This is a Students’ blog. It is a platform for us, the Students of School of Health Systems Studies (SHSS) to express our ideas; but please note the word “IDEA”. An idea, a product of human mind...there is no guarantee of it being right but that doesn’t mean that we cannot express it! The blog is not a peer-reviewed journal or a sponsored publication. That does mean something…it means that information here is the product of our brain which is under evolution at SHSS and it is UNPROOFED and UNREVISED.

The opinions expressed by the SHSS Student Bloggers and those providing comments are theirs alone, and do not reflect the opinions of the School of Health Systems Studies or any employee thereof. School of Health Systems Studies and Tata Institute of Social Sciences is not responsible for the accuracy of any of the information supplied by the Student Bloggers.

Friday, November 29, 2013

Mental Health Act, 2013: a mockery of Human Rights

Legislations are formulated to protect and promote the interest of the individual and society. But sometimes these laws turn against the human beings and breach their fundamental rights. Such laws are based on utilitarian principle i.e. they focus on the interest of a large population at the expense of minors. So it is not necessary that if something is legal, it is also ethical. Mental Health act of our country is the illustration of such an unethical law.
                     People suffering from mental illness bears double burden of their illness and stigma associated with their illness. The pervasive impact of their illness echoes in every facet of their life whether it social, professional or economic. They are even abandoned by their family members. They face isolation and helplessness in their everyday life. The society remains ignorant to their needs. Their life is not less than virtual hell in the community. Their abysmal condition requires a legal framework to safeguard their interest. Ironically these mental health acts are violating the human rights of such people rather than protecting them. A predicament exists when we consider the mental health act in light of human rights. Traditionally, the purpose of any such law is to isolate the individual from the rest of society as they are considered as troublesome and dangerous for society.     
                           In India the first mental health act was formulated in 1858 through Indian lunacy act. Under this act, mental asylums were set up and mentally ill people were called as idiots, insane or lunatics. This Act was amended in 1912 and civil surgeons were put in charge of the mental hospitals instead of the Inspector General of Prisons. In 1987, mental health act was passed by Indian Parliament. This act has been criticized due to its main emphasis on promoting the institutionalization of mental health care and it also fails at its implementation level. Its implementation problem revealed after a fire accident in an asylum in Tamil Nadu in 2001.In this accident 28 people with mental illnesses were died because they were unable to run as their legs were tied to stone pillars. In 2007, India became signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). India under compulsion has to bring its existing laws into congruence with the basic principles of the UNCRPD.
                      As a result, India initiated the process of amending the mental health act, 1987. These amendments could have been a hope for people living with mental illness but unfortunately the new proposed mental health care bill, 2013 continues to approach a mentally ill person through his illness and not through his rights.
Now I will look critically at the proposed amendments in the mental health act from an ethical perspective.
1. The whole process of amendments was non-participatory and unfair. Neither the people suffering from mental illness have been informed nor has their voice been included in drafting a law that will determine their lives. Even the Nodal Ministry for the affairs of disabled persons and the Ministry of Social Justice and Empowerment were not consulted before formulating amendments.
2. The proposed definition of mental illness excludes the mental retardation. It puts an open ban on the treatment of all mentally retarded persons in psychiatric hospitals. Mentally retarded individuals require need care in total care institutions where a mental health care professional expertise is available.
3. The amendments overlook the individual’s right of autonomy. Any person who is 18 years of age or above and is competent can appoint a person known as “nominated representative (NR)”. The representative should be above 18 years of age. He/she helps the patient to interact with the mental health system and also acts as a legal guardian for the patient. A conflict with the autonomy of the patient will arise if the nominated representative does not act according to the patient’s wishes and most important is the issue of assessing the competence of a patient in appointing a nominated representative. There is no objectivity in assessing the competence of a patient rather it depends upon the decision of mental health professional.
4. One of the new amendments is the inclusion of the provision of “advance directives”. Every person, irrespective of their mental health status has a right to make a written statement known as an ‘advance directive’. The ‘advance directive’ is a legal document which provides the individual with the autonomy to decide the manner in which he/she wishes to be cared for during a future period of illness. There is a necessity to certify the competence of the individual in writing an advance directive. Again there is a lack of objectivity in assessing the competence of the individual in writing an advance directive. The provision of advance directive could come in conflict with “best interest principle”. A situation may arise in which choice of treatment is contrary to the treatment mentioned by individual in advance directive. This gives rise to a dilemma for mental health professional between right to autonomy of individual and principle of beneficence.
5. In proposed amendment, no legal process is required for admission and treatment of an individual in an asylum against his/her will. Anybody who is labeled as mentally ill by a mental health care professional can be admitted against his/her will. There are no empirical methods for establishing the validity of mental illness. The petition regarding involuntary detention would be heard only after 7 days .Even the criminals are produced before magistrate within 24 hours of their arrest.
6. These amendments are likely to cost human lives. It gives the authority to an individual who has not been trained to be a physician (psychiatrist nurse and social worker) to carry out role of independent examination, diagnosis and admission of patients in mental health facilities. Shortage of mental health professionals is given as an excuse for such unethical amendment.
7. According to the new mental health care bill, 2013 children with mental illness will come under this law instead of being treated as children in need of care and protection under the Juvenile Justice Act. This law gives the authority to a mental health professional to acclaim that a parent is not capable to be guardian of a child suffering from mental illness.
9. One of the proposed amendments is on the prohibition of certain treatment of mental illness. This amendment is based on principle of non-malfeasance. It poses a ban on electro-convulsive therapy (unmodified ECT) without the use of muscle relaxants and anesthesia. The conflict between principles of non-malfeasance and beneficence arises when a patient needs immediate electro-convulsive therapy in a life threatening situation. Moreover, modified ECT is not feasible in our country because of cost and infrastructure. Also serious adverse effects are very rare with unmodified ECT. Given this, a complete prohibition on unmodified ECT is unethical as it can be dangerous to the life of a patient.
10. No attention has been given to women suffering from mental illness. Mentally challenged women are often been marginalized when it comes to government strategies and rehabilitation plans. There is an increase in the number of parents opting for sterilization of their mentally challenged daughters.
11. The mental health care bill, 2011 don’t lay emphasis on universal capacity. None of the amendments talk about the capacity building of individuals suffering from mental illness so as to enable them to make informed choices regarding their life. Instead the law provides for proxy decision making by nominated representative.
12. These proposed amendments continue to lay emphasis on the institutionalization instead of the provision of community health care. Anyone can start a mental health institute. The penalty  for such institutes set up without permission are not deterrent enough, as there is only a fine of Rs 50,000 proposed on the first offense.
A dilemma exists between ethics and laws when it comes to mental illness. There are no easy answers to these ethical dilemmas. These amendments are anti-patient and can lead to abuse of a patient. There is a need to formulate these laws from humanistic and ethical perspective.

By- Dr. Sanjida Arora
MPH-SE (Social Epidemiology)
2012-14 Batch
TISS, Mumbai