The Rajya Sabha passed the Mental Health Care Bill (MHC), 2016 last week marking the culmination of a six-year process to review and replace the existing Mental Health Act, 1987. Many commentators have welcomed the fact that the new law finally decriminalises attempted suicide, a clause which received considerable media attention.
This was a long-standing demand from civil society, mental health professionals and the Law Commission of India. However, the law goes well beyond this specific clause and enshrines fundamental rights to care and dignity for persons with mental illness. There have been two previous mental health laws – the Indian Lunacy Act, 1912 and the Mental Health Act, 1987.
The Indian Lunacy Act was primarily focussed on protecting society from persons with mental illness and its emphasis was on custodial care in institutions. The Lunacy Act presumed that persons with mental illness will spend the rest of their lives in such custodial institutions and the law focussed on the rules for how people would be admitted to institutions and the management of their property subsequent to their admission to hospital. The Mental Health Act, 1987 saw progress with provisions for treatment of persons with mental illness in general hospitals and provisions for discharge from institutions. However, MHA, 1987 continued with certain regressive aspects of the Indian Lunacy Act, such as guardianship and management of property of persons with mental illness. The MHA, 1987 was also criticised for being largely concerned with the regulation and administration of mental health care in institutional settings rather than addressing mental health problems of the community or protecting the rights of persons with mental illness.
At the heart of the new law are the twin rights of the person with mental illness to receive care and to live a life with dignity. The most significant public health measure in the new law is to expand access to mental health care across the country, directly addressing the large treatment gap for mental illness in India. Even the limited range of mental health services in the country either tend to be located in private facilities or in large mental hospitals which are still home to nearly 80 per cent of all mental health beds in the country. Neglect, segregation and social exclusion of persons with mental illness continue to pervade the experience of mental health care.
The law recognises the acute shortage and mal-distribution of mental health professionals and requires the government to put in place training programmes to achieve internationally accepted norms in the next 10 years and, in the interim, to train all medical officers in public health facilities to provide basic and emergency mental health care. The law requires the government to provide a range of mental health services, including for those who have attempted suicide, from outpatient clinics to sheltered accommodation, through the public health sector in every district.
The law aims for social inclusion of persons with mental illness by emphasising that treatment and care is to be provided in a way that enables these persons to live with their families in their own community. The law introduces Advance Directives which, like a living will, allows a person to state how they want to be treated if they are ever affected by a mental illness and not in a position to make decisions for themselves. The law requires parity of mental health services with physical health services, for example, provision of ambulance services, the quality of mental health facilities and the provision of medical insurance. There is a regulatory provision of District Boards, consisting of a district judge, psychiatrist and users and care-givers to ensure that rights of persons with mental illness are respected when they receive mental health care and treatment.
About partnership Indeed, the new law is the first legislation in India enshrining the right to health care and the government’s responsibility to fulfil this right, a goal which has remained elusive for the broader health aspirations of India’s people. One of the most commonly cited concerns about the new law is that these aspirations are beyond the reach of the implementation ability and resources of the country. However, spurring the government to act to address concerns of public good is a central mission of progressive legislation, and we can derive some comfort from examples of the successful realisation of other radical laws, for e.g. the Right to Education Act and the PCPNDT Act to prevent sex determination. In all these cases, a partnership of the government and civil society for implementation and ensuring accountability has played a crucial role. The broader mental health community including persons affected by mental illness, their care-givers and families and mental health professionals need to make a similar effort by forming State and district-level coalitions if the aspirations of the new mental health law is are to be turned into reality.
Soumitra Pathare is Consultant Psychiatrist and Director of Centre for Mental Health Law & Policy, Indian Law Society, Pune.
Vikram Patel is Professor of International Mental Health at the London School of Hygiene & Tropical Medicine and the Public Health Foundation of India.