After India ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which came into force in 2008, there was a clear need to overhaul the existing disability laws in India to bring them in compliance with the UNCRPD. It is in pursuance of this that the Mental Health Act 1987 (“MHA”) is sought to be replaced the new Mental Health Care Bill 2012 (“2012 Bill”). This is a brief overview of the 2012 Bill.
The new Bill is much longer than the existing MHA having 16 Chapters and 137 clauses. Instead of going into the specific clauses of the Bill, we focus on the following broad themes:
I. Definition of Mental Illness: One of the significant contributions of the 2012 Bill is the definition of ‘mental illness’ as “a disorder of mood, thought, perception, orientation and memory which causes significant distress to a person or impairs a person’s behaviour, judgment and ability to recognize reality or impairs that person’s ability to meet the demands of daily life and includes mental conditions associated with the abuse of alcohol and
drugs, but does not include mental retardation”. The definition of ‘mental illness’ is a major improvement from the MHA which did not provide any guidance as to what would constitute mental illness except for stating that a person who was mentally ill was anyone needing treatment and who did not come under the definition of mental retardation. This was clearly from a medical model of disability, while the 2012 Bill seeks to understand mental illness from a social model, giving a broad and inclusive definition as to what may constitute mental illness. Further section 3 also lays down other criteria for determination of mental illness.
II. Legal Capacity: The 2012 Bill provides every person with a right to make an advance directive, empowering him/her to decide how he/she should and should not be cared and treated for a mental illness in the future. This is an enabling provision as it reaffirms every person’s right and capacity to decide what treatment or care he/she must be subjected to. The Bill also lays down an elaborate procedure for registration and revocation of advance directives as well as situations in which such directives can be overridden. Another welcome provision in the Bill is the requirement that all treatments and medical research on mentally ill persons must be done only with their free and informed consent (by giving information about the risks, benefits, alternatives in an understandable language) or with the consent of the State authority, where the person is not capable of giving consent.
III. Protection of Rights of persons with mental illness: The Bill brings about a rights-based protection of mentally-ill persons. This was never the focus of the Mental Health Act 1987 and the 2012 Bill fills this requirement of the UNCRPD by guaranteeing to all persons the right to access to mental healthcare, and a range of services for persons with mental illness including shelter homes, supported accommodation, community based rehabilitation; the right to community living, the right to live with dignity, protection against cruel, degrading and inhuman treatment, the right to equality and non-discrimination, the right to information, confidentiality and access to medical records; right to personal communication, legal aid and the right to make complaints about deficiencies in provision of services in addition to other similar legal remedies. It is for the first time that any law has guaranteed such rights to equality, non-discrimination and the positive rights for provision of basic services to persons with mental illness. In fact even the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PWD Act”) does not guarantee such rights to persons with disabilities, and this Bill, if passed may lead to a positive change for the PWD Act as well.
IV. Duties of the Government: The burden of planning, designing, implementing programs for the promotion of mental health and prevention of mental illness, creating awareness about mental illnesses, reducing stigma, sensitizing govt. officials including police officers, implementing public health programs to reduce suicides, and other such programs, has been placed on the appropriate government. Insufficient awareness, advocacy, and sensitization about mental illness was a serious pitfall of the MHA and this is being remedied by the Bill.
V. Systemic changes in the mental healthcare system and new Fora for complaints: The Bill seeks to create various new bodies and completely overhaul the existing mental healthcare system in the country. It provides for the establishment of the Central and State Mental Health Authorities, which would be responsible for the registration and oversight of mental health establishments by laying down minimum standards and a monitoring mechanism to ensure statutory compliance. The Bill also sets up the Mental Health Review Commission (MHRC) and state-wise Mental Health Review Boards (MHRB). The MHRC and MHRB are equipped with several administrative and adjudicatory functions and will form the first level of interaction of any person with mental illness or his/her representative with the mental healthcare system for violation of any of his or her rights. This is a whole new regime when compared to the MHA which gave an unbridled power to the Magistrate in the mental health system, which has now been reduced to only a few specific cases. With the introduction of these new bodies, for the first time, a person with mental illness can directly approach a forum for the protection of his/her rights.
In conclusion, the Mental Health Care Bill 2012 makes significant strides over the MHA bringing about protection and empowerment of persons with mental illness. The Ministry of Health and Family Welfare must consider having a National Mental Health Care Policy to solve various administrative bottlenecks that this Bill may create. Various countries which have a mental health legislation also have a mental health policy creating a comprehensive legal framework for their mental health system.
These were our preliminary comments on the Mental Health Care Bill 2012 and CLPR has recently published a more detailed Working Paper on the same (available here).
