Mental Disability: Challenges, Laws and Support of the Government 

Abstract

Mental disability affects a large number of people in the world; seriously impairing the quality of life they lead. These mentally disabled people face a large number of challenges which can be characterized by ...

By: Pamuluru Uday Bhaskar Reddy, Rose Joy | Update: 2016-09-10 12:14:33

Mental Disability: Challenges, Laws and Support of the Government 

Abstract

Mental disability affects a large number of people in the world; seriously impairing the quality of life they lead. These mentally disabled people face a large number of challenges which can be characterized by the multiple, interlinked fragments of inequality, dignity, independence and freedom to make one’s own choices, social isolation, financial hardship and discrimination in the society. Efforts have been taken by international organizations to achieve equality, but no proper consideration has been made with respect to the mentally disabled. These efforts would be futile if they do not work towards achieving the same substantive equality among persons with mental disabilities. However, this is considered as a matter of least importance by international organizations and even by the governments.

In many countries, mental health issues have been omitted from national development strategies and plans even though people with mental health conditions are a vulnerable group and it is governments duty to protect, respect and fulfil their rights. We often find these people are excluded from development opportunities. We have not had any international conventions on matters relating to mental health. This itself is evidence of how much mental health has been grossly neglected.

In this essay we have highlighted the socioeconomic, humanitarian problems faced by the persons suffering with mental disabilities, we have differentiated between the terms mental illness and mental retardation, we have also highlighted the problems faced by mentally disabled prisoners and children, we have done a critical analysis of the Acts in existence and also Bills in this area that are pending in the Parliament of India. In addition to this, we have looked into what steps need to be taken for providing equal opportunities to the people suffering from mental disabilities to lead a normal life. We have shed some light on the steps to be taken by the Government in this regard. We have also mentioned that the people with mental disabilities should be given Long Term Care(LTC) services. Finally, we have discussed how Health Care Professionals can act as agents of change by playing an important role in advocating equality, dignity and non- discriminatory treatment to the persons, who are mentally disabled. It would be hard to believe that India, one of the major economies and highly populated nations in the world spends only 0.06% of the health budget on Mental Health including Mental Research, Infrastructure and policies. This has been mentioned in The World Health Report, 2011. This is embarrassingly low in comparison to other economies. We hope that through this paper we can convey the gravity of the situation at hand and we pray that the suggestions we have put forth will be given due consideration.

Introduction

Since time immemorial, human beings have faced many challenges and have survived and have been surviving various challenges faced by them. In the recent times, among the various challenges faced, maintaining proper health has become a primary one. It is rightly said that:

“It is health that is real wealth, not pieces of Gold and Silver”1 and maintaining proper health should be the main aim of the every individual in the world. Ironically enough, in the present modern world, people are giving utmost importance to wealth rather than health, and they are forgetting that however rich a person may be, if he does not maintain good health, all that wealth that he has hoarded for himself is of no use. As to the question of what constitutes health, we need only to refer to the definition that we learnt back at school,

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”2In order to be in good health, physical and mental well-being of the individual is required. However, proper health, even in the 21st century continues to remain a distant dream for large number of people in India. According to the data collected in the last census, a huge magnitude of the people is suffering from one or the other form of permanent disability.

According to the data collected in the Census of India, eight types of disabilities (seeing, hearing, speech, movement, mental retardation, mental illness, multiple disability and anyother) 26,810,557 persons or 2.21% of the total population of India is said to be suffering from one or the other form of disability.3

Among the disabilities, though people suffering from physical disabilities are most in number, in no way does it overshadow the sizable population that constitute those suffering from mental disabilities. We can classify mental disability into either mental retardation or mental illness. The difference between them are that mental retardation is subnormal intelligence while mental illness is distorted intelligence, whether high, normal or subnormal. Mental retardation is essentially in touch with reality but with limited capacity to understand it. Mental illness is to some extent loss of touch with reality no matter the capacity to understand it.4

Mental disability strikes all age groups, genders, nationalities, and economic backgrounds and represents a major and costly public health problem in India. According to the 2011 census, 2,228,450 persons are suffering from specifically either from Mental Retardation or the Mental disability.5

Mental disability refers to all diagnosable mental disorders and health conditions involving changes in thinking, mood, or behaviour that contribute to personal distress, impaired functioning, increased risk of pain, disability, or death. Serious mental illnesses include schizophrenia, bipolar disorder, major depressive disorder and other disabling psychiatric conditions.6 In the present day, nearly 200 different types of mental disabilities have been diagnosed.

