Mental Health Law

Prof. Raj Varma

Introduction
• Mental health problems are one of the main causes of the burden of
disease worldwide.
• In the UK, they are responsible for the largest burden of disease– 28%
of the total burden, compared to 16% each for cancer and heart disease
• One in four people in the UK will experience a mental health problem in
any given year.
• Mental health services in the UK are overstretched, have long waiting
times and in some regions lack specialist services.
• Despite this, public spending is focused almost entirely on coping with
crisis, with only an insignificant investment in prevention
• Mental health research receives only 5.5% (£115 million) of total UK health
research spending
• Around 50% of women with perinatal mental health problems are not
identified or treated.
• The costs to the UK economy for untreated perinatal mental health problems
is estimated to be around £8.1 billion for each one-year cohort of births; this
is the equivalent to around £10,000 per year for every single birth in the UK.
• These costs are generally the result of not identifying mothers’ mental health
needs or treating them effectively
• However, when mothers are referred, there are known treatments that work
well for most cases
• Paternal mental health is also of crucial importance. Postnatal
depression in fathers has been associated with emotional and
behavioural problems in their child
• Ten per cent of children and young people (aged 5-16 years) have a
clinically diagnosable mental problem yet 70% of children and
adolescents who experience mental health problems have not had
appropriate interventions at a sufficiently early age.
• In England, women are more likely than men to have a common
mental health problem and are almost twice as likely to be diagnosed
with anxiety disorders
• The Office for National Statistics (ONS) found that, in 2013, 6,233
suicides were recorded in the UK for people aged 15 and older. Of
these, 78% were male and 22% were female.
• A 2006 UK Inquiry identified 5 key factors that affect mental health
and wellbeing of older people, these were: discrimination,
participation in meaningful activities, relationships, physical health
and poverty.
• Common mental health problems such as depression and anxiety are
distributed according to a gradient of economic disadvantage across society
with the poorer and more disadvantaged disproportionately affected from
common mental health problems and their adverse consequences.
• Mental health problems constitute the largest single source of world economic
burden, with an estimated global cost of £1.6 trillion (or US$2.5 trillion) –
greater than cardiovascular disease, chronic respiratory disease, cancer, and
diabetes on their own.20 In the UK, the estimated costs of mental health
problems are between £70-£100 billion each year and account for 4.5% of GDP.
• In the UK, 70 million days are lost from work each year due to mental ill health
(i.e. anxiety, depression and stress related conditions), making it the leading
cause of sickness absence
WHO 10 basic principles
1. Promotion of Mental Health and Prevention of Mental Disorders
2. Access to Basic Mental Health Care
3. Mental Health Assessments in Accordance with Internationally Accepted
Principles
4. Provision of the Least Restrictive Type of Mental Health Care
5. Self-Determination
6. Right to be Assisted in the Exercise of Self-Determination
7. Availability of Review Procedure
8. Automatic Periodical Review Mechanism
9. Qualified Decision-Maker
10. Respect of the Rule of Law
Mental health and India
• Be it autism and intellectual disability in childhood, adult conditions such as
depression, anxiety, substance abuse, and psychosis or dementia in old age, the
world is facing a challenge in the form of mental illness.
• According to an estimate by the World Health Organization (WHO), mental illness
makes about 15% of the total disease conditions around the world.
• he same estimate also suggests that India has one of the largest populations
affected from mental illness. As a result, WHO has labelled India as the world’s
‘most depressing country’.
• Moreover, between 1990 to 2017, one in seven people from India have suffered
from mental illness ranging from depression, anxiety to severe conditions such as
schizophrenia, according to a study. It is no exaggeration to suggest that the
country is under a mental health epidemic.
• The first and foremost reason for India to lose its mental health is the lack of
awareness and sensitivity about the issue.
• There is a big stigma around people suffering from any kind of mental health
issues.
• They are often tagged as ‘lunatics’ by the society. This leads to a vicious
cycle of shame, suffering and isolation of the patients. Also, there is a
serious shortage of mental healthcare workforce in India.
• According to WHO, in 2011, there were 0·301 psychiatrists and 0·047
psychologists for every 100,000 patients suffering from a mental health
disorder in India.
• It is estimated that the economic loss due to mental health conditions
during 2012-2020 is 1.03 trillion dollars.
• Mental health situation in India demands active policy interventions and resource
allocation by the government.
