Since the dawn of human civilization, people living with mental illness have been afflicted with countless atrocities at the hands of society because of their supposed unproductive value in the capitalist system. They are stereotyped to have no capacity to make decisions for themselves which raises the challenges of involuntary care, mental ability, and substitute decision-making. Even outside the health care perspective they are excluded from community life and denied basic rights such as housing, food, and clothing, and are discriminated against in the fields of employment and education due to their mental infirmity. It was the appeal of progressive incorporation of the norms of human rights and liberal jurisprudence in the legal system of India that created the stipulation and urgency of bringing about regulations like the Mental Healthcare Act, the Persons with Disabilities Act, etc. Years after the incorporation of these laws let’s look at the reforms needed.
The Mental Healthcare Act 2017
Replacing the Mental Healthcare Act of 1987, this act emerged as a milestone for our nation—decriminalizing attempted suicide and prohibiting ECT (electroconvulsive therapy). It also adopted a more patient-centric approach to mental illness by shifting focus to the rights and protection of people living with mental illness but still the act is not without its shortcomings
Gaps in the Act:
- The Act proposes an ‘advance medical directive’ through which individuals can dictate how they “wish to be” and “wish not to be treated” and can nominate a member who can make decisions on their behalf should they lose their mental capacity. But it is unable to provide a discernible procedure for preparing it. It fails to consider those people with severe mental disorders (like schizophrenia and psychotic disorder) who refuse to acknowledge their mental state, let alone be capable of making rational decisions and giving consent in writing, regarding their treatment.
- The Act mandates the constitution of a Mental Health Review Board to protect the rights of persons with mental illness but doesn’t contain any directive for the formation of this review board.
- The Act recognizes mental illness as a clinical issue that can only be treated by medicines and clinical procedures. Hence, the important issue of prevention of mental illness and its de-stigmatization has been neglected absolving the government of its duty of creating a better social infrastructure.
- The Act calls for setting up mental health care facilities at the community and district level but doesn’t take into account the scarcity of psychologists and mental health care professionals in the country.
- Due recognition is not given to the morbidity caused and treatment of substance abuse disorders.
The Rights of Persons with Disabilities Act 2016
The Rights of Persons with Disabilities (RPwD) Act (2016), which replaced the Persons with Disabilities (PwD) Act (1995), was a move in the right direction after India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in October 2007; as it brought a biopsychosocial model of assessing disability. It also mandates 4% employment reservations and 5% high school reservations in government and government-aided organizations for Pwds and persons with mental illnesses. but the act is still not without its faults.
Gaps in the Act:
- Although the 2016 act increased the number of disabilities recognized from 7 to 21, the percentage of reservation is inadequate for mental health conditions and disproportionate to the morbidity caused. There is an urgent need to extend these allowances so as to represent the numbers of persons with mental illnesses and take more mental disorders under its purview.
- The Act calls for setting up special schools and promoting the integration of students with disabilities in normal schools under the banner of what it calls- “inclusive education” but doesn’t specify which categories of PwDs would be suitable for inclusive education. Specifying institutions that can ascertain such suitability would go a long way to streamline the process of inclusion and allow for clearer guidelines in inclusive schools.
- The Act lays out a very cumbersome and rigid procedure for certification and assessment of disabilities and doesn’t allow for decentralization. Certificates can only be issued by specialists even when the disorder is apparent. For example, from a mental health perspective, people with severe or profound Intellectual disability can be given a certificate at the PHC level itself, and for cases wherein the deficits are not striking, appropriate referrals to specialists may be made.
- There is no proper procedure for the assessment of autism under the act.
- Under the act, disability guidelines name specific professionals such as “pediatric neurologist,” “rehabilitation psychologist,” to certify specific disabilities. Many medical specializations have been left out for certifying disabilities which they treat very often. For example, psychiatrists have not been included in the assessment of learning disabilities. This naming of the specialist needs to be amended and the appropriate medical authority should be able to decide the specialist required for certification. A PwD should not have to run from one city to another and one hospital to another for getting the disability certificate.
Concordance of Indian Mental health legislation with the International standards
Most developed nations spend above 4% of their budgets on mental health research, infrastructure, frameworks, and workforce which ensures robust mental health legislation. Though Budget 2020 saw a seven percent increase for healthcare, the Indian government has not increased allocations for the National Mental Health Programme. The budget for mental health in India is just 0.05 percent of the total healthcare budget. This amount is insufficient as even our neighboring country Bangladesh spends 0.44% of its budget on mental health.
In 2005, the World Health Organization (WHO) published a Resource Book (WHO-RB) on mental health, human rights, and legislation, including a checklist of 175 specific items to be addressed in mental health legislation or policy in individual countries. Indian mental health legislation, as per a 2017 study, meets only 68% (119/175) of the World Health Organization (WHO) standards.
The Mental Healthcare Act 2017 seeks to explicitly comply with the United Nations (UN) Convention on the Rights of Persons with Disabilities but the act fails to provide sufficient protection to persons with mental illness during emergency treatment and doesn’t deal with the issue of changing nature of mental capacity.