By Jayna Kothari Wed Sep 04 2013, 00:11 hrs http://www.indianexpress.com/news/closing-the-care-gap/1164121/0 The new Mental Health Care Bill, 2013, is set to replace the Mental Health Act, 1987, and is a marked change from its predecessor. The bill adheres to the principles of the UN Convention on the Rights of Persons with Disabilities and moves the current mental health care law from a medical to a social model based on human rights. Some of the progressive aspects of the new bill include the recognition of the legal capacity of persons with psycho-social disabilities and of advance directives, as well as the protection of the rights to equality and dignity. But the bill also has several conditions that could negate the guarantee of these rights. In this respect, the bill has been debated intensely within the disability community.
One provision of the bill that has been widely publicised is Section 124. It provides that there shall be no prosecution of any person who may attempt to commit suicide and presumes that such a person has a mental illness unless shown otherwise. What is important is that Section 124 (2) goes on to state that, in such a case, it would be the duty of the government to provide the person care, treatment and rehabilitation. This provision seeks to nullify Section 309 of the Indian Penal Code, which made the attempt to suicide a criminal offence. Although Section 309 has been on the statute books, suicide has never really been treated as an offence. There have not been any serious prosecutions of persons who attempted to commit suicide and almost no convictions. Decriminalisation of this offence is still important as this recognises that persons with mental illnesses are susceptible to suicide and that there is a need to provide them care and rehabilitation instead of punishment. The need to decriminalise attempts to suicide have been considered by the courts, but only from the perspective of the right to life under Article 21 of the Constitution, not from a mental health perspective. As far back as 1994, in P. Rathinam vs Union of India, the Supreme Court was of the opinion that Section 309 was a "cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide" and recommended that the section be deleted in view of the global trend in criminal laws. Since the 1970s, most criminal statutes the world over have been decriminalising attempts to suicide. However, in Gian Kaur vs State of Punjab, the Supreme Court viewed this differently and held that the "Right to life is a natural right but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life'". The fact that in the majority of cases, the person who attempted it had some form of mental illness was only recognised in 2010, in the judgment on euthanasia in Aruna Shanbaug vs Union of India, where it was held that a person attempting suicide is in need of help rather than punishment, and recommended that Parliament consider deleting Section 309. The link between mental health and suicide rates is well known. A World Health Organisation report on preventing suicide finds that "studies from both developing and developed countries reveal an overall prevalence of mental disorders of 80-100 per cent in cases of completed suicide". It also states that mental disorders are a major factor associated with suicide. Despite this, a substantial proportion of people who commit suicide die without having seen a mental health professional. By recognising this link, the bill is progressive in that it imposes a duty on the government to provide care, treatment and rehabilitation for a person with a mental illness and who has attempted suicide. However, the bill does not give any guidelines on how care and treatment should be provided for such vulnerable persons. Would it be the hospital authorities, police, community health centres or other agencies that would reach out to persons and their family in need of such immediate care? The bill does not clarify these aspects of the law. Chapter V of the bill guarantees to every person the right to affordable, accessible, non-discriminatory and good quality mental health care and treatment. The implementation of these rights will be the real challenge as there is a severe shortage of mental health care professionals in the country. Without guidelines or a mechanism on how care, treatment and rehabilitation should be provided, it is not clear how the full protection of people's rights will be ensured. Mere decriminalisation of suicide, by itself, will not bring about much change. The challenge is for the new Mental Health Care Bill, 2013, to provide an effective framework for access to health care and treatment for all persons with mental illnesses. Co-authored by Reecha Das. Both writers are with the Centre for Law & Policy Research, Bangalore [email protected] -- Avinash Shahi M.Phil Research Scholar Centre for The Study of Law and Governance Jawaharlal Nehru University New Delhi India Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in Disclaimer: 1. Contents of the mails, factual, or otherwise, reflect the thinking of the person sending the mail and AI in no way relates itself to its veracity; 2. 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