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Legal Frameworks for and against People

with Psychosocial Disabilities

BHARGAVI V DAVAR

People with mental illness were hitherto considered


"non-persons", lacking recognition before the law, illness, have for overon
two centuries, suffered stigma, and
People illness, struggled
struggledliving havefundamental
for their for with forrights,theirincluding
over athefundamental
right psychosocial two centuries, rights, disabilities suffered including stigma, and the mental right and
any life dimension. The macro-environment within
to life, liberty, privacy, freedom of expressing oneself, freedom
which the mental healthcare system, supported by
to choose treatments, etc. India does not havethe
any law to protect
Mental Health Act 1987, still works is that of
their human custodial
rights. But this is true of all healthcare patients. A
Right to Health Bill, and
law. However, in 2007, the government signed long pending before the Indian legislature,
will hopefully, cover broader patient rights. A minimum of social
ratified the United Nations Convention on the Rights of
protection has been provided in the Persons with Disabilities
Persons with Disabilities, which shifts the Actpolicy gaze
of 1995. However, the Act's provisions have largely not been
away from a medical model to a more encompassing
implemented. There are high expectations from the "Right to
Persons with Disabilities
social paradigm, where long-term impairment - Bill 2012", 1 pending before the Ministry
of Social Justice and Empowerment.
physical, mental, sensory, or intellectual - combined
However, people with mental illness were hitherto considered
with social barriers is understood to create disability. This
"non-persons", lacking recognition before the law, on any life
dimension.
paper critically analyses the provisions of the new The macro-environment within which the mental
healthcare system works is that of custodial law. We do not
Mental Health Bill, particularly on the question of patient
have a national policy for mental health. The mental hospitals,
consent, in light of the ratified convention.
an overdetermined mode of mental healthcare provision in the
country, have been instituted and regulated by the Mental Health
Act (mha), 1987 regarded as an Act to protect the "rights" of
people with mental illness.
The Act is a peculiarity of the health sector. Unlike health-
care patients, who are distal from the universe of law and
courts, psychiatric patients become medico-legal subjects the
moment a psychiatric diagnosis is received. The mha provides
liberally for involuntary commitment into a mental hospital.
The legal format and process of commitment is more like the
arrest of legally incapacitated persons, and less like a critical
health admission of people with healthcare issues. The National
Human Rights Commission (nhrc) in 1999 observed that it
was more appropriate to call mental hospitals "asylums" rather
than hospitals. Mentally ill people are the only ones subject to
arrests without warrants, making hospital admission a penal
matter more than a matter of care.
When a legally incapacitated person goes before a court on an
"insanity" petition, this is like an accusation of crime, which
must be proved before the court. The police often have a role
This paper is an outcome of advocacy in the Convention on the Rights of
to play
Persons with Disabilities since 2006, as well as through the BapuinTrust,
mental hospital commitments, which is another
peculiarity.
National Alliance on Access to Justice for Persons living Through
with a Mental the punitive legal devices enshrined in
Illness and World Network of Users and Survivors of Psychiatry. The
the Act, psychiatric patients become high risk for state coercion,
author was also a member of the committee which drafted the "Rights of
particularly involuntary incarceration and treatment, and
Persons with Disabilities" Bill until almost the last meeting.
inhuman, degrading and torturous treatments (Minkowitz
Bhargavi V Davar ( bvdavar@gmail.com ) is with the Bapu Trust
and for
Dhanda 2006). This has been a huge concern among
Research on Mind and Discourse, Pune since 1999.
human rights activists for many decades. All stakeholders in the

