‘Health’ is an integral aspect of the human condition. It is fundamental to the development of one’s capabilities to live the life that one values the most for the self. The World Health Organization (‘WHO’) defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity.’¹ ‘Well-being’ is a subjective notion that varies with each individual’s social, political and economic context. Yet, public health approaches have historically placed greater focus on ‘physical health’ often at the cost of excluding or ignoring mental health and its social determinants. This bias may be attributed in part to the perception of mental health as an intangible, invisible or amorphous phenomenon; unlike the symptoms of physical illnesses which have verifiable diagnostic parameters, and thus are considered more ‘real’ than the symptoms of the mind and psyche. Additionally, individuals are reluctant to engage with notions of emotional well-being, mental health or distress. Stigma and social stereotypes attributed to these issues inculcate a resistance in individuals and groups to discuss them openly or admit to their own mental health problems lest they stand exposed to shame, judgment or ridicule in society.

The WHO estimates that 10% of the global population suffers from some form of mental illness.² However, three out of four people with severe mental health problems do not receive any treatment.³ By the year 2030, it is forecast that depression will be the leading cause of disability in the world.⁴ While these are compelling statistics on a global scale, the sparsely available data for India points to an alarming situation in the public health system.

According to the National Mental Health Survey of India 2015-16, about 10.7% of the adult population in India suffers from some form of a mental health problem. In terms of absolute numbers, an estimated 150 million persons are in need of mental health services. However, it is disturbing that anywhere between 70-92% of these persons (105 to 138 million) do not have access to any form of treatment and care from the public mental health system.⁵

The wide disparity between the availability and access to mental healthcare in India can be attributed to several systemic issues. The system is constrained by a massive shortfall in the availability of trained mental health professionals. The WHO estimates, for every 100,000 persons, India currently has only 0.3 psychiatrists, 0.07 psychologists and 0.12 nurses available.⁶ According to the 11th Five Year Plan (2007-2013), the existing training infrastructure in India produces about 320 psychiatrists, 50 clinical psychologists, 25 psychiatric social workers and 185 psychiatric nurses per year. This gross deficit in trained human resources is further buttressed by the absence of adequate infrastructure, mental health facilities (general hospitals with psychiatric units, rehabilitative facilities and recovery-oriented interventions) and budgetary allocations.

 

Moreover, there are huge disparities in the distribution, availability and affordability of mental health services as most facilities are present in urban areas and owned by private players. As a consequence, those living in rural locations have to travel long distances to access mental healthcare, or altogether abandon the idea of treatment due to unaffordable costs. Another major determinant of poor access to mental healthcare is the stigma attributed to talking about mental health problems, coupled with a lack of awareness which prevents people from seeking access to support and healthcare. This further results in an ‘invisibilization’ of mental health issues; neglect of persons with such problems; discrimination in other spheres such as employment, housing, education; and exclusion from one’s community and family.

While this points to a crisis of access and availability of mental healthcare in India’s public health system, there is a shift in the global health discourse which recognizes the urgency for addressing mental healthcare in law, policy and governance. It is significant to note that Sustainable Development Goal III recognizes ‘universal health coverage’ and ‘access to quality healthcare services’ for all and includes mental health and well-being. This is crucial because it places an obligation on countries to achieve universal health coverage for its citizens and ensure that mental health is included. Universal health coverage is thus mandated to be on the agenda for health governance in all countries, including India.

 

At the same time, it is imperative for health professionals, policy makers and researchers to recognize mental health as a multidimensional phenomenon which requires extricating oneself from a purely biomedical framework. Mental health problems must be understood as psychosocial phenomena which are an individual’s response to the effects social structures and relationships produce in the form of inequality, poverty, abuse, discrimination and oppression among others. Mental health is thus also an ideological phenomenon and the construct of ‘mental health’ may be imagined as a spectrum which varies with different ideological, philosophical and cultural standpoints that individuals identify with. At the same time, this construct is as much determined by power relations which seek to preserve social structures and the privileges that accrue to certain groups in society. Consequently, individuals with mental health problems are stigmatized and stereotyped as ‘deviants’ who are a threat to the safety and security of society. On the other hand, those who do not ‘conform’ with majoritarian notions of socially sanctioned behaviour and thought are labelled as having mental illnesses.

