URGENT NEED FOR REFORMS IN LAW AND POLICY FOR MENTAL HEALTH IN INDIA

 

People with mental disorders are, or can be, particularly vulnerable to abuse and having their basic rights violated[1]. This sets an imperative for a protective mechanism to be in place, and thereby reduce their susceptibility to abuse by anyone in the society including family members, caregivers, professionals, friends, fellow citizens and also law enforcing agencies. Legislation is an important mechanism to start with to ensure appropriate, adequate, timely and humane health care services[2].

It also helps in protection of the human rights of the disadvantaged, marginalized and vulnerable citizens. This is an indicator of a civilized society that respects and cares for its disabled and marginalized citizens, and therefore reflects high values, morals, attitudes, culture, traditions, customs, aspirations and practices.

The fundamental aim of mental health legislation should be to protect, promote and improve the lives and mental well-being of its citizens. In the undeniable context that every society needs laws in various areas to maintain the well being of its people, mental health care is an important area that requires an appropriate legislation. The concept and terminology of hard law and soft law has been in use with regard to health care. Hard laws pertaining to mental health legislation are The Mental Health Act, 1987; The Disability Act, 1995; The National Trust Act, 1999; Human Rights Act, 1993 and related legislations.

They have strong implementation mechanisms that oversee the violators and very often, the violators are dealt with seriously, either by fine or imprisonment or both. On the other hand, mental health policy and mental health programmes are referred as soft laws. These soft laws provide guidelines for better quality of care, many a times they are just used to showcase application of international and national framework. However, in the absence of law, the courts interpret the case taking the soft laws as sources of law.

According to the Black’s Law Dictionary, mental illness refers to a term that describes the disorder of the mind that could be of emotional or physical origin[3]. The people suffering from mental disorders are susceptible to violation of their rudimentary rights and abuse (further referred to as “Subjects” of such disorder). Various elements may result in violation of rights and abuse of these people which include professionals, members of the family, institutions, friends, caregivers and people of the community who are unrelated.

The types of mental disorders are anxiety disorders which include obsessive-compulsive disorders, panic disorders and phobias; mood disorders, bipolar disorders and depression; personality disorders; eating disorders; psychotic disorders which include schizophrenia and post-traumatic stress disorder[4].

Proper health care services should be provided for the protection of such people. The protection shall be granted through legislative policies and provisions which ensure that the rights of the subjects are safeguarded. Appropriate laws are required to govern various aspects of the areas and likewise, even mental health requires suitable legislation.

EARLY LEGISLATION:

The Lunatic Removal Act 1851 was the first law in British India relating to mental illness and it was ceased in 1891. It was enacted to transfer British patients to England. In 1858, after the administration of India was taken over by the British Crown various laws were introduced for the protection and care of the people suffering from mental illness such as the Lunacy (District Courts) Act 1858, the Lunacy (Supreme Courts) Act 1858, the Indian Lunatic Asylum Act 1858 (amendments in 1886 and 1889), the Military Lunatic Act 1877. Through these Acts a very minute chance of recovery was left as the patients were detained for longer periods, it led to the passing of a bill in the year 1911 and consequently the Indian Lunacy Act 1912 was introduced. This Act was concerned with sentences related to custody and deserted human rights of the subjects.

The Indian Lunacy Act 1912 was considered unsuitable and therefore a mental health bill was drafted in 1950 and was executed in 1993. The emphasis and importance of treatment and care rather than custody were laid down in the Mental Health Act (MHA) 1987. On the 19th Day of August 2013, the Mental Health Care Bill, 2013 was introduced and it repealed the Mental Health Act 1987, the bill received the assent of the President on the 7th Day of April 2017 and the Mental Health Care Act, 2017 commenced on the 29th Day of May 2018.

SOFT AND HARD LAWS GOVERNING AND INDUCING MENTAL HEALTH CARE:

The hard laws are enforceable domestically and internationally. There have been various declarations, covenants and international conventions in the past seventy years referring to mental illness and the health of a person. Article 1 of The Universal Declaration of Human Rights states that “all people are free and equal in rights and dignity” – “establishing that individuals with mental disabilities are protected and safeguarded by human rights law by virtue of their basic humanity”[5].

The Indian laws should be aligned in such a way to suit the declarations as it is a signatory to many such declarations. The hard laws in India include The Protection of Human Rights Act, 1993, The Mental Health Act, 1987, The National Trust Act, 1999, Persons with Disability Act, 1955, Protection of Children from Sexual Offences Act, 2012, Protection of Women from Domestic Violence Act, 2005 and the Narcotic Drugs and Psychotropic Substances Act, 1985. On the other hand, soft laws are not obligatory. If they are created well, they can amount to future regulations. These laws are ‘hortatory’ which are in the nature of promises and possibilities. The National Mental Health Programme, National Mental Health Policy 2014 and The National Programme on Noncommunicable Diseases were soft laws.

