Issue 44 Vol II, July 31, 2007

L A W  &  J U S T I C E

Mentally Ill and the Law
Joginder Singh Toor

Mental health is not only the concern of the medical men but also of the men of law men. Want of Mental Capacity renders one incapable of any legal activity, cannot enter into any contract nor contest elections, nor possess properties rather has to be taken care of.

How does then law deal with persons of unsound mind. Is there any infirmity or scope of improvement in the existing system?

Leaving mental retardation by birth aside, why one, having born with healthy brain and sound mind should go insane or of unsound mind, idiot, lunatic, violent dangerous and too deficient in mind to be capable of rational conduct. Social pulls, economic inequality, and failure of justice-delivery-system and many more factors as the medical men explain add to the cause.

Rendered by society as a whole, as such, how is he treated by law as a person, not knowing the consequence of his acts and conduct, behaving sans mensrea, is exempted from penal action. “Nothing is an offence which is done by a person who, at the time of doing it, be reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law” (S.84 IPC).

If having done an offence, the person of unsound mind is arrested, he is considered incapable of defending himself. Somebody, as his guardian, relative or next friend raising plea of his unsoundness of mind, claims exemption from punishment, the court has to enquire into the fact, by causing such person to be examined by the Civil Surgeon of the State Govt. may direct and there upon examine the medical officer as witness. On being satisfied, the court is to release him on sufficient security on assurance of his being taken care of, and to be kept in safe custody (S.330 Cr. P.C.)

In no circumstances he is to be sent to lunatic asylum except under the provisions of the Lunacy Act 1912 which Act has been repealed and replaced by Mental Health Act in 1987 in consonance with world wide attempt in this direction.

The Mental Health Act tends to consolidate the law relating to the treatment and care of mentally ill persons and to make better provisions with respect to their property. It avoids using words idiot, lunatic, replacing them by “mentally ill person” and “lunatic Assylum” by the words “Psychiatric Hospital” or Psychiatric Nursing Home, to be established under licence granted under the act.

Admission to such Hospital can be voluntary or on an application by a relative or a friend of the mentally ill person, supported by certificates from two medical practitioners. The detention can not be for more than 90 days subject to early discharge under the orders of the magistrate and also extension of time for or over 6 months under a reception order passed by the Court, in respect of persons already detained or found wandering by police.

Earlier to the passing of Mental Health Act the mentally ill persons used to languish in Lunatic Assylums or Mental Hospitals for years together, there being no provision for regulating admission to it. Nor review of the detention order by courts was provided. Once left in mental hospital it was will of the Doctors to certify or not, the fitness of the patient to be discharged. Recent case of discharge of a person after 53 years in hospital with no back ground of being mentally ill nor during his detention in asylum was he ever mentally ill.

The District Court on application of a relative or a public curator or the Advocate General, after due enquiry can appoint a manager of the property and a guardian of the mentally ill person.

A person of unsound mind is incapable of like a minor/protecting his civil rights, or filling or defending a civil suit which has to be done by a guardian appointed by the court or a next friend or near relative having no interest adverse to that of the mentally ill person (Order 32 Rule 15 Cr. P. C.)

Human rights of the person are no doubt protected to the extent that he shall not be subjected to any indignity or research unless the research is for his benefit.

The question remains, what if a normal man is sent to psychiatric hospital without proper enquiry and without following the procedure laid down by law. Shall he have to remain in detention, till the order is set aside by higher court which may take more time than prescribed detention. Will inadequate justice delivery system again add to the agony and render another one mentally ill for want of provisions in this regard. It requires national attention.

jogindersingh_toor@yahoo.com

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