All Things Legal / Mental Health

Know your mental health rights at work in India

. 9 min read . Written by Rasika Rane
Know your mental health rights at work in India

Anamika*, a journalist by profession has been going through chronic depression for a decade. This was back in 2012, when she was working for one of the country’s biggest corporate companies where she heard her colleagues passing bitter comments pertaining to her mental health concerns.

When she approached her boss and the companies Human Resource department to talk about the issue, she was hosted with an ignorant resentful attitude. She decided to quit at that point, but the company would not let her go as she was a great resource for them as a professional. Anamika* was sent on medical leave for 3 months during which she was asked to “come back completely cured” as if she could put a deadline on her depression.

It just doesn’t end here.

When Anamika* came back from her break, she was asked to submit a medical certificate stating the reasons for her absence. Her initial medical certificate was sent back to her because she mentioned the true cause, the D-word: Depression.

My heart crumbled as I was told to put ‘Bronchitis’ as the reason for absence as ‘depression’ would brand me with the D-word. My doctor cringed while signing the certificate, but I was helpless at that point. No one would let me talk about it."

Mental health in India has long been a misunderstood topic. There is a lack of awareness on issues of mental health, corresponding treatment and frameworks that govern mental health. As a result, the ways in which these issues that it is dealt with are more under the aegis of superstitions and taboos, rather than scientific medical processes.

While everyone talks of managing stress at work, the unfortunate reality is that most of them do not know what to do about it? Where to seek help? What are their legal rights? Employers lack to provide proper mental health facilities in order to encourage employees to seek help. All this combined creates an environment where people find themselves alone and helpless in finding a way out of this misery.

If you or anyone you know is suffering from mental illness, here’s what you need to know about the mental health rights in India.

The Mental Healthcare Act

The Mental Healthcare Act was commissioned in 2017, that positions its approach towards mental health and mental healthcare from a rights-based perspective. Its aim is to provide mental healthcare in a manner that is in line with protecting, promoting and fulfilling the rights of persons with mental illness, throughout the care process.

The law recognises the capacity in all persons, including those who have a mental illness, to make decisions regarding their own mental healthcare and the treatment they would want to undertake. Such capacity is recognised, if a person understands all relevant information related to the treatment, comprehends the consequences of her/his decision and communicate this information. The law expressly states that if another person views any such decision as wrong, it does not mean that one cannot make such a decision.

The pivotal point is that the law recognises the agency of persons to make decisions regarding their personal mental healthcare by themselves.

The law gives every adult the right to make an ‘Advance Directive’, in writing, which has to specify the manner in which they wish to be treated or not be treated for a mental illness, along with provisions to appoint a nominated representative.

An advance directive can be made by a person irrespective of their history of mental illness or treatment, as long as it is not in violation of any other law. This directive can only come into force once the person ceases to have the capacity to make such a decision and stops being in force once the person regains such capacity. The person making such a directive can revoke, amend or cancel it at any point. If a mental health professional or a relative does not wish to carry out treatment of the person in accordance with the advance directive, they will have to make an application to the concerned board for a review and any changes. The Act makes it easier for a person to formalise and have control over the treatment process.

The Act recognises the right of persons with mental illness to live a life of dignity, that is one without discrimination and reaffirms their equality in all aspects of treatment to persons with physical illness. It further provides protection from cruel, inhumane and degrading treatment, at mental healthcare establishments.

Here are additional benefits that the law defines:

  • It gives those with mental illness the right to community living and governmental support for cases where the person does not have familial support, to live outside of a mental healthcare establishment, when they can medically do so
  • It provides the person with the mental illness and her/his nominated representative with the right to information regarding the law, nature of illness and treatment, in a comprehensive manner and the right to access medical records
  • All mental healthcare professionals are to maintain confidentiality regarding their clients. No information or photographs relating to a person with mental illness can be released to the media, without the consent of the person
  • A person with mental illness retains the right to decide on personal contacts and communication, in keeping with the guidelines of the mental health establishment, unless otherwise specified. This would include emails, personal visits, phone calls etc., and allows the person to refuse or agree to contact any person
  • It also provides for good quality, accessible and affordable mental healthcare facilities by the Government and for free services for those that are homeless or Below Poverty Line (BPL), even if they do not possess a BPL card
  • Persons with mental illness are given the right to free legal aid as well as the right to raise complaints regarding deficiencies in services they are receiving
  • In a final act of recognising the agency of persons with mental illness regarding their own lives and understanding the causes behind suicide attempts, the Act decriminalises attempts to commit suicide.

