Rhea Malik

| @ | July 24,2019

IN a twist of reason, the Indian state inherited its ideas of madness and confinement from its colonisers. As Michel Foucault has described in Madness and Civilisation, Christian myths and Biblical passages in Europe in the Middle Ages made leprosy a frightening thing, and leprosy patients frightening and infectious creatures to be hidden away behind high walls. When leprosy became less frightening a few centuries later, these houses were used instead for the mad, a group with unsure footing around the age of Enlightenment. English law echoed this pattern and dealt with its mad by making more and more walls to hide them behind. As one scholar has noted, the names of English acts for the ‘mental’ are telling of this: the Act for Regulating Private Mad Houses, 1774 and the Country Asylums Act, 1808. The European paranoia was transplanted to India with a sibling of these two: the Indian Lunacy Act (ILA) of 1912.

The Indian Lunacy Act created “lunatics” and “criminal lunatics” (defined not very helpfully as “idiots” in Section 2) and laid the paperwork conditions for their detention in asylums. The Act told one how to catch an escaping lunatic and how to ask for their custody, if one felt charitable. The ILA reigned until 1993 when the Mental Health Act (MHA) was passed, but the MHA carried much of the same sentiment as the ILA, prioritizing the management of madness over its understanding.

Both of these adjudged mental health in the able/disabled binary, with the latter being dispossessed of reason and autonomy in the eyes of the law and taken to asylums unless somebody wanted to care for them. Where madness is sketchily defined, reason doesn’t stand a great chance either, and so unscientific and unethical ‘treatments’ like electro-convulsive therapy sans anaesthesia have been legally resorted to in these centres (see: this report). If the general British policy on India was divide and rule, its policy on madness was label and institutionalize.

 

The 2017 Act

 

The Mental Healthcare Act 2017 seeks to expand the rights of those dealing with mental illnesses by shifting away from an ideologically repressive to a relatively careful concept of mental health. Although still within a highly patronizing framework, where mental health continues to be understood in the ability/disability binary (as opposed to a set of mental conditions and orientations) and where the state vows to “take care” of the mentally ill by institutionalizing them, there is visible reform from earlier versions of the Act.

The MHA 2017 seeks at least to use medical terminology to understand illnesses, using “national and international standards” like the World Health Organisation classification (Section 3). Of course, Foucault would remind us, no classification works without exclusion and mental state wouldn’t be the last exception. Yet the language and aspirations of the statute mark a notable shift from “managing idiots” to “helping persons”. It recognizes the importance of the distressed to live in a community: it iterates the right to “live in society” and directs governments to establish half-way homes (Sec. 19) where, presumably, normal life may resume, along with therapy.

The expanded rights include the right to free legal services, to confidentiality, to freedom from institutionalization, to make advance directives for treatment, to request transfer to another facility; and protections such as against electro-convulsive therapy (S. 94) and labour exploitation (S. 20 (f)). Suicide attempts by mentally ill persons have also been decriminalized.

The Act places public institutions at the centres of care, with the Central and State Mental Health Authorities acting as parens patriae. All services, procedures, regulations, and quality control for mental health are tied to the State Authorities and failings in their bureaucracy would pull down the whole show. The State Mental Health Authority (SMHA) is supposed to register all psychiatric workers (doctors, nurses, social workers) in the state, publish their names, track the working of all psychiatric institutions in the state, establish norms and regulations for practice, train practitioners, receive complaints, and establish public mental health institutions (Sec. 55 of the Act). The Mental Health Review Board (set up by the State Authority) is supposed to prescribe the modalities of transferring a patient from one facility to another (Sec. 93). In the scheme of the Act, the rights of the distressed cannot begin to be realized in the absence of these authorities meeting their obligations.

 

Dire need

 

Despite the lessons from Foucault, who showed how states’ (especially the judiciary’s) marriage to psychiatry becomes an insidious form of social control, the Indian state’s involvement in mental health is perhaps warranted, given how cavernously bleak chances of treatment are for the average person. According to a study conducted by the National Institute of Mental Health and Neurosciences, India, in 2016, across 12 different states, the lifetime prevalence of mental disorder is 13.7% as a whole, putting at least 150 million Indians are in dire need of help. The WHO Mental Health Atlas reveals that there are just three psychiatrists, and even fewer psychologists, for every millionpeople in India. State intervention, thus, seems indispensable for filling this cavern.

This is why a public interest petition currently in the Delhi High Court is pertinent: it exposes the frightening fissure of mental health in the capital. Delhi currently does not havea State Mental Health Authority.

 

A petition of hope

 

Advocate Amit Sahni has filed a petition asking for a direction to the Delhi government to constitute the State Mental Health Authority and the Mental Health Review Board. In their absence, there is no regulation on mental health practitioners in Delhi, and no basic minimum requirement of tangible provisions from the government. (According to the website of SMHA, Delhi, the last SMHA under the 1987 MHA was constituted in 2008 and was to last for 3 years.)

 

The transfer provision in Section 93 has been nullified without the Review Board. Patients’ right to legal consultation lies dormant as the State Legal Services Authority has not made a scheme for mental healthcare. The petition for implementation has also asked for a ‘policy to be chalked up by the State Legal Services Authority to sensitize police officers, magistrates, and custodians of institutions’.

Section 100 of the Act is perhaps its most disconcerting, for it allows a police officer to detain a person for up to 24 hours if they find them “wandering” and have reason to believe they are mentally ill. With the difference that they may not be locked up at the station, the treatment of the mentally ill resembles that of accused persons in criminal cases. The possibility of abuse here is grave per se: the mad/distressed/mentally ill have been derided, illtreated and tortured for centuries over mythological and traditional ideas of madness (for instance, in parts of India like Fatehpur, patients of leprosy continue to be stigmatized and isolated until death, even though it is entirely treatable), they often have a diminished ability to assess risks to themselves, and police as well as ‘caretakers’ in rehabilitation homes have been known to exploit and harm mentally ill persons, maliciously as well as out of ignorance of their condition. For instance, persons with autism may be picked up as their conduct can appear as if they are “wandering”, and their responses to questioning may look suspicious, prompting harsher scrutiny and making them anxious and distressed.

In India, Human Rights Watch has found that women and girls with disability find it nearly impossible to get access to justice and are visited by further horror because of police ignorance of their conditions, and the lack of accessible infrastructure for reporting cases (e.g. lack of interpreters). These risks, and the lives of the mentally ill, go into freefall without a monitoring body to work with the police and really make them understand different mental health conditions and watch for signs of trouble.

The bench of Chief Justice D N Patel and Justice C Hari Shankarhas sought the Delhi Government’s reply on their plan to implement the MHA. Hopefully, the judgement will also carry guidelines for implementation by states, and some clarity on budget and responsibility allocation between the Centre and states, which are missing from the Act. It is probably mad to expect the state to solve the looming mental health epidemic, but I do hope this PIL makes at least a few help centres spring up for the people of Delhi.

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