Amita Dhanda, “Interphase of law with mental health in Gujarat”

Introduction
Whist examining the social economic issues pertaining to mental health it becomes essential to focus on the legal intervention in the field primarily because law is seen both as a means of reinforcing a situation and an instrument of alleviation. The laws relating to the mentally ill have to be closely examined primarily to see the extent to which law contributes to the current mental health scenario and what are the changes needed in it to fulfill the overall objective of the Mission.

There are three major legal contexts making for the interaction between law and mental illness. These are concerns relating to the validity of legal transactions; maintenance of order and providing protection to vulnerable populations. To elaborate, any legal transaction be it a contract, a marriage, a transfer of property or a will has physical and mental elements. The written document or oral declaration containing the recitals of the gift will or contract comprises the physical element; and the intention to perform the transaction with the requisite understanding constitutes the mental element. To decide on the validity of the transaction both the physical and mental elements of the transaction are examined. The requirement of mental capacity, it is believed may be significantly impaired by mental disorder. Therefore to adjudge the validity of a legal transaction the presence of mental illness is taken into account. Even as the impact of the mental disorder on the legal transaction would depend upon the required standard of mental capability. For example a mild mental disturbance could render the testamentary capacity of a person questionable but not his capacity to commit an offence. Irrespective of the impact, mental disorder assumes relevance in all manners of legal transactions from the personal to the political.

Maintenance of order is a recognized function of law. This function can be impeded by the dangerous and disruptive manifestations of mental illness. Hence law is required to set up structures and procedures by which these dangerous manifestations can be controlled. The laws relating to involuntary commitment and preventive detention illustrate the performance of this function.

Law is also looked at to provide protection to vulnerable members of society. Mental disorder is seen to render the bearers of the condition vulnerable to exploitation. Constructing a protective regime for persons with mental disorder is another role that the law performs in this field. The laws allowing for appointment of guardians to protect a person with mental illness or managers to protect property or litigation guardians to agitate or defend litigation exemplify this role.

A critical appraisal of the laws relating to the mentally ill in India has found that while there is an elaborate framework on mental disorders its construction has primarily been actuated by the need to protect society from the dysfunctional and dangerous manifestations of mental illness. Thus, while legislative arrangements have been made to manage the dysfunctional consequences of unsoundness of mind; the effect of the legal management on the life, liberty and civil status of the person with mental illness has not been addressed. For example if a person accused of an offence is unable to stand trial due to unsoundness of mind, the criminal procedure legislation provides for postponement of the trial and confinement of the insane undertrial in safe custody. This provision ensures that unsoundness of mind does not impede the smooth functioning of the criminal justice system. This legislative management can result in indefinite postponement of the criminal trial and prolonged incarceration of the person of unsound mind. And yet the effect of these consequences for the insane under trial has not been legislatively addressed.

Legislative initiatives for change in the law have been prompted by the economic and social compulsions of the State, professional pressures for empowerment and concern for the non-mentally ill populace. There is a singular non application of mind on the rights, needs and interests of persons of unsound mind. Thus whilst legislation exists which empowers state functionaries to forcibly confine persons of unsound mind thought to be dangerous and unfit to be at large, positive rights guaranteeing minimum care and treatment in state mental hospitals have not been incorporated.

Failure to recognise the interests of the mentally ill persons can also be seen in the routinised incorporation of both protective provisions and disqualifications. For example, disenfranchisement of persons of unsound mind was included in the statute book without debate and subsists therein without any procedure for its activation. The legislative order only manages the dysfunctional consequences of mental illness without providing any positive rights for the mentally ill. An inevitable effect of such like legal management has been that an instrument which could have been a vehicle of social change and public education has only served to strengthen public stereotypes of the mentally ill as being dangerous and incurable members of the populace.

The only positive legislative initiative from the perspective of persons with mental illness is the enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act 1995. This statute has included mental illness within the definition of mental illness. The disability paradigm opens up possibilities of rehabilitation and acceptance of mental illness as a life suffering.

Aims and Objectives

• To explore the changes required in central laws affecting care and treatment and civil status of persons with mental illness.
• To examine the state-level impact of central laws (MHA, PWDA, civil status and criminal responsibility legislation)
• To investigate the changes required only in Gujarat
• To study relevant subordinate legislation i.e. rules regulations notifications and orders
• To assess the receptivity of existing legal institutions and key legal actors to the demands of a rights sensitive legal regime?
• To evaluate the recent Supreme Court effort at regulating institutionalized treatment
• To explore the impact of the health disability and consumer movement's on law
• To find out the receptivity of the social system to a rights sensitive law?

Methodology

To execute the above-mentioned objectives a mix of doctrinal and empirical methods were utilized. Thus the normative legal information was collected through a review of relevant legal literature. By interviewing key informants and making field visits the receptivity of existing legal institutions was assessed. To obtain data on the receptivity of the social system and the required public education and sensitization programmes a survey of actors within the legal and mental health system was commissioned.