Historically, the discipline of psychiatry embedded in its own hegemonic ideology has sought to manage both through medical interventions while also restraining the freedom and liberties of such persons. Consequently, ‘asylums’, mental health hospitals and other ‘corrective institutions’ have become spaces for ‘normalizing’, ‘disciplining’ or alienating individuals who are a threat to a hegemonic social order.⁷ To put it in other words, these institutions have become sites for human rights violations and dehumanizing individuals. A public health approach to mental health must, therefore, be founded on fundamental values that respect the inherent dignity, autonomy and liberty of all individuals. Consequently, it is imperative that the principles of human rights, equality and non-discrimination must be built into the mechanics of any intervention or policy designed for providing mental healthcare and treatment.

 

In this context, the Mental Healthcare Act, 2017 (MHCA) is a landmark legislation for public health in India. For the first time in the history of India’s health governance, a law has statutorily recognized the right of all persons to access mental healthcare and treatment from services run or funded by the government without discrimination on any basis. This is a milestone not only for the public health sector in India, but also for evolving existing human rights jurisprudence with respect to mental health in conformity with constitutional morality.

The right to health has been considered an integral part of one’s right to life and personal liberty under Article 21 of the Constitution. The Supreme Court of India has in various judgments reiterated that the right to health is indispensable for a life of dignity and well-being.⁸ The court emphasized that ‘maintenance of health is the most imperative constitutional goal whose realization requires interaction of many social and economic factors.’⁹ Significantly, with respect to the relationship between the right to health and improvement of public health, the court has also held that:

‘Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health in our opinion, therefore, is of high priority – perhaps the one at the top.’¹⁰

The jurisprudential concept of a ‘right’ entails that the state has correlative duties and obligations to enact legislative and policy measures in order to actualize the right in practicality. This implies that the state must put in place the necessary infrastructure, budgets and administrative structures to ensure that persons can enforce their right against the state. However, until the MHCA was enforced, no law ever placed a statutory obligation on the state to provide access to healthcare services in an equitable and non-discriminatory manner.

 

The MHCA is the first Indian public health law which statutorily recognizes universal mental healthcare by integrating public health and rights based approaches. The spirit of the MHCA thus is embodied in its two primary objectives: (i) To ensure access and availability of mental healthcare and treatment to all persons; (ii) To ensure that the rights of persons with mental illness are respected, protected, promoted and fulfilled when they exercise their right to access mental healthcare and treatment.

The MHCA recognizes the access-availability gap in mental healthcare and thus enjoins the government to put in place basic minimum mental health services which include (i) inpatient and acute outpatient departments; (ii) rehabilitative and recovery facilities; (iii) community based rehabilitation establishments; and (iv) provision of mental health services for family members, caregivers, children and old age persons.

 

Further, Section 18(2) of the MHCA stipulates the right to access mental healthcare and treatment means that these minimum services must be affordable, physically accessible, available in sufficient quantity, and of good quality. It is of significance to note these aspects are interrelated and essential elements of the right to ‘enjoyment of the highest attainable standard of physical and mental health’ guaranteed in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).¹¹ Thus, 38 years after India made its accession to the ICESCR, it is finally taking steps to implement the right to health under Article 12 through the MHCA.

The law also mandates the state to focus on integrating mental healthcare services at different levels of the public health system starting from the primary healthcare centres. These were the objectives of some of the state-led public mental health initiatives implemented in the post-independence era, but which were not entirely successful in their mandates. For instance, the National Mental Health Programme was formulated in 1982 with the objective of integrating mental healthcare with primary health services, training non-specialist health workers and involving the community in providing mental health services. The NMHP gave way to the District Mental Health Programme as a decentralized model for integrating mental healthcare with primary health services across all districts in India.

 

However, over time these initiatives began to perform poorly primarily due to inadequate budgetary allocations, lack of inter-sectoral coordination between different government departments, and the absence of a stable leadership and administrative structure to ensure proper implementation.¹² The MHCA addresses some of these policy gaps by mandating the government to provide the following:

1. Integrating mental health services at the primary, secondary and tertiary level of the public health system, including all general hospitals.

