Comparing legislation for involuntary admission and treatment of mental illness in four South Asian countries

Many countries have mental health legislation (MHL) that can authorize involuntary mental health assessment and/or treatment. The World Health Organization (WHO) regards such legislation as a key component of good health governance [1].

The basis of modern mental health law originates from English statutes from the reign of Edward 1st in the late thirteenth century [2]. The entwinement of the doctrine of ‘parens patriae’ and the ‘police powers’ of the state were important features of early mental health laws. Parens patriae translates as ‘parent of the country’, justified detaining and/or treating a person compulsorily on the basis that the person was not able to look after their own interests [2]. The ‘police powers’ justified intervention as protecting other people from the person deemed ‘mad’, typically from physical violence [2]. In modern legislation, ‘risk of harm to self or others’ remains the basis of involuntary admission and treatment.

Since the late 1970s, MHL has become increasingly influenced by international human rights law [3]. In 1991, with the adoption of the Principles for the Protection of Persons with Mental Illness (MI Principles), the journey of ensuring least restrictive care began [3]. The United Nations Convention on the Rights of Persons with Disabilities (UN-CRPD) adopted in 2006 [4] is a potent platform for protection and has been ratified by 177 countries thus far.

However, many developing countries, alongside some developed countries, have not yet reformed or updated their MHL to align with international human rights conventions. In addition, bodies to regulate or monitor mental health laws exist in only a few countries. For example, the WHO found that more than 65% of countries in low and lower middle-income groups did not have an independent monitoring body [1].

In the past 5 years, several countries in the South Asian region undertook legal reform. This was partly in response to the WHO’s comprehensive mental health action plans and the global mental health movement [5]. The four countries (Bangladesh, India, Pakistan and Sri Lanka) included in this review belong to the South Asian region and are considered developing countries according to the WHO. All of these countries have had phases of British colonial rule and inherited the 19th century British Lunacy Act. In 1947, after the division of British India into Pakistan and India, both countries adopted the 1912 version of the Lunacy Act, and Bangladesh adopted the Lunacy Act when it became independent in 1971. In Sri Lanka, the Act was named the Ceylon Lunacy Ordinance in 1873 [6].

However, all of these countries have travelled a long way politically, socially and economically. The Lunacy Act, like any old legislation, is not informed by modern day human rights law or psychiatric practice. The Act is described as ‘archaic and obsolete’ [7].

This article compares the MHL and some relevant concerns regarding involuntary assessment and treatment for people suffering with mental illness in these four countries. While their colonial heritages are similar, their healthcare systems vary considerably [8‐10]. Despite this variation in healthcare systems, their goals to develop mental health services and reform their legislation in order to ensure proper care for this vulnerable group are comparable. Notwithstanding geographical, cultural, historical and linguistic diversity, commonalties have been identified when laws and some psychiatric clinical practices have been compared across nations [11‐14].

Based on two previous studies and the WHO checklist for MHL [12, 13, 15], standardized questions requesting information regarding the law that governed involuntary assessment and treatment were developed (see Additional file 1: Appendix S1).

The four key coordinating participants for each country were identified through the lead author’s professional network. Three of these participants were psychiatrists (from India, Pakistan and Sri Lanka) and one (from Bangladesh) participant was a public health professional with special interest in the area. These participants then identified other local collaborators who were selected for their expertise either due to their special interest in this area or due to their eagerness to participate in this project.

Altogether there were nine participants (Three from India, two from Bangladesh, two from Pakistan and two from Sri Lanka). One participant from India requested to remain anonymous. A letter with participant information and questionnaire was sent to the four key coordinating participants.

The completed questionnaire was returned to the lead author who reviewed the relevant MHL in comparison to the participants’ responses. The coordinating participant from each country was responsible for reviewing the findings and ensured all other participants were in an agreement. The participants from each country also had opportunity to comment about their concerns regarding the legislation or associated issues.

The findings for each country are summarized below.

Comparisons between MHL can be problematic, as each is formed within a particular social, legal, political and economic context. The situation and challenges are significantly different in developing countries compared to developed countries. Most literature relating to MHL is in the context of economically advantaged countries, ‘where modern legal forms flow from a broadly post-enlightenment mentality, where individual rights and liberties are the stuff of national identity’ [23]. This is not the reality for many developing countries and legislation needs to be interpreted within their current sociopolitical and cultural contexts.

