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: