|Year : 2021 | Volume
| Issue : 2 | Page : 230-234
The role of policy and legislation in mental health care
Department of Law, PU, Chandigarh, India
|Date of Submission||07-Jun-2021|
|Date of Decision||13-Jun-2021|
|Date of Acceptance||13-Jun-2021|
|Date of Web Publication||30-Jun-2021|
Dr. Shipra Gupta
Department of Law, PU, Chandigarh
Source of Support: None, Conflict of Interest: None
The interface of policy and legislation is crucial in making quality mental health care accessible in an effective manner. Shortage of psychiatrists and other mental health personnel in India poses a huge challenge in delivering mental health care. The social context is instrumental in subjecting the mentally ill to human rights violations and discriminations with low awareness, illiteracy, superstitions, denial, and the prevailing social perception of mental illness in India. The enormity of problem requires a multipronged approach supported by a robust policy with specific achievable goals. Mental health policy relies on the legal framework to achieve its goals, and ameliorate the lives of persons with mental disorders. Policy and legislation are two complementary approaches for improving mental health care and services. International developments in mental health care have brought a paradigm shift from “charity-” to “rights-” based approach which is very much reflected in India's first-ever Mental Health Policy, 2014, and the newly enacted Mental Healthcare Act, 2017. This shift entails a “participatory” approach for developing community-based facilities, services, and rehabilitation provisions. An analytical approach has been adopted to gauge the likely outcome of the combined role of this ambitious policy and law in light of existing mental health-care infrastructure and “social context.” An attempt has been made to highlight the main concerns and challenges in effective implementation of new law while putting forth feasible solutions to attain the policy goals. The paper concludes on a note that legal and health measures should work in tandem and eventual convergence be directed toward the best interest of mentally ill persons.
Keywords: 2017, community integration, discrimination, legislation, mental health, Mental Healthcare Act, policy, stigma
|How to cite this article:|
Gupta S. The role of policy and legislation in mental health care. Indian J Soc Psychiatry 2021;37:230-4
| Introduction|| |
Health is a state of complete “physical, mental, and social well-being” and not merely the absence of disease or infirmity. Right to health has been recognized as a fundamental right by the Apex Court by giving wide interpretation to Article 21 of the Constitution of India. The right to health includes availability, accessibility, acceptability, and quality, being the interrelated elements. Inclusion of “mental health” in the broad concept of “health” speaks volumes of its significance. Mental health problems range from psychosocial distress to mental illness and mental disorder. There are various mental health concerns that need urgent attention. Exclusion, stigma, exploitation, discrimination, and human rights violations are associated with mental illness and need to be dealt with effectively by providing effective mental health services and efficacious laws. As per estimates, 150 million people require mental health care, both short term and long term. There is an urgent need of galvanized efforts in this regard keeping in view the expansive impact of mental health in all aspects of life, cutting across age, gender, and residence. The “Mental Health Survey 2015–2016” has reported that 15% of individuals above 18 years are suffering from mental disorder that requires active intervention. The enormity of problem necessitates strategic, integrated, and holistic policy as well as effective legislation for addressing the current mental health issues prevailing in our country and also prioritizes mental health in the developmental agenda.
There appear to be two different but closely related issues – one is the care and health aspect and the other is protection of various rights, including the civil and political rights of the mentally ill person. While the psychiatrist is concerned primarily with the diagnosis of mental disorders and the welfare of the patient, the court is often mainly concerned with determination of competency, dangerousness, diminished responsibility, and/or the welfare of society and also with providing legal protection for violation of the rights of mentally ill persons. From the legal perspective, it is important to balance individual interest with the larger public interest. A person suffering from mental illness, depending upon the severity in terms of harm to oneself and to others, is of crucial concern from the legal perspective. However, the primary concern of the medical fraternity has to be undeniably toward the medical wellness of the person affected by mental health issues, and all those people associated with the care and treatment of the person concerned. Legal capacity of a person with mental illness has been recognized in different contexts with the overriding aim of protecting their interests considering their vulnerable state of mind. The susceptibility of mentally ill persons to neglect, discrimination, violence, and abuse makes it imperative for a protective mechanism to be in place.
