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  In recent times, the human rights of mentally ill have assumed much significance. Human Right Activists jealously advocate their rights some time unrealistically. Still stigma exists and human rights are violated. The rights of mentally ill are violated even by their families. It was much worse in the past. The belief was that there was no recovery from mental illness; persons with mental illness were dangerous to the community and for the safety of the community, it was necessary to keep them away, outside the city. Accordingly, they were kept in jails and later in lunatic asylums setup in the vicinity of jails. In many countries of the world, belief persists even now that mental illness is caused by evil spirits and black magic cast. As a result the patients are beaten to take away the evil spirits. The belief is gradually changing.    

What are human rights?

Human rights are the rights a human being is entitled to being a human being. Human rights are for all, equally, universally and forever, irrespective of nationality, sex, ethnic origin, colour, creed or language. Human rights encompass the basic rights and freedoms covering a broad range of rights related to civil and political issues, such as the right to life and liberty, freedom of expression, right to equality before the law and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. Human dignity is the embodiment of human rights. All human beings including those with mental illness have an inherent right to be treated with dignity, decency and equality. Negation of this would mean negation of human rights. A person with mental illness is entitled to treatment with the same dignity and decency as any other human being.

Legal Support to Human Rights of Weaker Sections including Disabled and Mentally Ill

Universal human rights are protected and guaranteed by international human right declarations, conventions and laws which lay down obligations on member nations to promote and protect human rights and fundamental freedoms of individuals or groups. The first human rights legal resolutions at international level, such as Universal Declaration of Human Rights 1948, did not specifically address the rights of persons with mental illness.

  They codified more general rights like right to life and liberty and right to be free from inhuman, degrading treatment. Later resolutions such as the Declaration on the Rights of Mentally Retarded Persons (1971) and the Declaration on the Rights of the Disabled Persons (1975), began the process of establishing international minimum standards for the treatment of persons with mental disabilities. Besides the above, over the years, several other important international conventions and treaties have been signed, declarations made and guidelines and principles adopted affirming the human rights of weaker sections of the society, disabled persons and mentally ill persons like any other human beings.

Human Rights of the Mentally Ill

The UN principles for the protection of persons with mental illness and the improvement of mental health care (1991) recognise the enjoyment of the highest attainable standard of physical and mental health as the right of every human being. In 1996, WHO developed the Mental Health Care Law. Ten Basic Principles were enunciated as a guide to assist countries in developing mental health laws. The WHO also developed Guidelines for the Promotion of Human Rights of Persons with Mental Disorders as a tool to help understand and interpret the aforementioned UN principles 1991 (known as MI Principles) and evaluate human rights conditions in institutions.

Human Rights of mentally ill persons, often denied to them, include the fundamental rights as enjoyed by others, right to a life as normal and as full as possible, legal safeguards against abuse, right to treatment in the least restrictive set up, right to rehabilitation, right to personal autonomy, privacy, freedom of communication, right to education, right to economic and social security, right to family and community life, right to employment and right for protection against exploitation and discriminatory, abusive or degrading treatment. WHO and Governments of nations are now actively engaged to give a structured frame work to such rights of mentally ill

WHO’s Quality Rights Tool Kit

UNCRPD 2006 is a convention on the rights of persons with disability. Some of these rights which are directly related to human rights have been elaborated by WHO in the context of persons with mental illness in their Quality Rights Tool Kit (QRTK). Right to an adequate standard of living (article 28) has been elaborated in the context of a mental health facility to mean clean living with recreation facilities, proper ventilation, adequate light and adequate fire safeguards’ no overcrowding of living and sleeping space, segregated sleeping areas for men, women and children.

Other things expected as their human rights for living are clean bedding, clean and adequate number of bath rooms and toilets, separate for men and women, lockable storage space for personal belongings, wholesome food, potable drinking water and clean clothes to wear and right to communicate and move in society. The right to enjoyment of the highest attainable standard of physical and mental health (article 25) is elaborated in QRTK to mean adequate medicines and adequate number of qualified mental health professionals for treatment with informed consent and without any discrimination and as a right and also adequate schemes and facilities for rehabilitation.

The right to exercise legal capacity and the right to personal liberty and the security (articles 12 and 14) have been elaborated to mean right to decide the place and type of treatment; admission to an institution with consent and as a last resort and earliest discharge, and right to confidentiality and access to personal health information. Freedom from torture or cruel, inhuman or degrading treatment or punishment and from exploitation, violence and abuse (articles 15 and 16) have been explained as right to be free from verbal, mental, physical and sexual abuse and physical and emotional neglect. To be treated with humanity, dignity and respect, avoiding seclusion and restraint, ECT, abortion and sterlisation, only with free and informed consent, no experimentation which is potentially harmful or dangerous, experiments and research only with the informed consent etc. The right to live independently and be included in the community (article 19) has been elaborated to mean access to safe, affordable and decent living in the society, opportunities for education and paid employment, right to participate in public and political life including right to vote and right to join and participate in political, religious, cultural, social, leisure and other community activities.

Human Rights of Mentally Ill in Indian Law

The human rights of mentally ill was taken cognizance of in the Mental Health Act 1987 which replaced the Indian Lunacy Act of 1912. Chapter VIII of the Act was on Protection of Human Rights of Mentally Ill Persons. The Rule 81 the now repealed Act provided that no mentally ill person should be subjected during treatment to any indignity (whether physical or mental) or cruelty and no mentally ill person under treatment should be used for purposes of research, unless the person gave his consent and certain other conditions were met.

Mental Health Care Act 2017 which was notified on 29th May 2018, has a whole chapter on human rights of mentally ill persons. The Chapter V is on rights of persons with mental illness. Section18 of Chapter V covers extensively human rights of mentally ill including right to access mental health care and treatment from mental health services run or funded by the Government at affordable cost, of good quality, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.

The Act provides that the human rights of mentally ill include right to outpatient and inpatient services; half-way homes, sheltered accommodation, supported accommodation; right to live in the society; and not to be kept in a mental health establishment only because the mentally ill person has no family or is not accepted by family or is homeless. The Act includes right to live with dignity, protection from cruel, inhuman or degrading treatment in any mental health establishment and to live in safe and hygienic environment; adequate sanitary conditions; facilities for recreation and religious practices; right to privacy; right to proper clothing to protect from exposure of body, not to be forced to undertake work and to receive appropriate remuneration for work when undertaken; wholesome food and access to articles of personal hygiene, women’s personal hygiene, no compulsory tonsuring ; not to be forced to wear uniforms and to be protected from physical, verbal, emotional and sexual abuse, to be treated as equal to persons with physical illness in all health care.

no discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability; facilities, services and living conditions for mentally ill to be of the same quality and availability as provided to physically ill; right to protection from cruel, inhuman and degrading treatment. right to equality and nondiscrimination; right to information of treatment, right to confidentiality, mental health care, treatment and physical health care. No photograph or any other information relating to a person with mental illness to be released without the consent of that person, right to access their medical records, right to confidentiality, right to refuse or receive visitors and to refuse or receive and make telephone or mobile phone calls, right to send and receive mails, right to personal contacts and communication.

Social reforms is a slow process. Legal reforms to protect human rights of persons with mental illness are in place but implementation has to catch momentum. Awareness is being created; implementation may take a longer time. Attitudinal changes need to be propagated. Human Right activists, caregivers, survivors, NGOs working for mentally ill and all other stake holders have to strive individually and jointly to ensure against the violation of human rights of mentally ill.

-   Amrit Bakhshy

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