There is almost universal agreement that community-based care for individuals with mental health problems is preferable to institution-based treatment. In One of the goals of India India
MENTAL HEALTH POLICY
Instead of a national policy, India
The District Mental Health Programme (DMHP) was developed by the National Institute of Mental Health and Neurosciences (NIMHANS) in 1982. Its primary goal is to integrate mental health into the primary care services offered at health facilities at the district level. The model for this program was started in the Bellary District of Karnataka, which is located relatively near NIMHANS.
MENTAL HEALTH LAW
A web of many laws affects the lives of individuals with mental health problems in THE MENTAL HEALTH ACT
Several years after the NMHP was formulated, the Mental Health Act (MHA), 1987 became law. In its statement of objects and reasons, the MHA emphasizes that ‘no stigma should be attached to mental illness and that mentally ill persons should be treated like other sick persons and the environment around them should be made as normal as possible’. However, most of the MHA’s provisions focus on regulating the admission and detention of mentally ill persons in psychiatric hospitals or psychiatric nursing homes.
The MHA’s definition of a “psychiatric hospital” or a “psychiatric nursing home” is:
A hospital, or as the case may be, a nursing home established or maintained by the government or any other person for the treatment and care of mentally ill persons includes a convalescent home established or maintained by the government or any other person for such mentally ill persons; but does not include any general hospital or general nursing home established or maintained by the Government and which provides also for psychiatric services’.
To establish or maintain a facility for the treatment and care of mentally ill persons one has to procure a license. The MHA sets forth two primary requirements for licensure.
First, the MHA states that a license shall not be granted unless ‘the psychiatric hospital or psychiatric nursing home will be under the charge of a medical officer who is a psychiatrist’. Therefore, a facility will not be able to procure a license for the treatment and care of mentally ill persons unless it is administered by a psychiatrist. This requirement is particularly burdensome given that there are only approximately 3500 psychiatrists in India
Second, the MHA states that a license shall not be granted unless ‘the applicant is in a position to provide the minimum facilities prescribed for the admission, treatment and care of mentally ill persons’. These minimum facilities include: ‘Psychiatrist-patient ratio; other medical or para-medical staff; space requirement; treatment facilities; and equipment’. These requirements clearly presuppose that the treatment or care of individuals with mental illness conforms to a strictly medical model of care, instead of, for example, only utilizing therapy or other forms of psycho-social rehabilitation. Moreover, by emphasizing the admission of patients, this provision also apparently assumes that all treatment and care centers will have inpatient facilities.
Chapter IV of the MHA governs procedures for ‘Admission and Detention’. The MHA provides for three types of admissions to institutions: Voluntary, Admission under Special Circumstances, and commitment through a Reception Order. Voluntary Admission can be made upon request of a mentally ill person or, if the mentally ill person is a minor, upon the request of his/her guardian. Discharge of a voluntary patient, however, is not at will. Instead, if the medical officer believes that the discharge will not be in the interest of the voluntary patient, he/she shall constitute a board consisting of two medical officers and seek its opinion as to whether such a voluntary patient needs further treatment and the medical officer shall continue his treatment for a period not exceeding ninety days at a time.
Admission under Special Circumstances involves the commitment of a person who is mentally ill by a relative or friend. Pursuant to this section, a mentally ill person who ‘does not, or is unable to, express his willingness for admission as a voluntary patient, can still be admitted as an inpatient upon application of a relative or friend, if the medical officer-in-charge is satisfied that in the interest of the mentally ill person it is necessary to do so’. The comment to this section of the MHA categorizes admission under special circumstances as a voluntary admission.
A Reception Order is ‘an order made under the provisions of the MHA for the admission and detention of a mentally ill person in a psychiatric hospital or psychiatric nursing home’. The medical officer-in-charge of a psychiatric hospital or a psychiatric nursing home or the husband, wife or any other relative of the mentally ill person can apply for the reception order. A medical officer-in-charge may apply for a reception order under two circumstances. If the officer is satisfied that a person is suffering from a mental disorder of such a nature and degree that his treatment is required to be continued for more than six months; or if it is necessary in the interests of the health and personal safety of the mentally ill person or for the protection of others that such person shall be detained in a psychiatric hospital or a psychiatric nursing home. If a relative applies for a reception order, such application shall be accompanied by two medical certificates from two medical practitioners of whom one shall be a medical practitioner in the service of the Government.
