Delhi HC slams parents, cops, docs for trying to declare woman unstable
HC says obligation to respect one‘s rights is placed both on state and non-state actors….
HC says obligation to respect one‘s rights is placed both on state and non-state actors.
In a rather unusual judgement coming on the heels of Supreme Court’s Hadiya verdict, the Delhi High Court has recognised that threat to the right of choice of a person and thereby right to life, liberty, privacy and dignity can very well come from the person‘s own parents and has directed the parents of a girl to pay her compensation of Rs 3 lakh for forcibly picking her up from the residence of her music teachers and detaining her in a mental institution where she was forced to spend one day and one night in “clear violation of Section 19 MHA read with Article 21 of the Constitution of India”.
A bench of Justices S Muralidhar and C Hari Shankar also directed the Cosmos Institute of Mental Health and Behavioural Sciences (CIMBS), the private mental health facility where the girl was detained illegally and the ambulance service named Almas Ambulance Service (Almas), which transported her to the hospital by administering her some medicine which caused her to faint, to also pay the girl a compensation of Rs 3 lakh and Rs 1 lakh respectively.
The compensation is to be deposited in the girl’s own account in four weeks.
The Court concluded that the act of the parents in forcibly taking away of the girl from the residence of the Petitioners (her music teacher) on 11th June 2017 and her consequent detention at the private mental hospital till the morning hours of 13th June, 2017 was illegal and unconstitutional and violative of her fundamental rights to life, liberty, dignity and privacy under Article 21 of the Constitution of India and Section 19 of the MHA.
The parents have been told to not disturb her right to choice and privacy.
The verdict of the court comes in a writ of habeas corpus moved by the woman’s classical music teacher who is 69 years old and her wife.
Facts of the case:
In the instant case, the 23-year-old girl referred to as ‘Z’ in the judgement to maintain her privacy, had been living with her classical music teacher and his wife since she turned 18. She had been taking lessons in music from them since the age of 11.
It all started with a criminal complaint filed by Z’s parents in 2014 in Saket court wherein they averred that there was a history of mental illness running in the family and that their daughter‘s behaviour had undergone a drastic change since 2011. They had alleged that Z had been enticed away by the Petitioners who had undue influence over her from the time when she was a minor.
The complaint was dismissed by the Magistrate on April, 2015 after she spoke with Z in chamber where she spoke about being harassed by her parents previously and how she had approached National Commission for Women for redress. Z informed the magistrate that she was a major; had never suffered from any mental ailment; had no intention of joining her parents and wanted to live separately.
The parents initiated second round of litigation in 2016 when they approached the Delhi High court pleading that they be appointed as guardians of Z.
The writ petition was heard by a learned Single Judge and during the pendency of the petition, on the orders of the court, Z underwent a psychiatric evaluation at AIIMS over the course of 6-7 sessions. The doctors concluded there was no indication towards psychosis (schizophrenia) or any other psychopathology.
In the light of this report, the single judge dismissed the petition as withdrawn.
Z gets picked up by her parents
Less than a year after the single judge’s order, on 11th June 2017, a letter was addressed by Z‘s parents to the SHO of Police Station Malviya Nagar where they complained of their daughter having been enticed away by her music teacher.
In this letter, the parents neither mentioned that the girl was major nor did they reveal about their unsuccessful complaint before the magistrate. Rather, a bald assertion was made to the effect that doctor has advised for immediate medical attention and psychiatric treatment of Z.
At about 5 PM the same day, the parents and brother of Z accompanied by local police from Malviya Nagar police station and the officials of Almas forcibly barged into the Petitioners‘ (music teacher) house. The teacher was allegedly beaten up while Z was forcibly administered intravenous substance which caused her to faint.
Z’s father went on to state on affidavit that he decided on the said course of action on the advice of Dr Sunil Mittal, the officer-in-charge of CIMBS. The court also noted that, “Z‘s father goes on to state in his affidavit that CIMBS maintains an operational connection with an ambulance service provider, i.e. Almas whose contact details were provided to him by CIMBS authorities”.
Z was taken away to CIMBS and kept there without her consent till the morning of 13th June 2017 without the medical officer-in-charge Dr Sunil Mittal satisfying himself about the need for Z to be admitted as an in-patient as mandated by Section 19 of the Mental Health Act.
CIMBS had submitted that since 11th June 2017 was a Sunday, Dr. Mittal, was not available and in order to satisfy the requirement of Section 19 (1) MHA, he was contacted on the telephone by Dr. Sameer Kalani and, after being explained the diagnosis, conveyed his oral satisfaction that Z should be admitted as an in-patient at the hospital.
