India is going through a terrible situation where people are five times more likely to commit suicide than to be murdered. And this situation doesn’t seem surprising considering the fact that we have a lot of paraphernalia – police, prison and judiciary – to deter people from committing murder. However, we do not have mental health facilities on a similar scale.
The first step towards recognizing government accountability towards mental health facilities was the enactment of the Mental Health Act 2017 (MHA).
The MHA replaces the Mental Health Act of 1987, a custodial law. Without a shred of doubt, the MHA is a huge leap from the 1987 Act. The MHA marks a change in the
how mental health care is delivered.
Protects and promotes the right of people during the provision of mental health services by recognizing the autonomy of a person to opt or not for a certain treatment. This brings us to the question of whether the MHA follows a similar type of approach in accessing mental health care support, which is the starting point for the provision of mental health care services.
Section 3 of the MHA says that “mental illness shall be determined according to nationally or internationally accepted medical standards.”
This section follows a highly diagnostic approach to determining mental illness. It implies that standards determined by medical experts would ultimately decide whether or not a person would be entitled to benefits provided by the MHA.
It completely negates the idea of individual autonomy to determine their mental health situation and whether or not they need mental health support.
A reflection of this idea can be seen in Section 86, in which an adult who believes that he or she has a mental illness and wishes to be admitted for treatment in any mental health facility may use the facility only when the medical officer be convinced that you really are. that he suffers from a serious mental illness.
Parallels can be drawn with the Transgender Persons (Protection of Rights) Act 2019, which was enacted for the benefit of transgender people, but draws heavily on the medical gender identity recognition model of gender self-determination.
By placing the medical model on a higher pedestal than the individual’s mental health experience, the MHA has set another example of due deference to the law for medical experts.
Section 2(s) defines mental illness as a “substantial disorder in thought, mood, perception, orientation, or memory…”. This section is one of the key provisions of the MHA as it determines who this Act applies to. The word substantial is broad and vague as it does not specify or determine the severity of the mental illness. It gives a lot of discretion to the authorities in terms of deciding who is a mentally ill person.
Under section 100, the police have a duty to take any homeless person under their protection if they believe they are mentally ill.
Due to the wording of section 2(s), the state can lawfully intrude into the private space of a person who may or may not be suffering from mental illness and, at the same time, pose as a protector.
The MHA follows a paternalistic approach in which medical experts and the state become the primary authority in determining who has a mental illness and needs treatment for the illness.
same.
Individual experiences and their need for mental health support are at the mercy of state and medical experts. It raises the question of whether the autonomy to choose medical treatment is meaningful in the first place when the MHA does not grant the autonomy to make use of those facilities without expert medical opinion.
(The author is a student at the National Law School of
India University, Bangalore)
.
