by Noor Bansal and Tanishka Aggarwal
The enabling statute in India concerning mental health and persons with disabilities is revolutionary in the sense that it transforms from a model of medicalization, charity, to one based on the principles of equality, freedom, and dignity. The Mental Health Care Act, 2017, which removes the offense of suicide and provides a right to persons with mental illness to live in the community, as well as The Rights of Persons with Disabilities Act, 2016, are based on the principles of the Indian Constitution.
Shift from the medical/welfare model to a rights-based approach
The approach to mental health conditions pertaining to disability rights in the Indian legal framework has transformed considerably in the past few years. This will ensure an intellectual shift to ensure inclusiveness, autonomy, and dignity in this period and beyond. The Barbaric Lunacy Act in 1912, along with the subsequent Act in 1987, was responsible for the incarceration of mentally ill people instead of helping those who require assistance in society. These two documents used the regulation-oriented approach instead of using a right-oriented approach in this field.
As it recognizes the right of all individuals for non-discriminatory access to mental healthcare, the Mental Healthcare Act, 2017 is in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
The Rights of Persons with Disabilities Act (RPwD Act) brought a semantic and paradigm shift from a medical to a social approach to disability. Non-discrimination, equality, and accessibility in the areas of public services, the work environment, and education are highly prioritized in the RPwD Act. Persons with disabilities are considered to be separate persons who have legal competency. Because of the new legislation which was passed and which caused a significant expansion in the list of disabilities, the number of disabilities has rose from seven to twenty-one. This new RPD Act is the first to acknowledge mental and neurodevelopmental disorders.
Human Rights, Dignity, and Non-Discrimination in Mental Health and Disability Law
The RPwD, 2016 and the Mental Healthcare Act, 2017 thus mark a paradigmatic shift in the Indian law relating to persons with mental illness and disabilities from a welfare orientation to a rights-based orientation that views them as autonomous bearers of rights, rather than passive recipients of care or charity. The RPwD Act of 2016 is grounded in the values of equality, dignity and non-discrimination. Legal validity is accorded to the view that being a disabled person is not incompatible with having a legal persona. The law prohibits discrimination against persons with disability in key areas such as public service, employment, education and health care, among others, in addition to providing reasonable accommodation to achieve substantial equality.
One of the most critical outcomes from its rights-based programs is accessibility. For accessibility, it needs universal access to public services, transport systems, information and communication technology, and physical infrastructure. It seeks to remove systemic barriers which inhibit people with disability from complete participation in society through emphasis on accessibility. The Act replaces substituted decisions with limited guardianship and supported decisions. The approach acknowledges the right of self-determination for people, a right to decide about oneself with due support.
This framework is complemented by the Mental Healthcare Act, 2017 which has a similarly progressive rights-based orientation of centering autonomy, dignity, and informed-choice in mental healthcare. As per the MHCA, mental illness must be understood according to accepted medical standards, and it excludes a person’s identity, beliefs, or prior treatment history. Thus, it excludes any moral or social judgment. The Same MHCA puts an enforceable obligation upon the State and the mental health professionals to respect these rights: equality, non-discrimination, confidentiality, community living, access to information and medical records, inhuman/degrading treatment and Protection from inhuman/degrading treatment. The Act empowers individuals to exert control over decisions concerning their treatment. This is made possible through recognition of concepts such as capacity and informed consent, and introduction of tools such as advance directives and nominated representatives. Of importance is its imposition of parity between mental and physical healthcare by directing insurers to cover mental illness, and decriminalising attempted suicide by presuming severe stress instead of criminality. Both these laws represent a fundamental rethinking of disability and mental health law in India that centers individual agency, participation, and dignity as the primary emphasis of legal regulation.
Guardianship: Balancing Protection and Independence
A guardianship application may be submitted under the GWA for a person under the age of eighteen. This application may be for the guardianship of the minor, their property, or both. When granting this guardianship, the following factors are taken into account: the minor’s welfare; the minor’s age, sex, and religion; the proposed guardian’s character and capacity; the minor’s proximity to the proposed guardian as kin; the minor’s current or past relationship with the proposed guardian and/or his or her property; and, finally, the minor’s preference, if the minor is capable of making an informed decision.
