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|Year : 2016
: 58 | Issue : 6 | Page
|Mental health, mental illness, and human rights in India and elsewhere: What are we aiming for?
Brendan D Kelly
Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght Hospital, Dublin, Ireland
Click here for correspondence address and
|Date of Web Publication||27-Dec-2016|
| Abstract|| |
The Mental Health Care Bill 2013 was introduced to the Rajya Sabha (India's upper house of parliament) in August 2013 and following 134 official amendments, passed in August 2016. Properly implemented, mental health legislation such as this plays a key role in protecting the rights of the mentally ill, ensuring access to care, and promoting social justice for the mentally ill, their families and carers. In this context, the 2006 United Nations' Convention on the Rights of Persons with Disabilities (CRPD) presents a real opportunity to improve the position of people with disabilities and those disabled by long-term mental illness. The CRPD also presents many challenges to mental health legislators and service-providers, especially in relation to involuntary care, mental capacity, and substitute decision-making. Nevertheless, the CRPD has still generated strong incentive for reform and is an opportunity that should not be missed. Legislation along the lines of India's 2013 Bill offers much that is positive and progressive in terms of standards of care, revised processes for involuntary admission, and enhanced governance throughout mental health services. In this way, this kind of legislation, although imperfect in certain respects, promotes the principles of the CRPD (as outlined in the preamble to India's 2013 Bill). It is important that such initiatives focus not only on the right to liberty but also on rights to treatment, social care, social inclusion, and political empowerment of the mentally ill. Globally, the mentally ill have been neglected for far, far too long. It is time to fix this.
Keywords: Convention on the rights of persons with disabilities, human rights, legislation, mental disorders, mental health, mental health care Bill 2013
|How to cite this article:|
Kelly BD. Mental health, mental illness, and human rights in India and elsewhere: What are we aiming for?. Indian J Psychiatry 2016;58, Suppl S2:168-74
| Introduction|| |
The Mental Health Care Bill 2013 was introduced to the Rajya Sabha, India's upper house of parliament, on 19 August 2013. The legislation aimed "to provide for mental health care and services for persons with mental illness and to protect, promote, and fulfill the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto" (Preamble). The twin emphasis on providing care and promoting rights is critically important in India, as it is elsewhere. This legislative initiative is therefore an exceptionally important one with real potential to improve the position of the mentally ill and enhance their experiences of good mental health, social justice, and liberty. 
The current paper examines this development in the broader global context of human rights, mental health, and mental illness. More specifically, the first part of the paper looks at the background to current human rights standards relating to mental illness, and the second part focuses on the Convention on the Rights of Persons with Disabilities (CRPD),  which was adapted by the United Nations (UN) in 2006 and ratified by India in 2007. The 2013 Bill sought explicitly to harmonize Indian legislation with the CRPD, so this part of the paper focuses on two key issues in this context: involuntary care and mental capacity. Finally, some conclusions are presented, emphasizing the need to increase the level of social justice experienced by the mentally ill and their families, and to take a broad view of rights, spanning not just mental health services but the experiences of the mentally ill across broader society in India, the rest of Asia and elsewhere around the globe.
| Mental health, mental illness, and human rights: What are the standards?|| |
In light of the unprecedented humanitarian atrocities of the Second World War, the UN was established in October 1945 to promote international peace and security and reduce the possibility of further wars. One of the primary aims of the new organization was to articulate an intellectual and legal framework that would support the observance of human rights among member states and promote a culture of human rights throughout the world.
To promote these goals, the Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly at Palais de Chaillot in Paris on 10 December 1948.  The UDHR was presented as a nonbinding statement of rights, the first stage in a process which continued with the drafting of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, adapted by the UN General Assembly in 1966.
The UDHR comprises thirty articles, preceded by a short preamble which recognizes that "the inherent dignity (and) the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," and that "it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law" (Preamble).
The first article of the UDHR states that "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood" (Article 1). Article 2 emphasizes the universal nature of rights:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
This emphasis on universality is both useful and necessary, not least because previous declarations of rights had commonly been interpreted in such a way as to exclude certain groups. While mental illness was not mentioned explicitly in the list of factors which were not to form the basis of discrimination, it undoubtedly belongs under the term "other status." In 1991, the UN made this more explicit in its Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care:
"Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment' (Principle 1). 
