The Rights of Persons with Disabilities Bill, 2014 and persons with mental illness.

Sir,

The Rights of Persons with Disabilities Bill, 2014 has been introduced in the Rajya Sabha in February 2014 and is under enactment process.[1] In the Bill, ‘person with disability’ has been defined as “person with long-term physical, mental, intellectual or sensory impairment, which hinders his full and effective participation in society equally with others”. Person with benchmark disability is the one having degree of disability more than 40%. The Bill defines the mental illness as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub-normality of intelligence”.[2] The definition given under the Mental Health Care Bill, 2013 (MHCB) is same with the exception that ‘mental conditions associated with the abuse of alcohol and drugs’ are also included under mental illness in the MHCB.[3]

Concerns were raised that the provisions regarding the legal capacity of persons with disability (PWD) as given in the previous drafts bill would create problem in mental health care and treatment and it was felt that psychiatric practice in our country would be greatly affected by these provisions.[4] It was provided in the previous drafts that all PWD would enjoy legal capacity on an equal basis in all aspects of life and have the right to equal recognition everywhere as persons before the law and any legislation, rules, customs etc., which has the effect of depriving any PWD of legal capacity would not be enforceable. Obviously these provisions were in conflict with those in the MHCB. However, it is satisfying to note that now the concerned section has been substantially revised and now it ensures the PWD to have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs. Obviously, now the legal capacity under here is concerned with financial affairs only. PWD having high support needs have the right to access support system for the purpose, but a subsequent provision in the same section states that a PWD may alter, modify or dismantle any support arrangement and seek support of another. This provision may create confusion in mental health care. Therefore, it is advisable to have an explanation incorporated in this section that in case of mental health care and treatment, the provisions of MHCB would be applicable.

Section 13 of the Bill authorizes a District Court to appoint “limited guardian” for a mentally ill person found incapable of taking care himself/herself, who shall take care and take all legally binding decision on his/her behalf in consultation with such person. In extra-ordinary situations, the District Court may grant “plenary guardianship” to the mentally ill person and the guardian so appointed may take all legally binding decision on his/her behalf without any obligation to consult such person.

The Bill provides for 5% reservation in higher educational institutions and in posts in all government establishments for persons with benchmark disability, out which 1% quota has been provided forpersons with autism, intellectual disability and mental illness clubbed together. Keeping in view of high prevalence rate of these disabilities due to mental illness in the society, the quota of 1% seems to less in comparison to 4% to persons with other disabilities. In one study, Kumar et al. found that the prevalence of disabilities due to mental illness was about 2.3%.[5] Therefore, the quota of reservation for persons with benchmark disability due to mental illness deserves to be enhanced.