Search

MENTAL HEALTH AND ITS PROTECTION UNDER THE INDIAN LEGAL SCENARIO


In the undeniable context that every society needs laws in various areas to maintain the well-being of its people, mental health care is one such important area that requires appropriate legislation. In this unprecedented time, the issues relating to mental health across world have been exposed. In India, even before the outbreak of the COVID-19 pandemic, there was already a mental health epidemic.This pandemic has emerged as an eye-opener to show that India’s mental healthcare system needs strengthening and more support from the Central or State governments. People with mental disorders are vulnerable to abuse and violation of their basic rights.Such abuse or violation may occur from diverse elements in society including institutions, family members, caregivers, professionals, friends, unrelated members of the community, and law enforcing agencies. This sets an imperative for a protective mechanism to ensure appropriate, adequate, timely, and humane health care services. Such protective mechanisms include legislative provisions and policies to ensure that the rights of this vulnerable group are protected. Human rights and mental health care of vulnerable population need supportive legislations and policies. Amendments in laws and the formulation of new laws are often required and have been seen to occur in the area of mental health care in India.


In the last 70 years, there have been a number of international conventions, declarations, covenants, etc., that have reference to mental illnesses/mental health of an individual. The Universal Declaration of Human Rights was adopted in 1948. India is a signatory to many of these international declarations and thus has an obligation to align her laws to suit these.

In India, some of the laws pertaining to mental health include The Mental Health Act, 1987, The Protection of Human Rights Act, 1993, Persons with Disability Act, 1995, The National Trust Act, 1999, Protection of Women from Domestic Violence Act, 2005, Protection of Children from Sexual Offences Act, 2012, and related legislations. The recently published Mental Health Survey Report carried out in 12 states of the country estimates the prevalence of mental disorders at 10.6%, and the mental health care gap that has been calculated in these states as varying between 70.4% and 86.3%. In reality, given the huge inequity of mental health care resources across different states, and local ecologies that may aggravate mental distress, the mental health care treatment gap may be much higher. Mental health care, like other health care, requires human resources, facilities, and protected budgets.


Regarding civil responsibilities, mental illness is relevant across diverse areas. For example, issues such as marriage, divorce, testamentary capacity, contract, voting, consent, fitness for holding and continuing jobs, succession of property rights, guardianship, and social welfare benefits have reference to mental health and illness either directly or indirectly. The new provisions in the Mental Healthcare Bill, 2016, and the Rights of Persons with Disabilities are expected to bring a paradigm shift in the conceptualization of care of those with psychiatric disorders. It must be emphasized that the ultimate aim of any legal provision should be the welfare of the Persons with Mental Illness and the society at large. One such effort has begun at the NIMHANS, Bengaluru, where such a center has been conceptualized, and a postdoctoral fellowship in forensic psychiatry has been initiated in 2016. The proposed center, called the Centre for Human Rights, Ethics, Law and Mental Health, has the objectives of :-

(a) enhancing trained human resources in the areas of forensic psychiatry, law and human rights of persons with mental illness,

(b) establishing and providing the highest standards in diagnostic and investigative approaches in forensic psychiatry,

(c) developing a state of art clinical and resource facility in forensic psychiatry,

(d) facilitating the development of quality forensic services in different parts of the country.

In India, where 1 in 10 persons are reportedly receiving treatment for mental illnesses, and an an estimated 150 million are in need of active medical intervention, Mental Health Care Bill,2016 is a shot in the arm for the population. Rights of persons with mental illness according to Mental Health Care Bill,2016 :-

1. Access to affordable health care

Basically, anyone living with a mental illness in India now has a right to good quality, affordable health care in a place near you. The doctors and staff at the facility should not discriminate against anyone on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability etc. If any of this is violated, you can in fact go to court to ensure that your rights are protected.

2. Informed consent and power to take decisions

People living with mental illness can now make decisions regarding their health and treatment as long as they can understand the information related to the treatment and its consequences, and are able to communicate it.

Which means no one else can forcefully admit anyone in a hospital if they are lucid and understand what is happening to them.

3. Right to live in a community

Persons with mental illnesses have the right to live in a community and cannot be segregated from society. For those whom this is not possible, the government must provide legal and other necessary forms of support to help them live a regular life.

Additionally, a woman in a mental health care institution cannot be separated from her child who is less than three years old, unless doctors feel that the child could be harmed.

4. Right to confidentiality

You do not have to divulge details of your illness or treatment to anyone. The right to confidentiality also applies to doctors treating you, and also prohibits the media from publishing any such information without the individual's consent.

5. Decriminalisation of suicide

Suicide will not longer be treated as a criminal offence. Persons who do attempt suicide will be considered to be under severe stress by the law.

The preamble of the Mental Healthcare Act, 2017 aims to provide mental healthcare and services for persons with mental illness and to promote, and fulfil the rights of such persons during delivery of mental healthcare and services. The act is progressive, patient-centric, and rights-based. The Act envisages the right of the patients to access a range of mental healthcare facilities. In case these services are not available, a Persons with Mental Illness is entitled for compensation from the state. Various rights such as right to community living, right to confidentiality, right to access medical records, right to protection from cruelty and inhumane treatment, and right to equality and non-discrimination are all ensured by the law.

India has highest number of suicides in the world. The high crime and drug addiction rate in India also has direct nexus with mental health. The pandemic has added unseen mental health issues which has unearthed drawbacks in the existing mental health infrastructure and laws/polices. The lost productivity resulting from depression and anxiety - two of the most common mental disorders.Treatment of mental health disorders needs to be taken seriously and given equal or rather more importance than even physical health as there is ‘no health without mental health’.The policymakers need to promote mental health and easy access to cost-effective treatment of common mental disorders at the primary healthcare level.

The present mental health situation in India requires dynamic policy and resource allocation by the government. WHO has also noted that India has one of the largest populations suffering from mental illnesses ranging from depression and anxiety, to severe conditions like schizophrenia. The main cause for such an alarming situation is lack of understanding, awareness, sensitivity, and stigma attached towards people facing mental health issues. There is a serious shortage of mental healthcare workers in India. There is urgent need to use media and social media and other community services to increase awareness and reduce the stigma around mental health illness by implementing nationwide programs. So far, reform in mental health care has largely been reactive, but newer legislations and policies carry the hope of proactive reform. The consequences of the COVID-19 pandemic are visible on people’s mental well-being, and this is just the beginning. Unless we make serious commitments to scale up investment in mental health right now, the health, social, and economic consequences will be far-reaching. It is essential that mentally ill persons receive good quality mental healthcare and living conditions in their homes and society. However, one stark truth is that there needs to be a concerted drive to improve human resources in mental health care, and that will be the biggest challenge in the decades ahead.

-Sansita Jain

7 views0 comments

Recent Posts

See All

DOCTRINE OF LIS PENDENS

Introduction The Transfer of Property Act came into existence on 1st July, 1882. Section 52 of the act mentions about the doctrine of Lis Pendens which is titled as “Transfer of Property pending suit

LOK ADALATS UNDER LEGAL SERVICES AUTHORITY ACT

Legal Aid Scheme was first introduced by Justice P. N. Bhagwati under Legal Aid Committee formed in 1971. The Legal Services Authorities Act was enacted to constitute legal services authorities for pr

Intellectual Property Rights in India

Introduction Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognised, and the corresponding fields of law. I