Let us face it. We may all have, at some point during this lockdown, encountered the ‘quarantine blues’ – that is, to put it very mildly – the deep, unsettling and disconcerting medley of grief, anxiety and fear. Life as we know it, may have come to a complete standstill for many, or worse yet, slipped into an irreversible decline. Loved ones may be sick, stranded or may have passed on; livelihoods lost; life plans brought to a screeching halt; and day to day survival may seem like an insurmountable struggle.
A recently published study on the psychological impact of quarantine, reports several negative effects including post-traumatic stress symptoms, confusion, and anger, triggered by infection fears, frustration, boredom, financial loss, and stigma. The World Health Organization (WHO) has in fact issued a detailed advisory on “mental and psychosocial well-being during COVID-19 outbreak”.
As the number of COVID-19 related suicides steadily rises, the Indian government has, in partnership with the National Institute of Mental Health and Neuro-Sciences (NIMHANS) launched a toll-free helpline for people facing mental health issues during these trying times.
More recently, a PIL has been filed in the Supreme Court, seeking free services from TV channels, streaming apps and mobile companies, to lower the psychological stress caused by confinement during lockdown.
Shifting Focus to a Deep-Rooted Problem
As we continue to ponder over existential questions, the COVID-19 imposed quarantine is forcing us to experience what, according to WHO, approximately 20 percent of the population of this country is experiencing on a normal day.
A detailed survey conducted by NIMHANS in 2015-16 disturbingly reports that at least 150 million Indians are in need of mental health interventions and care. However, “…to address these problems, the current mental health systems are weak, fragmented and uncoordinated with deficiencies in all components at the state level”.
Mental health has been long neglected.
This lack of focus largely stems from a fundamentally warped understanding of the meaning of ‘health’ as being limited to physical wellbeing.
Added to this, is the enormous stigma surrounding mental health, which forces people to suffer in silence, rather than speak out and seek help.
Our Fundamental Right to Health
Part IV of the Indian Constitution, particularly Articles 38, 39(e), 41, 42, 47 and 48A, enjoins the State to preserve and maintain the health of its citizens. Though the right to health is not expressly recognised under Part III, the Supreme Court has, in no uncertain terms, held this to be an integral part of the right to life.
The firm grounding of the right to health in Article 21 is largely attributable to the untiring efforts of Justice K Ramaswamy. What started with dissent, holding that “health is thus a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity”, was followed by an array of judgments, ultimately leading the Supreme Court to underpin the right to health as the ‘pith and substance’ of the right to life. However, in all these cases, the judicial interpretation of the term ‘health’ was only in the context of physical wellbeing.
What About Mental Wellbeing?
That is not to say that mental health has been entirely neglected. In fact, some of the earliest laws on this subject were colonial legislations enacted between 1858 and 1912. The first significant legislation was the Mental Health Act, 1987 (MHA), which largely focused on licensing, admissions to and discharge from psychiatric hospitals.
The judiciary has regularly intervened in championing the rights of persons covered under the MHA. Following a gruesome tragedy, in which more than 25 patients housed in a mental asylum were charred to death, the Supreme Court, issued a slew of directions to the government to effectively implement the MHA.
As significant as the Mental Health Act, 1987 (MHA) was, its focus was only on persons affected with severe mental conditions.
This reflected a rather stereotypical understanding of mental ailments, which as we know, are as wide-ranging as their physical counterparts.
It took the legislature over half a century to transform its thought process. The enactment of the Mental Healthcare Act in 2017 (MHA 2017) was a giant leap forward. The definition of ‘mental illness’ as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life…” reflects a vastly enhanced understanding of mental health issues.
Bringing parity between mental and physical ailments, the MHA 2017 directs insurers to provide for the treatment of both kinds of illnesses on the same basis.
Mental Health Act 2017 Decriminalises Attempted Suicide & Upholds Other Rights
Very significantly, MHA 2017 decriminalises attempted suicide and upholds the right of patients to take decisions regarding their mental healthcare.
It recognises several other rights, including access to affordable healthcare, right to community living, protection from degrading treatment, right to equality, right to information, right to confidentiality and the right to legal aid.
Equally, it commands the government to provide adequate healthcare services, promote mental health programs and undertake training of healthcare professionals.
The Act unequivocally declares that “Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government”.
Is the Mental Health Act 2017 ‘Overambitious’?
MHA 2017 is, without doubt, a significant step in the right direction. All the same, it is an ambitious project, whose objectives are impossible to achieve without an equally ambitious budget.
Unfortunately, the infrastructure and support required to operationalise MHA 2017 is seriously lacking.
The WHO’s mental health state profile for India is quite telling. As of 2017, the government expended a meagre 1.30 percent of the total health budget on mental health.
The number of mental health workers per 100,000 population stood at an outrageous 1.93.
In FY 2019, the budget allocated to the National Mental Health Programme (NMHP) was brought down to Rs 40 crore from Rs 50 crore, a mere 0.06 percent of India’s health budget. Of this, only about a tenth was actually spent. Budget 2020 did not increase the allocation for NMHP, despite the total healthcare budget seeing a 7 percent increase.
Why Don’t We Have Infrastructure to Support Mental Health Act 2017?
Owing to budget constraints, state governments have been unable to put up the infrastructure required to implement MHA 2017. While this may warrant judicial intervention, it begs the question of the extent to which courts can influence the government’s financial policies.
Recognising that the fundamental right to health imposes a corresponding duty on the State to invest, the Supreme Court, held that, “Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform this obligation with top priority including by way allocation of sufficient funds… For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right, finances are an inherent requirement. Harnessing such resources needs top priority”.
Yet, the court refused to interfere with the government’s policy, on the ground that the right was subject to constraints on the health budget on account of financial stringencies.
Courts Must Continue to Monitor Implementation of Mental Health Act 2017
Notwithstanding, courts have stepped in time and again to monitor the implementation of MHA 2017. In an insightful judgment, the Uttarakhand High Court analysed a wealth of literature on mental health, and issued detailed directions to the state government to effectively implement MHA 2017. Similar directions were issued by the Karnataka High Court last month.
Given the disturbing trend discussed above and the COVID-19 crisis, mental health can expect to see deeper budget cuts in the future.
The lockdown has once again drawn the Supreme Court’s attention to the issue of mental health. While the court is unlikely to direct cable TV providers or mobile companies to offer free services, we sincerely hope that it intervenes to enforce this fundamental right, which gives meaning to life.
(Bhargavi Kannan is a practicing advocate at the Delhi High Court and the Supreme Court. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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