The need to recognise the human rights of persons who have actual or perceived mental-health impairments has been hard to accept, even for the staunchest social-justice warrior. The alienation of persons with psychosocial disabilities—which is the rights-based terminology to describe persons with mental illness—by deeming them as dangerous, unable to make decisions for themselves, and incapable of participation in society continues to be seen in popular culture, media reports, and even legislation and policy. The recent Mental Healthcare Act, 2017, passed in both houses of parliament as of 30 March 2017 and enacted on 7 April, is being widely celebrated as landmark legislation. Granted, the mental-health standards are so poor in this country that any step is seen to be a step in a positive direction. This act, however, may be a case of too little, too late. There are inherent contradictions between the stated goals of the act and its provisions, which allow for the deprivation of individual liberty and capacity without providing effective support to the individual and their choices.
The first indication of such a contradiction is the enactment of a separate mental- health law despite the enactment of the Rights of Persons with Disabilities Act in 2016. There is a need to protect the rights of persons with psychosocial disabilities, as they are prone to abuse and exploitation in the name of treatment. These safeguards could easily be brought within the ambit of mainstream legislations relating to health, disability rights, or even criminal law. But this is not the norm because of the common misconception that a person with a psychosocial disability would always, without cause, be resistant to treatment, and therefore coercive measures must be undertaken for the treatment. As a result, mental-health laws tend to create exceptions to the rights found in health and disability laws, such as the necessity for informed consent—or any consent—to medical treatment.
The Mental Healthcare Act must be analysed in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in order to fully understand its shortcomings. The CRPD was the fastest negotiated human-rights treaty and had the highest number of signatories, which included India, to a UN convention on an opening day. Adopted on 13 December 2006, it contextualised existing human rights for persons with disabilities and addressed the means by which they were excluded from enjoyment of the same. For instance, the right to liberty under the CRPD was drafted to recognise involuntary commitment to a psychiatric institution as a form of detention that resulted in the deprivation of liberty.
The preface of the Mental Healthcare Act acknowledges the necessity for India to harmonise its domestic legislations with the CRPD as one of the reasons for the introduction of the act. The act, however, fails to meet the standards of the CRPD. A closer look reveals that it is largely in line with a World Health Organisation resource book on mental health, which was published in 2005. The resource book provides the guidelines for determining a person’s capacity for self-determination, and the rights of persons with mental illness while being treated as involuntary patients in mental-health establishments. The CRPD specifically classifies involuntary treatment and institutionalisation as violations of the right to health and the right to live independently and within the community. The resource book was withdrawn after the adoption of the CRPD because it was not compliant with the latest human-rights standards.
The CRPD, through Articles 12 and 25, mandates that all persons with disabilities have the right to self-determination with regard to their treatment options, and must be given the requisite support to help them make decisions. In contrast, Section 4 of the Mental Healthcare Act provides that a mental-health professional—which includes a clinical psychologist, mental-health nurse, or a psychiatric social worker—may determine whether a person has the capacity to make mental healthcare and treatment decisions. To determine whether a person can make decisions about their own healthcare, the act requires that such a person must have the ability to understand the relevant information to take decisions regarding their treatment and mental healthcare, appreciate the consequences of the decision, and communicate the decision. This method of determining an individual’s capacity for self-determination, also known as the two-stage functional test for capacity, was specifically termed as a denial of “a core human right” by the Committee on the Rights of Persons with Disabilities—the treaty body of the CRPD, which comprises a body of experts responsible for monitoring its implementation. In its first General Comment—the interpretation of the provisions of a treaty that are published by the concerned treaty body—on Article 12 of the treaty, the committee noted:
This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right—the right to equal recognition before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.
The act provides two support options in regard to the exercise of legal capacity—the appointment of a nominated representative and the right to make an advanced directive. As per Section 4 of the act, any person may appoint a nominated representative to discharge the responsibilities under the act. If a person with psychosocial disabilities has not appointed a nominated representative, and has no relative or caregiver who is willing to be the nominated representative, then the Mental Health Review Board, a body constituted under the act, can appoint one for such a person. Besides appointing a nominated representative, the board is also responsible for reviewing advanced directives, long-term institutional care, and adjudicating complaints about deficiencies in care and services.
Mental-health professionals can also accept an application from a person representing an organisation working in the field of mental health to be appointed as the nominated representative while the board’s decision is pending. A nominated representative is given tremendous power to act on behalf of the person. Under Sections 89 and 90 of the act, the nominated representative can initiate proceedings to admit the person to a mental-health institution and consent to treatment plans on their behalf.
The legal mandate of the nominated representative, as per section 17 of the act, is to act in the “best interests” of the person. The board is empowered under the act to remove a nominated representative and appoint a different person if it is in “the interest of the person with mental illness,” even if such person appointed the representative themselves. While the genuine concern for the person with psychosocial disability must be borne in mind, Article 12 of the CRPD specifically mandates that support measures are meant to uphold the “will and preference” of the person, and focus on the best possible determination of the same. All individuals, including persons with disabilities, are entitled, on an equal basis, to the dignity of risk—a phrase frequently used in disability-rights advocacy to denote the need to respect an individual’s autonomy and right to self-determination. A board-appointed representative making healthcare decisions for persons with disabilities in their “best interests” is therefore discriminatory. It fails to respect the choice and control of the individual over the support measures that were decided upon their own will and preference, and fails to accord the individual this dignity of risk in the exercise of them.