The remainder of the UDHR went on to articulate a range of rights fundamentally rooted in the principle of liberty, including "the right to life, liberty, and security of person" (Article 3). The explicit articulation of this right, especially in the context of universal rights, is particularly relevant to the mentally ill, not least because of their increased risk of lengthy involuntary detention in various institutions. Again, the need to respect the right to liberty, along with the other rights outlined in the UDHR, was strongly re-emphasized in 1991 in the UN's Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.
Historically, however, people with mental disorder have often experienced high levels of abuse or neglect of human rights, including the rights to liberty and treatment.  The first comprehensive statement of the rights of persons with mental illness was UN's Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care in 1991. Key principles include as follows:
- All people are entitled to receive the best mental health care available and be treated with humanity and respect
- There should be no discrimination on the grounds of mental illness. All people with mental illness have the same rights to medical and social care as others
- Everyone with mental illnesses has the right to live, work, and receive treatment in the community, as far as possible
- Mental health care should be based on internationally accepted ethical standards
- Each patient's treatment plan should be reviewed regularly with the patient
- There shall be no misuse of mental health skills and knowledge
- Medication should meet the health needs of the patient and shall not be administered for the convenience of others or as a punishment
- For voluntary patients, no treatment should be administered without informed consent, subject to some exceptions (e.g., patients with personal representatives empowered by law to provide consent)
- For involuntary patients, every effort should be made to inform the patient about treatment
- Physical restraint or involuntary seclusion should be used only in accordance with official guidelines
- Records must be kept of all treatments
- Mental health facilities must be appropriately structured and resourced
- An impartial review body should, in consultation with mental health practitioners, review the cases of involuntary patients. 
The 1991 statement of principles was important not only for its specific provisions, but also its acknowledgement of a particular need to protect the rights of persons with mental disorder, especially persons with enduring mental disorders whose rights have been significantly ignored in the past. Against this background, the World Health Organization (WHO) went on to articulate ten basic principles of mental health care law in 1996, further emphasizing many of the 1991 principles, and distilling them into ten key principles:
- All persons should benefit from the best possible measures to promote mental well-being and prevent mental disorders
- All persons in need should have access to basic mental health care
- Mental health assessments should be performed in accordance with internationally accepted medical principles and instruments
- All persons with mental disorders should be provided with health care which is the least restrictive possible
- Consent is needed before any type of interference with a person can occur
- If a patient experiences difficulties appreciating the implications of a decision, although not unable to decide, the patient shall benefit from the assistance of an appropriate third party of his or her choice
- There should be a review procedure for any decision made by official, surrogate or representative decision-makers and health care providers
- For decisions affecting integrity or liberty, with a long-lasting impact, there should be automatic periodical review mechanisms
- All decision-makers acting in official or surrogate capacity should be qualified to do so
- All decisions should be made in keeping with the body of law in force in the jurisdiction involved and not on any other basis, or an arbitrary basis. 
Specific aspects of the application of these principles were developed further in 2005 in the WHO Resource Book on Mental Health, Human Rights, and Legislation which presents a detailed statement of human rights issues which, according to the WHO, need to be addressed at national level.  More specifically, the Resource Book includes a detailed "Checklist on Mental Health Legislation" based, in large part, on previous UN and WHO publications. The checklist is a companion to the WHO Resource Book on Mental Health, Human Rights, and Legislation and its objectives are to: (a) assist countries in reviewing the adequacy and comprehensiveness of existing mental health legislation; and (b) help countries in the process of drafting new law. This checklist can help countries assess whether key components are included in legislation or policy, and ensure that the broad recommendations contained in the Resource Book are carefully examined and considered.
The checklist, although lengthy, detailed and explicitly informed by the UDHR, is not a set of absolute rules, and is not legally binding. There are no sanctions for states which fail to accord with its standards and unlike the UN International Covenant on Civil and Political Rights, the UN Human Rights Committee does not review member states' compliance with it.
