“No amount of therapy can or self care can make up for scarcity of food and drink, time, or financial resources.” — Whitney Goodman, LMFT
Health is a vital indicator of human development which is one of the basic ingredients of economic and social development. In India, the Right to Health Care and Protection has been recognized since a very long time. As India is a founding member of the United Nations Organisation, it has ratified various international conventions promising to secure health care right of individuals in society. As BKS Iyengar remarked “Health is the state of complete harmony of body mind and spirit”, in order to promote good health, a conversation about mental health becomes inevitable. Over years there have been various initiatives that highlight the importance of a healthy body, but very few have shed light upon mental health. The rising number of suicide cases, anxiety levels and discontent is general during pandemic has compelled everyone to recognize the imminent need for mental health care and the dire consequences of untreated mental issues. In order to accomplish the transformation from ignorance to awareness, significant changes have occurred over the past decade where many progressive statues have been incorporated and repealed the erstwhile. This article discusses the legislature’s role in mental health protection and envisages its outcomes.
- DEFINITION OF HEALTH, MENTAL HEALTH, CONSEQUENCES OF MENTAL ILLNESS:
World Health Organization defines health as,
“Health is a state of complete physical, mental and social well being and not merely the absence of disease”[i].
From the above definition it is clearly indicated that condition of life of the individual should incorporate physical, mental and social well being and must be devoid of disease and infirmity. Thus, this pioneering institution (WHO) has played an integral role in guiding health policy development and action at the global and national levels, with an overall objective of ensuring and attaining the highest standards of health care to all the people around the world. WHO has not only given a wider definition to health but also enshrines the vision of Health Care.
The Constitution of the World Health Organization (WHO) has defined mental health as a state of well-being in which every individual realizes his or her own potential, he or she can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.[ii] It has taken measures to strengthen and promote awareness by inculcating various flagship projects under WHO MIND. It prescribes ten basic principles for Mental Health Care Law which applies to women, children and adolescents, persons with disabilities, migrants and persons living with AIDS.
The Mental Health Care Act, 2017 (MHCA) provides for a comprehensive definition of mental illness as
“a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demand of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub normality of intelligence”.
Most of the mental disorders have their onsets during childhood or adolescence. 75 percent of all adult mental disorders begin before the age of twenty four . Early symptoms of a mental disorder often emerge a few years before the full diagnostic criteria are met.[iii]
- INTERNATIONAL RECOGNITION OF MENTAL HEALTH:
Combating Mental Healthcare is a critical challenge worldwide. People with disabilities and mental health illnesses face several impediments in terms of employment opportunity or differential treatment or inclusion in the community everyday. In apperception of their plight, international bodies have been set up to protect and curb the challenges faced by them. Some of them are discussed below.
- The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is an international organization which aims to curb the challenges faced by the disabled. India is a signatory to this convention and hence has adopted national laws that comply with UNCRPD.
- United Nations International Children’s Emergency Fund (UNICEF) has ratified its bylaws to include convention on rights of children which focuses on the health challenges of children to the stage of their physical and mental development[iv].
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been adopted by general assembly and it commits signatory countries to taking steps towards improvement of women’s mental and physical health. .
These international conventions have guided States s to change laws andpolicies and make investments for children and women for healthcare and nutrition. Through all these measures and standards set by internationally recognized organizations, the government has been taking steps to achieve health goals across the nation.
- The United Nations Human Rights Commission (UNHRC) helps Member States and others promote and protect the right to the highest attainable standard of physical and mental health (right to health). The council acknowledges the following principles:
- The right to health is an inclusive right, extending not only to timely and appropriate health care, but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, healthy occupational and environmental conditions, and access to health-related education and information, including sexual and reproductive health.
- The right to health contains both freedoms and entitlements. Freedoms include the right to control one’s health, including the right to be free from non-consensual medical treatment and experimentation. Entitlements include the right to a system of health protection (i.e., health care and the underlying determinants of health) that provides equality of opportunity for people to enjoy the highest attainable standard of health.
- The right to health is a broad concept that can be broken down into more specific entitlements such as the rights to maternal, child and reproductive health; healthy workplace and natural environments; the prevention, treatment and control of diseases, including access to essential medicines; and access to safe and potable water.
- THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND MENTAL HEALTH:
The Office of the United Nations High Commissioner for Human Rights (OHCHR) declares that “the right to health is a fundamental part of our human rights and of our understanding of a life in dignity”. The relationship between mental health and human rights is an integral and interdependent one. [v] For instance, human rights violations such as torture and displacement negatively affect mental health. In addition, mental health practices, programs, and laws, such as coercive treatment practices, can hinder human rights. Finally, the advancement of human rights benefits from good mental health. These benefits extend beyond mental health to the close connection between physical and mental health. There are thus clinical and economic reasons, as well as moral and legal obligations, to advance mental health care as fundamental to human rights.
In their 2014 report, Based on the WHO Global Health Expenditure database, the global median of domestic general government health expenditure per capita in 2015 was US$ 141, thus making government mental health expenditure less than 2% of global median of government health expenditure.[vi] , and this figure is significantly less in lower-income countries. In other words, mental health does not enjoy parity with physical health in terms of budgeting and attention, and this creates an unintended hierarchy where mental health is ranked lower than physical health. The OHCHR reports that in some countries, the only care available for mentally-ill individuals is in psychiatric institutions, and many of them are associated with significant human rights violations reflected in inhuman treatment and living conditions, such as shackling or locking up in confinement for extended periods of time.[vii] In July 2016, Human Rights Council Resolution[viii] recognized the need to fully integrate a human rights perspective into mental health and community services to eliminate violence and discrimination while promoting inclusion and participation. This Resolution requested the High Commissioner to prepare a report presented in March 2017 [ix] which identified some of the major challenges faced by users of mental health services, persons with mental health conditions and persons with psychosocial disabilities. These include stigma and discrimination, violations of economic, social and other rights and the denial of autonomy and legal capacity. The report recommended a number of policy shifts, such as the recognition of the individual’s autonomy, agency and dignity, the improvement in the quality of mental health service delivery, ending of involuntary treatment and institutionalization and the creation of a legal and policy environment conducive to the realization of the human rights of persons with mental health conditions and psychosocial disabilities.
In September 2017, Human Rights Council Resolution[x] recognized the importance of integrating mental health services into primary and general health care by providing effective mental health and other community-based services that protect, promote and respect the enjoyment of the rights to liberty and security of person as well as to live independently and be included in the community, on an equal basis with others. The Resolution urged States to develop services that do not lead to over-medicalization, and that do not fail to respect the autonomy, will and preferences of all persons. It strongly encouraged States to support persons with mental health conditions or psychosocial disabilities to empower themselves in order to know and demand their rights.[xi]
- RIGHT TO HEALTH AND THE INDIAN CONSTITUTION:
Part III and IV of the Indian Constitution provides for the provisions relating to health and safety. The Indian Constitution does not expressly recognise the fundamental right to health. However, Article 21 of the Constitution of India guarantees right to life and personal liberty. After the Maneka Gandhi Case[xii], the scope of Article 21 was enhanced and it was stated that the expression ‘life’ in the article means a life with human dignity and not mere survival or animal existence. The right to health is inherent to a life with dignity, and Article 21 should be read with Articless 38, 42, 43 and 47 to understand the nature of the obligation of the State in order to ensure the effective realization of this right. The aforementioned articles are discussed below.
- Article 38: This article directs State to “secure a social order for the promotion of welfare of the people”. Read along with other provisions, it can be reasonably inferred that mental health is an integral part of overall welfare of an individual. Hence, this article casts a duty upon the State to make provisions that will help people improve their mental health.
- Article 39(e): This article directs the State to construct policies on certain principles that will ensure that the mental health and wellness of workers, women and children are not rendered at risk because of economic restraints, which would otherwise inadvertently affect their well being.Article 41: This article casts a duty upon the State to ensure the Right to work, to education and to public assistance, inter alia, in cases of disablement. Hence, the State must make policies that help persons suffering from mental health conditions secure economic and social stability whilst combating with their illnesses.
- Article 42: This Article pertains to making policies for ensuring just and humane conditions of work and maternity relief of pregnant women. Such provisions will not only ensure the safety of pregnant women, but also ensure that they do not suffer from unnecessary stress or mental agony during their pregnancy and post maternal care.Article 47: This article enshrines the directives for raising the levels of nutrition, standard of living, and public health. It recognizes this as one of the primary duties of the State. It has already been established above that mental health is an integral part of the overall health of a person. Hence, this article bestows the duty of improving standard of public mental health upon the State as one of its primary duties.
