INTRODUCTION:

The Nominated Representative (NR) is an individual that comes up in Chapter 4, Section 14 in the Mental Health Care Act 2017 (MHCA 2017)- a relatively new piece of legislation in India. It refers to someone whom a person with mental health (MH) concerns can choose, to represent their wellbeing. This person participates in your care and represents you and your wishes when decisions regarding your mental health care need to be made. This is a person who may or may not be a family member.

The phrase ‘may not be a family member’ is the crux here. Typically, care giving primarily lies within the domain of the family system. There are only two ways to have a family. Either you are born into it or you acquire it through marriage (Ringen, 2007). Rules around who can marry whom are stringent.

The categories of caste, community, age, ability, religion, gender and sexuality all need to fit into societal norms before a marriage is approved (Rubin, 1984; CREA, 2012). This family, acquired through marriage and perpetuated through childbirth, receives social and legal sanction (Bhan and Narrain, 2005; Menon, 2012).

However, what happens when we don’t fit these categories of normativity? What if we are queer? American Psychological Association (APA) defines queer thus, “Queer is an umbrella term that individuals may use to describe a sexual orientation, gender identity or gender expression that does not conform to dominant societal norms.”

Families have norms about gender and sexuality that are rigidly enforced and expected to be followed. Families are often made out to be sites of support but we know that the support is conditional. Support comes when we conform. What happens to those to whom the norms don’t apply? Suddenly, families viciously withhold love and care. They disown queer family members and often become violent spaces (Meyer, 1980; Ranade et al., 2016). Suddenly queers find themselves out of the family system.

So, when the MHCA 2017 says the nominated representative may not be a family member, why is it important for us to sit up and take notice? How does the potential of choosing an NR, become a critical step in protecting ourselves and promoting our rights as queer people?

Stigma from society is a common experience for queer people and people with MH concerns (Corrigan, 2018). Queer persons have been pathologised and stigmatised historically on account of gender and sexuality (Chandran and Narrain, 2013). Stigma pushes people onto the margins and they face many forms of discrimination and violence as well as barriers to exercising their civil, economic, social and cultural rights (Mariwala, 2019). Persons with a diagnosis of mental illness are prevented from voting or opening a bank account. There is discrimination against them in the communities where they live. Similar barriers prevent queer people too from enjoying full and effective participation in society on an equal basis with others. The MHCA 2017 recognises this stigma surrounding mental health and promotes the rights of persons with mental illness and mental health concerns. And hence, it provides the pathbreaking clause of choosing an NR.

The MHCA 2017, Sec 14, sub-section 1 states that:

“Notwithstanding anything contained in clause (c) of sub-section (1) of section 5, every person who is not a minor, shall have a right to appoint a nominated representative.”

Historically, family systems have failed queer people. Care is provided only to those who conform and are located within the traditional family systems. When gender or sexuality norms, keep us out of the family, who can we turn to? Is the concept of NR something we can consider applying to queer lives? Can queer people choose who can take care of them and can this be recognized under law?

In the experience of the queer-trans community and their brush with the larger healthcare systems, activists have also shared about how they have seen hospitals keeping life-partners and chosen family out of the decision-making regarding care. It is also during these times of crises that institutions such as hospitals and law side with families. These are families that have never really been supportive but are recognised as next of kin in times of crisis due to social and legal sanction. Since there are no partnership or marriage-like laws offering rights and protection, life-partners are often kept out of care related decisions once these institutions step in. A declaration of who the NR is could effectively give the queer life-partner the right to take care of their loved one.

The MHCA 2017, Sec 14, sub-section 2 states that:

“The nomination under sub-section (1) shall be made in writing on plain paper with the person’s signature or thumb impression of the person referred to in that sub-section.”

Our legal systems recognize families based on birth or marriage. Even a cursory look at valid and acceptable documentation for Indian Citizens will show that proof of identity is connected to family ties of blood or marriage. And now this Act comes along and simply states that all we need is a piece of plain paper with our NR’s signature or thumb impression. Imagine the freedom. Imagine the trust. Queer people can choose someone who actually cares and name them our NR through an extremely simple procedure.

The MHCA 2017, Sec 14, sub-section 3 states that:

“The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.”

