The differences between the Mental Health Act, 1987 and the current Bill are stark.
The Mental Health Care Bill, 2012, primarily focuses on preventing inhuman treatment of persons with mental illness and aims at treating them as persons with equal legal capacity as others. The Bill is said to have drawn inspiration from the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
At least, this was the trigger for the government to update the Mental Health Act, 1987. The new Bill, pending before Parliament, is an improvement over the existing 1987 Act particularly in that it seeks to define “mental illness” elaborately, which was not done in the earlier legislation. Another important step the Bill has initiated is in seeking to create a new fora for mentally ill persons to appeal to.
Persons with mental illness, will, once it is passed, have the right to determine the means of their own treatment and, by appealing to these new fora which include the Mental Health Review Commission and Mental Health Review Boards. They also have a right to challenge any violations by psychiatrists of the new standards set up by the Bill. That is to say, there is a growing recognition of mental illnesses and that persons with mental illness deserve greater dignity in society and, by extension, liberty like other patients.
The ultimate aim of the Bill with regards to mentally ill persons is to facilitate, in a manner that the Mental Health Act 1987 was insufficient for the recovery and rehabilitation of persons with mental illnesses. It aims at the eventual “full participation in society” of mentally ill persons. At present, mental illnesses are not covered by health insurance. This Bill seeks to address this imbalance by providing for the ‘non-discrimination’ in health insurance policies.
Step forward
Defining mental illnesses in accordance with internationally accepted definitions and excluding discriminatory definitions such as those in violation of community norms, is one big step forward. The draft legislation also states that decisions regarding treatment that go counter to the opinions of family or doctors “shall by itself not be grounds” to determining the lack of capacity of mentally ill persons to making treatment decisions.
Under the Bill, the mentally ill person will have the right to make an ‘Advance Directive’ regarding how his/her treatment be administered in case he/she becomes mentally ill and unable to make decisions at a future date. The Bill, however, allows doctors and family members to seek the over-ruling of the Advance Directive. Therefore, the patient does not have the absolute right to refuse treatment, even in cases that are not emergencies, by an appeals procedure by the professionals or family to the state panel of the Mental Health Review Commission.
This seems controversial as there are no guidelines in the Bill regarding how the MHRC would come to its decision on any review of the Advance Directive -- the only guidelines that the Commission takes into account are some of the conditions where the Advance Directive was applied to. Perhaps further liberty to the patient is justified, though that decision could be made with the aid of experts and activists.
The differences between the Mental Health Act, 1987 and the current Bill are stark. For one, the new Bill has an exhaustive definition of mental illness while the earlier one merely defined a mentally ill person as someone who was in need of treatment but who was not mentally retarded. Another difference between the Act and the Bill is the Advance Directive which is a step forward in giving the patient freedom regarding his own treatment. With these measures, the new Bill promises to reduce scope for inhuman treatment of the patients.
Still, the new Bill suffers from possible failings. In addition to the Advance Directive susceptible to be over-ruled on basically any ground, there are other negative points. Any person can now be deemed to be a nominated representative who can take healthcare decisions on ill person’s behalf. This is completely contrary to the spirit of UNCRPD and human rights in general. Electroconvulsive therapy, banned without anaesthesia, can still be performed without the consent of the patient under the new Bill.
The Bill, while obviously an improvement over the existing Act, still falls short of being in the spirit of the UNCPRD. In this regard, expert Amba Salelkar argues that it allows for testing on human beings ranging from interviewing the person or going in for psychological, physical, chemical or medicinal interventions when the person is incapable of fighting against it.
Keeping this in mind, it is hard to see how the decriminalisation of suicide should be the most reported or highlighted section of the Bill, especially as currently, the state does not enforce that clause consistently in a majority of cases.
(The writer is with the Centre for Law and Policy Research)