The Ministry of Health and Family Welfare in December 2009 initiated a process of amendments of Mental Health Act, 1987. The trigger for initiating this process was to bring the Act in consonance with United Nations Convention for Persons with Disability which India had ratified in 2007. Person living with mental illness are also seen as persons with disability under this International law. By signing and ratifying this law India has committed that it will take all measures to ensure the dignity and rights of persons living with disability (including mental illness)

This could have been an opportunity to correct the centuries of neglect and invisibilization of persons living with mental illness. Persons living with mental illness are excluded from everyday life, abused, exploited and abandoned. It is not out of ordinary to hear traumatic stories of persons living with mental illness being locked up in institutions, burnt while being tied to the pillars of a Dargah, losing jobs, being rejected in relationships, denied their inheritance and many a times not being treated as human beings. The present law unfortunately sanctions some of this discrimination. There is also a vacuum of mental health policy. There is not enough resource allocation. There are too few mental health professionals in India. This leads to the fact that ninety percent of those who need treatment, rehabilitation and support do not have access to it. Many are homeless and many are in institutions and are treated in a degrading and inhuman manner.

The other reality is that mental illness is a treatable illness. It does lead to disability but it is possible for a person living with mental illness to achieve his/ her full potential, even in face of the impairment of the brain function. What is needed to change the stories of agony and trauma to the stories of hope and recovery could have been provided in this law. The government in its wisdom has chosen not to do so and has decided to follow the oft beaten path of forgetting and dumping persons living with mental illness. This document records are Key Objections to the Mental Health Act Amendments. We seek your support to stop this process.

The amendments should have ensured Participation, Dignity and Non-Discrimination of persons living with mental illness but have failed to do so. The very process of drafting has been non consultative. There have been no pre drafting meetings with first right holders (persons living with mental illness), no capacity building on the issue and no analysis of the implications of UNCRPD on the lives of persons living with mental illness.

The current amendments continue to engage with the person living with mental illness only through the lens of their illness and not the lens of their rights. They only focus on needs as a patient and not needs as a member of society functioning in multiple roles. Mental Health Act, 1987 is historically a law that is for institutionalization and substitution of decisions of persons living with mental illness by third parties. It is diametrically opposite to the principles of the UNCRPD which talks of justice, liberty and equality. Amending the act to be aligned to the UNCRPD is trying to convert apples into oranges. It is not possible. There is growing view amongst the persons living with mental illness that the present act should have been scrapped in light of the UNCRPD.

A review of law should have addressed the attitudinal and environmental barriers faced by the persons living with mental illness. The current amendment process does not do so. Discrimination against any person on the basis of diagnosis of mental illness is a violation of the inherent dignity.

There are as many as fifty two other laws in India which restrict the rights of a person living with mental illness. If the laws which sanction the discrimination are not addressed either before or alongside amending the Mental Health Act then the person living with mental illness will continue to be treated as someone who has to be dependent on goodwill of the society rather than as a person who has entitlements and can make demands from the society.

Subsequent to the UNCRPD there have been a spate of new law and amendment processes that have been initiated. The Health Ministry is proposing to bring forward the Access to Health Bill. The Ministry of Social Justice and Empowerment is drafting a new law for persons with disabilities and the National Trust and the Rehabilitation Council of India have already sent the proposed amendments to the laws which govern them to MSJE as well. Each of these processes in running in isolation and oblivious of the other. All these laws will influence the lives of persons living with mental illness significantly. The governance structures in the Mental Health Act do not have any convergence with the governance and implementation processes of the Persons with Disabilities Act, the National Trust Act or the RCI Act. This means that the person living with mental illness and those working on the issue will continue to run between the two ministries and the there would be no reprieve from the present day inaction. We are told that the two ministries, the Ministry of Social Justice and Empowerment and the Health Ministry have not even exchanged a letter about the laws that will significantly affect the same people. What is even stranger is that there has been no substantive discussion on Mental Health in the Access to Health Bill presently being discussed by the health ministry and thus there is no substantive clause for Access to Mental Health in it. In a recent white paper being discussed on Health in India again Mental Health finds no mention! Is it ignorance, is it willful neglect or is it sheer laziness?

