New Mental Health Bill

 8/18/2016  452

In landmark improvements over the existing mental health law, the new Mental Healthcare Bill imposes a blanket ban on the use of electric shocks for treatment among children and restricts the use of painful Electro Convulsive therapy (ECT) among adult patients. In the past, there was no restriction on the use of shock treatment on any patient, including children. Passed by the Rajya Sabha, the new Bill replaces the archaic Mental Health Act of 1987 which was silent on all issues affecting the ill, including the definition of mental illness and the rights of patients.

The new Bill is path-breaking as it makes inhuman treatment of the mentally ill a crime and defines what constitutes cruelty. Tonsuring and forced shaving of heads is one of the inhuman treatments mentioned in the Bill. Forcing an inmate of a mental health institution to wear in-house uniform will also be a crime henceforth. The Bill also says that psychosurgery, a dangerous exploit, could not be resorted to only in restricted circumstances and conditions. In the 1987 Act, there was no restriction on psychosurgery, making patients vulnerable.

A first: India defines mental illness
The new Bill says mental illness is a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet ordinary demands of life, mental conditions associated with abuse of alcohol and drugs. But it does’t include mental retardation, which is a condition of arrested or incomplete mind development of a person, specially characterised by sub-normality of intelligence. The past Bill did not define mental illness.

Decriminalization of attempted suicide
A long standing demand the Bill meets is decriminalisation of attempted suicide by patients of mental illness with recognition that a suicide attempt by a sick person has been triggered by his mental condition and not otherwise.

Advanced Directive
A striking feature of the Bill is it gives everyone an opportunity to write a will stating how they would like to be treated in case they contract a mental illness in future. Called “Advanced Directive”, the will can specify the way a person wishes to be treated and cared for in case of mental illness; the way a person does not wish to be treated during illness and the order of precedence in which he wants to name his nominated representatives, who will protect his interests in case of a prospective illness. The earlier law had no provisions of a will or a nominated person, which can now be a either a friend or a relative.

The 2013 Bill, which Lok Sabha will pass shortly, paving the way for Presidential assent, for the first time grants a right to appeal to mentally ill patients who may have been admitted to institutions against their will. Also in a historic move, the new law defines circumstances in which a mentally ill person can be admitted to institutional care. As against the past when admission used to be unmonitored (relatives could leave people in hospitals), now it will have to be supported with evidence that the said patient is violent, suicidal, or lacks family care. Instead of 90-day first admission period provided in the old law, the new law says initial admission can’t be more than 30 days.

Penalities
Any violation of the provisions of the new Bill will attract imprisonment up to six months or a fine up to Rs 10,000, or both, on first contravention and a jail term up to two years and a fine up to Rs 50,000 extending up to Rs 5 lakh on subsequent contraventions.

Analysis:
The Rajya Sabha has passed a Bill to decriminalise attempt to suicide. Section 309 of the IPC provides for one-year imprisonment for a failed suicide bid. As far back as 1971 the Law Commission had recommended repeal of Section 309. The Janata Party government tried to implement the recommendation in 1978 but it fell before both House could pass the Bill. The world over the new thinking takes a kinder view of suicide. It is recognised that the victim has a psychiatric problem and should not be treated as a criminal. He needs sound counselling, not a jail term.

Reflecting this viewpoint, the Bombay High Court in the 1987 Maruti Shripati Dubal case had termed Section 309 as unconstitutional. In the P Rathinam case (1994) the Supreme Court ruled that a person could not be forced to live a distressed life and hence Section 309 violated Article 21. However, in the 1996 Gian Kaur case a five-judge Constitution Bench overturned the Rathinam case judgment, saying the right to life could not be construed ever as a right to die. In 2011 the Supreme Court recommended to Parliament to consider decriminalising attempt to suicide. The Mental Health Bill seeks to nullify the punishment Section 309 imposes.

The Bill’s broader purpose is to guarantee every person the right to affordable, quality treatment for mental illnesses, which include mental conditions associated with any substance abuse, “a disorder of thinking, mood, perception, orientation or memory” and excludes mental retardation. In 2005 it was officially estimated that 6-7 per cent of the country’s population suffers from mental disorders. Public health is a state subject and the Centre consulted states before moving the Bill. Punjab was among the four states that did not fully support the Central move to repeal Section 309. The Centre should give financial help to states to provide mental health services up to the district level. More than changing Section 309 society needs to be educated that mental distress, disorders and derangement are inevitable by-products of a stressful social order. As a society we need to move beyond stigma and, instead, develop sympathy.

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