This Article is authored by Rhea Banerjee, Pursuing B.A.LL.B from Indore Institute of Law.
Mental Health can be regarded as one of the key elements of human health, usually in India not many people recognize the gravity of mental disorder or some mental illness as compared to any physical illness but since the last half decade there has been rise in awareness of mental health as well as the common mental illness which is faced by masses but they just don’t pay enough attention to it.
As per the study conducted in 2016 by the National Institute of Mental Health and Neurosciences, India, across 12 different states of India, it was found that there is a rising frequency of depression for both kinds i.e. current and lifetime of 2.7% and 5.2% respectively. The study also gave information about mental disorders faced by Indians which is about 13.7% of the whole population and this would mean that 150 million people are suffering from terminal mental disorders who are in rapid need of medication and treatment. There were other studies conducted over mental illness and India ranked as one of the top countries who would be experiencing mental illness at a large scale in the coming decade and the most exposed groups for such mental illness is the adolescent and senior people’s group. If the present condition is not curtailed and controlled by giving appropriate treatment, then India might contribute to one-third of the public suffering from mental illness across the whole world.
Other critical facet which needs to be looked upon for betterment of the present condition of the Mental Health is that India lacks the infrastructure and work personnel required to deal with such mental illness and disorders. In India there about only 40 mental institutions and out of them only 9 institutions are having facilities for treatment of children and the ratio of number of hospital beds as compared to the number of mentally ill patients is alarming, making it evident that how much India needs to work upon its medical facilities to supplement its enormous population. The report of World Health Organization (WHO) on the Mental Health Atlas has given some disturbing numbers with reference to the psychiatrist and psychologists available in India for every one million people in India. These are some unacceptable figures which also violates the human rights of these mentally ill people and causes further complications regarding their mental health.
Looking into the appalling condition of the mental patients in India with inadequate workforce and hospital beds along with the disgrace attached to it and there were numerous limitations in the existing Mental Health Act, 1987. It became domineering for the government to address the upcoming issues of the Mental Health Act and replace it with an Act which recognized the rights of mentally ill people and even bring new additions to the Act with regard to the Advanced Directives and Nominated Representative. Along with all the shortcomings, India is also signatory to the Convention on Rights of Persons with Disability (2007) and it was India’s international obligation towards the mentally ill people to give them a bill safeguarding their interests and making their medical services easily available.
Mental Healthcare Act, 2017 –
Keeping in view, the prevailing condition of mental health in India, there was an urgent need of a functional and updated legislation, as legal regime could bring positive changes in the treatment of persons suffering from mental disorders. The Mental Healthcare bill was passed and approved in both the Houses and even got the assent of President by April 2017, but the Act was enforced from 29th May 2018. This Act replaced the Mental Health Act completely as it barely talked about the issues of consent. The Act also didn’t mention the maximum time period of inpatient hospitalization for those persons who were admitted in the hospitals without their voluntary consent. The earlier act also introduced the involvement of Department of Police and Honourable Courts in the admission and discharge procedures of the patients and the act completely ignored the criminal essence of this provision, that it could be misused by the public officials.
The new Mental Healthcare Act, 2017 brought a new definition of “mental illness” as the substantial disorder of thinking, depression, mood, or memory that grossly weakens the decision-making power or ability to meet the regular demands of life and mental conditions existing with the abuse of alcohol and drugs. The Act had also reversed the application of Section 309 of IPC which criminalizes suicide and even attempt to suicide but any person under severe stress tries to commit suicide shall not be tried or penalised under this Section. The major highlight of this Act was that it recognized the rights of mentally ill persons and introduced new concepts like Advanced Directives, where the patient could decide how he/she wanted to be treated for his/her illness.
