Public Policy

Decoding Mental Healthcare act, 2017- Progressive in the letter, but how to retain its spirit?

“One of the great mistakes is to judge policies and programs by their intentions rather than their results.” – Milton Friedman

When I was in the seventh grade, my classmate in school had fractured his hand. He came to school with a plastered hand and everyone including the usual ruffians and the school authorities made sure that he didn’t engage in any physically strenuous activity. In the very same year, there was another student in our class. We didn’t really know much about him, except that he was a “special” student, who was on medication and touted to be an “absolute nuisance” in class. He would speak in loud shrieks, engage in physical fights when provoked and would be found crying for no apparent reason. In addition to the bullying by students, the teachers also ridiculed him. How interesting, I wondered, that we choose to care for, include and nurture the physically ill but conveniently disregard the mentally ill! Don’t we see this discrimination occur everywhere?

The present article, firstly, attempts at understanding the need for implementing a legislation for mentally ill individuals and then goes on to highlight the progressive provisions of the Act, and lastly, chalks out solutions which can help to retain the spirit of the legislation.

WHY IS THERE A NEED FOR SEPARATE LEGISLATION FOR MENTALLY ILL INDIVIDUALS?

Most of the severe mental illnesses are characterised by mood disturbances, impairment of cognitive function and loss of physical control over one’s own actions. Owing to these facts, it is imperative to understand that in some situations, the individual suffering a severe mental illness is not in the position to make decisions in one’s professional space, family life, and treatment. However, the fact that some severe cases of mental disorders impair decision making, does not automatically imply that every individual suffering from a mental illness has impaired decision-making ability. A lack of awareness makes it likely for us to make such a generalisation. This often leads to individuals with mental illness being discriminated against within workspaces and family environments. Thus, when we assume that an individual with mental illness has no autonomy because of impaired functioning, we automatically make them vulnerable to exploitation by their social, professional, and clinical environments. The very system that seeks to protect and rehabilitate the mentally ill, worsens the situation, often beyond repair. The solutions given by the Mental Healthcare Act, 2017 (MHA, 2017) are as follows.

THE HIGHLIGHTS OF THE MHA, 2017?

The MHA, 2017,[i] is made in alignment and harmonization with the United Nations Convention on Rights of Persons for Disabilities (UNCRPD) that was ratified by India in the year 2007.

ADVANCED DIRECTIVE AND NOMINATED REPRESENTATIVE

When Ulysses’ ship cruised past the alluring Sirens, he commanded his crew to tie him to the ship’s mast and not release him even if he pleaded them to do so. The rationale of the advanced directive and nominated representative is based on the same logic.

  • Psychiatric Advance Directive (PAD)

 As per Section 4 (1), persons with mental illness shall be deemed to have the capacity to make decisions regarding their mental healthcare or treatment. The capacity to make decisions shall be adjudged if the person has the ability to understand the information that would be conveyed to him using simple language, sign language, visual aids, or through any other means of communication which would enable him to understand the information and appreciate any reasonably foreseeable consequence of a decision. For instance, imagine ‘X’ as a patient with Bipolar I disorder, admitted to a psychiatric ward during a manic episode, highly excitable, euphoric, and irritable. This is obviously not a mental condition suitable enough for providing treatment preferences. But what if, in this state, the individual refuses treatment? How would the psychiatric personnel, in this case, take a call without the consent of the respective person? In such a case, the PAD shall be invoked. It is also a legal directive that is enforceable before the concerned Board.

  • Nominated Representative

An individual’s family member, relative, caretaker or psychiatrist who can take decisions on behalf of the mentally ill individual, who is unable to take a clinical decision, is deemed to be a Nominated Representative under the Act. While the legal and medical benefit of these two provisions is self-evident, both these provisions provide the much-needed autonomy that the mentally ill in India completely lacked, until now. If implemented, this Act shall not only promote transparency but also allow the patients confined in mental hospitals to regain control of their treatment and their lives.

RIGHTS OF PERSONS WITH MENTAL ILLNESS

Mental illness might or might not rid one of their decision-making ability, but in no condition can we assume that it rids one of the autonomy that comes along with the rights that are enjoyed by virtue of being human. As a major stride, the Act emphasises on social, economic and human rights of the mentally ill. In a significant change, there is recognition provided to the right of self-determination. Asserting one’s sexual orientation, propagating non-conforming ideologies shall in no way imply that a person is mentally ill. It recognises the need to view the mentally ill patients in the same light as physically ill patients by guaranteeing generality of services. The other rights, in alignment with international conventions, include the right to community living, right to protection from inhumane and cruel treatment in the community as well as Mental Health Establishments (MHE). Further, the Act acknowledges the concept of “informed consent” for the mentally ill. The Act upholds the right to maintaining confidentiality, so it also validates the testimony of a mentally ill individual in case of deficiency of services at MHE’s.