Caregiving within families is often non-negotiable and it is taken for granted that the persons assigned female will do the caregiving. However, an NR has to give consent, which means that they are willing to participate in our care. They are aware of what it entails and they have agreed with us about what that care will look like and they are willing to take it on. This is not necessarily duty-bound in the ways that families function. Within families, caregiving is duty-bound which means it is often based on hierarchies of age, gender and status of wealth within the family. Women bear the disproportionate burden of caregiving. This labour is also unpaid. All that power can be challenged because we can choose who can take care of us and the other person is a willing and consensual caregiver.

CONCLUSION:

It is important to note that queer people are a minority in their own families (Ranade et al. 2016) as families do not share their experience of oppression. In fact, families become the sites of oppression in the way that they rigidly enforce rules of caste, community, age, ability, religion, gender and sexuality. These rules sustain, regulate and perpetuate structural inequalities through marriage and child birth. The MHCA 2017 and the Section 377 (Indian Penal Code) judgement have taken into account structural inequalities and have been affirmative in their framing, advocating for rights of people on the margins.

Another document that is free of the family system (though subjected to severe contestation) is a Will. A Will is a legal document that allows us to leave our material possessions to anybody we wish to. It need not necessarily be restricted to family members, like property laws are. I look forward to a time when all we will need is a piece of paper where consenting adults can declare themselves in a relationship and mutually agree to the terms of it. Instead of marriage we could all just have registered relationships, unfettered by categories and societal norms. What would be powerful about these self-determined relationships and families is that these will not be thrust upon us at birth or through marriage. Instead, we negotiate and choose these based on the reality of our circumstances.

For now, however, our legal system and the family system are so deeply entwined, that queer people find themselves being denied rights and benefits on many fronts. We must have provisions to protect ourselves and promote our rights. Hence, we need to look closely at the potential that NR, Wills, MHCA 2017 and Section 377 judgement offer, to opt out of oppressive family systems so we can give and seek love and care, on our own terms.

REFERENCES:

1. American Psychological Association. (2000). Guidelines for Psychotherapy with Lesbian, Gay and Bisexual Clients. American Psychologist, 55(12), 1440-1445.

2. Corrigan, P. (2018). The Stigma Effect: Unintended Consequences of Mental Health Campaigns. New York; Chichester, West Sussex: Columbia University Press. doi:10.7312/corr18356

3. Creating Resources For Empowerment in Action (CREA). (2012). Count me IN!: Research report on violence against disabled, lesbian, and sex-working women in Bangladesh, India, and Nepal. New Delhi: CREA.

4. Mariwala, R. (2019). Bridge The Care Gap. Mariwala Health Initiative. Retrieved from http://bridgethecaregap.com/ resources/BCG_Kit.pdf

5. Menon, N. (2012). Seeing Like a Feminist. New Delhi: Penguin Books.

6. Meyer, D. (2015). Violence against Queer People: Race, Class, Gender, and the Persistence of Anti-LGBT Discrimination. Rutgers University Press. Retrieved May 26, 2020, from www.jstor.org/stable/j.ctt1bc53v7

7. Narrain, A. and Bhan, G. (2005). Introduction. In Narrain, A., Bhan, G. (Eds.) (2005). Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press.

8. Narrain, A. and Chandran, V. (2016). ‘It’s not my job to tell you it’s okay to be gay…’ Medicalisation of Homosexuality: A Queer Critique. In Narrain, A and Chandran, V (Eds), Nothing To Fix (pp. 3-65 ). New Delhi: Sage.

9. Ranade, Ketki and Shah, Chayanika and Chatterji, Sangeeta. (2016). Making sense: Familial journeys towards self-acceptance of gay and lesbian family members in India. The Indian journal of social work. 77. 437-458.

10. Ringen, S. (2007). What Democracy Is For: On Freedom and Moral Government. PRINCETON; OXFORD: Princeton University Press. doi:10.2307/j.ctt7ssrf

11. Rubin, G. (1992). Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality. In Vance, C. S. (Ed). Pleasure and Danger: Exploring Female Sexuality. (267-293) London: Pandora.

12. Weblinks:

13. Mental Health Care Act 2017 (India) weblink-

14. http://mhca2017.com/index.php/act/introduction

15. Navtej Singh Johar vs. Union Of India (2018) weblink-

16. https://indiankanoon.org/doc/168671544/

Received on 22.06.2020 Modified on 13.07.2020

Res. J. Humanities and Social Sciences. 2020; 11(4):371-373.

DOI: 10.5958/2321-5828.2020.00059.5