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GUEST EDITORIAL  
Year : 2016  |  Volume : 58  |  Issue : 2  |  Page : 114-118
Mental health legislation: A journey back to “madhouses era?”


Department of Psychiatry, Jubilee Mission Medical College and Research Institute, Thrissur, Kerala, India

Click here for correspondence address and email

Date of Web Publication10-Jun-2016
 

How to cite this article:
Antony JT. Mental health legislation: A journey back to “madhouses era?”. Indian J Psychiatry 2016;58:114-8

How to cite this URL:
Antony JT. Mental health legislation: A journey back to “madhouses era?”. Indian J Psychiatry [serial online] 2016 [cited 2019 Nov 21];58:114-8. Available from: http://www.indianjpsychiatry.org/text.asp?2016/58/2/114/183783


The authors of the Mental Health Bill-2013[1] seem to think that the new Law would be a “Magna Carta” to liberate all the mentally ill, all over the country! Their logic appears to be that with the word “care” inserted in the title, the new Law would ensure that every mentally ill person in India would enjoy the Governments' benevolence! However, ground realities are far from this. In an earlier write-up, this scribe had discussed briefly about some serious hassles which might arise, because the Bill has such a wide and textbooklike definition of mental illness.[2] The over-inclusive definition would lead to a situation where even those with “minor” disorders would get “stamped” as “mental.” And, as a result, their whole family would be forced to face many stigma-related problems all their lives. In this situation, people would be ready to forsake any Government favor rather than admit to having a family member with mental illness!

Many authors have brought out their different viewpoints regarding the Mental Health Bill-2013.[3],[4] Many criticisms remind us of the importance of definitions of various terms used in a legislation being very clear-cut and unequivocal. However with regards to the present Bill, the definition being over-inclusive is not its only problem. The very idea of going for a definition of “mental illness” rather than defining “persons with mental illness (PMI)” is itself not a desirable approach. “Illness,” being a nontangible concept, could be useful only in a clinical situation. In a Law, various enforcement agencies as well as others have to locate the “right” candidates and deal with them as per the provisions that are laid down. To make their task easy, it would have been better to pinpoint “PMI” by having a good definition for it.

In mental health legislations, right from the beginning, this principle of going for tangible concepts used to be followed. Even the “Indian Lunacy Act,”[5] which got enacted more than a century ago, has precise definitions of various terms. This ensured that the number of persons who got included as “mentally ill persons” was kept to the minimum. The big advantage is that it excludes from the preview of the Law not just those with “minor” disorders, but even many victims of “major” mental diseases. And, by that one measure, the 1912 law ensured that all of them could live with dignity, exactly the way all medically ill persons do, avoiding all stigma related hurts and humiliations.

Though the Mental Health Act-1987 arrived as an improvement on the old law and has many positive aspects, unfortunately, it has some shortcomings as well. The inclusion, in the preview of the law, of private hospitals and nursing homes where psychotic patients are admitted with a bystander, is one such shortcoming. This has been pointed out along with critical comments on certain other inadequacies in that particular Law, way back in 2000.[7] However, the authors of the present draft Bill have not cared to consider those criticisms, while drafting the new Bill. This issue of creating unnecessary problems by including private facilities where psychiatric patients are admitted, in the preview of the new Law, is also criticized in a recent writing.[8]

Even while defining mentally ill persons in a restrictive manner, thereby excluding as many persons as possible, it is essential to ensure a “legal umbrella”, for two clear-cut sub-groups of major psychotics. It is for their welfare as well as for the safety of the society. First, the legal cover is needed for “acute psychotics” who refuse treatment, even while being a threat to themselves or others. Second, a Law with protective provisions is needed for “chronic psychotics,” who face the risk of being neglected, ill-treated, or exploited, sometimes even by their close relatives!

The major problem with the 2013 Bill [1] is that firstly it is not having any clarity about these two groups that need to be brought under the legal net. And even more importantly, it is not fair or even-handed while dealing with the two groups, namely acute and chronic psychotics. In the case of acute psychotics the Law, though giving an appearance of being patient-friendly, in reality stands against their welfare. A typical example is the case of patients of “Paranoid Psychosis.” While “paranoids” may superficially look quite normal, they often harbor systems of very serious delusional beliefs such as “so-and-so is hatching an elaborate conspiracy to murder me.” The danger here is that such a patient may act on his morbid ideas and may kill his “enemy” in the delusional system! Moreover, sometimes the “enemy” may be a very close relative such as the spouse.

