The Ongoing Process of Amendments in MHA-87 and PWD Act-95 and Their Implications on Mental Health Care

By Narayan, Choudhary; Narayan, M. et al. | Indian Journal of Psychiatry, October-December 2011 | Go to article overview

The Ongoing Process of Amendments in MHA-87 and PWD Act-95 and Their Implications on Mental Health Care


Narayan, Choudhary, Narayan, M., Shikha, Deep, Indian Journal of Psychiatry


Byline: Choudhary. Narayan, M. Narayan, Deep. Shikha

Earlier mental health legislations in India, i.e. Indian Lunatic Asylum Act 1858 and Indian Lunacy Act (ILA) 1912, were primarily concerned with custodial aspects, and human rights aspects were hardly addressed in these laws. After the Second World War, "Universal Declaration of Human Rights" was adopted by the UN General Assembly in 1948 and India was a signatory to it. Therefore, it became pertinent to make appropriate changes in the ILA, 1912, which was in force at that time in India. The need of a new law led the Indian Psychiatric Society (IPS) to submit a draft Mental Health Bill in 1950. [sup][1] But the government initiated the process for enactment only in 1978 and introduced the Mental Health Bill in the Lok Sabha. After a long and protracted course, Mental Health Act (MHA), 1987 was finally enacted in 1987. After framing of the Mental Health Rules in 1990, it was finally notified to come into force in all the States and Union Territories only on April 1, 1993. But because of a large number of very complicated procedures, defects, and absurdities in the Act and also in the Rules, it could never be implemented properly. [sup][2]

Similarly, "Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific region" was adopted by "Economic and Social Commission for Asian and Pacific Regions" at Beijing in December 1992, in which India was also a signatory. To fulfill obligation under the proclamation, Persons with Disabilities (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS, AND FULL PARTICIPATION) Act, 1995 was enacted. UN convention on right of people with disability (UNCRPD) was adopted in December 2006. [sup][3]

At its foundation are the inherent dignity and the equal and inalienable rights of all people. After India ratified the UNCRPD, revision of all legislations relating to persons with disabilities (PWD) to bring them in consonance with the UNCRPD became obligatory for the government. Therefore, the process of amendment in of the MHA, 1987 and the PWD Act, 1995 was initiated by the Government of India in 2010. Ministry of health and family welfare (MHFW) initiated the process of amendment in MHA-1987, whereas that in respect of PWD Act, 1995 was initiated by the ministry of social justice and empowerment (MSJE).

United Nations Convention for Rights of People With Disabilities

UNCRPD was adopted in December 2006 and it was ratified by the Government of India in September 2007. Later, it was approved by the Indian Parliament in May 2008. In fulfilment of their obligations under the UNCRPD, state parties are required to bring their laws and policies in harmony with the convention. The purpose of the UNCRPD is to promote, protect, and ensure full and equal enjoyment of all human rights and fundamental freedoms by all PWD and to promote respect for their inherent dignity. The convention marks a paradigm shift in thinking about disability from a social welfare concern to a human rights issue. The new paradigm is based on the presumption of legal capacity, equality, and dignity, and it acknowledges that societal barriers and prejudices are themselves disabling. There has to be non-discrimination, equality of opportunity, and full and effective participation and inclusion in the society for PWD. Clauses 2, 3 and 4 of the Article 12, which is concerned with legal capacity of PWD, are reproduced below.

2. States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.

Thus, we see that the clause 2 recognizes that PWD shall enjoy legal capacity on an equal basis. Clause 3 provides that the PWD may be in need of "support" to exercise their legal capacity. Safeguard for preventing abuses of the "support" is provided in the clause 4, which should be for the shortest possible time and shall be subject regular review by a competent, independent, and impartial authority or judicial body.

It is pertinent to note that in the UNCRPD, there is no explicit prohibition of forced institutionalization for persons with mental illness (PMI), but neither does the convention explicitly permit it.

