Uttarakhand HC: Free mentally ill children and formulate policies for them

Above: A mentally ill patient (representative image)

~By Sanjeev Sirohi

It must be lauded right at the outset the landmark judgment delivered by the Uttarakhand High Court on June 1, 2018 which shall benefit all those mentally ill children who have to face untold sufferings and discrimination just because they are mentally ill. All this maltreatment of mentally ill children keeps on happening right under the nose of the state administration and yet no concrete and tough measures are taken to check it. But from now onwards not any more.

The Uttarakhand High Court in the landmark case of Dr Vijay Verma v Union of India & others issued a slew of directions meant to extend basic human dignity to the mentally challenged and safeguard their interests. It directed the State to formulate a comprehensive policy for rehabilitation of mentally ill children and patients. This is certainly very commendable and a positive step in the right direction.

It must be stated here that while issuing a slew of directions, the Bench comprising Justice Rajiv Sharma and Justice Sharad Kumar Sharma also asked the State to ensure that they are not treated by tantriks and quacks. Besides, it also directed the State to gather Epidemiological Survey Data on mentally ill children through National Institute of Mental Help and Neurosciences at Bengaluru within six months.

The Court was hearing a petition filed by Dr Vijay Verma who had highlighted the terrible plight of mentally ill children and had also pointed at the abject failure of the Uttarakhand government in formulating a policy for their rehabilitation.

The PIL had cited two Times of India (TOI) newspaper reports of mentally challenged children being kept tied in chains in Udham Singh Nagar and Rudraprayag districts. It may be recalled here that the TOI had in its edition dated October 23, 2017 highlighted the plight of Pankaj Rana, a 22-year-old youth from Rudraprayag who had been kept chained by his family ever since he was born. The youth is afflicted with a condition termed as quadriparesis which renders limbs immobile as well as aphasia which affects the comprehension of speech. His mother who is a widow did not have the resources to get him treated.

It would be pertinent to mention here that in a similar story published on December 28, 2017, TOI had reported on a mentally disabled girl Chandni Das who had been kept chained for three years by her parents. The 14-year-old girl’s father who is a daily wager was unable to provide her treatment. Both these stories carried lot of merit.

The Uttarakhand High Court promptly directed the administration of both the districts to ensure that the affected persons “are freed within six hours and admitted in a suitable health facility within 24 hours”. Taking cognizance of both these cases, the Division Bench of Justices Rajiv Sharma and Sharad Kumar Saxena directed the state government to pay Rs 50,000 to the guardians of both the mentally challenged persons cited in the reports and fix their pension at Rs 5,000 per month. The Division Bench also made it a point to mention categorically that, “The families of mentally disturbed children always remain under stress and strain. Poverty further aggravates the situation. It must be very painful for the parents to chain their own children. We, as a society, have to be sensitive towards the mentally disturbed children.”

Simply put, while remarking that “the present petition had raised a question of grave public importance,” the Judges directed the government to “undertake a survey of those mentally retarded persons, who are not getting treatment and have been kept by their family members in chains” and submit the report “positively within a period of six weeks”. The court further appointed the district magistrate and senior superintendent of police of Udham Singh Nagar district as “persons in loco parentis for the care, protection, treatment and rehabilitation” of Chandni Das.

To be sure, Ajay Veer Pundir who is counsel for the petitioner told media that by late evening, the district magistrates of Rudraprayag and Udham Singh Nagar had taken steps to comply with the court’s orders. He pointed out: “The DMs have informed that teams were dispatched to the homes of the patients and their chains were removed.” All thanks to Justice Rajiv Sharma and Justice Sharad Kumar Saxena of Uttarakhand High Court who ensured this happens!

It would be imperative to mention here that while taking note of the provisions of the Mental Healthcare Act, 2017 and the current steps being taken by the authorities for the welfare of mentally ill children, the Court underscored on the importance of comfortable and safe environment for them. It minced no words in stating most explicitly that, “Every person with mental illness is entitled to clean, safe and hygienic environment, adequate sanitary conditions, reasonable facilities for leisure, recreation, education and religious practices, food, proper clothing to protect such person from exposure of his body to maintain his dignity, and not be subjected to compulsory tonsuring (saving of head hair), to be protected from all forms of physical, verbal, emotional and sexual abuse in any mental health establishments run by the State and granted permission by any private institution provided approval by it.”

It also has to be remembered that the court went on to specifically take note of two cases where minor disabled children were kept chained by their parents due to lack of resources to take care of them. While sympathizing with the children as well as the parents, it opined that the family of mentally ill children remain under immense stress and strain. There can be no denying it!

Going forward, it then noted the importance of endowing “constant love, care, passion and compassion” on such children. It also highlighted the significant role of the society in aiding the growth and development of such children, while ensuring that they are treated humanely. It observed very rightly: “The mentally disturbed children/patients have a fundamental right to privacy, dignity, self-respect, self-preservation, access to quality mental health care and sustenance. The Society should make sincere endeavor to assimilate/integrate the persons who are mentally disturbed persons, since it is difficult for them to take decisions of their own. All of us must provide due care and protection to mentally disturbed children since it is difficult for them to take decisions of their own.  The role of the society is to make an endeavor to protect the rights of mentally disturbed children as guardians and custodians.”