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SPECIAL ARTICLE =

mental health system have been unhappy with an


theoperational
mha, 1987.term for all people with disabilities, the crpd
For example, doctors have claimed that it makesplaced an obligation
hospital admis- on communities (see Article 2, on Defini-
tions) including
sion cumbersome, because it requires court procedures. private agencies:
Parents'
organisations have made similar claims. Humantorights advo- and appropriate modifications and adjustments,
provide necessary
cates have decried blatant human rights violations
notin custodial
imposing a disproportionate or undue burden, where needed in a
particular case, to
care, the deprivation of liberty and the legal incapacitation ofensure equal enjoyment of all human rights and
fundamental freedoms on equal basis with others.
people with disabilities.
Not providing
In 2010, the Ministry of Health and Family Welfare has pro- "reasonable accommodation" to a person with
a disability
posed another draft, called the Mental Healthcare Bill,is 2010
considered discrimination, taking the notion of
discriminationhave
(henceforth mhc). While professionals and caregivers to a higher level of inclusion.
According
strongly approved this bill, human rights activists to many experts in the field, the crpd is a "coming
and liberal
of age" describes
thinkers have been up in arms against it. This paper as far as un conventions go, in the interpretive breadth
the recent debate around the mha and the mhc.andThe context
depth of insight on the notion of personal identity, equality
and non-discrimination,
for its increasing intensity lies in 2007, when the government and the general human rights discourse
(Quinn 2010).
has signed and ratified the United Nations Convention on Itthe
places the person with a disability at the centre
of the critically
Rights of Persons with Disabilities (crpd). The paper discourse. Disability is considered evidence of human
analyses the provisions of the mhc, particularly diversity
on the and ques-
potential. When all the crpd rights are ensured
tion of patient consent, within the context of theby a state, we can expect a world where people with disabili-
crpd.
ties are fully included and participating in their communities,
Enter, CRPD2 living independently, with dignity, and able to make their own
choices
India signed the crpd on 30 March 2007, the day and contributions.
it opened for
signatures. On 1 October 2007, the governmentThere is a view
ratified recently expressed in international advocacy
the
that
crpd, and in doing so, made a commitment to theArticle 19, embodying
people of the "right to live independently and
being
India and to the international community on its fully included
obligation to in the community" is perhaps a new right
respect, protect and fulfil the enjoyment of alloffered
human by rights
the crpd. For people with psychosocial disabilities,
this
and freedoms by all people with disabilities, on ancould be basis
equal the foundational right on which to pitch all
with others. The crpd is like the Committee onadvocacy
the Elimina-
efforts. For example, the state can no longer use the
tion of Discrimination against Women (cedaw), the Child
argument, "no one is claiming these people", for the indefinite
incarceration
Rights Convention (crc), Convention against Torture, etc. of
It people
is with disabilities in mental asylums and
considered "hard law", relative to the Standard
otherPrinciples,
places of penal custody.
Rules, Declarations, and other instruments that un bodies
adopt every now and then. A convention on people Challenges for People with Psychosocial Disabilities
with disa-
bilities was envisioned in order to fill the huge Following
gap that ratification
other of the crpd, in India, persons with dis-
abilities
conventions left. For example, while cedaw gave and their
a more spe-organisations are having to advocate with at
least
cific international legal framework for concepts two as
such separate
"legalministries with key roles - the Ministry of
Health and Family
capacity" and "discrimination", it did not specifically addressWelfare and the Ministry of Social Justice and
issues of people/women with disabilities. Empowerment. There are approximately 200 civil incapacity
laws, three
The crpd promises a "shift of paradigm". It shifts rights-oriented disability laws - the National Trust
the policy
gaze away from the medical model to a more Act, 1999, Persons with Disabilities Act, 1995, and Rehabilita-
encompassing
tion Council
social paradigm, where long-term impairment (physical, of India Act, one neocolonial mental health law -
mental,
the mha -creates
sensory, or intellectual) combined with social barriers a handful of health and disability policies, drafts of
disability.3 While the crpd has been considered various
as notnew laws relating to full enjoyment of all freedoms and
provid-
human rights of
ing for any new rights, it melds together socio-economic andpeople with disabilities, and several plans and
civil-political rights in ways that makes human programme
rights documents.
truly The policy environment for persons
with psychosocial
indivisible, inalienable and universal for all people with disa- disabilities is, to say the least, complex.
There multiple
bilities. The crpd also, in its preamble, recognises is little doubt that the crpd includes people with
mental,
discrimination against people with disabilities, intellectual, multiple and psychosocial disabilities.
especially
women and children. However, people with psychosocial disabilities in India, face
The disability movement in India has reverberated with thesome key challenges, beginning with "who are we?". The shift
slogans, "all rights for all persons with disabilities" and "noth-from the "illness" paradigm to the "disability" paradigm raises
ing about us without us" since the advent of the crpd. The several questions (Davar 2008).
crpd inscribed the principle of participation for people with There is the question, for instance, on whether the mha is at
disabilities in its Article 4.3.4 It also recognises the existingall a disability rights law. Traditionally for 200 years, some
and potential contributions made by persons with disabilitiespersons seen as being unsound were subjects of the health/
to the overall well-being, and diversity of communities. Byprisons department, through the Indian Lunacy Act (ila) 1912.
introducing the new concept of "reasonable accommodation",This colonial act included both the categories of the "insanes"