• To reduce the stigma around mental health, we need measure to train and sensitize
the community/society.
• This can happen only when we have persistent nationwide effort to educate the
society about mental diseases. We also need steps to connect the patients with each
other by forming a peer network, so that they could listen and support each other.
• Moreover, people experiencing mental health problems should get the same access
to safe and effective care as those with physical health problems.
• Additionally, mental illness must mandatorily be put under the ambit of life
insurance. This will help people to see mental illness with the same lens as they use
for physical diseases.
• Loss to Economy: due to delayed or non treatment of mentally ill persons there
is loss in terms of human capital and an overall loss to the economy in the form
of lost man-days, plus the poor is stressed as most of mental healthcare is in
urban areas and are unavailable in primary healthcare centres in rural areas,
this increases out of pocket expenditure.
• Demographic Dividend: According to WHO, the burden of mental disorders is
maximal in young adults. As most of the population is young (India has more
than 50% of its population below the age of 25) so it requires a special focus in
mental health of youth by the government to reap the benefits arising out of
the demographic dividend in India.
• Post-Treatment gap: There is need for proper rehabilitation of the mentally ill
persons post his/her treatment which is currently not present.
• Poor awareness about the symptoms of mental illness, social stigma and
abandonment of mentally ill especially old and destitute leads to social
isolation and reluctance on part of family members to seek treatment for the
patient has resulted in a massive treatment gap, which further worsens the
present mental illness of a person.
• Rise in Severity: Mental health problems, tend to increase during economic
downturns, therefore special attention is needed during times of economic
distress.
• Prone to abuse: Mentally ill patients are vulnerable to and usually suffer from
physical abuse, sexual abuse, wrongful confinement, even at homes and
mental healthcare facilities which is a cause of concern and a gross human
right violation.
Mental Healthcare laws and policies
• Starting with Article 21 of the Constitution of India, the right to life
has been expanded to include the right to health.
• It is essential that mentally ill persons receive good quality mental
healthcare and living conditions in their homes and society.
• Way back in 1982, the Government of India launched the National
Mental Health Programme (NMHP).
• After 38 years, it is still on paper. NMHP was introduced considering
the heavy burden of mental illness on the community, and the
absolute inadequacy of mental health care infrastructure in the
country to deal with it.
• The Mental Health Act, enacted in 1987, has been the target of criticism
since its introduction. The National Health Policy, 2002 incorporates
provisions on mental health. However, no separate policy on mental
health exists.
• In 1996, the District Mental Health Program (DMHP) was added and re-
strategized in 2003 to include two important schemes of Modernization of
State Mental Hospitals and Up-gradation of Psychiatric Wings of Medical
Colleges/General Hospitals. India signed and ratified the Convention on
Rights of Persons with Disabilities and its Optional Protocol in 2007.
• In 2009, the Manpower Development Scheme (Scheme-A & B) was made
part of the Program.
• It is important to note that the DMHP envisages provision of basic
mental health care services at the community level and has the
following objectives:

a. To provide sustainable basic mental health services to the community

and to integrate these services with other health services;
b. Early detection and treatment of patients within the community itself;
c. To reduce the stigma of mental illness through public awareness; and
d. To treat and rehabilitate mental patients within the community.
• A Mental Health Policy Group (MHPG) was appointed by the Ministry
of Health and Family Welfare (MoHFW) in 2012 to prepare a draft of
DMHP for Twelfth Five Year Plan (2012–2017).
• The main objective was to reduce distress, disability, and premature
mortality related to mental illness and to enhance recovery from
mental illness by ensuring the availability of and accessibility to
mental health care for all in the plan period, particularly the most
vulnerable and underprivileged sections of the population.
• Its other objectives were to reduce stigma, promote community
participation, increase access to preventive services to at-risk population,
ensure rights, broad-base mental health with other programs like rural and
child health, motivate and empower workplace for staff, improve
infrastructure for mental health service delivery, generate knowledge and
evidence for service delivery, and establish governance, administrative, and
accountability mechanisms.
• A central mental health team has also been constituted to supervise and
implement the programme. A Mental Health Monitoring System (MHIS) is
being developed. Standardized training was proposed with the help of
training manual.
• After the National Mental Health Survey during 2014–2016, the Government of
India started making efforts to improve the mental health services by formulating
policies like the National Mental Health Policy (NMHP), 2014 and consequently,
the Mental Healthcare Act, 2017 was enacted and notified on May 29, 2018.