In a welfare state, the protection of the rights of mentally ill persons is state responsibility. Therefore, mental health concerns and state intervention through law are closely associated. Mental health care, though primarily a health issue, involves various crucial legal concerns. In order to match up with the international standards in mental health care, an effective legislation and other legally prescribed mechanisms are imperative. Policy and legislation are the two complementary approaches for improving mental health care and services. However, their success depends upon various factors such as political will, adequate resources, appropriately functioning institutions, community support services, and well-trained personnel.
Recent advances in the mental health problems around the world have not only given visibility and recognition to such problems in India but have also awakened our government to come up with its first-ever mental health policy and a much-required law aligning with the global developments. The viability and success of these policy and legislative measures requires a pragmatic approach in identifying the loopholes and challenges in the existing social matrix. The paper makes an attempt to analyze and assess the combined effect of the Mental Health Policy, 2014, and the Mental Healthcare Act (MHC Act), 2017, in light of existing mental health-care infrastructure and “social context” in alleviating the miseries of the mentally ill so as to highlight the main concerns and challenges in effective implementation of new law while putting forth feasible solutions to attain the policy goals.
| Methodology|| |
Keeping in view the recent developments that have taken place in India toward addressing mental health issues and concerns, an analytical approach has been adopted to ascertain the feasibility and efficacy of the Mental Health Policy, 2014, and the MHC Act, 2017. Being a doctrinal study, heavy reliance was placed on the relevant internet sources for academic discussion on the interpretation of the law and policy, government documents, and national and international official documents. In addition, print sources were also referred for the statutory provisions and the judicial decisions.
| The Role of Policy and Legislative Measures|| |
One of the important ways to improve the lives of people with mental disorders is through policies, plans, and programs that lead to better services. In order to achieve positive outcomes, promotion of mental health, prevention of mental disorders, and treatment and rehabilitation are complementary strategies essential in mental health policy. Efficacious implementation of such policies and plans, requires effective legislation aligned with internationally accepted human rights standards and good practices. While realistic law with realistic and attainable goals has the potential of making “positive difference” to the lives of people with mental disorders, unrealistic legislation with unrealistic goals may lead to diversion of resources from service development due to unnecessary expenses. Resource implications are very crucial for any legislation for positive outcome.
Progressive legislation can be an effective tool to promote access to mental health care, to promote and protect the rights of persons with mental disorders, and to implement mental health services. Legislation offers an important mechanism to ensure adequate and appropriate care and treatment, protection of human rights of people with mental disorders, and promotion of mental health of populations. The objective of mental health enactments generally remains toward the concerns and protection of people with mental disorders as well as toward the rights and protection of community to which the person with mental disorder belongs. This requires the synthesis and understanding of both the perspectives that would surely lead toward achieving excellence in the mental health. Thus, effective implementation of mental health legislation should ensure the accountability of the service providers facilitating the compliance with the mental health policies and directives.
The World Health Organization (WHO) has developed the following ten basic principles for mental health-care law:
- Promotion of mental health and prevention of mental disorders
- Access to basic mental health care
- Following internationally accepted principles for mental health assessments
- Provision of least restrictive type of mental health care
- Right to be assisted in exercise of self-determination
- Availability of review procedure
- Automatic periodic review mechanism
- Qualified decision-maker
- Respect of rule of law.
| Recent Developments in Mental Health Care in India|| |
In the contemporary world, there has been a paradigm shift from custodial care to community care and from a “charity-based” to “rights-based” approach due to the following reasons: (a) proactive legislation; (b) advances in medical technology in assessment and treatment of mental disorders; (c) the human rights movement; (d) WHO's broader and more holistic definition of health; and (e) promotive, preventive, curative, rehabilitative, and mitigation of disability aspects of health have given a new perspective into the care of mental disorders and have led to the review of mental health legislation worldwide. Law dealing with mentally ill persons should thus be reflective of this paradigm shift.