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and the "idiots", who were subject to involuntary incarceration illness have been invisible. Even though everyone vaguely knew
in mental asylums and other places of penal custody, including people with psychosocial disabilities as the "seventh category"
jails, beggars' homes and lepers homes (Mills 2000, 2004). in the Persons with Disabilities Act, 1995, the disability sector has
Unsound mind was a legal category which allowed the courts not created any rights or entitlements in the last two decades.
to determine level of safeguards and protections the state needed This, in brief, is the historical legacy of the mha. The mha is
to provide for society and imperialist power (Ernst 1991). It in- a penal custodial law, inherited along with other penal acts,
cluded a broad social class of people. This notion became strongly such as the Beggary Prevention Act, crpc,6 and amended post-
medicalised when the ila 1912 was changed to the mha in Independence only with tightened penal measures. It is an
1987, following advocacy by the Indian Psychiatric Society. obsolete piece of legislation, best repealed, like the Leper's Act,
The mha retained the penal involuntary provisions in full with to make way for crpd -rights compliant norms, mha is not a
some additional medical provisions, restricting personal lib- disability Act and mental health advocates have been asking
erty further. It did so by bringing discharge within stricter for the full inclusion of all rights of all persons with disabili-
penal procedures, and liberalising norms for family members to ties, including persons with psychosocial disabilities, in a com-
commit individuals involuntarily (see Section 19: Admission). prehensive disability legislation, also presently in the making.
In this legislation, mental illness was reified to a total medico-
legal matter, with admission made easier, and discharge, more Infirmity, Defect, and Incapacity Laws
difficult.5 In this way, the mha 1987 enhanced state and medi- It has been well known that many laws bar persons "of un-
cal power, by taking over decisions about personal liberty, sound mind" from full legal capacity in many walks of life, in-
even compared to the ila. It also allowed families to more sim- cluding marriage, contracting, political life, holding a job, vot-
ply, and without the involvement of the judiciary, involuntarily ing, etc (Dhanda 2000).7 However, a quick scan of national
commit a relative, on the basis of psychiatric evidence alone, laws shows overwhelming discrimination against all persons
without having to go through a lengthy court procedure. with disabilities on grounds of legal incapacity in over 150
This is the reason why I refer to the mha as a "neocolonial" laws. For example, the words, "physical and mental defect",
act. The post-Independence Indian state failed to protect per- "incapacity", "physical and mental infirmity", "deaf mute",
sonal liberty. Instead it enhanced its own power over individ- "blind", "contagious leprosy", "leprosy cured", "epilepsy" are
ual lives and decision-making, and solicited the power of the found pervasively in the laws in the context of legal incapacity.
doctor in directing or even taking over the lives of people. More general categories of "incapable due to serious illness",
More than even the Code of Criminal Procedure (crpc), which "found unfit to act by a competent court", etc, are also found.
has some inherent rights and safeguards built in, a finding of Like the mha, many of these laws have their origins in the
mental illness through mha makes a person very much below colonial period, and have gone through "serial amendments" in
par on any measure of rights guaranteed in the Constitution. the post-Independence period. The legal experts who amended
For example, in the late 1980s, after the emergence of the various laws following Independence did not revise provisions
mha, some famous public interest litigations (pils) in the east relating to people with disabilities. As a result, a hard core of
and north-east, initiated by Sheela Barse, led to judicial activ- provisions and legal perversions exist within nearly every class
ism on the archaic ila. Courts investigated and found large of laws, containing highly discriminatory, even inflammatory,
numbers of prisoners in the jails of these regions; they directed allegations and assumptions regarding a variety of disabilities.
that the "correct" place of detention for mentally ill people A large part of the family laws are about people of unsound
were the mental asylums, and not jails. Large numbers of peo- mind. Family laws deny capacity to be married, stay married,
ple were shunted from the prisons to the asylums at this point, adopt, inherit, terminate a pregnancy, choose a pregnancy, etc.
most of them homeless or deserted, with no other place to go Some of these laws have guardianship provisions. Some laws
to. The human rights-based approach of the courts and civil are applicable only to those of unsound mind, others include
society at the time did not further question the penal model of "leprosy" or "contagious leprosy", physical and mental defect,
the asylums (nhrc 1999), which was far worse than the pris- severe handicap, etc. The Hindu Inheritance ("Removal of Dis-
ons. The courts did not consult the inmates of the institutions abilities") Act of 1928 has a curious subtitle, reminiscent of
on what they wanted, nor did they grant liberty to those found "sterilisation of the unfit", which was the practice at the time
in the prisons to walk free, at their own risk and/or determi- this Act was promulgated in the late colonial period. Conditions
nation. They were shunted into the asylums, without relevant are placed on the capacity of persons with disabilities in making a
jurisprudence, human rights safeguards or review. will. A person who is blind or "deaf and dumb" can make a will
Meanwhile, the "mental/intellectual/multiple disabilities" provided they can understand what they are doing. A "lunatic"
group (known as "idiots" in the ila), with strong advocacy from cannot probate or administer a will.
parents groups such as Parivaar, shifted to the jurisdiction of the Laws relating to the military, security and other enforce-
disability department, which was formulating its own human ment laws (such as the Coast Guard Act) deny a person with
rights sensitive legislations - the Persons with Disabilities Act disability the capacity to act, to stand trial, to defend him or
1995 and the National Trust Act 1999. People with psychosocialherself, to explain or appeal, to give consent for treatment, to
disabilities have continued to remain in penal/medical control give consent for institutionalisation/treatment, etc. These
within the mental health law; the disabling aspects of mental laws provide for a direct pathway from the services into a

