FROM COERCION TO COMPASSION: RETHINKING MENTAL HEALTH LAW

Mental health involves much more than just a medical question; it is also a human right. Mental health and human rights are inextricably linked; the protection of a person's human rights will protect their mental health, whilst the abuse of these rights increases risks of stigma and discrimination for the person involved. 

The right to mental health is recognized in international law and instruments such as the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, which affirms the right to care, to protection from harm, and to informed choice with respect to a person's treatment.  

In this context, the Mental Healthcare Act, 2017, in India is a significant milestone since it corresponds to mental health care being framed as a “right”, and recognizes that the dignity and autonomy of persons with mental illness will be respected, and that these individuals will not be subject to violence and discrimination. For example, Sections 4 and 5 are innovative provisions, establishing a right for the individual to make decisions regarding their own mental health care and also allowing individuals to create an advance directive, which is a written statement made by a person, ahead of time, indicating how the person wants to be treated. Nevertheless, involuntary admission to a facility and involuntary treatment are still allowed under certain circumstances, mentioned in sections 89 and 90. If an individual who poses a risk of harm to themself or others or cannot care for themself to the extent that it places them at risk of deterioration or serious harm should be involuntarily treated for their own protection, which overtakes the individual's right to consent and is left at the discretion of a mental health practitioner or a representative. 

Therefore, a significant gap remains with recent guidance from the WHO on the health and human rights of persons with mental health conditions and psychosocial disabilities (WHO-OHCHR, 2023) which provides the need for the elimination of coercive practices. Sections 89 and 90 of the Mental Healthcare Act, 2017, are originally designed to safeguard people with serious mental illness but can have risks for misuse. These clauses permit a person to be involuntarily admitted because they are deemed not to be capable of making an informed decision, one that could have originated from the opinions of mental health professionals and family. Misuse can occur in situations of property disputes, family feuds, or just plain patriarchal authority, whereby close relatives may admit an individual not out of care for their concern of well-being, but simply to remove them from the household or express or exert absolute control over an individual. 

Moreover, significant discretion is given to both psychiatrists and mental health facilities in regard to the determination for the admission of an individual involuntarily and potential for issues relating to the intrusion of the institution are clear here. Once an individual is subjected to the admission process, they may be unable to seek either independent legal aid or independent legal representation, creating tremendously difficult barriers to challenging wrongful admissions and confinement of one’s ability to exercise their rights. These gaps create a concern not only merely because it invades individual freedom, autonomy, and capacity, but also due to the potential to undermine the credibility of current mental health care systems. 

Many national endeavors exist around the world to enact changes to mental health laws, including more human rights oriented reforms, as has been the case in the UK. However, the Act about mental health from 1983 remains in place, yet following a 2018 review, a recommendation to include patient autonomy resulted in a draft Mental Health Bill (2022) to include further protections such as increased review periods for detained patients, an advance choice document, and independent advocacy.

In Australia, in exceptional cases, the Mental Health and Wellbeing Act 2022 provides provision for supported decision-making instead of completely relying on the decision of a third person. In South Africa, under the Mental Health Care Act, 2002, special groups called review boards are created that check and supervise when someone is admitted to a hospital for mental health treatment without their permission. The law also encourages treating people in their own communities instead of locking them up in hospitals. 

In India, the 2017 Act, although it is a progressive step towards human rights, however, medicalized and a paternalistic model where the decision for admission is made by a psychiatrist and a nominated member who is more often a family member creates a loophole for misuse as there There are no provisions like external oversight of an independent body or prior judicial review before depriving the person of their liberty. Instead of supported decision-making, this legislation is currently based on substituted decision-making. 

In order to deter families from abandoning their relatives after admission, the Chandigarh government introduced a controversial act requiring a ₹20 lakh security deposit as security. for admission to a new group home designed to support individuals experiencing mental illnesses with long-term assistance but not being able to live independently. This financial requirement faced backlash from disability rights groups and members of the public. Critics stated that the proposal was thought to be discriminatory and elitist and violated both the Human Rights, values, and spirit of the Mental Healthcare Act 2017 (MHCA). 

The policy guaranteed a right to mental healthcare and protection against inhuman treatment, as well as a guarantee of a dignified life without discrimination (Sections 18 and 21 of the MHCA). The Punjab and Haryana High Court intervened commensurate with public interest litigation. The court noted the Rs. 20 lakh amount was "exorbitant" and unexplained and questioned how individuals from an economically weaker section, who likely required these services the most, were to pay the baseline financial barrier. The Court instructed the administration to reconceptualize its policy in the rights-based context of the MHCA and consistent with India's obligations under the UNCRPD. 

This case illustrates how schemes designed without adequate rights-based safeguards and engagement with stakeholders can inadvertently entrench discrimination rather than address it.  Considering these types of situations and growing international discharge about aligning mental health systems with human rights, there is a clear need for meaningful legal and institutional change.

Through some important changes, India's mental health system can begin to comply in significant ways with the standards of international human rights law. Some of the main revisions include

Firstly, strengthening procedures for involuntary admission which include independent judicial or quasi-judicial oversight, appropriate evidential standards, protecting access to legal aid for individuals being involuntary confined, or put through civil commitment.

Secondly, moving from substituted decision-making to supported decision-making, which is based in part on supported decision making, which assists a person in making informed decisions about their treatment, rather than the person being absolved of their autonomy because it is believed to be in their best interest medically.

Thirdly, create more community-based options for the provision of enhanced involuntary admission to reduce reliance on institutionalization of mental health service delivery through investment in a local health workforce that can ensure mental health services can be delivered as part of a primary health care response, and fostering the development of local support and recovery networks in their own communities.

Lastly, including people with lived experience in policy decisions regarding mental health, specifically laws and practices, would help to better position individuals being impacted by laws and practices in making decisions about their use.