To this, the court said, “Since the responsibility of arriving at a satisfaction as to a patient‘s mental health under Section 19 (1) MHA is not meant to be delegated to anyone else, the satisfaction that had to be recorded had to be of Dr. Sunil Mittal himself and no one else. In the present case, the satisfaction for the purposes of Section 19(1) MHA was two-fold: that Z, being a mentally ill person, was unable to express her willingness to be admitted in the psychiatric hospital and further that her admission in the hospital would be in her best interest. This satisfaction could not have been arrived at by Dr. Sunil Mittal by just listening on the phone (or by a WhatsApp message) to the diagnosis of some other doctor, even though such doctor was a qualified mental health practitioner.”
“If there is no code of ethics for psychiatrists in this country, it would be indeed a serious lacuna which ought to be remedied. An aspect of this matter which is disturbing is psychiatrists being able to talk to each other on the telephone or through WhatsApp messages to decide whether a patient requires treatment as envisaged. This again is totally unacceptable. It is illegal and has implications of unconstitutionality. A professional psychiatrist requires personal interaction with a person before making a diagnosis of such person‘s mental condition. It is inconceivable that a psychiatrist can determine the mental state of a person by merely discussing the symptoms and conditions with another fellow psychiatrist over the telephone. If this practice is being followed then it has to be stopped. A code of ethics must be formulated in this regard”.
The bench also noted that, “The two medical certificates issued on 11th June 2017 were in a pre-printed proforma. This cannot be accepted as a valid compliance with the requirement of Section 19 (2) MHA given the serious nature of the consequences that would ensue taking away the liberty of the person forcibly hospitalised in a mental health institution”.
“On the contrary, CIMBS appears to be using a standard pre-printed form consisting of thirteen pages without bothering to find out whether Z was in a position to express her willingness. It was presumed that she was not in a position to give her consent and signatures were taken of her father on all thirteen pages. In fact, the application submitted by Z‘s father was not in accordance with Form-8 under Rule 25 of the SMH Rules. It was also not witnessed by two persons, as required by the Rule.”
“Apart from dispensing with the requirement of the certificates, the CIMBS appears to have ignored the requirement of Section 19 (2) MHA whereby two certificates were required for having a patient admitted as an in-patient. In the present case, the certificates are all by the in-house doctors of CIMBS, not one of them was a practitioner in government service,” said the bench.
It is to be noted that Z’s music teacher lodged a complaint of abduction with local police but sub-inspector Yogesh Kumar and Head Constable Praveen failed to act promptly.
They then moved high court by way of the instant writ of habeas corpus and pursuant to the orders passed on 12th June 2017, Z was produced before the court on 13th June 2017 and returned to the Petitioners’ residence.
The final judgement has been pronounced in this writ petition in deciding which the court was assisted by advocate Raj Shekhar Rao as Amicus Curiae.
In delivering the verdict, the court interpreted relevant provisions of the Mental Health Act, 1987 in light of the right to life, liberty, dignity and in light of the right to privacy and autonomy of an adult female, as guaranteed in the Constitution of India.
Constitutional dimension of the right of choice.
Before arriving at a conclusion, the bench discussed the broad issue of Constitutional dimension of the right of choice.
It noted that on the date of the incident, i.e. 11th June 2017, Z was more than 23 years old.
Referring to Justice K.S. Puttaswamy (Retd.) v. Union of India (privacy judgement), the bench noted the apex court’s views on decisional privacy‘ reflected by an ability to make decisions in respect of intimate relations which would include the right to specify whom to include and whom to exclude from one’s circle.
Violation of one‘s rights could be by state or non-state actors.
The obligation to respect one‘s rights is placed both on state and non-state actors.
The high court noted that in Privacy judgement, Justice S.A. Bobde had noted that ―common law rights are horizontal in their operation when they are violated by one‘s fellow man and ―he can be named and proceeded against in an ordinary Court of law. The position is no different under the Constitution of India.
“…Articles 15 (2), 17, 19, 21 and 23 acknowledge the horizontal nature of those fundamental rights. They can be enforced against not just the State but non-state actors as well. The mere fact that the enforcement of such rights might depend on State action or enforcement of judicial orders by the State will not detract from their horizontal nature. The horizontal dimension of these rights enables an aggrieved person to invoke constitutional remedies to seek the protection and enforcement of such rights against invasion by a non-state actor,” it said.