There are many mentally challenged persons in the society and for them, enjoying a normal life is very hard. They are subjected to widespread discrimination, poverty, homelessness and discrimination in employment and there are persons who suffer in jails. Even in the mental hospitals, where they should be treated properly with utmost care and attention, they are subjected to many forms of physical abuse and harassment.

In this essay, we wish to highlight the discrimination faced by the mentally disabled persons and also perform a critical analysis on the present Acts and rules and regulations.

Mental Disability as a barrier to Normal Life

People who are suffering from one or the other form of mental disability face various challenges which may be economic, demographic or social in nature. In addition, they are subject to severe discrimination. The consequences may be reduction in the amount of earnings or unemployment. It also jeopardises a person’s chances of getting married and remaining in a marriage.7 It is extremely difficult for these people to raise children (i.e. parenting). The patients have to live through freighting and bewildering experiences that are debilitating and can result in alienation from those persons they care about, loss of employment and destruction of their sense of self-worth. Friends and family members of those with mental disabilities witness dramatic changes in the behaviour and personality of those they love, while feeling helpless and unable to share their pain with wider acquaintances. Mental disability does not come with open wounds or scars to show others how much suffering it causes, but it can be more devastating than many chronic physical illnesses.

a)    Loss of Earnings & Employment

Mental disability affects a large number of people in the world, seriously impairing the quality of life they live. Mental disability has a direct and negative impact on the quality of life, which a person enjoys.

No elaborate economic theory is needed to believe that mental disability affects success at work. Many places refuse to employ people diagnosed with mental disabilities because they may require more supervision than the average employee and they face a lot of discrimination in private sector jobs. However, in the case of Public Employment, the government, apart from avoiding discrimination in the case of employment also provides reservation for the people with disabilities and help them lead a dignified life.

Even people who were patients of a mental hospital face the same situation more or less. According to a survey conducted on the question, ‘would you employ a person who has been admitted in a mental hospital?’, there were high levels of rejection.8

There are many reasons for not showing an interest to employ a mentally disabled person. They have to be given special care as they may be prone to impulsive violence, or incapable of tolerating high levels of pressure and may also be unable to interact harmoniously with co-workers.

Most of the mentally disabled persons are on the verge of poverty. The relation between poverty and mental disability is both straightforward and complex. This is because the people who are mentally disabled face many barriers over the course of their life, including stigma and discrimination from others. Even their own family members may not show much interest in their welfare. As a result of their mental disability, these patients seldom get exposed to a proper and fulfilling education. Unfortunately, this directly affects their careers and chances of employment and thus, draws them to the stage of poverty.

b)   Marriage

Right from the time of Adam and Eve9, marriage has been the greatest and most important of all institutions in human society. It has always existed in one form or another in every culture, ensuring social sanction to a physical union between man and woman and laying the foundation for building up of the family – the basic unit of society. An economic explanation of marriage is that people choose to live together because they can increase their utility by sharing and rearranging tasks, responsibilities, income, and children. If a spouse is suffering from any mental disability it is regarded as an impediment to the economic explanation. We have also seen that mental disability leads to the loss of income and employment.

According to the conditions prescribed in the Hindu Marriage Act,1955 a marriage cannot be solemnized if any one of the parties is incapable of given consent at the time of marriage. This incapability occurs, if the person is suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children;10 we find similar grounds for a marriage to not be solemnized in many legislations. So, when either spouse is suffering from a mental disability, their union is not even recognised as a marriage.