Recommendations
Mental health law to be an integral part of mental health policy

The manner in which law regulates mental illness has to be an integral component of mental health policy, if mental illness is to be viewed as a life suffering and the bearers of the condition accorded due respect and dignity. This point is being made because we have a history of trying to deal with the stigma of the law by campaigning for no law in the field of care and treatment of persons with mental illness. The result of this campaign has been that various thorny questions arising from the Mental Health Act were not deliberated upon; instead all energies were expended upon considering whether or not a law was required to control mental health treatment. The reasons for legal intervention in the realm of mental health show that legal interaction with mental illness will inevitably happen. However the manner of the interaction can be controlled.

Further in contrast to social ascription or medical diagnosis of mental illness a legal determination of mental illness is public centric relatively fixed and authoritative. With law increasingly controlling every aspect of contemporary living the legal status of persons with mental illness could significantly contribute to either perpetuate or modify public attitudes towards mental illness.

Despite the inequity and discrimination unleashed by the legal order, questions on the importance of the issue continue to be raised. After all ask the skeptics seen in absolute numbers how many persons with mental illness come into contact with the law should this minuscule percentage influence mental health policy? Is not a provision of services to persons with mental illness more important than worrying about the separate issues such as the discriminatory content of legal provisions. There are two major objections against this manifestation of the 'law is not important' argument. One stems from its humanity denying content in worrying about the greatest good of the greatest number it renders the individual person redundant. Such a proposition is opposed to the entire jurisprudence of human rights. The other fallacy of this argument stems from the belief that law only impacts upon those persons whose cases reach courts. This perspective ignores the normative, ideological and opinion making role of law.

Persons with mental illness need to worry on their legal status because if the law endorses the stigma ascribed by society, then considering the coercive nature of the legal instrument their process of exclusion is complete. However if the legal order interrogates social attitudes, even if it is not able to change them, it at least keeps negotiations spaces open. This deprivatory role of the law comes to the fore when persons with mental illness do not wish to disclose their condition and seek open support, as they believe that it could adversely impact on their jobs, marriages or property control.

Interrogate subsisting legal order to make it rights sensitive

An inevitable effect of the subsisting legal management is that it strengthens the stereotype of the mentally ill being dangerous, incurable and helpless members of the populace. Even as role of law as a stigmatising instrument is demonstrated; the possibilities of law as a vehicle of social change and public education is also conceded. For law to perform such a role it is essential that the subsisting legal order is interrogated and reconstructed in consonance with the rights of persons with mental illness. These rights find articulation in the "Principles for Protection of Persons with Mental Illness and the Improvement of Mental Health Care" adopted by the General Assembly of the United Nations in December 1991. It is significant that the Principles accord recognition to the inherent humanity of persons with mental illness. The principles also resolve to reverse the process of segregation and aim to prevent discrimination of the mentally ill. Whilst Principle 1(2) declares that (a)ll persons with mental illness... who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person. Principle 3 requires that every person with the mental illness shall have the right to live and work as far as possible in the community. And Principle 1(4) mandates that there shall be no discrimination on the grounds of mental illness. For the rhetoric of these principles to be translated into reality it is necessary that they are filtered into national mental health policies and be positivised in legislations.

This could be done by:
mooting amendments to existing legislations;
constructing new legislations such as a Right to Rehabilitation Act;
challenging existing laws and practices through class actions and public interest petitions.

Documentation to aid informed intervention

In order that the constitution of legal order and its interrogation occurs from the informed position it is necessary to document the various legislative and adjudicative efforts occurring in the country. The legislative documentation should encompass the various rules orders notifications schemes promulgated by different states. And the case records should include proceedings of all original and appellate forums. The effectiveness of the exercise could be further enhanced if the documentation also extends to comparative legal literature and international instruments.

Since the above exercise is being suggested for utilization in Gujarat, such application can only happen if the legal developments in Gujarat are exhaustively documented. Such documentation is also required to assess the differences in practice between Gujarat and other States of the country.

Next steps
There is need to form a coalition or network of partners for the execution of the policy recommendations as also the ground interventions. To that end it is suggested that the workshop of legal players, disability administrators, activists and organisations, consumer adjudicators and activists needs to be held. This workshop could assist in placing mental health law reform on the agenda of diverse groups.
Pilot studies need to be undertaken documenting the discriminatory impact of civil status laws and to devise strategies of alleviation
Developing course curriculums for police and judicial training programs
Developing a legal aid scheme for persons with mental illness

Address for correspondence:
Prof. Amita Dhanda
NALSAR University of Law
Justice City, Shameerpet
Hyderabad 500 078, A.P.
Ph: 040-27816033
amitadhanda@rediffmail.com