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mental institution without too much legal intervention or state is obligated to "take appropriate measures to provide ac-
human rights safeguards. Reference is still made to the ila cess by persons with disabilities to the support they may require
1912 in these legislations. in exercising their legal capacity". Not providing such support in
The provisions relating to persons with disabilities are harmo- the exercising of legal capacity will count as not providing rea-
nised with the crpc or other penal laws, and not with any rights sonable accommodation, therefore, discrimination.
or social justice-related, disability-related or other progressive Article 12 and the equality/non-discrimination articles of
laws. This has entrenched the legal view that people with dis- the CRPD, along with the Principles, allow for an unequivocal
abilities operate on the fringe of criminality, and that come within obligation on the part of state parties to dismantle the incapac-
the jurisdiction of criminal law and institutions by virtue of their ity laws. Such far-reaching legal deprivation of capacity and
disability alone. However, unlike other constituencies mired legal personhood needs to be changed in the post-CRPD era, if
within the criminal discourse (such as denotified tribes), the the government stands by its obligation under this inter-
disabled never received patronage or protections from the state. national treatise to "take all appropriate measures, including
Criminal laws, in general, deny the capacity to defend, legislation, to modify or abolish existing laws, regulations,
stand trial, witness, or give consent for any medical interven- customs and practices that constitute discrimination against
tions. In the recent post-CRPD amendments (2009) to the law, persons with disabilities" (4.i.b). Further, legal pedagogy and
for the first time, a psychiatrist or clinical psychologist is re- court practice have been so indoctrinated into thinking "inca-
ferred to in determining unsound mind in the criminal law pacity" for over a century, that there is little disciplinary
context. The amendment is interesting evidence of the perver- imagination for making an alternative legal articulation. Fur-
sion of the law through the ages, because it brings together ther, these laws have created a formidable social stereotype of
anachronistic provisions from laws drafted at different times, the "incapable, violent lunatic", a stereotype that plays itself
resulting in some strange legal terminology, such as "a person out in public skirmishes and in the courtrooms.8
of idiot" (sic) or "accused to be of idiot". Here the psychiatrist
and psychologist are called upon "to declare a person of idiot Intersections between Penal and Incapacity Laws
is suffering from unsoundness of mind". The legal determin- The legal incapacity laws and the penal provisions of the mental
ation mandated in the amendment is of "idiot" found to be health law work synergistically, to ensure total deprivation of all
"unsoundness of mind" found to be "incapable". In anotherrights to all persons with disabilities, and especially people with
psychosocial and mental disabilities. The mental health law is
provision of the crpc, the amendment says that trial may
resume after a person has ceased to be of idiot. Mental retar-
like a legal filter to "catch" people who have been determined to
dation appears as a separate category distinct from person of
be of unsound mind, "defected", "incapacitated", etc from fall-
idiot, or of suffering from unsoundness of mind, again refer-ing through the cracks of other laws. Once so "caught", the peo-
ring to psychologist or psychiatrist for the determination. ple are hauled into the involuntary commitment procedures of
The amendment enlarges the scope for medical professionalsthe mha or other penal acts.9' 10 Considering that the mha allows
in directing the status and lives of people with disabilities. Noticefor involuntary admission up to 90 days without legal review,
the neocolonial perversions in this law, mixing the old with the
private facilities stand to profit from such involuntary commit-
new arbitrarily, to serve the short-term purpose of managingments.11 It was recently reported in Chennai that 40% of divorce
jurisprudence questions, with long-term consequences in thecases in family courts are filed on petitions of insanity (Times
deprivation of constitutionally granted rights, simply on the basisNews Network 2011), which is a probabilistically impossible
of disability, leading to "civil death". A law on the settlement ofnumber for the insanity clause alone.12
property-related matters of dead, missing or unsound persons in Following the tragic deaths of 25 people in Erwadi (more fully
the military forces provides that a person of unsound mind is todescribed in an article in epw by Davar and Lohokare 2009), the
be treated as a "dead person" from the day unsoundness is ascer- Supreme Court (sc) ordered the construction of mental hospi-
tained. I have found this to be the most inexplicable representa-tals in states where none exist.13 The court did not examine the
tion of people with psychosocial disabilities within the law. state of mental asylums (private and public) in the country, nor
Disabled people are the only group singled out in this way,did it pay heed to the everyday exposes in the press or even to
by the most powerful normative structures of the country.the NHRC report of 1999. The controversial issues of electro-
convulsive therapy (ect) and solitary commitment have been
Women, dalits, tribes, and others have over a period of the last
50 years slowly gained release from a regime of total legalpending without judgment or directive from the sc since 2002.
Since the sc directive, licensing for starting private asylums
oppression. The legal barriers for people with disabilities are
the last frontiers to be crossed. have been liberalised, and over 400 private asylums exist, with
The CRPD (Article 12 "equal recognition before the law") was
more applications going before the state mental health authori-
ties.14 Recent affidavits filed in 2009 by various state govern-
a key article over which many struggles have been mounted,
and won, in the drafting of the convention. Article 12 is clear onments before the se as obligation under the Erwadi directives
the issue of legal capacity. Article 12.1 reads: "persons with dis-show that in Andhra Pradesh and Chandigarh, over 35 institu-
abilities have the right to recognition everywhere as persons tions have been licensed. In Maharashtra, an improbable
before the law". Further, "persons with disabilities enjoy legalnumber of 101 institutions have been licensed, and Kerala is the
highest with around 150 private institutions.
capacity on an equal basis with others in all aspects of life". The

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Some institutional atrocities against people perceived to be Psychiatry (wnusp) (Minkowitz 2011), which has called for
or diagnosed as mentally ill are instructive, even taking only repeal of mental health law around the world.
recent incidents of the last two to three years, i e, in the post- A recent article by Davar gave narratives of coercion within
CRPD period. A campaign called Jan Manasik Arogya Abhiyan, mental institutions, arguing that the presence of the mha makes
working in Maharashtra, brought to light many atrocities hap- the staff custodians rather than caregivers, creating a key dilemma
pening in these closed institutions,15 including, in the last couple in social work practice.22 Helping staff who are expected to do
of years, a case of attempted rape, a suicide and a high-profile no harm are forced to deal with inmates in fashion contrary to
wrongful political commitment involving senior police officers. their instincts because of the "control and command" regimen
In January this year, 40 people were found in degraded condi- set up by the mha. The system becomes violent in effect, even if
tions in a mental asylum in Thrissur and rescued (cnn-ibn not in purpose, leaving both staff and patients disempowered
2012, Times News Network 2012). Last year, in Maharashtra, and unable to connect on a shared space of empathy and com-
children, both boys and girls were sexually abused, leading to a passion. This violence is inherent to the institutional design
pil in Mumbai High Court (Sikand 2011). Masina Hospital, a itself, and the overdetermination of this system by a penal law.
century-old private asylum in Mumbai has been exposed by the In India, in the wake of the crpd, Cremin (2007) argued for
media repeatedly for fraudulent admissions, extant involuntary alternative institutional designs and the right to community
commitments, over-drugging, over-use of shock treatments, mental healthcare. His inference was that the mha has affected
and various other abuses (ndtv 2010; Moghul and Shelar 2011; not only the way the mental asylums are run, but nearly all
Paul 2012). Near Kolkata, a 32-year old woman was raped and mental health facilities, even those deemed to be "community
killed in a private mental asylum.16 Her death certificate, ac- care". Rehabilitation centres were interpreting involuntary com-
cording to reports, said that she died of a "cardiac arrest". Ear- mitment procedures and had become semi-state authorities in
lier in the year 2012, a sexual molestation case was exposed by utilising Article 21 of the Constitution (Right to Life and Liberty)
Anjali, a human rights organisation working in Kolkata,17 and for purposes of deprivation of personal liberty. Solitary confine-
yet another one reported more recently ( Telegraph 2012). In Au- ment and lock-up was found in many private rehab centres also.
gust 2012, some ward staff obtained sadistic pleasure by egging Cremin's report described how social workers and rehab centre
on inmates to fight, resulting in one homicide. staff openly talked about "catching" people, or round-ups, parti-
The beggars' home institutions also house a majority of people cularly referring to homeless people with disabilities. Davar and
with physical, multiple and psychosocial disabilities.18 Atrocities Lohokare (2009) also argued for voluntary and humane institu-
have been reported here too, for example, the Karnataka State tional designs for recovery from psychosocial traumas.
Human Rights Commission (shrc) took suo motu action, upon While the crpd does not explicitly prohibit institutionalised
the death of 40 reported "beggars" in the Magadi Main Road care such as respite homes, it also does not say anything specifi-
beggars' home on 18 August 2010, in Bangalore in the post-CRPD cally on having a "special" law for a certain disabled constituency.
period.19 In Chennai, following a "beggar-free Chennai" cam- But Article 14 of the crpd is clear that a person should not be
paign,20 around 420 persons were forcibly caught and detained detained in an institution on grounds of disability. By inference,
in Kilpauk mental hospital.21 The Public Union of Civil Liberties' it is anti-CRPD for a state to continue to create custodial institu-