Pursuant to Section 94 of the MHA, the Central Government framed the State Mental Health Rules of 1990 (SMHR). Chapters 2 and 3 of the SMHR specify the composition and duties of a State Mental Health Authority (SMHA). Chapters 4 and 5 sets forth details regarding the licensing procedures and the minimum standards required for psychiatric hospitals and nursing homes.
Pursuant to the SMHR, an application for a license must be made to the SMHA using either one or two forms. Both forms require the ‘applicant to describe his/her professional experience in Psychiatry’. The SMHR specifically states that the supervising officer-in-charge of every Psychiatric Hospital or nursing home shall be a person duly qualified having a post graduate qualification in Psychiatry recognized by the Medical Council of India
With regard to staffing , the SMHR requires the staff for a 10 bedded hospital or nursing home to include: One full time Qualified Psychiatrist; One Mental Health Professional Assistant - (Clinical) Psychologist or Psychiatric Social Worker; One Staff Nurse for every three patients; and One Attender for every five patients. The SMHR also requires every psychiatric hospital or nursing home to have an Electro-Convulsive Therapy [ECT] facility as well as provisions for handling medical emergencies.
After a tragic fire took place in a makeshift mental asylum in Tamil Nadu, the Supreme Court of India found that the states had been slow to implement the MHA. On August 6, 2001, twenty-eight individuals with mental health problems died in a fire at the Moideen Badusha Mental Home in Ervadi, Tamil Nadu. They died because they were chained to posts in the Asylum. In the wake of this tragedy, the Supreme Court, suo moto, initiated a Public Interest Litigation (PIL) regarding the Ervadi Incident. All of the States were joined in the PIL and ordered to provide the Supreme Court with information regarding their implementation of the MHA. In a subsequent order the Supreme Court stated that ‘it appears that there is total negligence on the part of the state governments in not implementing the Mental Health Act, 1987’. Due to the Ervadi PIL, the states have begun implementing the MHA more rigorously.
One common criticism is that the MHA sets unrealistic minimum staffing ratios. Similarly, other practitioners complain that the minimum standards prescribed for operating rehabilitation centres are same as those for the mental hospitals even though these two types of facilities serve very different purposes. Some advocates have proposed amendments to address these and other perceived shortcomings in the MHA. Other advocates have petitioned the state court system, claiming that the MHA ‘is no longer relevant to take into account the needs of the mentally ill who need psycho-social rehabilitation’.
At least one SMHA has attempted to use its powers to address some of these concerns. The Karnataka State Mental Health Authority has drafted rules pursuant to sections 10 and 94 of the MHA. The proposed rules set forth minimum standards regarding amenities and staffing for a wide variety of mental health facilities. For all types of facilities, the staffing standards are considerably less strict than those set forth in the SMHR framed by the Central Government. However, these rules, which are known as the Karnataka Psychiatric Hospitals and Psychiatric Nursing Homes (Conditions and Maintenance) Rules, 2004 (KSMHA Rules), have not yet been approved by the Central Government.
Unlike the SMHR, the KSMHR Rules also emphasize the role of psychosocial intervention. The KSMHA Rules repeatedly state that ‘rehabilitation, on-medical modes of intervention or psychosocial modes of treatment’ must be available to patients. The KSMHA Rules do, however, still require psychiatrists to play a central role in the admission and discharge process. The KSMHA Rules specify that ‘admission into convalescent homes shall be voluntary, but they also require that such admissions shall be made on the advice of a psychiatrist’.
In particular, the ‘psychiatrist should certify that the person referred is a mentally ill person who requires only maintenance, medication and rehabilitation measures’. The KSMHA Rules also assume that a person who would be admitted into a convalescent home would always have a guardian and they require that the guardian be involved in the admission and discharge process.
