Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., addressed the instant suo motu case pertaining to the plight of mentally ill remand prisoners who had been left to languish in prisons due to them being abandoned by family and friends. Calling it blatant violation of basic human rights as well as of fundamental rights guaranteed by the Constitution, the Bench expressed,

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

According to the State government’s as on 10-08-2020, there were 77 convicts/ remand prisoners undergoing treatment in Government Mental Health Centres in the State, of whom 22 were continuing after acquittal. Of the other 55 prisoners,48 were undertrial prisoners and 7 were convicts. Out of the 22 acquitted persons, 18 were fit for discharge and could be sent to rehabilitation centres and even from among the under trial prisoners, some were fit to be rehabilitated.

Noticeably, the Government had framed a scheme for rehabilitation of mentally ill prisoners continuing in Mental Health Centres after acquittal; which provides for shifting such prisoners to Psycho-Social Rehabilitation Centres which had expressed willingness to look after such persons. The Government had also decided to sanction an amount of Rs.39,660/- per year to such Psycho-Social Rehabilitation Centres essential.

Infinite Detention of Mentally Ill Prisoners

After pursuing Chapter XXV, (Ss. 328-339) of the Code of Criminal Procedure, which governs the enquiry, trial and acquittal/conviction of mentally ill persons; the Bench observed that in spite of being found eligible for discharge or release on bail or even on being acquitted, a mentally ill prisoner may have to continue in prison or a mental health facility, until a friend or relative volunteers to take him and to give him proper care. Such good Samaritan’s being absent in the case of most of the mentally ill accused, they continue to languish in prisons and mental health centres for years together.

“Even worse is the case of under-trial prisoners, who are to continue under remand till they are capable of making their defence, which may take years together and for the most unfortunate, may never happen.”

Inadequate Implementation of Statutory Safeguards

India, being a signatory to the United Nations convention on rights of persons with disabilities and it’s optional protocol. Hence, to follow its international obligation, it had replaced the Mental Health Act, 1987 with the Mental Healthcare Act, 2017 to bring about revolutionary changes in the life and living standards of persons with mental illness. The 2017 Act aims to make community living the right of every mentally ill person, and guarantee the right to protection from cruel, inhuman and degrading treatment.

Noticing that most of the Sections of Chapter XXV of the CrPC still term mentally ill accused as ‘lunatic’ and for mental health establishments the term used is lunatic asylum, the Bench stated,

“Not only the terminology, the procedure prescribed in Chapter XXV has to be amended, to make the provisions commensurate with the the Mental Healthcare Act, so as to achieve the laudable objective of the Act, viz., to make improve the life and living standards of persons with mental illness.”

Relying on the Supreme Court’s decisions in Hussainara Khotoon v. Home Secretary, (1980) 1 SCC 81, and A.R.Antulay v. R.S.Nayak, (1992) 1 SCC 225, where it was held that right to speedy trial is integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution, the Bench stated, if the provisions of the Act gets implemented in its letter and spirit it would undoubtedly provide solace to the mentally ill persons, including the mentally ill prisoners.

Conclusion and Directions

Considering the report of the Kerala Legal Services Authority (KELSA), the statement submitted on behalf of the Government, the relevant provisions under the CrPC, the Mental Healthcare Act and being guided by the doctrine of parens patriae, the Bench issued following interim directions;

  1. The State Government shall forthwith set up a mental health establishment, as stipulated in Section 103(6) of the Mental Healthcare Act, in at least one prison in the State. The prisoners with mental illness shall ordinarily be referred to and cared for in the said mental health establishment.
  2. The Government shall forthwith constitute Mental Health Review Boards under Section 73 of the Mental Healthcare Act, the composition of which shall be in accordance with Section 74 of the Act.
  3. The Medical Officers of prisons and mental health establishments shall strictly comply with the duties imposed on them under Section 103 of the Mental Healthcare Act.
  4. The Mental Health Review Boards shall ensure that prisoners with mental illness are allowed to live with dignity and treated as equal to persons with physical illness.
  5. The Mental Health Review Boards shall make available details of the mentally ill remand prisoners detained in jails and mental health establishments to the Kerala State Legal Services Authority.
  6. The State Government shall, with the assistance of the KELSA, take necessary steps to trace the relatives of acquitted mentally ill prisoners and of the under-trial prisoners fit for rehabilitation and persuade their family members to provide necessary care and protection to those persons. If the family members of the acquitted mentally ill persons refuse to take them back, the State Government shall take steps for their rehabilitation by transferring them to the willing registered mental health establishments. Once the mentally ill acquitted person is shifted to a mental health establishment, the amount fixed by the Government scheme shall be disbursed to that establishment.
  7. The Social Justice Department shall file a report specifying the steps taken in terms of the above directions.