(pucl) fact-finding group observed many procedural violations. tions "specially" for some people with disabilities. Article 17 on
According to the report, many of those caught were in sound Right to Integrity, including the protection of physical and
mental health, working in the unorganised sectors, migrants mental integrity, is a challenge to the regime of force extant in
from other districts and states and the homeless. Those people the mental health sector. Through various other provisions of the
who were sleeping or living on the streets were rounded up ran- crpd (14, 19) we can infer that states are obligated to begin a
domly by the health inspectors from the 10 zones of Chennai de-institutionalisation process through a review of laws, policies,
Corporation. The process of capture and detainment was deceit- programmes and practices, and set up alternative practices that
ful and inhumane, it was reported. The corporation employees will facilitate inclusion. Article 15 gives further cover on protec-
told them that they would give them a haircut if these people tions from torture, cruel, inhuman and degrading treatments, or
went with them. When they resisted, four to five people sur- punishments. It is the responsibility of the state to ensure full
rounded them and forced them into the waiting van. compliance with Articles 14 and 15.
The wnusp, on 31 August 2011, argued that the cedaw/crc
State Obligations in the CRPD general comments should recognise forced and coerced psychiatric
The longlist of abuses described above, are of course totally interventions against women, men and children as a "harmful
contrary to human rights, and the state is obligated to take cultural practice" of the west.23 On 5 August 2011 through a
action under Article 15 of the crpd. The state has the duty to resolution, the secretary general made a clarificatory statement
respect (not cause harm), protect (ensure that non-state actors on "torture and other cruel, inhuman or degrading treatment or
cause no harm) and fulfil (take proactive measures), and has punishment".24 The special rapporteur on torture reported that
done none of these in the above cases. The National Alliance
where the physical conditions and the prison regime of solitary con-
on Access to Justice for Persons Living with a Mental Illness
finement cause severe mental and physical pain or suffering, when
(naajmi) has advocated for the repeal of the mha, endorsingused as a punishment, during pre-trial detention, indefinitely, pro-
the statement of the World Network of Users and Survivors of longed, on juveniles or persons with mental disabilities, it can amount

