INTRODUCTION:

Right from birth the life is full of struggles at every stage. These struggles start from the growing up process and continue to education, employment, married life and business etc. In such circumstances to keep a balanced physical or mental health is not an easy task. The effects of such problems can be visualized all over the globe while it is more so in our country where a large section of people are living below the poverty line, deprived of their basic needs and grappling to survive. These problems can be of various natures such as for educated class unemployment looms large and for common person owning a roof over the head and securing the lives of our family has become an ever going challenge and for women safety on work place or venture out on streets.

These are not only the problems associated with the elder persons but the detoriating scenario, circumstances and challenges are taking their toll on young and adult minds alike. People of every age are suffering or becoming vulnerable and prone to mental depression, depressive disorders, anxiety, irritability etc., which are severely affecting their mental health and causing mental disability. These issues require attention especially in the face of the shocking fact that around 7.5% of Indians suffer from major or minor mental disorders which include 56 million of our population suffering from depression and another 38 million are suffering from anxiety disorders consisting of phobia, fear and obsessive compulsive disorders etc. According to the Report of the World Health Organisation (February 23, 2017) on Mental Health Survey, one out of every 20 Indians has experienced incidences of depression.¹

According to the National Mental Health Survey (hereinafter referred as NHMS) of India, 2016, India spends less than 1% of its entire health budget on mental health. In a country where an estimated 150 million people need mental health care and treatment, up to 92% of them do not have access to any form of mental health care².

The challenges and stresses of day to day life produce mental disorders irrespective of age, health and vitality of the individual. These disorders are equated with madness and insanity in our country due to the orthodox mindset of the society and people suffering from such disorders are often discarded, avoided and evaded by the people generally. Further, stigmatization and discrimination are serious causes of concern. Though on the contrary, they require proper care, treatment and understanding of the reasons. Delivering the 22nd Convocation at NIMHANS, the President of India pointed out that there were just about 5,000 Psychiatrists and less than 2,000 Clinical Psychologists in the country while nearly 10% of Indians had one or the other mental health problem. As per statistical ratio, it means one Psychiatrist per 4 lakh of the population is available for care and treatment which is hopeless and lamentable. The number of affected in India is larger than the entire population of Japan.³ The National Mental Health Survey of India 2015-2016 estimates that nearly 150 million people in India were in need of mental health interventions and care.⁴ The fact that 150 million Indians need treatment for mental illness but nearly 80-90% receives no treatment. We spend less than 1% of the public health budget on mental health although mental health problems constitute nearly 13% of the health burden.⁵

Many of the families are unable to afford treatment for mental disorders due to ignorance and extreme poverty. Due to lack of proper education and understanding this illness/disorder is co-related with the shame and disgrace in the eyes to the society. Lack of mental health finances, non-availability of public health support from the government side and absence of mental health policies has raised a situation where nearly 80% of the persons suffering from mental disorders have received no treatment in spite of their disorders continuing since long.⁶

It is significant that all factors contributing to mental health detoriation and disorders cannot be attributed to poverty and lack of basic needs and facilities alone. As per various sociological schools, growing up of children among an atmosphere of family tensions abuse, domestic violence and other pressures, the unhealthy and deleterious competition in studies and the ever detoriating education system, growing unemployment even for highly educated class of people, failure to cope with day to day growing tensions of life and survival, growing drug abuse, sexual abuse and trauma, incurable diseases as well as some genetic causes are only some of the many reasons which contribute in various intensities, to increase of anxiety, depression and mental disorders among the people of our country.

A mirror which reflects the true position of this dreadful, frightening and horrific fact is the increase in the number of suicides especially among the youths in the country in the previous decades. Much of it can be attributed to the education system in our country where in of pressure to perform well and chase the dreams of their parents and elders, the mental depression and mental health takes a back seat. It is more so because there is no effective counseling and advocacy provided during the course of basic education or even the higher education and mental health is never given attention or consideration to.⁷

These problems do not end here and one may relate to the adverse effects of depression, anxiety, fear and other mental health issues which plague prisoners in jail due to poor environments, the soldiers working under adverse weather and physical conditions under pressure, the farmers, the housewives, women going out to work and facing under harassment from public and relatives alike and practically every human being working in the prevailing pressurizing circumstances in our country. Moreover, due to selfishness and inhumanity growing within the society at large, those in critical mental states and in need of care have no one to talk or to share their problems or even approach for therapies.

The day by day worsening situations within our country, the circumstances becoming difficult day by day for survival in a peaceful atmosphere and the neglect of nears and dears is thus making the issue of mental health care extremely important in the Indian scenario and an issue which has to be carefully and intelligently handled and given priority to on urgent basis.

