Suicide, Criminality and Coercive Psychiatry
Though it is a very difficult topic to take up, we are posting this in response to a query received, about which Right supercedes over the other: Right to Life or Life to Liberty.
A group member has shared:
“The right to life (Article 10) does not override the right to liberty (Article 14) when it comes to issues of suicidality. The right to life cannot be superseded by the right to liberty. Both rights must be respected.
What needs to be done:
1) Prosecute murders of people with disabilities, and ensure the means of survival for people with disabilities on an equal basis with others.
2) Suicide and assisted suicide are controversial in the disability community. Suicide may be a valid personal choice, but it can also be a response to preventable conditions of deprivation, violence and discrimination. Neither criminal sanctions nor coercive psychiatry is an appropriate response to suicidal attempts or wishes. People with experience of suicidality should be considered experts on this issue when developing law and policy.”
Some concerns come to light in this submission to the TransAsia group: That, the lives of people with disabilities is at risk; and that, ‘personal choice’ becomes confounded in the case of suicide, by conditions of life.
Some legal concerns are brought forward, about criminal sanctions and / or coercive psychiary against suicides.
A recommendation, herein, about inclusion of experiential expertise in the area.
Find below, a brief advocacy document prepared in the Indian context by Adv Amba Salelkar, supported by many of us in India, concerning the issue of Suicide, Criminality and Coercive psychiatry. This statement was made to Smt. Arpana Mendiratta, who was Convenor of the Standing Committee on the Mental Health Care Bill of 2012. The submission was made before the elections, on 25th September 2013.
“The Mental Health Care Bill, 2013, as introduced in the Rajya Sabha on 19th August, 2013 and pending has been referred to the Parliamentary Standing Committee of Health and Family Welfare.
It is commendable that ‘The Mental Health Care Bill’ proposes to repeal the Mental Health Act, 1987. The objective to protect and promote rights of the persons with mental illness in fulfillment of constitutionally granted rights to all citizens of India, and those obligatory under international conventions that India has ratified, particularly the United Nations Convention on the Rights of Persons with Disabilities is commendable.
The Mental Health Care Bill of 2012 has set up a controversy on various topics, including (1) Advance Directive (2) Informed Consent (3) Involuntary admission and (4) finally, the decriminalization of the attempt to commit suicide.
In our present petition before Your Honourable selves, we address only point (4), viz.
Decriminalization of the Attempt to Commit Suicide:
The Issue: Section 124 of the Bill,
“124. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code,
any person who attempts to commit suicide shall be presumed, unless proved otherwise, to
be suffering from mental illness at the time of attempting suicide and shall not be liable to
punishment under the said section.
(2) The appropriate Government shall have a duty to provide care, treatment and
rehabilitation to a person, having mental illness and who attempted to commit suicide, to
reduce the risk of recurrence of attempt to commit suicide”.
In the said Section on Decriminalization of Suicide, Section 309 of the Indian Penal Code is interpreted that, a person who has attempted to commit suicide is exempted from punishment under the I.P.C.; and is presumed to be “suffering from mental illness”. The law recognizes the suffering being undergone by many persons who attempt suicide and seeks to provide them with care and consideration, instead of subjecting them to criminal prosecution.
A. The unintended consequence of the law creating this presumption of “mental illness” of any person attempting suicide, is that the person is now subject to the provisions of the Mental Health Care Bill. A person who has attempted suicide will now be subject to ‘mental health treatment’ under MHC Bill, thereby including:
A ‘Nominated Representative’ (proxy) making an Application for “Supported Admission” under Section 98 of the Bill. The test of having “a mental illness of such severity that the person… has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself” is fulfilled by this legal presumption, and a 30 day institutionalization, even against that person’s express wishes, will be approved.
The officer in charge of a police station, under Section 109, has a duty to take under protection within the limits of the police station whom the officer has reason to believe to be a risk to himself or others by reason of mental illness, and deliver the person to a public health care establishment. Here again, the presumption of law may lead to the process of institutionalization being adopted.
Since the offence still exists on the statue books, as Section 124 says that the person is exempt from “punishment” and not “prosecution”, the Police may remand a person who has attempted suicide into custody and produce them before a Magistrate. Since the presumption of law is that a person who has attempted suicide is a person with “mental illness”, s/he has powers under Sec. 111 of the Bill to see the person conveyed to a public mental health establishment for assessment and treatment as per the rest of the Bill, or authorize the admission of the person with mental illness in a mental health establishment for upto ten days.
The danger is that persons who wish to seek medical treatment after their suicide attempt may still be hesitant to do so – earlier, it was the fear of criminal prosecution, and now it will be the fear of possible institutionalization against their own will and preference.
B. Issue: Secondly, there are more serious concerns with regard to the issue of abetment to suicide, which is punishable under Section 306 IPC.
The active instigation of a person to commit suicide is an offence under the Indian Penal Code. Many of these cases arise from instances of Domestic Violence where women are compelled to take their own lives. In many cases, these victims of Domestic Violence also develop psychosocial disabilities. Since the Bill creates a presumption that a person who commits suicide is suffering from a “mental illness”, it can be argued that the victim may have had a predisposition to suicidal tendencies on account of this “mental illness”. As held in Gangula Mohan Reddy’s Case (2010) “If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” The legal presumption that the victim was “mentally ill”, especially when there is no way to refute the allegation if she has not survived the attempt, may lead to dilution of the culpability of the Accused.
C. Thirdly, there are concerns with regard to misuse.
The legal presumption of mental illness in the case of suicide may create situations where institutionalization may be misused. An example can be given of domestic violence. A husband or family member may come forward asking for institutionalization, effectively silencing her for at least a while. Even if the victim seeks redressal in Courts under Family/Criminal Law for the domestic violence meted out to her, her evidence will be “tainted” by the legal presumption of mental illness. While it is true that assessment mechanisms exist under the Bill prior to institutionalization, the fact is that a “legal presumption” is not one that can be overruled by a Mental Health Professional. A legal presumption can only be overruled by a Court of Law.
The Ministry can recommend that the Indian Penal Code be amended to remove Section 309 in entirety. This will not impact the Section on abetment as per the Supreme Court’s ruling. The State can take up the mandate of provision of suicide care centres and hotlines to assist persons in need through a robust National Community Mental Health Policy, also in the making by the said Department, under the aegis of ‘National mental health Task Force’. Further, provision of right to health care can be provided in the Draft Rights of persons with Disabilities Act, which is also in pendency with the Ministry of Social Justice and Empowerment.
The MHC Bill has brought up many controversial issues within the scope of medical ethics, and requires a national debate, with full participation of persons with psychosocial disabilities. Rights of persons with psychosocial disabilities, constitutional rights protections and fulfillment of obligations under International conventions can be satisfied by inclusion of this constituency within the Rights of persons with disabilities Act. Provisions in the MHC Bill must be in full compliance with the United Nations Convention on the Rights of Persons with Disabilities.”