Nominated Representative and Queer Lives
The nominated representative (NR), in the Mental Health Care Act 2017 (MHCA 2017), is someone who a person with mental health (MH) concerns can choose, to represent their wellbeing. This person participates in your care and represents you and your wishes when MH decisions about you need to be made. This is a person who may or may not be a family member.
The may not be a family member is the crux here. Typically, care giving primarily lies within the domain of the family system. There are only 2 ways to have a family. Either you are born into it or you acquire it through marriage. Rules around who can marry whom are stringent. The categories of caste, community, age, ability, religion, gender and sexuality all need to fit into societal norms before a marriage is approved. This family, acquired through marriage and perpetuated through childbirth, receives social and legal sanction.
So what happens when we don’t fit these categories? What if we are queer? Families are often made out to be sites of support but we know that the support is conditional. Families have norms about gender and sexuality that are rigidly enforced and expected to be followed. Support comes when we conform. So what happens to those to whom the norms don’t apply? Suddenly, families viciously withhold love and care. They disown us and often become violent spaces. Suddenly queers find themselves out of the family system.
So when the MHCA 2017 says the nominated representative may not be a family member, why is it important for us to sit up and take notice? How does the potential of choosing an NR, become a critical step in protecting ourselves and promoting our rights as queer people?
Stigma from society is the common experience of queer people and people with MH concerns. Queer persons have been pathologised and stigmatised on account of gender and sexuality. Stigma pushes people onto the margins and they face many forms of discrimination and violence as well as barriers to exercising their civil, economic, social and cultural rights. Often, people with mental illnesses are prevented to vote or open a bank account or to being discriminated against in the communities they live in. Similar such barriers prevent queer people too from enjoying full and effective participation in society on an equal basis with others. The MHCA 2017 recognises this stigma surrounding mental health and promotes the rights of persons with mental illness and mental health concerns. And hence, it provides an effective clause of choosing an NR. The same idea needs to be extended to queer people.
In the MHCA 2017-
§ every person who is not a minor, shall have a right to appoint a nominated representative.
Historically, family systems have failed queer people. Care is meted out to those who conform and are located within the family system. When gender or sexuality norms, keep us out of the family, who can we turn to? Is the concept of NR something we can consider applying to queer lives? Can queer people choose who can take care of them and can this be recognized under law?
§ shall be made in writing on plain paper with the person’s signature or thumb impression of the person referred to in that sub-section.
Our legal systems recognize families based on birth or marriage. Proof of these family ties via documents is compulsory. We can exist only in relation to our family members. And now this Act comes along and simply states that all we need is a piece of plain paper with our NR’s signature or thumb impression! Imagine the freedom. Imagine the trust. Queer people can choose someone who really cares and name them our NR!
§ the person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.
Care giving within families is often non-negotiable and it is taken for granted that the assigned female persons will do the care giving. However, an NR has to give consent, which means that they are willing to participate in our care. They are aware of what it entails and they have agreed with us about what that care will look like and they are willing to take it on. This is not necessarily duty-bound in the ways families function. Within families, care giving is duty-bound which means it is often hierarchical and based on power drawn from age, gender and wealth status within the family. Women bear the disproportionate burden of care giving. This care giving labour is also unpaid. All that power can be shifted/ equalised because we can choose who can take care of us and the other person agrees willingly to participate.
Queer people are a minority in their own families as families do not share their experience of oppression. Infact, families become the sites of oppression in the way that they rigidly enforce matching of categories of caste, community, age, ability, religion, gender and sexuality. This matching sustains and perpetuates structural inequalities through marriage and child birth. The MHCA 2017 and the Sec377 judgement have taken into account structural inequalities and have been affirmative in their framing, advocating for rights of people on the margins. Another document that is free of the family system (though subjected to severe contestation) is a will. A will is a legal document that allows us to leave our material possessions to anybody we wish to. It need not necessarily be restricted to family members, like property laws are. I look forward to a time when all we need is a piece of paper where consenting adults can declare themselves in a relationship and mutually agree to the terms of it. Instead of marriage we could all just have registered relationships, unfettered by categories and societal norms. What would be powerful about these self determined relationships and families is that these won’t be thrust upon us at birth or through marriage. Instead, we choose them and we negotiate in a willing manner to be with each other.
For now however, our legal system and the family system are so deeply entwined, that queer people find themselves being denied rights and benefits. We must have the right to protect ourselves and promote our rights. Hence, we need to look closely at the potential that NR, wills, MHCA2017 and Sec377 judgement offer, to opt out of oppressive family systems so we can give and seek love and care, on our own terms.
Shruti Chakravarty (ciswoman, pronoun: she) has experience of 15 years in the non-profit sector, as a mental health practitioner, researcher, trainer and social worker. Areas of engagement have been mental health, gender and sexuality from a social justice lens. She has an independent therapeutic practice based in Mumbai is also Chief Advisor at Mariwala Health Initiative. She has co-authored a training manual on Gay Affirmative Counselling Practice and conducts several interactive workshops on this topic on a regular basis. She is currently pursuing her PhD on queer intimacies at Tata Institute of Social Sciences.
Join her in signing the historical campaign on mental health at www.bridgethecaregap.com