The MHA, 1987

MHA, 1987 [sup][4] is advancement over its predecessors the ILA, 1912 and other earlier Acts. [sup][5] It defines mental illness in a positive way and provides for simplification of admission and discharge process and OPD services in all psychiatric hospitals. There is mention of safeguarding human rights of mentally ill persons too. But it is alleged to be concerned mainly with the legal procedure of licensing mental hospitals, regulating admission in these hospitals, and guardianship matters of the persons with mental illness. Human rights issues and mental health care delivery are not properly addressed in this Act. Licensing of mental hospitals is presumably for the purpose of ensuring quality of services in these hospitals. Licensing, however, is also a major dampener for the establishment of services. There is a great paucity of services for persons living with mental illness, be they the services for care and treatment, leisure, and recreation, habilitation, and rehabilitation. The rigorous registration requirements further discourage people from setting up services. The question of abuse comes into play only if services are in existence. A legal procedure which discourages people from entering the mental health arena and thereby further disadvantages persons living with mental illness requires reconsideration. [sup][6]

General hospital psychiatry units (GHPU) in the private sector are required to be registered under the Act, while those in governments are exempted. [sup][7] As a result, private general hospitals are discouraged to establish psychiatry indoor units. Assigning the role to judiciary in determining the presence or absence of mental illness has been criticized by the psychiatric community. It is a serious error to presume that judicial officers can determine the presence and nature of illnesses in people by personally examining patients. [sup][7] Having some role for the judiciary in admission and discharge of psychiatric patients is giving these things a criminal flavor. [sup][8] Admission process in any mental hospitals requires certification by a gazetted medical officer, which puts any private mental hospital to a disadvantage. [sup][9] By excluding mental retardation from the definition of mental illness, it has put an explicit bar on the treatment of all mentally retarded persons, including the profoundly retarded, in psychiatric hospitals. Persons who have profound mental retardation need care in total care institutions where a psychiatrist's expertise is available, along with all other standard facilities of a psychiatric hospital. [sup][7]

Human right activists have questioned the constitutional validity of the MHA, 1987 because it involves curtailment of personal liberty without the provision of proper review by any judicial body. It was stated, "The Mental Health Act is a statute which provides a procedure by which persons living with mental illness can be denied their liberty." It is also argued that the statute allows for a person living with mental illness to be institutionalized for a lifetime because it is technically possible to obtain entry without judicial intervention and then keep renewing the original order if the family or friends of the person living with mental illness are of the opinion that such institutionalization is in the best interest of the person living with mental illness. [sup][6]

Current process of amendment of the MHA-87

After the UNCRPD came into force, it became imperative for the government to revise the MHA, 1987 to bring it into consonance with the CRPD. Considering the pressing need for amendment of the MHA-87, a National Consultation on the Mental Health Program and on the MHA was held in January 2010 with the objective to review and identify gaps in the Mental Health Program and take actions to fill up these gaps. It was felt that the MHA, 1987 needs amendments. It should move toward supporting, promoting, and protecting the rights of persons with mental illness. Centre for Mental Health Law and Policy, ILS College, Pune, was given the responsibility of preparing the draft of the proposed legislation and present it to the MHFW after having nationwide consultation on it. The first draft was circulated on February 28, 2010, and after seeking objections and suggestions on the draft, a revised draft was released on April 23, 2010. Based on inputs from five regional consultations and those provided by professional bodies and other stakeholders, the third draft of amendments was released. The third draft was draft of a new Act, Mental Health Care Act (MHCA), as multiple repealed sections resulted in difficulty in reading the amended Act. [sup][10] A national consultation was held on March 23, 2011 to discuss about the proposed draft of MHCA, 2011 IPS took active part in the national consultation. After national consultation, the modified draft was submitted by the working group to the MHFW. The modified draft, after further consultation process by the government, has now been made available on the website of the MHFW. Main features of the proposed Mental Health Care Bill, 2011 (MHCB, 2011) are as follows. [sup][11]

Main features of the proposed Mental Health Care Bill, 2011

1. Nomenclature of the Act - The proposed Act is now Mental Health Care Act, concerned purely with health care aspects of persons with mental illness. Management of property aspect has been omitted in this draft. Supposedly, this aspect is now going to be covered by an amended National Trust Act, which is to be named as "Legal Capacity Act."

2. Statement of objects and reasons - The Act is stated to protect, promote and fulfill the rights of persons with mental illness (PMI) during the delivery of health care in institutions and in the community and to ensure health care, treatment and rehabilitation provided in least restrictive environment which does not intrude into their rights and dignity. It is aimed as well at improving their capacity to develop their full potential and facilitate their integration into community life. It is also stated to fulfill obligations under the Constitution of India and obligations under various International Conventions ratified by India. Improving accessibility to mental health care by mandating sufficient provision of quality public mental health services is also one of its objectives.

