Author :- Sakshi Agarwal
The parliament passed the mental healthcare bill 2016, published on 7th April 2017 in the official gazette of India, was commenced on 29th may 2018 which repeals and replaces the mental health act, 1987. The act has been enacted to provide statutory rights for mental healthcare and services to the persons who is suffering from mental illness and also decriminalizes the attempt to commit suicide. It also provides for procedure and process of admission, treatment and discharge of patients. The union government has launched the national health policy, 2017, which focuses on providing better treatment, rights, and legal remedies for patients.
On the 13th December, 2006 at United Nation Headquarters in New York adopted the convention on rights of persons with disabilities and its optional protocol and which came into force on the 3rd May, 2008; India has signed and ratified the united nation convention in 2007. The convention requires the existing laws of the country to align and harmonise with the treaty.
According to a World Health Organisation Report, revealed that 36% of Indian population suffers from some kind of mental illness. During the last year there have been at least 15 suicides took place every hour in the country. India alone accounted for 15% of the global mental, neurological and substances-use disorder burden. The motive of the Act is to provide the Right to mental healthcare and it reflects very well the government’s attempt to address this issue which has been paid no attention for decades.
The “mental illness” defines under the act as a contagious disease of thinking, mood, perception, orientation or memory that encompasses mental conditions associated with alcohol and drug abuse, including the ability to comprehensively judgment, behaviour, capacity to recognise reality or ability to satisfy the ordinary demands of life, but it does not include mental retardation which may be a condition of arrested or incomplete development of mind of a individual, specially characterised by subnormality of intelligence. In this Act, “Mental healthcare” includes analysis and diagnosis of a person’s mental condition and treatment also as care and rehabilitation of such person for his mental disease or suspected mental illness.
Basic Elements of This Act
Many societies believe that mentally ill person cannot be cured. Also, modern treatments are sometimes inhumane for mentally ill person without writing them down. But, Advance Directive is one of the most significant provision of this act which authorises a mentally ill person to have the right to make an advance directive in writing, which is not for minors, stating how they wished to be cared for and not to be cared for the particular illness and can appoint nominated representative. Of course, this directive has to comply with the regulations made by the central authority.
This act makes provision the role of caregivers as those are appointed as nominated representative by mentally ill person. Nominated representative shall not be minor and has to give consent in writing. In situation in which there is absence of recommendation by the mentally ill person, then any relative, caregiver, or any suitable person such as Director, Department of Social Welfare may be deemed to be considered as nominated representative.
Rights of persons with mental illness
The Act contains several safeguards for persons with mental illness. These are-
• It ensures every person has the right to access mental healthcare and treatment from health services run or funded by the appropriate Government. Such services confined within its three core principles- affordability, availability and accessibility.
• Those living below the poverty line whether do not possess below poverty line card, or who are homeless or poor shall be entitled to free mental health treatment and services and at no financial cost at all for mentally ill persons such establishment run, funded or designated by the Government.
• The right to equality and non-discrimination states that every person with mental illness shall be treated same as to persons with physical illness in the provision of all healthcare services.
• The right to information has been given to such mentally ill persons and their nominated representative. Using appropriate language that he can understand this information which includes the right to know the provisions of this Act, the nature of the mental illness of the person and the proposed treatment etc.
• This act also provides mentally ill persons a right to confidentiality in respect of his mental health, mental healthcare, and treatment subject to certain exceptions.
• Every mentally ill person has the right to access their basic medical records run or funded by government.
• It also provides proviso in regard to personal contacts and communication as to whom he/she wants to contact and whom he/she doesn’t.
• Under Legal Service Authority Act, 1987 provides the right to free legal services to persons with mental illness.
• They have been provided with the right to make complaints to the concerned authorities about the deficiencies in the provision of services.
Mental Health Authority
The government has to organize the central Mental Health Authority at national level and State Mental Health Authority in every state. All mental health institute, mental health nurses, mental health practitioners and psychiatric social workers will have to be registered with this authority. The function of these bodies is to:-
• Supervise and maintain a register under central and state government of all mental health establishments.
• Enhance quality and service provision norms for these establishments
• Maintain a register of mental health professionals
• Train law enforcement officials and mental health professionals about the provisions and implementation of this Act.
• Such other functions can be performed by central and state government as per their own.
Mental Health Authority Fund
The Mental Health care Act, 2017 constituted a fund to be called a Central Mental Authority Fund and State Mental Health Authority Fund to maintain an proper account and other relevant records of all the grants, loans, fees, charges, sums etc., made by the authorities under this Act. This fund shall be exercised for meeting the allowances, salary, remuneration of the chairperson and other members incurred with discharging the purposes of this act.
Mental Health Establishments
Earlier, only the psychiatric nursing homes and hospitals were included in mental health establishments. Then later on, under the Act, Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy establishments are also included controlled by government. It also states that the Act makes it mandatory for all mental health establishments has to be registered with the respective central/state mental health authority. It is a duty of the Centre and state level medical institutions to prepare a record of mentally ill patients undergoing health care services. The state authority shall also maintain a list of the professionally qualified personnel to provide health care. For registration, certain criteria need to be fulfil by these establishments as mentioned in the Act.
Mental Health Review Boards
The Act contains certain provisions for the establishment of Mental Health Review Boards. This quasi-judicial body will be primarily responsible for:-
• Registering, analysing, altering, making adjustments or cancelling an advance directive
• Designating a nominated representative
• Advocating statement of dis judgment concerning shortage in care and services
• Taking suitable measures to safeguard the right of persons with mental illness
As per the recommendation of Central Mental Health the Mental Health Review Board will be set up in each district will be for a period of 5 years. Members of Review Board may hold office up to a maximum age of 70 years and members include representative of Honourable District Judge (retired also considered), district collector, psychiatrist, medical practitioner, and two persons can be either PMI or caregiver or can be an NGO person.
Procedure and process
The Act highlights the procedure and process for admission, treatment and subsequent discharge of mentally ill persons. The Act provides that-
• No electro-convulsive therapy can be performed on these individuals without the use of muscle relaxants and anesthesia.
• Minors will not be given electro-convulsive therapy, it must be given under anesthesia and with muscle relaxants.
• Sterilisation cannot be functioned on such persons
• These persons cannot be handcuffed in any style or form whatsoever
• These persons shall not be put through to seclusion or solitary confinement and physical restraint can be used only if necessary.
Offences and Penalties
Under this Act, the punishment for violation of any of the provisions will attract an imprisonment of six months or Rs.10,000 fine or both. For any repeat offenders, the imprisonment can be extended to two years in jail or with fine of Rs. 50,000 to Rs 5 lakh or both.
Under Section 115 of this Act, states that any person who attempts to commit suicide shall be deemed to be under severe stress unless proved otherwise, and shall not be tried and punished under Section 309, Indian Penal Code. It is an obligation on the Government to provide care, treatment and rehabilitation to a person who has severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
The Mental Health care Act, 2017 came out to be a praiseworthy efforts in treating mental illness of persons. The provisions made in this behalf are honorable. The most significant of them being the abolition of the old and grossly inhumane Section 309 of Indian Penal Code. However, this Act faces several challenges like country’s poor medical infrastructure, acute shortage of mental health professionals, lack of sufficient funds, social stigma etc. It will be interesting to witness the implementation of this Act not just because of one person or one government but it is a joint effort of us, only we can contribute to the effective implementation of this Act.