From: V Bhargavi
To: Javed Abidi Mr.
Sent: Monday, April 05, 2010 6:13 PM
Subject: MENTAL HEALTH ACT AMENDMENTS: WHITHER FEMINIST / LEGAL STUDIES
The Mental Health Act, 1987 Vs. The Amended Mental health Act,
2010
The role of feminist and feminist legal studies in restoring rights of ‘disturbed’ women
In the last decade, ever since Erwadi tragedy happened, the Mental Health Act has been
severely contested as unconstitutional and denying human rights to persons living with a
mental illness / psychosocial disability. Feminist scholarship and legal advocacy has been
quite active during this time, placing several challenges and invitations to dialogue,
before all gate keeping functionaries operating in the system, including psychiatrists,
asylum management, people in governance, NGOs, family care giver organisations, etc.
By this time many of us, feminist or not, have certainly wanted the Mental health Act to
be repealed and to be replaced by statutes embodying positive rights for women with
mental disabilities.
Following the adoption of the United Nations Convention on the Rights of Persons with
Disabilities, worldwide, India has been taking measures to review the legal status of all
laws relating to mental health and disability. Particularly, the National Trust Act and The
Persons with Disabilities, Non-Discrimination and Equal Opportunities Act 1995. These
laws come within the aegis of the Department of Social Justice and Empowerment.
On 22nd January 2010, the Ministry of Health, Government of India, set up a process for
review and amendment of the Mental Health Act, 1997. The work was outsourced to a
private psychiatrist, running his clinic out of a 5* hospital facility in Pune and who also
co-ordinates a WHO supported Diploma in International Law, Mental Health & Human
Rights for the last 2 years. Dr. Pathare, sending out his emails on these efforts, gave civil
society 15 days to respond to his Amendment Draft, which was made public on 1st of
March. The draft amendment is copied to this email. Following petitioning the Ministry
on the said process by civil society advocates, a senior SC Judge has been appointed to
monitor the process and closed door consultations are on.
We, at the Bapu Trust, reading the amended draft, are outraged
. We argue that the
earlier Mental Health Act, bad as it was, is far better than this so-called rights sensitive
amended Act. Our arguments are as below.
While the Mental Health Act gave specific adjudicatory and monitoring powers to the
judiciary, the present amendment dismantles literally every monitoring mechanism
provided therein, including the Board of Visitors, Inspection procedure, etc. The right to
appeal on a claim of wrongful confinement is also taken away. The magistracy, whose
role in the sector is to protect the right to liberty, freedom of expression, life and
freedoms of people living with MI, is kept to the bare minimum of sanctioning
admissions along with various other actors.
The Mental Health Act gives guidelines on definition of mental illness, without
specifying diagnostic groups. This gives the magistracy a minimum scope of judicial
arbitration and the space to treat medical evidence as just another kind of evidence before
the court of law. The Amendment draft specifies diagnostic groups sealing the over riding
authority of psychiatrists in the admission process. Further, in broadening the scope of
‘disorder’, it amplifies risks for women and for communities and those living in the
margins of those communities to be pulled in by force into the mental asylums. [The
NHRC report of 1999 said point blank that most hospitals did not deserve the name of
‘hospital’, but are only ‘asylums’].
The Amended Draft provides for what can or cannot happen to residents of these
institutions and what constitutes consent. But these provisions are literally Catch 22 for
those who will be implementing them, as well as for those at the receiving end of them.
For example, the Advance Directive right is given, wherein a person can specify what can
and cannot be done upon her when in crisis. However, several provisions follow of
situations which can take away this right. While the MHA was silent on such matters, the
Amended Draft seems to give something very promising but piles up so many conditions
on its efficacy, that its use is diminished completely.
The most damaging part of the Amended Act is that it has no Rights chapter, assuming
perhaps that the entire document is rights oriented. So several consequences follow: [1]
The draft sets up greater divisions and conflicts between user / survivor interests and
family care givers’ interests, giving the state and psychiatrists, more power in arbitration.
Neither users / survivors nor care givers are treated as allies within the amended draft,
either for each other or for the psychiatrists. Absent, any reference to or recognition of
other kinds of judicial, quasi-judicial, non-medical or community based actors in
implementing the law, psychiatric power is magnified many fold. [2] Legal capacity of
users / survivors in determining their own well being and treatment choices is neglected
completely, all decision making being left to a ‘nominated representative’. The voices of
users / survivors is barely audible in this so-called rights sensitive, CRPD compliant
amendment draft. [3] Worst of all, the draft legalises 'psycho-surgery' a procedure which
went of asylum practice in the West decades ago.
At the present moment, there are further concerns about the privatization and
commercialization of such legal reform efforts. The psychopharma is working too closely
with private psychiatry, which in fact is leading this work. This is most unusual in the
Indian law reform area. It is as if the Corporation Act is given over to the business houses
which builds roads and bridges! Commercial enterprises offering asylum care for mental
illness are a major player in this process, being active participants in the consultations.
There has been selective exclusion of human rights and community based groups even in
mental health. The MHA amendment process has been totally non transparent and several
of us are filing RTIs to find out more. All in all, we at Bapu call it the “Total
Empowerment of Psychiatrists Act, 2010”.
These above being the main general drifts of the amended draft, our question is, what is a
reputed feminist legal studies department in the Indian Legal Studies unit of the Law
College, Pune, doing in preparing, disseminating and advocating this draft? This
department has had a prestigious academic history of writings and research on women’s
rights, women’s health rights, women and law, etc. Hasn’t enough been said about
eliminating the double speak within the Indian women’s movement by the dalit women,
the queer women, the disabled women and the mentally ill women? How can this
feminist legal studies department talk on the one hand about women’s rights in general,
and then be involved in a legal advocacy that will pull in more women into the asylums
than ever before? How can a legal department, feminist or otherwise, be willing to trade
away the scope of the judiciary in determining incarceration and its consequences on civil
life?
Do let us initiate a dialogue on this within the women’s movement, the disability
movement, the dalit movement, the queer movement, in fact, all political movements in
this country.
Do write to ILS Mental Health Law department, Dr. Jaya Sagade, at
incarnapune@gmail.com in protest.
From
Bhargavi Davar, bvdavar@gmail.com; camhpune@gmail.com
Tel: 020-26837644; [m]- 09823291989
Bapu Trust for Research on Mind & Discourse
Pune.