This Article is written by Aayushi Bana, student of 7th Semester, Jamia Millia Islamia, New Delhi
ABSTRACT
This article identifies and examines human rights violations experienced by individuals with mental illness on a global level. In addition, the intent is to explore how current legislation tackles these violations. The author has conducted an extensive review of the existing literature on mental health and human rights violations. Human rights are important for all strata, classes and races of the society. But it assumes special significance for mentally ill people, who because of their vulnerability due to illness, often fail to prevent violation of their rights.
To start with, this article tries to conceptualize the issue raised. In the majority of countries, the right to health of persons with mental disabilities has been grossly neglected. Necessary healthcare and support services are frequently unavailable or inaccessible, while human rights abuses are often pervasive within services where they do exist. These violations include denial of employment, marriage, procreation, and education; malnutrition; physical abuse; and negligence. This group is often marginalized, discriminated and stigmatized by the society.
Next it tries to fix and locate the contemporary position of human rights law dealing with mentally ill bodies with respect to India and all the recent developments made including the Mental Health Care Bill, 2013. It further talks about the challenges faced by such group in the society categorising them into social, cultural and economic challenges.
Lastly, it tries to throw light on the current legislations and solutions resorted to and lay emphasis on the idea of modifying, updating and creating legislations with relevant systems in place to make these laws enforceable. It lays emphasis on protection of human rights.
INTRODUCTION
Human rights are important for all strata, classes and races of the society. But it assumes special significance for mentally ill bodies, who because of their vulnerability and due to illness, often fail to prevent violation of their rights. Throughout the history, persons with mental disabilities have suffered repeatedly some of the worst indignities of any group. People with mental disorders are, or can be, particularly vulnerable to abuse and having their basic rights violated. Feared and misunderstood, they often have been excluded from meaningful participation in civil society and denied the opportunities. They have been taken for granted by most to live freely and make decisions for themselves. Like many vulnerable groups, they have endured inequality, discrimination, and serious social blot. Such circumstances clearly violate the human rights principles found in international and regional legal instruments.
Read: Traditional Form Of Discrimination
The definition of health is the “physical, mental, and social well-being”. Of these elements, mental well-being historically has been misunderstood and often forgotten. The development of human rights protections for mentally ill bodies is one of the great and continuing achievements of the latter part of the twentieth century.
These achievements emerged from the collective efforts of two of the great international social movements of the last sixty years: The Human Rights Movement and the Disability Rights Movement. The Human Rights Movement has elucidated the foundational principles for protection of the rights and freedoms of people around the world. Human rights inure to all individuals regardless of nationality, location, disability status, or any other distinction. The Disability Rights Movement has championed the rights of persons with disabilities through many national and international settings, often using the language and moral grounding of human rights. Nevertheless, the struggle to protect the human rights of mentally ill bodies persists.
INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW
International and regional standards have been formulated to protect the human rights and freedoms of mentally ill bodies due to their particular situation of powerlessness. These standards are an intrinsic part of international human rights law. The standards are largely found in recommendations, declarations, and guidelines approved by international and regional bodies or specialized agencies including the United Nations General Assembly, the Inter-American Commission on Human Rights (IACHR), the World Health Organization (WHO), and the Pan American Health Organization (PAHO).[1] The internationally accepted standards found in the Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care (the MI Principles), General Comment 14 on the Right to the Highest Attainable Standard of Health (General Comment 14), the Declaration of Caracas, and the Recommendation of the Inter-American Commission on Human Rights for the Promotion and Protection of the Rights of the Mentally Ill (the IACHR’s Recommendation) are among the most relevant to protecting the human rights of persons with mental disabilities.[2]
Courts and legislators often draw upon these standards when applying human rights to situations involving mentally ill bodies. Everyone has the basic human rights, including those who are mentally ill. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
HUMAN RIGHTS LAW AND ITS CONTEMPORARY POSITION IN INDIA
Mental health concerns continue to be largely neglected, despite the high prevalence of mental disorders in society. India is not an exception with respect to human rights violations of patients with psychiatric disorders, despite having various legal measures such as the Mental Health Act 1987, Persons with Disabilities Act 1995 etc., to prevent the same. Furthermore, India is also a signatory to the Alma Ata Declaration in 1978 that states that health, which is a state of complete physical, mental, and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right. In 2007, India was among the many countries that ratified the UN Convention on the Rights of Persons with Disabilities, which includes People with Mental Impairment. [3]
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Although India has various legal measures to protect the human rights of the mentally ill, the proper implementation of these acts came into question after the Erwadi fire accident in 2001 which caused the death of mentally ill patients who were chained in a faith based ‘mental asylum’ at Erwadi Village in South India.[4] The Mental Home witnessed a devastating fire leading 28 inmates dead and they couldn’t escape due to draconian rules of place that command iron shackles for all inmates. Aftermath, all mental homes of this type were closed and more than 500 inmates were placed under government’s care.[5] The most recent development is the introduction of Mental Health Care Bill, 2013.
