The mental health care bill 2013: A disaster in the offing?

The Mental Health Care Bill-2013 has an over-inclusive definition for mental illness. This will hurt a huge number of victims of even minor mental illnesses and their families, because of the wide prevalence of stigma. There is no mention about the huge resource-mobilization that is required to realize various promises that the Bill is holding out. Without penal provisions that would force them to act, Government functionaries are unlikely to extend various promised services to concerned beneficiaries. Nor could patients and their families seek relief through courts of Law.

A better approach to realize various objectives of the Bill is to have a precise and restrictive definition for mental illness. That way, vast majority of victims of mental illness in the country would not be required to face stigma-related problems. Enforcement of the Law will be easy and such an elaborate machinery, with Mental Health Review Commission and District Mental Health Boards, would not be required. Also, issues like “Competence” and “Advance Directive” will not be relevant any more. It is undesirable to have too many controls on the professional functioning of psychiatrists. By strengthening the State Mental Health Authorities properly, all good objectives envisaged in the Bill can be achieved.

The “Mental Health Care Bill-2013” has already been cleared by the Parliamentary Standing Committee. Unfortunately, they have cleared it without remedying many defects and retaining many counter-productive provisions. In its present form, the Bill would have a negative impact on the future delivery of mental health care in the whole country. Unless mental health professionals in India take some effective action collectively and cure many serious deficiencies in this Bill, at least at this late stage, its repercussions on the future practice of psychiatry in this entire country would be terrible.

The purported objective of the new Law is to provide remedy all inadequacies in the field of mental health and protect mentally ill persons. For this, the primary strategy adopted by the authors of the Bill is to have an over-inclusive definition for “mental illness.” The one given in chapter I, section 1[r], of the Bill is a very broad one and is more like definitions given in textbooks or classification manuals.[1] Based on this sweeping definition, the figure is just mind-boggling: On a modest estimate, at least 15% of the population or over 19,50,00,000-[195 million] persons in the country have a “mental illness”! Even persons with minor mental ailments are to be deemed as having “mental illness,” as per the proposed Law!

Further, in chapter II section 3[2] the Bill advocates to follow “internationally accepted medical standards” for “case-finding.”[1] These two positions taken in the Bill, namely an over-inclusive definition along with its liberal method of “case-finding,” makes one think that the authors of the Bill believe that just by bringing in more persons into the “mental illness-group,” their plight would improve! But unfortunately, this stand is diametrically opposite to that of the well-established position of professionals as well as policy-makers all over the world, on this issue. The widely accepted stand in this field is that a tag of “mentally ill” should be given only to the least number of persons!

Such a restrictive view about mental illness is taken by thoughtful people all over the world based on their awareness about various “stigma-related” issues in the field of mental-health. Even in these modern times, once a person gets the label of “mental patient” he is treated as an outcast not just by the public, but even by governments! For the victim, that label would destroy his very sense of identity deep inside. And the family would go to any length, just to avoid others knowing it!

They would keep away from institutions and even doctors who are known to treat mental illnesses! They either consult non-psychiatrist doctors in high-tech hospitals or even charlatans, spending a fortune! And, they do these things even while knowing that the problem at hand is a mental illness!

The civil society has a duty here, to help victims and their families to cope up with the huge tragedy of mental illness. Merely stating in the “Objects and Reasons” of a new Bill[1] that “the access of mentally ill persons to mental care facilities in the country would be promoted” would not improve their plight! As long as stigma continues to be a daunting issue, large sections among them would continue to go after non-psychiatric-care centers that promise them miraculous cures!

This issue of stigma is addressed all over the world, by allowing a mental patient to avail various privileges and services, without having to reveal that he is mentally ill. But in India, our lawmakers are quite insensitive about all these things. We have an entire chapter V [section 18 to 28] of the Bill, where many things are promised to “all those with a “mental illness”![1] It seems that the proposed Law expects people to “announce” that they are mentally ill and avail benefits! And a cardinal promise given is that they would have access to care, either in government institutions, or at other mental health establishments designated by the government."

Kala,[2] who is critical of the Bill on several counts, welcomes this part, by saying that “a sea change for the better,” regarding access to treatment for the mentally ill across the country and particularly so for the underprivileged, would take place. This, unfortunately, is an over-optimistic view, which has been reached without taking into account many ground realities. The fact is that owing to stigma, not many would even come forward to avail any benefits, even if they are made available at appropriate outlets.

The Law does not say anything on how it would persuade victims of “mental illnesses,” mild and severe, to avail services from the right kind of institutions, overcoming their stigma-based inhibitions! Nor does the Law mention anywhere, about how it would prevent the exploitation of mentally ill persons in “non-mental-health institutions,” as is happening now.

When one reads chapter xv of the Bill, which is about “penal provisions,” one gets surprised and disappointed. One would even go to the extent of doubting the genuineness of this whole exercise of “offering” many reliefs to those with mental illness! This is because in this entire chapter, not even one section is there, to punish government functionaries at various levels, who fail to deliver various “promises” offered to mentally ill, through this Bill! All penal clauses in that chapter are about punishing individuals or companies, who while running institutions, fail to comply with prescribed regulations!