[Suo Motu v. State of Kerala, OP(CrL.) No. 487 of 2019, decided on 13-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., allowed the petition and directed termination of pregnancy.

The instant petition was filed seeking termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 (for short Act of 1971).

Counsel for the petitioner Ms. Aditi Singhvi submitted that the petitioner was subjected to rape and the case was registered under sections 376, 376 (2) by result of such rape she conceived and is forced to continue the pregnancy which would eventually constitute a grave injury to the mental health of the pregnant woman.

The Court observed that the amended Section 3 of the Act of 1971 show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause grave injury to physical and mental health of woman and where the length of pregnancy does not exceed twenty weeks. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by rape would presume to cause grave injury to mental health of the pregnant woman. The fact of rape is also supported by the State that the victim was subjected to rape. The report of the District Medical Board shows that the opinion was formed that MPT can be safely done as the pregnancy is within a period of 20 weeks and the victim is mentally and physically fit for the medical termination of the pregnancy.

The Court relied on judgment Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1 wherein it was held

“a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”.

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

The Court directed “the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible.”[ABC v. State of Chhattisgarh,  2021 SCC OnLine Chh 1728, decided on 25-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.



Appearance

For Respondent/ State :  Shri Alok Bakshi

Op EdsOP. ED.

Introduction

Juvenile justice system (JJS) and the mental health of juveniles involved are inherently related. Children in conflict with law and children in need of care and protection are more likely to be prone to mental health and substance related problems. On the corollary, children having mental health or substance related problems are more likely to come in contact with the Juvenile justice system. Juvenile Justice (Care and Protection of Children) Act 2015[1] focus on the developmental well-being of the children coming in contact with the JJS, including their psychological well-being, and focus on their social reintegration and rehabilitation.

Being the future of any society, and a vulnerable section of the same, children deserve laws that focus on their well-being and protection. India does have many child centric laws such as Child and Adolescent Labour (Prohibition and Regulation) Act, 1986[2], the Juvenile Justice (Care and Protection of Children) Act, 2000[3], the Prohibition of Child Marriage Act, 2006[4], the Right of Children to Free and Compulsory Education Act, 2009[5], and the Protection of Children from Sexual Offences Act, 2012[6]. Among these acts, the JJ Act deals with children in conflict with law and children in need of care and protection.

Studies show that at some juvenile justice contact points, as many as 70% of the youth have diagnosable mental health problems. The commoner ones include externalising disorders like attention deficit hyperactivity disorder (ADHD), substance abuse disorders, or internalising disorders like anxiety disorders and mood disorders. Externalising disorders increase the chances of youth delinquency, violence and recidivism[7], while early identification and treatment result in decreased rate of delinquency and better social integration.[8]

This paper attempts to highlight the relevant sections of the Juvenile Justice (Care and Protection of Children) Act, that deal with mental health aspect of the children and the potential role that mental health professionals can play, along with challenges and opportunities involved.

Factors responsible for juvenile delinquency

The intensity and severity of juvenile offences are generally determined by the social, economic and cultural conditions prevailing in the country. The causes of such behaviour, like all other crimes, find their roots in complex psychological, social and economic factors. Clinical studies have found emotional and mental maladjustments arising out of disorganised family problems to be a common cause behind such behaviour.[9] The causes for delinquent behaviour among juveniles are found at all stages of society, including society itself, social institutions, social groups and organisations and interpersonal relations.