• The new Act focused on the rights of a mentally ill person and repealed the
Mental Health Act, 1987.
• Unfortunately, the new Act has been introduced without addressing the issues
which troubled the Mental Health Act, 1987. The new Act ignores the presence of
a mental health program in the country.
• The Act should have mandated all the states to implement NMHP, and the state
mental authority should have been made responsible for the same. The only way
the Act can correctly implement the right to mental healthcare is by enabling the
implementation of NMHP across all states.
Summary of policies
• In 1982, the government of India launched the National Mental Health Programme (NMHP)
to improve the status of mental health in India.
• NMHP has 3 components:
• Treatment of Mentally ill
• Rehabilitation
• Prevention and promotion of positive mental health
• District Mental Health Programme (DMHP), 1996 – it’s objective is to provide community
mental health services at the primary health care level.
• Mental Health Act (MHA-87) was enacted in 1987.
• Mental Health Care Act 2017 repealed the Mental Health Act, 1987.
• WHO’s Comprehensive Mental Action Plan 2013-2020 was adopted by the 66th World Health
Assembly.
• The Sustainable Development Goals target 3.4 and 3.5 talks about reducing mental illness
within the population.
• The Mental Health Atlas was launched by WHO in 2017.
Mental Health Act 2017
• Right to make an Advance Directive
• Patient can state on how to be treated or not to be treated for the illness during a mental health
situation.
• Right to appoint a Nominated Representative
• A person shall have the right to appoint a nominated representative to take on his/her behalf, all
health related decisions
• Right to access mental health care
• Right to free & quality services
• Right to get free medicines
• Right to community living
• Right to protection from cruel, inhuman and degrading treatment
• Right to live in an environment, safe and hygienic, having basic amenities
• Right to legal aid
• No Electroconvulsive Therapy (ECT) without anesthesia
• Attempt to commit suicide not an offence
• This act brought changes in Section 309 of the Indian Penal Code
(which criminalized attempted suicide).
• Now, a person who attempts to commit suicide will be presumed to
be “suffering from severe stress’’ and shall not be subjected to any
investigation or prosecution.
• The act envisages the establishment of Central Mental Health
Authority and State Mental Health Authority.
Importance and impact
• For the first time in our country, the Act creates a justiciable right to
mental healthcare. This is fascinating because physical healthcare is not
yet a statutory right!
• The right to mental healthcare is the core of the Act and represents the
government’s attempt to address the neglect of this aspect of
healthcare for decades.
• The law also requires the government to make provisions for persons
with mental illness to live in the community and not be segregated in
large institutions. The government must now make provisions for half-
way homes, group homes and other such facilities for rehabilitating
persons with mental health problems.
Importance and impact
• Being a welfare state, our Country plays a vital role in social inclusion and provides
equal opportunity and participation. The Government of India ratified the United
Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007.
• The Convention mandates the laws/rules governing the country to follow its
recommendations. There was a grave need for the present law to suit the changing
times and for it to be in line with the UNCRPD. Hence, the legislature harmonized
the national legislations.
• The preamble of the Mental Healthcare Act, 2017 (Act or MHCA) aims to provide
mental healthcare and services for persons with mental illness and to promote, and
fulfil the rights of such persons during delivery of mental healthcare and services.
• The act is progressive, patient-centric, and rights-based. Chapter 5 on the "Rights of
the persons with mental illness" is the heart of this legislation.
• The law takes a rights-based approach to all aspects of mental
healthcare.
• There are times when persons with mental illness are unable to
express or communicate their preference for treatment to their
treating psychiatrists.
• Therefore, the new Act makes provision for writing an advance
directive which people can make when they are well.
• Through such advance directives, people can state their preferences
for treatment, including how they would like to be treated for mental
illness, the treatments they would not like to take, and finally,
nominate a person who could take decisions on their behalf in such
situations.
• This kind of provision has been made for the first time in healthcare
legislation in India.
• The Act provides persons with mental illness protection from cruel, inhuman
and degrading treatment, right to information about their illness and
treatment, right to confidentiality of their medical condition and right to
access their medical records, to list just a few rights.
• The government is explicitly made responsible for setting up programmes for
the promotion of mental health, prevention of mental illness and suicide
prevention programmes.
