Maadhyam is an initiative to capture inputs from interested stakeholders and use them for policy making with the aid of technology. The vision is to make policy making a more participatory process. To this end, Maadhyam will establish a digital platform acting as a bridge between policy stakeholders and enabling flow of communication and feedback. Right now in its concept stage, Maadhyam will launch a series of experiments to gauge the interest of people to engage in policy making.
Few Bills have been identified which are most likely to be discussed in Parliament in the coming session. We will be analyzing these bills and inviting input. This input will be collated and circulated to MPs who have shown an interest in being a part of this initiative. We hope that this input will improve and add to the policy making process.
The first Bill to be taken up in this series is the Mental Healthcare Bill, 2016. Watch this space for other Bills in the series.
The Mental Healthcare Bill, 2016: A Rights Based Approach
The Mental Health Care Bill, 2016[1] is being enacted to overhaul the existing mental health care system in the country. It supplements the government’s efforts towards building a ‘robust response to a complex problem’ as highlighted in the National Mental Health Policy, adopted in October 2014. The Bill has already been passed by Rajya Sabha and is likely to come up in Lok Sabha in the upcoming Winter Session of Parliament in November 2016.
Both the Bill and the Policy have been drafted pursuant to India’s ratification of the United Nations Convention on the Rights of Persons with Disabilities which came into force in May 2008. The Convention stresses on a two-pronged approach towards upholding the rights of persons with disabilities – their inherent dignity and autonomy and the freedom from discrimination. The Bill is also drafted from a rights perspective and upholds informed consent, equality, and inclusion in all matters related to mental health care treatment and rehabilitation.
Mental Illness vs. Mental Retardation
Mental illness is defined in the Bill to mean ‘a substantial disorder of thinking, mood, perception, orientation or memory grossly impairing judgment, behavior….’ And even includes ‘mental conditions associated with abuse of alcohol or drugs’. But the definition specifically excludes ‘mental retardation’ which is defined as ‘condition of arrested or incomplete development of mind’ (Clause 2(1)(s)). There is an existing Persons with Disabilities Act, 1995 which includes ‘mental retardation’ as well as ‘mental illness’ as a form of disability.
The Act provides for equal opportunities in education and employment for people with disabilities through reservation, follows a governance architecture of Central and State coordinating committees and provides for schemes for affirmative action, insurance, and social security for people with disabilities. The Bill creates a parallel governance architecture only for mental illness comprising of Central and State Authorities along with review boards and provides for comprehensive rights of mentally ill people. The Persons with Disabilities Act might also be replaced by a Rights of Persons with Disabilities Bill which was introduced in Rajya Sabha in 2014 but has not come up for discussion yet.
Mental Well-Being vs. Mental Healthcare
The Bill limits its own scope by focusing only on the treatment of mental illness. Mental health is not defined in the Bill, but it is defined in the National Mental Health Policy to include ‘promotion of mental well-being, prevention of mental disorder and treatment and rehabilitation of people with mental disorders’. The Bill defines Mental Healthcare to include analysis, diagnosis, treatment, care and rehabilitation of persons suffering from mental illness (Clause 2(1)(o)).
The Policy provides for shared responsibilities among various Ministries so that complete mental well-being can be promoted. It provides for mental health camps and education in schools, at workplaces and for special categories of people like internally displaced persons or people affected by disasters and emergencies. But the policy is a recommendatory and guideline document whereas the Bill is a binding and enabling document. The Bill also doesn’t provide for sensitization and training of nominated representatives and caregivers of mentally ill persons which are mostly people from their own families but lack the necessary know-how to properly take care of a mentally ill person. Community sensitization is also missing from the Bill.
Capacity to make decisions
The Bill provides that every person, including a mentally ill person, who can understand relevant information to make a decision on treatment or admission, can appreciate reasonably foreseen consequences of a decision or lack of decision and communicate the decision by any means, shall be deemed capable of making decisions (Clause 4). It is not clear however what exactly is covered under lack of decision. It cannot be the same as saying ‘No’ to a treatment because even that amounts to taking a decision.
Further, it is not clear what will happen where a person doesn’t take a decision or is indecisive. Will the indecision of a person be taken as a lack of capacity to take a decision? It has also been provided that where a person lacks the capacity to take a decision and is independently examined and found to have been behaving in a manner where he can cause harm to himself or to others, he can be admitted for treatment upon application of nominated representative (Clause 89 and 90). There are strong checks in place to ensure that a person is not given a treatment or kept in a mental health establishment without his consent and for a longer than required duration.
Advanced Medical Directive
Every person, not a minor, irrespective of their past mental illness or treatment, shall have the right to make an advanced directive in writing specifying how or how not should they be treated for a mental illness and who their nominated representative will be (Clause 5). The Directive will be used only when the person no longer has the capacity to make decisions and will cease to have effect when the person regains that capacity. The Directive shall be taken into consideration while giving treatment to the person and if the mental health professional doesn’t agree with the Directive, they can apply to the Mental Health Review Board, constituted in every district, to review the Directive.