6. These Articles have all accumulatively established the importance of mental health as a right of an individual. Hence, despite the lack one a singular provision, the Constitution has ultimately not entirely excluded the need for protection of the mental well being of the people.CASE LAWS PERTAINING TO MENTAL HEALTH:The Constitution of India does not have a dedicated provision to right to health. It is included under Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Mental Health has been pronounced as part of right to life in the following judgments
i.Consumer Education and Research Center v. Association of India[xiii] it was held that Article 21 has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen. The court had opined that right to health was additionally a fundamental factor to have an important existence and for the right to life. It also forces an equal obligation on the State which is additionally strengthened as under Article 47.ii. In Rakesh Chandra Narayan vs. State of Bihar[xiv] certain cardinal principles were laid down by the apex Court. The right of a persons with mental health conditions person to food, water, personal hygiene, sanitation and recreation is an extension of the right to life as in Article 21 of the Constitution. Quality norms and standards in mental health are non-negotiable and treatment, teaching, training and research must be integrated to produce the desired results.
iii. In Kirloskar brothers Ltd V Employees State Insurance Corporation[xv], on the role of employers in a welfare State, the Supreme Court held that employers had a duty to ensure that their employees can lead a meaningful life and therefore must be an equal participant in evolving and implanting welfare schemes.Various mental health laws had come into force to help people having mental illness which includes the Lunacy Act 1858, the Indian Lunatic Asylum Act 1858 and the Military Lunatic Act 1877. All these laws passed in British regime did not serve the intent of their introduction, these laws merely isolated people who had classified mental illness.
- ACTS GOVERNING MENTAL HEALTH IN INDIA:
- Indian Lunacy Act, 1912
It was the first law that governed mental health in India. It brought changes in the facilities provided by the asylums. It considered mental health patients as dangerous and violative of human rights. Given the criticism the need for a new health bill was put forward. It was repealed by the Mental Health Act of 1987.
2. National Trust Act, 1999
This Act was ratified for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities to enable and empower them to live as independently. The trust aims to create equal opportunities in the society and protect persons with disabilities after the death of their parents by evolving procedures for the appointment of guardians and trustees.
3. The Rights of Persons with Disabilities Act, 2016
It was brought into force after India became a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). It promotes and protects the rights and dignity of people with disabilities in various aspects of life such as social, legal, economic, educational, safety, cultural and political.[xvi]
4. Mental Healthcare Act, 2017
After adoption of UDHR by the UN General assembly, the Mental Healthcare Act was established after three decades in 1987. The enactment of Mental Healthcare Act, 2017 was a part of the government’s National Healthcare program[xvii]. The MHA sets maximum standards for institutional care. The Act specifies the process of admission, treatment and discharge of persons with mental health conditions individuals. The word lunacy was replaced and a more progressive way of addressing the issue was adopted. It confers them with the Right to Healthcare, live in community, legal aid, contracting rights, information and protection from cruel treatment. However the Act is silent regarding the choice of treatment, consent for treatment, and the method to be adopted when a severely ill patient refuses the treatment. Therefore the Act though has its merits yet is not completely flawless.
- SCHEMES UNDERTAKEN BY THE GOVERNMENT
The Government of India launched the National Mental Health Programme (NMHP) which was initiated in 1982 for treatment of persons with mental health conditions, prevention and promotion of positive mental health and rehabilitation. It also launched the District Mental Health Program which provides basic mental health care services at the community level. The NHRC has also taken measures to research the facilities provided by the mental health institutions and recommend changes to the government. The Indian Psychiatry Society (IPS) has since its inception contributed significantly towards mental health by way of active research. A number of models of close collaboration between government organisations and NGOs have been instituted for providing rehabilitation and reintegration of persons with mental health conditions such as Medico Pastoral Association and the Institute of Human Behaviour and Allied Sciences (IHBAS). NGOs have also initiated various community programs to increase mental health awareness by providing research and training at universities and initiating community based mental health boot camps in rural and urban areas.[xviii]
- IMPACT OF COVID 19 ON MENTAL HEALTH.
Widespread uncertain outbreak of the Corona virus is closely associated with psychological distress and symptoms of mental health. A survey conducted by Indian Psychiatry Society has validated a 20% increase is the number suffering from mental illness during this lockdown which earlier was 7.5% in 2017 as per WHO reports[xix]. This pandemic has observed behavioural changes in adolescents and children with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). The fear of being in contact with people affected by Corona has led to stress, anxiety and psychological pressure of stigmatization and discrimination worldwide.
The blurred boundaries between home and work have reshaped relationships for better and worse. For some it has aided in bonding with their family and building a healthy routine while there are others are reduced to social confinement, and have fallen prey to domestic violence or devastating divorce. Divorce lawyers have witnessde accelerated increase in the number of calls for matrimonial disharmony with domestic violence being the vital cause. Professionals working from home are under immense stress ofjob security.