According to the Hindu Marriage Act,1955 Section 13 (1) (iii), mental disability is also a ground for divorce. The section says that divorce can be given if the spouse is incurably of unsound mind, or is suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Indian society has a greater bias towards women with mental disability; many of them are abandoned by their husbands and in-laws and are sent back to their parents’ homes.

This causes misery and stigma and further complicates their problems as it makes them susceptible to exacerbation of psychiatric disorders after marriage. If at all they aren’t packed and sent off to their homes, other forms of cruelty are inflicted upon them, such as, domestic violence which includes dowry harassment, dowry death, separation and divorce. Married women who are mentally disabled form an extremely vulnerable population who are at a high risk of being at the receiving end of various forms of abuse.

Uninformed couples who don’t know that they can seek divorce if their spouse is mentally disabled subject them to cruelty, which in turn increases their mental distress, depression.

Mental disability of a person ruins not only his employment and income but also his/her marriage and his/her desire of having a family and living a peaceful life.

Mental Health Crisis of Prisoners

It is true that prisoners are imprisoned because of some unlawful act that they performed for which they were convicted. The massive stress and trauma of prison life worsen their psychiatric disorders, and their prognosis becomes hopeless. Many of them also suffer from hallucinations, delusions and depression. In most of the cases lack of proper care and constant harassment from fellow inmates makes their situation worse. This also causes disruptions in the smooth functioning of the prisons. Adding to their worries isolation worsens their symptoms. But the government officials and administrators call this “coddling of prisoners”.

It is true that the prevalence of mental disorders among prisoners is higher than the number of mentally disabled in the general population. In a study conducted among 500 prisoners, it was said that 23.8% of the convicted persons were suffering from one or other form of mental disorder.11A significant amount of prisoners who are convicted for committing offences like rape, murder and other such atrocious crimes are seldom able to cope with the gravity of what they have done, and they end up having intense stress and trauma culminating in a mental disorder. Mental health services in most of the prisons are non-existent. A large proportion of prisoners suffering from mental disorders are ignored by the clinical staff, and those who do receive treatment do not get adequate attention. The treatment which they receive is brief hospitalizations and medications prescribed for short periods. Meanwhile, guards punish mentally ill persons who cannot follow all the rules, and the other prisoners stigmatize, victimize or shun and brand them as “crazies.”

Most prisoners afflicted with serious and long term mental disorders not only receive grossly deficient treatment but also suffer horribly on account of the harsh conditions existing in prisons.

Overcrowded prisons make life inside miserable for everyone, especially for prisoners suffering from severe and chronic mental illnesses.

For mentally challenged persons’ prison are a living hell as danger lurks around every corner. They face great difficulty coping with the prison code and are extremely vulnerable to the negative repercussions of a lack of visits from their loved ones. Many voluntarily isolate themselves in their cells to avoid trouble.

While the prison population has grown by leaps and bounds in the recent years, and the proportion of severely and chronically disordered mental prisoners has enlarged rapidly, the budget for mental health services in correctional facilities has not expanded apace.

Though a large number of prisoners suffer from serious mental disorders, they do not receive adequate mental treatment. Instead they are brutalized by staff and prisoners alike, making prison one hell of a place to live in and the life of the prisoners, miserable. Many of the prisoners prefer to end their lives.

In order to fight the problem of mentally disabled persons in the prisons, the following six components are to be followed or legislations incorporating the same should be enacted. They are:

1.    A systematic screening for identifying mentally disturbed prisoners.

2.    Treatment that entails more than segregation and separation.

3.    Treatment that involves a sufficient number of mental health care professionals to adequately provide services to all prisoners suffering from serious mental disorders.

4.    Maintenance of adequate and confidential clinical records.

5.    A programme for identifying and treating suicidal inmates.

6.    A ban on prescribing potentially dangerous medications without adequate monitoring.

Mental disability among children

Mental disability among children is an important issue as it affects their formation and outcome. If the mental disability is cured during the beginning stages of their life, these children can enjoy a normal life in their later stages.