The second support measure in the exercise of legal capacity is the advance directive, which allows a person to specify in advance, the manner in which he or she would like to seek medical treatment for a psychosocial impairment (including treatment they would specifically want to avoid), as well as appoint a nominated representative. However, section 11 of the act empowers a mental-healthcare professional, a caregiver or a nominated representative to make an application to the Mental Health Review Board seeking to set the advance directive aside. The board may then take a decision to “review, alter, modify or cancel the advance directive.”
Moreover, according to the act, an advance directive is not applicable in the case of emergency treatment. Section 94, which covers such treatments, empowers any medical practitioner to administer any medical treatment—including treatment for mental illness but excluding electro-convulsive therapy and sterilisation—in case of an emergency. The act defines an emergency as any situation in which such a measure is necessary to prevent death or irreversible harm to the health of the person; to prevent the person inflicting serious harm to himself or to others; or to prevent the person causing serious damage to property belonging to himself or to others. If a nominated representative is available, their informed consent may be taken for the emergency.
A state of emergency is where the expression of an individual’s will and preference is most likely at risk and it is at this very point that the act allows for it to be absolutely ignored. Even if it is not an emergency, the onus is on the person or their nominated representative to give a copy of the directive to the practitioner. Not receiving a copy of the directive absolves the practitioner from any liability for not following it. The rules to be framed under the law must address this loophole, and also provide for secure means of ensuring the availability of the advance directive to practitioners.
The act is receiving much praise on account of its reported decriminalisation of the attempt to commit suicide, which is punishable under the Indian Penal Code. It is important to note that the act merely creates a rebuttable presumption that a person who attempts to commit suicide had “severe stress” and is exempt from criminal prosecution. State machinery can easily deny such an observation in a criminal report, which may then force a person who has made such an attempt to actively seek a psychiatric label to avoid prosecution. On the other hand, all forms of anti-establishment activity and protests can be looked at as self-harm. It is certainly not an unprecedented worry, as instances of a state curbing dissent by admitting protesters into mental-health institutions have been reported in China, the United States, and Russia. During the Kudankulam protests in India, the central government had proposed sending mental-health professionals to counsel the protestors. It is worth pondering whether it is more desirable to be subject to criminal proceedings wherein one has the protection of the Constitution, as opposed to being exposed to a system where the state may force an admission into a mental-health institution as the alternative to criminal prosecution.
The alternative to determination of the capacity of a person who has psychosocial disabilities is a determination of the support needs of such a person and ensuring safeguards for the fulfilment of their will and preference. The problem with the functional test is also that it makes capacity an all-or-nothing consideration. In reality, persons with disabilities may require different degrees of support on different issues. Chapter V of the act, which deals with the rights of a person with psychosocial disability, does not speak about the right to support in making their decisions. Bringing the right to support within the ambit of the act would entail a detailed and costly exercise of working out individual support plans for persons who require the same. Various legal formulations are being attempted, world over, to give effect to these rights. The latest report of the UN Special Rapporteur on the Rights of Persons with Disabilities unpacks the obligation of the state to provide support, as opposed to care, to persons with disabilities, and clearly links the lack of support to eventual institutionalisation. It also requires that states must establish an immediate moratorium on new admissions to institutions and set up a policy framework to guide deinstitutionalisation processes including the development of adequate community support for persons with disabilities in decision-making.
For those who doubt the possibility of a legal resolution of this complex issue, there was already an attempt made in India in 2011 where an alternative was proposed as an amendment to the National Trust Act. The National Trust Act currently governs the appointment and monitoring of guardians for persons with intellectual impairments, autism, cerebral palsy and multiple disabilities. The proposed amendments to the act sought to identify support measures, in the form of individualised plans, at the local level, for persons with disabilities having “high support needs” including mental illness. The amendment is still pending introduction in parliament.
Overhauling the presently perpetuated mental-health system would also involve promoting research in initiatives to support persons with psychosocial disabilities in the community—many of which have been well researched and proved effective. These include the Soteria paradigm, a model that is based on recovery through community-service, to help persons experiencing severe mental distress; Open Dialogue, which brings a person together with their family, friends and professionals to discuss the mental health crisis at hand; and the Personal Ombudsman, a trained official who helps persons facing high restrictions in participation. It would also involve encouraging the many existing indigenous models on similar lines. Initiatives such as the Mental Health Innovation Network , a global community of mental-health innovators who share ideas and resources to promote mental health, are collating evidence-based initiatives in mental-health interventions. While the act speaks of community-based care, it does not encourage the development of support mechanisms in the community and institutions to enable persons with psychosocial disabilities to make informed decisions on their treatment.
Clearly, the realisation of the human rights of persons with psychosocial disabilities is no easy task, but as demonstrated above, there is enough innovation to challenge established norms. The act seems to adopt a rights-based language, but it will require close monitoring by civil society to see how far it goes from the established approaches to persons with psychosocial disabilities.
For now, despite the ratification of the CRPD, persons with psychosocial disabilities in India are caught between this legislation, which denies them capacity on healthcare and treatment decisions, and the Rights of Persons with Disabilities Act. Section 14 of the act allows courts to appoint a guardian for persons who have been provided adequate and appropriate support but are unable to take legally binding decisions. Again, this appears to invoke the functional test and again, the what and how of support is left without resolution. The only hope is that the government commits to full implementation of the CRPD in a time-bound period, and that it will not take another 30 years of outdated legislation governing persons with psychosocial disabilities to realise this.
Amba Salelkar is a lawyer with the Equals Centre for Promotion of Social Justice where she works on advocating harmonisation of law and policy with the Convention on the Rights of Persons with Disabilities.