The Mental Healthcare Act 2017

Cutting Edge

The Mental Healthcare Act 2017

Lex Witness Bureau | June 2017

India passed a historic Act which apart from decriminalising the attempt to suicide gives rights to mentally ill persons to live in dignity. The Act also tries to integrate the practice of mental healthcare with the mainstream healthcare system. Here’s an interesting mental dope for you.

The Mental Healthcare Act 2017 came into existence after the Mental Healthcare Bill received the assent of the President on April 7 2017. The objective of the Act is to provide mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during the delivery of mental healthcare and services.

The Act is essentially the effort to harmonise and align the existing laws with the Convention on Rights of Persons with Disabilities and its Optional Protocol which was adopted on December 13, 2006 by the United Nations and came into force on May 3, 2008. The Act replaces the existing Mental Healthcare Act 1987 which was not aligned with the existing realities.

The Act defines mental illness as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.

According to the Act, the mental illness in a person will only be determined in accordance with the government notified nationally or internationally accepted medical standards which also include the latest edition of the International Classification of Disease of the World Health Organisation (WHO)

The Act bars any person or authority from classifying any person as mentally ill unless for the treatment or for the purpose of this Act.

Besides, the Act has outlined that the mental illness of a person will not be determined on the basis of:

Political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
Non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.

Even the past treatment or hospitalisation in a mental health establishment though relevant, will not by itself justify any present or future determination of the person’s mental illness. The Act has also recognised the capacity of an individual to make decisions regarding his mental health status or the treatment if the person has the ability to understand the information and can understand the consequences of the decision and the lack of it.

ADVANCE DIRECTIVE

This is one of the most important provisions of the Act. The Advance Directive is essentially a decision made by a person about his treatment for mental illness in the future, irrespective of his past mental illness or treatment which he has undergone. According to this provision, a person has a right to prescribe the way he or she should be treated in the future for mental illness. However, the doctors have criticised this section or the provision of Act calling it the biggest flaw in the Act.

Explaining the provisions of Advance Directives, the Act says in Sec 5 Chapter III;

5.(1) Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely;

(a) the way the person wishes to be cared for and treated for a mental illness; (b) the way the person wishes not to be cared for and treated for a mental illness; (c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14.

However, the Advance Directive will only be invoked when a person loses his capacity to make mental healthcare or treatment decisions and remains effective until such person regains capacity to make mental healthcare or treatment decisions. If he has the capacity to make decisions, his Advance Directive will not be followed. Then the decision will be what he decides at that time.

If the Advance Directive has anything contrary to law, it will make it ab initio void. The Act has also given a person a right revoke ones Advance Directive at any time.

However, it is important to note that the Act has a provision whereby a doctor or the patients’ relative may approach concerned Mental Health Board to review, alter, modify or cancel the advance directive. The Board has a power to uphold, modify, alter or cancel the advance directive based on their observation and hearing all concerned individuals including the patient.

As for the liability of the medical professionals, the law has made it clear that it will not hold them responsible for any unforeseen consequences on following a valid Advance Directive.

RIGHTS OF PERSONS WITH MENTAL ILLNESS

Right to access mental healthcare:

While identifying this right of the person with mental illness, the Act makes it incumbent upon the government to provide a minimum, mental health services run or funded by Government in each district. The Act also has provisions for half-way homes, sheltered accommodation, supported accommodation, hospital and community-based rehabilitation establishments and services as well as provision for child mental health services and old age mental health services.

The Act entitles free mental health treatment to the persons with mental illness living below the poverty line, whether or not in possession of a below poverty line card, as well for those who are destitute or homeless.

Act also ensures that the mental health services will be of equal quality to other general health services and no discrimination be made in quality of services provided to persons with mental illness.