Mental Healthcare Act, 2017

The Mental Healthcare Bill, 2016 which was proposed in pursuance of appreciation of urgent attention to be given to people seeking mental health care services and their rights thereto was accepted and was passed as an Act inform of Mental Healthcare Act, 2017.⁸ The Act is in line with the spirit of the Convention on Rights of Persons with Disabilities and its Optional Protocol adopted by the United Nations in December 2006 which came into force on 3rd May 2008 and was ratified by India on 1st October 2007.

For the first time in India, universal mental health care is now a justiciable right following the enforcement of the Mental Healthcare Act, 2017. As a pressing need for the right to health movement in India, the law has recognized the right to access health care for citizens especially for mental health.

The Act defines 'mental illness' as a substantial disorder of thinking mood, perception, orientation or memory that grossly impairs judgement, behavior and capacity to recognize reality or ability to meet the ordinary demands of life and includes the mental conditions induced by use/abuse of drugs and alcohol. However, it does not include condition of mental retardation or incomplete development of mind.⁹ It also stipulates the determination of mental illness in accordance with nationally and internationally accepted standards under medical theories and prohibits the determination of mental illness of any person on basis of political, economic or social status or membership of a cultural or religious group or even non-conformity with moral, social cultural or political values.¹⁰

More significantly, the Act guarantees right of access to every person of mental healthcare and treatment from mental health services run by the Government at an affordable cost as well as free mental healthcare to people living below the poverty line. Besides this, right to confidentiality in respect of mental health care treatment and right to free legal aid for exercising rights under the Act are also provided for.¹¹ It recognizes the right of those in need of mental healthcare to live with dignity and protected from social degradation or cruel and inhuman treatment.¹²

The Act also envisions the setting up of a ‘Central Mental Health Authority’ by the Central Government to develop quality and service provision norms for different types of mental health establishments, supervise these establishments and to receive complaints regarding deficiencies in the system.¹³ Similarly, State Mental Health Authorities are also required to be set up by the respective States.¹⁴ Mental Health Establishments confirming to the standards and procedures of the Act are required to be set up by duly registering under the said Central and State Mental Health Authorities.¹⁵

This enactment is a beneficial and welcome one when we consider the present circumstances prevailing in the society which are extremely unsuitable for bare survival making persons tense and depressed but in light of these situations where mental disorders are seen as madness and insanity and considered as disgrace and shame, these are some major drawbacks in the said Act which need to be removed or covered. Firstly, the Act perceives mental illness as only an issue which can be medically treated. There is absolutely no mention of need for family support, home treatment, prevention by striking at the root causes of mental illness and the need to promote mental wellbeing. Secondly, the definition of 'mental health professional' under the Act¹⁶does not include the much needed psychotherapists, psychoanalysts or even counselors which are mandatory for effective and proper treatment of patients of mental illness. Further, the Act enables a person to make decisions regarding his mental healthcare and treatment as well as even advance directives for the way in which he demands to be cared and treated¹⁷ but the Act nowhere discloses or specifies the kinds of treatment available, so as to enable him to decide judiciously. It also fails to take into consideration the need of stress on healthcare under our education system and the role of Teachers and Professors in the same in spite of the fact that most of the youths and students of the country are in need of proper mental healthcare and there is an existing drastic need of making mental healthcare a part of our education system. Moreover, the ever growing technological advancements are making people especially the youth and children addicted to online gaming and other internet addictions thereby inducing sleeping disorders, depression symptoms, anxiety and behavioral changes in them and this fact has not been taken into consideration under the Act and has neither been classified as mental illness or health condition.

The Act is enacted on rights-based ideology but this can only succeed when there are sufficient and ample resources available. As such the Act would prove to be difficult to implement in our country where the resources of money and work force are limited especially in rural areas.¹⁸

While the present Act focuses mainly on the rights of persons in need of mental healthcare and their institutionalization but it lacks in providing for needs of the family and their contribution to treatments as well as the prevention aspect of mental illness and skill building among mental health care professionals. Probably, a more balanced Act is the need for the Indian scenario considering its social systems and constraints.

Before the enactment and operation of the Mental Healthcare Act, 2017 the relevant provisions dealing with mental health were consolidated under the Mental Health Act, 1987. However, the judiciary has always displayed creativism towards the people of the country in getting the required care and benefits of the mental healthcare under the existing legislations. The Madras High Court in Uma Manickam v. The Inspector of Police and others,¹⁹ provided due relief to a person named Deendayalan who was illegally put in a mental health institution by his relatives over property issue. Significantly, this habeas corpus petition was filed by a neighbour of the concerned person.