DECRIMINALISATION OF SUICIDE

An attempt to commit suicide is a punishable offence under Section 309 of the Indian Penal Code (IPC). However, Section 115 (1) of the Act doesn’t withstand the former. Section 115 (2) of the Act imposes the duty on the appropriate government to provide for rehabilitation to a person, having severe stress and/or attempts to commit suicide. There would be an argument that the State shall not interfere with an individual’s decision to end his/her own life by way of suicide. But what shall be the consequences if such an attempt fails? This is certainly a collective responsibility. The said Act encapsulates a paradigm shift from the deterrent theory to the reformative theory. Hence, this is one such law that would act as a catalyst in shaping societal beliefs.

PLAUSIBLE SOLUTIONS?

In India, we have already seen the dreadful plight of general healthcare services and the on-going pandemic has raised questions on the preparedness of the health sector. A report[ii] reveals that as of 2017, one in seven people in India suffers from mental health disorders, ranging from mild to severe. Mental healthcare is a new addition to the list of general healthcare services, and thus, it often remains underrated. The solutions are put forth in a threefold manner, to be implemented, at different levels:

POLICY REFORMS

  • Emphasis on early intervention:

The NMHS, 2016,[iii] revealed that 150 million Indians (urban > rural) were in need of active interventions posing a formidable challenge to our insufficient, inequitably distributed and inefficient mental health system. For the effective implementation of the Act, the governmental policies shall focus more on the accessibility of early interventions. Mental illness, in a majority of cases, does not completely make an individual incompetent in respect of their professional and personal life, at least, not forever. With adequate and early intervention, several cases of mental illnesses are manageable.

  • Human Resources:

According to the WHO Mental Health Atlas, 2017,[iv], India has only 0.3 psychiatrists and 0.07 psychologists per 100,000 population. This means that one mental health professional is expected to meet the mental health needs of an average range of 3-20 lakh people. A study[v] in the Indian Journal of Psychiatry stated, “Even if we keep the population growth rates and attrition rates of Psychiatrists at 0%, we require 2700 new psychiatrists annually to fill in the gap in the next 10 years. However, every year only 700 psychiatrists are trained in PG seats”. Due to the lack of trained professionals, the quality of service gets compromised too. The present operational guidelines,[vi] released by Ayushman Bharat: Comprehensive Primary Health Care (CPHC) through Health and Wellness Centers (HWC), states that skills required for frontline staff at HWC identify support provision of the first level of care as an “additional skill” and not a core skill. The same can be observed for recruitment of personnel at the community level. Thus, human resources shall be improved in terms of both quality and quantity.

  • Educational Reforms:

The NEP, 2020, is reformative. However, it is necessary to include Psychology as a compulsory subject in the State and National Education curriculum at the Primary or Secondary level along with the increase of the number of seats in PG diplomas. Students are not exposed to mental health studies until much later, and even then, Psychology is only an elective subject. This shall not only make the new generation capable of addressing their mental healthcare needs from an early age but also decreases the probability of a student opting for Psychiatry as an afterthought. Every year, only about 700-900 Post-grads are trained in Psychiatry. Despite this glaring gap, we don’t see an increase in PG seats for Psychiatry. For example, in 2019 the Centre approved an increase in 803 seats for PG diplomas in Medicine across all government colleges in the state of Madhya Pradesh, for a budget of 521 crores INR.[vii] Out of this, an abysmal 13 seats were increased for Psychiatry. As of this writing this article, there are only 766 seats for PG in Psychiatry. This number can definitely be considered as progress, as compared to only 140 seats in 2012 all over India. These statistics are relatively better, but we still have a long way to go. Further, the relatively lower remuneration for Psychiatrists makes it even less appealing and thereby contributing to the brain drain.

  • Progression in Budget:   

Section 18 (11) of the Act mandates progress under budgetary provisions. However, the budget allocated[viii] to the National Mental Health Programme (NMHP) saw a drastic reduction in FY 2019 to Rs. 40 crores from Rs. 50 crores in FY 2018. In FY 2020, the allocation for NMHP remains stagnant; even though the total healthcare budget saw a 7 per cent increase. Thus, there has been no improvement in the State’s response to mental healthcare post three years of the adoption of the Act. Even though the State’s purse is not capable of incurring the expenses for infrastructure in mental healthcare, at least as a priority, it does not mean that it can be conveniently sidelined.

  • Inclusion of civil societies:

Article 33 (3) of the International Convention for People with Disability[ix] says that there shall be full involvement of civil societies for effective monitoring of the implementation. But neither the AYUSH guidelines as mentioned above nor the Act obligates monitoring mechanism for the implementation and achievements of the established goals. Hence, civil societies shall be fully involved for assessment and thereby promote research in the field.