3. Mental Health Establishment- All health establishments called by whatever name either wholly or partly meant for care of the PMI, established or maintained by the government or any other entity or person, where PMI are admitted or reside at, or kept in, for care, treatment, convalescence, and/or rehabilitation, either temporarily or otherwise, and includes a general hospital or a general nursing home established or maintained by the government or any other entity or person and excludes a family residential place if a PMI resides with his or her relatives or friends.

4. Mental health professionals - A new category 'Mental Health Professional' (MHP) has been created which includes psychiatrist, clinical psychologist, psychiatric social worker, registered mental health nurse with degree in psychiatric nursing and an AYUSH practitioner having a specialized degree in 'Manas Rog'.

5. Mental illness - It has been defined as a disorder of mood, thought, perception, orientation, or memory, which causes significant distress to a person or impairs a person's behavior, judgment, and ability to recognize reality or ability to meet the demands of normal life and includes mental conditions associated with the use or abuse of alcohol and drugs, but excludes mental retardation. It is also stated that mental illness shall be determined in accordance with nationally and internationally accepted medical standards.

6. Capacity to make mental health care and/or treatment decisions - It is defined as the ability to understand the information relevant to the decision and to retain, use, or weigh the information as part of making decision and communicate his or her decision by any means. It is stated that all PMI are regarded as competent to make decisions except when they lack the ability as stated above. An Expert Committee is proposed to be appointed to prepare a guidance document for medical practitioners and MHP for assessment of capacity.

7. Advance directives - Every person has a right to make written statement specifying the way the person wishes to be or not to be cared for and treated for a mental illness and the individual or individuals he wants to be appointed as his nominated representative. The advance directive shall be made on a plain paper with the person's signature or thumb impression on it. It shall either be registered with the state panel of the Mental Health Review Commission (MHRC) or be countersigned by a medical practitioner who shall certify that the person has the capacity to make mental health care and/or treatment decision. The state panel of MHRC shall maintain an online register of advance directives. The advance directive shall be invoked only in the event of person not having the capacity to make mental health care and/or treatment decision. It may be revoked, amended or cancelled by the person who has made it. Medical professionals are duty bound to follow a valid directive. To overrule a valid advance directive an appeal can be made to the state panel of MHRC. Advance directive will not be applicable for emergency treatment under this Act. Medical practitioner or MHP shall not be liable for not following a valid advance directive if a copy of the same was not made available to him. It shall be the duty of the person who has made advance directive or his/her representative to ensure that the medical practitioner/MHP has the access to the advance directive.

8. Nominated representative - Any person who is not a minor has a right to appoint a nominated representative. Such appointment shall be made in writing on plain paper with person's signature or thumb impression. In absence of such an appointment, the individual in the order of precedence shall be the nominated representative. Order of precedence is as follows - individual named in an advance directive, a relative as defined, a caregiver as defined or a nominated representative appointed by the state panel of the MHRC. For a minor, the legal guardian shall be the nominated representative unless otherwise ordered by the state panel of the MHRC. The person nominated to be representative must signify in writing his willingness to perform the role. A person who has made an appointment under this section may revoke or alter the appointment at any time. Application can be made to the state panel of the MHRC to make, revoke, alter, change or modify an appointment of the nominated representative. Rights and duties of the nominated representatives have been described. The nominated representative shall consider the current and past wishes, values and best interests of the PMI while fulfilling his/her duties under the Act.

9. Rights of persons with mental illness - There is a separate chapter dealing with these rights, which includes right to access mental health care, right to community living, right to protection from cruel, inhuman and degrading treatment, right to equality and non-discrimination, right to confidentiality, right to access medical records, right to personal contacts and communication, right to legal aid, and right to make complaints about deficiencies in provisions of services. The Act makes it obligatory for the government to make sufficient provision for a range of services required by persons of mental illness. It includes integration of mental health services into general health care services at all levels. The government has to ensure that no persons shall have to travel long distances to access mental health services and it will have to be made available in each district. The government shall have to submit annual report to the Parliament (or to state legislature in case of state government) regarding progress achieved in respect of access to mental health care. PMI have the right of a safe and hygienic living environment, with adequate provision of food, facilities for recreation, privacy, etc. They shall not be subjected to physical or sexual abuse or forced to undertake work. There will be non-discrimination in respect of medical insurance and in respect of emergency medical services or any other health services. PMI or their nominated representative shall have right to information and right to confidentiality and shall in general be given access to their medical records. But the psychiatrist may withhold information in case of likelihood of harm to the PMI or to other persons and the PMI shall have right to appeal to the state panel of the MHRC in this respect. Free and informed consent is required from them in case research works. If they are unable to give free consent, permission will have to be obtained from the State Mental Health Authorities (SMHA).