The WHO checklist is, rather, designed to work by influencing member states as they redraft and implement national mental health laws and policies. Given the checklist's close links with the UDHR and WHO documents outlining the rights of the mentally ill, the authors make the assumption that the checklist standards will be accepted by the international community and deemed worth reflecting in national mental health law and policies. The WHO also explicitly states that some countries may address some or all of these mental health issues in general legislation (e.g., equality legislation), other forms of (not legally binding) regulation, or mental health policy, rather than specific mental health legislation.
The history of psychiatry, however, supports the unique importance of dedicated mental health legislation, rather than general law or nonbinding regulation, for protecting the rights of the mentally ill: while there were substantial advances in the articulation of human rights standards for the general population throughout the early twentieth century, the plight of the mentally ill remained bleak until much later in most jurisdictions, suggesting a need for specific and dedicated measures to protect their rights. The WHO implicitly acknowledges the centrality of law in this process when it presents its final checklist in the Resource Book as a "Checklist on Mental Health Legislation" (italics added).
The Resource Book is especially useful owing to its emphasis on a broad concept of human rights, encompassing not only just issues relating to the right to liberty but also social rights, which are commonly neglected among the mentally ill.  It is this broader concept of human rights to which I will return in the conclusions to this paper. However, first, it is necessary to consider in some depth the CRPD, which is undoubtedly the most significant and challenging development in this field in recent decades, and holds out real hope for significant progress on human rights in the decades ahead.
| Convention on the rights of persons with disabilities|| |
The CRPD was passed by the UN General Assembly in 2006. It was signed and ratified by India in 2007. The CRPD commits ratifying countries 'to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity' (Article 1). It specifies that "persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."
In the context of psychiatry, it seems clear that this definition does not include all people with mental illness, because many mental illnesses are not "long-term." The CRPD does not, however, present its definition of "persons with disabilities" as a comprehensive one but specifies that the term "persons with disabilities" includes people with "long-term" impairments; others, presumably, also fit this definition. , As a result, it is likely that some people with mental illness meet the definition at least some of the time (e.g., a person with chronic schizophrenia or an intellectual disability) but others do not (e.g., a person with time-limited adjustment disorder).
In India, the Mental Health Care Bill 2013 noted, in its preamble, that "India has signed and ratified the said Convention on the 1 st day of October, 2007" and "it is necessary to align and harmonize the existing laws with the said Convention." Thus, the 2013 Bill was explicitly intended to bring India into compliance with the requirements of the CRPD. Did it?
The spirit and principles of the 2013 Bill were certainly in keeping with the CRPD, and the measures outlined would go a long way toward promoting community-based treatment, ensuring access to care, increasing patients' involvement in key care decisions, and strengthening governance in the mental health system. These would be important and historic steps in improving the position of the mentally ill, promoting their rights, and increasing their experiences of mental health care and social justice.
It is not, entirely clear, however, if the 2013 Bill would be compliant with the CRPD in certain other respects, especially in relation to involuntary care, termed 'supported admission' in the Bill.  According to the 2013 Bill, 'supported admission' could occur if, following independent examination, it appeared 'that the person has a mental illness of such severity that the person (i) has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself; or (ii) has recently behaved or is behaving violently toward another person or has caused or is causing another person to fear bodily harm from him; or (iii) has recently shown or is showing an inability to care for himself to a degree that places the individual at risk of harm to himself' (Section 98[a]).
In addition, the Bill would require that:
- "The psychiatrist or the mental health professionals or the medical practitioner, as the case may be, certify, after taking into account an advance directive, if any, that admission to the mental health establishment is the least restrictive care option possible in the circumstances" (Section 98[b]); and
- "The person is ineligible to receive care and treatment as an independent patient because the person is unable to make mental health care and treatment decisions independently and needs very high support from his nominated representative in making decisions" (Section 98[c]).
There are two issues here: first, the CRPD does not appear to permit involuntary care based on mental illness; , second, with regard to the reference to "unable" in (Section 98[c]), the CRPD might not permit any distinction between people on the grounds of mental capacity either (let alone using mental capacity as a basis for deciding upon involuntary care, as in the 2013 Bill). These two issues merit consideration.