Having said this, it must also be mentioned here that thereafter, the Court disposed of the petition with the following landmark directions as stated below:

Unchain mentally ill children

• The District Magistrate, Udham Singh Nagar and Senior Superintendent of Police, Udham Singh Nagar are directed to remove the chains of Ms. Chandni D/o Narayan Das R/o Subhash Colony, Rudrapur within six hours. These officers are also directed to shift Chandni to the Mental Health Hospital, Selaqui within 24 hours.
• The District Magistrate, Rudraprayag and Superintendent of Police, Rudraprayag are directed to remove the chains of Pankaj Rana within six hours. They are further directed to shift Pankaj Rana to the All India Institute of Medical Sciences, Rishikesh within 24 hours.
• Rs 50,000 compensation and Rs 5,000 monthly payment to such chained children
• The District Magistrate, Udham Singh Nagar and the District Magistrate, Rudraprayag are directed to pay and release the ex gratia payment of Rs.50,000/- each to the guardians of Chandni and Pankaj Rana within 24 hours for the treatment of their wards.
• The respondent-State is directed to pay a monthly stipend of Rs.5,500/- each to the guardians of Chandni and Pankaj Rana for their care and protection including treatment.

Comprehensive policy for such children

• The State Government is also directed to prepare a comprehensive Policy for rehabilitating the mentally disturbed children and parents.
• All the SSPs/SPs, throughout the State, are directed to ensure that the mentally disturbed patients are not treated by Tantrics, Quacks etc. and to ensure that the mentally disturbed patients are not chained/shackled/fettered/ill-treated or kept in solitary confinement even in the private homes and institutions.

Survey within six months 

• The State Government is directed to conduct the Epidemiological Survey Data in the State to determine the mentally retarded/disturbed children through National Institute of Mental Help and Neurosciences, Bangalore (Karnataka) within six months from today.

Setting up of Centre for Human Rights, Ethics, Law and Mental Health

• The State Government is advised to set up Centre for Human Rights, Ethics, Law and Mental Health with the objectives, as stated in paragraph no. 40 of the judgment.

Authorities under the Act

• The State Government is directed to constitute the State Authority under Section 45 of the Mental Healthcare Act, 2017 within three months from today.
• The State Government, thereafter, shall constitute the Board to be called ‘Mental Health Review Board’ as per Section 73 of the Act within eight weeks.

Directions for the State Government under the Act

• The State Government is directed to provide mental healthcare and treatment to all the persons with mental illness at an affordable cost, of good quality, available in sufficient quantity, accessible geographically and without any discrimination.
• The State Government is directed to incorporate mental health service into general service at all levels including primary health centers in all health programmes.
• The State Government is directed to ensure that no person with mental illness including children and illiterate persons are transferred to long distances to access mental health service.
• The State Government is directed to ensure that every person, with mental illness as per Section 20 is protected from cruel, inhuman and degrading treatment in any mental establishment.
• The State Government is directed as per Section 29 to plan, design and implement programmes for the promotion of mental health and prevention of mental illness in the State.
• The State Government is also directed to take all necessary measures to give due publicity to the Mental Healthcare Act, 2017 through public media, including television, radio, print and online media at regular intervals.
• The State Government is also directed to ensure that no person or organization establishes or runs mental health establishment unless registered with the authority constituted under the Act.
• The persons suffering from mental illness shall be admitted in the Establishment as per Section 86 of the Act.

No electro-convulsive therapy

• The practice of electro-convulsive therapy without the use of muscle relaxants and anaesthesia, except with the express consent of guardian, is prohibited in the State of Uttarakhand.
• The State Government would ensure that no person with mental illness is subjected to electro-seclusion or solitary confinement.

Mentally ill prisoners/inmates

• All the Medical Officers of the Prison or Jail are directed to send quarterly reports to the concerned Board certifying therein that there are no prisoners with mental illness in the prison or jail.
• The person in-charge of the State run custodial institution (including beggars homes, orphanages, women’s protection homes and children homes) is directed to ensure that any resident of the institution has, or is likely to have, a mental illness, he shall take such resident of the institution to the nearest mental health establishment run or funded by the appropriate Government for assessment and treatment.

Duties of police officers

• Every police officer in the State of Uttarakhand is directed to take under protection any person found wandering at large within the limits of the police station whom the officer has reason to believe has mental illness and is incapable of taking care of himself. Every person taken into protection is ordered to be taken to the nearest public health establishment forthwith.
• It shall also be the duty of every police officer to report to the Magistrate if any person, suffering from mental illness, is being ill-treated or neglected.

Policy in six months

• The State Government is directed to frame the Policy, as undertaken, to register the children suffering from mental illness within six months.
• The State Government is also advised to open more Mental Care Establishments taking into consideration the large number of persons suffering from mental illness for their proper treatment, protection and care.
• The State Government is directed to open District Early Intervention Centers (DEICs) in every district of the State within six months.
• The State Government is directed to ensure that henceforth, no mentally disturbed/retarded person is found on the streets. The concerned SSP/SPs are directed to shift them to the nearest mental health institutions/place of safety.

All said and done, it is an exemplary and excellent judgment. It will always come to the aid of those who are mentally ill and those whose voice goes unheard and unrepresented. All courts from bottom to the top must study in detail this landmark judgment and try to always adhere to it both in letter and spirit!

—The author is an advocate