One aspect which would worry everyone with some understanding about the existing mental health scenario in India is that the proposed Law, with its provisions such as “advance directive” and “nominated representative” assumes that patients including paranoid psychotics have the wisdom to make right treatment decisions for themselves! Another equally dangerous aspect is that the Law delegates to a lay body, namely the District Mental Health Board, the authority to intervene when disputes arise and decide on its own about what is wrong with the patient and decide on management! When the Law itself allows this kind of decision-making, without requiring the Board to obtain a psychiatrist's expert opinion, it may sometimes lead to serious mistakes, especially while dealing with patients having illnesses such as Paranoid Psychosis.

For one thing, if the draft Bill becomes Law, a paranoid psychotic would feel quite empowered with a Central Act on his side. He would argue his “case” like an accomplished criminal lawyer and convince the lay body that he has no mental illness! Moreover, the patient's family would completely fail to convince the lay body, namely the District Mental Health Board, about the true nature of their ward's illness. A sad consequence of this is that the Board taking the side of the patient, may even conclude that a conspiracy was hatched between the family and a psychiatrist to lock him/her, a “normal person”, in a mental hospital!

While provisions such as “advance directive” and “nominated representative” in Law may appear quite straight forward to its proponents, for a litigant paranoid psychotic these are powerful weapons to avoid getting treated. The civil society has to appreciate that in psychiatric practice, where some patients lack insight completely; others have to take decisions for them. Forcible admission without a patient's consent also has to be done at least on some rare occasions. A psychiatrist is required to do it; taking into consideration, the various genuine concerns expressed by a patient's family, and also making judicious application of his mind. It would be quite gracious on the part of our Lawmakers if they care to understand that psychiatrists too are as concerned as anybody else, about human rights issues.

To keep a vigil on psychiatrists, regulatory bodies are always there, from within their profession itself. Furthermore, statutory bodies such as Medical Councils and the Honorable High Courts, with their writ jurisdiction, would make sure that actions of the concerned professionals are legal and just. This is how all professionals are controlled all over the world. There is no reason why in India Lawmakers should think that psychiatrists should be treated differently.

While the idea of preventing “illegal” admission of citizens to mental hospitals is a commendable one, the Government must not forget its duty toward families having an acutely psychotic member. A legal route must be available for them, to get their dear one admitted to a hospital, sometimes even against his/her will! Unfortunately, the draft Law is quite insensitive about the miserable predicament of such families. Many provisions of the draft-Law make an admission of unwilling patients just impossible. Here, the new Law is going back from the position of the 1987 Act, which currently enables a family to get admission without much hassle. It has a section on admission under special circumstances, which enables two psychiatrists to admit a person against his will, provided they follow prescribed procedures. Here, a provision for judicial review is also available to make sure that no wrong detention or forced treatment ever takes place.

While the 2013 Bill displays extraordinary concern toward “acute psychotics” (especially their “right” to refuse treatment), in striking contrast, it takes an altogether different approach in the case of “chronic psychotics.” The draft-Law just closes its eyes toward all their miseries, despite the fact that on a modest estimate, we have over a million chronic psychotics in the country! They are among the most helpless of all human beings. They lack initiative and drive to obtain even basic necessities. A section among them lacks the ability to even protect themselves from common physical dangers! At present, most of them live in conditions that are less than acceptable to eventually die prematurely.

If any country decides to have a mental health care Law, it must be primarily to protect the basic human rights of these “chronic psychotics.” The State has a responsibility not only to give them total care, but also must ensure that such decent care is given throughout their lives by putting in place a good surveillance system. This whole endeavor must be viewed as a mega national project, which needs to be given utmost priority. We must be conscious of the fact that as of now we do pretty little for the sake of our chronic psychotics. We do not have a system in place to give proper training to even the dedicated ones among our caregivers! Added to this, these days we have a new phenomenon of many persons without any aptitude, or sometimes with ulterior motives, entering this field!