10. Duties of the government - The government is assigned duties to plan, promote and implement programs for promotion of mental health and prevention of mental illnesses and to take necessary measures to create awareness about mental health and to reduce stigma associated with mental illness. Government officials including police officers, members of the judicial services are to be given periodic sensitization and awareness training on the issues addressed by this Act. Provisions of the Act are to be given wide publicity. Government shall make all efforts to meet internationally accepted guidance for number of MHP on the basis of population within ten years.

11. Mental Health Review Commission - A judicial body Mental Health Review Commission (MHRC) with headquarter at Mumbai is proposed to be constituted by the Central Government with a judicial member who is qualified to be Chief Justice of a High Court as President, a psychiatrist, representatives of PMI, caregivers or their organization and a person with a background of public health administration. The Commission shall appoint and function through state panels. State panels shall consist of a person qualified to be a District Judge as Chairman, representative of district administration, two MHP (one to be a psychiatrist) and two members who are PMI, caregivers or persons representing their organizations. Appeal against the decision of the State Panels shall lie to the High Court of the state.

12. State Mental Health Authorities -SMHA are proposed to be established by the state governments to perform various function under the act, like registration and supervision of MHF in the state, making rules and regulations for registration of MHPs in the state, training of all relevant persons about the provisions and implementation of the Act, and advising the State Government on all matters relating to mental health.

13. Registration of Mental Health Establishment - Licensing has been replaced with registration. In order to get registered, every MHE shall fulfill the minimum standards of facilities, minimum qualifications for the personnel, provisions for maintenance of records and reporting, and any other conditions as may be prescribed. The registration is to be done by the SMHA.

14. Inspecting officers and visitors - Provisions of inspection at anytime by the inspecting officers and provisions of visitors for every MHE have been dropped in the draft. But the SMHA shall have the right to cause an inspection of or an inquiry in respect of any MHE. SMHA can issue any directions as it may deem fit and the MHE shall have to take action to the satisfaction of the SMHA.

15. Admission process - There are four types of admission, described as follows:

a. Independent admission - Any person who is not a minor can request for admission in an MHE and can be admitted by the medical officer in-charge, if he is satisfied. If the independent patient requests for discharge, he will have to be discharged. But an MHP may prevent discharge of an independent patient seeking discharge for 24 hours, if the necessary conditions are met, to allow assessment by two MHPs necessary for supported admission under the Act.

b. Admission of a minor - A minor shall be admitted only in exceptional circumstances on an application in writing of the nominated representative of the minor, following the prescribed procedure. It is also specified that no irreversible treatment can be provided for the mental illness of a minor. They shall be accommodated separately from the adults. All admissions under this section will be informed to the state panel of MHRC within 72 hours. If admission continues beyond 30 days, it will again be informed to the state panel of MHRC. The state panel will make mandatory review within 7 days of all such admissions.

c. Supported admission up to 30 days - A PMI may be admitted in an MHE on request of his nominated representative, if two professionals, one psychiatrist, and the other being an MHP or a registered medical practitioner, examine the person independently and both conclude that the person has a mental illness, there is a risk or anticipation of risk of bodily harm or violence to himself/herself or to others or he/she is showing lack of capacity to care for himself/herself. The admission under this section shall be limited to 30 days. All such admissions shall have to be informed to the state panel of the MHRC within 7 days, and in case of women, within 3 days.

d. Supported admission beyond 30 days - If the person is already admitted under section 45 and the criteria of admission as described above are still valid, the person will remain admitted if examined independently by two psychiatrists in the preceding 7 days and both certify that admission in the MHE is the least restrictive option possible. But all admissions under this section must be informed to the state panel of MHRC and will have to be approved by it within a period of 21 days from such admission. Admission under this section will be limited to 90 days. Further admission beyond 90 days can renewed for 120 days at first instance and 180 days at subsequent instances upon application of the nominated representative and by following procedure as above.

16. Emergency treatment - Under section 50, treatment can be initiated by any registered medical practitioner with the consent of nominated representative in certain specified emergency situations, at any health establishment or in the community. But the treatment under this section will be limited to 72 hours, and ECT and medical treatment not directly related to the emergency shall not be provided under this section.