2. Providing free mental health services to persons who are below the poverty line, destitute or homeless.

3. Ensuring community based treatment at the first instance and long-term institutionalization as the last resort.

4. Ensuring the presence of government run mental health services in each district.

5. Providing free medicines to all persons with mental illness from the list of essential drugs.

6. Ensuring emergency services to persons with mental illness starting from the community health centres upwards.

7. Ensuring medical insurance for persons with mental illness on the same basis as persons with physical illnesses.

8. Ensuring coordination with other ministries and departments dealing with health, law, home affairs, human resources, social justice, employment, education, women and child development, and medical education.

 

Further, to address the deficit in trained mental health professionals, the MHCA mandates the government to meet internationally accepted guidelines for number of mental health professionals based on the population by the year 2028. To achieve this, the government has the duty to develop and implement training programmes to increase human resources available to deliver mental health interventions including medical officers in public health establishments. In addition to this the government is also required to develop and implement programmes for promotion of mental health, prevention of suicides and reducing the stigma related to mental illness targeting at the general public, law enforcement officials and medical professionals. What is significant is that many of these public health initiatives flow from the overarching right to access mental healthcare.

This is monumental since citizens now have a justiciable legal right to hold the state judicially accountable for non-delivery of these services. Never before has access to healthcare been a justiciable right as it has been mostly limited to policy declarations. This holds the potential for revolutionizing the mental health landscape in India through the active participation of civil society, service users, caregivers and other stakeholders to hold the state accountable in its duty to ensure this right.

To protect the rights of persons with mental illness, the MHCA provides for safeguards that must be complied with during admissions, treatment and discharge in mental health establishments. Mental health professionals are thus expected to change their clinical practice in accordance with these procedures, compliances and duties. The MHCA is particularly transformative in this regard as it lays down anti-discriminatory provisions to ensure that the constitutional rights of all persons with mental illness are protected during their healthcare and treatment. What are some of the under-lying principles of these provisions?

 

First, Section 21(1)(a) of the MHCA¹³ mandates equality and non-discrimination for all persons with mental illness. No person with mental illness can be discriminated against on the grounds of gender, sex, sexual orientation, caste, class, disability, religion, culture, and social or political beliefs. It also establishes the principle of parity according to which all persons with mental illness must be treated on the same basis as persons with physical illness. Further, Section 18(2) of the law¹⁴ also states that all persons have the right to access mental healthcare and treatment without discrimination based on the criteria mentioned above or any other basis.

Second, Section 3(1) of the MHCA¹⁵ recognizes that mental illness can be determined only in accordance with internationally accepted medical standards as notified by the central government. Thus, the MHCA is clear in its declaration that mental illness cannot be determined based on a person’s social, political or economic identity or status. Furthermore, a person cannot be classified with a mental illness only on grounds of having values and beliefs which do not conform with the prevailing values in society.

 

These provisions of the MHCA embody its anti-discriminatory spirit and commitment to constitutional morality. Recently, in its judgment on Section 377,¹⁶ the Supreme Court relied on these provisions to hold that Section 377 was unconstitutional as it discriminated on the basis of sexual orientation. The court referred to the MHCA’s provisions on the definition and determination of mental illness and concluded that the law made it clear that ‘homosexuality is not considered to be a mental illness’. Further, the court also interpreted Section 18(2) and Section 21(1)(a) as a parliamentary recognition of the fact that a person cannot be discriminated against in accessing mental healthcare because of their sexual orientation.

The court’s validation of these provisions is important because in its reasoning it recognized a crucial link between the MHCA and the values enshrined in the Constitution. These observations not only validate the spirit of the MHCA but also open up further legal avenues to challenge the discrimination of persons with mental illness under other laws in force.¹⁷

Third, the MHCA respects the autonomy, dignity and liberty of persons with mental illness by recognizing their capacity to take decisions regarding their own mental healthcare and treatment (unless it is proven that they do not have the capacity). At the same time, the MHCA places the will and preferences of persons with mental illness as primary in the provision of mental healthcare and treatment. Thus, informed consent of the person with mental illness or their nominated representatives is a mandatory requirement before the provision of any mental healthcare or treatment to the person.