In context of mental healthcare, a shocking and sad incident occurred in Tamil Nadu in 2001 where as a consequence of fire in a mental asylum, 25 inmates tied by chains were charred to death. This issue came before the Supreme Court through a Public Interest Litigation filed in 2001 and in which during the proceedings other issues connected to proper mental health care and proper running of mental health institution were also added.

In the said case of Saarthak Registered Society and another v. Union of India,²⁰ and Death of 25 Chained in Asylum Fire in Tamil Nadu v. Union of India,²¹ the Supreme Court asked the States and Union Territories to carry out an assessment survey and file a report regarding estimated availability of mental health resources including psychiatrists, psychologists, psychiatric social workers and nurses in the public and private sectors including also the types of Mental Health Delivery Systems and Services available and the need to prescribe minimum standards for licensing of mental health institutions. The Central Government and State Government were also directed to frame policies and initiate steps for establishment of Government run Mental Health Hospitals. The Court even directed the State and Union Territory Governments to survey the registered and unregistered bodies offering mental health care and grant or refuse them license depending on their fulfillment of minimum prescribed standards.

During the course of hearings on this important issue, it was brought to the notice of the Supreme Court in In Re :Death of 25 Chained Inmates in Asylum v. Union of India,²² that the Mental Healthcare Act, 2017 has been enacted and passed expressly dealing with all the aspects and directions given by the Court in related case which ultimately brought about the judicial disposal of the issue.

Further, recently in an important pronouncement the Punjaband Haryana High Court in Srist Kumar Kaushal v. Anil Kumar,²³ explaining what comprised mental disorder under the Mental Health Act, 2017 remarked that the disorder must be substantial so as to incapacitate person from knowing what is right or wrong or good for him. Expressions like 'feeble mind' when used in pleadings in Indian Courts where English is a foreign language, have to be taken with a pinch of salt and thus nothing depends on such use of words by a counsel with parties signing. In India, we should not go into nuances of English language and split hairs on what is meant by 'feeble mind' or that it is a substantial disorder impending judgement.²⁵

Now, the Mental Healthcare Act, 2017 has replaced the old Mental Health Act, 1987. However under the new Act of 2017, the State Authorities are directed to constitute a Mental Health Review Board in every district²⁵ and the Central Government has to constitute the Central Mental Health Authority.

Though, in a recently decided case by the Delhi District Court that of Smt. Ram Shree v. The State Government of NCT of Delhi,²⁶ the said Court has clarified that where the required Authorities under the Act have not been yet constituted or no rules thereof have been framed, the provisions of the Mental Health Act of 1987 can be invoked.²⁷

While the judiciary in India has always been vigilant towards development of mental healthcare facilities, treatment and procedures in the country and its creativism have brought about the development of Mental Healthcare Acts in 1987 and a much improved version in 2017, yet this creativism can mainly be devoted to the Public Interest Litigations filed before the Court in Sheela Barse v. Union of India,²⁸ in which the Supreme Court strictly prohibited confining of non-criminal mentally ill patients to jail and to provide rehabilitation homes for non-criminal mentally ill persons. The Court observed that appropriate facilities for people with mental illness are 'mental asylums' and not jails.

Besides this, there were the cases of several writ petitions combined together in form of a PIL in B.R. Kapoor and another v. Union of India and others,²⁹ concerning mismanagement of a hospital for mental diseases located in Shahadra, Delhi run by the Delhi Administration. Taking serious cognizance of the mental health the Supreme Court ordered the Union of India to take over the management of these hospital from Delhi Administration and model the same on the patterns of the National Institute of Mental Health and Neuro-Sciences(hereinafter referred as NIMHANS) and Institute of Psychiatric Treatment being run in Bangalore as well as to allocate sufficient funds for procurement of modern facilities, amenities and equipments. Yet in another case of Chandan Kumar Banik v. State of West Bengal,³⁰ the issue of a chained patient of a State Hospital in West Bengal suffering from mental illness was brought before the Supreme Court. The Court ordered the hospital to immediately discontinue chaining of persons with mental illness and rather prescribe drug treatment for them.

CONCLUSION:

It cannot be denied that an awakening among the global community including India is rising regarding the pressing need for mental healthcare of people. As a watershed moment for the right to health movement in India, it is for the first time that the law has recognized the right to access healthcare for citizens and specifically for mental health. Universal mental health care is now a justiciable right following the enforcement of the Mental Healthcare Act, 2017.