Of the large number of victims of major psychoses in the country, excepting those who can access expensive services in the private sector or make use of the meager facilities in the Government sector, many drag on with their sub-human existence, without proper treatment and care. Many families in their states of utter helplessness often use physical restraints as a method of “managing” patients! And some would totally abandon and drive out their dear ones, from their homes.

Because of the inherent magnitude and sheer complexity of this issue, the main thrust area for the Government must be on the preventive side, namely making sure that psychotic patients do not deteriorate to chronic states. Both early diagnosis and continued vigorous treatment are equally important. For this to happen, lifting the morale of psychiatrists is all important. Furthermore, governmental functionaries at various levels must get geared up to support families in their treatment efforts. Most importantly, legislative bodies must be persuaded to give the needed budgetary support to this mega national project. Only with such concerted action can one hope that the poor and marginalized sections of the country would ever get proper treatment.

Today, issues such as stigma and lack of proper governmental support push many families to states of utter helplessness. Many patients, especially those from poor socio-economic backgrounds, deteriorate and reach a kind of “junkie” state of chronicity, because they fail to get any treatment at all, early on. However instead of studying, the variety of problems that contribute to the poor early-phase management of psychotics, which eventually lead to chronic states, all that the Government wants to do by its 2013 Bill is to create a “legal juggernaut” to leash psychiatrists in the whole country! And of course, with its utopian ideas such as “advance directive” and “nominated representative,” the draft Law takes the side of those acute psychotics who want to resist getting treated by any means!

Our Lawmakers have to understand that their new Law, in its present form, would put many fresh roadblocks to proper mental healthcare delivery in this country rather than improve matters. The 2013-Bill has just nothing to offer to the lakhs of “chronic psychotics” in the country. In the Bill, there is no mention about protecting the human rights of chronic psychotics or about ensuring that their caregivers treat them well; but at the same time provisions are laid down to give legal protection to those who run “rehab-homes” and the like. For example, unless the licensing authority grants license within a stipulated short time it would be presumed that a license is already granted to that “institution!” It is as though rather than protecting the human rights of chronic psychotics, the 2013 Bill is concerned about protecting the rights of NGOs and the like to run “care homes,” in whatever manner they like!

It has rightly been pointed out that “the legislation for PMI” is meant for PMIs and not for mental health professionals or activist groups.[8] Even though the 2013 Bill has a very high profile Central Commissioner and District Mental Health Boards to remedy grievances, these bodies are unlikely to be of any use as far as chronic psychotics are concerned.

One wonders whether the authors of the new Law imagine that chronic psychotics would be taken care of by relevant provisions in the “Persons with Disabilities Act” of 1995.[9] However, a close reading of that particular Act as well as the Rules framed thereunder clearly indicates that the Disabilities Act is very inadequate to secure the needs of chronic psychotics. Even though “mental illness” is mentioned as one of the disabilities, provisions of that Act cannot provide the professional care that chronic psychotics would need. Indeed, State Governments are required to frame rules, within the provisions of the Persons with Disabilities Act, to give it teeth. True, the Government of Kerala has indeed framed rules in 2012, specifically to cover Centers for Psycho Social Rehabilitation of Mentally Ill Persons.[10]

However, it is quite disappointing to see that neither the central Act of 1995 nor the Rules of Kerala has provisions that are adequate to protect creature comforts, safe care, and human dignity of inmates of care centers. Coordination committees are to be constituted both at the national level as well as at the State levels, as per the Disabilities Act. An honorable Minister chairs, and over a dozen Government Secretaries as well as many senior Government officials are the members of the Stat-level Coordination Committee. When one comes to the rules framed by the Kerala Government, specifically for mentally ill persons, an entire Chapter IX is about “Monitoring and Evaluation Mechanisms.”

As per these Rules, “advisory boards” are to be created at the state level, district level, and institutional level. The state level advisory board has 23 high--level Government officials (including five Government Secretaries) while in the district--level advisory board, the District Collector is the Chairman and has 11 members. Now the problem with such high profile committees or Boards is that it is quite unlikely that they would ever get to know about the miserable plight of chronic psychotics incarcerated in various “Psycho Social Rehabilitation Centers,” in many remote places in the country, unless someone tells them.

