TALKING ABOUT FACTS
A study carried by a charity by the name ‘Live Love Laugh Foundation’ at the beginning of 2018 inferred that 87% of the respondents showed awareness, out of which 71% of them used the word ‘stigma’ or connected terms with mental illnesses. Hence, it is the law which has to step into the picture to connect the gap of social acceptance and grant various rights to people who suffer from mental illnesses. This fits all the more important due to the growing awareness of human rights. Mental Health Care, 2017 is one of such step of the lawmakers to provide them with many rights.
Rights under Mental Health Care Act, 2017
The Mental Health Care Act, 2017 has been viewed as a historical intervention in the field of medical healthcare. It has been named as a ‘pro-right’ document for the PMI.
Right to make an advance directive
The Act grants the right to persons with mental illnesses to make advance directive with respect to the way the person should and should not be treated in case of his mental illnesses. Farther, in the advance directive, he also has the right to designate a nominee who has the duty to act on his behalf in taking treatment decisiveness and all other purposes as given in the Act which has to be in the best interest of the PMI.
Right to access healthcare services
The PMI has the right to enter mental health care or service provided or funded by the government. The Act gives that such mental health care services have to be acceptable to the PMI and their families, among other criteria.
The services provided should be affordable and of great quality so that financial status is not an impediment for persons suffering from mental disorder. Furthermore, it is the right of the PMI that the quality of the services is not compromised.
- The services have to be in enough quantity and geographical inaccessibility should not be a hindrance anymore for the PMI. Therefore, the Act ensures that the PMI does not have to go far to access treatment.
- For this, the Act also casts a duty on the government to guarantee that healthcare facilities should be accessible in each district which is run or funded by the government. Furthermore, if the government fails to provide such equipment in the district of a PMI, then it is the duty of the government to ensure that the facility at any other health center is accessible to him, the cost of which is to be borne by the appropriate state.
- Discrimination on any grounds such as gender, sex, sexual orientation, class, religion, caste, etc. is prevented in the rendering of mental health care services.
Right to free of cost healthcare services
The persons living below the poverty line or persons who are homeless or impoverished have the right to get the mental health care services and facilities free of cost and no financial cost, whatsoever, in the government-run or government funded establishments. Furthermore, the appropriate government can also designate other healthcare centers where this provision shall be made available. Moreover, all persons with mental illnesses have the right to avail all the medicines registered in the Essential Drug list, notified by the appropriate government, at free of cost. Such availability has to be made by the state at all the state-run and state-funded health establishments.
Right to live in a community
The government is obligated under the Act to give such healthcare facilities so as the person bearing from mental illnesses is able to live in a community, along with his family. Such characters cannot be removed from society and if it is so impossible for them to live with the family or the person has been abandoned by the family, it is the duty of the government to render aid. Furthermore, the mother of a child who is below three years has the right not to be separated from her child for the basis for her being mentally ill. This right can be reasonably restrained if there is a risk of harm to the child and the child can be temporarily separated from the mother.
Right to protection from cruel, inhuman and degrading treatment
The roots of the right to a dignified life fall in Article 21 of the Constitution. This has been included in the Mental Healthcare Act too which lays down that every person enduring from mental illnesses has a right to live with dignity. Furthermore, such persons also have the right to be protected against cruel, inhuman and degrading treatment in any health establishment. Plus, there are various other rights provided to them such as the right to a safe and hygienic environment and other circumstances such as the right to privacy.
Right not to be treated under prohibited treatment
The Act completely prohibits electroconvulsive treatment for children. Even for adults, the therapy has been completed by taking certain precautions such as using muscle relaxants and anesthesia.
Right to equality and non-discrimination
The persons with mental illnesses have the right to be treated equitably with physically ill patients at the time of treatment, that is with respect to emergency services, ambulance services, etc. Furthermore, no discrimination shall be made on any basis which shall include gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.
Right to information
The Act believes that every person, including persons with mental illnesses, have the capacity to execute decisions. Therefore, the Act provides that any decision made should be an informed one. Consequently, such a person has the right to know the provisions of the Act under which he has been admitted, along with the criteria for the same. The person has also the freedom to know all the facets of the treatment for which he has been admitted, which involves the information of the side-effects of such treatment. Such notice has to be made in an understandable language to the person who has been admitted and his nominated representative.
