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Analyzing the human rights aspect of holding a mentally ill person in detention against their will

August 13, 2021

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This article is written by Ms Aporva Shekhar from KIIT School of law. This article is an analysis of the rights of mentally ill people and how involuntary treatment affects these rights.

Table of Contents

Introduction

To date, researchers are working on figuring out the secrets of the human brain in hopes to find lasting solutions to mental illnesses, but till then mentally incapacitated individuals require the protection of the modern welfare State to secure their interests. For the larger part of our history mental disabilities have been overlooked and afflicted individuals have fallen victim to abuse and torture.

Even with significant strides in the field of policy formulation with respect to the protection of such individuals, the main focus of such policies has mostly been the custodial aspect. The first major development in shifting the paradigm was the adoption of the 2006 UNCRPD (United Nations Convention on the Rights of Persons with Disabilities) which focused more on the human rights aspect as opposed to social welfare which was the norm for past legislations.

With the subsequent ratification of the abovementioned Convention in 2008 by India, all old legislations like the Mental Health Act, 1987 and the Persons with Disabilities Act, 1995 were revised and the Mental Health Care Bill was passed by the Lok Sabha in August 2016, which adhered to the standards of the abovementioned Convention.

Human rights of individuals with unsound mind

Mental health is still a controversial topic in our society and individuals with unsound minds are often subjected to humiliation and social exclusion all their life. Such individuals that require more medical attention and care are mostly dependent on the State to secure their rights.

While there are several safeguards to prevent the violation of human rights, crimes against the rights of mentally incapacitated individuals usually go unreported and unheard which makes securing their rights even more of a challenge. Attainment of human rights for mentally incapacitated people is dependent not only on reforms in the public health system but also on several other factors.

The relationship between human rights and mental health

Public health policies and laws, in general, curtail many aspects of personal freedom when it comes to mentally incapacitated individuals. Even though the policies aim to protect the interests of the individuals suffering from mental illnesses, they essentially take away certain aspects of liberty that are guaranteed to most individuals.

Despite best intentions, governmental authority is used to exercise restraint to deprive such individuals of basic rights in the name of welfare. But the main issue with respect to such provisions lies in the concept of mental illness itself, when an individual is unable to function in society as a reasonable and prudent person, it is the duty of the State to provide assistance to such a person.

It might be argued that mentally unsound people are unable to manage their own affairs rationally and might have a hard time integrating into society and hence they need protective interference into their life which might curtail their personal liberty. But the cost of such interference is the violation of human rights.

Mentally ill individuals are constantly stigmatized due to lack of awareness and might even face discrimination due to their mental health conditions in several aspects. Lack of awareness is the predominant reason for human rights violations that happen against mentally incapacitated people.

Current legislation governing the rights of individuals with unsound mind

Human rights and treatment of mentally ill individuals have always been intertwined as a treatment for the same often involves the imposition of restrictions on the rights of the afflicted person. Mental illness and its treatment have been mentioned in Ayurvedic texts, but most legislation governing the treatment of mentally ill people was formulated based on British counterparts.

But the ratification of the UNCRPD by the Indian legislature in May 2008 paved the way for disposing of these archaic laws. The Convention provides for equality in all aspects of life by virtue of Article 2. Article 3 provides for the adoption of appropriate measures to enable individuals with mental incapacity to exercise their legal rights. Article 4 also requires the adoption of relevant safeguards to prevent the abuse of the existing support system but the convention does not explicitly prohibit forced interventions. However, it also does not mandate compulsory mental health care.

Due to the ratification of UNCRPD, all the existing laws governing mental health are currently undergoing revision as it is one of the requirements of the convention. It states that an effort should be made to formulate laws adhering to the principles enshrined in the convention. The Mental Health Care Bill, passed on the 19th of August 2013 by the Rajya Sabha, takes the rights of mentally ill individuals into special consideration. Chapter V of the abovementioned Bill contains provisions related to the rights of mentally ill individuals, containing six sections from Sections 18 to 28.

Chapter II of the same Bill contains provisions, Sections 3 and 4 that lay down the basis for the identification of mental illness and the capacity to make treatment decisions. Chapter XII of the Bill also contains provisions relating to admission and treatment, Section 85 of the Chapter recognizes that admission needs to be voluntary in nature. But it also states that supported admissions into mental health institutions may be allowed when situations make it unavoidable.

Detaining mentally ill individuals against their will : is it an infringement of human rights

While most laws in the application currently advocate for fair and equitable treatment of mentally ill individuals, provisions for supported admission to mental health care institutions still exist. The WHO (World Health Organisation) reports that around 64% of countries do not even have an applicable law governing and protecting the rights of mentally ill individuals.

Due to a lack of appropriate mental healthcare framework in some countries mentally incapacitated people are often confined and restrained in prisons and other dilapidated institutions. Even in psychiatric institutions, human rights violations may occur in the form of forced seclusion, restraints, and abhorrent living conditions within the institutions.

Competence and capacity of mentally ill individuals and its consequences

Two important terms that determine the issues with reference to rights and liability in civil and criminal cases are ‘competence’ and ‘capacity. The term ‘competence’ is a legal concept and it refers to legal consequences of a person’s mental capacity and the word ‘capacity is health-related and refers to the existence of mental abilities to be able to engage in an activity or take decisions.