17. Prohibited treatments - ECT without the use of muscle relaxants and anesthesia, ECT to minors, and sterilization of PMI intended for treatment of mental illness are prohibited in the proposed draft. Psychosurgery may only be performed on approval of SMHA.

18. Restrains and seclusions - It is stated that PMI cannot be chained in any manner whatsoever and restrains and seclusions have to be used when it is the only means available to prevent imminent and immediate harm to the person concerned or to others. It has to be authorized by the psychiatrist in charge of the person's treatment at the MHE and may be used no longer than necessary.

19. Duties of police officers and order in case of person with mental illness cruelly treated - Police officers have been assigned duties to take any wandering PMI into protection. The person or his nominated representative shall be informed of the grounds for taking him/her into protection and will be taken to the nearest public health establishment within a period of 24 hours, where the medical officer in-charge shall arrange for the assessment of the person at the nearest public MHE and the needs of the PMI will be addressed as the provisions of the Act. If the person is found not to be suffering from mental illness, the police officer will be informed who shall have duty to convey the person to his place of residence. In case any PMI is cruelly treated or not under proper care, a police officer or any private person may report the fact to a Magistrate, who may order for conveying the person to a public MHE for assessment and treatment, as per other provisions of the Act.

20. Attempt to commit suicide due to mental illness - Any person who has attempted to commit suicide shall be examined by a psychiatrist. If the psychiatrist certifies that there are reasonable grounds to believe the suicide attempt was a result of mental illness, no criminal proceedings shall be initiated against the person for attempt to commit suicide.

21. Effect of Act on other laws - The Act also provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and to the extent of such inconsistency that other law shall be deemed to have no effect (Sec 66).

Stand of Indian Psychiatric Society on the Draft MHCA

IPS has welcomed the proposed MHCA and considered it a major improvement upon the MHA, 1987, but considered it to be too ambitious. IPS recommended realistic goals in the MHCA which should be achievable. Certain modifications sought by IPS in the proposed draft are briefly described below.

*Certain changes in definition of different categories of MHPs as well as in definition of mental illness. *GHPU should not be included in the definition of MHE. These are unique assets for Indian Psychiatry and have helped a lot to bring psychiatry to the mainstream. They have open wards and are mostly involved in acute patient care. Their inclusion in MHE would be a retrogressive step. The word "exclusion of the family residential place" is confusing and needs to be clarified. *Mental Health Authority at the central level should not be abolished but should continue. The expansion of membership with inclusion of stakeholders is a welcome step. *Assessment of 'capacity to make mental health care decisions' should be done by a psychiatrist or medical practitioner in modern medicine only. *Concepts of advance directive and nominated representative are good in principle, but may not be applicable at this juncture in our country and need not be introduced. Formal definition of these terms may be included. Clear-cut guidelines may be provided regarding these terms in different circumstances. *The chapters on Rights of PMI and on Duties of the Government are hallmark of the new revision and commendable introductions, but implementation may not be that easy. A realistic time frame and provision of budget may be included. *The words that minor can be admitted in an MHE only in exceptional circumstances should be deleted, as it will make admission of minors into an MHE very difficult.

The Process of Amendment of the PWD Act, 1995 and its Implication on Mental Illness

The MSJE appointed a committee headed by Dr. Sudha Kaul to review the PWD Act, 1995 for the purpose of bringing it into consonance of UNCRPD. There were about 30 members in the committee, representing official members, PWD, nongovernmental organizations, and experts from disability sectors. Incidentally, there was a single psychiatrist member who was Director, NIMHANS, or his nominee. The committee delegated the task of drafting the new legislation to Centre of Disability Studies, NALSAR University of Law, Hyderabad, on a paid legal consultant basis. After a series of meetings, State Consultation, National Consultation, and Legal Consultation, the draft "The Rights of Persons with Disabilities Bill, 2011" (RPWD Bill, 2011) was submitted to the MSJE on June 30, 2011. [sup][12] The Bill defines "Persons with Disability" as " persons with any developmental, intellectual, mental, physical or sensory impairments including those mentioned in Schedule 1 of the Act, which are not of a temporary nature, and which in interaction with various barriers may hinder full and effective participation in society on an equal basis with others." Obviously, the definition includes PMI. Mental illness is included in the Schedule 1 as well and defined on the same line as in the draft MHCB. Main features of the proposed Bill relevant for PMI are as follows. [sup][12]

