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MENTAL HEALTH ACT
AUTHORED BY - R. DIVYA
Introduction
In India, from ancient
times the description of mental illnesses and various types of mental disorders
have been found in the Vedic texts. Traditional medical systems such as Siddha
recognised various types of mental disorders that flourished in southern India.
A vivid description of schizophrenia is also found in the Atharva Veda. Even in
the great epics the Ramayana and the
Mahabharata several references to disorders of mind are found.[1]The
mind and the body influence each other[2].
This concept has been
documented in Indian history in the Ayurveda. The renowned Indian sage,
Patanjali had emphasized on ?Yoga‘ as a way to healthy mind, strong body, and
spirituality, which enables an individual to attain self-actualization.[3]
According to Sushruta, the physician (?Chikitshak?), the drug (?Dravya?), the
attendants or the nursing personnel (?Upasthata?), and the patient (?Rogi?) are
the four pillars on which rests the success of the therapy.[4]While
the historical roots of Indian psychiatry have been traced to periodsas early
as that of King Ashoka, spirituality has
always been a pervading factor in understanding as well as treating psychiatric
disorders in India.
Among the Arabs, for many
centuries persons with mental illness were sheltered and taken care of. The
growth of Muslim influence in India led to the establishment of separate
enclosures for mentally sick.[5]
In the fifteenth century,
during the period of Mohammad Khilji (1436-1469), there has been evidence of
the presence of a mental hospital at Dhar near Mandu, Madhya Pradesh where the
physician was Maulana Fazulur Hakim. Though there was elaboration of symptoms
and treatment in ancient medical practice in India, there were no specific well
documented asylums.Mental health care was considered as a part of general
health care. With the existence of large joint families and large support
system, community care came into practice.
In England, it was a
strong belief that mental illness was caused by devils, evil spirit, demons,
curses, etc. Hence, the person with mental disorder was earlier taken care of
by religious bodies such as churches and parishes where the priest and
clergymen provided care. The humane treatment and moral therapy weakened the
doctors' arguments against religious healers and authenticated the work of the
clergy.
Later, mentally ill
people were restricted to jails and asylums. Further developments were related
to the initiation and consolidation of community psychiatry that led to the
integration of mental health care in the community. Later, specific theories
explaining the pathogenesis of psychiatric disorders created a more scientific
approach to managing people with mental illnesses.
According to modern
literature, the world's first institution to specialise in mental illnesses was
Bethlem hospital in London, England. Established early in the 1300s, initially
in-patient medical care was provided only to patients with physical illnesses.
Later on in the century, it also started catering to victims of mental illness.
It was only in the 18th
century the hospital facilities for the insane began to be provided in England,
but it was on a relatively small scale. It stressed the significance of doctors
and clergies for taking care of the mentally ill. Till 1812, there were no
public asylums for the insane in England though there were several hospitals
for the mentally afflicted founded by royal or private benevolence. There was
no proper lunacy legislation till 1744.This led to the practice of doctors
taking private patients into their homes. Thus, the trade in Private Mad Houses
started.[6]
A bill for regulating
?Madhouses‘ was passed to regulate private asylums, where abuse was prevalent.[7]
The purpose of this Act
was the protection of society, as the asylums were considered to be too
dangerous. There were mad houses operated by private people. No license was
required to open such mad houses. There was exploitation and neglect of the
inmates of the madhouses. The Act was repealed by the Madhouses Act of 1828.
The new Commission in Lunacy licensed and supervised private madhouses in the
metropolitan area, although the Act did not apply to county
asylums. The Lunacy Acts
of 1845 included county asylums.
There were no state run
asylums. Majority of them were private, hence the "trade in lunacy"
flourished during 17th and early 18th centuries. Initially mentally ill patients were taken care of
by friends or by individual doctors. Later on, the rulers had to provide care
for their army men and others who protected their interest in respective
colonies[8].
During the 18thcentury, commercial activity in the
care of lunacy was flourishing and was very competitive. The mentally ill
patients were confined in psychiatric institutions, families pushed out the
person with mental illness, whom the asylum pulled within its walls.[9]
With the expansion of
trade, political influence and rule, the number of mentally ill cases increased
enormously. Therefore more asylums had to be built for the care of such men in
London, as it was costly and difficult to maintain asylums in their respective
colonies.
The East India Company
primarily came to India with the object of trade. In 1757 the Company
established its rule in India which led to the development of civil and
military services.[10]
The British tried to
establish their power in India which resulted in frequent wars. Frequent wars
and being far away from home led to psychological distress in the British army.
Hence lunatic asylums in India was first started to shelter
the English soldiers. The maintenance of asylums in India was a financial
burden to the British, and then men were transferred back to Britain. For the temporary detention of the insane Englishmen, number
of lunatic asylums were established in India. The first lunatic asylum in India
was established in Bombay in the year 1745, followed by Calcutta in 1784 and
Madras. These asylums in India were therefore destined to remain small-scale
establishments as it was a period of temporary confinement. Later, political,
economic and social conditions in London and India led to a steady increase in
the number of asylums. Because of the inhumane conditions within the asylums,
the British were forced to enact legislations to control them.
The main reason for
sudden proliferation of asylums was the introduction of Pitts India Bill
(1784). According to this Bill, the activities of the Government of the East
India Company came
under the direction of a
?Board of Control? and systematic reforms and welfare actions were taken to
some extent.
The Bengal Enquiry (1818)
The Bengal Enquiry of
1818 was one of the earliest descriptions of human right issues of the mentally
ill in India. This followed a select committee revelation on the regulation of
psychiatric care in England in 1816. The enquiry indicated that the mental
health care settings were suboptimal the buildings are low and damp and not
half-large enough for the number of patients, to which must be attributed the
numerous deaths which occur?. Inadequacies were[11]
observed in various
domains like food supplies, staff handling of the mentally ill persons, issues
related to restraining
unmanageable patients and other similar aspects.
The recommendations
suggested that the asylum had to ensure humane and caring behaviour of the
staff towards the patients. Regarding restraints, it was emphasised that
?unnecessary coercion should never be
used, and heavy iron chains should not be applied except in extreme cases where
light leg chains may be used[12].