With regard to physical restraint, the KSMHA Rules specify that the mentally ill person admitted in a psychiatric convalescent centre ‘shall not be chained or fettered so as to curtail their freedom of movement’. However the KSMHA Rules allow convalescent homes to temporarily restrain a person to prevent them from causing harm to himself or to others. These minimal limitations on the use of physical restraint are not placed on other types of mental health facilities such as hospitals, nursing homes, and general hospital psychiatric units.
OTHER LAWS
As noted above, a wide variety of laws besides the MHA affect the lives of individuals with mental health problems in India
I. Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act [PWDA], 1995.
This Act provides a variety of rights and benefits for persons with disabilities. One of the disabilities covered by the PWDA is mental illness which is defined as ‘any mental disorder other than mental retardation’. However not all people with mental health issues are covered under the PWDA. The PWDA limits the definition of the term ‘person with disability’ to include only a person suffering from not less than forty percent of any disability as certified by medical authority.
It should be noted, however, that the Ministry of Social Justice and Empowerment (MSJE) has proposed amendments to the PWDA that would redefine the terms discussed in the prior paragraph. The definition of mental illness would be changed, for example, to ‘a disorder of the mind that results in partial or complete disturbance in the person’s thinking, feeling and behavior which very often results in recurrent or persistent inability or reduced ability to carry out activities of daily living, self care, education, employment and participation in social life’. Another proposed amendment would expand the definition of the disability beyond the specific maladies set forth in the PWDA. Instead, disability would be redefined as ‘a physical or mental impairment, which has a substantial and long-term adverse effect on the ability of a person to carry out normal day-to-day activities’. The proposed amendments would also delete the provision, noted above, which limits the definition of the term person with disability to include only a person suffering from not less than forty per cent of any disability as certified by a medical authority. These proposed amendments have not yet been adopted.
After the PWDA was enacted, there was confusion as to how to evaluate whether a person with mental illness was suffering from not less than forty per cent disability. As opposed to vision or physical ability, which is routinely measured on a numerical scale, mental illness seems somewhat impervious to such a scoring system. However, in 2002, the MSJE notified Guidelines for evaluation and assessment of mental illness and procedure for certification. Pursuant to these guidelines, Mental Illness must be assessed using the Indian Disability Evaluation and Assessment Scale (IDEAS) which was developed by the Rehabilitation committee of the Indian Psychiatric Society.
Although mental illness is included in the definition of disability, the PWDA excludes persons with mental illness from some of its central provisions. For example, chapter VI of the PWDA requires governments to reserve not less than three percent of government jobs for individuals who are blind, hearing impaired, or have loco-motor disabilities. The PWDA provides no explanation as to why persons with mental health problems are excluded from this affirmative action program.
The PWDA also regulates institutions for persons with disabilities. The PWDA states that ‘no person shall establish or maintain any institution for persons with disabilities except under and in accordance with a certificate of registration issued in this behalf by the competent authority…’ Section 50 of the PWDA requires a state government to appoint a competent authority to prescribe the form and manner of an application to maintain such an institution. The state government is also charged with prescribing the minimum standards and facilities for institutions for persons with disabilities. Government institutions are, however, exempt from these regulations. Interestingly, the MSJE’s proposed amendments would delete the entire chapter of the PWDA that sets forth the system for regulating institutions for persons with disabilities.