*Section 18 of the Bill provides that PWD enjoy legal capacity on an equal basis in all aspects of life and have the right to equal recognition everywhere as persons before the law. Any express or implied disqualification on the grounds of disability prescribed in any legislation, rule, notification, order, bye-law, regulation, custom, or practice, which has the effect of depriving any PWD of legal capacity, shall not be enforceable. All PWD have the right on equal basis with others in financial matters. All PWD have the right to access support necessary for exercising the legal capacity according to their will and preferences, and their legal capacity shall not be questioned irrespective of the degree and extent of support, by reason of accessing support to exercise legal capacity. Person providing support shall not exercise undue influence and shall withdraw from providing support in case of conflict of interest. A PWD may alter, modify, or dismantle any support arrangement and substitute it with another. *Section 19 provides that plenary guardianship established under any law, rule regulation, or practice shall be hereinafter deemed to be establishing a system of limited guardianship. It is also provided that limited guardians shall act in close consultation with PWD to arrive at legally binding decisions. *Section 20 provides that the appropriate governments shall establish or designate authorities to mobilize the community and create social networks to support PWD in the exercise of their legal capacity. Such authorities shall take necessary steps for working and review of the support system, including the system of limited guardianship and for PWD living in institution and for those who need high level of support. *Section 21 provides that any act, order, or proceeding which denies or questions the legal capacity in any matter on the grounds of disability shall be void. Aggrieved PWD may file a complaint before the District Disability Rights Tribunal in addition to other statutory remedies. *Section 23 provides for PWD to enjoy right to personal liberty and section 24 provides for right to live in community for a meaningful and full life on equal basis with others. Governments shall launch suitable schemes and programs to achieve the objective of a non-coercive, non-restrictive and supportive living arrangement for PWD. *Section 57 provides for 7% reservation in all posts and promotion in all establishments, divided among different categories of PWD. However, PMI combined with the categories of autism and intellectual disabilities have been given only 1% quota. *Section 151 provides penal provisions of not less than 6 months imprisonment and/or fine for whoever voluntarily injures, damages, or interferes with the use of any limb or sense or faculty of a PWD, permanently or temporarily. Occasions may arise when psychiatrists may be sued under this section for treating their patients. *Section 162 provides that the provisions of this Act shall have the effect despite inconsistency within any other law and to the extent of inconsistency the other law shall have no effect.

Stand of Indian Psychiatric Society on the Proposed RPWD Bill

It is obvious from the above accounts that the proposed draft, if it turns into Act., will greatly affect the care of PMI and psychiatric practice in our country. But it is surprising that psychiatrist community was hardly ever involved in the drafting process in spite of extensive consultations held all over the country. The opinion of the lone psychiatrist member in the Committee, Dr. Srikala Bharat, was not given due weightage. IPS chose to write a letter to the Chairperson of the committee, voicing its concern on the issue. IPS appreciated the laudable objective of conferring legal capacity on PMI as enunciated in the UNCRPD; but at the same time felt that it is being exaggerated to the detriment of PMI themselves as well as the society at large. It is felt that the section 18 (as above) of the RPWD fails to discern, rather disregard the real objective of Article 12 of the UNCRPD. Article 12 calls for states to recognize and confer legal capacity "on equal basis," but its clauses (3) and (4) call the state parties to provide support needed by PWD to exercise their legal capacity and to provide "appropriate and effective safeguards" for all measures that relate to the exercise of legal capacity. It is clear that there may be exception to enjoyment of legal capacity "on equal basis" and the safeguard or exception are required to be subject to review by "a competent, independent, and impartial authority or judicial body," and is "proportional to the degree to which such measures affect the person's rights and interests." It is undeniable that sometimes PMI suffering from mental and/or intellectual impairments may not be capable to take rational decisions, which affects themselves and/or others. Laws have always recognized the special needs of persons with diminished mental capacity. But the aforesaid section 18 of RPWD fails to recognize the special need of PMI and appears to cripple the well-wishers of PMI and also the treating MHPs and vests rights in persons who may be incapable to exercise it in their own interest. For example, if a person suffering from acute schizophrenia or acute mania presents danger to himself or others around him but outright refuses treatment in restrictive settings, there is little his relatives or friend or an MHP would be able to do about it and would be silent witness to all the ruins.

There is also obvious discrepancy in the proposed draft of MHCB and the RPWD Bill. While RPWD Bill bestows plenary, unqualified competence to all PWD including PMI in all matters, the draft MHCB recognizes the special needs of MHCB at certain times and in certain circumstances. In addition, both provide for overriding provisions over other laws. Thus, if both turn into Act, there would be two conflicting pieces of legislation in the statute book.