THE MENTAL HEALTH CARE BILL, 2013
The essence of the Bill is to safeguard the right to access to mental healthcare facilities, the right to community living, right to confidentiality, right to access medical records, right to protection from cruelty, inhuman treatment and right to equality and non-discrimination. The Bill seeks to ensure that mental healthcare facilities are available to all. Those below poverty line, whether or not in possession of BPL (below poverty line) card, destitute or homeless will be entitled to free mental health treatment. A person with mental illness has the right to confidentiality with respect to his/her mental health status, mental health care, treatment and physical health care. All health professionals providing care or treatment to a person with mental illness, shall be obligated to keep such information confidential, which has been obtained during care and treatment, except to the nominated representative in order to enable him to fulfil his duties; to other mental health professionals; and other health professionals, to enable them to provide appropriate care and treatment to the person with mental illness and to protect any other person from harm or violence.
The new Bill also attempts to regulate both public and private mental health sectors. The Bill also gives every person the right to make an ‘advanced directive’ that is, they can write a statement and explain how they want to be treated in case they become non-compos mentis (not of sane mind). The aforementioned person, if they make it known that they don’t want to be committed to an institution can’t be forced to do so by doctors or members of the family. The person can also choose a nominated representative to assist him/her with the treatment and also look after his interests. Any information relating to a person with mental illness undergoing treatment in a mental health establishment shall not be released to the media without the consent of the person with mental illness. The right shall also apply to all information stored in electronic or digital format in real or virtual spaces. The media also needs to restrain themselves from depicting or disclosing the identity of the person with mental illness during reporting in specific cases that go to the media.[6] Under the proposed new law, there is a provision for voluntary admission with supported admission limited to specific circumstances. Appeals can be made to the Mental Health Review Commission, which will also review all admission beyond 30 days and provide free care for all homeless, destitute and poor people suffering from mental disorders. The Bill provides right to confidentiality and protection from cruel, inhuman and degrading treatment, in addition to right to live in a community and avail free legal aid. It bans electric-convulsive therapy without anaesthesia, any type of electric-convulsive therapy to children and restricts psychosurgery.
