mental Health Care Bill, 2012

From the British era till 1987, the persons with mental illness (lunatics) were admitted (forcefully) into the mental hospitals via orders of the magistrates via a legislation called Indian Lunacy Act, 1912.

As per this law, the mentally challenged people are not like other persons who deserve the treatment and care but are the people who are vaguely dangerous, and therefore it in effect primarily aimed to protect other people from persons with mental illness.

This was an err, and it was partially corrected in 1987 when the Mental Health Act of 1987 was enacted. This act allowed the voluntary admissions, but Magistrates still retained a central role for patients who were admitted to mental hospitals against their will.

This was the reason that the campaigns were started against this undignified and stigmatising provision. The mental health activists have been demanding to do away with these provisions and make some provisions, some of which have been addressed in the new Mental Healthcare Bill 2012.

The Indian Burden

Currently around 13 crore Indians suffer from sort of mental illness — depression, anxiety, schizophrenia and bipolar disorders and 90 per cent of these cases remain untreated. A recent study published in the British medical journal The Lancet says suicide has become the second leading cause of death among the young in India. Bengal topped the infamous “highest number of suicides list” for 2011 with 16,492 deaths followed by TN with 15,963 suicidal deaths.

The Bill

The new Mental Health Bill 2012 is expected to be tabled in the winter session. The proposed Bill attempts to raise India’s 25-year-old law on mental health treatment to standards set by the United Nations. Here are some of the notable features.

It completely prohibits Electro Convulsive Therapy (ECT) or shock therapy
without muscle relaxants and anaesthesia in adults, and bans it altogether for minors.

A person with mental illness shall be treated equal to physical illness, and stipulates that public and private insurance providers “shall make provisions for medical insurance for treatment of mental illness on the same basis as is available for treatment of physical illness“.

Compulsory tonsuring and uniforms in psychiatric institutions has been altogether banned.

Proof of a person’s current or past admission to a mental health establishment or proof of a person’s current or past treatment for mental illness shall not by itself be ground for granting divorce. The Bill says that if during judicial proceedings, any current proof of mental illness is raised; the matter will have to be referred to the state Mental Health Review Commission.

The Bill decriminalises suicide by stating that a person who has attempted suicide shall be examined by a psychiatrist before a criminal investigation is initiated. If the doctor concludes that the act was prompted by mental illness, then “no complaint, investigation or prosecution shall be entertained against the person, notwithstanding anything contained in the Indian Penal Code.”

Last year, the Supreme Court had also observed that time had come to decriminalize attempt to suicide, dubbing the law “anachronistic” and called for its removal.

Even the Law Commission had said that attempt to suicide “may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence”.

The much debated right to consent of a mentally ill person has been addressed for the first time in this Bill. The Bill introduces a provision known as Advance Directive. Under this concept, any adult with or without history of prior mental illness, has the power to declare in advance his or her preferred method of treatment, in the advent of a mental health problem. Under this provision, a person even has the authority to refuse treatment. The individual also has the right to “nominate a representative”, who will take decisions for him or her in the advent of any mental illness.

For the first time psychiatric patients will have the right to seek complete information about their treatment, including all records, even in case of involuntary admissions. If the treating psychiatrist feels the patient is not fit at the time of admission or during treatment to take this information then it is the primary responsibility of the medical officer or psychiatrist in charge of the person’s care to ensure that the full information is provided promptly when the individual is in a position to receive it. The nominated representative will nonetheless be given the information immediately.

It bars prolonged hospitalisation, chaining. It also prescribes that all persons with mental illness have the right to dignity, and to live in, be part of, and not segregated from society.

The Bill also mandates that mental health services shall be integrated into general health services at all levels – primary, secondary and tertiary, and that these services shall be available in the neighbourhood.

The Bill also proposes to bring Mental Health Review Commissions at district, state and national levels.

In case of any violations of the provisions of proposed law, the Bill proposes imprisonment ranging from six months to two years and/or fine from Rs 10,000 to Rs five lakh.

The Debate

The bill has met with fierce opposition from some radical disability and mental health organisations mainly because it retains provisions in rare cases to admit patients for care, even against their will. Radical mental health activists are dismayed because the new Bill still allows involuntary admissions of patients against their will. They are uncompromising that the will of the patient should be absolute regarding whether or not she wishes to accept treatment and care.

On the other hand, many persons with mental illness, and their care-givers, recognise that there are occasions when it is in the paramount interest of some patients to be given care forcefully, even when they refuse it, if the person is in imminent danger of causing harm to herself or to other people. The Bill limits involuntary admissions to only such cases, with many checks and balances. Forced admission is only for 30 days at a time. The Magistrate is removed from the picture completely, and is replaced by mandatory reviews of all such cases by mental health panels, which comprise judges but also administrators and persons with mental illness and their care-givers.

Activists point out that the Bill takes away judicial safeguards present in the Act, and entrusts too much authority to the treating psychiatrist, opening a potential area of misuse.

Activists allege that the Bill is partial to the private sector.

Some activists demands that all rights of people with psychosocial disabilities should be covered under the recently drafted Rights of Persons with Disabilities Bill, 2012, and that the MHC Bill be given a quiet burial. The Rights of Persons with Disabilities Bill guarantees the ‘legal capacity’ and the ‘right to choice’ of all persons with disabilities, including those with psychosocial disabilities.

The groups are concerned as they are advocating community mental healthcare and an end to establishment of more institutions such as psychiatric facilities. That is stated by UNCRPD (UN Convention on Rights of Persons with Disability), which India ratified in 2007. Some sections feel that the Advance Directive Procedure in the bill is complex and impossible to achieve.

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