Importantly, the Act tries to integrate mental health services into general healthcare services at all levels of healthcare including primary, secondary and tertiary healthcare and directs the government to make available a range of appropriate mental health services specified under sub-section (4) of section 18 at all general hospitals run or funded by such Government and basic and emergency mental healthcare services as well.
Right to Community Living

Identifying the stigma attached to the mentally ill persons, the Act has imparted them right to live and be part of and not be segregated from society. They will not remain in a mental health establishment merely because they do not have a family or are not accepted by their families or are homeless. The Act has made it mandatory for the government to provide legal aid to those who have been abandoned by the family so that they can exercise their right to living in family in a family home.
Right to protection from cruel, inhuman and degrading treatment.

The Act identifies the right to dignity of the patients, and says that every person with mental illness shall be protected from cruel, inhuman or degrading treatment in any mental health establishment and shall have the following rights, namely: —

To live in safe and hygienic environment;
To have adequate sanitary conditions;
To have reasonable facilities for leisure, recreation, education and religious practices;
To privacy;
For proper clothing so as to protect such person from exposure of his body to maintain his dignity;
To not be forced to undertake work in a mental health establishment and to receive appropriate remuneration for work when undertaken;
To have adequate provision for preparing for living in the community;
To have adequate provision for wholesome food, sanitation, space and access to articles of personal hygiene, in particular, women’s personal hygiene be adequately addressed by providing access to items that may be required during menstruation;
To not be subject to compulsory tonsuring (shaving of head hair);
To wear own personal clothes if so wished and to not be forced to wear uniforms provided by the establishment; and
To be protected from all forms of physical, verbal, emotional and sexual abuse.

Right to equality and non-discrimination: Insurance to be made available

In an important announcement, the Act has recognised mental health patients as equal to physical health patients and has barred any discriminatory practices while administering treatment. The Act has also made it clear that the insurance agencies will make provisions for medical insurance for treatment of mental illness on the same basis as available for treatment of physical illness.
Right to information

Apart from the right to know the law and the provision under which he has been admitted, the person with mental illness also has a right to know the nature of the person’s mental illness and the proposed treatment plan which includes information about treatment proposed and the known side effects of the proposed treatment.
Right to confidentiality

A person with mental illness has been given the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare with some exception.
Restriction on release of information in respect of mental illness

No photograph or any other information relating to a person with mental illness undergoing treatment at a mental health establishment can be released to the media without the consent of the person with mental illness. The right to confidentiality of person with mental illness also applies to all information stored in electronic or digital format in real or virtual space.
Right to access medical records

The Act has given all persons with mental illness the right to access their basic medical records. However, such records may be withheld if disclosure would result in (a) serious mental harm to the person with mental illness; or (b) likelihood of harm to other persons.
Right to personal contacts and communication:

Under this clause, a person with mental illness admitted to a mental health establishment has the right to refuse or receive visitors. However, Judge or officer authorised by a competent court, members of the Mental Health Board or the Central Authority or the State Authority, any member of the Parliament or a Member of State Legislature and some other individuals such as nominated representatives or lawyers or legal representatives can visit him
Right to legal aid:

A person with mental illness has been entitled to receive free legal services to exercise any of his rights given under this Act. It is the duty of the medical officer to inform the person with mental illness that he is entitled to free legal services under the Legal Services Authorities Act, 1987 or other relevant laws.
Right to make complaints about deficiencies in provision of services:

The person with mental illness has a right to complain regarding deficiencies in provision of care, treatment and services in a mental health establishment to the medical officer, the concerned Board and the State Authority. They also have a right to seek any judicial remedy for violation of his rights in a mental health establishment or by any mental health professional either under this Act or any other law for the time being in force.

PROHIBTED PROCEDURES

While identifying the rights of the individual to have access to mental healthcare, the Act forbids use of certain procedures under certain conditions.

No Electro-convulsive Therapy Section 95 of Chapter XIIV says;

95. (1) Notwithstanding anything contained in this Act, the following treatments shall not be performed on any person with mental illness—

Electro-convulsive therapy without the use of muscle relaxants and anaesthesia;
Electro-convulsive therapy for minors;
Sterilisation of men or women, when such sterilisation is intended as a treatment for mental illness;
Chained in any manner or form whatsoever.