Involuntary care and the Convention on the Rights of Persons with Disabilities
First is the issue of involuntary care. The CRPD states that "the existence of a disability shall in no case justify a deprivation of liberty" (Article 14[b]). If certain people with "mental illness" as defined in the 2013 Bill (e.g., some people with chronic schizophrenia) fit the UN definition of "persons with disabilities," then the 2013 Bill would be inconsistent with the CRPD in this respect, given the clear links it draws between mental illness, risk and involuntary admission (see above). This is also the case for mental health legislation in England, Wales, Scotland, Northern Ireland, Ireland and most other jurisdictions, all of which violate this article of the CRPD. ,
In 2009, the UN High Commissioner for Human Rights (2009) underlined this issue by objecting explicitly to any link between 'preventive detention' and risk to self or others stemming from "mental illness":
"Legislation authorising the institutionalisation of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorising institutionalisation of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorising the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness" (Paragraph 49). 
In 2011, the UN Committee on the Rights of Persons with Disabilities (2011), reporting on Tunisia, underscored this point:
- "With reference to article 14 of the Convention ('Liberty and security of the person'), the Committee is concerned that having a disability, including an intellectual or psychosocial disability, can constitute a basis for the deprivation of liberty under current legislation" (Paragraph 24)
- "The Committee recommends that the state party repeal legislative provisions which allow for the deprivation of liberty on the basis of disability, including a psychosocial or intellectual disability" (Paragraph 25)
- "The Committee is concerned about the lack of clarity concerning the scope of legislation to protect persons with disabilities from being subjected to treatment without their free and informed consent, including forced treatment in mental health services" (Paragraph 28)
- "The Committee recommends that the State party incorporate into the law the abolition of surgery and treatment without the full and informed consent of the patient, and ensure that national law especially respects women's rights under (Articles) 23 ('Respect for home and the family') and 25 ('Health') of the Convention" (Paragraph 29). 
The Committee (2011) also made similar points in relation to Spain:
- "The committee recommends that the state party: review its laws that allow for the deprivation of liberty on the basis of disability, including mental, psychosocial or intellectual disabilities; repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability; and adopt measures to ensure that health-care services, including all mental-health-care services, are based on the informed consent of the person concerned" (Paragraph 36)
- "The committee urges the state party to abolish the administration of medical treatment, in particular sterilization, without the full and informed consent of the patient; and ensure that national law especially respects women's rights under (Articles) 23 ('Respect for home and the family') and 25 ('Health') of the Convention" (Paragraph 38). 
The Committee's apparent opposition to involuntary care on the basis of mental illness or "disability" stands in remarkable contrast to the history of mental health services in India and most other countries, where involuntary care has always been based on the presence of mental illness and associated risk. It is not, however, entirely clear what proportion of persons with mental illness are "persons with disabilities" under the CRPD, and not all psychiatric admission can be considered "institutionalisation." In addition, denial of care (especially to the most distressed) on the basis of the CRPD would be grossly inconsistent with the fundamental aims and purpose of the CRPD: people with disabilities are entitled to all the levels and modalities of care that are available to everyone, without distinction of any description. On this basis, abolishing involuntary care in order ostensibly to comply with the CRPD would be a historically radical, counter-productive and it would seem, unlikely step.
Mental capacity and the Convention on the Rights of Persons with Disabilities
The second area of apparent inconsistency between India's Mental Health Care Bill 2013 and the CRPD concerns the 2013 Bill's use of mental capacity when making decisions regarding involuntary care. This featured in the Section 98 criteria for "supported admission," which would require that the person "is unable to make mental health care and treatment decisions independently and needs very high support from his nominated representative in making decisions" (Section 98(1)(c)). This would, essentially, be a test of mental capacity.
Article 12 of the CRPD states "that persons with disabilities have the right to recognition everywhere as persons before the law" and "enjoy legal capacity on an equal basis with others in all aspects of life." Legal capacity is a person's authority or right under law to be recognized as an actor in law, as opposed to mental capacity, which is the cognitive ability to make decisions. Article 12 requires ratifying states to "take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity":
"States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests" (Article 12).