SOCIAL, ECONOMIC, CULTURAL AND RELIGIOUS CHALLENGES FOR MENTALLY ILL BODIES
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Discrimination and Stigma:
Discrimination of person with mental illness in all spheres of life and the blot may have serious impact on access to adequate treatment and care as well as other areas of life, such as employment, education, marriage and shelter. Persons with mental illness, avoid or resist consultation or treatment from mental health professionals because they are worried that they will be labelled with mental illness and they wish to or want to spare themselves from the anxiety caused by fear of rejection from family, friends and society.[7]
Read: Human Rights And Right To Education
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Causation Theories of Mental Illness:
Large part of the illiterate and literate communities believe that mental illness occurs because of various supernatural powers such as devil, ghost, past life karma, witch-craft, magico-religious spells and so forth. Hence, help seeking behaviour directly depends upon the belief system of the general population. Another important issue is the lack of knowledge of mental health and illness which plays a crucial role in seeking treatment. It is a religious, cultural and customary practice in India for people suffering from mental illness to go to religious places for faith healing across India.[8]
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Inhuman Religious and Cultural Practices:
The National Human Rights Commission (NHRC) received a petition[9] in August 1998, alleging that persons with mental illness were being kept in chains, and confined to a space where it was difficult for them to move about, in the Sultan Alayudeen Dargah at Goripalayam near Madurai. The Collector had confirmed that about 92 mentally ill persons were staying in the Dargah, having been brought by their relatives who had faith in the curative powers of the Dargah. According to the report generated by the Commission, about 500 patients/devotees were staying inside the campus of the Dargah. Three-fourths of them were Hindus and the others were Muslims. About 100 patients were found to be chained. The patients were kept in thatched sheds and in verandahs. The report highlighted that similar places/Dargahs also existed in other areas of Tamil Nadu where mentally ill persons were chained and kept in the hope of a faith cure.
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Lack of Resources:
The availability of mental health infrastructure (psychiatric beds) in India is mainly limited to large mental hospitals, which provide services to a fraction of the population. Number of psychiatric beds is approximately 35,000 across India, which is grossly inadequate. The number of psychiatrists in India is about 3500, which is largely inadequate for 125 crore population. On the other hand, the number of trained clinical psychologists, psychiatric social workers and psychiatric nurses, is also inadequate and this is unfortunate because they form a vital part of the team. This has been emphasised in the World Health Organisation Atlas which highlights the low number of mental health professionals in India. The figures are worrisome, especially given the number of mentally ill. The average national deficit of psychiatrists is estimated to be 77%.
Read: ATTRIBUTING ‘PERSONHOOD’ TO NON-HUMAN CREATURES: A BRIEF DISCUSSION ON THE RAMIFICATIONS
PROTECTION OF THEIR HUMAN RIGHTS, AN IMPORTANT EXTANT ISSUE
The first step to protect the human rights of mentally ill bodies is to deny them admission in the institution unless absolutely necessary; instead they should be provided with community based treatment and rehabilitation services. If at all, admission is necessary, they should be ideally admitted in an open ward with relatives for a short duration of time. Admission with relatives would prevent anxiety in a patient who is admitted in an unfamiliar place. They should be provided an evidence based treatment during admission. In addition, as soon as one is manageable he should be handed over to his relatives. However, in absence of relatives he should be rehabilitated in shelter homes. To admit the person in unreformed institute and then protecting his human rights is like inflicting a wound on a person and then treating it. So the judicious use of available resources would be helpful in protecting the right of mentally ill bodies. While dealing with agitated person, the first thing employed should be verbal de-escalation with or without oral medication.[10] Verbal de-escalation techniques, undertaken with genuine commitment have the potential to decrease agitation and reduce the potential for associated violence, more often than previously thought possible. As far as possible, physical restraints, seclusion and chemical restraints should be used as a last resort while following the guidelines of the institution where the person is admitted.[11]
ROLE OF PUBLIC SECTOR INSTITUTIONS:
The public sector is the ultimate guarantor of health as a right for all citizens. The government has the capacity to develop and implement national policies, scale-up promising models of care for long-term implementation, and coordinate with international players to integrate regional and global efforts.[12]
ROLE OF NON-GOVERNMENTAL HEALTH CARE DELIVERY ORGANIZATIONS:
To minimize the blot and optimize access, it is preferable to integrate mental health into general healthcare delivery systems. Blot or stigma is a major barrier to seeking mental healthcare, and providing such service in isolation can reduce access. In contrast to the public sector, NGOs engaged in direct healthcare delivery can often be more flexible and take risks in developing and implementing new strategies for such integration. Implementing a novel mental healthcare delivery program with a partner NGO that provides general healthcare allows a more controlled adaptation to the specific setting, and can deliver a proof-of-concept for scaling- up nationally.[13] Although such NGOs may have the infrastructure for healthcare delivery, they frequently lack the capacity or expertise to deliver mental healthcare services, driven by the lack of mental health specialists and key services resulting in a large treatment gap among people with mental illness.
