New mental health law: Act of dignity?

Pallav Bonerjee assesses India’s brand new mental health legislation, the Mental Healthcare Act, 2017.

The spring of 2017 brought along with it much needed relief and cause for celebration for a large number of stakeholders who were waiting patiently for far too long. On August 8, 2016, the Mental Health Care Bill, 2013 was passed in the Rajya Sabha. On March 27, 2017, the Lok Sabha approved it thereby replacing the outdated Mental Health Act of 1987 in letter and spirit. The Mental Healthcare Act, 2017 came into being.

What does this really translate into? What are some of the new Act’s salient features and how do we really stand to gain from this decision?

According to the new Act, the definition of mental illness itself has undergone a revolutionary change that was much needed. It is no more “any mental disorder other than mental retardation” as the Mental Health Act, 1987 defined it. It is broader, more inclusive and specific, without any undue vagueness about it.

Mental illness is now defined as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub normality of intelligence”. In my opinion, this will help in de-mystifying mental illness to many people who have looked at it with confusion and ignorance.

Greater sensitivity on suicide

One of the most important features of the new Act is that it decriminalises the attempt to deliberate self-harm (read suicide), which is seen among many patients suffering from severe depression and other acute forms of mental illness. The Act overrides Section 309 of the Indian Penal Code, which provided for a year-long imprisonment for a failed suicide attempt.

Paradoxically, criminalising a suicide attempt actually stops many people from reporting it and thus hinders people in distress from seeking professional help. The new law actually recognises suicide as a cry for help, and stresses on the immediate need to reach out and help the person overcome their issues. Treating them the same way we treat a criminal is plain absurd and highly insensitive.

Interestingly, the Lancet Commission on Adolescent Health and Wellbeing has reported that suicide is the top cause of death among the youth in India. I think this will be a very important step in the right direction in trying to reach out to anyone in dire need of mental health services and who feels helpless enough to attempt suicide.

Right to choose treatment

Another remarkable feature of the new Act is the introduction of advance directives – this gives people suffering from a mental illness the right to choose their mode of treatment and to nominate representatives who will ensure that their choices are carried out. In a way, this is a landmark decision in restoring the right of self-determination to the patient, which has been a bone of contention for a very long time. It reassures everyone that individuals diagnosed with a mental illness are entitled to a life of dignity, and they need not have to live in abject isolation and endure ostracism from their families. Yet, I suspect the issue of advance directives will be deliberated on further. Will people with severe mental illnesses have the capacity to choose the course of their treatment?

In addition, the Act also promotes the idea that long-term hospitalization should only be used in exceptional circumstances, by making voluntary treatment as the norm in case of admission. Only in exceptional circumstances, for example, when a person with mental illness is at grave danger of harming themselves or others, then this right to choice is temporarily exercised by another person on their behalf. As soon as the person with mental illness recovers the capacity to make choices, the right reverts back to them.

Institutional accountability, ethics and costs

For the first time, this legislation identifies inhuman and degrading treatment of the mentally ill as a crime and warrants unequivocal punishments for such acts. It delineates the establishment of a Central Mental Health Authority at the national level and a State Mental Health Authority in every state of the country. Every mental health institute and mental health practitioner will have to be registered with this authority.

In addition, a Mental Health Review Board will be constituted at the state level to protect the rights of persons with mental illness. This potentially signifies the recruitment of more trained mental health professionals who can deliver this essential service competently and major financial investments in mental health in every state from the government. The Act also provides mentally ill people a right to confidentiality. Photographs or any other information pertaining to the person cannot be released to the media without the consent of the person concerned.

The Act creates a rights-based framework for mentally ill persons, which is remarkably different from the earlier Act of 1987. This new law enshrines access to mental health care as a right of its citizens and holds the government accountable for service delivery. This right is meant to ensure accessibility to good quality mental health services at affordable cost without any discrimination. It recognises the right of the patients to live in their communities with respect and dignity. It aims to make the process of treatment transparent and participatory for all stakeholders. It seems like the guidelines have been set according to global standards and will be in the best interest of the patients.

Sliver of hope for LGBTIQ people

The emphasis on non-discrimination could potentially translate into some cause for cheer among the lesbian, gay, bisexual, transgender, intersex and other queer (LGBTIQ) communities, who have thus far been largely beyond the ambit of mainstream mental health services even in metro cities. Severe depression and suicide rates among members of the LGBTIQ communities are also among the highest for this very same reason.

The double stigma around mental illness and non-normative genders and sexualities, and consequent discrimination has been a singular factor in LGBTIQ people not choosing to seek treatment from professional hospital-based mental health services. Rather many of them depend only on private clinics, which turn out to be both unreliable and expensive. I hope the new mental health law will ensure that their genders and sexualities are no longer conflated with mental illness itself (as is the wont of many mental health practitioners even today in India), and that they will be able to access quality services without fear of prejudice or discrimination.

Awareness generation

There is also recognition that there is an urgent need to create adequate and widespread awareness about mental illness. The Act requires that a large part of the budget of the Central Mental Health Authority and its state level counterparts be spent on developing various communication channels for awareness generation. It calls for a major review of the existing Information, Education and Communication Scheme of the Centre, and training of our ASHA workers to reach out to rural communities to meet their mental health needs in a systematic manner. By doing so, it aims to empower people with mental illnesses and reduce the stigma associated with it.

Shortcomings and challenges

However, as with the evolution of all major systems, even this development has had its fair share of criticisms and apprehensions, not without adequate reasons. The Act looks neat on paper, but it has to be seen how effective it really is when the execution starts. People in general do not respond to changes very swiftly, especially if it is government machinery and I suspect that there will be no exception in this case either.

To change the mindset of a large population is a much more challenging task than that of a few concerned stakeholders. The role of media and how it portrays the mentally ill will continue to remain supremely important.

The role of insurance companies to cover the cost of health care in mental health is still nebulous and only medicine centric, though we now know that medical intervention is needed only for a small proportion of people suffering from severe mental illnesses. A much larger section of people with mental illnesses may not need medicines and yet require counselling and psychotherapy. Unfortunately, the ambit of medical insurance is not inclusive for such people even now. A change in this regard would have been a major achievement for mental health.

In spite of the Act’s shortcomings, hope dies hard! It has taken many years for us all to see this day. It is indeed historic. Every step in the direction of making mental health services more accessible to everyone should be lauded for its effort, foresight and judgement though we may still have miles to go ahead.

Also read What Does the Mental Health Care Bill Mean for Persons with Mental Illness?by Shampa Sengupta in Feminism in India webzine.

Main graphic credit: Pawan Dhall