The quantum of reservations provided to PMI among all PWD, which is 1% out of total 7%, does not appear to be reasonable taking into account prevalence of PMI in the general population. Incidentally, one study [sup][13] using the Indian disability evaluation and assessment scale (IDEAS) found that prevalence of PWD due to mental illness was about 2.3%. If for these people (together with autism and intellectual impairment making about another 1%), 1% reservation has been provided, then by the same parameter, the prevalence of persons with other disabilities might be around 20%.

Stand of Human Right Activist Groups vis-a-vis Mental Illness

Human right activist groups and disabled persons organizations (DPOs) assert that the UNCRPD envisages that all PWD including PMI have unqualified right to enjoy full legal capacity / capability without any hindrance and restriction, and if anybody in the world anywhere wants to use "restricted legal capacity." there is no way it can come into the law. They feel that a chance to make major historical legal decision has been opened by the UNCRPD. To quote from the proceedings of a workshop dominated by them, " The earth is flat, it was believed, until it was shown that the Earth is round. We have the same situation here. It is a mental readjustment we are here today with, in order to reform the law. No doubt there are fears, apprehensions, and doubts. We have to understand and empathise that. We may do what we want, but the earth is not going to become flat." [sup][14] They feel that mental asylums are huge business opportunities for lot of persons who keep people confined on a long-term basis. They want complete dismantling of all psychiatric hospitals and nursing homes and would say, " Let the mental illness businesses find other ways of making money. If Kingfisher and ITC can do that, why not the mental asylums? ". [sup][14]

Activist groups call for outright repeal of the MHA and the matter to be covered by a revised and comprehensive RPWD under the purview of MSJE, and the MHFW should have no say in it. They want practically a complete ban on involuntary admissions to mental health facilities and stiff control on psychiatric institutions (if allowed to exist). Activist groups vehemently protested taking away power of judiciary (magistracy) in admission and scrapping of the board of visitors and

other inspecting mechanisms and sarcastically called it "Total Empowerment of Psychiatrist Act." The proposed Act was termed as even worse than the MHA-87. They are pressing for "no force" principle in absolute sense without any "high support" clause. It was alleged that private psychiatry was the guiding force behind the proposed Act. Activist groups tried to discredit the whole psychiatric community by alleging it to be in league with big pharma industry for pushing up psychotropic drugs' sale by promoting psychiatry.

Summary and Conclusion

Legislations for PMI are meant for them and not for the MHPs or the human right activist groups. This fact must be kept in mind by everyone in the process of drafting the Act and stakes of all stakeholders should be the betterment of the conditions and protection of the rights of persons with mental illness. Psychiatrists want a legislation which provides for smooth admission process and least hassle in the establishment of psychiatric institutions, which should be exposed to minimum scrutiny by government or judicial authorities. But it has to be conceded that legal provisions in such cases are a constitutional requirement and are also necessary for protecting basic human rights of PMI as per the UNCRPD. On the other hand, protection of human rights of PMI is quite necessary, but it should not be so overstretched that their welfare and proper care itself is endangered. At one end, a mentally ill individual may pose danger to himself or others, and at the other end, he may be so gravely disabled that he cannot take care of himself and his rights. [sup][2] PMI require accessing the support system to exercise their legal capacity by reasons of vitiation of their mental state itself. Therefore, the system of "support" for them to exercise their "legal capacity" must take it into account and provide for some mechanism of "decision making" on their behalf with proper safeguard and review provisions. The principle of "no force" cannot be applied in strict sense of term.

Though the proposed draft of MHCB requires improvement in certain areas, it has many positive features. It is modern in terminology and progressive in nature. The most salient feature of the proposed draft is that it ensures institution of psychiatric health care delivery system and assigns obligation to the government for this purpose. It is in the interest of everyone if in the new Act, the emphasis is on ensuring easy availability of psychiatric treatment to all, finding ways to promote opening of more and more psychiatric inpatient facilities, providing for better care of wandering PMI, and protecting and promoting their basic human rights. Stringent provisions will be a great deterrent to the establishment of services for persons with mental illness, which is already scarce in our country. It must be realized that availability of services is necessary, otherwise PMI cannot attain the highest attainable standard of health as envisaged in article 25 of the UNCRPD. Thus, very stringent provision for establishment of psychiatric institutions will become self-defeating in purpose. The unfounded, baseless, and demeaning allegation of psychiatry-pharma nexus for promoting psychiatry with the objective of pushing up drug sales is totally uncalled for. By that standard, the whole medical community all over the world will stand discredited. There is nothing specific about psychiatry or say Indian psychiatry within the medical community in this respect.