Factors associated with youth crimes and delinquent behaviour are strikingly similar across nations. An international study shows that family disadvantage leads to educational disadvantage, which leads to underachievement, economic marginality, social education, and mental stress.[10]

A juvenile delinquent is the outcome of unwholesome environment congenial for the development of his faculties in conformity with social expectations. Such behaviour often occurs in social settings where the norms for accepted behaviour have broken down and the rules that deter people from committing socially unacceptable acts become irrelevant to certain members of the society. Thus, they response to the traumatising and destructive changes in their surrounding by rebellious behaviour and criminal activities.[11]

The social factors also play an important role in persuading a child towards delinquent behaviour. These factors include the behaviour of the people that the child interacts with during a certain age, like neglect, favoritism, bullying, or cruelty of parents, school teachers, or peers. This results in inferiority complex, fear of opening up, fear of apprehension, and shame at school, home, or among friends.[12] Delinquent behaviour can also be attributed to lack of education, or poor performance at school. The present education system and the society place undue importance in training the intellect of children rather than their emotional and mental well-being. This may result in neglect towards social expectations and association with people involved in criminal behaviour.[13] Another reason that can be attributed to delinquent behaviour is socio-economic background. Socio-economic instability is often linked to low income which may lead the young to resort to criminal behaviour. The present-day developing societies are dynamic and self-explanatory in its complexity followed by never-ending changes. The socio-economic change and the crises in those societies often uproot people from their traditional communities and alienate them as they lose access to their former social support networks.[14]

Television and media have popularised heroes who promote justice through physical elimination of wrongdoers. The impact of media and video games on the impressionable minds of young individuals and children is a popular debate. Children who watch violence tend to react aggressively to triggering situations. The media brings violence in individual’s nature in various ways. Firstly, movies that portray violence can excite young people and the aggression can be transferred to daily lives of impressionable children. Secondly, television shows daily violent acts by parents and peers, which leads children to believe that the acts are normal and part of routine lives. Thirdly, the violence on media and games are fake and surreal. They are also romanticised. Wounds bleed less and the agonising pain is rarely shown. So, the consequences of violent behaviour seem negligible. It causes children to believe violence is desirable and preferred way of establishing justice and acquiring what they desire.[15]

The importance of family and family background is an increasingly recognised tool for detecting deviant behaviour in young people. Children who receive adequate parental care and support are less likely to indulge in deviant activities compared to children neglected by their parents and families. Dysfunctional family environment like inadequate parental care and support, weak internal linkage and integration, and premature autonomy are closely related to juvenile delinquency. Children belonging to underprivileged families who face the risk of social exclusion are over presented as possible offenders. This has a negative impact on their mentality and attitude. Criminalisation of families is also a possible factor. Families involved in crime would push their younger members towards similar behaviour.

Thus, it is evident that the various possible factors leading to delinquent behaviour, in some way or the other, have an effect on the psychology of the child. Thus, emphasising the importance of the assessment and care of mental health of children in contact with the juvenile justice system.

Juvenile justice system and mental health

India enacted the Juvenile Justice Act, 1986 for the first time in 1986[16], which prohibited sentencing children in conflict with law to prison under any circumstances.[17] Later, being a signatory to United Nations Convention on the Rights of the Child, India ratified the treaty by passing the Juvenile Justice (Care and Protection of Children) Act, 2000, incorporating the provisions of the convention for the protection of children in conflict with law and children in need of care and protection. The Act adopts child friendly approach in the adjudication and disposition of matters, to ensure proper care, protection and treatment by catering to their development needs. Further, it mandates the ultimate rehabilitation of children by setting up various institutions for the purpose.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010[18] omits the provision from the Act that ruled for “separate treatment of juveniles or children suffering from leprosy, sexually transmitted disease, hepatitis B, tuberculosis, and children with unsound minds”. It regulates the power of the competent authority of special homes to move a child from a special home to a special facility, like a mental health institution.

