Leave and Discharge: Legalising Science of Psychiatry and the Art of Caregiving!!

Abstract

The central theme and guiding principles of Mental Health Care Bill (MHCB), 2013 are “individual autonomy and protection of rights” of persons with mental illness. It has endeavored to address the rights of persons with mental illness. Pertaining to “leave and discharge,” the Bill provides for legal mechanisms and mandates for discharge of independent patients and their detention beyond 30 days; discharge of patients under supported admissions; leave of absence; discharge planning; role of Mental Health Review Boards (MHRB); nominated representatives; psychiatrists, medical officer, and other mental health professionals; and police. MHCB seems to be inspired by and modeled on Western laws borrowing several concepts and provisions such as that of MHRB and nominated representative. In this context, there are four major areas where the provisions of MHCB are either unenforceable without severe negative repercussions or nonviable. Close clause by clause analysis reveals that MHCB emphasises on individual autonomy and right to freedom at the cost of compromising other important fundamental rights such as to health and dignity. First, the Bill completely neglects the role of the most important resource, Indian family system; creating more hurdles for patient and family; even putting them on opposite sides of the legal fence. Second, though MHRB is meant for protection of rights, unlike the Western laws from where the concept is drawn, it has gross under-representation of psychiatrists, leaving medical decisions to the judiciary, and other nonmedical professionals. This seems to be a retrogressive step. Third, the periods for which detention is allowed under each section is clinically ill-informed and seems arbitrary (not even similar to Western laws!). Finally, several of the provisions including that of discharge planning cannot be implemented in practice unless, through its mental health policies and programs, the government creates community-based resources, and services of substantial quality.