Pursuant to subsection 73(1) of the PWDA, Tamil Nadu has established rules for the registration of psychiatric rehabilitation centres within Tamil Nadu. The primary purpose of the Tamil Nadu Registration of Psychiatric Rehabilitation Centres of Mentally ill Persons Rules, 2002 (Tamil Nadu Rules) is to set forth the minimum standards and registration procedure for such centres. To establish a psychiatric rehabilitation centre, ‘one has to apply using the form attached to the Tamil Nadu Rules. The form requests information regarding the applicant as well as proposed staff, facilities, funding and objectives’. With regard to staffing, the Tamil Nadu Rules require psychiatric rehabilitation centres to have ‘a psychiatrist on hospital duty for at least two half day sessions in a week’ and available in case of an emergency. However the Tamil Nadu rules later state that ‘where a psychiatric rehabilitation centre provides only day-care facilities or half-way home, there shall be a psychiatrist on call to attend to any emergencies’. Although the Tamil Nadu Rules are somewhat ambiguous on this point, and the term “half-way home” is not defined, it appears that some psychiatric rehabilitation centres are not required to have a psychiatrist on hospital duty for at least two half day sessions in a week. All psychiatric rehabilitation centres do have to have a full-time social worker or psychologist for every fifty clients. After receiving an application, the competent authority inspects the proposed premises to ascertain their suitability. If the application is approved, the psychiatric rehabilitation centre is given a certificate of registration that is valid for three years.
Using essentially the same phrasing as the KSMHA Rules, which are discussed in part II.B.i of this report, the Tamil Nadu rules also dictate the admission procedure and other aspects of the functioning of psychiatric rehabilitation centres. The Tamil Nadu Rules specify that ‘admission into convalescent homes shall be voluntary, but like the KSMHA Rules, they also require that such admissions shall be made on the advice of a psychiatrist and that the psychiatrist should certify that the person referred is a mentally ill person who requires only maintenance medication and rehabilitation measures’. Again, like the KSMHA Rules, the Tamil Nadu Rules assume that ‘a person who would be admitted into a convalescent home would always have a guardian, and they would require that the guardian be involved in the admission and discharge processes.
The Tamil Nadu Rules also appear to assume that individuals with mental illness are, by definition, incompetent, and would never seek admission to a psychiatric rehabilitation centre on their own. This is apparent from their discussion of the admission of orphaned mentally ill persons into psychiatric rehabilitation centres. The Tamil Nadu Rules define the term ‘orphaned mentally ill person as a mentally ill person who has no parents and includes a person who having left home is not able to recall any of the parents, relatives or friends’. For such a person to be admitted to a psychiatric rehabilitation centre, a social worker or psychologist has to conclude that the person is orphaned, a report of the admission has to be sent to the police station, and a psychiatrist has to examine the person within three days of the admission and certify that the person admitted requires the services of the psychiatric rehabilitation centre.
In addition, the Tamil Nadu Rules regulate the use of restraint in psychiatric rehabilitation centres. Similar to the KSMHA Rules, the Tamil Nadu Rules specify that the mentally ill person admitted in a psychiatric rehabilitation centre shall not be chained or fettered so as to curtail their freedom of movement. However the Tamil Nadu Rules ‘do allow psychiatric rehabilitation centres to temporarily restrain a person to prevent him or her from causing harm to himself or to others’. As advocates have pointed out, this rule is subject to misuse and abuse because it does not specify the procedure to be followed, the types of restraints that can be used, or how long such restraints can be employed.
II. The Rehabilitation Council of India
In 1986, the Rehabilitation Council of India (RCI) was established as a registered society by the Central Government. ‘The purpose of the RCI is to regulate and standardize training policies and programmes in the field of rehabilitation of persons with disabilities’. The RCI’s role was formalized by the Rehabilitation Council of India Act (RCIA), 1992.
When it was enacted, the RCIA’s definition of ‘handicapped’ was limited to ‘people with visual impairment, hearing impairment, locomotive disabilities or mental retardation’. In 2000, however, the RCIA was amended to make the definition of ‘handicapped’ consistent with the PWDA. The RCI is therefore now responsible for regulating the training of rehabilitation specialists in the field of mental health. The RCI is also now charged with promoting research in rehabilitation and special education.
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act) has seven primary objectives. One of these objectives is ‘to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong’. The National Trust Act is also charged with ‘providing support for registered organizations that provide services for persons with disabilities and more generally, with facilitating the realization of equal opportunities, protection of rights and full participation of persons with disability’.
