Miles To Go

Why celebration of the Mental Healthcare Act may be premature

In December 2014, the international advocacy group Human Rights Watch released a report documenting wide-ranging and intense humanrights abuses involving women in 24 institutions across India that house those perceived to be mentally ill. courtesy shantha rau barriga / human rights watch
01 June, 2017

In December 2014, the international advocacy group Human Rights Watch released a report documenting wide-ranging and intense human-rights abuses involving women in 24 institutions across India that house those perceived to be mentally ill. Most striking amid the blocks of text describing the abuse were the stark images of women and girls forcibly deposited in these institutions. Deepali, a 46-year-old with a perceived mental illness, was pictured on the first page of the document, alongside a quote: “I woke up one night and I couldn’t move; my body was in intense physical pain. A nurse came and jabbed an injection into my body, without even taking off my clothes. You are treated worse than animals.”

Though Deepali described the institution as “an alternate reality,” her situation should not have been reality at all. All institutionalisations for those considered to be mentally ill were, at the time of the report’s release, governed by the Mental Health Act (1987). It offered patients a few basic rights—for instance, it technically allowed people such as Deepali to sue for release within 60 days of their involuntary institutionalisation. Yet, the report said, “in none of the 52 cases … documented … was the woman or girl informed of her right to appeal or provided the opportunity or assistance to do so.” In the realm of mental healthcare, realities on the ground bear little relation to legal frameworks—a rupture that has been central to understanding and evaluating India’s mental-healthcare policy.

Even so, on 30 March 2017, the country received new legislation, the Mental Healthcare Act, which was passed unanimously by voice vote in parliament to jubilation from politicians and activists. The health minister, JP Nadda, called the act’s passage “historic,” while the psychiatrist Soumitra Pathare, who was one of the bill’s drafters, wrote in The Hindu that it marked “a paradigm shift in the care and treatment of persons with mental illness in India.” The renowned psychiatrist and researcher Vikram Patel called a recent version of the bill “one of the most progressive mental health care bills in the world.”

Going through the Mental Healthcare Act, one can somewhat understand the reason for this exultation. The law sets up a framework for three critical advances in India’s mental healthcare system. First, it establishes a “right to access mental healthcare”—regardless of a person’s income, place of living, or any other factor—compelling either state governments or, in the case of union territories, the central government to provide mental healthcare in every district by 7 January 2018. Second, the act introduces new patients’ rights through provisions for advance directives, which allow patients to choose in advance their desired course of treatment, and nominated representatives, whom patients can authorise to make decisions about their care if a severe episode of illness renders them incapable of doing so themselves. Third, the law presumes severe stress to be at work in the case of any person’s attempt to commit suicide. This means that suicide, earlier a criminal act under the Indian Penal Code, is now seen as symptomatic of a medical illness that must be treated. With 90 percent of the roughly 60 millions Indians suffering from mental illness currently not receiving any treatment, these measures are necessary and welcome.

However, two major sets of stakeholders—disability-rights activists and the Indian Psychiatric Society, or IPS—have been loudly critical of the legislation. The activist Amba Salelkar, in an online-exclusive for The Caravan in April, argued that the act would simply create new frameworks for “deprivation of individual liberty and capacity” among the mentally ill. Several other disability-rights activists had earlier taken much the same view. The IPS opposed the law for over-regulating psychiatric practice. The vice president of the organisation protested to the Times of India that it “treats mental health professionals as persons never above suspicion,” harming a psychiatrist’s ability to treat patients effectively.

The criticism from these two camps, often at odds over their respective conceptions of patients’ rights, raises uncertainty about the fitness of the act. Both groups were consulted in the process of drafting the legislation, which took about ten years. Their arguments had a significant role in making the act what it is today. Following the process of the act’s creation allows a gateway into the source, and so the relevance, of each group’s opposition—and offers a more nuanced understanding of the challenges that lie ahead.

The need for new legislation arose in 2007, when India signed the United Nations Convention on the Rights of Persons with Disabilities, or CRPD—a global human-rights treaty. However, the process to make the necessary policy started only in February 2010, when the ministry of health convened a committee to draft amendments to the existing 1987 law in line with the convention. Before that work even began, disability-rights activists protested against the very conception of legislation being crafted exclusively by the ministry of health, and also questioned the committee’s makeup—then including justices and psychiatrists. This was in keeping with the disability-rights movement’s famous slogan: “Nothing about us without us.” They demanded a central role in both setting up the committee and drafting the bill, and the resulting pressure they created forced two justices on the committee to resign. The process stalled.

After a couple of months, the reform process was put in the charge of Keshav Desiraju, an additional secretary at the ministry of health. He took a keen interest in reforming mental healthcare, and determined that a simple touch-up of the existing law would not fit the patient-rights-oriented framework of the CRPD. Desiraju opted to undertake the creation of a new law altogether.

Desiraju’s choice invited far more work than was initially asked of him, and anticipated extensive consultations in drafting effective legislation. These consultations, it quickly became clear, also allowed those who absolutely opposed any ministry-driven changes to the law to be heard. In the later months of 2010, Desiraju held meetings with psychiatrists, disability-rights activists, family caregiver groups and other actors in mental healthcare. This engagement culminated in a draft bill released in December 2010. A subsequent national consultation filled a 365-seat auditorium.