 Further, the Juvenile Justice (Care and Protection of Children) Act, 2015[19] defines child in need of care and protection as one “who is mentally ill or mentally or physically challenged or suffering from a terminal disease and having no support system (parents or guardians) if found so by the Juvenile Justice Board (Board) or the Child Welfare Committee (CWC).”[20] Moreover, the Act also states that juveniles should be given access to rehabilitation and reintegration services by institutions registered under this Act. It also mandates for these institutions to provide mental health services, including counselling focused on the needs of the child.[21] The Act also lays down the provision for moving a child from special homes to treatment centres for mental illness and substance abuse related issues.[22]

Mental health aspects of children involved with juvenile justice system

The mental health of children in conflict law and their delinquent behaviour are interrelated. This could be due to their shared biopsychological vulnerabilities, or the fact that one condition aggravates the other. Not addressing or avoiding these interrelated problems may lead to repetition of offence. Hence, addressing and acknowledging the mental health of such children, and other related issues, is of utmost importance. Mental health professionals can significantly contribute in this process, in the preventive, therapeutic, and rehabilitative fronts, apart from their advisory role in the juvenile justice system. The Act has taken this fact under consideration and provided that no social worker shall be appointed to the Juvenile Justice Board[23] or Child Welfare Committee[24] unless they have experience in education, or are practising professionals with a degree in child psychology, psychiatry, sociology, or law.

The Act mandates that in case of children ages between 16 to 18 years, accused of committing a heinous crime, a preliminary assessment should be ordered for their mental and physical capacity.[25] The Board shall take help of experienced psychologists, psychosocial workers, or other experts in the field. It has been found that children under the age of 14 years, coming in contact with law, are more prone to having mental health issues, as opposed to older children.[26] Since mental health professionals are frequently called upon as experts in such cases, their role becomes extremely important, especially when such cases get highlighted in the media, and the court procedure is likely to be influenced by such factors.

The Act mandates that confidentiality should be maintained while dealing with children in conflict with, or likely to be in conflict with, law, to avoid litigation.[27] This is in conformity to the latest Mental Healthcare Act, 2017, which also emphasises maintaining privacy and confidentiality of a person suffering from a mental illness.[28]

Rehabilitative and reintegrative services form the core of the JJ Act. It mandates the child care institutions to have mental health and deaddiction facilities for the children.[29] The Act also provides that as and when required, a child may also be shifted to a mental health facility or a deaddiction center, for necessary treatment. What is needed is to form a comprehensive post-discharge plan to ensure continuity of care, to avoid worsening of the psychological or behavioural problem, as the case may be.

Challenges in meeting the mental health needs

Although there are major gaps between practice and policies for juveniles who run afoul of the law, India has made a promising beginning by adopting progressive legislation, especially the Juvenile Justice Act, 2015 and the community can provide this vulnerable, yet difficult population a chance at an easier present and brighter future.

The Juvenile Justice Act provides that the mental health and well-being of the children be given utmost importance, in reality, this mandate does not seem to achieve actual practice. Lack of understanding about child psychology and deviant behaviour among social workers, and staff of child care institutions are some of the limiting factors. Lack of training and knowledge on the part of these staff lead to harsh behaviour towards the children, which may lead to worsening of the problem.

There are also incidences of children from the LGBTQ+ communities and children with gender identity issues coming in contact with the juvenile justice system. There is a lack of proper training and sensitisation among the staff of the child care institutions about the problems faced by such children, as they are often prone to bullying by the senior inmates and the workers, which increases the risks of mental health problems.

Although the Juvenile Justice Act requires regular and basic mental health facilities, including specific need-based counselling sessions, many institutions involved in the system run without regular and qualified mental health professionals, or have irregular visits from professionals who are volunteers with NGOs offering supplementary services like health and recreation. A study conducted by National Commission for Protection of Child Rights reflected that children in child care homes face various mental traumas like bullying by senior inmates, sexual abuse, overcrowding, etc. Therefore, there should be regular monitoring of child care homes to keep a check on the treatment of children and the implementation of the provisions of the Act.