Some specific
descriptions of various asylums followed:
1)
The
asylum at Murshidabad was regarded as wholly unfit, the building altogether a
2)
wretched
place even in its best state
3)
The
Rasapagla asylum in Calcutta was described in a worse situation
4)
The
asylum at Patna was in a more pitiable than Murshidabad. It was erected on a
low ground close to the breeding ground of miasmas and was provided with poor
quality water. This probably resulted in a high death rate of 52%.
5)
There
was overcrowding in the Bareilly asylum, 105 patients were accommodated in 29
cells, with four persons often confined in a cell not bigger than 80 sq. feet
6)
The
Benares asylum was ?on a scale so contracted and insufficient and in appearance
7)
bore
more resemblance to a prison than of an asylum for lunatics.
Diet
supplies were also noted to be insufficient. Significant lacunae were observed
in the handling of mentally ill persons in these asylums. Ernst summarised the
1818 inquiry as leading to ?only moderate control of gross abuses,
rectification of the institution‘s physical defects when ever practicable, and
strongly expressed avowals to humane and moral treatment, proper gender
segregation and classification of lunatics?.
Native Lunatics
In 1840, a second
evaluation of mental health care issues was carried out. This investigation was
on the state of native lunatics in Bengal. This was commissioned due to
allegations of corrupt practices, and the highly variable rates of cure and
death in different asylums. The summary of the findings emphasised the varying
quality of conditions, influence of each superintendent ‘s individual style of
functioning, management and their individual commitment to patient care Based
on this enquiry, the asylums in Benares, Delhi and Bareilly were condemned to
be re-built. It also concluded that basic amenities like diet and other factors
like occupation for atients; and the interest of the treating doctors were all
vitally important. It was a paradoxical observation that the surgeon Paton in
Delhi was practicing ?food restriction‘as punishment. He considered this to be
a very effective approach of enforcing discipline and productiveness among
inmates. But the enquiry revealed that this was not a favourable cure; and on
the contrary, it resulted in increased death rates.
Developments from 1850-1900
During the second half of
the 19th century, political unrest in British
ruled India continued. The reins of power were taken over by the Crown from the
East India Company on November 1, 1858. The year 1858 is also significant as
the first Lunacy Act, known as the Act No. 36 was enacted. It gave guidelines
for the establishment of mental asylums and procedure to admit mental patients.[13]
Developments during the early 1900s
In the early 1900s mental
hospitals that were until then under the charge of the Inspector General of
Police, came under the charge of civil surgeons. The posting of specialist
psychiatrists as full time officers in these asylums became a requirement. The
centralised supervision of all asylums was planned in 1906 and was implemented
formally under the Indian Lunacy Act of 1912. Berkeley Hill, the then
Superintendent of the Central European Hospital at Ranchi, made a significant
contribution to an attitudinal change towards these institutions. He persuaded
the government to change the names of the lunatic asylums to mental hospitals.
Also, he highlighted
the need toinvolve social
scientists with the care of the psychiatric patients. Training of psychiatrists
and psychiatric nursing personnel also began during this period. An Association
of the Medical Superintendents of mental hospitals was also established and a
manual for superintendents of mental hospitals was formulated in 1930. This
manual described the procedures for care, administration and treatments, as
well as the roles of different levels of staff.
Mapother’s Report of 1938
The Mapother‘s report is
considered as a significant step in elucidating the needs of the mental
hospitals in India. This report compared the state of psychiatric services in
London and India. The contrasting perspectives of the mental health scenario
were evident in this report. While the psychiatric bed ratio was 1:200 in
London, the same was1:30,000 in India. Five out of 8 beds for medical diseases
were for the psychiatrically ill in London, in contrast to 1 out of 7 in India.
There was significant
overcrowding noted in the mental hospitals. For example, Yerawada had 29%
overcrowding and Madras had 93%overcrowding. Due to overcrowding, there was an
annual death rate of123/1000 in Agra mental hospital. Mapother cited that Indifference
was stated commonly as a reason but this must be fought against?. He was very
critical of the medical services in India, ?the Indians have been unable to
exercise the authority to enforce change … the only thing they knew is to lock
up the worst patients?[14].
Mapother was extremely
critical of the state of the mental health hospitals and compared them on a
scale of ?badness?. According to him, ?most mental hospitals are desolate
wastes, based on the conception that the insane are indifferent to ugliness and
are destructive?. Mapother mentioned Madras as the ?best ‘of the ?typical ‘mental
hospitals in India. He described the mental hospital in Pune as ?inspired by
the public work department concept of lunatic ‘, with ?open air cages‘. He
advocated a comprehensive programme for re-organizing mental health services in
India.
The re-organisation
programme suggested by Mapother comprised the following:
1)
Admission
Procedures:
2)
Brief
detention / observation exists but no short admission beds;
3)
Voluntary
admission exists but no beds in public wards.
4) India is not ready for non-volition
order on account of corruption.
5)
Every
case should be seen by a magistrate before and after admission for detention.
6)
Certification
for detention should be limited to experts with recognized qualifications.
7)
Visiting
Committees needed to be set up.
8)
Deputy
to Public Health Commission with knowledge of psychiatry to be appointed
9)
Institutional
facilities to be included
10) Increase in beds irrespective of all
pressures
11)
Specialised
services especially for the criminal, mentally retarded and involuntary
patients
12)
Classes
of service to include – psychiatric clinic in Government hospitals and beds for
mentally ill persons
13)
Short
treatments lasting for 1 month
14)
Improvements
of conditions for chronic patients
15)
Increase
in undergraduate education in mental health
16)
Diplomas
to be started
17)
Teachers
/ researchers to have a stint of training abroad
18)
Well-trained
staff and mental health nurses required
19)
Need
to introduce social workers in mental hospitals
20)
Organised
occupation of patients and training of those whosupervise them is crucial
21)
Survey
and public propaganda as to the true incidence of mentalillness and whether
certain illnesses could be prevented.
