The Law and You: Mental Health in India

Mental health can be simply understood to mean a state of mental well-being. The World Health Organisation looks at understanding mental health and its definition quite comprehensively here. Mental health in India has long been a misunderstood issue; there is a lack of awareness on issues of mental health, corresponding treatment and frameworks that govern mental health. As a result, the way issues of mental health are dealt with are more under the aegis of superstitions and taboos, rather than scientific medial processes.

Vandita Morarka kicks off a special series for The Health Collective in an attempt to understand the law that governs mental health in India and its resultant rights and duties.

Recognising the Agency of Persons with Mental Illness

The Mental Healthcare Act, 2017 is a recent law that positions its approach towards mental health and mental healthcare from a rights-based perspective. Its aim is to provide mental healthcare in a manner that is in line with protecting, promoting and fulfilling the rights of persons with mental illness, throughout the care process.

• The law recognises the capacity in ALL persons, including those who have mental illness, to make decisions regarding their own mental healthcare and the treatment they would want to undertake
• Such capacity is recognised, if a person understands all relevant information related to the treatment, comprehends the consequences of her/his decision and communicate this information
• This communication may also be by way of sign language or through visual aids
• The law expressly states that if another person views any such decision as wrong, it does not mean that one cannot make such a decision

This is the key pivot around which the law builds upon, as it recognises the agency of persons to make decisions regarding their personal mental healthcare by themselves.

The law gives every adult the right to make an Advance Directive, in writing, which has to specify the manner in which they wish to be treated (or not be treated) for a mental illness, along with provisions to appoint a Nominated Representative.

An advance directive can be made by a person irrespective of their past history of mental illness or treatment, as long as it is not in violation of any other law. This directive can only come into force once the person ceases to have the capacity to make such a decision and stops being in force once the person regains such capacity. The person making such a directive can revoke, amend or cancel it at any point.

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If a mental health professional or a relative does not wish to carry out treatment of the person in accordance with the advance directive, she/he will have to make an application to the concerned Board for a review and any changes. In the case of minors, the legal guardian has the right to make such an advance directive. By providing such a measure, the Act makes it easier for a person to formalise and have control over the treatment process. While the clause allowing for treatment against such directives by way of application can be misused, it is being viewed as necessary, as cases evolve.

What other rights does the Act provide to persons with mental illness to further their personal agency?

The Act recognises the right of persons with mental illness to live a life of dignity, that is one without discrimination and reaffirms their equality in all aspects of treatment to persons with physical illness. It further provides protection from cruel, inhumane and degrading treatment, at mental healthcare establishments.

• This Law gives those with mental illness the right to community living and governmental support for cases where the person does not have familial support, to live outside of a mental healthcare establishment, when they can medically do so
• It provides the person with the mental illness and her/his nominated representative with the right to information regarding the law, nature of illness and treatment, in a comprehensive manner and the right to access medical records
• All mental healthcare professionals are to maintain confidentiality regarding their clients
• No information or photographs relating to a person with mental illness can be released to the media, without the consent of the person
• A person with a mental illness retains the right to decide on personal contacts and communication, in keeping with the guidelines of the mental health establishment, unless otherwise specified. This would include emails, personal visits, phone calls etc., and allows the person to refuse or agree to contact any person
• The Act also provides for good quality, accessible and affordable mental healthcare facilities by the Government and for free services for those that are homeless or Below Poverty Line (BPL), even if they do not possess a BPL card
• Persons with mental illness are given the right to free legal aid as well as the right to raise complaints regarding deficiencies in services they are receiving
• In a final act of recognising the agency of persons with mental illness regarding their own lives and understanding the causes behind suicide attempts, the Act decriminalises attempts to commit suicide

Pragya Lodha, Research Assistant at the de Sousa Foundation, tells The Health Collective, “The Mental Healthcare Act is a patient-centric law, a definite progressive step towards India’s better mental health.”

It changes the conversation and brings it back to the person with the mental illness, giving her/him the right to choose and to make decisions. However, the Act does raise concerns amongst mental healthcare professionals regarding how effective such a patient -centred approach would be realistically.

 

About the Author

Vandita Morarka is an independent policy consultant, legal researcher and gender rights facilitator. She is currently the Policy, Legal and UN Liaison Officer at Safecity (Red Dot Foundation). She is working on a series for The Health Collective looking at The Law and You: an attempt to understand the law that governs mental health in India and its resultant rights and duties.

Views expressed are personal. Material on The Health Collective cannot substitute for professional mental health advice from a trained professional. For more on help available, do click here. (Post updated November 12, to correct Pragya Lodha’s designation)