• Given the huge shortage of trained mental health professionals in the country,
the Act requires the government to meet internationally accepted norms for
the number of mental health professionals within 10 years of passing this law.
• It has also effectively decriminalized suicide attempts by ‘reading down’ the
power of section 309 of the Indian Penal Code.
• Definition of mental illness
• The Act defines "Mental Illness" as "a substantial disorder of thinking, mood,
perception, orientation, or memory that grossly impairs judgment, behaviour,
capacity to recognize reality or ability to meet the ordinary demands of life, mental
conditions associated with the abuse of alcohol and drugs, but does not include
mental retardation which is a condition of arrested or incomplete development of
mind of a person, especially characterized by sub normality of intelligence."
• As per this definition, this Act is applicable only to those who have "substantial"
impairment in thinking, mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary
demands of life.
• This law does not apply to all persons with mental illness (PMI). In simple words, it
applies to those who have severe mental disorders. Section 3 of the Act says that
mental illness is to be determined in accordance with nationally or internationally
accepted medical standards.
• Positive Aspects of the MHCA, 2017
• The Act envisages the right of the patients to access a range of mental healthcare
facilities.
• In case these services are not available, a PMI is entitled for compensation from
the state. Various rights such as right to community living, right to confidentiality,
right to access medical records, right to protection from cruelty and inhumane
treatment, and right to equality and non-discrimination are all ensured by the
law.
• It does not make distinctions amongst the PMI on the basis of poverty though all
destitute and homeless PMI are entitled to free mental health treatment.
• It restricts electroconvulsive therapy (ECT) without anaesthesia and any type of
ECT to children and also restricts psychosurgery.
Concept of Consent
• This legislation rotates around autonomy and gives every person the
right to make an advance directive which is a written statement
explaining "how they want to be cared" and "how they should not be
cared for" in case they become incapacitated because of the mental
illness.
• Further, any person (except minors) have the right to choose a
Nominated Representative (NR) to assist the patient with treatment-
related decisions.
• Any information relating to a PMI undergoing treatment in a Mental
Health Establishment (MHE) shall not be released to the media without
the consent of the PMI.
• This right shall also apply to all information stored in electronic or
digital format in real or virtual spaces.
• The media also need to restrain themselves from depicting or
disclosing the identity of the PMI during reporting in specific cases
that come to media attention. Right to privacy is maintained under
the Act.
• Under the Act, there is a provision for involuntary admission with the
support of the NR and also appeals can be made to the Mental Health
Review Board (MHRB), which will also review all admissions that are
extended beyond 30 days.
Mental Health legislations in other
countries
• In the rural areas and poorer urban areas of South Africa, there are
very few psychiatrists or medical practitioners with knowledge and
experience of psychiatry.
• The Italian Public Law enacted in 1978, and the Mental Health Act of
1983 in England and Wales, are prominent examples of a shift from
custody and incarceration to the integration and rehabilitation of
persons with mental disorders.
• In Japan, the Mental Hygiene Law was enacted in 1950 and
encouraged the development of psychiatric hospitals and ensured
financial support for patients who were admitted involuntarily.
 Prohibitions and Punishments
• MHCA, 2017 also restricts the procedures such as sterilization (of men or women when
intended as a treatment for mental illness), unmodified ECT, seclusion, and chaining.
• According to Section 309 of the Indian Penal Code, 1860, "Whoever attempts to commit
suicide and does any act towards the commission of such offense, shall be punished with
simple imprisonment for a term which may extend to 1 year or with fine, or with both".
• The government has a duty to provide care, treatment, and rehabilitation to a person having
severe stress and who attempts to commit suicide, to reduce the risk of recurrence of such
an attempt.
• Punishments prescribed under the Act are too harsh, and there is no provision to assess
whether a contravention is accidental, due to practical difficulties, or deliberate.
• Medical personnel are already covered under various legislations such as the Consumer
Protection Act, 1986, Medical Council of India, State Medical Council, National Human Rights
Commission, and civil and criminal laws against medical negligence.
• Role of family
• The Act has not specified any role of the family members in providing
care in the hospital environment.
• There is a huge need for family members to be involved in the
provision of care. If there are no family members, the medical board
(comprising of two mental health professionals) can make provisions
to surpass the requirement of a family member.
• Hence, provision in law needs to be introduced wherever involuntary
inpatient treatment is required - by default one family member needs
to accompany and be with the PMI during inpatient treatment.