| Mental Health Policy, 2014|| |
Recently, the country's first-ever Mental Health Policy, 2014, was adopted by the Ministry of Health and Family Welfare. The Policy envisions to provide a rights-based framework to promote mental health, prevent and enable recovery from mental illness, promote de-stigmatization and desegregation, and ensure the socioeconomic inclusion of persons affected by mental illness by providing accessible, affordable, and quality health and social care to all persons during their lifetime. Both medical and nonmedical aspects of mental health issues have been addressed in a comprehensive manner. Integration of general health and mental health; intersectoral coordination to address illness and disability; promotion of human rights; reforms in mental hospitals; special attention to vulnerable and excluded members of community like the homeless, women, and children; equity in terms of education, employment, housing, and social welfare needs; support for caregivers, etc., are some of the important features of the newly adopted Mental Health Policy. The Policy is “glocal” in nature and reflects global thinking in addressing ground realities and conditions peculiar to the Indian context. It identifies strategic areas for action, such as effective governance and accountability, promotion of mental health, prevention of mental disorders and suicide, universal access to mental health services, enhanced availability of human resources for mental health, community participation, research, monitoring, and evaluation. The Policy is inclusive in nature and incorporates an integrated, participatory, rights- and evidence-based approach. It envisages dynamic engagement and is expected to accommodate future thinking and developments in this field.
The policymakers are, however, wary of various cross-cutting issues having adverse impact on the objectives and goals intended to be achieved through the policy strategies, the inter-linkages between mental health and issues of poverty, homelessness, mentally ill orphans, elderly care givers, other marginalised population like victims of various sexual crimes etc.; lack of adequate funds; support for families and care givers; limited access of institutional care and inadequate staff and funds; challenge of multi-sectoral collaboration etc. add to the vulnerability of mentally ill.
| Legislative Development|| |
Legislation is an important mechanism to ensure appropriate, adequate, timely, and humane health-care services. The fundamental aim of mental health legislation should be to protect, promote, and improve the lives and mental well-being of its citizens in general besides protecting the rights of mentally ill persons without discrimination. The initial mental health legislation in India aimed at alienating the “dangerous” patients with a view to safeguard the public from them rather than promoting the rights of persons with mental disorders as citizens. This has largely been due to inadequacy or unavailability of treatment. Public awareness about the deplorable conditions of the mental hospitals during the first decade of the 20th century extended the concern of “preventing the society from danger of mentally ills” to “preventing a sane person being admitted” in such asylums. This resulted in the enactment of the Indian Lunacy Act, 1912. After the Second World War, the Universal Declaration of Human Rights was adopted by the UN General Assembly. The Indian Psychiatric Society came into existence in 1947 and considered the Act inappropriate for the mentally ill. After a long period of time, the Mental Health Act, 1987, came as a progressive legislation of the times keeping up with the international developments and concerns in the field. The earlier laws governing the mentally ill ignored human rights aspects and were concerned only with custodial issues. This 1987 Act replaced various offensive terms with more sensitive and socially acceptable terms. The term “lunatic” was replaced with “mentally ill person,” meaning “a person who is need of treatment by reason of any mental disorder other than mental retardation;” “criminal lunatic” was replaced with “mentally ill prisoner;” and “psychiatric hospital/nursing home” was replaced with “asylum.” Despite various positive features, the Mental Health Act, 1987, could not protect the rights of PMI and promote their access to mental health care in the country.
| The Mental Healthcare Act, 2017|| |
International mandate for equal treatment of mentally ill persons obliges the international community to think of ways and means to bring them into the mainstream. Ratification of the United Nations Convention on the Rights of Persons with Disabilities, by the Government of India in October 2007, made it obligatory on the Government to align the policies and laws of the country with the Convention. This prompted the Government of India to replace the Mental Health Act, 1987, with a new legislation to keep pace with the international standards in mental health care. The MHC Act, 2017, brings in a paradigm shift from “collective rights” to “individual rights” approach. This Act confers “individual rights” to PMI while undermining the “collective rights.” The MHC Act, 2017 has provided statutory recognition to the right to access mental healthcare facilities, right to equality and non-discrimination and right to community living and protection from cruelty. It has introduced the provision for advance directive and nominated representative besides addressing the concerns of care givers. The Act clearly lays down the duties of appropriate government, central and state mental health authorities, mental health establishments, mental health review commission; and also provides procedure for admission, treatment and discharge of PMI.