The Bangladesh Mental Health Act 2018 replaced the Lunacy Act 1912. This is a major milestone for Bangladesh. This development came not long after India enacted their Mental Health Care Act in 2017. Pakistan also replaced the MHO 2001 with provincial MHAs in the last 5 years. Therefore, most of these developments occurred after introduction of the UN-CRPD. As a result, all of these countries have tried to develop legislation with a degree of alignment with international human rights.

Including the role of MHRBs or committees as watch dogs is a significant milestone, as this ensures proper utilization of legislation and reduces the chance of abuse of human rights. Opportunities for families/caregivers to appeal against the detention have been addressed within specific timeframes. With regards to informed consent, capacity and advanced directives, the Indian MHA 2017 is more specific. Pakistan and Bangladesh have addressed these crucial areas less specifically and with less elaboration in their documents. Countries carry ethical and moral responsibilities to ensure financial support for ongoing treatment and care in the developed world [24]. Even though it is an area of contention due to its implication on countries’ finances and resources, all legislation refers to legal fees and financial support from governments.

The Bangladeshi and Indian legislation are also clear about requiring institutional licenses to treat involuntary patients. This may possibly create ongoing issues due to the complexities of public and private sectors in all of these countries, as well as urban and rural areas. Resource allocation and financial implications of such laws are likely to be debated. However, for the first time an attempt has made in legislation to address both private and public sectors.

New and more progressive approaches are noticeable in India’s MHA 2017 compared with the two others. It has replaced terms such as ‘involuntary’ or ‘compulsory’ with the ‘supported admission’ and UN-CRPD is the major catalyst for this Act with rights of persons with disabilities at its core [24]. The inclusion of informed consent, advanced directives and nominated representatives for supported decision-making are changes to address human rights violation and prolonged detention. Theoretically, the Indian MHA 2017 is considered as a progressive piece of legislation, concordant with a higher proportion of the WHO human rights standards than the current legislation of England and Wales [15, 25].

Compared with the Indian MHA 2017, the human rights of people with mental illness are not adequately addressed in the Bangladeshi legislation despite being the newest [26]. There is no human rights review body in Bangladesh to oversee regular inspections of mental health facilities as noted a decade ago [27]. Pakistani legislation has addressed human rights and informed consent in definition, but not as extensively addressed as in India.

In contrast, despite being new, none of this legislation has managed to develop robust clinical review processes. Review is only required after 28 or 30 days, and sometimes longer. For example, detention in Pakistan for treatment requires a review after 6 months which is much longer than in developed countries. Although community support and rehabilitation are referenced, none of the legislation includes any community extension. This is in contrast to most developed countries despite equivocal evidence of effectiveness for such community treatment orders.

The Bangladesh Mental Health Act also states that medical practitioners may be fined if they provide false certificates of mental illness or treat patients in unlicensed institutions. Concerns that this may create fear within an under-resourced, struggling, health system have been noted [28]. In the Indian MHA 2017, the shift of responsibility to a nominated representative instead of professionals is seen as not in alignment with a culture that is still driven by ‘collectivist value’ (emphasis on cohesiveness among individuals and prioritization of the group over self). The concern is that this may affect sometimes already strained relationships in families due to illness burden and caregiver stress. Treatment may not occur due to poor mental health literacy [29].

In summary, the three new pieces of legislation in this region have made significant progress. The legislation has begun to incorporate human right issues but despite being in the same region and following the same guidelines, the inclusion of these terms is variable. Psychiatric advanced directives and shared decision-making are seen as two fundamental tools to safeguard the person’s choice, dignity and autonomy [30]. Apart from the Indian MHA 2017, none of the other legislations address this adequately.

In contrast, Sri Lanka is still practicing centuries old legislation that has not incorporated anything from modern psychiatry. It is therefore difficult to compare their legislation with the other three countries. However, Sri Lanka has made significant progress in the delivery of mental health care and development of a mental health policy.