Analysis
• There is a need to make provisions to enhance the resources and skills among
professionals/workers in the field of mental health and to make provisions for
adequate financial support/budget.
• The earlier law (Mental Health Act, 1987) did not specifically provide a
definition of mental illness. It defined a "mentally ill person" as "a person who is
in need of treatment by reason of any mental disorder, other than mental
retardation".
• Substance use disorder (SUD) was not specifically mentioned anywhere else,
except in Chapter III. However, the current act, MHCA 2017, has included SUD in
the definition of mental illness itself.
• A drawback is contained in Section 89 of the MHCA, 2017, which allows a
person with mental illness to be admitted and treated without his consent, but
with request from a nominated representative.
• The Act ignores that the family assumes the role of primary caregivers
first. Even the clinicians depend on the family. Thus, having adequate
family support is the need of the patient, the clinician, and the
healthcare administrators.
• The Act also ignores the presence of a mental health program in the
country.
• The Act should have mandated all the states to implement National
Mental Health Programme and the state mental authority should
have been made responsible for the same.
• There are various ways through which the pitfalls can be corrected.
One such way is to remove the concept of addiction treatment from
the ambit of MHCA, 2017 by eliminating the reference of SUD from
the definition of mental illness.
• Many countries like United Kingdom, Australia (in many of its states),
and New Zealand have kept SUD out of their mental health acts and
have enacted separate laws for addiction and its treatment because
person(s) with substance abuse act differently and the treatment for
such person(s) has to be different.
• India has highest number of suicides in the world. The high crime and drug
addiction rate in India also has direct nexus with mental health. The pandemic has
added unseen mental health issues which has unearthed drawbacks in the existing
mental health infrastructure and laws/polices.
• This pandemic has emerged as an eye-opener to show that India’s mental
healthcare system needs strengthening and more support from the Central or State
governments.
• The new Act requires the government to provide “less restrictive community-based
establishments including half-way homes, group homes and the like for persons
who no longer require treatment” in restrictive mental health establishments.
• However, in reality, such rehabilitation facilities are either missing or inadequate in
India’s landscape of mental healthcare services.
• The Central and State governments are yet to comply with the 2017
Supreme Court direction (Gaurav Kumar Bansal v. State of UP 2017)
for setting up rehabilitation homes for persons living with mental
illness (who have been cured, or who do not need further
hospitalization, or who are homeless or are not accepted by their
families).
• As of 2020, the states have only provided a road-map towards
implementation
Suggestions
• Increase Resources
• Increasing mental healthcare facilities and related infrastructure through
more resource allocation in the budget.
• Adequate Mental healthcare professional availability.
• Increasing Awareness:
• For patients to undertake timely treatment
• To breakdown societal prejudices/ stigma
• To discourage questionable treatment from faith healers.
• For eg. “The Live Love Laugh Foundation” which aims to reduce the stigma,
spread awareness and change the way we look at Mental Health.
• More investment in PHC: There is only one primary healthcare centre for
more than 51,000 people in India.
• The World Bank estimates that 90% of all health needs can be met at the
primary healthcare level thus more investments are needed in order for
patients to get easier, cheaper and faster access to services, plus, training at
grass root level for ASHA, ANM, AWW centre workers on how to recognize
common to severe mental health problems like schizophrenia, anxiety,
depression, and alcohol abuse.
• Digital initiatives are helping improve rural India’s mental health through
telemedicine like Schizophrenia Research India’s (SCARF) mobile bus clinic
which is run by an NGO; there is need for scaling up such initiatives which will
bridge the rural-urban divide.
• Community Partnership: By forming their self-help groups of carers families along with
NGO’s which brings community participation and helps reduction in social stigma
associated with mental illness.
• Healthcare is a state subject – there is need for better coordination between Center-
States for proper implementation.
• Make psychotropic drugs available: Essential psychotropic drugs should be provided at
all levels of healthcare. These medicines should be included in essential drugs list.
• Empathetic Service delivery: Delivery of services should be sensitive, compassionate and
free from stigma and discrimination in public healthcare institutions plus there is need
for police sensitization and training regarding recognition of acute mental disorders and
undertaking of necessary action to protect the human rights of the mentally ill, his
family and his fellow citizens.
• Financial support from the government to the families so that direct costs of treatment
are covered and families are not overburdened.