Scope of a habeas corpus petition
The bench held that the writ jurisdiction of a High Court under Article 226 of the Constitution is invoked not only for assertion of the rights to life, liberty and a variety of fundamental rights against invasive State action but also against invasive action by non-State actors, including individuals.
“Increasingly, in the habeas corpus jurisdiction, this Court is approached by a large number of individuals and married couples praying for protection against invasion of their rights to life and liberty and choice by close relatives and other non-State actors. Much of the exercise in the habeas corpus jurisdiction by a writ Court is to forge remedies and shape reliefs for which persons whose rights of choice and, therefore, of life, liberty, and dignity are under constant threat from their own family members.”
The bench referred to SC verdict in Hadiya’s case wherein it was observed that, “The (Kerala) High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves”.
It also referred to Gian Devi v Superintendent, Nari Niketan, Delhi (1976) where the Supreme Court held that once a woman was 18 years of age, no fetters could be placed on an individual‘s choice on where and with whom she wished to reside.
On role of Z’s parents, the high court concluded that they were not acting in their daughter’s best interest.
“In the Court‘s view, actions of Z‘s parents which were carried out with the aid of the local police, the staff of Almas, and the staff of CIMBS were in clear violation of Z‘s fundamental rights to life, liberty and the right to dignity enshrined in Article 21 of the Constitution. This violation of her rights was triggered by her exercising her freedom of choice as a female adult by choosing whom she wanted to stay with. The Court, therefore, rejects the plea of Z‘s parents that they acted in the larger interests of the daughter and in consideration of her well-being since their actions indicate the opposite,” said the bench.
Shockingly, the bench came across a two-decade old judgement of the Supreme Court wherein CIMBS incharge Dr Sunil Mittal had given a certificate for a woman’s admission to the mental hospital without even seeing the patient or examining her. The woman in that case was being harassed by her husband.
On role of the ambulance Almas, the court noted that its Dr. Israul Haque was not an allopath and held a degree in Ayurvedic medicine. The court was disturbed on learning that the ambulance run by Almas is registered in Haryana but does not satisfy the requirements of the guidelines for running such ambulance in Haryana and therefore, operates in Delhi.
“The manner in which the ambulance staff has been used to forcibly take Z away from the home of the Petitioners is illegal and unconstitutional. They have all been party to depriving Z of her liberty and virtually rendering her into the custody of the hospital without her consent. Almas has to be restrained from offering this type of ambulance services,” the court noted.
Summary of court’s conclusion and directions:
- Protection against an attack on the right of life, liberty, privacy and dignity can be sought not only against the State but also against non-State actors. Article 21 places an obligation both on state and non-state actors not to deprive a person of life, liberty, privacy and dignity except in accordance with the procedure established by law. In other words Articles 15 (2), 17, 19, 21 and 23 acknowledge the horizontal nature of those fundamental rights. They can be enforced against not just the State but non-state actors as well.
- In a habeas corpus petition when the plea before the Court is that a person should be protected against coercive retributive action of her parents, for making personal life choices, the Court shall not hesitate to exercise its jurisdiction to grant relief. In effect, the Court would be recognizing that the threat to the right of choice‘ of a person and thereby right to life, liberty, privacy and dignity can very well come from the person‘s own parents irrespective of the age and gender of such person.
- The actions of Z‘s parents in removing her forcibly from the Petitioners‘ residence and getting her admitted without her consent to the CIMBS on 11th June 2017, with the aid of the local police, the staff of Almas, and the staff of CIMBS, was in clear violation of Z‘s fundamental rights to life, liberty and the right to dignity enshrined in Article 21 of the Constitution. This violation of her rights was triggered by her exercising her freedom of choice as a female adult by choosing to leave her home, and deciding where she would like to reside. The Court rejects the plea of Z‘s parents that they acted in the larger interests of their daughter and in consideration of her well-being since their actions indicate the opposite.
- The procedure for involuntary admission under Section 19 MHA is only applicable when the person has been found to be mentally ill as required by law and a satisfaction has been reached to that end. Admitting a person under Section 19 MHA merely for observation cannot be countenanced as doing so would be in violation of a person‘s rights to life, liberty and dignity granted under Article 21 of the Constitution of India.
- Section 19 (1) read with Section 19 (2) of the MHA mandates that the medical officer in-charge has to record two kinds of satisfaction – first, in terms of Section 19 (1) of the MHA, the satisfaction that it is in the interest of the medically ill person that they necessarily be admitted to a mental health institution; and second, the satisfaction in terms of the proviso to Section 19 (2) of the MHA that it is proper to cause such mentally ill person to be examined by two medical practitioners working in the hospital itself instead of requiring the two certificates as provided under Section 19 (2) of the MHA. The medical officer in-charge cannot delegate this crucial function of the recording of the satisfaction of two separate kinds to some other person.