The general presumption is that the presence of capacity consequently draws the inference of competence, and even though the individual is mentally ill they are qualified to make their own decisions and are free to enjoy their rights. No person who is capable and competent should be detained against their will otherwise it will result in a violation of their human rights.

The statutes that govern mental health care in countries stress the importance of voluntary decision making with respect to treatment and personal affairs. Interference in any of the mentioned aspects is only permissible when the afflicted person is not competent enough to take care of their own affairs. In such a situation the afflicted person may be assisted by others in making healthcare decisions and managing their personal affairs in their interest.

But when the person is competent enough to understand information regarding their health care and manage their own personal affairs, they cannot be forcefully admitted to any mental healthcare facility. A competent person retains autonomy in making their own decisions and exercising their rights.

Assessment of competence and capacity

The existence of serious mental illness does not by itself disqualify the person from being competent. The determination of competence and capacity is mostly function-specific and it may fluctuate. It needs to be assessed with respect to a specific task, time or specific function or decision.

Laws governing mental health care mandate that the incapacity of an individual can only be determined by a licensed health professional of that field. Consequently, based on such findings and other associated factors, a judicial body may deliberate and determine the incompetence of individuals.

Mental healthcare legislations stress the importance of free and informed consent in case of admission and treatment, but in cases where a person is mentally incapacitated to the extent that they are unable to give their consent but neither are they competent enough to oppose, decisions are taken on their behalf for their wellbeing by their guardians or the State.

Issues related to involuntary admission and treatment

In case of involuntary admission or treatment, a mentally impaired person who has been admitted to a mental healthcare institution may be detained longer for treatment by a qualified mental health practitioner if they feel that the release of the afflicted person might result in an imminent threat to the society or the person themselves. An involuntary admission can only take place if all the prerequisites are satisfied.

In such situations, there is no free and informed consent given by the afflicted person but rather in their interest a proxy consent may be given by the guardians, representative or family members. One might argue that in the absence of free and informed consent such an intervention would result in the violation of the human rights of the afflicted person. But in cases where a person has deteriorated to such an extent that they might become a threat to themselves, other external interventions become necessary to safeguard their interests and others’.

The involuntary admission might not be the main reason for violation of human rights, as it is done in the best interests of the patient, but seclusion, unauthorized surgical procedures and inhumane treatment within mental healthcare institutions are the main violators of human rights.

Possible solutions

Involuntary admission is a necessary intervention done considering the interests of the patient and might not be a violation of their human rights as access to health care is important but often the consequences of involuntary admissions might result in some violations of human rights.

Due to the lack of awareness and inadequate mental healthcare infrastructure, the right to treatment and care of afflicted persons gets affected. Unable to secure effective treatment and support, they are often discriminated against and are vulnerable to other crimes. The promotion of human rights in conjunction with mental healthcare is the only way to attain security for mentally incapacitated individuals by:

Spreading awareness about mental health and associated issues

Technological advancements have placed knowledge at our fingertips but many still remain unaware of the problems plaguing the mind. Mental illness is still a controversial topic and due to ignorance people might ostracize a person who is in need of care and support. The government should organize awareness programs to educate more and more people about mental illness so that they might help such people. Rights organizations and NGOs should join the effort and organize and advocate for the rights of mentally ill people.

Reinforcement of mental healthcare infrastructure

To create a robust mental healthcare and support system for mentally ill individuals, adequate investment is needed. Governments need to make it a priority to allocate budgetary allowances for the healthcare sector to focus more on mental healthcare. In addition to financial aid, the mental health care sector also needs trained professionals and other workers who can provide the care and treatment required to such individuals and the promotion of good recovery methods and respect for human rights.

Community care over mental health care institutions

It has been proven that patients flourish more with connection and interaction with friends and family. Institutions are often associated with malpractice and human rights violations making the patients even more apprehensive to treatment that they might be given there. Isolation and monotony only add to the woes of treatment, and as such treatment would be more effective when the patients are willing and not averse to receive it. Such a measure would ensure that afflicted individuals enjoy all the same opportunities of life that others enjoy, without being locked up in an institution.

Supporting people with mental conditions and their families

In order to promote equitable rights for mentally ill individuals, governments should empower organisations, families and afflicted people. People who face the problem firsthand are in a better position to highlight the issues. Only they can effectively and accurately convey their needs and help find solutions to problems plaguing them. Laws and policies can be formulated more effectively with their recommendations which would protect their rights and prevent violations.

Implementation of regulations and compliances to improve mental healthcare

Regulations and compliances should aim to improve the conditions prevailing in healthcare institutions that result in violations of human rights. A framework should be established to assess the conditions prevailing inside a mental healthcare institution to prevent violations of human rights. Such actions would ensure that healthcare institutions honour their duty to provide the care and support required by afflicted individuals.

Conclusion

Humans are social animals and hence we are dependent on one another for survival. In a modern scenario, individuals who are unable to take care of themselves due to mental incapacity are dependent on others to secure their rights. Due to lack of adequate mental healthcare infrastructure many mentally incapacitated people become vulnerable to human rights violations.

Even with several laws safeguarding the rights and interests of mentally incapacitated individuals they still fall victim to crimes. Involuntary admission to mental healthcare institutions does not violate their right as much as the subsequent unauthorized treatment and seclusion might do. The right to healthcare is guaranteed to everyone and mentally ill individuals require care and support the most.