The emotional and psychical impact of the COVID – 19 has pushed people to experience fear, hopelessness, frustration, sadness and loneliness to a point where these feelings have become burdensome. This impact has led to the thoughts of feeling suicidal and hence surged the number of self-harm and suicide cases.
People with mental disorders are one of the most vulnerable populations in society. They are often isolated, stigmatized, discriminated, humiliated and marginalized. The Mental Healthcare Act is a big step towards development and acknowledgement of the issues. It is a big step towards protection and care of persons with mental health conditions yet there is no comprehensive law to address the critical issues of discrimination, promoting mental health, equal opportunities and rigorous implementation of the present schemes. Effective coordination strategy by the international bodies, the government and its special bodies and the NGOs can help us get closer to the goal of a healthy nation.
[i] Constitution Of The World Health Organization, page 1, Basic Documents, Forty-Fifth Edition, Supplement, October 2006 https://www.who.int/governance/eb/who_constitution_en.pdf
[ii] WHO urges more investments services for mental health, World Health Organisation, available at, https://www.who.int/mental_health/who_urges_investment/en/#:~:text=Mental%20health%20is%20defined%20as,to%20her%20or%20his%20community. Last visited 03/10/2020[iii] Srinivas S R R Yerramilli, Rajshekhar Bipeta, Economics of mental health: Part I – Economic consequences of neglecting mental health – an Indian perspective, page 81 (2012), available at https://mhi.org.in/media/insight_files/aagt12i2p80.pdf last visited 03/10/2020 : O’Connell ME, Boat T, Warner KE, Editors; Committee on the prevention of mental disorders and substance abuse among children, youth and young adults: research advances and promising interventions; Institute of Medicine; National Research Council. Preventing mental, emotional, and behavioural disorders among young people: progress and possibilities. 1st ed. Washington, D.C. The National Academies Press; 2009
[iv] U.N. General Assembly, Convention on the Rights of the Child, Article 17 available at, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx last visited 03/10/2020[v] Office of the United Nations High Commissioner for Human Rights The Right to Health Fact Sheet No. 31, Intoduction, page 1, https://www.ohchr.org/Documents/Publications/Factsheet31.pdf
[vi] Mental Health Atlas 2017. Geneva: World Health Organization; 2018, page 26, https://apps.who.int/iris/bitstream/handle/10665/272735/9789241514019-eng.pdf?ua=1
[vii] Mental health is a Human Right, American Psychological Association, available at https://www.apa.org/international/pi/2018/12/mental-health-rights last seen 03/10/2020
[viii]U.N. General Assembly, Mental health and human rights, Res. 32/18, Sess. 32, U.N. Document A/HRC/RES/32/18, 2, (18/07/2016) available at https://documents-dds ny.un.org/doc/UNDOC/GEN/G16/156/38/PDF/G1615638.pdf?OpenElement last seen on 03/10/2020
[ix] U.N. General Assembly, Mental health and human rights, Res. 34/32, Sess 34, U.N. Document A/HRC/34/32, (31/01/2017) available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/021/32/PDF/G1702132.pdf?OpenElement last seen on 03/10/2020
[x] U.N. General Assembly, Mental health and human rights, Res. 36/13, Sess 36, U.N. Document A/HRC/RES/36/13, (09/10/2017), available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/295/00/PDF/G1729500.pdf?OpenElement last seen 03/10/2020
[xi] The right to mental health, United Nations Human Rights, available at https://www.ohchr.org/EN/Issues/Health/Pages/RightToMentalHealth.aspx last seen 03/10/2020
[xii] Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621 [xiii] AIR1995SC922, MANU/SC/0175/1995 [xiv] MANU/SC/0395/1988 [xv] MANU/SC/0873/1996 AIR 1996 SC 3261
[xvi] Choudhary Laxmi Narayan and Thomas John, The Rights of Persons with Disabilities Act, 2016: Does it address the needs of the persons with mental illness and their families, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/ last seen 03/10/2020
[xvii] National Mental Health Programme, Directorate General of Health Services, available at https://dghs.gov.in/content/1350_3_NationalMentalHealthProgramme.aspx last seen 03/10/2020
[xviii]R. Thara and Vikram Patel, Role of non – governmental organizations in mental health in India, (2010) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3146177/ last seen 03/10/2020
[xix] Roshni Balaji, These NGOs are helping deal with mental health issues amid the corona virus pandemic, Social story, available at https://yourstory.com/socialstory/2020/04/ngos-helping-people-mental-health-coronavirus last visited 03/10/2020