Mental Health - Legal Perspective

A common belief among the people of ancient world was that any kind of mental disability or illness was a punishment inflicted by an angry deity. According to Hebrew lore, those who disobeyed God’s commandments would suffer dire retribution, including madness. The modern psychiatry has, however, disapproved it and now every kind of mental illness is diagnosed and treated like a physical illness. After all, there is strong prejudice and discrimination against mentally ill persons. Mental patients are the most neglected persons in social life. Once a person is stigmatized as a mental patient, he or she undergoes the agony of neglect and deprivation. It is unfortunate that in this scientific and humanitarian era, the rights of ordinary citizens, including criminals have been recognised and implemented forcefully, but the needs and requirements of mentally sick are neglected, and they are bound to live the life of non-human beings. Mentally ill persons are treated differently in educational institutions and are denied the basic human rights that other people enjoy under the similar circumstances.

In the Indian context, the Mental Health Act of 1987 gives no elaborate definition of mental illness. As per Section 2 (l) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation. Thus, under the Act those persons are mentally ill who are exposed to psychiatric treatment. In terms of it, one is considered mentally disordered person simply by reason of his or her being in need of psychiatric care.

Historical position -

In the past era the position of the mentally disabled person was very poor. Different society’s having different thinking about mentally disabled persons. Among the Greeks, the sick were considered inferior (Barker 1953), and in his Republic, Plato recommended that the deformed offspring of both the superior and inferior be put away in some "mysterious unknown places" (Goldberg & Lipmann 1974). On the other hand, "Early Christian doctrine introduced the view that disease is neither a disgrace nor a punishment for sin but, on the contrary, a means of purification and a way of grace."(Baker et al. 1953)

During the 16th century, however, Christians such as Luther and John Calvin indicated that the mentally retarded and other persons with disabilities were possessed by evil spirits. Thus, these men and other religious leaders of the time often subjected people with disabilities to mental and/or physical pain as a means of exorcising the spirits (Thomas 1957).

In the 19th century, supporters of social Darwinism opposed state aid to the poor and otherwise handicapped. They reasoned that the preservation of the "unfit" would impede the process of natural selection and tamper the selection of the "best" or "fittest" elements necessary for progeny (Hobbs 1973).

International status of mentally disabled person -

Here it is important to note that, in USA, many State enacted laws are granting broader rights to mentally sick. The rights are:

1. The right to communicate freely with friends and relatives;

2. The right to seek legal counsel;

3. The right to marry;

4. The right to make a will; and 5. The right to be paid for hospital works.

The World Health Report (WHR) 2001 titled Mental Health: New Understanding, New Hope, 3 was released worldwide. The report is a positive attempt to battle the neglect of mental health and mentally ill persons. According to the World Health Report, one in four families has at least one member currently suffering from a mental or behavioural disorder, and that about 450 million people are currently suffering from neuropsychiatric conditions. The human and financial costs resulting from the major mental health problems are tremendous. Individuals suffering from mental health problems find their vocational, social, and leisure activities limited in a variety of ways, and their enjoyment of life curtailed. People with severe mental health problems who are institutionalised are relatively isolated from family, friends and familiar surroundings. Despite very discouraging situations, there are some hopeful signs with the interventions of international institutions and human rights activities in this area, and people now began to think about the importance of better mental health for human development.

The recently enacted Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 have included mental illness within the definition of disability. Whether this inclusion will improve the rehabilitation of persons with mental illness remains to be seen. It is generally accepted that in case of “Mental Illness” people are referred to mental hospitals and hence received psychiatric care, for the convenience of society rather than because of an inherent illness. Another objection is the circular reasoning involved: a person is treated because of being abnormal and is abnormal because of having being treated. Exposure to psychiatric treatment or psychiatric care is unsatisfactory criteria because it relies too heavily on societal considerations.