 

Laws Governing Mental Health Care

The mental health legislations drafted initially were aimed at safeguarding the public from dangerous patients by isolating them from the public. This was largely because at that time, there was minimal treatment or no treatment available[6].

However, in the contemporary world there has been a paradigm shift from custodial care to community care and from a charity based to rights based approach due to the following reasons:

1. a) proactive legislation;
2. b) advances in medical technology in assessment and treatment of mental disorders;
3. c) the human rights movement;
4. d) World Health Organization’s (WHO) broader and more holistic definition of ‘health’[7] and
5. e) promotive, preventive, curative, rehabilitative and mitigation of disability aspects of health have given a new perspective into the care of mental disorders and have led to the review of mental health legislation. This paradigm shift needs to reflect in the mental health legislation because this law applies to persons with mental illness and to those involved in managing or treating such people. Ultimately, the care of persons with mental illness will be guided by these legislations. Worldwide mental health legislations are concerned mainly with:
6. a) Rights of the mentally ill (right to care and human rights),
7. b) Quality of mental health care,
8. c) The use of administrative and budget control measures, and
9. d) Consumer participation and involvement in the organization and management of mental health care services.

There have been significant advances with respect to mental health legislation in India. In addition to the mental health legislations, there are several laws, rules, and regulations dealing with the rights of the person with mental illness. Person with mental illness are at high-risk for getting into conflict with law. Hence, Procedural laws and Criminal laws granting remedies, settings procedures, punishment etc, also need to have a relevant perspective for those suffering from mental illness. In their absence no justice can be obtained. Especially relevant are the principles in criminal law, tort law, etc.

Of course, there is a larger question to be answered on, how far law is a solution to provide mental health care to the much-needed persons with mental illness. It is in this context that the role of soft laws comes into play. In this scenario the mental health policy plays a crucial role in providing care for the needy.

 

Mental Health Care Policy

India does not have a specific mental health policy; however, the National Mental health Programme is considered as the guiding principle for providing mental health care in India. Hence, in this research the National Mental Health Programme (NMHP) and national mental health policy are used interchangeably. However, in 2011, the Ministry of Health and Family Welfare, Government of India has appointed a Policy Group to prepare a National Mental Health Policy and Plan to address the need of widely prevalent mental disorders. Various psychiatric epidemiological studies carried out in different parts of India have demonstrated that all types of mental disorders are widely prevalent. The prevalence rates of mental disorders vary from 9.5 to 370 per 1000 population in India[8].

Adding to this challenge, there is a gross neglect of mental disorders in India due to a variety of reasons, which include;

1. a) stigma,
2. b) inadequate budgets for mental health care and
3. c) acute shortage of trained mental health personnel

Many other social, cultural and religious factors also play a crucial role in adequate provision of mental health care services. The stigma of mental illness, myths regarding causation of mental illness, course of illness, belief regarding medications and side effects adds to the complexity. To answer the above challenges, India was one among the few countries in the developing world to formulate a National Mental Health Programme.

As early as 1982, the highest policy making body in the field of health in the country, the Central Council of Health and Family Welfare (CCHFW) adopted and recommended for implementation, a National Mental Health Programme for India (NMHP). This NMHP was proactive and was modelled by integrating mental health care into primary health care services. This strategy of integrating mental health into primary care services was strongly endorsed by an Expert Committee set up by the World Health Organization (WHO) Although it is more than three decades since this historic adoption of NMHP, unfortunately not much has changed in the field of mental health care in India.

 

Social, Economic, Cultural and Religious Challenges of Mental Illness

Discrimination and Stigma:

Discrimination of person with mental illness in all spheres of life and stigma may have serious impact on access to adequate treatment and care as well as other areas of life, such as employment, education, marriage and shelter. Persons with mental illness, avoid or resist consultation or treatment from mental health professionals because they are worried that they will be labeled with mental illness and they wish to or want to spare themselves from the anxiety caused by fear of rejection from family, friends and society.

Various studies have also highlighted that stigma and discrimination are important barriers to providing mental healthcare for the needy. A landmark study published in Lancet by the researcher Thornicroft and his colleagues (2009), in the area of the stigma involved 27 participating countries, including India, and described the nature, direction and severity of anticipated and experienced discrimination reported by people with schizophrenia. It used face-toface interviews with 732 participants. Although positive discrimination was rare, negative discrimination was experienced by 47% of the participants in making or keeping friends, by 43% from family members, by 29% in finding a job, by 29% in keeping a job, and by 27% in intimate or sexual relationships. Anticipated discrimination affected 64% in the matter of applying for work, and in training or education, and 55% while looking for a close relationship; 72% felt the need to conceal their diagnosis.

