This article is written by Ashish Sharma of Rajiv Gandhi National University of Law, Patiala. In this article, he is discussing the rights provided to a mentally ill person by various Conventions and the Indian Constitution.
The concept of Human Rights attracts as no other branch or field of law. This concept helped us realize that law is very vast, dynamic and unparalleled. The way Human Rights encompasses and deals with various topics which are otherwise ignorant appeals a lot. The denial of rights to the mentally disabled community is a big question mark on the very foundation stone of Human Rights. This denial must be eradicated and hence our sensitivity, concern and knowledge must become a connecting platform through which we can deliver our services to the deprived.
But the irony lies in the fact that Human rights are available, they are also recognized, but they are not accessible to the people who want them most. It is totally agreed that the women and the children are very prone to the violation of rights as they are considered weaker in the society but the most prone are mentally disabled people who themselves are not aware of their rights.
Every person other than that of the mentally disabled is capable of availing the remedies available to them. These people are most vulnerable as they possess this unique ability to remain silent after being a subject of violation and exploitation in a closed four-walled room.
The relationship between mental health and human rights can be easily divided into three parts. First, human rights violations, such as displacement and torture, negatively affect mental health. Second, coercive treatment practices of mental health patient can impact human rights.
Finally, the advancement of human rights leads to the benefit of mental health, i.e. can say their advancement walk-in cooperation. There are thus economic and clinical reasons, as well as moral and legal obligations, to advance human rights in mental health care.
Mental Health as a human right
As human beings, our health and the health of our loved ones is a matter of daily concern. Regardless of our gender, age, socio-economic background, we consider our health to be our most basic and essential asset. The development of mental health is somehow restricted due to social, psychological and biological factors.
- Recent report by World Health Organisation on right to mental health, pointed out that despite evidence that one cannot live happy without mental health, and there cannot be fit and healthy without mental health, nowhere in the world does mental health enjoy equality with physical health in terms of budgeting, or medical education and practice. According to WHO estimates from 2014 globally, only seven per- cent of health budgets are allocated to address mental health.
- The United Nations Human Rights Office report points out that people with mental health conditions and those with psycho-social disabilities experience disproportionately higher rates of poor physical health, and have reduced their life expectancy– a 20-year drop for men and 15 years for women – compared with the general population.
In this article, we will be discussing provisions of certain International Conventions to protect the rights of mentally ill people and particularly focussing on the provisions embedded in the Constitution of India to protect such people from the adversities of society.
1. UN Principles for the Protection of Mental Illness and Health Care( The MI Principles 1994)
The MI principles were adopted by the United Nations General Assembly in 1991. The MI principles provide the non-binding standards which the mental health systems of the countries should meet to cure the mental disorder of the people. Basically, there are 25 principles provided by the document for the protection of the rights of the persons with mental illness. Some of the major principles are discussed below:
- Fundamental freedoms and basic rights: This provision contains not only a single provision in it but a lot of other provisions embedded in it. They are:
- Every person shall enjoy the best available mental health care, which shall be part of the health and social care systems.
- Every person with a mental illness shall be treated with humanity and dignity.
- All persons with mental illness, have the right to protection from economic, sexual and other forms of exploitation.
- There shall be no discrimination on the grounds of mental illness. “Discrimination” means any exclusion or preference that has the effect of nullifying or destroying equal enjoyment of rights.
- Every person with mental illness shall have the right to exercise all civil, political, social, economic and cultural rights as recognized in Universal Declaration of Human Rights and other conventions.
- If a person due to mental illness lacks legal capacity, a person shall be appointed, after a fair hearing by an independent and impartial tribunal. The person who is incapable of making rationale decision shall be entitled to be represented by a counsel. If the person whose capacity is at concern does not himself secure such representation, he shall be provided with services without payment to the extent he does not have sufficient means to pay for.
- Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken so far as if necessary and appropriate to that person’s condition, to ensure the protection of his or her interests.
- Medical Examination: No person shall be compelled to undergo any medical examination to determine whether he or she has a mental illness except in accordance with the procedures established by the law.
- Consent to treatment: A person should not be given treatment without his free consent. Consent is said to be free when it is not induced under any influence of another person. In case of an emergency or urgent medical practitioner is authorised by law to give treatment without the prior consent of a patient to eradicate the imminent danger on the health of a patient.
Where treatment is given to an individual without his prior consent every sort of effort should be made by an individual to inform the patient the nature of the treatment and possible alternatives also to involve the patient in the treatment plan.
- Rights and conditions in mental health facilities: Every person in a mental health facility shall have the right to full recognition before the law and have the full respect for their privacy and have freedom of communication which includes freedom to communicate with another person i.e. should have the freedom to send and receive uncensored private communication.
- Procedural Safeguards: The patient shall have the right to choose and appoint a counsel to represent the patient in case of any source of violation or complaint procedure or appeal and the patient should be provided free legal aid to the extent that he is not able to pay.
2. UN Convention on Rights of Person with Mental Disabilities
The United Nations Convention on the Rights of Persons with Disabilities was adopted on ‘13 December 2006’. The Convention includes the wider category of persons with disabilities and reaffirms that all persons with any type of disabilities must enjoy all human rights and fundamental freedoms.