Prejudice and stigma are a major challenge in the reintegration and rehabilitation of such children. The society often sees these children as threatening, or possessing a bad character. This leads to marginalisation and lack of social integration, which may cause stress, inferiority complex, or other mental health related issues in the children.

Lack of awareness regarding mental health issues and the stigma around it is a hurdle for early intervention. This results in delay in seeking help till the juvenile comes in contact with the juvenile justice system. It is imperative to spread awareness about mental health and the importance of mental health care.

Conclusion and recommendations

A standardised curriculum should be developed for persons dealing with children encountering the juvenile justice system, which should include educating the personnel about child psychology, different psychological and biological needs of children in need of care and protection and children in conflict with law, as well as sensitisation and awareness about the LGBTQ+ community.

Childcare institutions should be made better equipped by appointment of mental health professionals on a regular basis. Further, regular auditing of the childcare institutions for ensuring proper functioning, availability of qualified staff and mental health professionals and conformity with the provisions of the laws in force should be done. The authority running the childcare institution should be made accountable and answerable for any lack thereof.

Counselling of the juveniles at the time of their entry at the institutions should be made a norm. The counselling should deal with the reason why they are being kept in the institutions, the possible situations that they might face during their stay at the institution, example bullying by senior inmate, and the authority that they should contact in such cases. Additionally, a simple screening mechanism for detection of mental disorders should be developed that would be easy to use by the staff at the childcare institutions with proper training, without the help of mental health professionals. This would enable the institutions to assess the mental state of the children at entry level and provide the required help.

Job and livelihood oriented vocational training should be imparted to the children, tailored to their skills and interests. Digital learning and technology driven courses should be preferred in order to make their reintegration in the society and make it easier for them to find an appropriate job upon their release.

Training and counselling sessions with prior inmates with regard to substance use problems, or other issues, should be available. Since inmates often share similar socio-economic backgrounds and experiences inside the juvenile justice system, it would be easier for the children to talk to and relate to the prior inmates and help in better dealing with the environment in the system.

Awareness about psychological and socio-cultural determinants and the relation between delinquent behaviour and mental health issues should be spread so as to reduce the stigma and prejudice against child offenders that is prevalent in the society so as to ease the process of social reintegration and rehabilitation.


BA LLB (Hons.), National University of Study and Research in Law, Ranchi, e-mail: shipra8997@gmail.com.

[1] <http://www.scconline.com/DocumentLink/nAUMUPN2>.

[2] <http://www.scconline.com/DocumentLink/Zs3BeR9b>

[3] <http://www.scconline.com/DocumentLink/nAUMUPN2>.

[4] <http://www.scconline.com/DocumentLink/Isn4k0z4>.

[5] <http://www.scconline.com/DocumentLink/c51TsRvC>.

[6] <http://www.scconline.com/DocumentLink/slbHee3H>.

[7] Fazel, S., Doll, H., Långström, N., Mental Disorders Among Adolescents in Juvenile Detention and Correctional Facilities: A Systematic Review and Metaregression Analysis of 25 Surveys, 47 J Am Acad Child Adolesc Psychiatry (2008).

[8] Shufelt, J.L., Cocozza, J.J., Youth with mental health disorders in the juvenile justice system: Results from a multi-state prevalence study, Delmar, NY: National Center for Mental Health and Juvenile Justice (2006), <https://www.sprc.org/resources-programs/youth-mental-health-disorders-juvenile-justice-system-results-multi-state>.

[9] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[10] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[11] Sanyukta Singh, Juvenile Justice in India: A Critique, J54 Cr. LJ, Vol. 109 (August 2003).

[12] Mohd. Wasim Ali, Juvenile Delinquency in India: A Socio-Legal Study, SCC OnLine 23 ALJ (2015-2016) 258. <http://www.scconline.com/DocumentLink/a0w48qgk>

[13] J.P.S. Sirohi, Criminology and Penology 384 (Allahabad Law Agency 2004).

[14] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[15] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[16] <http://www.scconline.com/DocumentLink/vf1D7306>.