  • Awareness Initiatives:

The National Mental Health Policy, 2014,[x] has high ideals but formulating a manner of implementation, such that it penetrates at all levels, remains a problem. To ensure the same, there should be government-funded Public awareness infomercials in cinema halls, television, online media, and offline campaigns including implementation of a nationwide suicide prevention program. Further, the implementation of CMHC-like Program Implementation at the local level can also be considered.

LEGAL REFORMS

  • Right to access mental healthcare services under the ambit of Right to Health (Art. 21):

Section 4 (f) of the Act provides that if a patient cannot access mental healthcare facilities in his/her district and has to travel to another district, then the state shall bear the expenses of the individual.  Though philanthropic in nature, it shall not ensure universal access. This poses a legal dilemma as to whether the Right to Mental Healthcare Services can be interpreted under the wider ambit of Right to Life or whether accessibility is just a policy measure.   

  • Procedural Safeguards for implementation of Advanced Directives:

Technically, the advanced directive is written (often a process of 15-20 minutes)[xi] in collaboration with the respective mental health professional. But the Act fails to outline a procedure to implement the same, and thus, it can be subject to misuse especially because AD is a nascent concept[xii] in India.

  • Civil Rights of mentally ill Individuals:

The personal laws in our country fail to fully protect the civil rights[xiii] of mentally ill individuals and consider them incapable to lead a normal life. The said Act, on one hand, decriminalizes suicide whereas on the other hand, suicidal tendencies of a person are, till date, considered serious allegations which lead to divorce. Even the Supreme Court of India held that each case of mental illness has to be considered on its own merits and upheld the right of the wife suffering from schizophrenia by refusing to grant a divorce to the husband.[xiv] The Court concluded that the mental disorder of the wife was not of such a kind and to such an extent that the husband could not reasonably be expected to live with her. Hence, the personal laws surrounding the mentally ill individuals need to be more elaborate.

SOCIAL REFORMS

  • De-Stigmatization:

There has been growing stigma around mentally ill individuals due to the ridicule inducing language and innuendos in popular culture and misrepresentation of Mental Health Professionals as they are often shown to be unethical either due to clinical incompetency or violating sexual boundaries. There is no doubt that mental disorders in India are still considered a taboo which leads to concealment, making the predicament worse than it already is. Therefore, we, as a society, need to inculcate in ourselves values of empathy, create safe spaces and last but not the least, we should not hesitate to seek support.


Endnotes:

[i] The Mental Healthcare Act, 2017, available at http://egazette.nic.in/WriteReadData/2017/175248.pdf.

[ii] The Burden of mental disorders across the States of India: the Global Burden of Disease Study 1990-2017, available at https://www.thelancet.com/journals/lanpsy/article/PIIS2215-0366(19)30475-4/fulltext.

[iii] Analyzing Indian mental health systems: Reflecting, learning, and working towards a better future, available at https://www.jcrsmed.org/article.asp?issn=2455-3069;year=2019;volume=5;issue=1;spage=4;epage=12;aulast=Mahajan.

[iv] Mental Health ATLAS 2017, available at https://www.who.int/mental_health/evidence/atlas/profiles-2017/IND.pdf.

[v] Number of psychiatrists in India: Baby steps forward, but a long way to go, available at https://www.indianjpsychiatry.org/article.asp?issn=0019-5545;year=2019;volume=61;issue=1;spage=104;epage=105;aulast=Garg.

[vi] Operational Guidelines, Ayushman Bharat: Comprehensive Primary Health Care through Health and Wellness Centers, available at https://ab-hwc.nhp.gov.in/download/document/45a4ab64b74ab124cfd853ec9a0127e4.pdf.

[vii] 803 PG Medical Seats to be Added In 5 GMCs In Madhya Pradesh; Centre Gives Nod, available at https://education.medicaldialogues.in/803-pg-medical-seats-to-be-added-in-5-gmcs-in-madhya-pradesh-centre-gives-nod.

[viii] Huge gap in India’s mental health budget, available at https://www.thehindubusinessline.com/news/national/huge-gap-in-indias-mental-health-budget/article30733494.ece.

[ix] https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-33-national-implementation-and-monitoring.html.

[x] National Mental Health Policy of India, available at https://nhm.gov.in/images/pdf/National_Health_Mental_Policy.pdf.

[xi] Psychiatric advance directives: potential challenges in India, available at https://ijme.in/articles/psychiatric-advance-directives-potential-challenges-in-india/.

[xii] Mental Healthcare Act 2017 – Aspiration to Action, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482691/.

[xiii] Marriage, mental illness and law, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4539879/.

[xiv] Sharda v. Dharmpal, AIR 2003 SC 3450.

This article is authored by Sneha Golecha, a third-year law student at the University of Mumbai and Shahen Pardiwala, a third-year student pursuing a B.A. in psychology from Indira Gandhi National Open University.

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