An analysis on the Mental Health Act 2018 | The Daily Star
12:00 AM, February 02, 2021 / LAST MODIFIED: 02:03 AM, February 02, 2021

Law Analysis

An analysis on the Mental Health Act 2018

In developing countries like Bangladesh, mental health issues are frequently ignored. In Bangladesh, 3.4-22.9% children and 6.5-31% adults suffer from mental health issues. However, 92.3% of them do not seek medical attention, as per National Mental Health Survey. Mental disorders are viewed by a large group of the population as a result of being possessed by evil spirits rather than as illnesses that can be treated. As a result, most of the victims of mental illnesses either do not get proper medical treatment at all or there is unfortunate delay in getting such treatment. Many suicides occur every year due to mental health issue. In order to protect the rights of mentally ill people. Manoshik Shashtho Ain, 2018 (Mental Health Act, 2018) has been passed replacing the 106 years old controversial Lunacy Act, 1912. It aims at taking necessary steps for overall welfare of the mental patients around the country, protecting their rights to property, ensuring caring services and rehabilitation.

Section 23 of the Act imposes strict punishments for medical practitioner, imprisonment for 3 years or fine up to TK 5 lakh or both, for purposefully issuing false certificates of mental health and for carelessness or mismanagement during the treatment of patients. In Bangladesh, there are only 0.49 psychiatrists for per 1,00,000 population. This small workforce has to provide a formal diagnosis and subsequent care in all cases of mental illness.

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There is a fear that the strict penal provision against false metal health certificates can create panic among the existing small number of mental health practitioners. Thus, this strict provision of punishment might create a wall to adoptable and practical mental health-care delivery rather than increasing access to the services. Undoubtedly issuing a false mental health certificate is a serious criminal offence and such unethical acts do happen sometimes. In the legal system, a mental illness certificate has many consequences, such as affecting rights regarding inheritance to property, divorce, custody of children, and trials for criminal offences. Thus, reducing punishment against false certificates is not a reasonable solution. Sometimes, the untrue mental illness certificate may not be given by the doctor with mala fide intention but sometimes may be given on the basis of wrong diagnosis. Such unintentional wrong diagnosis maybe due to human mistake or technical default. So, before penalising a doctor accused of giving false mental health certificate, the court should scrutinise whether the certificate was given with mala fide intention or due to unintentional wrong diagnosis.  

One of the strong points of the Act is that it provides for separation of children and adolescents from adults in the mental hospitals. However, this provision is largely unimplemented.  Moreover, the mental health sector is underfunded and has small human resources. The service quality is very low in this understaffed governmental hospital.

Furthermore, the Mental Health Act does not provide for the establishment of more area-specific mental hospitals. As a result, most of the practitioners are concentrated in major urban areas like the capital city of Dhaka. The private hospitals provide comparatively better service and environment. But the excessive cost of the private hospitals is beyond the reach of low-income people. As a result, patients face the possibility of maltreatment.

Section 6 of the Act mentions that the patient's right to health, property, dignity, education etc. should be ensured and this shall be done through the enactment of Rules. In the absence of any such Rules, significant concerns such as confidentiality and accountability as well as the fundamental human rights of a mentally disabled person have not been elaborated. Even the WHO- AIMS report on the mental health system in Bangladesh stated there is no human rights review commission in Bangladesh to check the routine violation of people's human rights with mental illness. It would not be wrong to say that persons dealing with mental illness have to face discrimination in every sphere of life, including food, shelter, healthcare and education. Besides, while community support and rehabilitation are mentioned in the Act, strong review process for long periods and communal allowance are absent in the Act.

Especially in rural areas, people do not consider mental health as a real thing. They still believe in superstition. When they see any person with mental illness, they think that person is possessed with evil spirit. Hence, instead of taking the sufferer to the mental hospital, they take the sufferer to the village witchdoctors. The witchdoctors 'treat' the patients inhumanely e.g. by beating or chaining the patient. Unfortunately, the Act does not provide any provision to punish these offenders for this inhuman practice and to stop this practice. The Act should be amended so as to include penal provisions against inhumane practices by witchdoctors.

The Mental Health Act, 2018 needs to be supported by a strong and inclusive mental health policy, which will make up for the flaws and loopholes of the Mental Health Act, and thereby will strengthen the whole legal regime on mental health. The policy should provide for the following matters:

First, the Government needs to strengthen the existing mental healthcare system and build a strong workforce of mental health care professionals. Specialised hospitals for mental treatment should be established with sufficient psychiatrists in every district immediately. Such hospitals must have adequate medical facilities and human resource.

Second, mental health helplines should to be established from where people can easily get emergency mental health assistance and primary information on available mental health services.

Third, Special education service needs to be provided for mentally ill people. This way we can remove the existing discrimination against them.

While considering improvements to the Act, some reference may be made to the Mental Health Act of India. The Indian Mental Health Act puts great emphasis on the human rights of mental health patients, such as right to access mental healthcare, right to community living, right to protection from cruelty, inhumane and degrading treatment, right to equality and non-discrimination, right to information, right to confidentiality. The Indian Act contains restrictions on release of information relating to mental illness, and access to medical records and personal contacts of mental health patients. The said Act also contains provisions regarding legal aid and how to make complaints about any shortcomings in the mental health services.

Aside from legal measures, the Government may carry out campaigns to increase public awareness about mental health. In addition to the rigorous punitive provisions, policies, and initiatives, every conscious individual has moral responsibility to work for removing the social stigma about mental illness, and safeguarding the rights of mental health patients. Together we can make a difference.   

The writer is a student of law at North South University.

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