Mental health and Human rights
• During the 183rd plenary meeting on Dec. 10, 1948, the United Nations
General Assembly (UNGA) adopted the Universal Declaration of Human
Rights (UDHR) Article 25, which states that:
“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,
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.”
• This UN Matters column will examine human rights with a specific focus
on global mental health to honor this anniversary. Undoubtedly, the most
relevant part of Article 25 connecting mental health and human rights is
“the right to a standard of living adequate for health and well-being.
• Mental Health is a Human Right
• The UN Human Rights Council (UNHRC) is an inter-governmental body
within the UN’s system that is made up of 47 countries elected from
the full membership. The council is responsible for the promotion and
protection of all human rights around the globe, and it views physical
and mental health as a central tenet of its work.
• Through its appointed Special Rapporteur, currently Dainius Pūras
from Lithuania, the UNHRC helps Member States and others promote
and protect the right to the highest attainable standard of physical
and mental health (right to health).
Principles
• The right to health is an inclusive right, extending not only to timely and
appropriate health care, but also to the underlying determinants of health,
such as access to safe and potable water and adequate sanitation, healthy
occupational and environmental conditions, and access to health-related
education and information, including sexual and reproductive health.
• The right to health contains both freedoms and entitlements. Freedoms
include the right to control one’s health, including the right to be free from
non-consensual medical treatment and experimentation. Entitlements
include the right to a system of health protection (i.e., health care and the
underlying determinants of health) that provides equality of opportunity
for people to enjoy the highest attainable standard of health.
• The right to health is a broad concept that can be broken down into
more specific entitlements such as the rights to maternal, child and
reproductive health; healthy workplace and natural environments;
the prevention, treatment and control of diseases, including access to
essential medicines; and access to safe and potable water.
The Relationship between Human Rights and Mental
Health
• The Office of the United Nations High Commissioner for Human Rights (OHCHR)
declares that “the right to health is a fundamental part of our human rights and of
our understanding of a life in dignity”. The preamble to the 1946 Constitution of 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 or infirmity.”
• The relationship between mental health and human rights is an integral and
interdependent one.
• For instance, human rights violations such as torture and displacement negatively
affect mental health. Second, mental health practices, programs, and laws, such as
coercive treatment practices, can hinder human rights. Finally, the advancement of
human rights benefits mental health. These benefits extend beyond mental health
to the close connection between physical and mental health.
• There are thus clinical and economic reasons, as well as moral and legal obligations,
to advance mental health care as fundamental to human rights.
The Current Picture of Mental Health Globally from the
OHCHR Report

• Mental health conditions will affect one in four people throughout their
lifetime.
• Globally, mental health does not enjoy parity with physical health in terms of
budgeting, or medical education and practice.Stigma is a significant
determinant of quality of care and access to the full range of services
required by persons with mental health conditions.
• Almost two thirds of persons with mental health conditions will not seek
treatment for their condition.
• Poor mental health is a predisposing factor for physical health problems.
• Persons with mental health conditions have a much-reduced life expectancy
compared with the general population, with an estimated drop in life
expectancy of 20 years for men and 15 years for women.
• Stigmatization and Discrimination
• The UN right to health expert, Special Rapporteur Dainius Pūras,
states that one of the most basic challenges to mental health is
stigma and discrimination.
• The WHO (2014) contends that the social stigma continues to be a
barrier to seeking and receiving treatment for mental health
difficulties. Carrying a label of mental illness does not only affect the
person with the illness, but it can also affect family members and
close friends, which in turn, can lead to a similar burden (known as
courtesy stigma).
• There are many factors that influence stigma about
mental illness, as mental illness is understood
differently than physical health due to economic,
cultural, religious and political reasons. People often do
not seek professional help and they rely on other
alternatives for fear of discrimination, or because they
believe that it can resolved without treatment.
• Efforts by many mental health professionals who have
tried to destigmatize mental illness by explaining it in
biological terms have sometimes backfired in practice
United Nations (UN) Initiatives
• There is growing recognition within the international community that mental health
is one of the most neglected, yet essential development issues in achieving
internationally agreed development goals.
• The UN and global agencies such as the OHCHR have advocated for a number of
policy shifts to address the stigma and discrimination specifically experienced by
people with mental illness, and/or with psychosocial disabilities.