[17] Sagar, R., Patra, B.N., Gupta, P., Gaps Analysis in Mental Health Care Services in Child Care Institutions: A Delhi Based Study, National Commission for Protection of Child Rights (2016), <https://ncpcrgovin/showfilephplid=1283>.

[18] The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010.  <http://www.scconline.com/DocumentLink/myCrg1l0>

[19] Ibid.

[20] S. 2 (14)(iv), the Juvenile Justice (Care and Protection of Children) Act, 2015.

[21] S. 18, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[22] S. 96, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[23] S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[24] S. 27(4) and S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[25] S. 15, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[26] James G. Scott, Childhood Mental and Development Disorders, 4 Mental, Neurological, and Substance Use Disorders: Disease Control Priorities, <https://www.ncbi.nlm.nih.gov/books/NBK361938/>.

[27] S. 3(xi), the Juvenile Justice (Care and Protection of Children) Act, 2015 

[28] S. 23, the Mental Healthcare Act, 2017 

[29] S. 53, the Juvenile Justice (Care and Protection of Children) Act, 2015

Case BriefsForeign Courts

Supreme Court of United Kingdom: In the instant appeal where the issue was whether the claimant can recover damages for the “consequences” (including the subsequent loss of liberty) of having committed the criminal offence during a serious psychotic episode, which she would not have committed but for the defendant’s negligence; the 7 Judge Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Hamblen unanimously dismissed the appeal holding that the appellant’s claim for damages against Dorset Healthcare is barred by the appellant’s criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio (from a dishonorable cause an action does not arise) i.e. illegality.

Facts:

The appellant suffers from paranoid schizophrenia or schizoaffective disorder. On 25-08-2010 she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with her mother’s murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. The appellant was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and an unlimited restriction order under Section 41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since. Dorset Healthcare University NHS Foundation Trust (respondent) had admitted their negligence in failing to return the appellant to hospital on the basis of her obvious psychotic state. The tragic killing of her mother would not have occurred had this been done. On the basis of the respondent’s admission of negligence, the appellant furthered her claims to recover damages under several heads, such as- General damages for personal injury (a depressive disorder and post-traumatic stress disorder); damages for her loss of liberty caused by her compulsory detention in hospital; damages for loss of amenity arising from the consequences to her of having killed her mother; cost of caretaker and psychotherapy etc.

The relevant laws and case laws on point:

Before analyzing the merits of the instant appeal, the judges deliberated on the laws dealing with murder; insanity as a defence to murder; diminished responsibility as a partial defence to murder (Section 2 of the Homicide Act 1957); The Sentencing Council Guideline directing the sentencing judge to consider whether the offender’s degree of responsibility is high, medium or lower and the provisions of Mental Health Act, 1983 itself.

The Bench also referred to 2 major case laws dealing with similar issues- Gray v. Thames Trains Ltd, [2009] UKHL 33 and Patel v. Mirza, [2016] UKSC 42. In Gray, the House of Lords had held that Mr. Gray’s negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and (ii) his own criminal act of manslaughter. In Patel, the UK SC had held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations. In assessing whether the public interest would be harmed in that way, the Court should consider the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; any other relevant public policy on which denying the claim may have an impact; and whether denying the claim would be a proportionate response to the illegality.

Observations:

While deliberating on the appeal, the Bench formulated 3 issues– whether Gray can be distinguished; if not, whether Gray should be departed from; and, can the appellant recover the damages under any of heads of loss she has claimed. The Bench observed that key consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected. The Bench thereby rejected the appellant’s contention and held that, “Gray cannot be distinguished. It involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility for the offending”.

Regarding the 2nd issue, the Court while affirming Gray as being Patel compliant” and should be applied and followed in similar cases, held that the policy reasons which support denial of the appellant’s claim include the consistency and public confidence principles identified in Gray. It was further held that, “Principles also include: the public interest in the proper allocation of NHS resources; close connection between her claim and her offence; and the public interest in deterring, protecting the public from and condemning unlawful killing. Although a claimant in the appellant’s position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life”.