The Principles for the Protection of Persons with Mental Illness and for the improvement of Mental Health Care (The UN principles) is a major draft document for the protection and promotion of human rights of mentally sick. The UN principles guarantee both positive and negative rights of mentally sick. The positive rights guarantee the best available mental health care within the health and social care system. The negative rights emphasise that mental illness per se does not result in loss of the right to self-determination and accord extensive recognition to the autonomy and choice making rights of persons with mental illness.

The Mental Health Act, 1987 (MHA 1987) is definitely a much more progressive legislation than its predecessor, the Indian Lunacy Act, 1912. The MHA 1987 was aimed at consolidating and amending the law relating to treatment and care of mentally ill persons.

Laws relating to the mentally disabled person in India -

Under the Constitution the disabled have been guaranteed the following fundamental rights:

1. The Constitution secures to the citizens including the disabled, a right of justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity.

2. Article 15(1) enjoins on the Government not to discriminate against any citizen of India (including disabled) on the ground of religion, race, caste, sex or place of birth.

3. Article 15 (2) States that no citizen (including the disabled) shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to shops, public restaurants, hotels and places of public entertainment or in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of government funds or dedicated to the use of the general public. Women and children and those belonging to any socially and educationally backward classes or the Scheduled Castes & Tribes can be given the benefit of special laws or special provisions made by the State.

4. There shall be equality of opportunity for all citizens (including the disabled) in matters relating to employment or appointment to any office under the State.

5. No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be an offence punishable in accordance with law as provided by Article 17 of the Constitution.

6. Every person including the disabled has his life and liberty guaranteed under Article 21 of the Constitution.

7. There can be no traffic in human beings (including the disabled), and beggar and other forms of forced labour is prohibited and the same is made punishable in accordance with law (Article 23).

8. Article 24 prohibits employment of children (including the disabled) below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment. Even a private contractor acting for the Government cannot engage children below 14 years of age in such employment.

9. Article 25 guarantees to every citizen (including the disabled) the right to freedom of religion. Every disabled person (like the non-disabled) has the freedom of conscience to practice and propagate his religion subject to proper order, morality and health.
10. No disabled person can be compelled to pay any taxes for the promotion and maintenance of any particular religion or religious group.

11. No Disabled person will be deprived of the right to the language, script or culture which he has or to which he belongs.

12. Every disabled person can move the Supreme Court of India to enforce his fundamental rights and the rights to move the Supreme Court is itself guaranteed by Article 32.

13. No disabled person owning property (like the non-disabled) can be deprived of his property except by authority of law though right to property is not a fundamental right. Any unauthorized deprivation of property can be challenged by suit and for relief by way of damages.

14. Every disabled person (like the non-disabled) on attainment of 18 years of age becomes eligible for inclusion of his name in the general electoral roll for the territorial constituency to which he belongs.

In developing countries like India, there are evidences that stigma associated with mental illness is increasing. As in parts of the developing world, with advancement of urbanization and rapid industrialization, people tend to react in a very peculiar and biased way when they confront a mentally ill person. All over the world, there is an increasing awareness of mental illness as a significant cause of morbidity. This awareness has increased with the steady decline of morbidity due to nutritional disorders, communicable diseases and other forms of physical illness, especially in countries undergoing epidemiological transition. Mental and behavioural disorders are common, affecting more than 25% of all people at some time during their lives. The point prevalence of mental illness in the adult population at any given time is about 10%. Similarly, around 20% of all patients seen by primary health care providers have one or more mental health disorders. Opinion about mental illness plays vital role in long-term care of mentally ill patients. Not only people but patients who are mentally ill also frame a different picture about their illness which can be neutralizing by public’s familiarity with serious mental illness, which subsequently will decrease stigma. People frame a picture about mental illness and mentally ill patients in their mind, which generally guides their behaviour, so public must be educated to bring about positive changes in attitude. It has always been an important area of investigation among mental health professionals. Every section of society has its unique way of perception about mental illness, particularly the young generation and college-going students. College has remained the best place to develop a comprehensive mental health program, because the attitude and values of college-going students influence the society most.

SANCHARI MANDAL 

S.K.ACHARYA INSTITUTE OF LAW, KALYANI,WEST BENGAL