The benefits of the National Trust Act are, however, limited to persons with Autism, Cerebral Palsy, Mental Retardation or Multiple disabilities. Although individuals with mental health problems are not specifically included, they can receive benefits as a person with ‘multiple disabilities’ if they have a ‘combination of two or more disabilities as defined in clause (i) of section 2 of the [PWDA]’. In the National Trust Act there is no explanation as to why persons who have mental health problems are otherwise excluded from the benefits set forth in the National Trust Act.
IV. The Protection of Women from Domestic Violence Act, 2005
Several provisions of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) pertain to mental health of women and the psychosocial causes and effects of violence. In the PWDVA, ‘domestic violence’ itself is defined to include conduct that ‘endangers an individual’s mental well being’, and it specifically includes ‘emotional abuse’. Under the PWDVA, officials who witness or receive a complaint regarding domestic violence are required to inform the aggrieved person about: her right to apply for a protection order; her entitlement to legal services; and of the services available from protection officers and service providers.
A ‘service provider’ is broadly defined as ‘any voluntary association registered under the Societies Registration Act, 1860 or a company registered under the Companies Act, 1956 with the objective of protecting the rights and interests of women by any lawful means including providing legal aid, medical, financial or other assistance’. If the victim of domestic violence applies for a protection order, the magistrate may also direct her or the alleged perpetrator to ‘undergo counseling with any member of a service provider who possesses such qualifications and experience in counseling as may be prescribed’. The PWDVA gives the Central Government the authority to make rules for carrying out the provisions of this Act, including the rules regulating registration of service providers.
Pursuant to the Protection of Women from Domestic Violence Rules, 2005, protection officers are responsible for the registration of the service providers. Service providers are required to apply for registration using a brief questionnaire that focuses on the applicant’s registration status, financial history, sources of funding and the types of services it provides. The potential types of services specified in the application form are: medical, legal aid, counseling, shelter homes or other services. A service provider is required to have the following minimum qualifications: two years experience rendering the type of services it wants to offer under the PWDVA. Although providers of certain services are required to meet additional qualifications, they are not well-specified. For example, if a service provider wants to run a shelter home, the protection officer will inspect the facility to make sure that adequate space and other facilities are available.
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
The Convention on the Rights of Persons with Disabilities (CRPD) was adopted on the 13th of December, 2006, during the sixty-first session of the United Nations General Assembly. Pursuant to Article 42, the CRPD and its optional protocol was opened for signature as of the 30th of March, 2007. India India India India
The purpose of the CRPD is ‘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’. The term ‘persons with disabilities’ is defined to include individuals ‘who have long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. This definition is noteworthy because it recognizes the role that societal barriers play in limiting the activities of persons with disabilities.
By signing the CRPD, a state party agrees to ‘undertake to ensure and promote the full realization of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability’. To achieve this, the CRPD requires the states to: (a) Adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the [CRPD]; and (b) Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities. The term ‘discrimination’ is broadly defined to include ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. The CRPD specifically states that the denial of a request for reasonable accommodation constitutes discrimination. Reasonable accommodation is defined as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.
The CRPD emphasizes that a person with a disability has legal capacity. Instead of implementing a guardianship system, the CRPD requires that, if and when it is necessary, a person with a disability is given support in exercising his or her autonomy and this support is subject to stringent limitations in scope and duration. Specifically, the safeguards must ensure that any 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 CRPD also requires state parties to ‘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’.
The CRPD prohibits ‘torture or cruel, inhuman or degrading treatment or punishment’ and it specifically states that no one may be ‘subjected without his or her free consent to medical or scientific experimentation’. State parties are required to ‘take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment’.
Pursuant to the CRPD, persons with disabilities have the right to live in the community. State parties are required to ‘take effective and appropriate measures to facilitate full enjoyment… of this right’. In particular, state parties are required to ensure that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement. (b) Persons with disabilities have access to a range of in-home, residential or other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; and (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
To facilitate maximum independence and full inclusion and participation in all aspects of life, state parties are required to organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services. The CRPD specifies that ‘habilitation and rehabilitation services must be voluntary and based on the multi-disciplinary assessment of individual needs and strengths’. With regard to other types of services, one commentator has concluded that, although the CRPD text neither expressly prohibits nor permits forced intervention, the ambiguity should be construed in light of the complete document’s emphasis on the dignity and autonomy of persons with disabilities.