Over one third of the participants anticipated discrimination when seeking jobs and close personal relationships, even when no discrimination was experienced the inability to integrate into society as a consequence of these limitations can increase the isolation experienced by an individual, which can, in turn, aggravate the mental disorder[9].

Recent Trend

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.

As per the World Health Organisation (WHO), about 15% of the total disease conditions around the world are related to mental illness. 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.

It is estimated that the economic loss due to mental health conditions during 2012-2030 is 1.03 trillion dollars.

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. As per WHO, mental health workforce in India (per 100,000 population) include psychiatrists (0.3), nurses (0.12), psychologists (0.07) and social workers (0.07).

 

Current policies and laws on Mental Health in India

Starting with Article 21 of the Constitution of India, the right to life has been expanded to include the right to health. It is essential that mentally ill persons receive good quality mental healthcare and living conditions in their homes and society.

Way back in 1982, the Government of India launched the National Mental Health Programme (NMHP). After 38 years, it is still on paper. NMHP was introduced considering the heavy burden of mental illness on the community, and the absolute inadequacy of mental health care infrastructure in the country to deal with it.

The Mental Health Act, enacted in 1987, has been the target of criticism since its introduction. The National Health Policy, 2002 incorporates provisions on mental health. However, no separate policy on mental health exists. In 1996, the District Mental Health Program (DMHP) was added and re-strategized in 2003 to include two important schemes of Modernization of State Mental Hospitals and Up-gradation of Psychiatric Wings of Medical Colleges/General Hospitals. India signed and ratified the Convention on Rights of Persons with Disabilities and its Optional Protocol in 2007. In 2009, the Manpower Development Scheme (Scheme-A & B) was made part of the Program.

It is important to note that the DMHP envisages provision of basic mental health care services at the community level and has the following objectives:

1. To provide sustainable basic mental health services to the community and to integrate these services with other health services;
2. Early detection and treatment of patients within the community itself;
3. To reduce the stigma of mental illness through public awareness; and
4. To treat and rehabilitate mental patients within the community.

A Mental Health Policy Group (MHPG) was appointed by the Ministry of Health and Family Welfare (MoHFW) in 2012 to prepare a draft of DMHP for Twelfth Five Year Plan (2012–2017). The main objective was to reduce distress, disability, and premature mortality related to mental illness and to enhance recovery from mental illness by ensuring the availability of and accessibility to mental health care for all in the plan period, particularly the most vulnerable and underprivileged sections of the population.

Its other objectives were to reduce stigma, promote community participation, increase access to preventive services to at-risk population, ensure rights, broad-base mental health with other programs like rural and child health, motivate and empower workplace for staff, improve infrastructure for mental health service delivery, generate knowledge and evidence for service delivery, and establish governance, administrative, and accountability mechanisms.

A central mental health team has also been constituted to supervise and implement the programme. A Mental Health Monitoring System (MHIS) is being developed. Standardized training was proposed with the help of training manual.

After the National Mental Health Survey during 2014–2016, the Government of India started making efforts to improve the mental health services by formulating policies like the National Mental Health Policy (NMHP), 2014 and consequently, the Mental Healthcare Act, 2017 was enacted and notified on May 29, 2018. The new Act focused on the rights of a mentally ill person and repealed the Mental Health Act, 1987. Despite having many positive features, the Mental Health Act, 1987 has been the target of criticism since its introduction and was not effectively implemented due to the lack of resources.

Unfortunately, the new Act has been introduced without addressing the issues which troubled the Mental Health Act, 1987. The new Act ignores the presence of a mental health program in the country. The Act should have mandated all the states to implement NMHP, and the state mental authority should have been made responsible for the same. The only way the Act can correctly implement the right to mental healthcare is by enabling the implementation of NMHP across all states.

 

 

 

 

 

 

 

Issues to be addressed

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. 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. There is a complete lack of integrated mental healthcare and failure on implantation of the DMHP across India.

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.

The lost productivity resulting from depression and anxiety – two of the most common mental disorders – costs the global economy each year. In low and middle-income countries, more than 75% of people with mental disorders receive no treatment at all for their disorder. In India, mental health is on the back foot due to lack of resources and allocation of budget. It is high time to prioritise on mental health by investing and integrating mental healthcare into the private and public sectors.

Measures required

Experts note that effective implementation of the DMHP is the key to resolving many critical issues that mental healthcare delivery faces in India.