Promotion and protection of the human rights of persons living with mental illness is one of the key elements of UNCRPD. It has been envisaged in the UNCRPD that all persons living with mental illness should have the right to make decisions regarding their own life, live independently in the community, marry, raise families, and have access to education, work, employment and health. The amendments should have ensured all rights of the person but are unfortunately silent about most of the rights of the person. The amendments hide behind the non-apologetic view that this is a law which is for governing mental health facilities. If the primary law for a group of neglected and vulnerable people is to only address the admission process to the institutions then where do persons living with mental illness find their rights? The current amendments do not follow the principle of indivisibility of rights. The government cannot talk about rights of persons during the treatment process and not address any other rights. It is a mockery of UNCRPD.

For each right to be fulfilled it has to have a duty bearer, without a duty bearer no right can be acknowledged and fulfilled. The amendments do not define the government as the duty bearer to any of the civil, political, socio-economic and cultural rights of persons living with mental illness.

Lack of access to care in the community is a fundamental gap that leads to persons living with mental illness being abandoned and incarcerated. The government should have been made responsible unequivocally for ensuring that there are comprehensive community based services, which, all persons living with mental illness can access. Instead, the amendments have made the admissions to hospitals easier.

The focus of the present amendments is on regulation of mental health institutions or facilities. The Amendments mention that institutional care should be an option of last resort but the amendments do not answer the question as to what would be the option of first resort and how would institutionalization be prevented. This is a systemic collusion that ensures that persons living with mental illness will by default only be cared for in Institutions. In the absence of community care options one would be forced to resort to institutional care as first response. The lack of commitment to create sustainable range of services closer to peopleís homes would once again lead to an over burdened health system and family that would eventually mistreat, harm and violate all rights of the person.

In attempting to create public private partnerships in delivery of mental health services, the amendments should have outlined the framework of such relationships. It should have outlined the governmentís commitment to provide incentives and investment to private and non governmental service providers so as to start quality assured services with a focus on services for the poorest of the poor. On the contrary, according to the amendments, the government would charge for registration of mental health facilities and regulating them.

We recognize that in a crisis most people living with mental illness and their families will rather have treatment than dwell upon the issues of autonomy. However, these are not paradoxical needs and even in a crisis, dignity and choice of people living with mental illness needs to be maintained. It is our position that when mental health services are more accessible and available under the new law then the number of times we find people living with mental illness in a crisis will decrease and the need for involuntary treatment and the possibility of conflict around the process of the admission will also decrease. The amendments do not use the opportunity to establish that the service providers are duty bearers. The amendments process makes the mental health professional the judge, the jury and implementing agency. It reinforces a power hierarchy between those being treated and those who are treating. The latter cannot be questioned or held accountable by the former or even the State.

The components of mental health care have not been defined in the amendments. This means that the present restrictive model of care will continue. Mental Health Care and Services should have been defined as a public health issue and should have included preventive care, promotive interventions, awareness raising, stigma mitigation, access to psychological care, access to social care and integration and long term care in the community. There also should have been access to first response services, emergency services and intensive care services provided in a non-stigmatized and non-adversarial manner.

The questions that beg an answer, ‘Why is a significant proportion of the health budget not ear marked for mental health and why are most of the funds allocated for mental health used to fund institutional care, while increasingly there is a ‘communitization’ of physical health services?’ It is our position that there should be parity between resources allocated for health services and mental health services. The governmentís responsibility to address the present lack of resource should have been clearly outlined in the amendments. If this is not done in the primary legislation regarding mental health then it is quiet likely that it will be overlooked in other disability legislations as well.

Importance of the support that the family provides is overlooked in the amendments process. Families have been made the first in line for being the nominated representatives but there has been no responsibility put on the government to support the families living with mental illness. The stigma and isolation of the family will continue if support to family is not made a legal provision. Family members should receive the necessary support and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with living with mental illness. While the importance of the emotional support provided by the family cannot be undermined, the same can not be seen as a replacement to the state policy and programs. There are family support programs for other illnesses like HIV/ AIDS and Cancer in India.