 

Fourth, the MHCA provides for a charter of rights with respect to confidentiality; access to information and medical records; protection against cruel, inhuman and undignified treatment; access to legal aid; complaints against deficiencies in services or treatment; and the right community living. Any person involved in providing mental healthcare and treatment is obligated to ensure that these rights are not violated.

Finally, the operative part of the MHCA lies in the decentralized structure of authorities that are tasked with the implementation of the law. The law provides for setting up central and state Mental Health Authorities which are responsible for the implementation of the law in each state, registration of mental health establishments and mental health professionals, and conducting periodic social audits and inspections of mental health establishments.

Further the MHCA also sets up quasi-judicial bodies known as the Mental Health Review Boards with a presence in each district of the country. These boards are mandated to hear complaints against rights violations of persons with mental illness, appoint nominated representatives, register advance directives, and ensure the day to day implementation of the provisions of the law with respect to admissions, treatment and discharge of persons with mental illness. The boards also have the power to levy fines against any party which does not comply with its orders. The MHCA provides for imprisonment and/or fine in case any person contravenes the provisions of the law.

What is most crucial about the decentralized structure of authorities under the MHCA is the participatory nature of these bodies. For the first time users (persons with mental illness), caregivers and civil society organizations have been given representation on all these bodies in decision making processes. This has the potential to change the public perception of persons with mental illness, reduce stigma and ensure that decisions are representative of the shared realities of those affected the most by mental illness.

 

The transformative potential of the MHCA lies in its approach of integrating public health and rights based approaches in the provision of mental healthcare and treatment. For the first time, a law has not only recognized an enforceable right to access mental healthcare but has also embedded this right in constitutional values of equality, liberty and dignity of all individuals. Thus, the uniqueness of the MHCA lies not only in its potential to revolutionize the landscape of mental healthcare in India from a public health perspective, but also to serve as a fine example of an anti-discrimination legislation whose mandate extends beyond just mental healthcare.

 

Footnotes:

1. World Health Organization, Constitution, 1948. Available at: http://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf?ua=1

2. World Health Organization, Mental Health Action Plan 2013-2020, Geneva, 2013. Available at: http://www.who.int/mental_health/action_plan_2013/mhap_brochure.pdf?ua=1

3. Ibid.

4. Ibid.

5. NIMHANS, National Mental Health Survey of India 2015-2016, Bangalore, 2016. Available at: http://indianmhs.nimhans.ac.in/Docs/Report1.pdf

6. World Health Organization, India: Mental Health Atlas Country Profile 2014, Geneva, 2015. Available at: http://www.who.int/mental_health/evidence/atlas/profiles-2014/ind.pdf?ua=1

7. Michel Foucault, Madness and Civilization (2nd ed.). Routledge, 2001.

8. C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education and Research Centre v. UOI, (1995) 3 SCC 42; Devika Biswas v. Union of India & Ors., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018) 5 SCC 1.

9. Kirloskar Brothers Ltd. v. Employees’ State Insurance Corporation, (1996) 2 SCC 682.

10. Vincent Panikulangara v. Union of India, AIR 1987 SC 990.

11. Committee for Economic, Cultural and Social Rights, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’, 2000. Available at: www. refworld.org/pdfid/4538838d0.pdf

12. R.S. Murthy, ‘Mental Health Initiatives in India (1947-2010)’, The National Medical Journal of India 24(2), 2011.

13. Section 21(1) (a) of the MHCA: ‘Right to equality and non-discrimination’ – (1) Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare which shall include the following, namely: (a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.

14. Section 18(2) of the MHCA: ‘The right to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and caregivers.’

15. Section 3(1) of the MHCA: ‘Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organization) as may be notified by the central government.’

16. Navtej Johar and Others v. Union of India, Writ Petition (Criminal) No. 76 of 2016.

17. A. Kapoor and S. Pathare, ‘Section 377 and the Mental Healthcare Act, 2017: Breaking Barriers’, Indian Journal of Medical Ethics, 26 November 2018 (online). Available at: https://ijme.in/articles/section-377-and-the-mental-healthcare-act-2017-breaking-barriers/