The Rajya Sabha recently passed the Mental Healthcare Bill. It is a major advance over the Mental Health Act, 1987. However, the need for legislation which recognises the rights of individuals and the responsibilities of a civilised society demands a nuanced understanding of mental health issues.
The term “mental health” encompasses a wide variety of conditions, issues and contexts. While illness represents individual suffering, disease implies structural and functional abnormalities. The inter-changeable use of these concepts is supported by academia and health, insurance and pharmaceutical industries. Clinical presentations of individual suffering are usually viewed through the biomedical lens and that leads to such suffering being seen as disease. Pharmacological therapies are then recommended for such diseases. However, social determinants of mental health (poverty, gender, literacy, employment and social exclusion) are ignored. The heterogeneity of experiences and the disparity of contexts make the task of employing a single framework difficult. The stigma associated with mental illness further complicates the issues.
Activism by people with psychosocial disability has challenged biomedical and psychiatric discourses. They have argued against the use of compulsory treatment for psychosocial conditions including mental illness, suggesting that such approaches are influenced by prejudice, and are a breach of the human right to equality. Such movements resulted in the United Nations Convention on the Rights of People with Disability (UNCRPD). It argued that people with disability, including mental illness, have rights to seek legal opinion, liberty, and to informed consent. While UNCRPD’s broad structure does not explicitly ban the use of force in the treatment of the mentally ill, its logic clearly suggests prohibition of compulsion.
Activists who support non-discrimination between physically ill and mentally ill people contend that legislation, which specifically targets people with mental illness, adds to the disadvantage of an already marginalised group. They suggest that such laws are an easy way out for mental health professionals and they reduce channels of communication, negotiation and persuasion. Medicine focuses on the “right to health and treatment”. Legal perspectives, in contrast, favour the individual’s autonomy, choice and right to refuse treatment. Medicine in India prefers a paternalistic culture while legal frameworks support contractual relationships between patients and physicians. These contrasting perspectives have resulted in uneasy compromises the world over. While psychiatry acknowledges that individual autonomy is fundamental, it also supports the takeover of decision-making in certain situations. Most countries have mental health laws, which permit coercion, compulsory hospitalisation and psychiatric interventions without patient consent.
The Mental Healthcare Bill attempts to protect human rights of the mentally ill. It mandates registration, licensing, inspection and audit of mental healthcare institutions. It permits involuntary hospitalisation only in exceptional circumstances — for example, when there is a risk of harm to the patient and others. It mandates a range of services including community rehabilitation. It decriminalises attempts to suicide and bans the use of electro-convulsive therapy without anesthesia and prohibits its use in minors. It puts the onus of responsibility on the state for training mental health professionals and providing access to public healthcare. It requires insurance companies to provide health cover for people with mental illness. It tries to provide checks and balances to ensure the dignity of the mentally ill.
However, it has not pleased all the stakeholders. Psychiatrists resent interference in clinical decision-making while activists argue that the bill does not comply with the UNCRPD. The bill should be seen as a work in progress. The way it is implemented will determine its success in reducing the burden of mental illness and in supporting the human rights of people with mental illness. Periodic reviews can help plug gaps between practice and theory, and law and justice.