In this situation, how could one believe that a poor victim of mental illness could get her “entitlements” as per this new Central Law, merely because things are written in a statute book? Murthy[3] finds that the “civil rights language in the Bill is quite attractive”! Patel[4] has stated that it is good to have a legislation to secure the right to care for persons with mental illness. But, the question is, how could an ordinary person get relief, in the absence of clear provisions to seek remedy, through a court of Law?

In countries where the “Rule of Law” is the centre-piece of governance, Laws, Rules and Regulations are all laid down, with a clear intention to enforce them, in letter and spirit. And they ensure this by always having penal provisions in the concerned Law itself. Aggrieved parties could always obtain remedies, through courts of Law. But in this Bill, lawmakers seem to think that giving some sweet promises to mentally ill, though they are not enforceable through Courts of Law, is a great idea!

The bill has not indicated anywhere, about the manner in which the Government would mobilize the huge resource that would be needed to render care for such a large number of mentally ill persons. Strangely, in the “Financial Memorandum,” which is given as an annexure to the Bill, it is stated that “there is no easy way to estimating the full financial burden likely to be incurred….”[1] Further, it goes on to remind everyone that “Health” is a “State Subject” as per the Constitution![1] The implication here, is that the entire blame for non- implementation of various commitments in the new Law would be on State Governments and not the Central Government!

A close reading of the present “draft Law” indicates that it is written more in the fashion of an “announcement” by the government, to acknowledge that the “mentally ill” need a better deal. But the whole document is prepared, not in the manner in which one expects an “Act” to be drafted! If the objective is just to improve the plight of the mentally ill, it could be achieved more effectively by having a well thought of “National Mental Health Program,” with the required budgetary support. If the government of India creates a funding agency for mental health care in the whole country, in the fashion of University Grants Commission,[5] state governments could build all kinds of institutions and services for the welfare of the mentally ill.

Though it is important to respect the privacy of the mentally ill and their families, so that they are not haunted by stigma, a Law is needed in the case of certain clear-cut groups, either for their sake or for the safety of the society. Firstly, a Law is required to compel persons who refuse treatment, despite being seriously ill. A second group consists of persons, who may cause serious harm to others or to themselves, owing to their illness.

While a Law is required for these groups, it is important to exclude all others with mental illnesses, including many of those who are severely ill. The following definition would meet the twin-objectives of including those needing an intervention by Law and excluding all those who should be left alone. “A ‘mentally ill person’ means a person who is determined on the basis of a due process, as needing compulsory treatment in a mental health establishment, because of either serious mental disease, or profound mental retardation.”

Though the definition has some similarity to the one we have in Mental Health Act 1987,[6] this one is quite unequivocal and legally sound. Firstly, by requiring a “due process” to determine a “mentally ill person,” all others would be left out from possible hurt, humiliation or hardships that such a label would bring in for them. The “due process” here is primarily the passing of a “reception order” by a competent Magistrate. An order “under special circumstances” issued jointly by two competent psychiatrists, which later should stand the scrutiny of a Magistrate, could also be a method that would fulfill the “due process.”

Apart from these, as per of our Criminal Law, those who are determined as mentally ill, as per section 84 of Indian Penal Code,[7] as well as a person pronounced as being “unfit to stand trial”, by a trial court, as per sections 328 or 329 of Criminal Procedure Code,[8] are also to be reckoned as having fulfilled the “due process” requirement. In Civil Law, a person who is pronounced as mentally ill after a process of “Judicial Inquisition,” may also be taken to have met this “due process” criteria.

With regards to a “mental health establishment” as per the above definition, it has to be restricted to places where patients are being treated without the presence of bystanders. Either mentally ill persons, who had been determined to be so by a “due process,” or those who seek admission there on a voluntary basis, as per a prescribed procedure, could be inmates of those institutions.

All other kinds of institutions, like general hospitals, or even designated areas in a mental hospital where a patient has the constant presence and support of a relative or friend, need not be treated as a “mental health establishment” for the purpose of the Law.

“Profound mental retardation” has to be included in the definition, as they are a group of severely “diseased” persons that needs special protection by Law.[5] They are persons who cannot even protect themselves against common physical dangers! Some among them may sometimes even cause serious injury to others. The State has to assume their guardianship and the best way to do this is to include them also in the group of “mentally ill persons”.

Once a clear-cut definition of “mentally ill persons” is there, there is no need to be concerned about issues like “Competence,” “Advance Directive” and so on. Competence is something covered by General Law. Everyone's Competence is assumed, including that of mentally ill, unless he is determined to be a “mentally ill person”, based on a “due process.” Being on treatment by a psychiatrist or similar other things will not take away a person's “Competence.”

Similar is the case with “Advance Directive,” regarding which a whole chapter III is there in the Bill! If the new Law is made applicable only to those having a “mental illness,” determined after a due process, there will not be any need to deal with “Advance Directive” in the proposed Law. Also, it would be quite inappropriate to give such a right selectively to those with mental illnesses, while victims of all other illnesses are not given the same. It would be a case of equals being treated un-equally and that way discriminatory and unlawful. Further, the finding that “advance directive” was a failure[9] in western countries where it was given a trial run, needs to be considered.