• These policies include the systematic inclusion of human rights in policy and the
recognition of the individual’s autonomy, agency and dignity. Key areas to target
include:
• Improving access and quality of mental health service delivery. Creating legal and
policy environments that are conducive to the realization of the human rights of
persons with mental health conditions and psychosocial disabilities.
• Integrating prevention programming and policy that combats stigma and
discrimination.
• On July 1, 2016, the OHCHR mandated the Human Rights Council in resolution 32/18,
to prepare a report identifying some of the major challenges faced by users of mental
health services, persons with mental health conditions and those with psychosocial
disabilities.
• The report indicates that despite the impact of mental health conditions on
individuals, families and communities, there is inadequate investment of both
financial and human resources to mental health.
• For an example, the global annual spending on mental health is reported to be less
than $2 per person and less than $0.25 per person in low-income countries.
• In many situations, the meager resources are not judiciously allocated for maximum
benefit, as significant proportions of mental health budgets are allocated to psychiatric
hospitals, and not to fund community-based mental health services that have strong
empirical support.
• The implications include inadequate provision of services, insufficiently
trained mental health professionals, minimal accessibility to quality mental
health services, and the inadequate delivery of services that meet human
rights standards.
• Accordingly, these practices violate article 2 (1) of the International Covenant
on Economic, Social and Cultural Rights, which states that: “
Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic
and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures.”
• The Right to Health Framework
• The UN’s work to address mental health stigma and discrimination has
largely focused on the right to health framework.
• This framework is envisioned to be a long term programmatic goal. It
asserts that health and health care is an inclusive right encompassing
both timely and appropriate health care and the underlying
determinants of health.
• In the case of mental health, determinants include low socioeconomic
status, violence and abuse, adverse childhood experiences, early
childhood development and whether there are supportive and tolerant
relationships in the family, the workplace, and other settings.
SDG
• The right to health framework has been complemented by the global commitment
made in the 2030 Agenda for Sustainable Development Goals (SDG), especially
SDG 3, which aims to ensure healthy lives and promote well-being for all, at all
ages.

• Target 3.4 - addresses prevention and treatment, and promotes mental health and
well-being
• Target 3.5 - addresses the prevention and treatment of substance abuse, including
narcotic drug abuse and the harmful use of alcohol
• Target 3.8 - addresses universal health coverage. While this target focuses on areas
where mental health is not specifically referenced, there are other relevant issues
that include financial risk protection, access to quality essential health-care
services, affordable essential medicines, and vaccines for all.
Mental Illness and Marriage
• From a psychiatric perspective, a Hindu marriage is voidable according to this
law if either party:
1. Is incapable of giving a valid consent as a consequence of unsoundness of mind
or
2. Though capable of giving a valid consent has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children, or
3. Has been subject to recurrent attacks of insanity. In the above-mentioned
three circumstances, the marriage can be held null and void. Additionally, if the
marriage has not been consummated due to impotence of the respondent, the
marriage can be considered null and void. Also, the marriage can be considered
null and void if that the consent of the guardian was obtained by force or by
fraud; or the respondent was at the time of the marriage pregnant by some
person other than the petitioner.
Special Marriage Act (1954)
• This law is applicable to persons from any religion undergoing a civil marriage. A
marriage according to this law can be annulled if:
a. Either party has a living spouse at the time of marriage;
b. Either party is incapable of giving a valid consent to it in consequence of
unsoundness of mind, or has been suffering from mental disorder of such a kind
or to such an extent as to be unfit for marriage and the procreation of children; or
has been subject to recurrent attacks of insanity or epilepsy;
c. The male has not completed the age of 21 years and the female the age of 18
years;
d. The parties are within the degrees of prohibited relationship. Additionally, a
marriage can be considered null and void if the respondent was impotent at the
time of the marriage and at the time of the institution of the suit.
• Case 1: Anima Roy v. Prabadh Mohan Roy (AIR 1969, Cal 304)
• In this case, the respondent was found to be suffering from schizophrenia 2
months after marriage. The psychiatrist who examined the respondent could not
determine the exact time of onset of the illness. Consequently, it was held that the
illness at the time of marriage was not proved. Hence the nullity was not granted.

• Case 2: Kartik Chandra v. Manju Rani (AIR 73, Cal 545)

• The respondent in this case exhibited abnormal behaviour after three days of
marriage. The respondent had appeared for her matriculation exam three months
prior to the examination. Observant of the above detail, the court presumed that
this state of sanity continued till her marriage and the recent breakdown was not
viewed as lunacy at the time of marriage.