During the early stages of life when the brain is developing, having a mental disorder will affect the behaviour and consequential growth of the child. Helping young children and their parents manage these difficulties early in life may prevent the development of disorders. Once a mental disability develops, it becomes a regular part of the child's behaviour and becomes harder to treat. Even though we know how to treat (though not yet cure) many disorders, many children with mental disabilities are not getting proper treatment.

Studies reveal that in India 1.67% of the 0-19 population have some form of disability, 35.29% of all people living with disabilities are children. Only 1% of children with disabilities have access to school and one third of most disabilities are preventable. According to the 2011 census, among the five types of disabilities (i.e.; sight, movement, hearing, speech and mental) on which data has been collected, total population of people with mental disability accounts for 10.3%.12 Children with disabilities are one of the most marginalized and excluded groups. Facing daily discrimination in the form of negative attitudes, they are effectively barred from realizing their rights to healthcare, education, and even survival. Though mental disability has been looked into in the census of 2011, ensuring the required services to this category is a huge challenge. It has been recommended by the experts that if early identification and intervention of children with mental disability is done; they will be more self- sustained.

There are Acts relating to mental health; Mental health care is still an area with least attention and children are the worst affected among the people with mental disability; as elections come and go, the issues of children remain unheard as they don’t constitute a vote bank. Issues of state failure marring the growth of children gets overlooked.

Children suffering from Mental disabilities should be treated with care and compassion. They have special needs; their parents, relatives and friends should help and encourage them. They should be given hope and the belief that their disabilities can be easily prevented, which will help them in achieving a positive attitude towards life.

Mental Disability and Human Rights

Human Rights says that “All persons are born free and equal in dignity and rights” and everyone is entitled to equal rights and protection without any discrimination, such as liberty, security, privacy, health, education, to marry and to have a family. Among the other violations of the human rights, the Right to marry and have a family is violated by the legislations made by the Parliament of India itself. This is clear because a marriage wherein either one of the parties suffers from mental disability is not recognised and this is also a ground for divorce.

International human rights law provides a powerful, but often neglected, tool to advance the rights and freedoms of persons with mental disabilities. Democracies often resist making reforms to mental health law and policy, and domestic courts do not always compel the changes necessary to improve the rights and welfare of persons with mental disabilities. Some of the Countries may have enacted a Legislation or two for the protection of rights and freedoms of the people with Mental Disabilities but most of the same countries have failed to respect the Human Rights of the persons with mental disabilities due to popular or political pressure13

Human Rights of the persons with Disabilities are violated because: 

In many countries people do not have access to basic mental health care and treatment that they require. In others, the absence of community based mental health care means the only care available is in psychiatric institutions which are associated with gross human rights violations including inhuman and degrading treatment and living conditions.

Even outside the health care context, they are excluded from community life and denied basic rights such as shelter, food and clothing, and are discriminated against in the fields of employment, education and housing due to their mental disability. Many are denied the right to vote, marry and have children. As a consequence, many people with mental disabilities are living in extreme poverty which in turn, affects their ability to gain access to appropriate care, integrate into society and recover from their illness.

The existence of the United Nations convention on the Rights of Persons with Disabilities, which was opened for signature in 2007 shows that the Human Rights of the persons with Disabilities have been violated and due emphasis was not given in the United Nations Declaration of Human Rights,1948 for the persons with mental disabilities.

There is new hope among the people after the United Nations convention on the Rights of Persons with Disabilities came in to effect on 3 May 2008 and it was signed by 160 Nations among the 166 parties.

Mental Disability & Legislations

There are so many International Conventions, Acts, Rules, Regulations relating to the Mental Disabilities like United Nations Convention on the rights of a person with disabilities (UNCRPD), The Mental Health Care Bill,2013, Rights of persons with Disabilities Bill,2014, National Mental Health Care Programme, Rules and Regulations and policies of persons with disabilities.