The Mental Healthcare Act brings the conversation back to the person with mental illness, giving them the right to choose and to make decisions. However, the Act does raise concerns amongst mental healthcare professionals regarding the realistic effectiveness of such a patient-centred approach.

The Rights of Persons with Disabilities Act

The Rights of Persons with Disabilities Act, also known as PwD, was commissioned in 2016 that addresses the rights of those with any kind of disability, physical or mental. This is a conditional act and can be used supplementary per case basis as it has a few ambiguities in its structure.

PwD Act primarily creates a basis for employee rights in cases of mental illnesses that can be termed as a disability. Here’s what it includes:

  • The PwD Act is meant as an act to give effect to the United Nations Convention on the Rights of Persons with Disabilities. The Convention clearly identifies non-discrimination and equality of opportunity as a key principle for the empowerment of persons with disabilities of any kind.
  • The PwD Act further defines ‘discrimination’ in relation to disability to mean any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.
  • It effectively ensures that in all matters of employment or workplace policies, persons with mental health illnesses cannot be discriminated against. Their treatment has to be at par to what would legally be required of someone towards a person with physical disabilities.
  • It states that the Government shall take measures to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment. The interpretation of such treatment can also be workplace policy or practise that doesn’t allow for unfair treatment of anyone with a mental illness or any behaviour, at a workplace, that demeans a person with mental illness.
  • The Act clearly states that a government workplace can not discriminate against any person with a disability in any matter relating to employment, the government though can notify of any specific employment roles that are not subject to this provision.
  • All employers, government and private, are supposed to clearly state their equal opportunity policy. The policy details measures they would be taking to comply with provisions under the law, to ensure the rights of those with disabilities are upheld. All employers need to ensure that they have a policy in place that gives equal opportunity to someone with any disability, be it physical or mental.
  • Offences committed by persons or companies are punishable under the PwD Act. In the case of a company, all person(s) in charge of the conduct of the business of the company will be responsible.

The concern here is that the PwD act defines ‘person with disability’ as meaning a person with long-term physical, mental, intellectual or sensory impairments which, in interaction with barriers, hinders her/his full and effective participation in society equally with others.

As it considers ‘mental behaviour’ as ‘mental illness’, it means that substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

Unfortunately, in reality, due to the varying categorisation of such illnesses, employment policies do not account for such rights instances that are not considered ‘substantial’ enough. Therefore, the act doesn’t provide clear guidelines for the rights of those afflicted with mental health illness in relation to their workplace.

The problem in India is that such law seems to account for mental health-related issues and rights only when the issue can be classified as a disability that is substantial and long term. What the company policies need to account for, is the need to recognise mental health as a spectrum, the same way physical health is viewed.

The laws are the baseline of it all. The company policies need to fulfil the bare minimum laid out by the laws, if not then provide more to its employees,” says Sonia Sharma, HR Advance Textiles at Welspun India Limited.

Welspun India uses a tool called Amber that monitors the work satisfactory levels of the employees, which is the root cause of workplace stress and anxiety, according to Sharma. They act on providing the employee if there is someone who is not happy with the workload or work culture.

HR can connect, facilitate and communicate to solve the problem, but it’s really up to the individual and the department to make the situation better. It is possible, but it will take a lot of time and effort. Till then, the least we could do is RESPECT everyone regardless; that’s where the healing begins.”

It’s not just the companies that play along with the taboo. At times, we ourselves stick to our personal taboos against our own illness so strong that we procrastinate on healing and being better. Unless we recognise and respect it in ourselves, no one else will. Change begins at home, and this is where we start to heal.

People benefit largely and perform productively when they know that effective help is available. There is a need to implement systemic awareness creation into a policy format for employers to follow, to reduce the stigma. As has been done with the law relating to sexual harassment at workplaces, the government can easily mandate compulsory awareness creation and support systems for redressal in terms of mental health illnesses. Then it is on the companies and employers to execute in order to get a better workforce.

There are many people around us who are going through similar situations and can relate to Anamika*’s helplessness. According to a survey, 42.5 per cent of the employees in the private sector of corporate India suffers from depression or some form of anxiety disorder. Additionally, 38 per cent of working women in India show signs of psychiatric morbidity compared to only 26 per cent of the women who don’t work. The very thing that gives a woman independence and her own identity causes her distress and feelings of being traumatised.

And this needs to be changed.

*Name changed to protect the privacy of the individual.