The Act aims at the following: (i) safeguard and promote rights of the PMI in institutional health-care delivery and in the community; (ii) provide least restrictive environment in health care, treatment, and rehabilitation of the PMI, without violating their rights and dignity; (iii) fulfill constitutional obligations and the obligations under various International Conventions ratified by India; (iv) regulate public and private mental health sectors within a rights framework to achieve the greatest public health good; (v) improve accessibility to mental health care by mandating sufficient provision of quality public mental health services and nondiscrimination in health insurance; (vi) establish a mental health system integrated into all levels of general health care; and (vii) promote principles of equity, efficiency, and active participation of all stakeholders in decision-making.
| Challenges in the Implementation of the Act|| |
The practical hurdles in actually carrying out the benign objectives of the MHC Act, 2017, pose a huge challenge. The Act seeks a complete overhaul of the mental health-care system that would require infrastructural development by establishment of various new bodies such as Mental Health Review Commission and Central and State Mental Health Care Authorities. The Act also contemplates provision for various services such as halfway homes, shelter homes, and community-based shelters. This would entail a huge infrastructural, economic, and human resource burden on the respective Governments. Moreover, the adoption of “community integration approach” by the Act in dealing with the mentally ill, requires change of mind towards them at the very first place.
The implementation of this ambitious legislation apprehends the following practical challenges:
First, the lack of funds for setting up the desired infrastructure within a limited span of time is a huge impediment in developing community-based facilities, services, and rehabilitation programs.
Second, the paucity of mental health professionals that stands at approximately 10,000 professionals of all categories for one billion population; limited mental health service infrastructure with about 30,000 psychiatric beds for over a billion population; limited investment in health by the Government (estimated public sector expenditure on health is only 17% of total health expenditure); and problems of poverty (about 30% of population live below poverty line) and low literacy with associated stigma and discrimination for persons with mental disorders. These limitations make access to mental health services far from realistic, especially in the near future.
Finally, the likely response of newly introduced provisions of “nominated representative” and “advance directive,” the success of which remains controversial and lacks unanimity. In the Indian social context, these provisions might leave a bitter taste due to the family members being the primary caregivers.
| The Way Forward|| |
The effective implementation of the provisions of this new Act makes it imperative to adopt both long-term and short-term measures in order to overcome the obvious challenges in its implementation. Inadequate funding for health allocation to activities for mental health promotion, prevention, and treatment can be dealt with by sharing financial burden with the nongovernmental organizations by encouraging and supporting their work.
Collaboration between government and nongovernmental sectors should be encouraged. Funds should be allocated to mental health in various ministries and departments such as health, social welfare, and women and child development. Thus, additional funding may not be required for many social sector programs where PMI are also integrated as beneficiaries of existing programs.
Shortage of mental health nurses can be dealt with by starting psychiatric nursing and mental health nursing courses such as Masters and Diploma to increase the supply of trained cadre. A clear defined role with required skill and training to deal with common and severe mental disorders should be outlined so that nursing services are appropriately utilized.
The Auxiliary Nurse Midwives should be offered an opportunity for skill upgradation in mental health for their involvement in the mother, child, and adolescent mental health services. Ministry of Health and Family Welfare, Government of India, National Mental Health Policy of India, New Pathways new Hope.
As contemplated by the Act, National Commission on Mental Health should be established at the earliest to oversee, support, facilitate, monitor and review mental health policies, plans and programs in a continuous manner. It is hoped that the task force comprising of the professionals from mental health, public health, social sciences, the judiciary and related backgrounds that work closely with the Ministries of Health at the national and state levels can provide strategic directions for mental health care programming to ensure speedy implementation of programs.
The critical role of mental health legislation is incontrovertible in enhancing the lives of mentally ill persons. Legislation is an enabling tool to achieve the policy objectives. Legal and health measures should work in tandem and eventual convergence be directed toward the best interest of mentally ill persons. The social context remains central to the successful implementation of this legislation because of the community integration component. The author believes that efforts in the right direction will ensure the effective implementation of the Act to achieve the policy goals.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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