The Mental Health Care Act,1987 and Persons with Disabilities Act,1995 are under process of revision and draft bills have been prepared. Although the Mental Health Care Act,1987 provided for the establishment of mental hospitals, treatment, institutional care, guardianship of mental patients, its scope needs to be increased in the light of the new illnesses. It also tried to make a distinction between mental illness and mental retardation, and completely eliminated the concept of mental retardation. This Act entirely focused on the burden laid upon the government, and it did not mention anything relating to the home treatment of these mentally disabled persons. Neither did it mention their post discharge rehabilitation. There are no provisions for educating the society in order to create awareness. This Act adopts different views on government and private hospitals. These are some of the main criticisms against the Mental Health Care Act,1987.

The Persons with Disabilities Act [Equal Opportunities, Protection of Rights and Full Participation] Act,1995 was the first attempt made for the comprehensive legislation for the persons with disabilities in India. This Act enabled the disabled persons to have equal rights and opportunities as of productive and contributing citizens of India in various areas like employment, education, access etc.., and it also tried to resolve the discriminations and also prevent abuse and exploitation of persons with disability. However, disability is conventionally defined under Section 2(i). The next drawback of the Act is the lack of implementation; even though the objectives, aims, goals of the Act are appreciable, most of them just remain as print on paper. One of the reasons for this is that there are no guidelines and deadlines for the authorities concerned for complying with the Act. It does not lay down the punishment for the persons who did not comply with the Act.

UNCRPD was adopted in December, 2006. It was ratified by the Parliament of India in May, 2008. Article 3 of the Convention stipulates that the Countries who have signed and ratified this convention need to revisit and make changes in their existing legislations and bring out new policies and legislations (if any) in harmony with it. Therefore, all the disability laws are in the process of revision. A few of the outcomes of this revision and reconstruction done by the Government of India are The Mental Health Care Bill,2013 and Rights of Persons with Disabilities,2014. This Convention marks a paradigm shift in respect of disabilities from a social welfare concern to a human right issue. This convention for the first time talks about the legal capacity of the persons with disabilities. This Convention, apart from recognizing persons with mental disabilities as persons with disability does not specifically lay down any special provisions for the Mentally Disabled Persons and also does not provide for compulsory free health care.

After the UNCRPD, on 8 August 2016, the Rajya Sabha passed the Mental Health Care Bill,2013 which had been pending in the House for three years. People are hoping for a well reformed and suitable law for the problems that are existing in the society, which if passed by the Lok Sabha will repeal the outdated Mental Health Care Act,1987. We would like to highlight the important provisions of the Mental Health care Bill,2013 which will come in to existence in the near future. The objectives and provisions of the present Bill are baronial. Its proper implementation would bring about a change for the better.

Some of the provisions are;

It provides an easy right to access the Mental Health Care Treatment, which is affordable and of good quality from the institutions funded or maintained by the Government of India.

Persons with mental illness also have the right to equality of treatment, protection from inhuman and degrading treatment, free legal services, access to their medical records, and to complain regarding deficiencies in provision of mental health care.

This Bill provides for the establishment of the Mental Health Review Commission and Board; a Quasi-Judicial Body, Provisions for the establishment of the State and Central Mental Care Authorities, conditions for the establishment of the Mental Health Care establishments.

The State and Central Mental Health Care Authorities as administrative bodies are required to

(a) register, supervise and maintain a register of all mental health establishments,

(b)  develop quality and service provision norms for such establishments,

(c) maintain a register of mental health professionals,

(d)  train law enforcement officials and mental health professionals on the provisions of the Act,

(e) receive complaints about deficiencies in provision of services, and

(f)  advise the government on matters relating to mental health.

The Bill also Decriminalizes Suicide and also prohibits Electro-convulsive therapy, it is allowed only with the use of muscle relaxants and anaesthesia.

These are the important provisions relating to the Mental Health Care Bill,2013.