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to cruel, inhuman or degrading treatment or punishment and even • Come up with an institutional design that is community-
torture. In addition, the use of solitary confinement increases the risk linked, accessible, small and not unwieldy, efficient, inclusive,
that acts of torture and other cruel, inhuman or degrading treatment
homely, locally managed, aesthetic, low cost, and offers a wide
or punishment will go undetected and unchallenged.
range of mental health services.
In India, advocates are for community mental health and • Capture know-how from non-governmental organisations
support systems to be made available, including mental health (ngos) and dpos of grass roots.27
within overall development, group and peer support, neigh- • Review and inquire into institutional contracts, existing land,
bourhood care systems, conflict reduction and peace-building assets and liabilities, and other thorough financial audits.
strategies, supportive counselling, addressing exclusion at • Conduct country-wide independent evaluation of district
community level, trauma informed services, and a huge range mental health programmes (dmhps).
of alternatives (Lahiri et al 2010). The crpd emphasis on inter- • Facilitate the development of a national policy and its imple-
dependence can be fulfilled in the country because of the tra- mentation, so that the de-institutionalisation process is backed
ditional support systems mixed with emerging alternatives to by good community support systems.
families. Surely, a national mental health policy is needed to • Is the MHC moving in this direction, towards crpd compli-
cover these aspects. While not diminishing the role of tertiary ance?28 The last section of this paper considers this question.
care, it should be noted that the doctor's scope of authority in
Mental Health Care Bill
our society is sufficient to build a good and supportive client -
doctor relationship. No further law is needed. Mental health In fulfilment of its obligation under the crpd, the Ministry of
laws have always been penal: they divide communities, break Health and Family Welfare decided to develop a new law for
social collaborations and build mistrust and paranoia in soci- people with mental illness, entitled the "Mental Health Care
ety as a whole. They build suspicion of persons being "crazy" Bill.29' 30 The object of the proposed legislation is "to provide
so a community has to watch out and turn them in. access to mental healthcare for persons with mental illness
and to protect and promote the rights of persons with mental
From Institution to Independent Living illness during the delivery of mental healthcare". On the face
The crpd directs the state on respecting, protecting and fulfil- of it, this preamble to the legislative proposal has all the prom-
ling the right of living independently in the community, and on ising ingredients needed for crpd compliance.
full inclusion (Article 19). In the wake of crpd, other developed The MHC also proposes to "protect and promote the rights of
countries are considering another round "beyond de-institu- persons with mental illness during the delivery of healthcare
tionalisation" (Axelsson et al 2004), and applying social inno- in institutions and in the community", giving a wider scope
vations to mainstream people found in institutions, compliant than the mha, which did not talk about "community". Also,
with Article 19 (living independently and being included in the coming close to the crpd's Article 19 (living independently
community). The World Report on Disability (World Health and inclusion in the community), the mhc preamble provides
Organisation 2011) further gives a step-wise process of moving that "community-based solutions, preferably in the vicinity of
from a regime of custody to a regime of care in the community. the person's usual place of residence, are preferred to institu-
With respect to mental healthcare, India is in a period of tional solutions". This is further emphasised by the provision
"double transition": It has to bring something down at Point a that intervention will have the purpose of improving "the
(mental asylums) and put something new up at Point b (com- capacity of the person to develop his or her full potential and
munity mental health). It is evident that both processes will be to facilitate his or her integration into community life".
costly.25 This "ramping" process is often called a "transition" A key purpose found in mhc, not endorsed by the crpd, is
period with respect to creating crpd compliance in laws, poli- where it directs that "healthcare, treatment and rehabilita-
cies and practices. Visualising India as an "asylum-free zone" tion to persons with mental illness is provided in the least
for the future, and community mental health programmes in restrictive environment possible, and in a manner that does
every district, naajmi is advocating de-institutionalisation not intrude on their rights and dignity". The phrase "least re-
through the following step-wise ramping measures, which can strictive environment",31 widely used in the Indian mental
be executed by a time-bound national "expert commission on health sector by professionals, is however not found in the
de-institutionalisation": crpd. These clauses are found in an erstwhile un document
• Set up a regulatory (or ramping) process with definite time-called the mi Principles, 1991, which also included, at the
lines on changing the mental asylums (private and public) tocore, elements of force and institutionalisation.32 While
what they should be - tertiary care voluntary hospice/recoverythe preamble of the crpd recognises many conventions,
centres with active community outreach and linkages withcovenants, treatises, standard rules and charters, it does not
various development programmes and empowerment efforts.26recognise the mi Principles.33
• Provide a legal procedure/interim law and an expert author- The bill recognises the vulnerability of persons with mental
ity, so that there is active protection against abuse, violenceillness, and that families bear a "disproportionate financial,
and exploitation, and protection from inhuman, degrading emotional and social burden of providing care and treatment".
and torturous treatments, when whole populations are moved However, the provision here does not capture the disabling
from institutions to the community. aspects of familial, societal and attitudinal barriers. It retains

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an "impairment only" definition, reinforced by the purely of life decisions. Under ideal environmental conditions,
medical definition of mental illness found in the bill (3.1): human decision-making is a complex job, involving at least
"Mental illness" for the purpose of this Act, means a disorder of mood, possible goals of action, possible lines of action, assessments
thought, perception, orientation or memory which causes significant dis- of risk and consequence, interest and will to pursue a certain
tress to a person or impairs a person's behaviour, judgment and ability to line of action, moral, social, emotional, intuitive and even
recognise reality or impairs the person's ability to meet the demands of
spiritual aspects of decisions. Healthcare decisions in general
normal life and includes mental conditions associated with the abuse of
alcohol and drugs, but excludes mental retardation. Mental illness shall be
are complex, involving additional components of medical in-
determined in accordance with nationally and internationally accepted formation made available, cost of care, safety for body and
medical standards such as the latest edition of the International Classifi- health, possibility of attaining overall cure, etc. Such deci-
cation of Disease of the World Health Organisation. sions are complex for all people, not just people with mental
Restricting the notion of equality (on equal basis with others) illnesses. The "competency test" provided for is thus a cari-
as prescribed by the crpd, the mhc preamble provides that:34 cature of human decision-making. There are also no criteria
Persons with mental illness should be treated like other persons with health for judgment about "relevance", "understanding", "weighing"
problems and the environment around them should be made as conducive information, etc.36
to facilitate recovery, rehabilitation and full participation in society. Given the power in families over decisions, and also the
The mhc only recognises the equality of people with psy- power given to doctors in the laws, there is a very high chance
chosocial disabilities with people with health problems, and of intrusions into the decision-making processes of persons
not citizens in general. Choice in the health sector is not gov- with mental illness. Just as it is easy for a person to be deter-
erned by law; it is governed by individual/family concerns and mined "mentally ill", under the mhc regime, to render a per-
negotiations. The "right to refuse treatment" available to son "not competent" will not be too difficult. The certifying
healthcare patients is not available to persons charged with or process is left to the doctors alone, and no judicial process is
diagnosed with mental illness.35 So, if the mhc respects choice involved in this highest disqualification to living and acting on
on par with health patients, that would be a huge gain for per- an equal basis with others.
sons with psychosocial disabilities. We can expect then that An "incompetent" person in the above sense can then be
mhc will not come in the way of being on equal basis with enabled to express choice through two procedures: the ad-
others in other walks of life. However, this expectation is com- vance directives (ad) and the nominated representatives (nr).
pletely belied by the core elements of the bill. The ad is a written document wherein a person can endorse
his or her choices of treatment.37 Though these directives are
Patient Choice
meant to respect the healthcare choice of the person, several
Unfortunately, the rest of the mhc keeps closely to a medical
conditions apply. They are to be monitored by a "district men-
paradigm, as well as, more sadly, a medical penal paradigm,
tal health panel", which has the power to "uphold, nullify,
thereby drifting in the intent of treating all mentally ill modify
people or alter" any ad made by a person.
at least on a par with health patients. The rest of the paper
In any case, an ad containing a refusal of all future medical
treatment for mental illness is null and void. In approving an
focuses on the core provision of the mhc, and its contradictions,
ad, the district panel will ensure that the ad was made with
not only with the crpd, but with itself. I here consider mainly
the provisions of informed consent and choice, a fundamental
free will and free of all undue influence; the person was well
healthcare right. The mhc defines "informed consent" as
informed, was competent at the time of making the decision,
and further,
consent given to a proposed specific intervention, without any force, it "is in the best interest" of the person con-
cerned.
undue influence, fraud, threat, mistake or misrepresentation, and ob- In addition, the ad should be in conformity with other
tained after disclosing to the person adequate information including
laws and constitutional provisions. If an ad passes through
risks and benefits of, and alternatives to, the proposed intervention in
these really strict conditions, it will not apply in case of "emer-
a language and manner understood by the person.
gency treatment". The ad is worldwide practice especially for
protecting against rights violations in the name of "emer-
The bill provides for patient "choice" if he or she is "compe-
tent" to make a decision (Section 4), which is further defined as: treatment", and known more for its breach than for its
gency
following.
the person has ability to: a) understand the information relevant to Considering that the mhc is placing people with
mental
the decision and; b) retain that information and; c) use or weigh that illness on equal basis with healthcare patients, this
information as part of the process of making the decision and; application
d) com- of choice and consent is a great challenge to any
municate his or her decision by any means (by talking, using sign lan-
understanding of medical ethics. Establishing the "validity"
guage or any other means).
of the ad will be an impossible task for a psychosocially dis-
From here, the discrimination against mental health abled
pa-person.
tients vis-à-vis healthcare patients begins. Even assuming An nr is someone who will take decisions on behalf of a