Moore Taylor’s Report
In 1946, Col. Moore
Taylor, Superintendent of the European Mental Hospital at Ranchi and member of
the Health Survey and Development Committee (Bhore Committee) was asked to
survey mental hospitals andhis report was based on the observations of 19
mental hospitals. His
observations and recommendations
were summarised as follows:
“the majority of mental
hospitals in India are out of date, and are designed for detention and safe
custody without regard to curative treatment[15].
The conditions of many hospitals in India today are disgraceful and have the
makings of a major public scandal”. Many of Taylor‘s observations were similar
to the observations made by Mapother.
1)
Qualified
and trained psychiatrists to head mental hospitals;
2)
Requirement
of adequate staffing;
3)
Post-graduate
training courses with emphasis on prophylaxis and prevention as per the
1)
principles
of modern preventive medicine;
4)
Undergraduate
training in psychiatry is to be uniform;
5)
Mental
hospitals should be attached to medical colleges;
6)
Requirement
of mental health service, the medical staff with status, pay and conditions of
2)
service
for purely professional work;
7)
Urgent
requirement for trained nurses;
8)
The
number and quality of ward personnel to be increased;
9)
Both
theoretical and practical instructions to be imparted to the nurses and ward
3)
personnel;
10)
Work
therapy and diversional therapy to be more systematic and planned;
11)
Special
homes for patients with physical problems (medical or nursing) under the
4)
supervision
of the Medical Services[16]
(it was observed by Moore Taylor that more than
5)
50%
of the patients in mental hospitals could be cared for in such homes);
12)
Need
for outdoor clinics in mental hospitals;
13)
In
schools mental health issues to be addressed, child guidance clinics, juvenile
homes
6)
and
remand homes services to be incorporated;
14)
Psychiatry
should form links with other medical specialties.
Taylor cautioned that
opening of psychiatric units in general hospitals would be suboptimal.
Once this was achieved
the general hospital could share the treatment of mental illness treatment and
prevention activities;
Need to create goodwill
about mental hospitals by ?letting the community know that the mental hospital
has a real service to be given; convincing people that they need what it has to
offer; making it easily obtainable; making people glad they can have what the
institution has to offer?. The onus of improvement of mental health services
was placed on the government. Taylor mentioned that ?this is a suitable time
for Government to take stock, overhaul resources, and rechart the course for
the next30 years?.
Bhore and Mudaliar Committees
The description and the
recommendations of the Bhore Committee have been summarised in the compilation
– Mental Health – An Indian Perspective. The Bhore Committee divided mental
ill-health conditions into two groups: mental disorder and mental deficiency.
i)
Mental
disorder may be either inherited or acquired, and very often is both. No age is
exempt from mental disorder although the types may be different at different
age periods.A large proportion of them are amenable to modern methods of
treatment.
ii)
Mental
deficiency is ascribed, on the other hand, to a hereditary or congenital taint
or to some accident or illness occurring just before or soon after birth.
The Bhore Committee
stated that the position in India is extremely unsatisfactory. It mentions that
chronic starvation or mal-nutrition, tropical fevers, anaemia and frequent
childbirth in women whoare unfit for motherhood[17]
are responsible for the large numbers of mental break down in India. The report
estimated the requirement of beds for mentally ill at that time was about
800,000. Only around 10,000beds were then available for these patients. As per
the eficiencies of mental health care in
India, the Bhore Committee came out with the following proposals. The Bhore
Committee recommendations (1940) for mental health, based on Moore Taylor‘s
report, called for improvements in mental hospitals and the need for medical
and mental health personnel. It was instrumental in the formation of the
National Institute of Mental Health and Neurosciences (then known as the
All-India Institute of Mental Health) in Bangalore.
The committee suggested
the formulation of a mental health programme for the country after a
preliminary investigation of the needs of individual provinces.Such a programme
should aim at providing for the community, in successive stages, a modern
mental health service embracing both its preventive and curative aspects. As a
part of the implementation of such a programme two of the most urgent needs
that should be met are
(1) an improvement and augmentation of
existing institutional facilities for the treatment of mental illhealth
(2) provision for the training of
different types of mental health workers, including doctors and ancillary
personnel?.
With these in mind, the
following recommendations were made by the Bhore Committee for a short-term
programme:
a)
Creation of mental health organization as part of the
establishmentsunder the Director General of Health Services at the Centre and
ofthe Provincial Directors of Health Services;
b)
Improvement of the existing 17 mental hospitals in
British India and the establishment of two new institutions during the first
five years and of five more during the next five years;
c)
Provision of facilities for training in mental health
for medical men inIndia and abroad and for ancillary personnel in India; and
d)
Establishment of a Department of Mental Health in the
proposed All-India Medical Institute. Importantly, there had been a mention
about the promotion of positive mental health, ?the pursuit of which requires
the harmonious development of man‘s physical, emotional and intellectual
equipment.
The Bhore Committee
suggested that apart from provision for the Mental Health Care and Human Rights
prevention and cure of specific forms of ill-health, physical and mental, many
of the proposals by the Committee, for example, those dealing with health and
physical education, the social aspects of programmes for mothers and children,
for the school going population and for industrial workers, the removal of
slums and the creation of parks and other facilities for promoting community
life should also be encouraged to appraise the level of mental health in the
community.
The Mudaliar Committee
visualised the development of psychiatric units in all district hospitals in
the next ten years. The Medical Council of India mandates the setting up of
Departments of Psychiatry at all medical colleges.
Medical Superintendents’ Workshops: Summary of the
Proceedings
Between 1960 and 1990
over a period of 30 years four workshops on the improvement of mental hospitals
in the country were conducted.[18]
In India, in November 1960 the first conference of Superintendents of Mental
Hospitals was held at Agra, WHO workshop on ?Mental Hospitals in India: Present
Status, resources and future needs? at Ranchiin February, 1986, Workshop on
Mental Hospitals in India held as part of the NMHP implementation at NIMHANS, Bangalore
in March 1988, and a WHO workshop on Future Role of Mental Hospitals in Mental
HealthCare in India held at IHBAS, New Delhi in December 1990.