Finally addressing the 3rd issue, the Bench held that the appellant cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these losses resulted from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered either because they result from the appellant’s unlawful killing of her mother.[Ecila Henderson v. Dorset Healthcare University NHS Foundation Trust,  [20203 WLR 1124, decided on 30-10-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Can Medical Termination of Pregnancy be allowed beyond 20 weeks gestation period?

Bombay High Court: A Division Bench of Ujjal Bhuyan and R.I. Chagla, JJ., denied the termination of pregnancy to woman aged 39 years old as the gestation was beyond 20 weeks and medical board’s report had also recommended the same.

Petitioner sought a direction to respondent 2 along with a duly constituted medical board to examine the petitioner — whether the termination of pregnancy of petitioner is possible and further on consideration of the medical report to allow the petitioner to do so.

Petitioner states that she is a married woman and after her examination it was revealed that she was pregnant beyond 20 weeks.

She stated that pregnancy occurred as a result of failure of the contraceptive method and that because of a history of irregular menses, the petitioner did not suspect her pregnancy.

Petitioner claimed that she and her family were in no condition financially and neither was the petitioner who was 39 years old, mentally prepared to be a mother.

As petitioner’s pregnancy has crossed 20 weeks she approached the Court.

Contention placed by the counsel fo the petitioner was that, by placing reliance upon Explanation 1 to Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971:

“Where any pregnancy occurs as a result of failure of any device or method used by any married woman, as has happened in the present case, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

Women would ideally prefer to prevent an unwanted pregnancy, and by forcing a woman to do continue with the pregnancy represents a violation of the rights of the woman’s bodily integrity.

Decision

High Court observed that petitioner was examined by the Medical Board on 20th June, 2020 and according to the board termination of pregnancy cannot be recommended for 2 reasons:

  • that the gestation age is beyond 20 weeks
  • that there are no valid indications for medical termination of pregnancy as per the said Act.

In the case of Sarmishtha Chakraborty v. UOI, (2018) 13 SCC 339

“Supreme Court considered the report of the medical board which revealed that the mother i.e. Petitioner wife would suffer mental injury if the pregnancy was continued and there would be multiple problems if the child was born alive. Medical board had arrived at the conclusion that in a special case of that nature, pregnancy should be allowed to be terminated even after 20 weeks.”

Hence only on limited grounds termination of pregnancy beyond 20 weeks can be allowed by the Court.

Abortion is often the only way out in a very difficult situation for a woman.

It is further held by this Court that if a woman does not want to continue with the pregnancy, then forcing her to do so is in violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.

In the present matter, Court’s opinion was that the reasons for medical termination of pregnancy beyond the statutory limit of 20 weeks as were stated by the petitioner were not valid grounds for medical termination of pregnancy.

Thus in view of the above termination of pregnancy was not allowed. [Rubina Kasam Phansopkar v. State of Maharashtra, 2020 SCC OnLine Bom 765 , decided on 07-07-2020]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Conference/Seminars/LecturesLaw School News