Further, as a measure to protect the human rights of inmates, all that the rules prescribe is that every psycho-social rehabilitation center has to display the name, address, and phone numbers of six specified officers. This strategy is to enable inmates to redress their grievances by approaching one of these officers. However, the point that should disturb every mental health worker is how would a typical inmate of a rehab center have the drive or “reality contact” required to make use of such a “legal window” for self-preservation?

Now when one comes to the institution-level advisory board, it turns out to be a total eyewash. There is an “in-house” board to monitor it with the psychiatrist attending the institution as its chairman and the “chief functionary” as its convener! How could one expect that such a board would find fault with its own functioning and remedy grievances of inmates of a Rehabilitation Center that they are running? Typical patients in rehab homes will not have the minimum insight needed even to realize that he is being ill-treated, leave alone appealing against it! With the chief functionary of the center itself as the convener of the monitoring body, what kind of relief can a patient ever hope to get from such boards?

It is here that one must appreciate the importance of having a watchdog body like a “board of visitors” with quasi-judicial powers, for each and every institution that admits mentally ill persons. This is the system that we had right from the days of the Indian Lunacy Act 1912. Even the smallest institution for mentally ill, acute or chronic, (even with two inmates) was required to have such a board of visitors. With members who are from the same neighborhood as the “Psycho Social Rehabilitation Center” or “Psychiatric Hospital,” the board of visitors would feel committed to ensure that in such “Centers” human rights violations do not take place.

Having experts from various streams such as Psychiatry, Law, and Social Work would ensure that their collective wisdom would ensure good quality care for inmates. Monthly meetings of the board of visitors and their frequent visits etc., would keep the management of such “care-homes” under proper surveillance. The board of visitors would also see that facilities prescribed by the State Mental Health Rules are provided for the inmates of each home.

A very dangerous tendency which is manifested in the Rules framed by the Kerala Government for its Rehabilitation Centers is that it has laid down different admission criteria for persons who are orphaned and those who are not orphaned! While the procedure for admission of a non-orphaned person has to be done only on a voluntary basis, with a psychiatrist's report and so on, in the case of orphaned persons everything gets diluted. A psychiatric social worker, a psychologist, police, or statutory authority makes out that he is an “orphaned person” and then he gets admitted! Nobody is required to make out that he has a mental disorder! A psychiatrist is required to see the patient only within 10 days! Moreover, imagine that for the purpose of this rule framed by the Government of Kerala, anyone whom the Government notifies as a psychiatrist is a psychiatrist! How could orphans be treated differently in India, where the Constitution lays down that everybody has to be treated equally by the Law?

Why cannot orphans be admitted to orphanages, with its regulations to protect human rights? Why not continue to have the stipulations that are there in the 1987 Mental Health Act, in the matter of running facilities for treating or caring for mental patients, even if the place is a rehabilitation center? Admitting chronic mental patients without bystanders to private institutions could lead to a very dangerous situation. Unless qualified psychiatrists are involved in overseeing their functioning and unless a board of visitors is there to keep a continuous vigil, the whole field may turn out to be an area of gross violations of basic human rights.

Here, it is worthwhile for us to recollect the situation that prevailed in the United Kingdom in the 18th century.[11],[12],[13] There, private madhouses flourished all over, mostly run by individuals whose motives were just to make money out of human miseries! And, when public criticism grew to the level of a national outcry, a select committee was appointed by the House of Commons. In 1763, the committee recommended: “That the present State of the private madhouses in this kingdom requires the interposition of the legislature.” Later, based on the recommendations of that committee, the Madhouses Act-1774 was passed by the parliament. With a sense of history, we must recall here that all over the world, it was at that time that mental hospitals came up, starting with “Bethlehem” in England. The whole idea was to rescue the mentally ill from unscrupulous scoundrels who were running the places which were known in those days as “Madhouses.”

The 1828 Madhouses Act, as well as the 1845 Lunatics Act, were improvements of the 1774 Madhouses Act. The origin of all mental health legislations in Anglo-Saxon jurisprudence can be traced to the 1774 Madhouses Act. It is appropriate that we remember that our Lunacy Act 1912, as well as the Mental Health Act 1987 are only further improvements of the Madhouses Act. The issue is that historically, the whole point about mental health legislation is primarily to protect chronic mental patients from atrocities and cruelties being inflicted on them in the name of rendering them care. Moreover, let us be conscious of the fact that our present-day Rehab Centers also, like the Madhouses of the 18th century, could be used as illegal jails to dispose of unwanted or inconvenient relatives!