The following points were
focussed at all these workshops:
a)
Living conditions to be improved;
b)
Hospital infrastructure and functions to be improved;
c)
Role of various personnel to be defined;
d)
Staff in mental hospital to be trained;
e)
Outpatient and emergency services to be provided;
f)
Daycare and rehabilitation services to be provided;
g)
Role of mental hospitals in teaching and training to
be extended;
h)
Special services needed for (child, old age, drug and
alcohol, criminal mentally ill);
i)
Need for development of GHPUs;
j)
Need for development of alternative services and
linkage in thecommunity for mental health care;
k)
Undergraduate and postgraduate training and refresher
coursesin psychiatry for other professionals;
l)
Provision to be laid for internal and external
monitoring.
The workshops were well
attended and the aboverecommendations were formulated by mental health professionals.
Indian Lunacy Act, 1912
The Indian Lunacy Act was
enacted in 1856 giving guidelines for establishment of mental asylums and
procedure for admission and discharge of a mentally ill person. Lunatic means a
person with unsound mind or idiot. The main aim for establishing these mental
asylums was to segregate these persons who were considered to be troublesome
and dangerous to the society and themselves. Thus these people were kept in
mental asylums as they required custodial care. They were kept within high
walls and the inmates were chained, beaten up severely and ill- treated.
The growing public
concern about the pitiable condition of the mental asylums forced the
government to have a direct inspection of these asylums. In the year 1906, the
Government decided to inspect them from a central source. In 1912 the Indian
Lunacy Act (ILA) replaced the Indian Lunatic Asylum Act of 1858. It provided
guidelines for the treatment of insane persons. Separate hospitals were
established for European and Indian patients. The names of all lunatic asylums
were changed to mental hospitals and their administrative control was shifted
from civil authorities to the district civil surgeons in 1920. The ILA, 1912
was in force for 80 years.
The ILA, 1912 provided
guidelines for the treatment of insane persons. A person of unsound mind is a
lunatic and is kept in an asylum for care and treatment. A criminal lunatic or
a lunatic shall be received and detained in an asylum only on the receipt of
application of a eeception order. An
application for a reception order shall be made by petition with the statement
of particulars to the magistrate within whose local limits of jurisdiction the
alleged lunatic resides. It should be supported by two medical certificates one
of which shall be from a medical officer. [19]A
copy of the reception order is to be sent to the in-charge of the asylum. Only
on the confirmation of the person being lunatic he/she can be admitted in the
asylum and also it is to be made sure that the person in charge of an asylum is
ready to admit the lunatic.
The cost of maintenance
of the lunatic in an asylum shall be borne by the person himself or any person
who is a party thereto or out of the estate of the lunatic as per the decision
of the magistrate. If the magistrate is satisfied that a wandering person is
produced by the police officer in charge of police station is lunatic, then the
magistrate can make a reception order admission of such lunatic into an asylum.
The asylum is to be licensed. If the magistrate feels that the lunatic is being
ill-treated, then he can summon such relative and if the relative is legally
bound to maintain the alleged lunatic then the magistrate can send such errant
relative to imprisonment for a term which may extend upto one month. He can
even order in writing and authorize the detention of the alleged lunatic in a
suitable custody.
All the acts which the
magistrate is authorised can be done in metropolitan towns by the commissioner
of police. In case of districts where all the duties which officer in charge of
a police station is authorised can be performed by an officer of police not
below the rank of an inspector.
The Care and Treatment
The state government
shall appoint not less than three visitors, one of whom shall be a medical
officer for every asylum. Inspection of every asylum is to be done monthly by
the visitors and shall be maintained in the record with respect to the
management and condition of the asylum and the inmates and also ascertain their
state of mind.
The inspector-general
shall visit the asylum at least once in six months. The order of discharge can
be made by the visitors one of whom shall be a medical officer who can direct
the discharge of the person detained in such asylum. This shall be communicated
immediately to the authority who is taking care of the lunatic.[20]
The lunatic with special
order from the state government can be removed from any government asylum to
other asylum within the state or any other state in the country with the
consent of the state government of that state.
Judicial Inquisition as to Lunacy
The court may order
inquisition as to the person alleged to be lunatic, insane or is of unsound
mind and is incapable of managing himself and his affairs. Acquisition of
such inquisition shall be made by any
relative of the alleged lunatic person or by the advocate general. The court
may take custody of lunatics so found by inquisition and the management of
their estates. The court has the power to make an order on an application made
by petition on concerning any matter related to the lunatic or his estate
respecting the application. For the benefit of lunatic the court has the power
to dispose the lunatic‘s property for certain reasons. E.g.,To clear lunatic‘s
debts, encumbrances, etc.
The Manager shall comply
to execute the orders given by the court. The proceedings in the case of a
lunatic shall be ceased or set aside if the court finds that the unsoundness of
mind has ceased.
The state government may
establish an asylum and license the establishment of asylum. It can also cancel
the license if the provisions for treatment are insufficient. In case the
lunatic is unable to bear the expenditure and there is no one on his behalf to
bear the expenses the court may order the government to bear the same in the
asylum.
The government has powers
to regulate the management of asylums, care and custody of the inmates and
their transfer from one asylum to another asylum. A penalty will be levied for
improper detention or improper reception of lunatics. He shall be punishable
with imprisonment
which may extend for 2
years or with the fine or both. The State Government has powers to make rules
regulating the procedure for reception and detention in asylums.
The ILA 1912 has no
relevance today because our medical science has rapidly advanced.Mental illness
is now not incurable and it can be cured with proper and timely diagnosis. The
attitude of society has also changed and now it is realized that no stigma
should be attached to such type of disease. The experience of working of the
ILA 1912 has revealed that it has become outmoded with rapid advancement of
mental science and the understanding of the nature of the melody. It has become
necessary to have fresh legislation with provision for treatment of mentally
ill persons in accordance with the new approach.