The profession of law and psychology share little in terms of how they conceptualize their subject matter- people”. Some would tend to disagree with this statement, suggesting that law and psychology are two separate fields; they are united by their interest in human behavior. Psychology seeks to understand and explain human behavior while law seeks to regulate human behavior. With both fields making assumption about what causes people to act the way they do.
In India laws pertaining to mental health include the protection of Human Rights Act, 1993. Persons with disability Act 2016. The National Trust Act 1999, protection of women Mental Health care Act 2017. A prominent statutory legislation regulating narcotics which has an impact on mental health care is Narcotic Drugs and Psychotropic Substances Act (NDPS) Act 1985. The mental health care Act 2017 provides for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during deliveryof mental health care and services and for matters connected therewith or incidental thereto.
Seminar Objectives:
1. To provide to legal educators psychiatrist, psychologist, academician, professionals and researches for sharing knowledge and experience in dealing with the problems and perspectives of mental health from the view point of legal implications and provisions of mental health care Act 2017.
2. To throw light on the critical issues, case laws reflecting the violation of rights of the children with mental disabilities in the institutions and the community.
3. To bring modifications and amendments in the existing laws, the methods of treatment and rehabilitation of the patients.
Themes:
1. Promotion of Mental health and prevention of mental disorders under the mental health care Act 2017.
2.Legal issues relating to treatment.
3. Mental health laws and rights.
4. Legal issues rights for mental health in juvenile justice.
5. Emerging trends in mental health.
6. Legal protection from cruel, Inhuman and Degrading treatment.
7. Conventions on the Rights of persons with mental disability.
8. Psychology of child victims of sexual offences and abuse.
9. Mental health and delinquency.
Submission Guidelines:
  • The word limit for abstract is 300-500 words, in times new roman and line spacing of 1.5.
  • The abstract must be accompanied with details of Author and Co-Author along with the title of the paper(Name, Designation Contact details etc.
  • The Abstract must be submitted on or before 15-02-2019.
  • The selection of Abstracts would be intimated on or before 18-02-2019.
  • The Registration process for this seminar shall be done only after the selection of the abstract.
  • The full paper should be of 3000-5000 words (exclusively of foot notes) and needs to be submitted on the paper before 28th February 2019.
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  • All submissions must be made in dox/docx format only.
  • Any Non-compliance with the prescribed guidelines would lead to prima facie rejection.
  • Co-authorship is allowed upto two authors.
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  • All submissions should be sent to slmb@dsnlu.ac.in
  • Selected few papers will be published in a book with an ISBN number.
Important Dates:
  • Deadline for Abstract submission:    15th Feb 2019
  • Intimation of selection of Abstract:     18th Feb 2019
  • Registration:                                        19th Feb 2019
  • Deadline for full paper submission:     3rd March 2019
  • Date of Seminar:                                  7th March
Registration Fee:
  • Research Scholars and students Rs 1,500/-
  • Academicians & professionals:     Rs 2000/-
  • Each of the Co- authors need to register separately.
Mode of Payment:
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Account Name: Registrar, DSNLU, VISAKHAPATNAM.
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Case BriefsSupreme Court

Supreme Court: In the petition dealing with the welfare of the mentally ill persons, the Court said that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 postulates a dispensation mandating the appropriate Government to establish institutions for the care of mentally challenged persons and maintenance and management thereof with a view to create an equal opportunity and social security to them.

In the present case, inadequate medical treatment, medical services and access to Doctors, skewed ratio of staff to look after the inmates, overcrowding, poor distribution and consumption of dietary, clothing, bedding and other items and also about the abuses of various kinds to the mentally challenged persons residing in the mental asylums and nursing homes, was highlighted.

The Court said that the Central/State Coordination Committee is primarily responsible for ensuring compliance of the mandate regarding the infrastructure and other facilities to be provided in the Homes established under the 1995 Act and also for overseeing that the same are properly maintained from time to time and comply with the policies and programmes designed for achieving equality and full participation of persons with disabilities. The provisions of the 1995 Act provide for checks and balances for which hierarchy of Authorities have been created to ensure that persons with disabilities are provided with opportunity of full participation and equality in the region. The bench of T.S. Thakur, CJ and A.M. Khanwilkar, J said that the six months’ time frame given to the Central Coordination Committee and the concerned State Coordination Committee is sufficient to enable them to take necessary remedial measures and ensure that deficiencies in the respective institutions established under the 1995 Act are cured within such period.

The Court added that the Secretary of the Union of India, Ministry of Health and Social Welfare shall be personally responsible for monitoring and overseeing the progress and action taken by the Central Coordination Committee in respect of establishments registered under the 1995 Act and under the control of the Central Government. The Court said that similar procedure is to be followed in case of hospitals and nursing homes established under the Mental Health Act, 1987.

The Court asked the Chairperson of the State Coordination Committee to submit compliance report not later than eight months in the Registry of this Court after providing advance copy thereof to the Central Coordination Committee. The Central Coordination Committee shall then submit State/Union Territory wise report with the comments, if any, within ten months in the Registry of this Court. [Reena Banerjee v. Govt. of NCT of Delhi, 2016 SCC OnLine SC 1437, decided on 08.12.2016]