The provision that decriminalises suicide in the Mental Health Bill is welcome, however, the absence of a complementary provision requiring educational institutions and employers having a strength of a particular number to mandatorily provide access to counselling services makes this provision weaker than it ordinarily would. The Mental Health bill could have mandated employers and educational establishments to mandatorily provide counselling facilities for employees and students on site in order to address stress, depression and the mental health issues that may arise on site and refer people to medical care. This would allow for the breaking down of the stigma related to mental illnesses as it would also force others to recognise that there are people who are suffering from mental illnesses who work along side them.
The Mental Healthcare Bill 2016 passed by the Lok Sabha on 27 March, 2017 and the Rajya Sabha on 30 March, 2017 and is currently pending assent before the President of India. It will overhaul India's mental health care system and is a welcome step in law reform. The bill will, for the first time, entrench in law the rights of persons with mental illnesses, protect their property rights, allow persons to make advance care directives to ensure that they are not subject to abuse by relatives, hospital staff and will also extend insurance coverage. These reforms are sweeping and for people suffering from a mental illness that makes it impossible for them to carry on with daily life, these reforms should ideally lead to an overhaul in the current way they access care.
However, for persons with mental illnesses that do allow them to carry on with daily life, this bill does little. At the core of the bill's mechanism is the definition of mental illnesses. Section 3 of the bill provides that mental illness is to be determined in line with the diagnostic criteria outlined by the World Health Organisation as to be notified by the Central Government. An instant criticism of this point is that the diagnostic criteria should be determined by medical boards independently of the government, but since there is a link between the government's notified criteria and the World Health Organisation, one can allow this criticism to pass by stating that this is an attempt to harmonise India's diagnostic criteria with the global diagnostic criteria.
But if we are to go with the WHO diagnostic criteria, the bill falls very short. The bill does not make provisions for protecting people with mental illnesses from employment related discrimination or discrimination from access to non-health related public services or provision of mental health related services in educational and professional establishments.
The bill provides that person will have limited protections against reprisals from their employer should their employer wish to use their illness as a ground to terminate their employment or discriminate against them in the work place (such as hold back a promotion etc) — causing an employee to have to hide their out-patient treatment, therefore rendering their access to insurance moot as most employees in India have access to health insurance via their employer. What about those suffering from clinical depression under this legislation, but haven't been admitted into a mental health facility for full time care and if they were only using out-patient services? What about children who have been diagnosed with a learning disability — a disability that could carry on affecting the child's university applications even though the child has overcome or is under treatment for that difficulty. This would result in either parents treating their children "off the books" or not treating them at all and resorting to more 'traditional' methods of dealing with mental illness such as trying to pray or beat it out of them.
The bill doesn't account for those with autism, which is a spectrum disorder. Persons with autism can be highly functional individuals who possess high functioning skills, and be integral elements of the work force. However, they may require accommodations to cater to issues such as their anxiety, or other traits associated with autism such as their inability to understand social cues etc. They should ideally be in a position to bring these issues up safely with the Human Resources (HR), but they won't be able to, in the absence of a provision protecting the termination of their employment should their employer see their illness in a negative light.
Section 21 of the bill concerns itself with protecting the rights of mentally ill persons only so far as the right to equal treatment in relation to physical illness is concerned. But does not protect their rights in relation to discrimination from employers, institutions and other places where they may also face discrimination.
Mental illness in India carries with it a long history of stigma and discrimination. While this bill is a welcome step and the most revolutionary step since the most early mental health legislation in India, there is long way to go before the work in this area can be said to be over. India is currently home to the world's second largest population. With a sample size that large, we have to brace ourselves for that fact that we are going to have people with mental illnesses who are going to be "functional adults" and the law is going to have to step in to protect them as well when it needs to. One hopes, the state governments will step in and expand on the bill and mandate these provisions to ensure a comprehensive system of care for the mentally ill in India.
Updated Date: Apr 04, 2017 15:29 PM