The current legislation continues to use terms such as ‘unsound mind’, ‘lunatics’ and the process is confusing due to the inclusion of two types of patient, rather than defining mental illness or disorder. Absence of regular review is also a concern, and similar to the three new pieces of legislation is an absence of any community extension.

More concerning is that although Sri Lanka is a signatory of the UN-CRPD since 2016, its existing legislation does not talk about human rights issues. Their legislation has not been updated since the UN-CRPD has been in place. Signing the document states that the country agrees to align their domestic legislation with the UN-CRPD principles [4]. The necessary steps to implement the UN-CRPD are detailed, such as Article 4.1. ‘(b): To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.’

The current legislation of Sri Lanka, derived from Great Britain, does not adequately reflect modern Sri Lanka’s sociopolitical or cultural context. Since the amendment in 1956, Sri Lanka has experienced civil uprisings, ethnic conflict, a devastating tsunami and bombing in 2019. It is argued that given the social, political and economic changes, the current legislation for involuntary admission warrants reform [6]. The current legislation promotes a more custodial approach and institutionalized care, where rights of the individual with mental illnesses have not been addressed. However, the draft MHL2007 has been awaiting approval for more than 10 years due to difficulties in reaching consensus between different interest groups or stakeholders.

Overall, despite the similarities and differences in legislation, all these four countries share some common concerns regarding the practical aspect of implementing their legislation. These need consideration while developing or reforming a new law. For example, poorly developed mental health services, poor mental health literacy and lack of adequate resources. It is worth noting that 28 years after the enactment of the Mental Health Act 1987 in India, only 11% of Indian states have state mental health rules in place and possibly many states are unaware of these rules [31]. Therefore, people with mental illness continue to be potentially vulnerable to various type of abuse and violation of their rights. Reform of legislation would need to go hand in hand with resource issues and service improvement [32].

Finally, it is important to mention that cultural and religious beliefs such as supernatural influences are considered by many people as a cause of mental illness in this region. Rather than professionals, religious healers usually attend patients first [33]. Also, as mentioned by the participants from India, collectivist value in the culture may not be in alignment with the ‘autonomy to refuse treatment’ in this region. Collectivist values that emphasize communality and mutual dependence over the autonomy of the individual dominate decision-making in this region. The collectivist value complicates the management and direct application of some international ethics codes [34]. Therefore, it has been asked ‘would these countries be better served by a different model of reform of MHL compared with developed countries?’ [23]. Even though cultural differences cannot be ignored, it is also important not to use them to mask stigma and oppression [23].

In the 21st century we are still dealing with stigma of mental illness in both the developing and developed world [35]. Challenges in daily practice are different in the South Asian region from those in the developed countries.

This review highlighted many concerns common to the four countries. It is clear that account needs to be taken of the context and everyday realities before drafting and formalizing MHL. The countries included in this paper are slowly but surely addressing their MHL in the lights of concerns about custodial philosophy and human rights violation. The findings suggest three countries have reformed their legislation following WHO guidance and have also incorporated human rights issues. However despite their common legal heritage, how they are reforming their laws are influenced by their individual socio-political scenario. The criteria and processes for involuntary admission in all three new legislations are similar. They also have acknowledged shortages of specialists, resources in rural areas as well as private and public sectors. However, concerns remain the same due to probable failure to invest politically and financially. This could lead to further unsuccessful attempts to improve care for these vulnerable groups. Sri Lanka, on the other hand even though has made progress in developing Mental Health Policy highlighting human rights, and dignity of people with mental illness, it has not managed to address human rights issues in their current legislation. Cultural norms are different in these countries in comparison to developed countries. The concept of ‘collectivism’ influences family involvement and decision making in these countries, therefore concerns have been raised by clinicians about some aspects of these modern mental health laws which may imply individualism, and may affect implementation in this region. However, it is worth noting that with increasing globalization, pure collectivists and individualists are possibly less a reality. On the positive side, it can be seen that the four countries included in this review are slowly addressing health and justice issues for the adequate provision of mental health care. Appropriate governance, which includes necessary policy and legislative frameworks to promote and protect the mental health of a population, can overcome barriers to effective integration of mental health care [36].