The Rights of Persons with Disabilities Bill,2014 was introduced in the Rajya Sabha in February 2014 and it is still under enactment process. The scope of the term disability has been extended under this Act, instead of seven types as in the previous Act it has over 19 conditions14 as grounds of disability, this increases the scope of disability under this section. It also says that disabled persons should not be discriminated unless there is a legitimate aim for the discrimination. It also talks about persons who have a 40% disability i.e. “Bench mark Disability.” The Bill provides reservation of 5% in the Educational Institutions maintained or funded by Government, 5% reservation in Government owned or controlled establishments only for the persons with Benchmark Disabilities. It also provides for the establishment of the National and State Commissions for persons with disabilities and Central and State Advisory Boards on disability. It also provides for the punishment for the violations of any provisions of the Act, the punishment may extend up to 6 months’ imprisonment or Rs 10,000 fine or both. Any subsequent violation may carry an imprisonment of up to 2 Years or fine from Rs 50,000 to Rs Five lakhs. These are the important provisions of the Rights of Persons with Disabilities Bill,2014.

The Mental Health Care Bill,2013, The Rights of persons with Disabilities,2014 are still pending in the Parliament. The delay in the passing of these Bills is depriving lakhs of people who have special needs. Once it does get enacted, the next question would be regarding how well the Government will ensure its effective implementation, because only if it is implemented well will the social entitlements and dignity of these individuals be protected.

Suggestions

Care and Compassion is the success mantra for the treatment of mentally disabled persons, they need someone to understand and take care of them.

Since people with mental health conditions fall in the area of vulnerability, Developmental Plans and Programmes should give importance to them. No matter how noble the legislative part of an Act, if there is no effective implementation, it would be of no use; steps should be taken for the effective implementation of the Acts, Programmes, Policies etc.,

The Government should not only establish some specialized mental health care facilities but also provide for basic treatment of the mental health care conditions in all Health Care Service centres established as a part of the National Health Response; they should emphasize on mental health care services at the primary level. There should also be specialized training programmes to help those people to gain employment.

State and Central Governments should take initiatives to create awareness among the people by conducting programmes, seminars etc. The act of treating mentally disabled persons with respect and dignity should be imparted right from school years. In fact, it should be made a part of their curriculum.

The Government should provide reservation in Educational Institutions and Employment and the new Act; (the rights of persons with disabilities Act,2014) should be passed and approved as it provides a reservation of 5% for the category of benchmark disability in the institutions either run or funded by the Government. International Organizations and even our Government should come up with new legislations pertaining to mental disabilities instead of treating disabilities as a whole.

The Acts by establishing authorities, possibly in a decentralized way, should hold regular visits to the Mental Health Care facilities and also inspect them and possibly provide incentives in the way of awards and cash prizes to these facilities if they have successfully implemented the conditions and requirements put forth by this Act.

Most people seldom show interest in the subject of the mental illness. This may be because of the neglect shown to this branch by policy makers or dogma dictated by society. Incentives should be provided for the people who choose Mental Health as their professional studies. They should be given proper social entitlements and additional perks.

Mentally disabled people are associated with high levels of unemployment, low wages etc., so, employment programmes should be created for the persons with mental disabilities and they should add to the Active Work Force. Researches have shown that if they are given proper care and support they do show signs of gradual improvement.

Even for the government to implement these programmes, they need funding so Public Private Partnership (PPP) should be explored and as a part of Corporate Social Responsibility they should be encouraged to take steps for the development of matters related to Mental Health.

Conclusion

Mental disability is a serious problem which needs to be given due attention. If we have a dedicated plan and initiative, then this problem can be solved. A constructive effort from the part of the Government along with a vigilant citizenry supported by innumerable NGOS can help the people with mental disabilities to come to lead a normal and good life. We do not have to wait for October 10 (World Mental Health Day), to think about this problem, it is something which is so important to the existence of the society that every moment can be dedicated to tackling it.

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