MENTAL HEALTH SERVICES
MENTAL HOSPITALS
As of the year 2000, there were approximately sixty-one mental hospitals in India
The National Human Rights Commission (NHRC) has conducted a detailed study of government mental hospitals. Of the thirty-three facilities the NHRC studied, all had closed/locked wards, nineteen had no open wards, fourteen had a jail like structure, sixteen had solitary confinement cells, eighteen did not have a clinical psychologist, and eighteen administered electro-convulsive therapy without anesthesia. In sum, the NHRC concluded that the state of mental health care in the country as has come to the notice of the commission was very poor and living conditions were horrible.
Despite the NHRC’s findings, the Supreme Court recently ordered the government to build more mental hospitals. This order has been sharply criticized by a number of commentators as being out of line with the international movement against institutionalization. For example, D.S. Goel has written: “We continue to prescribe the creation of new mental hospitals as the panacea for all ills. This pernicious philosophy will result in the culpable waste of scarce resources, which can be better utilized to create therapeutically rational as well as a more cost-effective community”.
General hospital psychiatric units (GHPUs) are psychiatric services that are available as one of the many specialty services available in a general hospital. According to the NHRC at the end of the twentieth century there were more than 200 psychiatric units in India
Although the NHRC’s study focused on government mental hospitals, it also included a limited analysis of GHPUs. The NHRC mailed a survey form to eighty-seven GHPUs and twenty-seven GHPUs responded. Given that GHPUs are thought of as being the first step in the non-institutional management of the mentally ill in India
The NHRC might have focused on inpatient services because the psychiatric services provided in general hospital in India are much more comprehensive than their counterparts in Europe or the USA India and those in Europe and the United States is that GHPUs in India
Some commentators see this freedom from regulation as one of the main advantages of GHPUs. At least three commentators have gone so far as to state that there are no legal restrictions on admissions or treatment in GHPUs. This statement cannot possibly be correct, because admissions and treatment at GHPUs are limited by, if nothing else, the dictates of the constitution, consumer law and/or criminal law. The confusion over the legal status of GHPUs raises at least two questions that this study aims to answer: (1) what laws or regulations govern the functioning of GHPUs? And (2) what laws or regulations, if any, do the administrators of GHPUs think govern the functioning of GHPUs?
Other purported advantages of the GHPUs include the following: general hospital facilities are more acceptable and easily approachable; families can visit their relatives and can stay with the disturbed patients; there is no stigma of mental hospitals; and proximity to other medical facilities ensures rough physical investigations and early detection of associated physical problems. Numerous commentators in India
RESIDENTIAL REHABILITATION CENTRES
Residential Rehabilitation Centres (RCs), which are sometimes referred to as half-way homes, provide inpatient rehabilitative services for individuals with mental health problems. The first RC in India was started during the 1970s, and there are now more that 50 such centres located in different parts of India
Unlike GHPUs, RCs are clearly regulated by the MHA. The question, however, is whether this regulation facilitates the community participation that the NMHP aims to promote. This study will attempt to decipher the effect that the MHA has on the creation and functioning of RCs. The MHA’s restrictions may explain, in part, why there appears to be a dearth of RCs in India
“With the closure of mental hospitals in the West, a large variety of ‘alternatives’ in the form of day care centres, half-way homes, hostels, sheltered workshops, foster care, etc., have come up. In India
A recent study of mental health services in Gujarat found that rehabilitation services are practically absent in the private sector.