Read: Rule Of Law Embedded In United Nations
ROLE OF MENTAL HEALTH ORGANIZATIONS:
Mental health-focused NGOs often have specific expertise and experience providing care for people with mental illness in their communities, training and supporting health workers to deliver care and prevent burn-out, advocating for services, reducing the blot, understanding and responding to culturally-specific explanatory models of mental health, and assisting in cross-cultural adaptation of healthcare interventions. Given poor investment in mental health, such organizations are few in number.[14]
CONCLUSION
We have progressed a great deal in protection of human rights of mentally ill; from the past when they were physically restrained brazenly to a recent period, when even the chemical restraints are used cautiously. We have to walk on tightrope to protect human rights because, many a time our very effort to protect human rights by increasing vigilance leads to violation of human rights. Still, more needs to be done in the field that would require multiple strategies that start from judicious use of antipsychotics to increase in awareness in clients and their caregivers. The changes in the nomenclature of disease that stigmatizes the clients may also help in this direction. The Human Right Commissions, civil society organizations, and health professionals and health service provision agencies all have important roles to play in the protection of human rights. Psychiatrists can promote human rights through scrutinizing the admissions in mental hospitals, providing evidence-based medicine, ensuring a short stay of clients in a mental hospital, and actively participating in their rehabilitation.
Read: COMMON PERSONAL LAWS: NEED OF AN HOUR
[1] Mental Health Legislation & Human Rights: Denied Citizens: Including the Excluded. Mental Health and Prisons. Geneva, World Health Organization and International Committee of the Red Cross, 2006..
[2] WHO. Mental health, human rights and legislation: A global human rights emergency in mental health. Available online at www.who.int/mental_health/policy/legislation/en/index.html accessed on October 29, 2018.
[3] J.S. Neki. Psychiatry in South-East Asia. BRITISH JOURNAL OF PSYCHIATRY. 123: 257-269 (1973).
[4] Erwadi Tragedy. Appendix-H. in S. P. Agarwal MENTAL HEALTH; AN INDIAN PERSPECTIVE 1946– 2003. Directorate General of Health Services, Ministry of Health & Family Welfare, India (2004).
[5] Ibid.
[6] Ibid.
[7] N.N.Wig. Stigma against mental illness. INDIAN J PSYCHIATRY 39:187–9 (1997); Also see R.S. Murthy. Perspectives on the stigma of mental illness. In: Okasha A, Stefanis CN (eds). PERSPECTIVES ON THE STIGMA OF MENTAL ILLNESS. Geneva: World Psychiatric Association; (2005); Also see R. Thara et al. Beliefs about mental illness: A study of a rural south Indian community. INT J MENT HEALTH 27:70–84 (1998); Also see P. Kulhara et al. Magico-religious beliefs in schizophrenia: A study from north India. PSYCHOPATHOLOGY 33:62–8 (2000); Also see R. Padmavati et al.
[8] R.Raghuram et al. Traditional community resources for mental health: A report of temple healing from India. BRITISH MEDICAL JOURNAL 325:38–40 (2002).
[9] National Human Rights Commission. NHRC awaits Tamil Nadu Government’s compliance of its recommendations on mentally ill persons in Dargahs across the state. Available online at http://nhrc.nic.in/disparchive.asp?fno=538. Accessed on Feb 23, 2012.
[10] S.B. Math et al. Mental Health Act (1987): Need for a paradigm shift from custodial to community care. INDIAN JOURNAL OF MEDICAL RESEARCH 133;246-249 (2011).
[11] Ibid.
[12] Pratt, C. W., Gill, K. J., Barrett, N. M., & Roberts, M. M.Psychiatric rehabilitation (2nd ed.). Burlington, MA: Elsevier Academic Press; 2007.
[13] Ibid.
[14] Ibid.