The new Act requires the government to provide “less restrictive community-based establishments including half-way homes, group homes and the like for persons who no longer require treatment” in restrictive mental health establishments. However, in reality, such rehabilitation facilities are either missing or inadequate in India’s landscape of mental healthcare services. The Central and State governments are yet to comply with the 2017 Supreme Court direction to set up or expand such half-way homes. As of 2020, the states have only provided a road-map towards implementation.

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. 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. Reports from all across the world show that the pandemic has also led to serious psychological consequences like anxiety, stress, depression, fear and insomnia etc. Recently, India Today reported a 20% increase in the mental health cases in India post imposition of the lockdown in March 2020.

As seen above, some initial steps to improve on the mental healthcare system have been provided under the NMHP. Appropriate intervention, understanding about the issue, and easy accessibility of professionals are the way forward to improve the situation. This requires social, public and private teamwork to get the situation under control. There is an urgent need for providing psychological help with trained mental health professionals as first aid, to reduce distress and ensure easy access to mental-health facilities for citizens. Mental disorders also need to be covered under insurance, as a plea pending before the Supreme Court has prayed for.

Conclusion

While handling the consequences of the COVID-19 pandemic, the mental health of people needs to be handled hand in hand. There is an urgent need to depute specialized mental health professionals to work.

The pandemic and the rise in the number of suicides and the crime rate shows the need for an integrated mental healthcare policy covering mental health issues. There is an urgent need to develop infrastructure and prioritise mental health care resources, so that the mental health of most vulnerable groups is well-served. In the national interest, there is need for reforms in policies and appropriate implementation of the existing legal framework.

 

 

 

 

 

 

 

BIBLIOGRAPHY

Books

• S.P. et al. MENTAL HEALTH: AN INDIAN PERSPECTIVE 1946–2003. Director General of Health Services., Ministry of Health and Family Welfare, Government of India, New Delhi, (2004).
• P. & Goodman. R., INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS: TEXT AND MATERIALS. Oxford University Press (2008).
• American Psychiatric Association. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS. Fourth Edition. Washington, DC: American Psychiatric Association. (1994).
• American Psychiatric Association. DIAGNOSTIC CRITERIA FROM DSM-V. Washington (DC): American Psychiatric Association. (2013).
• P.S., & Roth. L.H., Treatment refusals in the medical hospitals. In: Report of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Washington, DC: US Government Printing Office. 1982.
• P.S., ALMOST A REVOLUTION. New York: Oxford University Press,(1994).
• Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists. Published by American Bar Association Commission on Law and Aging & American Psychological Association.

Articles

• M.F., The Criminalization of Mentally Disordered Behavior. HOSPITAL AND COMMUNITY PSYCHIATRY 23: 101-5 (1972).
• O., The Declaration of Madrid and its implementation. An update. WORLD PSYCHIATRY. 2(2): 65–67 (2003). Almeida.E.H.R., Dignity, patient’s autonomy and mental illness. REVISTA BIOÉTICA 18(2):381-395 (2010).
• American Psychiatric Association. Guidelines for assessing the decision-making capacities of potential research subjects with cognitive impairment. AMERICAN JOURNAL OF PSYCHIATRY 155:1649–1650 (1998).
• American Psychiatric Association. Guidelines for Legislation on the Psychiatric Hospitalization of Adults. AMERICAN JOURNAL OF PSYCHIATRY 140: 672-79 (1983)..

 

[1] World Health Organization. RESOURCE BOOK ON MENTAL HEALTH, HUMAN RIGHTS AND LEGISLATION. World Health Organization Publication, Geneva. (2005). Available online on http://www.who.int/mental_health/policy/who_rb_mnh_hr_leg_FINAL_11_07_05.pdf accessed on July 1, 2022

[2] Available online at http://nhrc.nic.in/Publications/Mental_Health_Care_and_Human_Rights.pdf accessed on June 25, 2022.

[3] Black law Dictionary

[4] https://medlineplus.gov/mentaldisorders.html

[5]  Universal Declaration of Human Rights, art. 1

[6] Id

[7] Constitution of the World Health Organization. Adopted in New York by the International Health Conference on 22 July 1946 and entered into force 7 April 1948. Available online http://whqlibdoc.who.int/hist/official_records/constitution.pdf accessed on July 15, 2022.

[8] S.B.Math et al. Psychiatric epidemiology in India. INDIAN JOURNAL OF MEDICAL RESEARCH.126;183- 192 (2007). Available online at http://www.icmr.nic.in/ijmr/2007/september/0903.pdf accessed on July 6, 2022

[9] 7S.B.Math et al, Mental Health Act (1987): Need for a paradigm shift from custodial to community care. INDIAN JOURNAL OF MEDICAL RESEARCH 133;246-249 (2011).