Anecdotal evidence also indicates that the MHA inhibits, rather than facilitates, the ability of RCs to provide community based care. In 2003, the National Institute of Mental Health and Neurosciences (NIMHANS) published a detailed study of the Banyan, which is a voluntary organization working for the rehabilitation of the homeless mentally ill women in the city of Chennai
The Banyan, which is profiled in more depth in part iv.A.i.c.2, has admission and discharge procedures that are similar to those of a government mental hospital. The Banyan has no provision for voluntary admission. Psychiatric intervention is therefore provided only for those persons admitted with a reception order from a Magistrate or in the case of persons rescued from the street, it is based on a SOS call from the general public. According to the study, the admission procedure changed dramatically after the Erwady tragedy because the Government of Tamil Nadu came up with strict measures regarding the admission of mentally ill patients into residential mental health facilities in the state. These changes had a paralyzing effect regarding treatment facilities within the Banyan. The solution to these difficulties was that the high court of Tamil Nadu has established a permanent Lok Adalat to facilitate issual of treatment order as per the Mental Health Act 1987.
TRADITIONAL HEALING CENTRES
Traditional Healing Centres (THCs) play an important role in the provision of mental health care in India India
Several studies have been conducted regarding traditional healing. For example the Centre for Advocacy in Mental Health (CAMH ) has conducted a study entitled Health and Healing in Western Maharashtra , which examines the role of THCs in mental health services delivery. The purpose of this study was to explore the interface between spiritual experiences and emotional and mental well-being and situate these findings in the policy level debates surrounding the role of traditional healing in the mental health sector. CAMH studied twenty THCs and conducted a total of 275 interviews with users, carers, service providers and healers. With regard to the users of the THCs, CAMH found that they have typically visited various health practitioners, and some continue to visit health professionals for their problems. However, the users generally expressed difficulties both with the cost of the health care system and with its inability to cure their maladies. One of the central findings was that THCs were generally found to be open, community spaces, which users entered and exited voluntarily.
In the Ervadi PIL, the Supreme Court is considering whether THCs should be regulated under the MHA. According to a report annexed to an affidavit submitted to the Supreme Court, Andhra Pradesh is already regulating THCs under the MHA. The state authorities reported that they had inspected the Syed Mirar Hussaini Quadri Bagdadi Darga and found that the manner and condition of the Darga do not fulfill the requirements of section 20 Chapter IV of the Mental Health Act. The report states that the Darga is operating without a license, which is required as per section 6 of the Mental Health Act, and therefore the authorities of the Darga would be liable for action as per section 82 & 83 of the Mental Health Act.
At least one state is considering other ways to regulate THCs. In 2005, the Lower House of the Maharashtra State Assembly passed the Maharashtra Eradication of Black Magic and Evil and Aghori Practices Act, 2005 (Black Magic Act). It is currently being considered by the Upper House. The purpose of the Black Magic Act is:
To save the common people from falling prey to the sinister designs of Black Magicians, quacks and conmen, whose false claims of possessing magical or miraculous remedies or powers, are anti-social and harmful activities threatening to damage the very social fiber and the beliefs of the common people in authentic and scientific medical remedies and cures, and are driving them on account of blind beliefs and ignorance, to take recourse of such quacks, conmen and Black Magicians.
In order to accomplish this goal, the Black Magic Act prohibits the promotion, propagation, or practice of “Black Magic and Evil and Aghori practices. The term “propogate” is broadly defined to include the “issuance or publication of an advertisement, Literature, article or book relating to or about Black Magic and Evil and Aghori practices. Violations of the Black Magic Act would be punishable by imprisonment and fines.
The Black Magic Act states that it does not apply to the acts involving religious rites and rituals which do not adversely affect any person mentally, physically or financially. It is unclear, however, who has the authority to judge whether a rite or ritual has adversely affected a person, and what standard would be used to make this judgment. The schedule of prohibited acts is broad enough to include, for example, declaring that a divine spirit has influenced one’s body.
Some experts have expressed concerns that the Black Magic Act may be interpreted to prohibit religious practices such as traditional healing. In general, the regulation of THCs by the medico-legal system can be problematic:
Local healing systems – from families to popular and folk healers to a variety of non- physician personnel – provide the vast majority of care and support for those who suffer from mental health problems. Planning for the application of current psychiatric knowledge in local communities in societies in Asia, Africa and Latin America should first strive to ‘do no harm’- that is to enhance existing local strengths rather than attempt to eliminate what might be viewed as irrational or traditional from the perspective of contemporary biomedicine.
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