If any legal block is sought to be created in treating involuntary patients, the real sufferers will be the PMI themselves as well as the society at large. The profession of psychiatry will not be affected significantly; as such patients constitute only a tiny fraction of the psychiatric patients. In spite of anti-psychiatry movement, the profession of psychiatry will continue to grow and flourish, but some PMI will suffer, who will continue to remain disabled. The idea of activist groups in respect of PMI can be summed up as "Don't treat PMI, make them disabled and provide them legal rights and privileges."

Allegations have been made that psychiatry has been used for political purposes and the matter has been a major subject of debate within the world psychiatric community during the second half of the 20th century. [sup][15] It is ethical and legal responsibility of all psychiatrists that they should use professional skills and judgment impartially, fearlessly, and absolutely without any prejudice or bias, keeping the interest of PMI as supreme in their mind and must not be influenced by anyone in this process, irrespective of how strong he/she may be.

In the author's opinion, the proposed RPWD Bill has been drafted with a mindset having a bias in favor of PWD, virtually making them and DPOs a privileged class of people. Provisions of 7% reservation in posts and higher education, obligation of different authorities for establishment of arrangements for PWD, penal provisions for violation of different provisions of the proposed Bill, etc. are heavily in favor of PWD. Many such provisions are liable to be abused by the police, administration, PWD themselves, and the DPOs.

To conclude, it must be emphasized that the profession of psychiatry and human right activist groups should act in consonance and their stand should be supplementary to each other rather than being at loggerheads. Their common objective should be the betterment of condition of the PMI with better availability of mental health care as also the protection of their basic human rights as envisaged in the UNCRPD.

References

1. Dutta AB. The Long March of Mental Health Legislation in Independent India; Dr. L. P. Shah Oration delivered at IPS-WZ Conference at Goa, 2001, published by Goa Psychiatry Society, 2001.

2. Trivedi JK. The mental health legislation: An ongoing debate. Indian J Psychiatry 2002;44:95-6.

3. UNCRPD (2006). Available from: http://www.un.org/disabilities/ [Last accessed on 2011 Nov 20].

4. Government of India - The Mental Health Act- 1987, published by Delhi Law House, 2002.

5. Sarkar J. A new mental health act for India: An ethics based approach. Indian J Psychiatry 2004;46:104-14.

6. Dhanda A. Status Paper on Rights of Persons living with Mental Illness in the light of the UNCRPD, in Harmonizing Laws with UNCRPD, Report prepared by the Centre for Disability Studies, NALSAR, Human Right Law Network, New Delhi, May 2010.

7. Antony JT. A decade with the mental health act. Indian J Psychiatry 2000;42:347-55.

8. Dutta AB. Medico-legal problems of psychiatrists in private practice. J Clin Psychiatry 1995;1:1.

9. Das SK. The Mental Health Act - 1987 and Current Issues; Presidential Address delivered at IPS - EZ Conference at Patna, 2002.

10. Pathare S, Sagade J. Working Papers on Amendments to MHA-1987 prepared on behalf of Ministry of Health, GOI, Centre for Mental Health Law and Policy, Indian Law Society, Pune, 2010, Draft dated 28-02-10, 23-05-10 and 06-12-10.

11. The Mental Health Care Bill 2011. Available from http://www.mohfw.nic.in/showfile.php?lid=946 [Last accessed on 2012, Jan 7]

12. Kaul S. The Rights of Persons with Disabilities Bill, 2011, presented by Committee appointed by Ministry of Social Justice and Empowerment, 2011. Available from: http://socialjustice.nic.in/ [Last accessed on 2011 Nov 20].

13. Kumar SG, Das A, Bhandary PV, Soans SJ, Harsha Kumar HN, Kotian MS. Prevalence and pattern of mental disability using Indian disability evaluation assessment scale in a rural community of Karnataka. Indian J Psychiatry 2008;50:21-3.

14. NAAJMI (National Alliance on access to justice for persons living with mental Illness) - 'Bangalore Baaten', 17 and 18 Dec, 2010, UTC, Bangalore.

15. Van Voren R. Political abuse of psychiatry: An historical overview. Schizophrenia Bull 2010;36:33-5.

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