Within a period of 100
years there was unprecedented growth in the number of asylums, which included
Bhowanipore in Calcutta, Patna, Dacca, Berhampur, Dulanda (in Calcutta),
Tezpur, altair, Trichinopally, Madras, Colaba, Poona, Dharwar, Ahmedabad,
Ratnagiri, Banaras, Agra, Bareilly, and Cuttack (Orissa). However, most of
these asylums were set up primarily near cantonments, where the British army
units were stationed[21].
With the establishment of mental hospitals, mental health legislation was
implemented.
Recent Changes in Medical Health Legislation and
Policy
Of late, there has been a
lot of focus and discussion in the society with regards to mental health,
physical health and on the overall well-being of an individual in the society.
It is always considered that metal health is as important and as equivalent to
the physical health of an individual. It is proven that mental health plays a
pivotal role in the development and progress of the human being in the society.
With the progress of time the mental health is now considered as a primary
object to be achieved.
The general meaning of
mental health is a person‘s condition with regard to his/her psychological and
emotional well-being?
The World Health
Organization (WHO), both in its Preamble and Article 1 of its Constitution
emphasizes that:
The enjoyment of the
highest attainable standard of health is one of the fundamental rights of every
human being without distinction of race, religion, political belief, economic
or social condition?
Among the overall
well-being of an individual a clear distinction is made between the ?mind ‘and
the ?physical body‘. In virtual reality there should not be any differentiation
or line drawn between the mental health and physical health. It is always
considered that poor physical health leads to poor mental health and this also
leads to an increase in the risk of mental health problems. Similarly, poor
mental health will impact on physical health or well-being of an individual.
The physical well-being or physical health should be considered at par with the
mental health and no distinction should be drawn.
Hence, mental health and
physical health are two vital strands of life that are closely interwoven and
deeply interdependent. An individual's emotional health can considerably impact
physical health which can leads to many problems both psychological and
physical. Mental health is as important as physical health to the overall
well-being of individuals, societies and countries. At the national level there
has been a lot of influence on the mental health awareness and this is on the
rise. The Government, with the influence of the society has taken drastic steps
towards channelling the laws with special emphasis for the mentally challenged
or the mentally ill individuals who play an integral and pivotal role in the
well-being of the society together with
its upliftment as a whole. The Government is taking steps to ensure that
people suffering from mental illness should be given special care and attention
so as to bring them at par with other members of the society and also to give
special privileges to the needy who are or have been victims to the old myths,
beliefs and practices of the society.
As there is more
awareness and emphasis to the rights of the mentally ill persons wherein there
has been a tremendous pressure on the government to repeal old and outdated
laws and to bring in reformation so as to give meaning to the right of life and
to live with dignity[22].
The right to life which includes the right to live with dignity is a
fundamental right of every citizen which should not be denied to any individual
including the persons who are mentally challenged.
The mental health
legislations are concerned mainly with:
i.
rights
of the mentally ill (right to care and human rights);
ii.
quality
of care;
iii.
the
use of administrative and budget control measures; and
iv.
consumer
participation and involvement in the organization and management of mental health
care services
The Mental Health Act,
1987 which was in force had many drawbacks. It was not successful in
eradicating the social stigma attached to mental illness, there is no emphasis
on the role of the family members in dealing with mentally ill patients, no
emphasis on care after discharge and rehabilitation of patients and many more.
The Mental Health Act, 1987 has not been updated It is not on par with
international treaties and laws made for the treatment and care of mentally ill
patients. There has been strong pressure on government by the doctors, the
society and the other members of the community to make a new and improved law
for better health care of the mentally ill patients and the social stigma
attached to the mentally ill patients. Hence the Government of India has
drafted the new bill called the Mental Health Care Bill, 2013 which is in line
with the International requirements needed for the treatment and care of
mentally ill persons/patients.
Government Policy
There have been
significant advances with respect to mental health legislation in India. Some
of the important legislations in India pertaining to mental health and
well-being of the individuals include:
1)
Narcotic Drugs & Psychotropic Substances Act, 1985
(NDPS 1985)
2)
Mental Health Act, 1987(MHA 1987)
3)
Rehabilitation Council of India Act, 1992 (RCI 1992)
4)
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (PWD 1995).
5)
Juvenile Justice (Care and Protection of Children)
Act, 2000 (JJA 2000)
6)
National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (NTA
2001)
7)
Protection of Women from Domestic Violence Act, 2005
(DMV 2005)
8)
The Mental Health Care Act, 2017
The common objective of
the above legislations is to provide a dignified living, to protect human
rights and to address, to promote, to prevent and to cure the mental health
problems.
Narcotic Drugs & Psychotropic Substances Act, 1985
The Narcotic Drugs and
Psychotropic Substances Act, commonly referred to as the NDPS Act came into
force on 14 November 1985. The Act extends to whole of India and applies to all
Indian citizens outside India and to all persons on ships and aircraft
registered in India.
According to the NDPS
Act, it is illegal for a person to produce, manufacture, cultivate, possess,
sell, purchase, transport, store, and/or consume any narcotic drug or
psychotropic substance. The
Act was amended in 1988
and 2001. By notification in the Official Gazette, the Central Government may
constitute an advisory committee[23] -
"The Narcotic Drugs and Psychotropic Substances Consultative
Committee" to advise the Central Government on matters relating to the
administration of this
Act referred to it by the Government from time to time.
The Passing of the Mental Health Act, 1987
The first law in relation
to mental illness in British India was the Lunatic Removal Act 1851, which
ceased in 1891. This law was mainly enacted to regulate the transfer of British
patients back to England. After the takeover of Indian administration by the
British crown in 1858, many laws were introduced for the care of people with a
mental illness.
These include:
1)
the
Lunacy (Supreme Courts) Act 1858
2)
the
Lunacy (District Courts) Act 1858
3)
the
Indian Lunatic Asylum Act 1858 (with amendments passed in 1886 and 1889)
4)
the
Military Lunatic Act 1877.