Right to confidentiality
It is the right of every person with mental illnesses has a right that the details with respect to his mental illnesses and line are preserved under confidentiality. Such confidentiality is also prolonged to the information stored in digital or electronic form. Therefore, duty has been cast upon the health professionals for not revealing any such information subject to certain exceptions such as to prevent harm, in the interest of public safety and security, etc. Furthermore, such information can also be released to the nominated representative and other health professionals for the purpose of treatment.
Right to legal aid and complain
Article 39A of the Constitution systematizes down the directive of free legal aid. This has been included under the Act for persons with mental illnesses who can seek legal aid to exercise the rights provided under the Act. He too has the right to be informed about this right by the appropriate authority. Additional, the person is also entitled to the right to complain with respect to the lack of mental health care services or facilities provided to him.
Simultaneously with these rights, there are other rights too such as the right to access medical records and the right to personal contacts and communication. The latter includes the right to refuse any visitant and communication made to him.
Rights and disabilities of persons with mental illnesses under other laws
The persons with mental illnesses have been furnished certain rights but along with that, the law has also taken away some of their rights.
Right to enter into a contract
Such persons can’t give valid consent under the eyes of the law because of the inability to understand the nature of the contract and to form a rational judgment. Hence, they do not have the capacity to enter into a valid contract, except during lucid intervals under the Indian Contract Act, 1872. Lucid intervals mean the moment when the person is not in the clutch of his mental illnesses.
Right to marry
Marriage is ruled by various personal laws. The Hindus are governed by the Hindu Marriage Act, 1955 which disables a person suffering from mental illnesses to give valid consent and hence, fulfill the requirement of a valid marriage. Alike provisions can be found in laws of other religions such as Muslims, Christians, etc. Even the Special Marriage Act, 1954 does not recognize the marriage as valid if consent is given by a person with mental illnesses. Nevertheless, under all these personal laws, such marriage is not void but voidable.
Right to vote or hold public office
The person with mental illnesses doesn’t have the right to register in an electoral roll under the Representation of People Act 1950. Such mental incapacity has to be indicated by a competent court. Hence, such person is disqualified from holding public office under the Constitution of India such as the office of President, Vice-President, Members of Parliament, etc.
Right to make will
A person suffering from mental illnesses cannot make a valid will, except through lucid intervals under the Indian Succession Act, 1925. This is because the person cannot comprehend the nature of the testamentary document because of such illnesses.
Right to not be held liable for a criminal offense
The Indian Penal Code, 1860 releases the persons with the unsound mind from criminal liability. This is because of the fact that one of the most significant elements i.e. mens rea is missing from the offense. As there is no guilty mind, there can be neither criminal liability
4 major shift in law for people with mental illnesses
The law keeps on emerging as per the needs of society and so has the law for mentally ill people. The advancement in the legal field with respect to such people can be traced through the following points.
- After the invent of British in India, various statutes were enacted to deal with mental illness and their care and treatment. Some of the statutes which basically dealt with the demonstration of mental asylums and the procedures to deal with mentally ill people are enlisted below.
- The Lunacy (Supreme Courts) Act, 1858
- The Lunacy (District Courts) Act, 1858
- The Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886 and 1889)
- The Military Lunatic Acts, 1877.
- Throughout the first decade of the 20th century, public awareness about the pitiable conditions of mental hospitals accentuated as a part of the growing political awareness and nationalistic views spearheaded by the Indian intelligentsia. This led to the impersonation of the Indian Lunacy Act, 1912. This produced in central legislation to deal with mental illness. Nonetheless, the law dealt with the treatment and the procedural part and was not right-centric for the people suffering from mental illnesses.
- The post-second world war saw the adoption of the Universal Declaration of Human Rights (UDHR) by the UN General Assembly. This obliged a further change in law for protecting the rights of mentally ill people. Therefore, the Indian Lunacy Act, 1912 was replaced with the Mental Health Act, 1987. This Act administered with the provisions such as human rights of such people and protection of their property, among other things.
- The 4th major shift is the enactment of Mental Healthcare Act, 2017 which has rendered for different rights of people with mental illnesses and has been enacted to remove the defects in the earlier law.