This act further supports and solidifies the human rights of the mentally ill persons and the new changes in the Act with respect to Nominated Representatives, Advanced Directives, roles and responsibilities of government are better defined and established in this Act. The Act is divided into 16 chapters and 126 sections in total. Let’s, have a brief of all the significant chapters of the Act. They are as follows-
Chapter I – Preliminary (Definitions)
This chapter consists of the various definitions given under section 2 of the Act which are further explained in the upcoming chapters, some of the significant definitions of the Act are-
- “Advance Directive” means a written document made by a person expressing his wishes regarding his treatment
- “Mental Illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs one’s judgment, behaviour and capacity to identify reality or a ability to meet ordinary demands of life, but it excludes mental retardation
- “Informed Consent” can be understood as the consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, obtained after disclosing the adequate information including the risks and benefits and alternatives to the specific intervention in a language and manner understood by the person
- “Mental Healthcare” means the analysis and diagnosis and treatment as well as care and rehabilitation of a person for his mental illness or suspected mental illness
- “Mental health establishment” means any health establishment, meant for the care of persons with mental illness, does not include a family residential place where a person with mental illness resides with his relatives or friends.
- “Mental health professional” can be a psychiatrist, a post-graduate degree (ayurveda) in mano vigyan avum manas roga or a post-graduate degree (homoeopathy) in psychiatry or a post-graduate degree (unani) in moalijat (nafasiyatt) or a post-graduate degree (siddha) in sirappu maruthuvam.
Chapter II – Mental Illness And Capacity To Make Mental Healthcare And Treatment Decisions
This Chapter consists of Section 3 and 4 talking of how mental illness should be determined as per the medical standards and no person should be discriminated on the basis of his/her mental capacity.
Under Section 3, It is noted that no person should be identified as a person with mental illness, except for conditions which are related to the treatment of the person or as specified under this Act.
No Mental illness of a person shall be determined on the basis of his non-conforming views with regard to any economic, political, social status, racial or religious group or for any other reason related, if the person has had any past treatment or hospitalization, then even that will not be a ground to treat the person as mentally ill. And a mentally ill person doesn’t necessarily imply that the person is of unsound mind unless it has been declared by the Court.
Under section 4, the capacity of a person to make his own healthcare and treatment decisions is discussed where it is stated that every person including the person with mentally ill condition can make his own decision if he understands the information relevant for his treatment, is able to foresee the probable outcome of the decision or lack of decision taken by him for his treatment and is able to appropriately communicate his decision by means of speech or gesture.
In certain cases, where the decision taken by the mentally ill person which is perceived as not favourable by others, then it wouldn’t take away the capacity of the person to make decisions with regard to his mental healthcare as far as he/she fulfils the conditions mentioned above.
Chapter III – Advance Directives
This chapter consists of Section 5 to 13 of the Act, and this was one of the major introductions of this Act which can be stated as any person who is not minor (above 18 years) has a right to make an advance directive in writing describing the way he/she wants to be treated in a particular way or doesn’t want to be treated or taken care of in particular manner for his mental illness.
Under Section 5, the person can also appoint individual/individuals for as his Nominated representative. The Advance Directives is invoked the moment when the person ceases his capacity to make judgments regarding his mental healthcare and treatment and it remains effective until the person regains his decision-making capacity. Any Advance Directives made against the laws of the country would be considered as void ab initio.
Under Section 8, the person can amend, make changes or even revoke his advance directives in the same procedure as mentioned under the central regulations and in case of emergency, the copy of advance directives will not be taken into consideration and the treatment shall be given as per the directions of the psychiatrist.
Read – Important Provisions of RERA
Chapter IV – Nominated Representative
This chapter consists of Section 14 to 17 of the Act and it talks about the which person is qualified to be a “nominated representative” of the mentally ill person. Under section 14, appointment of Nominated Representative is given, where it is stated that any major person can choose his nominated representative in written and signed paper. The Nominated Representative should not be a minor and should be competent enough to discharge his obligations for the mentally ill person and perform all the necessary duties and should also give his consent in writing.
In case where there is no Nominated Representative appointed by the mentally ill person, then the following persons can be nominated as the Nominated Representative of the person with mental illness, either his relative, caregiver or the Director of the Department of the Social Welfare or his designated representative can be appointed as the NR. In case, the person is a minor, then the legal guardian of the person will be appointed as his Nominated Representative. The Board in the interest of the mentally ill person may also revoke the appointment of the NR and appoint another one.
