All’s not well

Draft Mental Health Bill has some positive aspects,but activists warn these provisions may be misused

Written by Pritha Chatterjee | New Delhi | Published: October 16, 2012 3:14 am

With mental health disorders threatening to reach epidemic proportions,the first draft of the new Mental Health Care Bill has been formulated at a time when the country is finally waking up to the enormity of the disease. While many psychiatrists and members of the mental health policy group under the Union Health Ministry say this will revolutionise the existing system and repeal the Indian Mental Health Act of 1987,activists say the changes are only cosmetic and the new Bill is partial towards the private sector.

SEVERAL FIRSTS

The draft Bill,which is expected to be soon brought before the Cabinet for its final clearance,introduces several new concepts.

It completely prohibits electric shock therapy without muscle relaxants and anaesthesia in adults,and bans it altogether for minors. However,Dr Roy Abraham Kallivayalil,national president of Indian Psychiatry Society, said,“Banning of Electro Convulsive Therapy (ECT) or shock therapy altogether in minors can be a problem because many a time it is an emergency life-saving procedure. Say a 16-year-old with severe depression is wheeled into the OPD with indications of suicidal ideation,do we not give him ECT? The legal provisions should not affect the medical aspects of care.”

He said the “over legalisation” of psychiatry could end up isolating patients more and harbour further stigma. “There is no scope for general hospital care of psychiatry. Mentally ill persons have to be treated in separate registered institutions when the emerging disease trends in India are of psychosomatic disorders such as depression and anxiety rather than the traditional concept of mentally-ill. Why should these patients be isolated? General hospital care of psychiatric problems should be recognised and they should be treated like any other diseases,” he added.

Under Section 10,the Bill states that person with mental illness shall be treated equal to physical illness,and stipulates that public and private insurance providers “shall make provisions for medical insurance for treatment of mental illness on the same basis as is available for treatment of physical illness”.

Compulsory tonsuring and uniforms in psychiatric institutions has been altogether banned. Section 60 omits any history of mental illness as a ground for divorce. “Notwithstanding anything contained in any other Act,proof of a person’s current or past admission to a mental health establishment or proof of a person’s current or past treatment for mental illness shall not by itself be ground for granting divorce,” the Bill says,adding that if during judicial proceedings,any current proof of mental illness is raised,the matter will have to be referred to the state Mental Health Review Commission.

Under Section 64,the Bill decriminalises suicide by stating that a person who has attempted suicide shall be examined by a psychiatrist before a criminal investigation is initiated. If the doctor concludes that the act was prompted by mental illness,then “no complaint,investigation or prosecution shall be entertained against the person,notwithstanding anything contained in the Indian Penal Code.”

Right to Consent

The much debated right to consent of a mentally ill person has been addressed for the first time in this Bill. Section 5 of the Bill introduces a provision known as Advance Directive. According to a Health Ministry official,who was part of the mental health policy group that drafted the Bill,“Under this concept,any adult with or without history of prior mental illness,has the power to declare in advance his or her preferred method of treatment,in the advent of a mental health problem. Under this provision,a person even has the authority to refuse treatment.” The individual also has the right to “nominate a representative”,who will take decisions for him or her in the advent of any mental illness.

However,activists say that prior declarations will be null and void in case of “emergency” patients. “This is a mockery of the right of a patient to consent for treatment. World over such ADs are made to protect patients at the time of so-called emergencies,when they can be misused/mistreated by family members,particularly against women,” said Javed Abidi of the Disabled Rights Group while addressing a conference on the eve of the World Mental Health day last week. This AD,he added,can be potentially challenged by the treating psychiatrist or a family member. In which case,the AD goes before the state Mental Health Panel (introduced in Section 22 of the Bill). A person with mental illness has to prove to the panel that he or she made AD of his or her own free will,had ‘capacity’ at the time of making the AD,was sufficiently well informed to take the decision,and AD is not contrary to any other law of the Constitution. “ Why does a patient have to be subjected to this legal maze?” Abidi questioned.

These ADs have to be submitted to an authority,introduced in the Bill as the Mental Health Review Commission. “This body has to be made functional within three months of the Act coming into effect. It will be headed by a present or retired high court chief justice,one member has to be a psychiatrist with at least 15 years of experience,one representative of the patient community,one representative of a family or care-giver or an NGO working for the mentally ill,and one officer who has experience in public health,” the official explained.

This body,headquartered in Mumbai,will be the final authority in deciding all matters of disputes in managing patients who are mentally ill,and will operate through state panels headed by officers of the level of district judges.

Right to Seek Information

For the first time,under Section 13,psychiatric patients will have the right to seek complete information about their treatment,including all records,even in case of involuntary admissions. If the treating psychiatrist feels the patient is not fit at the time of admission or during treatment to take this information,“it is the primary responsibility of the medical officer or psychiatrist in charge of the person’s care to ensure that the full information is provided promptly when the individual is in a position to receive it. The nominated representative will nonetheless be given the information immediately,” says the Bill.

Activists point out that the Bill takes away judicial safeguards present in the Act,and entrusts too much authority to the treating psychiatrist,opening a potential area of misuse. As per the Bill,in case of involuntary admissions when a patient needs “100 per cent support”,the nominated person can take the admission decisions along with the treating psychiatrist and admit a patient for 30 days straight with no approvals required from the state panels. This can be extended to 180 days after going to the panel — another aspect that can be misused,according to activists.

Under the Indian Mental Health Act of 1987,a magistrate had to sign these forced admissions,after an independent panel of two psychiatrists deemed a patient fit for involuntary admission. According to Bhargavi Davar of the National Alliance on Access to Justice for People Living with a Mental Illness,“The 1987 Act,with all its faults respected Article 21,the ethos of our Constitution,The state had to be involved in involuntary admissions. This takes away this basic right of patients.”

Activists allege that the Bill is partial to the private sector. “The only fine for unregistered institutes is Rs 50,000. If they are caught a second time,the fine is Rs 2 lakh. For private entities,is this a deterrent? There is no provision for criminal proceedings,” said Abidi.

Compulsory registration would lead to many private hospitals shutting shop,which,as per Dr Kallivayalil,would add to the existing shortage of specialists. “We have only 4,000 psychiatrists in government and private sector together. This must be kept in mind while making policy decisions,” he added.

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