Under these Acts,
patients were detained for an indefinite period in poor living conditions, with
little chances of recovery or discharge. This led to the introduction of a bill
in[24] 1911 that consolidated the existing legislation and led to
the Indian Lunacy Act (ILA) 1912. The legislative history is a revolutionary
process to re-examine the repealed enactments in a systematic chronological
order. 106
The Indian Lunacy Act,
1912 was amended by the following Acts:
1)
The
Indian Lunacy (Amendment) Act 12 of 1922
2)
The
Devolution Act, 38 of 1920
3)
The
Indian Lunacy (Amendment) Act, 6 of 1922
4)
The
Repealing and Amending Act 11 of 1923
5)
The
Indian lunacy (Amendment) Act, 32 of 1923
6)
The
Indian Army (Amendment) Act, 33 of 1923
7)
The
Indian lunacy (Amendment) Act,5 of 1926
8)
The
Repealing and Amending Act 10 of 1927.
9)
The
Indian Air Force Act 14 of 1932.
10)
The
Amending act, 35 of 1934 The Part B states (Laws) Act, 3 of 1951.
11)
The
repealing and amending Act 36 of 1957.
It has been adapted by
the Adaptation of Laws Order, 1937, the Adaptation of Laws Order 1948, the
Adaptation of Laws Order 1950, the adaptation of laws Order (No. 2) of 1956. It
was repealed in part and amended by the Devolution Act 38 of 1920 and repealed
in part by the Second Repealing and Amending Act 17 of 1914, and the Repealing
and Amending Act 18 of 1919.
The Indian Lunacy Act was
extended to the new provinces and the merged states by the Merged States (Laws)
Act 59 of 1949, and to the states of Manipur, Tripura and Vindya Pradesh by the
Union Territories (Laws) Act, 30 of 1950.
It was extended to the
Union Territory of Dadra and Nagar Haveli by the Dadra and Nagar Haveli (Laws)
Regulation 6 of 1963, to the Union Territory of Pondicherry with effect from
October 1, 1963 by the Pondicherry (Laws) Regulation 7 of 1963, to the Union
Territory of Goa, Daman and Diu by the Goa, Daman and Diu (Laws) Regulation
(No. 2) of 1963, and Laccadive, Minicoy and Aminidivi Islands from October 1,
1967 by the Regulation No.8 of 1965.
The Indian Lunacy Act was
amended in its application to –
1)
Bombay
by Bombay Acts Nos. 15 of 1936, 15 of 1938, 8 of 1954 and 97 of 1958.
2)
Gujarat
by Gujarat Act, 49 of 1961.
3)
Maharashtra
by Maharashtra Act, 56 of 1956, and 54 of 1975.
4)
Madhya
Pradesh by Madhya Pradesh Act, 23 of 1952.
5)
Tamil
Nadu by Madras Acts, 14 of 1938, 15 of 1938, and 12 of 1943
6)
Punjab
by Punjab Act, 37 of 1956
7)
Saurashtra
by Saurashtra Act, 42 of 1953, and
8)
Uttar
Pradesh by U.P.Act, 24 of 1954.
The Act was extended to
the states merged in the State of Bombay by Bombay Acts No.4 of 1950, to the
State of Madhya Pradesh by Madhya Pradesh Act, 12 of 1950 and 23 of 1958, and
to the States merged in the State of Punjab by Punjab Act, 5 of 1950, it was
extended to Saurashtra and Kutch areas of the State of Gujarat by the Gujarat
Act, 49 of 1961 which also repealed the Saurashtra Amendment Act 42 of 1953.
The Act was extended to the state of Madhya Bharat by Madhya Bharat Act, 25 of 1950.
The Indian Lunacy Act was
declared to be in force in the Khondmals District by the Khondmals Laws
Regulation, 1936(4 of 1936) and to the Angul District by the Angul District
Laws Regulation, 1936 (5 of 1936). After the Second World War,[25]
Universal Declaration of Human Rights was adopted by the UN General Assembly. Indian Psychiatric
Society submitted a draft Mental Health Bill in 1950 to replace the outmoded
ILA-1912.
The Mental Health Bill,
1981 served as a basis for the passing of The Mental Health Act,1987 which
received the assent of the President on May 22, 1987 and was published in the
Gazette of India, Extraordinary, Part II, Section 1, dated May 22, 1987.
The Mental Health Act,1987 amends the laws relating to the treatment and care
of mentally ill persons and thus makes better provisions for their welfare and
matters connected therewith. The Act consolidates andamends the law relating to
the treatment and care of the mentally ill persons to make better provisions
with respect to their property and affairs and matters connected therewith or
incidental thereto.
Mental Health Act, 1987
The Mental Health Act,
1987 (MHA)repeals the Indian Lunacy Act, 1912 and the Jammu & Kashmir
Lunacy act, 1977. The MHA 1987 came into effect in all the states and Union
Territories in April 1993. The main aim of the Act is to consolidate and amend
the law relating to the treatment and care of mentally ill persons, to make
better provision with respect to their property and affairs and for matters
connected therewith or incidental thereto. The Act is divided into ten chapters
and consists of ninety eight sections.
According to the Act, the
Central Government may, in any part of India or the State Government may,
within the limits of its jurisdiction establish or maintain Psychiatric
Hospital or Psychiatric Nursing Homes for admission, treatment and care of
mentally ill persons at such places as it thinks fit; voluntary admissions and
strict supervision of the existing Hospitals and Nursing Homes; Judicial
inquisition; State liability to meet cost of maintenance of such detained
persons; protection of human rights and management of the property of mentally
ill persons. The MHA, 1987 also provides for provisions for penalties and
procedures under Chapter IX of this Act.[26]
Rehabilitation Council of India Act, 1992
In 1986, the
Rehabilitation Council of India (RCI) was set up as a registered society. On
eptember, 1992 the RCI Act was enacted by Parliament and it became a Statutory
Body on June 22, 1993. The Act was amended by Parliament in 2000. The objective
of the Act is to regulate and monitor the rehabilitation of persons with
disabilities including the training policies and programmes in the field of
rehabilitation; to bring about standardization of training courses for
professionals; to prescribe minimum standards of education and training of
various categories of professionals/ personnel; to regulate these standards in
all training institutions uniformly throughout the country and to recognize
institutions/ organizations/ universities running master's degree/ bachelor's
degree/ P.G. Diploma/ Diploma/ Certificate courses etc. The Act also prescribes
punitive action against unqualified persons delivering services to persons with
disability.
