A Hard Look At The Features Of India's Mental Health Bill

This article was first published on Healthcare Executive.

The Mental Healthcare Act 2017 has been considered as one of the most progressive legislations of India. But is there any point having legal provisions unless there are matching financial, professional and infrastructural resources on ground? HE finds out.

In 2001 August, the government of Tamil Nadu held a rather unconventional session. A group of doctors, bureaucrats and policy makers assembled to discuss about a fire which broke out at a Dargah asylum for mentally ill patients - 26 of them were burnt to death because they were chained. In fact, Erwadi and the neighbouring villages were known for private homes sheltering the mentally ill.

Notably, the state government soon closed down all the mental homes in the region. Yet, faith healing and confinement still continue to be a major part of the mental healthcare management.

Why do we need a law?

“There is a need for separate legislation relating to the care of persons diagnosed with a mental disorder for many reasons,” says Prof. R. Srinivasa Murthy, professor of psychiatry at NIMHANS . “Firstly, due to the nature of the mental disorder, there are situations where the mentally ill patients cannot take decisions for himself/herself. At these times, there is need for regulation of who exercises the power to take decision for the persons diagnosed with a mental disorder. Let me tell you what happened during the emergency with persons diagnosed with a mental disorders. In mental hospitals in one of the states, all males were sterilised, irrespective of the age, to meet the sterilisation targets.”

Interestingly, throughout history of mankind, there is a struggle as to who will have the power and how it will be exercised. Till about the 18th century, persons diagnosed with a mental disorder were considered ‘bad’ and put in jails/prisons with no rights. In the 18th and 19th century, the shift in community attitudes to think of persons diagnosed with a mental disorder as mad and requiring protection. Thus the asylums came up.

The next phase came in the beginning of the last century, when the contributions of Sigmund Freud and others placed the persons diagnosed with a mental disorder as ‘sad’ and called care in the community.

“It is for this reason, both in Europe and USA, the mental hospital were closed. For example, in UK for about 30 million, there were about 150,000 mental hospital beds and they are now reduced to a very small number for double the population. Similarly, in USA, from nearly 7 lakh beds it is less than a lakh. As a result, in America more mentally ill are in the jails rather than the psychiatric facilities. The next phase is in the last twenty years, where there is recognition of the legal capacity of the persons diagnosed with a mental disorder and their human rights. This got crystallised in the UNCRPD in 2006,” he adds.

“The second-most important reason is the protection of ‘decreased criminal responsibility ‘of a person with mental disorder, when he/she commits a crime as a result of mental disorders, concludes Murthy.

Re-establishing human rights

The 1999 NHRC report about the situation of mental health hospitals in India is quite interesting. The report pointed out that many mental hospitals maintained the jail-like structure. Further, in hospitals in Varanasi, many were asked to urinate and defecate in open drains. Sources point out that even today there are several institutions which don’t follow quality control regulations of the government.

Rajesh Mundra, CEO Truworth Wellness, seconds the report. “Considerable legislative progress has been made since the enactment of Mental Health Act of 1987 . It was only the recent amendment that made anaesthesia compulsory in order to administer electroconvulsive therapy,” he adds.

Aamir Khan Case and Autonomy of the Mentally Ill.

Debate about rights of mentally ill is by no means, a new phenomenon. In 2007, Aamir Khan was denied the custody of his mentally ill brother, Faisal Khan.The Bandra Metropolitan Magistrate said Faizal need not be in anybody’s custody and can live anywhere he wants to. It was considered as a landmark judgment among activists who fought for human rights.

Light at the end of the tunnel

Despite the mixed response, many also recognise the benefits of the act.“We don’t live in a perfect world and we don’t have perfect laws. The MHC Act 2017 is not a perfect piece of legislation but it is a humongous leap forward from the previous law and more in tune with contemporary realities,” says Abhijit Nadkarni, co-director, Addictions Research Group, Sangath Goa.

“It is an aspirational legislation and if we are able to implement it in its truest spirit then it will take mental health care in India, probably kicking and screaming, into the 21st century. But like many complex legislations the devil is in the details and it will be successful only if appropriate procedures are put in place. And this will require putting aside animosities between different groups of stakeholders and working together to implement a law which will eventually benefit the most important stakeholders, the people with mental health problems,” he adds.

Need more Creative Approaches

Much is invested in legislation at the moment. And often clauses like advance directive have been inspiring and important.

“The advance directive initiative is surely to make people feel a lot more secure to go through the process of mental treatments,” says Arjun Goutham, mind coach, at HealthEminds, adding, “Although, practitioners might find it intrusive of their analysis and approach. The registration of the mental health practitioners, caregivers with the central or state bodies is a great first step towards organising the sector. Further changes to ensure quality are going to impact the sector massively.”

The amendments of treatments like electroconvulsive therapy and exclusion of the same for youngsters did raise some eyebrows. “Hope the same applies to adults too in the next amendment. There are better and more humane ways of working with a human mind. Lack of creative approaches must never be compensated by barbaric ways in today’s era,” he adds.

The reactions about law have not all been congratulatory. However, many liked clauses like decriminalisation of suicide.

“Decriminalisation of suicidal behaviour provides a humanistic view towards psychiatric ailments. The sufferer needs to be seen with an eye of empathy and treated timely and appropriately. Due to the previous laws many a times the sufferer or the family would not reveal the true details of a suicidal attempt in fear of the Police and law, resulting in inappropriate care and delays in treatment. In fact the caregiver and the treating doctor need to carefully understand the underlying factors that leads a person to a state of self-harm or suicidal behaviour. Suicide is a preventable cause of death and timely psychiatric treatment can be quite helpful ,” says Dr. Sameer Malhotra, Director,Dept Of Mental Health and Behavioral Sciences, Max Hospitals

Is a law enough to make the disease more visible?

Keshav Desiraju, former health secretary, who had worked on the MHC Act 2017, points out that it would bring lot of changes in the sector.

“The MHC Act, 2017 privileges the care, treatment and welfare of persons with mental illness . The rights of persons with illness are to be promoted and not necessarily the rights of families and caregivers or the rights of treating psychiatrists. This needs to be recognised, and understood, by persons with illness, their families and caregivers, their employers and friends and by their treating physicians. When this happens, it will be a fundamental change in the way in which we look at the delivery of health care services in India. It is possible that in due course the rights-based approach built into the MHC Act, 2017 will lead to a rights-based understanding of health care and, eventually, to legislation that promotes the right to health,” he says.

Organising Mental Health Services

Desiraju also adds that great deal depends on the understanding of the state governments and the availability of budgetary resources, whether central or state, for mental health. We also need substantially larger numbers of psychiatrists, psychiatric nurses, psychiatric social workers, clinical psychologists, professional caregivers, etc. and state governments will need to create the appropriate training facilities for each of these categories of professionals. The Central, State and District Mental Health Authorities need to be set up. We can begin looking at implementation of the Act only then. However, to start with all persons currently admitted to institutions under Section 19 and Section 20 of the former MHA, 1987 will need to be reassessed and state governments should start this process immediately. Much also depends on how the MHC Act, 2017 is interpreted by the courts and the rulings that we will, in due course, receive.

Feature Image Courtesy Shu Chen Li Illustration