At different places in the amended act mental illness is defined through ill defined terms like ‘grossly’ and ‘substantially’. It is a risk that this ‘diagnostic’ approach will lead to further labeling of people or further criminalization of people. For example, women living under the specter of violence are likely to be labeled and institutionalized. Similarly, men living independently and are homeless, who show any disorder of behaviors are more likely to be incarcerated or criminalized.

The Amendments bring under its purview children living with mental illness who should be seen as children in need of care and protection. These children were hitherto addressed by the JJ Act, which understands the evolving capacity of children, their rights and their disabilities. Moving children living with mental illness from the purview of a universal law for all children to a special law is a retrogressive step.

The amendments are likely to make the human resource gap for mental health permanent by defining the mental health professional in a restrictive manner. The proposed law should have focused on ensuring that more cadres of professionals could be added to the present list of professionals and through increased and accessible courses provided to these professionals, focused on quality training and supervised skill building. For example in U.K. there are increasing initiatives to ‘de-expertise’ mental health service through a program called Increasing Access to Psychological Services, which allows graduates in psychology with specific skill training to be mental health service providers.

Most importantly, the amendments should have led to challenging the assumption of incapacity regarding the persons living with mental illness by operationalizing the Article 12 (right to be recognized as equal before the law) of the UNCRPD. This should have been done in a manner that recognizes peopleís abilities to make decisions regarding themselves as a universal assumption. The amendments fail on this preliminary count as wherever there is a mention that a person has legal capacity in the amendments there is a caveat which says ’if the person is competent.’ So, as in the past the amended law denies the person with mental illness the right to be a holder of their own rights and says other people have to protect their interests. Declaring someone incompetent is suspending or taking away their rights; this has to be a judicial process and cannot be a clinical process.

The Mental Health Review Tribunal, a quasi judicial body, which is envisaged in the proposed amendments as a safe guard, is likely to work with in the parameters of what the professionals say. The proposed law gives the professionals the power to assess competence, declare incompetence and start involuntary treatment before any judicial review. It means the mental health professionals will be depriving persons living with mental illness of their liberty. Till now, this function was performed by the judiciary after listening to the person and the professionals. Now, the person is likely to already be labeled as incompetent by the professionals before he/ she meets then the Review Tribunal. The Review Tribunal is likely to be influenced by this label when they decide on the person’s plea. This implies the tribunal is more likely to listen to the nominated representative/ special representative rather than the person living with mental illness. It is this assumption of incapacity which the UNCRPD is trying to dismantle. A provision similar to this was present in the 1987 Act where under the special circumstances two psychiatrists with the request of the family member or friend could admit the person in to a psychiatric hospital and treat them against their will. This special circumstance provision had become the norm across India as the commonest method of admission. The amendment only sanctions the process of admission as the universal process of what it euphemistically calls ‘supported admission’. It is our position that role of the professional should be to limited to assess risk for self harm, provide support to the person and seek judicial guidance. Any curtailment of liberty can only be through a due process of law and with great caution which only an independent judicial hearing can ensure. In our view the review and redress process is a necessity, but it is best done through an automatic independent second opinion, access to legal aid and through existing civil court processes and a Disability Rights Commission. At best there can be a designated judicial officers/ courts for such matters in each District.

UNCRPD requires for the government to provide a range of support mechanisms to persons living with mental illness to help them determine their own lives. These mechanisms as envisaged in the amendments are nominated representative, special personal representative and advance directive. All these three support mechanisms as proposed by the amendments will substitute the person’s decision directly or indirectly. All three mechanisms are documented only to ensure the access to involuntary treatment primarily. Furthermore, the Amendments, do not state that the person can continue to take other decisions regarding their life even if they seek support for the specific decision for treatment.

The amendments should have ensured that persons living with mental illness are recognized as people who have the capacity to take their own decisions and have the right to be supported in taking these decisions. Their decisions will not be substituted by the others. The implementation of this right will change them from being viewed as ‘objects’ of welfare or medical treatment to being ‘holders’ of rights. It should have been ensured that persons with mental illness are able to lead their lives as full citizens who can make valuable contributions to society if given the same opportunities as others. Persons Living with Mental Illness like anyone else in India should be able to work, enter into relationships with consenting adults, manage their own financial affairs, form associations, represent other people, have equal access to information, inherit property, have children and live where ever they want to.