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
This Act may be called
the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995(PWD). It extends to whole of India except the
State of Jammu and Kashmir. The Act received the assent of the President on the
January 1, 1996. The main aim of the Act is to give effect to the Proclamation
on the Full Participation and Equality of the People with Disabilities in the
Asian and Pacific Region.
The Meeting was convened
by the Economic and Social Commission for Asia and Pacific at Beijing on 1st to
5th December, 1992 to launch the Asian and Pacific Decade of Disabled Persons
1993-2002. The Act approved the declaration on the Full Participation and
Equality of the People with Disabilities in the Asian and Pacific Region. India
is a signatory to the said declaration. This Act was enacted to give effect to
the said declaration signed by India in 1992.The Act emphasises on the
socio-economic and civil rights of persons with disabilities in all the states
of India except the state of Jammu & Kashmir. According to this Act
?Disability ‘means - Blindness; Low vision; Leprosy-cured; Hearing impairment;
Loco motor disability; Mental retardation; Mental illness.
The Juvenile Justice (Care and Protection of Children)
Act, 2000
It is an Act to
consolidate and amend the law relating to juveniles in conflict with law and
children in need of care and protection, by providing for proper care,
protection and treatment by catering to their development needs, and by
adopting a child-friendly approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate rehabilitation
through various institutions established under this enactment. The Indian
Constitution has, in several provisions, including clause (3) of article 15,
clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a
primary responsibility of ensuring that all the needs of children are met and that
their basic human rights are fully protected; The General Assembly of the
United Nations has adopted the Convention on the Rights of the Child on the
20th November, 1989; the Convention on the Rights of the Child has prescribed a
set of standards to be adhered to by all State parties in securing the best
interests of the child; the Convention on the Rights of the Child emphasises
social reintegration of child victims, to the extent possible, without
resorting to judicial proceedings; the Government of India has ratified the
Convention on the 11th December, 1992to re-enact the existing law relating to
juveniles bearing in mind the standards prescribed in the Convention on the
Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing rules), the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990),
and all other relevant international instruments.
National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
The Act received the
assent of the President on December 30, 1999 and extends to whole of India.
This Act provides for the constitution of a national body for the Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities. This national body shall be a trust. The objects are specified
below:
a)
to
facilitate and allow persons to live independently within the community to
which they belong;
b)
facilitate
to provide support to live within their families;
c)
to
extend support to registered organization, to provide services in the event of
crisis in the family;
d)
to
deal with problems of such persons who do not have family support;
e)
to
take measures for the care and protection of such persons in the event of death
of their parent or guardian;
f)
to
appoint guardians and trustees for persons who requires such protection;
g)
to
facilitate equal opportunities, protection of rights and full participation of
persons with disability; and
h)
to
do any other act which is incidental to the aforesaid objects.
Protection of Women from Domestic Violence Act, 2005
This Act provides for
more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the
family and formatters connected therewith or incidental thereto. This Act was
brought into force by the Indian government from October 26, 2006. The Act
provides the definition of "domestic violence", which is broad based
and includes not only physical violence, but also other forms of violence such
as emotional, verbal, sexual, and economic abuse. It is a civil law meant
primarily for protection orders and not meant to penalize criminally. The act
does not extend to Jammu and Kashmir, which has its own laws, and which was
enacted in 2010 the Jammu and Kashmir Protection of Women from Domestic
Violence Act, 2010.
Mental Health Care Act, 2017
The Act consists of one
hundred and twenty six sections divided into sixteen chapters.According to the
Act every individual suffering from mental illness shall have the right to
specify the way he/she would like to be treated. The individual will also
specify a nominated representative who will be responsible for taking decisions
with regard to treatment, admission into a hospital, etc.
The Act guarantees every
person the right to access to mental health care and treatment from the
government. A person with mental illness also has the right to equality of
treatment and protection from inhuman and degrading treatment. The Act
decriminalizes suicide and states that whoever attempts suicide will be
presumed to be under severe stress and shall not be punished for it[27].
Constitutional Provisions With Regard To Mental Health
The fundamental rights
enshrined in Part III of Indian Constitution also known as the?Magna Carta ‘or
the ?Human Rights ‘for the citizens of India. These rights are enshrined in the
constitution for the development and welfare of citizens of India. The
fundamental rights are also justifiable rights; this means that the citizens
can approach the court of law for their enforcement against unconstitutional or
arbitrary encroachment. With the recent development of law, the meaning of
Fundamental Rights has expanded its scope of horizon and that the fundamental
rights are applicable to all citizens of India irrespective of caste, religion,
colour, sex or origin. But when it comes to its application especially to the
citizens with a mental disability the question arises whether these rights are
easily available and justifiable? The answer to this question is the need of
the hour as many of these rights though theoretically applicable, there are certain
difficulties in their application.Under the Constitution the mentally disabled
have been guaranteed the following fundamental rights:
The Constitution in its
?Preamble ‘secures to all its citizens including the mentally disabled-?Justice
- social, economic and political;
Liberty - of thought, expression, belief, faith
and worship;
Equality - of status and of opportunity; and to
promote among them all.
Fraternity - assuring the dignity of the
individuals.
This is the most
promising preamble wherein the constitution ensures that all its citizens are
treated equally under law including the assurance that the citizens are treated
with dignity. Hence, a special reference can be given to the mentally disabled
so as to recognise and give them
their due social status,
rights and privileges in the society.
The next most promising
Article in the constitution is the Article 14 which imposes a liability on the
state to treat all persons equally before law and provide equal protection and
also ensure that there is no discrimination on the basis of religion, race,
caste, sex or place of birth. Again, here a special reference can be made to
the mentally disabled; wherein increasing the duty and responsibility of the
State towards the mentally disabled ensuring that they are treated equally
before the law and should not be subjected to any kind of discrimination which
challenges their ability.