The 2013 Bill provided for the manner in which the Directive should be made providing that it shall be signed by the person making the directive along with two witnesses, the capacity of the person making the Directive certified by a medical practitioner and submitted with the Board. The procedure has now been removed from the Bill altogether and rather has been left to be decided by the Central Authority in its regulations (Clause 6).
Healthcare establishment and duties
The governance architecture of the Bill provides for a Central Mental Health Authority, State Mental Health Authorities in each state and Mental Health Review Board to be constituted by state government in each district, as far as possible (Chapter VII, VIII and XI). The Authorities are to comprise of not just government officials, mental health professionals and experts, but also representatives from NGOs working in this field, representatives from caregivers and persons who have or had mental illness.
This is a progressive change but one which runs the risk of being reduced to mere tokenism if not properly implemented. The Central and State Health Authorities are responsible for registering, supervising, training mental health establishments in their own jurisdictions and Review Boards are meant to act as inspection and adjudicatory bodies. The Bill also provides for duties and training of other agencies like police, magistrates, prison administration, management of custodial institutions etc. in dealing with persons with mental illness.
Rights of people with mental illness
The Bill acknowledges many rights of people with mental illness, some of which are:-
  • Right to access mental health care and treatment in mental health services run or funded by government. For this, the government has been made responsible to ensure that at a minimum, such services are available in every district (Clause 18).
  • Right to not be segregated from the society (Clause 19), to live in sanitary and safe environment with due regard to their privacy (Clause 20).
  • Right to be treated as equal to persons with physical illness in provision of all healthcare and to generally not be discriminated against on basis of sex, sexual orientation, political beliefs, disability etc. Every insurer is now required to provide for medical insurance for treatment of mental illness on the same basis as for physical illness (Clause 21).
  • Right to confidentiality with respect to mental health, treatment etc. Such information can be released by health professionals providing care and treatment to the person to prevent harm to any other person (Clause 23). The Bill could also have provided for a duty on the care-givers, nominated representatives and the person with mental illness to reveal information about mental health and treatment etc. to prevent harm to any other person for instance to a person who is a marriage prospect.
  • Right to access medical records (Clause 25). The 2013 Bill provided that every person with mental illness shall have right to access their medical records. This has now been amended to have access to ‘basic medical records as may be prescribed’. It is not clear why all medical records cannot be accessed by the person, especially when the Bill already provides that information which can cause harm to that person or to anyone else can be withheld.
Other provisions
The Bill provides for the following:-
  • Decriminalization of attempt to commit suicide, where every person who attempts suicide will be deemed to be under ‘severe stress’ and will not be tried and punished under Section 309 of the Indian Penal Code (Clause 115).
  • Seclusion and solitary confinement have been banned and physical restraint can be used only as a last resort (Clause 97).
  • Electro-convulsive therapy without anesthesia has been banned. However, concerns can be raised that in absence of sufficient number of anesthetists in the country, this reform will be difficult to implement (Clause 95).
  • Banning of Electro-convulsive Therapy for minors. Opinion is divided on whether ECT is harmful for minors or not (Clause 95).
Some questions:
  • Should the present bill cover ‘mental retardation’ along with ‘mental illness’ as that is likely to extend all beneficial provisions of the Bill to persons with mental retardation also?
  • Can promotion of mental well-being and prevention of mental disorder be provided in the Bill itself or should it remain confined to policies and schemes?
  • How can the Bill address sensitization concerns?
  • Should the Bill cater to needs of specific categories of people like internally displaced people due to communal riots, unrests, natural disasters etc. by providing for mental healthcare facilities during relief and rehabilitation work?
  • Should the Bill further clarify how the capacity of a person to make decisions will be measured?
  • Should the Bill itself provide for the manner in which Advanced Medical Directive can be made?
  • While maintaining the right to confidentiality, should the Bill provide for a duty on the care-givers, nominated representatives and person with mental illness to reveal relevant information to prevent harm to another person?
  • Should the Bill provide for right to have access to all medical records and not just ‘basic medical records’?
  • Should ECT be banned for minors?
To understand the Bill deeper please go through the text of the Bill here.
All the interested stakeholders are requested to share their views and inputs on the Bill which will be collated and shared with various Members of Parliament to aid them in their legislative duties. Please fill this form to record your inputs.
Written by Maansi Verma, Legislative & Policy Analyst and Founder of Maadhyam.
[1] The Bill was introduced in Rajya Sabha in 2013 and got passed by Rajya Sabha in August 2016. The Health Minister moved 134 amendments to the 2013 Bill barely two days before the Bill got debated and passed and many MPs complained of the fact that they weren’t given enough time to fully understand and appreciate the implications of the amendments.