The present Bill would make every psychiatrist in this country quite uncomfortable, seeing the kind of measures it is bringing in, to control this group of medical professionals. One would expect a legislation aiming to improve the plight of mentally ill and their families, to take into confidence the concerned medical speciality, Psychiatry, and assign them the key role in delivering quality-care. But unfortunately, the present Bill, by its not so subtle tone, tenor and content gives out a message that law-makers in our country consider that psychiatrists are the cause of all miseries of mentally ill persons!

The system of surveillance to regulate psychiatrists in the new Law is quite elaborate! An entire chapter XI, with clauses 73 to 94 is written about the “Mental Health Review Commission” for the whole nation and “District Mental Health Review Boards” for each revenue district. As per section 81, “District Review Boards” are to have six members, of which only one will be a psychiatrist! And as per subsequent sections, this lay board is vested with powers to regulate the professional conduct of psychiatrists in this country!

Now, all over the world, professionals are overseen and regulated by statutory bodies, constituted by persons from within the concerned profession. When bodies like “bar council,” “medical council” and so on regulate their own professions satisfactorily, why this morbid idea of having a kind of “people's court” to regulate psychiatrists? Further, as per section 86, all proceedings before the “Commission” and the “Board” shall be deemed as judicial proceedings, as laid down in Indian Penal Code![1]

When district boards start functioning in the manner laid down in the Bill, there is a serious danger that it would go against even the federal nature of governance in the country. As is well known, “Mental Health” is part of “Health,” which is a “state subject,” as per our Constitution. As such, how could “district boards” that are created by the Centre and controlled directly by a central body, namely the Central Mental Health Review Commission, be legally acceptable? And how could these “Boards” control mental health professionals, over the heads of the administrative machinery, Medical Councils and even the Judicial System, of concerned states?

In section 90, it is laid down that the Commission will appoint an expert committee, who would prepare a “guidance document” to tell psychiatrists regarding assessment and treatment decisions![1] So with the new enactment, diagnosis and treatment in psychiatry is not any more what one learns from textbooks or training centers! All required clinical skills and wisdom are to be “prescribed” by “guidance” documents issued by the Commission! Obviously, this whole approach is an affront to the branch of Medicine called Psychiatry!

If a State Mental Health Authority is properly constituted as a quasi-judicial body, it can take up the important task of protecting the human rights of inmates of all Mental Health Establishments, or even outside, in its geographic jurisdiction. It would be better to have a person with judicial background as chairman of State Mental Health Authority, rather than having the Health Secretary of the state Government.

That way, this body could deal with petitions on improper detention and other human rights violations, with regards to “mental health establishments,” including those run by the Government.[5] Sub-classification of “mental health facilities” as well as advising government on prescribing the exact requirements that each one of those places need and so on are all jobs to be done by State Mental Health Authorities. Many of these things can also be taken care of by framing State Mental Health Rules thoughtfully.

The State Mental Health Authority can advise the state government on licensing, and also oversee admission, discharge etc. It would be a welcome idea to have “District Mental Health Authorities” for each revenue district, which would work under the supervision of “State Mental Health Authority.” It would certainly add to the accessibility and efficiency of the entire surveillance system for each state.

One fails to understand the wisdom of doing away with a system of having a “board of visitors” for each and every “mental health establishment.” Indeed that was something we had from the time of “Lunacy Act-1912.”[10,11] One cannot think of a more cost-effective method to check human rights violations in those places and keep a constant vigil on institutions of various sizes and descriptions.

Once special surveillance is restricted to “mental health establishments,” which are “total care” institutions, or places where patients are looked after without bystanders, the workload of licensing and the overseeing of Institutions would be simplified and reduced to a quite manageable level.

The Bill, in its present form, is an extremely non-viable piece of legislation for many more reasons. Andrade et al.[12] have commented on the need to administer un-modified ECT in certain situations, which the proposed Law is wanting to prohibit! There are other issues also, which need to be discussed in more detail. They are not being dealt with here, as this write-up is not an attempt to cover the entire Bill, clause by clause.

Many authors who have critically analyzed the relationship between Law and Mental Health have emphasized the importance of maintaining a right balance between the two streams.[13,14] It has been stated very rightly, that “in the regulation of involuntary treatment, a balance must be found between duties of care and protection and the right to self-determination.”[15]

In conclusion, it must be emphasized that the only way to ensure that most victims of mental illness could go on with life, without getting traumatized by stigma, is to ensure that they are not required to face any legal hassles. A very clear-cut and restrictive definition for “mental illness” will limit interventions by Law, only to those cases where it is absolutely necessary. When that is done, there may not be any need to have a very elaborate machinery, with “Mental Health Review Commission,” “District Mental Health Review Boards” and so on, to monitor and regulate the field of mental health. It is important that all concerned keep in mind that importing ideas from the West and tinkering with the basic structure of an entire professional field, without a proper study of ground realities, could be just disastrous.