Mental Health Statutes in India: Broad overview

INTRODUCTION

In today’s times, having an understanding and awareness about mental health care and the factors associated with it is extremely vital. This is so because a lot of people around us might be suffering from mental health issues and we are not able to help them out because we lack an understanding and awareness of the same. This is because we have a preconceived notion of mental health and mental illness and we often tend to associate it with a state of mind rather than an actual illness that requires the same amount of care, cure, treatment, attention and importance (or even more) as any other physical illness or disease does. Therefore, it is vital to know what mental health actually means and includes. According to the World Health Organization (WHO), mental health means “a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.”[1]

LAWS GOVERNING MENTAL HEALTH IN INDIA

The legislation is a significant component to begin with to guarantee proper, satisfactory, timely, and compassionate health care services.[2] The hard laws dealing with mental health care in India are-

• The Mental Healthcare Bill, 2013 & The Mental Healthcare Act, 2017;
• The Disability Act, 2016;
• The National Trust Act, 1999;
• Human Rights Act, 1993 and related legislations

The soft laws regarding mental health include the policies and programs formulated and implemented in that regard. In the absence of hard laws, these soft laws may play an important role in helping the Courts in the interpretation of a particular case.

INTERNATIONAL INSTRUMENTS RELATING TO MENTAL HEALTH CARE

Human Rights and mental health are interlinked with each other in the following three ways-[3]

(a) Mental Health policy influences human rights;

(b) Human Rights infringement influence mental health; and

(c) Positive promotion of both mental health and human rights are mutually reinforcing.

The following are some of the international instruments that cover certain provisions relating to mental health care-

1. Universal Declaration of Human Rights (UDHR 1948)[4]
2. International Covenant on Civil and Political Rights (ICCPR 1966)[5]
3. International Covenant on Economic, Social and Cultural Rights (ICESCR 1966)[6]
4. Convention on the Rights of Persons with Disabilities (2006)[7]
5. Convention on the Rights of the Child (1989)[8]
6. Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW 1979)[9]
7. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT 1984)[10]

Additionally, the non-binding international legal instruments such as The Declaration on the Rights of Mentally Retarded Persons 1971, The Declaration on the Rights of Disabled Persons 1975, The Declaration of Hawaii 1983, UN Principles for the protection of persons with mental illness and improvement of mental health care 1991, The Declaration of Caracas 1990, Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1993, The Declaration of Madrid 1996, The WHO Technical Standards (Mental Health Care Law: Ten Basic Principles and Guidelines for the Promotion of Human Rights of Persons with Mental Disorders) also contain provisions related to mental health care.

RIGHTS OF PERSONS WITH MENTAL ILLNESS

Mental Illness has been defined in Section 2(s) of the Mental Healthcare Act, 2017.[11] The Act under Chapter V enlists the various rights that are available to persons with mental illness. The rights are as under-

1. Right to Access Medical Records[12]
2. Right to Access Mental Health-Care[13]
3. Right to Community Living[14]
4. Right to Confidentiality[15]
5. Right to Equality and Non- Discrimination[16]
6. Right to Information[17]
7. Right to Legal Aid[18]
8. Right to Make Complaints about Deficiencies in the Provision of Services[19]
9. Right to Personal Contacts and Communication[20]
10. Right to Protection from Cruel, Inhuman, and Degrading Treatment.[21]

Additionally, they also have the Right to Self-Determination, Right to Dignity, Right to Advance Directive and the Right to Nominate a Representative. The new Act has also decriminalized suicide which is a great step in ensuring the protection of people with mental illness. The Act also provides for penal provisions for anyone who violates or is involved in the infringement of any of the rights mentioned above.

ETHICAL CONSIDERATIONS IN MENTAL HEALTH CARE

Along with the legal aspects related to mental healthcare, it also becomes extremely important to take into consideration the ethical aspects of the same. The ethical issues include-

• Choice of treatment,
• Confidentiality and Disclosure- The patient-doctor relationship is bound by the good and moral sacredness of privacy, all the more so in mental health. This is one of the most important duties of a doctor.[22]
• Lack of adequate information regarding forensic patients with mental illness.
• Restriction on the release of information with respect to mental illness.[23]

CONCLUSION

Every individual and society as a whole should be made aware of mental health care, mental illness and the persons with mental illness as well as their rights so that they don’t face any kind of discrimination or stigma in society. It is seemingly necessary that we open up and talk about mental health so that people stop associating it with any social stigma or taboo.

This article is authored by Nandini Menon, a 3rd-year student pursuing a 5-year law course [BSW LLB (Hons.)] at the Gujarat National Law University (GNLU).

Disclaimer: The article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our terms of use or write to us in case of any concerns.

[1] 'Promoting Mental Health' (World Health Organization 2004) <https://www.who.int/mental_health/evidence/en/promoting_mhh.pdf> accessed 28 June 2020.

[2] D. Nagaraja 'Mental Health Legislation: An Indian Perspective' (Academia.edu, 2008) <https://www.academia.edu/31297223/Mental_health_legislation_an_Indian_perspective> accessed 28 June 2020.

[3] Lawrence Ogalthorpe Gostin and Zita Lazzarini, Human Rights And Public Health In The AIDS Pandemic (Oxford University Press 1997).

[4] Articles 1,3,5,6,9,12,16,17,23,25.

[5] 'OHCHR | International Covenant On Civil And Political Rights' (Ohchr.org, 1966) <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> accessed 29 June 2020.

[6] 'International Covenant On Economic, Social And Cultural Rights' (Ohchr.org, 1966) <https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf> accessed 29 June 2020.

[7] 'Convention On The Rights Of Persons With Disabilities (CRPD) | United Nations Enable' (Un.org, 2006) <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html> accessed 29 June 2020.

[8] 'OHCHR | Convention On The Rights Of The Child' (Ohchr.org, 1990) <https://www.ohchr.org/en/professionalinterest/pages/crc.aspx> accessed 29 June 2020.

[9] 'OHCHR | Convention On The Elimination Of All Forms Of Discrimination Against Women' (Ohchr.org, 1979) <https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx> accessed 29 June 2020.

[10] 'OHCHR | Convention Against Torture' (Ohchr.org, 1984) <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> accessed 29 June 2020.

[11] “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

[12] The Mental Healthcare Act 2017, s. 25.

[13] The Mental Healthcare Act 2017, s. 18.

[14] The Mental Healthcare Act 2017, s. 19.

[15] The Mental Healthcare Act 2017, s. 23.

[16] The Mental Healthcare Act 2017, s. 21.

[17] The Mental Healthcare Act 2017, s. 22.

[18] The Mental Healthcare Act 2017, s. 27.

[19] The Mental Healthcare Act 2017, s. 28.

[20] The Mental Healthcare Act 2017, s. 26.

[21] The Mental Healthcare Act 2017, s. 20.

[22] 'Code Of Medical Ethics Regulations, 2002 | MCI India' (Mciindia.org, 2002) <https://www.mciindia.org/CMS/rules-regulations/code-of-medical-ethics-regulations-2002> accessed 30 June 2020.

[23] The Mental Healthcare Act 2017, s. 24.