Legal Reforms on the Mental Health Bill

Riya Sinha | Centre for Rights of Differently abled (Symbiosis Law School, Hyderabad) | 5th November 2019

The bill passed on mental health in 2016 was a huge step forward in changing the perception
of mental illnesses, and while the bill is comprehensive, it has its shortcomings, but not entirely
due to the policy itself. India has 1 to 2 percent of the union budget dedicated to the entire
health sector, out of which 0.06 percent of it is spent on mental health. With this little funding,
it is not possible to implement the policy. Mental health care cannot be provided at the grassroot
level if there isn’t enough funding for staff and infrastructure. The number of professionals in
India is also very less. But the policy also does have some flaws. The policy fails to consider
the position of those suffering from severe mental disorders (like schizophrenia and psychotic
disorder) who refuse to acknowledge their mental state, let alone be capable of making rational
decisions and giving consent in writing, regarding their treatment. It fails to provide alternate
courses of action based on the severity of the mental disease rather than having a generalised
process applicable across the spectrum. The bill also mainly focuses on the rights of persons
with mental illnesses only during treatment in hospital but is silent about care of persons with
mental illnesses in the community, and the way they are treated. The bill does not take into
account the contribution of family members, caregivers burden, isolation, frustration, and
violence they undergo because of persons with mental illness. The bill is silent on the role and
contribution of family members in providing care. Unlike the West, in India, family is the key
resource in the care of patients with mental illness. Families assume the role of primary
caregivers because of the Indian tradition of interdependence and concern for near and dear
ones in adversities, and there is a shortage of trained mental health professionals required to
cater to the vast majority of the population, hence, the clinicians depend on the family. Thus,
having an adequate family support is the need of the patient, clinician, and the healthcare
administrators. The bill however does not foster the need to support the family members in
providing care. The Bill also gives power to nominated representative to unlimited access to
the records of the persons with mental illness. Mental health professionals have expressed
reservations over sharing of information, describing it as ‘breach of confidentiality’, this issue
impinges on the fundamental right of privacy. Hence, there is a need to introduce a clause that
information shared will be only with family members and will be in verbal form only. Written
documents or medical records will be shared only with patients or legal authorities on obtaining
a written request. Apart from these, there are various other provisions that need to be amended,
because mental health is a serious concern and the cases of mental health have been rising
faster than ever in the past 30 years.