that the doctor-patient relationship has been ideal, achieving competency test-failing person diagnosed with a mental
the level of competency expected herein, will not be possible illness. Such a person has all-encompassing rights - to make
in the case of any healthcare decision. Further, "decisions" treatment decisions, admission, discharge, appeals, proxy con-
here is not limited to healthcare decisions, and given thefor research conducted on their ward, etc. The nr's role in
sent
plethora of incapacity laws of the land, may refer to a variety the life of a person living with a mental illness is akin to a

Economic & Political weekly laavj December 29, 2012 vol xlvii no 52 12Ç

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guardian, substituting decision-making by the person himself In Conclusion

or herself, though the mhc still talks in terms of supported The mhc is a good example of the neocolonial struggles in India,
decision-making. The nr will be in the registry of the district where "modernising" mental healthcare has meant building
panel as well. more asylums that are costly to maintain if the object is to pro-
Therefore, within the scope of the mhc, it becomes impos- vide good quality mental healthcare, and which are hugely prof-
sible for persons found to have mental illness to express itable for private business. Needless to say, there is a political
choice on their own. Yet, the mhc has the intent of crpd com- economy to this struggle, in liberalising markets, which needs
pliance and of respecting the autonomy of disabled people. separate study. However, even these intense debates around the
Without going into the sections on admission and discharge, mhc and institutionalisation, are relevant only to the middle
I can say that the institutional and involuntary commitment and upper classes in urban areas, especially non-resident Indi-
procedures of the mhc are hazardous for society at large, ans (nris) looking for the ideal mental institutions for ageing
given the rather universal application of "finding" of "mental parents, sisters or other siblings and dependents. This may con-
illness" and "competency". Admission to a custodial insti- stitute around 7% of the Indian population.
tution is always a matter of deprivation of personal liberty, For the remaining 93% population in rural areas, inner city
and a constitutional matter. The mhc has done away with slums, mountainous terrains, and other far-flung regions of
any kind of judicial intervention on this constitutional ques- the country, where the social fabric is still intact, and where
tion, leaving admissions and discharge in the hands of non- there is no doctor or asylum, this will have no relevance.
state parties - psychiatrists and local committees. In these Despite the heated controversies relating to this coercive
sections of the law, the person with mental illness and draft law, which is seen as a total sell-out to the burgeoning
"nr" are used interchangeably, legitimising proxy decisions private asylum business, involving the liberalisation of private
on critical matters relating to health, well-being and indi- power over lives of people in the garb of treatment, the Govern-
vidual freedoms. ment of India has forwarded the bill to the Law Commission.