In a "General Comment" on Article 12, however, the Committee on the Rights of Persons with Disabilities, appointed by the UN under the CRPD, explicitly rejects the use of "mental capacity" in any form to determine what supports might be needed for the exercise of legal capacity, arguing that "mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts as are the disciplines, professions, and practices which play a dominant role in assessing mental capacity" (Paragraph 14). 
The Committee contends that the "functional approach" to assessing mental capacity "is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information," and argues that "this approach is flawed for two key reasons:"
"(a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and when the person does not pass the assessment, it then denies him or her a core human right-the right to equal recognition before the law. In all of those approaches, a person's disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity…' (Paragraph 15).
The committee concludes that "the provision of support to exercise legal capacity should not hinge on mental capacity assessments; new, nondiscriminatory indicators of support needs are required in the provision of support to exercise legal capacity" (Paragraph 29[i]). The Committee also explicitly rejects the idea of 'substitute decision-making' of any description:
"States parties' obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article 12 of the Convention" (Paragraph 28).
The fact that India's 2013 Bill used the concept of mental capacity as one of the criteria for "supported admission" appears to place it in discord with the Committee's interpretation of Article 12. The Committee's 'General Comment' has, however, been critiqued strongly, chiefly because it dismisses not only the very concept of mental capacity but also substitute decision-making of any sort and diversion of the mentally ill from prison on the basis of mental incapacity, among other things.  These interpretations of the CRPD diverge significantly from the text of the Convention itself and diverge very substantially from clinical and social realities. This is, presumably, attributable to narrow consultation with service-users and the paucity of clinical personnel on the Committee.
There is a real risk here that the Committee's "General Comment" will create the impression that the CRPD is simply impossible to implement and therefore irrelevant. This would be a real pity: the CRPD, including Article 12, is a vital articulation of the rights of people with disabilities, including some people with mental illness. It offers a strong incentive for change and reform. Legislation along the lines of India's 2013 Bill offers much that is positive and progressive in terms of overall standards of care, revised processes for involuntary admission, and enhanced governance throughout the mental health system. In this way, this kind of legislation, although imperfect, promotes the principles enshrined in the CRPD, true to the goals of such legislation and as clearly outlined in the preamble to the 2013 Bill.
| Conclusions: Fighting For Justice for The Mentally Ill|| |
Following some 134 official amendments, Mental Health Care Bill 2013 was passed by the Rajya Sabha in August 2016. Reforms of mental health law, such as this, present real opportunities to improve the experiences and lives of the mentally ill and their families, notwithstanding the various issues relating to the CRPD (discussed above). It is likely that future years will see these interpretative issues with the CRPD explored further, producing ever greater recognition of the rights of the mentally ill based on the text of the Convention itself.
Perhaps the most compelling element of the CRPD in this context is the admirable breadth of its ambition. The Convention seeks nothing less than "to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity" (Article 1). This is precisely as it should be. While the Indian legislation is undoubtedly challenging for services,  and there are preexisting issues with compliance with preexisting standards (e.g., in relation to prisoners),  there can be no doubt that change is proceeding in the correct direction.
It is important that such initiatives focus not only on the right to liberty but also on rights to treatment, social care, social inclusion and political empowerment of the mentally ill.  As Amartya Sen points out, what matters most is whether or not measures designed to promote justice actually realize this goal in day-to-day life, and not just in theory.  That is, we need to look at the real-life outcomes of measures intended to protect rights, as opposed to simply verifying that current legislation and other arrangements appear likely to promote human rights. We need to focus on what actually happens.
We know that, to date, the mentally ill around the world have increased rates of imprisonment, homelessness, social exclusion, untreated illness, and various other denials of rights.  The Indian legislative initiative, in the context of the CRPD, offers an important framework within which to start to address this situation. It is important that the relevant principles and values are applied not only in the development of legislation, but also in its application, and in mental health and social services, courtrooms, prisons, and other locations across India, the rest of Asia and elsewhere around the world.
Globally, the rights of the mentally ill have been neglected for far, far too long. It is time to fix this.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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Brendan D Kelly
Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght Hospital, Dublin 24
Source of Support: None, Conflict of Interest: None
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