Although guardianship applications for adolescents with certain special needs are permitted under the GWA, the NTA only applicable when the individual has various disabilities, cerebral palsy, autism, or mental retardation. The NTA expressly defines these situations, and it’s crucial to remember that an application may be submitted under the NTA regardless of the age of the person with special needs. However, the requirements to choose the guardian are more stringent than those of the GWA, and the rights granted are restricted guardianship rather than guardianship.
According to the NTA, a guardian must be an Indian citizen, not be mentally ill or receiving treatment for a mental illness, not have a criminal record, not be impoverished and dependent on others, not have been declared bankrupt or insolvent, live close to the person with a disability, and, in the case of a female ward, a male guardian cannot be the only guardian. A committee established under the NTA considers guardianship applications for individuals with exceptional needs, which can only be submitted by the person’s parents, siblings, relatives, or, in the event that none of the aforementioned apply, a licensed institution, according to the requirements and extent of the guardianship.
The RPWD is applicable to people with all impairments, making it more comprehensive than the NTA, which governs those with specific disabilities. By granting people with disabilities the chance to be legally autonomous and independent, it seeks to transform society by enabling them to overcome barriers and engage with society. According to this law, the viewpoint of the person with a disability will always take precedence over that of those who are supporting them when disagreements arise about issues pertaining to people with disabilities.
The RPWD allows for limited guardianship, which may be defined as a type of guardianship that would function on a mutually beneficial basis between the guardian and the person with a disability and would be restricted to either a predetermined time frame or a specific choice or circumstance. Since the multiple acts do not overlap, this provision has no bearing on the guardianship of the guardians.
The MHA has eliminated the provision for the appointment of a guardian for a person or property, which was permitted under its predecessor legislation, in an effort to make the fight against mental illness a participatory process. These days, MHA only works to combat the widespread societal stigma associated with mental illness. For example, the law makes it clear that a person suffering from mental disease is not considered to be of unsound mind.
In social situations, the patient has the authority to make his or her own decisions and to designate and revoke designated representatives at any time. The requirements for being a designated representative include age, competency, and consent. A guardian makes legally binding decisions on behalf of the individual, whereas a designated representative assists in treatment decisions.
It could be more accurate to think of a lack of mental capacity in the current setting as a spectrum. The conventional definition of “guardianship” is today viewed as arbitrary and paternalistic, and it must change to reflect the times. The legal system must assist people with reduced mental capacity in exercising their personal autonomy and, to the greatest extent feasible, making their own decisions.
Adequacy of the Legal Framework: Gaps, Challenges, and the Way Forward
According to the 2011 census, there are over 26 million disabled persons in India, of which 2.2 million have mental illness or intellectual disability. According to a 2017 United Nations Population Fund report, 19% of India’s population, or over 300 million individuals, will be 60 years of age or older by 2050. Age-related illnesses, many of which impact the brain, such as memory loss and cognitive decline, are on the rise as the population ages.
This implies that a growing percentage of Indians may need varied degrees of help in the upcoming years with both daily tasks and more complicated decision-making, like those pertaining to financial, medical, and legal requirements.
However, India still suffers from a lack of knowledge on the many forms, causes, and remedies for mental impairment. This is coupled with pervasive stigma, superstition, and false beliefs about these disorders.
Given this, the emphasis now turns to analysing how the law already addresses diminished mental capacity and decision-making. Following the identification of the shortcomings and inadequacies in the current framework, efforts are being focused on ways to provide people more control over their own life, even in the event that they eventually lose mental capacity. Strong legal protections for people who already have diminished mental capacity are equally important in order to protect them from arbitrary decision-making and the possibility of abuse or injustice by those who may have legal authority over them but lack the moral authority to exercise it.[1]
[1] Kim D’Souza, ‘Enabling Supported Decision-Making’ (Vidhi Legal Policy, 16 March 2020); Aditi Sharma and Vatsal Singh, ‘Guardianship of Individuals with Special Needs: India’s Evolving Legal Regime’ (SCC OnLine Blog Exp 37, 24 April 2023).