Article 15(2) states that
no citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them, be subject to any disability, liability, restriction or
condition with regard to its access to shops, public restaurants, hotels and
places of public entertainment; or the use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public. Here again, a special
emphasis can be made with respect to mentally disabled where in the State shall
not discriminate in matters of their access to shops, public restaurants,
hotels and places of public entertainment or in the use of wells, tanks,
bathing ghats, roads and places of public resort maintained wholly or partly
out of government funds or dedicated to the use of the general public.
Article 21 of the
Constitution guarantees ?protection of life and personal liberty?. It
emphasises that ?no person shall be deprived of his life or personal liberty
except according to procedure established by law.‘[28]
In the above provision it
can be construed to include the rights of the mentally disabled by not only
providing them their right and privileges to live in the society but also
ensuring their right to protection from exploitation. With the advancement of
time and improved legislations the scope of Article 21 had been broadened. On a
number of occasions the higher courts have given significant judgements and
have give more logical and meaningful concept to Article 21. With these
momentous judgements the meaning of right to life can be deduced as something
more than the rights available for mere survival of human existence. It
includes within its ambit the right to live with human dignity, right to
health, right to potable water, right to pollution free environment, right to
privacy and right to education etc.
It is also laid down by
the higher courts that the State shall strive to provide, improve and maintain
public health. It can also be considered as one of the fundamental rights that
can be claimed by, against the State which includes the Government and other
Authorities established by the State. In other words, it can be said that it is
an obligation that flows from Article 21 of the constitution. This means that
mentally ill have fundamental/human right to receive mental health care and to
humane living conditions in mental hospitals.
In Chandan Kumar Banik
v. State of West Bengal,[29]
the Supreme Court has given the order to provide respite to mentally challenged
inmates of a hospital in Hooghly district who were being kept chained by the
hospital authority to control their unruly and violent behaviour. Article 32 -
Right to constitutional remedies. According to thisArticle every disabled
person can move to the Supreme Court of India to enforce his/her fundamental
rights guaranteed in the constitution. The Indian judiciary has interpreted the
right to health in many ways.Through public interest litigations there are
substantial case laws in India, which shows a range of problems that are
related to health.
InVincent v. Union of
India,[30]it was accepted by the apex court that – ?A healthy body is
the very foundation for all human activities?. In a welfare state, therefore it
is the obligation of the state to ensure the creation and sustenance of
conditions congenial to good health.
In Consumer Education
and Resource Centre v. Union of India,[31] it was recognised that Right to Health is essential for human
existence and is, therefore, an integral part of the Right to Life.
In Francis Coralie
Mullin v The Administrator, Union Territory of Delhi1[32]it was held that the right to life
does not mean a mere animal like existence but a more meaningful life, a life
of physical and mental integrity.
Further in,State Of
Punjab and Others v Mohinder Singh Randhawa And Others,[33] it was also stated that right to health is integral to right
to life.
Under Article 47, it is
the duty of the State to raise the level of nutrition and the standard of
living and to improve public health. The State shall regard the raising of the
level of nutrition and the standard of living of its people and the improvement
of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to
health.
The primary duty of the
State shall be, to raise the level of nutrition and the standard of living of
its people. When it comes to the mentally disabled the Government is compelled
and obligated to provide primary and basic health care facilities which are
required for the well – being of the mentally disabled.
In Mahendra Pratap
Singh v. State of Orissa,[34]the
court held that in a country like ours, it may not be possible to have
sophisticated hospitals but definitely villages within their limitations can
aspire to have a Primary Health Centre. From the above discussion it is clear
that the constitution of India incorporates provisions guaranteeing everyone's
right to the highest attainable standard of physical and mental health.
Mental health legislation
needs to address the following issues and provide a reasonable degree of right
to health care. Reasonable degree of health care means and includes:
a)
easy
access to health care – available at the community level, which is integrated within
(a)
primary
health care.
b)
free
supply of essential medications –a list of essential medicines needs to be
declared
(b)
and
made available free of cost continuously without any interruption.
c)
acceptability-
service providers must respect medical ethics and the service provided
(c)
should
be culturally appropriate.
d)
quality
- health facilities and services must be scientifically appropriate and of good
(d)
quality.
e)
availability
of emergency treatment at the primary health centre
Conclusion
Legislation is an
important mechanism to ensure appropriate, adequate, timely and humane health
care delivery. The fundamental aim of these legislations is to protect, promote
and improve the lives and mental well-being of its citizens. India has a
comprehensive, but scattered, legislation related to health care. Some of these
legislations foe example the Mental Health Act, 1987, the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Rehabilitation Council of India Act,
1992, the Disability Act, 1995, the Juvenile Justice (Care and Protection of
Children) Act, 2000, and the Protection of Women from Domestic Violence Act,
2005 helped to clarify some of the health related legislation. These
legislations, directly and indirectly, played an important role in protecting
the rights of persons with mental illness. They ensured effective
implementation of these laws by the state, other authorities and organisations.
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[2] N. Kumar. The Relationship between Physical &
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[6] Macalpine and R. Hunter, George
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[8] V G Kiernan, The Lords Of Human Kind: European
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37(1972).
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[18]
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[21] Johari. J.C., ‘The Constitution of India: A
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[22] Seervai, H.M., ‘Constitutional Law of India’,
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[23] Szasz, Thomas. S, ‘Law, Liberty & Psychiatry:
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[24] https://www.rcpsych.ac.uk/pdf/PUBNS_IPv13n3_65.pdf
[25] Samuel. J. Brakel and Ronald.S. Rock, ‘The
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[27]
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[28] Seervai, H.M., ‘Constitutional Law of India’,
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[29] Chandan Kumar Banik v. State of
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[30] Vincent v. Union of India,
AIR 990, 1987 SCR (2) 468.
[31] Consumer Education and Resource
Centre v. Union of India, AIR 922, 1995 SCC (3) 42
[32] Francis Coralie Mullin v The Administrator,
Union Territory of Delhi1, AIR746, 1981 SCR (2) 516
[33] Punjab and Others v Mohinder
Singh Randhawa And Others,AIR 1992 SC 473, 1993 ,SCC 49
[34] Mahendra Pratap Singh v. State
of Orissa, AIR 1997 Ori 37
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