NOTES
7 "Full legal capacity" implies recognition as a describe the procedure as "kidnap". They are
person before
[Finally, financial support by the International Dis-the law. Some countries such as often misled by the hospital authorities who
the Philippines
ability Alliance facilitated regional travel. I also have a Civil Code which defines visit at odd hours, and are given false informa-
who is a "person". In Philippines, the Civil Code
thank William Sax of the University of Heidelberg tion, before the round-up. Sometimes many
denies capacity to act to people of unsound
for supporting review of institutional structures policemen may arrive to intimidate the person.
mind,review
and relationships through a grant. A legal and the "deaf mute". In India, a variety Sedation is used frequently. (Refer Cremin
team comprised of Kanchan Pamnani, of lawsRahul
deny not only capacity to act, but also to 2007, for data on how the MHA is applied in
be full persons before the law.
Cherian, Rajiv Rajan, Deepak, A S Narayanan, practice in rehabilitation centers.)
8 Recently,
Reshma Valliappan and Bhargavi Davar scannedSantosh Mane, a Pune Municipal 13 Writ 562 of 2001, Saarthak and. Achal Bhagat vs
Transport (PMT)
all the national laws. The work was supported by bus driver went amok in the Union of India, Ministry of Social Justice and
city, killing
DRG, a cross-disability coalition led by Javed Abidi. several people. The state mental Empowerment, Ministry of Health, Disabilities
I thank the team for their comprehensive hospital
work denied
in that he was "mentally ill". His Commissioner and other state governments.
lawyer
reviewing nearly all the laws. The analytical argued that he was. Following this
views 14 Affidavits filed before the SC by various courts
presented herein, are however, my own. event, all bus drivers of PMT were sent for
I thank in the case of Death of Inmates in Erwady versus
Vaishnavi Jayakumar, Chennai, for themedical psychiatric screening! A scare was cre-
everyday Government of India, 2009.
reporting and compilation of atrocities ated against
about mentally ill drivers which the health
15 Jan Manasik Arogya Abhiyan Inquiry and
system psy-
people with disabilities, especially those with had to address (see Rashid 2012).
Campaign Report, 2008, "Sexual Molestation
chosocial/mental disabilities.] 9 The Beggary Prevention Act of 1959 is another of Patient in Yerawada Mental Hospital", Bapu
legislation through which people with disabili- Trust Archives, Pune.
1 Viewed on 22 September 2012: http://socialjus-
ties are arrested without warrant, and brought
tice.nic.in/pdf/draftpwd12.pdf 16 "Mentally Challenged Raped and Killed in
into state institutions for "beggars".
2 ror related documents, see nttp://www.un.org/ West Bengal", viewed on 29 October 2012:
10 For a full case study of the nexus between the http://timesofindia.indiatimes.com/videos/
disabilities/default.asp?id=i50 and http://un- Marriage and Divorce Act, and the MHA, see the
crpdindia.org/ news/Mentally-challenged-raped-and-killed-
testimony of Chrysann. Chrysann's story, Sanchit
in-West- Bengal/videoshow/i485i59i.cms
3 See Article 1 on "Purpose": "Persons with disa- Oral Histories Archives, Bapu Trust, Pune.
bilities include those who have long-term physi- 17 Fact-finding report by Srija Chakraborty and
11 just admission rates even in tne cneapest ot fa-
cal, mental, intellectual or sensory impair- Shampa Sengupta on behalf of Anjali to
cilities may cost a family up to Rs 15,000, with-
ments which in interaction with various barri- Kolkata Pavlov Hospital after one female
out including medicines and other "emergency"
ers may hinder their full and effective partici- patient was reportedly sexually assaulted on
measures, such as shock treatment.
pation in society on an equal basis with others". 23 April 2012, Kolkata.
12 We were suddenly confronted with a long
4 (4.3) "In the development and implementation 18 Provided for under the Bombay Beggary Preven-
silence from Jhilmil, a regular and vivacious
of legislation and policies to implement the tion Act of 1959, applicable in 17 states of India.
Facebook friend. Her family was not forthcom-
present Convention, and in other decision- 19 HRC No. 5978/SM-1242/2010 and connected
ing with information at first. We had to put lot
making processes concerning issues relating to of pressure to get news about her. This recent cases, before Justice S R Nayak, in the Karna-
persons with disabilities, States Parties shall "torture", "punishment" and "enforced dis- taka SHRC, on 18 September 2010.
closely consult with and actively involve appearance" of a woman with serious marital 20 "Chennai to Become Beggar Free Soon",
persons with disabilities, including children discord and difficulties into the high security viewed on 29 October 2012: http://www.ndtv.
with disabilities, through their representative forensic ward of the Institute of Human Behav- com/video/player/news/chennai-to-become-
organisations". iour and Allied Sciences (IHBAS) occurred beggar- free-soon/143406
5 For a historical context on madness, institutions, using police force, though the admission was 21 See report by a PUCL fact-finding team, "Dis-
society and medicine in the western context, see through the "voluntary" Section 19 provision of pensable Lives, A Beggar-free 'Singara Chennai",
Andrews and Digby (2004), Braslow (1997), the MHA. Viewed on 29 October 2012: http:// Chennai, 7 June, 2010.
Foucault (1965), Goffman (1961), Scull (1989). mindarcs . wordpress . com/petitions/stop-forced- 22 Bhargavi Davar (2012). "Narratives of Coer-
6 Only the Lepers Act was repealed. However institutionalization-and-release-jhilmil-breck- cion: Law as a Social Determinant of Clinical
"leprosy cured" and "leprosy affected" are still enridge/. People who have been whisked away Interactions in Mental Hospitals", unpublished
terms liberally found in the laws. into institutions at the behest of family often paper under review.

130 December 29, 2012 vol XLVii no 52 i a avi Economic & Political WEEKLY

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23 On 31 August 2011, Tina Minkowitz of the Cen- 37 According to the MHC Bill, a person not pres- States Parties", Journal of Critical Psychology,
tre for the Human Rights of the Users and Sur- ently mentally ill may still make an AD, in Counselling and Psychotherapy, 11(3).
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submitted for joint CEDAW-CRC General Rec- Chiefs Raise Alarm on Masina's House of Hor-
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vide competency certificates? What will be the
- (2004) "Body as Target, Violence as Treat- Economic&PoliticalwEEKLY
revenue earned by the doctor/state by provid-
ment: Psychiatric Regimes in Colonial and
Post-Colonial India" in James Mills and
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Politics of Physicality in Colonial and Post-
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colonial India (London: Anthem South Asian K C Enterprises
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Ph: 66465549
cist", because it divides peoples into those who Contravene the CRPD - An Application of Arti-
are "competent" and those who are not. cle 14 with Implications for the Obligations of

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