• Case: Kollam Padmalatha Vs. Kollam Chandrasekhar (Supreme Court, 2000)
• The court in this case ruled that wife can’t be dumped on grounds of
schizophrenia. The court considered that schizophrenia is a treatable,
manageable disease, which can be put on a par with hypertension and diabetes.
The court observed that illness has its problems, but can this be reason for
seeking dissolution of marriage especially after a child is born? The court stated
that wife also must stick to treatment plan and get better.
• In all these cases, the court's opinion remains that the person should have the
capacity to understand the contract of marriage and the duties and
responsibilities entailed by it. Even where the respondent was found to be
subnormal in mental capacity, slow to understand complicated questions, but
able to give relevant answers to simple questions and could manage herself and
all her affairs in her own simple way, it was held that individual had the capacity
to get married and cope with the obligations of marital life.
Rationale
• The predominant legal reason for prohibiting marriage of a mentally
ill person is that the individual may be unable to give consent to
marriage and understand the obligations of a martial relationship.
• Consent and understanding are essential legal requirements whether
marriage is considered a contract or a sacrament.
• A mentally ill person may be considered unfit to marry from a
psychiatrist's perspective because of the stress of new relationship
may further exacerbate the mental illness.
Mental Illness and Contract
• According to section 12 of The Indian Contract Act,1872, A person is said to
be of sound mind for the purposes of making a contract, if, at the time when
he makes it, he is capable of understanding it and of forming a rational
judgment as to its effect upon his interests
• A person who is usually of sound mind but occasionally of unsound mind may
not make the contract when he is of unsound mind whereas a person who
usually is of unsound mind but sometimes becomes sound can contract in
those intervals when he is sound.
• In Nilima Ghosh v. Harjeet Kaur (AIR 2011 Del 104) it was discussed that the
most relevant thing for declaring an agreement void is whether the person in
question was suffering from mental disability on the date of execution of the
agreement
• India Contract law also treats a drunken person similar to a person of
unsound mind.
• In Ashfaq Qureshi v. Aysha Qureshi (Nivedita Yadav) (2010), where a Hindu
girl was married to a Muslim man, the girl filed a suit on the grounds that
she was not in her sense as she was under intoxication at the material time
and was not conscious of ongoing conversion and nikah ceremony.
• And also that she had not lived with that man for a single day.
• She proved all the stated facts and thus the marriage was declared void on
the grounds that as she was intoxicated so she was not in a position to take
a decision and forming a rational judgement in regard to his interest.
Theory, definition,concept,models

• Distinct from generic medical jurisprudence or healthcare law or

bioethics

• Definition
Public health law is the study of the legal powers and duties of the state to
assure the conditions for people to be healthy (to identify, prevent, and
ameliorate risks to health in the population) and the limitations on the
power of the state to constrain the autonomy, privacy, liberty,
proprietary, or other legally protected interests of individuals for the
common good. The prime objective of public health law is to pursue
the highest possible level of physical and mental health in the
population, consistent with the values of social justice.
Concept
It connotes:
government power and duty,
coercion and limits on state power
population perspective
prevention orientation, and
social justice commitment
Vital Role of Law in advancing health: core values:public’s
health and common good

• Populations: shared risk, large scale intervention (unlike

individual choice): TB, HIV, etc (Miasma model:agent model:
CDs, sanitation epidemic link, 19thc)
• Prevention: avert injury or harm (foundation of well-being,
exercise of rights: theory of human functioning: health as
essential): 4 levels, upstream or downstream: fluoridisation,
consumer goods standards, sanitation: socio ecological
model or behavioral: safe sex, vaccine, nutrition education
etc, screening, NCDs
• Community: social network or civic engagement (good of all)
Role of law: core values
• Government: Power and duty to protect: tax, inspect, regulate, coerce
individuals and business for common good, within constitutional and
scientific limits (commitment required, duty to achieve good of all:
theory of democratic responsibility, public health is classic communal
provision, common goods of clean water, safe roads, sanitation, food
as essential conditions of health): paradox in balance: Direct
regulation, indirect regulation through tort law or deregulation as in
case of drugs or needle exchange
• Social Justice: Fair and equitable treatment esp to disadvantaged:
distributive justice and participative parity in crisis
• State’s Police powers and limits: protect balancing individual rights