India is going through a horrendous situation where people are five times more likely to commit suicide than being murdered. And this situation does not seem surprising considering the fact that we have a whole lot of paraphernalia – police, prision and judiciary – to deter people from committing murder. However, we do not have mental healthcare facilities on a similar scale.
The first step towards recognition of the government’s responsibility towards mental healthcare facilities was the enactment of the Mental Healthcare Act, 2017 (MHA).
The MHA replaces the Mental Health Act, 1987, a custodial law. Without an iota of doubt, MHA is a big leap from the 1987 Act. The MHA marks a shift in the
manner in which mental healthcare is delivered.
It protects and promotes the right of people during the delivery of mental healthcare by recognising the autonomy of an individual to opt or not to opt for a particular treatment. This leads us to the question whether the MHA follows a similar kind of approach in access to mental healthcare support which is the starting point for the delivery of mental healthcare facilities.
Section 3 of the MHA says that “mental illness shall be determined in accordance with such nationally or internationally accepted medical standards”.
This section follows a highly diagnostic approach for determination of mental illness. It implies that standards determined by medical experts would ultimately decide whether a person would be entitled to the benefits provided under the MHA or not.
It completely negates the idea of individual autonomy in determining their mental health situation and whether they need mental healthcare support or not.
A reflection of this idea can be seen under Section 86 wherein an adult who believes that they have mental illness and wishes to be admitted for treatment in any mental health establishment, can avail of the facility only when the medical officer is satisfied that they indeed are suffering from severe mental illness.
Parallels can be drawn with the Transgender Persons (Protection of Rights) Act 2019 which is enacted for the benefit of transgender people but relies heavily on medical model of gender identity recognition over gender self-determination.
By placing the medical model on a higher pedestal over the individual’s experience related to mental health, the MHA has set another example of due deference of law towards the medical experts.
Section 2(s) defines mental illness as “substantial disorder of thinking, mood, perception, orientation, or memory….” This section is one of the key provisions of the MHA as it determines to whom this Act applies. The word substantial is broad and vague as it does not specify or determine the severity of the mental illness. It gives a lot of discretion to the authorities in terms of deciding who is a person with mental illness.
Under Section 100, the police are duty-bound to take any wanderer under its protection, if they believe is suffering from mental illness.
Due to the phrasing of section 2(s), the state can lawfully intrude into the private space of a person who might or might not be suffering from mental illness while at the same time, portraying themselves as a protector.
The MHA follows a paternalistic approach where the medical experts and state become the primary authority to determine who is undergoing mental illness and needs treatment for the
Individual experiences and their need for mental healthcare support is all at the mercy of medical experts and the state. It poses the question whether the autonomy to choose the medical treatment is meaningful in the first place when the MHA does not give the autonomy to avail of those facilities without a medical expert’s opinion.
(The writer is a student at the National Law School of
India University, Bengaluru)