Section 17 describes the duties of Nominated Representative, and some of his duties are to consider the best interest of the patient and consider all his past wishes, support the person while he is making his treatment related decisions, has the right to seek information with regard to the diagnosis and treatment of the patient and the NR also has an access to the home-based rehabilitations of the person, he has the right to give or withhold his consent for research of under stated circumstances. Lastly, the Nominated Representative has a say in the discharge of the patient also.
Chapter V – Rights Of Persons With Mentally Illness
The Chapter consists of Sections 18 to 28 of the Act, which is the heart of this Act as the main purpose replacing the older Act with a new one was to identify the rights of the person with mental illness, so that discrimination against them can be curbed and the mindset of people with regard to person with mental illness shall also change.
Some of the essential rights of the persons with mental illness are as follows-
- The patients have the right to access mental healthcare from the organization run or funded by government without being discriminated on the basis of sex, caste, creed, religion, culture or any other kind of discrimination.
- The patients should not be travelling long distances for their mental heath services, should be given appropriate accommodation in the mental health establishments. Arrangements should be made for home-based rehabilitations and community-based rehabilitations especially for children and elderly persons.
- The patient has the right to integrate his mental healthcare treatment and services with the general healthcare services. Mental healthcare services should be accessible to all. It should be made available in all the districts of every state
- The person with mental illness has the right to reimburse for his costs from the government
- Mental healthcare facilities should be made available for free of cost for people who are below the poverty line or are cannot afford these services
- All the essential drugs required for mental illness should be made available for these persons for free of cost
- Persons have right to live with their community and not be segregated from the society just because of their mental illness and these persons have right to live with dignity
- These persons have right to protection from any sort of cruel, inhuman or derogatory treatment and they also are protected from all sorts of physical, emotional, verbal or sexual abuse.
- A child who is below the age of three and is suffering from some mental illness, receiving care from a woman shall not be separated from her, except in case the child is dangerous for the woman
- Persons with mental illness have the right to information, right to confidentiality under which no photograph or any other patient related information of the person at the mental health establishment shall be released to media without the consent of that person
- These persons have the right to access over their medical records as may be prescribed.
- Persons have the right to legal aid and have the rights to make complaints in case there is deficiency in providing of healthcare services by the mental health establishments.
Read – Recovery of Damages from Rioters and stand of Law
CHAPTER VII & VIII – Central Mental Health Authority And State Mental Health Authority
Chapter VII Central Mental Health Authority consists of Sections 33 to 44, and the authority comprises of 20 members appointed for 3-year tenure and can be re-appointed but shouldn’t be more than the age of 70 years. All the members have to meet once in every 6 months or can even join the meeting via video conferencing. Central Mental Health Authority includes Secretaries, Joint Secretaries of Health Department and Family, Director General of Health Services, Director of Central institutes, mental health professionals holding the experience for atleast 15 years, clinical psychologist, social workers working with psychiatric department, caregivers, NGOs and any other person in relevance with mental health.
The basic duty of the Central Mental Health Authority is to supervise the Mental Health establishments, register all the mental health establishments and set quality norms or them and train the mental health practitioners and even advice the central government on matters of mental health establishments.
Chapter VIII State Mental Health Authority consists of Sections 45 to 56 of the Act. The State Authority shall not meet more than 4 times in a year and the authority has number of members, Principal Secretary, Joint Secretary, Head of Mental Health Institute, eminent psychiatrist, social workers, mental health practitioners, caregivers, NGO people, clinical psychologist and many more. All the decisions of the authority should be signed by the Chairperson.
CHAPTER X – Mental Health Establishment
The Chapter consists section 65 to 72 of the Act where it is explicitly mentioned that no organization shall be called Mental Health Establishment unless it is registered with the Authority under this Act. Registration is essential to be recognized as mental health establishment. Each mental health establishment needs to audited once in every three years. The register of Mental Health Establishment should be in digital format and basic duty of the MHE is to provide information to the patients and everyone regarding the mental illness.
Thus, one must have got the preview of the Mental Healthcare Act, 2017 and why is it necessary to give equal status and voice to mentally ill persons and remove the social stigma behind this concept of mental illness.
Refer Main Act – Mental Healthcare Act, 2017
Read – Contempt of Court, An Overview