It clarifies how all rights apply to the persons with disabilities and identifies areas where changes to be made in legislation of various countries to effectively enforce the rights of mentally ill persons with proper protection of their interest.
The Basic provisions mentioned in the convention are as follows.
- “Respect for the autonomy of an individual and inherent dignity including the freedom to make one’s own choices, and independence of persons.
- The admitted patients should not be discriminated in the society on the basis of their mental illness.
- There should be full and effective participation of the people suffering from the problem of mental health in society.
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.
- The opportunities provided to an individual to grow should not be restricted due to the reason of their mental illness and disability.
- The individuals shall have the proper access to the facilities and the rights provided them to exercise consciously and effectively.
- The individuals should not be discriminated on the basis of their gender i.e. on the basis that whether an individual is a male or female, age, colour etc.
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.”
The Convention marks a standard shift in the attitudes and approaches to persons with disabilities. It takes to a new height the capability of a person suffering from mental illness to claim his rights and become an active member of the society.
The Constitution of India does not discriminate any person and applies uniformly to every legal citizen of India, whether they are healthy or disabled (physically or mentally). But, provisions of mentally ill patients have been neither specifically mentioned in any code nor specifically elaborated or prescribed by the judiciary in India. Under the Constitution of India, the disabled have been guaranteed the fundamental rights which are as follows.
- The Constitution secures to all the citizens of India including the disabled, a right of justice, liberty of thought, belief, expression, worship, equality of status and of opportunity and for the promotion of fraternity.
- Article 15(1) instructs the Government not to discriminate any citizen of India (including disabled) on the ground of religion, race, caste, sex or place of birth.
- Article 15 (2) States that no citizen (including the disabled) of India shall be subjected to any liability, restriction or condition on any of the above grounds in the matter of their access to places of public entertainment, use of wells, tanks, bathing Ghats, roads and any place fully or partly maintained by Government funds. Benefits can be given to the women, children and those belonging to the socially and educationally backward classes through provisions of special laws.
- Every individual (including the disabled) shall be provided equal opportunity in matters relating to public employment under the State.
- No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be considered as an offence under law as provided by article 17 of the Indian Constitution.
- Every person, including the disabled, has his right to life and liberty guaranteed under article 21 of the Constitution.
- Article 23 of the Indian Constitution prohibits traffic in human beings, including the disable and any engagement in any kind of forced labour.
- Article 24 of the Constitution which prohibits the employment of children below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment also includes the disable children in it. Even a private contractor acting under the ambit of Government cannot engage any children, whether normal or disabled below 14 years of age in such employment.
- Every citizen of India is guaranteed freedom of religion under Article 25 of the Constitution. Every disabled person (like the normal citizen) has the freedom of conscience to propagate and practice his religion subject to proper order, morality and health.
- Any person in India, including the disabled, cannot be compelled to pay any taxes for the promotion and maintenance of any particular religion or religious group.
- No Disabled person will be deprived of his right to the language, script or culture which he has or to which he belongs.
- Every disabled person has the right to move to the Supreme Court of India to enforce his fundamental rights guaranteed by article 32.
- No disabled person owning property (like the non-disabled) can be deprived of his property except by authority of law, although the right to property is not a fundamental right. Any unauthorized or forcible deprivation of property can be challenged by suit and for relief by way of damages.
- Every disabled person as every normal person on the attainment of 18 years of age becomes eligible for inclusion of his name in the general electoral roll for the territorial constituency to which he belongs.
Implementation gap in the policies
Maximum available resources
Despite the impact of mental health conditions on individuals, families and communities, there is an insufficient investment of both financial and human resources in the area of mental health. Global annual spending on mental health is less than $2 per person and less than $0.25 per person in low-income countries. This affects the provision of services, as inadequate numbers of staff, often with insufficient training, especially in the area of human rights, are required to deliver services which are in accordance with human rights standards.
A poorly informed public
Very little information is available to the public on any of the issues relating to mental health, whether it is on mental well- being, protecting against depression or identifying symptoms of serious mental illness. They are even less aware of treatment facilities and their rights. Without information, there is no advocacy. Without advocacy, there is not enough demand for services and system accountability to provide equitable and good quality mental health care.
Provision of services in a segregated manner
Although there has been progressing over the last few decades, the segregation and centralization of mental health services around psychiatric hospitals and institutions continue to pose a challenge in certain important respects. The failure to integrate interdisciplinary mental health services into primary care renders a “whole person” approach extremely difficult.
Mentally disabled people are most vulnerable to exploitation as they are incapable of understanding the nature of activities. Though various principles are laid down by International Conventions, they are vague as they are non- binding on the states. But these conventions bring the paradigm shift in the attitude and approaches to persons with disabilities.
- “Principles for the Protection of Persons with mental illness (“The MI Principles”)”, Available at http://www.un.org/documents/ga/res/46/a46r119.htm
- Manish Lakhawat, “Human Rights of Mentally ill Persons”, Available at http://www.legalserviceindia.com/articles/mentai.htm
- “Legal Rights of the disabled in India”, Available at http://vikaspedia.in/education/parents-corner/guidelines-for-parents-of-children-with-disabilities/legal-rights-of-the-disabled-in-india