- In the present case, the satisfaction for the purposes of Section 19 (1) MHA could not have been arrived at by Dr. Sunil Mittal by just listening to his colleagues on the phone (or by a WhatsApp message). Such satisfaction could have been arrived at by Dr. Sunil Mittal only after interacting with Z. Clearly that interaction did not take place in the present case.
- A person cannot be admitted to a mental health institution in order to determine whether she requires such admission. The determination that she requires admission should be prior to her admission and not later. The involuntary admission of Z to the CIMBS at 7.55 pm on 11th June 2017 was, therefore, in clear violation of the requirement of Section 19 (1) MHA read with Section 19 (2) MHA
- A professional psychiatrist requires personal interaction with a person before making a diagnosis of such person‘s mental condition. A psychiatrist cannot determine a mental state of a person by merely discussing the symptoms and conditions with another fellow psychiatrist over the telephone. To do so is illegal and unconstitutional.
- The MCI should formulate a separate code of ethics for psychiatrists to follow, which will reinforce the law.
- The practice adopted in the present case by Dr. Sunil Mittal, Dr. Raj Mishra, and Dr. Sameer Kalani was in breach of the law, professional medical ethics and norms. The question as to what action is to be taken against them is left to the MCI to decide. MCI will take note of this being the second known instance in twenty years of violation of the law and ethics by Dr. Sunil Mittal and the Delhi Psychiatry Centre
- Z is permitted to file a formal complaint with the MCI relying upon the affidavits and records submitted by CIMBS in this matter. If such complaint is filed, it is expected that the MCI will deal with it promptly and render a decision not later than six months from the date of receiving such complaint.
- The Almas ambulance staff grossly neglected the duty of care owed to Z. They proceeded to abet the abduction of Z and administered drugs to her by injection in the absence of any medical records and on the mere say so of Z‘s family. This is a fit case for revocation of the registration of Almas as an ambulance company if it is so registered and stopping their further functions.
- Almas and its team have been party to depriving Z of her liberty and virtually rendering her into the custody of the hospital without her consent. Almas has to be restrained from offering any type of ambulance services. A peremptory direction is issued to the Government of NCT of Delhi to take action in regard to Almas and other ambulances, on being checked, which have been registered in states outside the NCT of Delhi but are operating in Delhi with impunity and in violation of the applicable guidelines.
- The police has abetted the flagrant violation of Z‘s fundamental rights to life, liberty, privacy and dignity under Article 21 of the Constitution. A full-fledged inquiry be conducted by the police into the roles of SI Yogesh Kumar and HC Praveen in this entire matter.
- Further, on the aspect of violations of the MHA, the Delhi Police appears to have left it to the Secretary (Health) GNCTD who is apparently enquiring into the matter. The Court directs the Secretary (Health) GNCTD to share with the Delhi Police within four weeks the report of such enquiry and for the Delhi Police to take further action in accordance with law in terms of such report.
- The Delhi Police shall prepare a manual detailing how to deal with cases under the MHA and, after 8th July 2018, the Mental Healthcare Act 2017. It must prepare a protocol in consultation with legal experts as well as experts in mental healthcare and spread awareness on the issue of mental health.
- The Central and State Mental Health Authorities must, in collaboration with the Delhi Judicial Academy, hold programmes on periodic basis with civil society groups, Resident‘s Welfare Associations, Police Officers, lawyers and Judges to sensitize them about the various compliances under the MHA and its successor the Mental Healthcare Act 2017 and how to treat persons who are sought to be governed by the said legislation.
- Z will be paid compensation as follows: Rs. 3 lakhs by CIMBS; Rs. 1 lakh each by Almas and the State and Rs. 3 lakhs by her parents. The compensation amounts will be paid by demand draft in Z‘s name (which has been withheld in this judgment for reasons of privacy) within four weeks from today and will be deposited by Z in her own account. Z will be free to utilize the amount in whichever way she deems fit. This will not preclude Z from seeking appropriate remedies in other proceedings in accordance with law.
- Z‘s parents and brother will be continued to be bound down by their affidavits of undertaking to this Court that they will not come in the way of Z‘s peaceful existence and choices
Read the Judgment Here http://www.livelaw.in/landmark-verdict-delhi-hc-asks-parents-compensate-daughter-violating-right-choice-detaining-mental-hospital-read-judgment/