Essentially, mental health legislations are to prevent crimes like these. Here, it is relevant for us to recall that the Madhouses Act assigned the job of overseeing the working of 18 madhouses in London and its suburbs to the Royal College of Physicians (as there was no Royal College of Psychiatrists at that time). Only the remaining ones were required to be supervised by Magistrates. The point to be noted here is that the House of Commons of the United Kingdom, in the 18th century in its wisdom, was convinced that medical expertise is useful in overseeing the working of their private madhouses; which these days are known by the name “Rehabilitation Centers.”

However at present, it is as though the authors of our current Mental Health Care Bill do not believe that they need to make use of the expertise of psychiatrists to oversee the management of chronic psychotics. They seem to think that time-tested institutions like “board of visitors” are no more required, to ensure a decent quality of life to inmates of homes for chronic psychotics!

In the manner in which we see “Rehab Centers” and “Care-Homes” sprouting all over the country, it is time psychiatrists in India ask themselves, “In the care of the mentally ill, are we going backward, to that period of history when Madhouses flourished?”

 
   References Top

1.
Seventy-Fourth Report on the Mental Health Care Bill-2013, Rajya Sabha Secretariat, November; 2013. Available from: http://www. 164.100.47.5/webcom/MainPage.aspx. [Last accessed on 2016 Jan 19].  Back to cited text no. 1
    
2.
Antony JT. The mental health care bill 2013: A disaster in the offing? Indian J Psychiatry 2014;56:3-7.  Back to cited text no. 2
[PUBMED]  Medknow Journal  
3.
Kala A. Time to face new realities; mental health care bill-2013. Indian J Psychiatry 2013;55:216-9.  Back to cited text no. 3
[PUBMED]  Medknow Journal  
4.
Patel V. Legislating the right to care for mental illness. Econ Polit Wkly 2013;48:48-9.  Back to cited text no. 4
    
5.
Indian Lunacy Act 1912: [IV of 1912] Manager of Publications. Delhi: Government of India; 1951.  Back to cited text no. 5
    
6.
Mental Health Act 1987; With Short Notes and With Central MHA Rules1990. Delhi Law House; 2003  Back to cited text no. 6
    
7.
Antony JT. A decade with the mental health act, 1987. Indian J Psychiatry 2000;42:347-55.  Back to cited text no. 7
[PUBMED]  Medknow Journal  
8.
Narayan CL, Shikha D, Narayan M. The Mental Health Care Bill 2013: A step leading to exclusion of psychiatry from the mainstream medicine? Indian J Psychiatry 2014;56:321-4.  Back to cited text no. 8
[PUBMED]  Medknow Journal  
9.
Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Bare Act. Universal Law Publishing Co. Pvt. Ltd.: Delhi; 2005.  Back to cited text no. 9
    
10.
Kerala Registration of Psycho-Social Rehabilitation Centres of Mentally Ill Persons Rules 2012 and Scheme for Rehabilitation of Destitute Mentally Ill Persons. Government of Kerala: Social Welfare Department Notification Dated, 24 July, 2012.  Back to cited text no. 10
    
11.
Roberts, Andrew 1981. The 1763 Committee on Madhouses and the 1774 madhouses Act. The Lunacy Commission. Availabe from: http://studymore.org.uk/01.htm Middlesex University Web, London.  Back to cited text no. 11
    
12.
Wikipedia contributors. 'Madhouses Act 1774'. Wikipedia, The Free Encyclopedia. Available from: https://en.wikipedia.org/w/index.php?title=Madhouses_Act_1774&oldid=699041215. [Last accessed on 19 January 2016].  Back to cited text no. 12
    
13.
Simon Jarrett. The Age of the Madhouse Home of the Well Attired Ploughman: English Heritage. English Heritage Disability History Web Content 2012. Available from: https://content.historicengland.org.uk/content/docs/research/disability-in-time-and-place.pdf. [Last accessed on 2016 Mar 04].  Back to cited text no. 13
    

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Correspondence Address:
Dr. James T Antony
Department of Psychiatry, Jubilee Mission Medical College and Research Institute, Thrissur, Kerala
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0019-5545.183783

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