As a ground-breaking piece of legislation, it mandates the government to provide accessible, affordable, acceptable and high quality mental health care by integrating health care services at each level of the public health system, establishing mental health facilities in proportion to the population in each State. As a care taker of the public health, the government is duty bound to design and implement mental health promotion and preventive programmes to create awareness about the Mental Healthcare Act using media.

To achieve these much desired objectives, the government will have to make appropriate budgetary provisions to plug existing infrastructure gaps. To put these efforts in motion, the State governments will have to immediately set up and ensure the functioning of State Mental Health Authorities and Mental Health Review Boards. As a quasi-judicial body, the Mental Health Review Boards can play a crucial role in ensuring the day-to-day implementation of the Mental Healthcare Act such as monitoring long stay admissions, registering advance directives, appointing nominated representatives and adjudicating complaints about human rights violations and deficiencies in care services.

All these exercise will be futile and the implementation of the MHCA will be impossible without coordinated efforts on the part of all stakeholders concerned. Law enforcement officials, judges, mental health professionals and government officials need to be trained as a matter of priority to develop the necessary attitudes and skills for implementing the MHCA. Overall by MHCA, India has made mental health care a reality. If properly implemented, it will be a pioneering model for universal mental health care across the world and will go a long way to in addressing the mental health concerns of vast population.

In India vast improvisation is needed in creating awareness among people and society through seminars and workshops, inclusion of mental health education programmes in our education system and devising governmental policies for people suffering from mental illness, their rehabilitation and psychological treatment, regulation of mental health institutions and hospital and other related fields. The root causes like negative attitudes of people, stigmatization, discrimination, abuse and inhuman practices and neglect of mental healthcare need to be targeted. Innovative care models which are specific and cost effective for the Indian scenario have to be developed and health care for patients with mental problems has to be continuous, holistic and integrated. For this end, a shift from institutional care to a more community based care is need of hour.

REFERENCE:

1. Malathy Iyer, “7.5% Indians suffer from mental disorders: WHO Report", Times of India, February 25, 2017; see also, , Mental Health Survey Report (October, 2016), National Institute of Mental Health and Neurosciences, Bengalaru.

2. Soumitra Pathare and Arjun Kapoor, “A plan for change”, The Hindu, August 26, 2018.

3. Special Correspondent, “India facing possible mental health epidemic”, The Hindu, December 31, 2017.

4. Shubashree Desikan, “New understanding of mental health”, The Hindu, March 18, 2018.

5. Soumitra Pathare, “A new narrative around mental health”, The Hindu, April 2, 2017.

6. Afshan Yasmeen, "India needs to talk about mental illness", The Hindu, October 23, 2016.

7. Hemchandran Karah, "Mental Health and the University", The Hindu, June 22, 2017.

8. Act 10 of 2017 passed on 7th May 2017.

9. Section 2 (3), Mental Healthcare Act, 2017.

10. Id., Section 3.

11. Id., Section 18 – 21.

12. Ibid.

13. Id., Section 33 – 44.

14. Id., Chapter VIII.

15. Id., Section 65.

16. Id., Section 2 (r).

17. Id., Section 4 and 5.

18. Gundugurti Prasad Rao, "Mental Healthcare Bill, 2016: A boon or bane", 58(3) Indian Journal of Psychiatry 244-249(July-September, 2016).

19. Habeas Corpus Petition No. 1334 of 2007 decided on 14th September 2007.

20. AIR 2002 SC 3693.

21. (2002) 3 SCC 31.

22. Writ Petitions (Civil) No. 334 of 2001 along with Writ Petition (Civil) No. 562 of 2001, No. 118 of 2004, No. 613 of 2004 and Special Leave Petition (Civil) No. 19178 of 2012 decided on August 21, 2017.

23. CR No. 5663 of 2017 decided on August 24, 2017.

24. Ibid.

25. Section 73 and 74, Mental Healthcare Act, 2017.

26. G.P. No. 08 of 2017 decided on February 9, 2018.

27. Id., at para 7; see also para 14 of the judgement of Delhi High Court in Meenu Seth v. Binu Seth and others, FAO No. 411/2017 decided on October 27, 2017.

28. (1993) 4 SCC 204.

29. AIR 1990 SC 752.

30. 1995 (Supp.)4 SCC 505.

Received on 21.04.2019 Modified on 17.05.2019

Res. J. Humanities and Social Sciences. 2019; 10(2): 715-719.

DOI: 10.5958/2321-5828.2019.00118.9