This deeply engaged work, something we do not often expect of easily caricatured bureaucratic processes in India, laid the foundations for a drafting and redrafting process led by both Desiraju and Soumitra Pathare. Three different draft bills were made public for comment, one each in 2011, 2012 and 2013, and debates over the legislation filled the pages of numerous specialist and popular publications. Most actors collaborated with the government to make sure the legislation would provide the best possible protection for those they represented. However, the IPS and the disability-rights sector demonstrated staunch opposition.

The reaction of the disability-rights sector was grounded in a deep distrust of the government and its regulations regarding the mentally ill. In her 2000 book Legal Order and Disorder, the activist Amita Dhanda details how, after 1987, the Indian psychiatric establishment remained independent of regulations even as it collaborated with regulators and law-enforcement agencies. Psychiatrists formed informal, and illegal, partnerships with police officers and hospital superintendents so as to circumvent limiting laws and more easily institutionalise patients. Court magistrates routinely looked the other way. This environment bred the abuses described in the Human Rights Watch report, and undermined the entire regulatory framework. The new act calls for quasi-judicial bodies that govern institutionalisation, advance directives and nominated representatives. These bodies can dismiss a patient’s decisions, including those communicated via advance directives or nominated representatives, if these are determined to have been made under duress or in a moment of incapacity. The fact that these bodies will partially comprise psychiatrists has particularly troubled disability-rights activists, who feel that the law simply sets the stage for further oppression of the mentally ill.

The IPS, in the years before the legislation’s passage, was also critical of the bill. The group opposed the same legal framework that disability-rights activists saw as too lax for, in its eyes, interfering too heavily in psychiatric practice. For instance, the IPS argued that matching a patient’s treatment exactly to the specifications in an advance directive could be too onerous and ultimately “drive psychiatrists into highly defensive practices” to the detriment of patient care.

The government refused to bow to either group’s position. Desiraju, who in 2013 became the national health secretary, wanted a pragmatic, “middle” approach that would protect patients from exploitation both by psychiatrists and their families, and also ensure their “right to health” in emergencies, including severe episodes of psychiatric illness, when they could not advocate for themselves. This “middle” approach pleased neither the activists nor the medical community. However, family groups and mental-health NGOs—who made up the majority of the stakeholders, and were happy to see any progress from the previous law—supported the final draft of the legislation, and it was with their backing that the ministry brought it up for the cabinet’s approval.

Desiraju, when we spoke in June last year, said the bill’s progress required careful follow-up through various offices. Upon winning the cabinet’s approval, the 2013 version of the legislation was introduced in the Rajya Sabha, which unanimously recommended its passage with suggestions for amendments based on testimony from both supporters and opponents of the bill.

However, ten days before the bill, with the suggested amendments worked in, could receive its second cabinet approval, which would have allowed it to enter the parliament again, Desiraju was sacked. He was reluctant to tell me why, and simply said it was over an unrelated issue. Thereafter, the bill was not followed as closely through the various offices from which approval was needed. Multiple ministry officials told me the bill entered “cold storage” during this period.

In June 2016, the bill finally got the cabinet’s approval again, and was reintroduced in the Rajya Sabha as the Mental Healthcare Bill, 2016. It was passed with ease in the Rajya Sabha during that year’s monsoon session, but, given a lack of both political interest in the legislation and a firm advocate within the government, was not immediately tabled before the Lok Sabha. The winter session of the parliament, overwhelmed by controversy over the government’s demonetisation exercise in November, was a washout. Finally, in this year’s budget session, with the government in a position of strength after elections in key states and looking to show legislative progress, the prime minister’s office began asking individual ministries what bills they had that could be pushed through. The Mental Healthcare Bill, having already been passed in the Rajya Sabha last year, was a prime candidate. It was introduced in the Lok Sabha and passed without significant opposition.

The law’s passage, thus, was a product of political contingencies. Ideally, its enactment would have been accompanied by a government statement that the embarrassingly low budget allocation for mental healthcare—currently just 1 percent of a healthcare budget that is already criticised for being too small—will be increased in consonance with the law’s promises. In the absence of any such indication, and given the circumstances of its passage, the new legislation remains but an announcement of official support for mental healthcare, rather than a commitment to it.

The act now finds itself in the limbo between existence and non-existence so common for laws in India. It will be up to civil-society groups to ensure that the law’s protective measures are implemented, and that the government is held accountable for meeting the promises it has touted in the media.

Ultimately, both triumphant and pessimistic portrayals of the law fall short. The strongest dissent against the law is grounded in the experiences of patients and caregivers on the front lines of mental healthcare in India. And so, while the law sets up a robust framework, its true nature will only become apparent in implementation.

Pranav J Sharma is a recent graduate of Brown University and an aspiring psychiatrist. He will spend the next year continuing his work in the mental-healthcare space as a Fulbright-Nehru scholar based at the Centre for Policy Research in Delhi.