(2) Notwithstanding anything contained in sub-section (1), if, in the opinion of psychiatrist in charge of a minor’s treatment, electro-convulsive therapy is required, then, such treatment shall be done with the informed consent of the guardian and prior permission of the concerned Board.

No Psychosurgery Section 96 of Chapter XIIV says

96(1) Notwithstanding anything contained in this Act, psychosurgery shall not be performed as a treatment for mental illness unless—

The informed consent of the person on whom the surgery is being performed; and
Approval from the concerned Board to perform the surgery, has been obtained.

(2) The Central Authority may make regulations for the purpose of carrying out the provisions of this section.

Isolation Safety

While recognising the need to isolate a mental health patient, the Act says the authority has to ensure that the person is kept in a place where he can cause no harm to himself or others and is under regular ongoing supervision of the medical personnel at the mental health establishment. The law also bars seclusion or solitary confinement of the patient unless it is strictly required.

CENTRAL MENTAL HEALTH AUTHORITY

The Act proposes a creation of Central Mental Health Authority (CMHA) with Secretary or Additional Secretary to the Government of India in the Department of Health and Family Welfare as chairperson ex officio. The authority has to be in place within a period of nine months from the date on which this Act receives the assent of the President.

The Authority will consist of seven ex officio members and nine Central government members. The members will be appointed for a period of three years and will retire at the age of seventy years.

The Authority will also have a Chief Executive Officer, not below the rank of the Director to the Government of India. The CEO will be the legal representative of the Central Mental Health Authority and he will be responsible for the day-to-day administration of the Central Authority; implementing the work programme and decisions adopted by the Central Authority; drawing up of proposal for the Central Authority’s work programme; and the preparation of the statement of revenue and expenditure and the execution of the budget of the Central Authority

Role of the Central Mental Health Authority

It will register all mental health establishments under the control of the Central Government and will develop quality and service provision norms for different types of mental health establishments under the Central Government.

The authority will maintain a national register of clinical psychologists, mental health nurses and psychiatric social workers based on information provided by all State Authorities of persons registered to work as mental health professionals for the purpose of this Act and publish the list (including online on the internet) of such registered mental health professionals.

STATE MENTAL HEALTH AUTHORITY

At the state level, the Act has proposed establishment in every state a State Mental Health Authority. The Secretary or Principal Secretary in the Department of Health of State Government will act as chairperson ex officio. It will have ex officio member and State government members. Like central authority, state mental authority will also have a Chief executive officer not below the rank of the Deputy Secretary to the State Government to look after the administration.

MENTAL HEALTH ESTABLISHMENTS, PENALTY & APPEAL

Bans Registration

The Act bans establishment and running of mental health establishment unless it has been registered and the Mental Authority has the power to suo motu or on a complaint received from any person with respect to non-adherence of minimum standards specified by or under this Act or contravention of any provision thereof can order an inspection or inquiry of any mental health establishment.

Penalty

The Act penalises whoever carries on a mental health establishment without registration with penalty which may extend to five lakh rupees for every subsequent contravention.

Whoever knowingly serves in the capacity as a mental health professional in a mental health establishment which is not registered under this Act, shall be liable to a penalty which may extend to twenty-five thousand rupees.

The penalty shall be adjudicated by the State Authority and whoever fails to pay the amount of penalty, the State Authority may forward the order to the Collector of the district in which such person owns any property or resides or carries on his business or profession or where the mental health establishment is situated.

Appeal

Any mental health establishment aggrieved by an order of the Authority refusing to grant registration or renewal of registration or cancellation of registration, may, within a period of thirty days from such order, can appeal in the High Court in the State.

The High Court may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.

MENTAL HEALTH REVIEW BOARDS (CHAPTER XI)

According to Sec 73. (1) of this Act, the State Authority shall, by notification, constitute Boards to be called the Mental Health Review Boards.

Each Board shall consist of––

A District Judge, or an officer of the State judicial services who is qualified to be appointed as District Judge or a retired District Judge who shall be chairperson of the Board. He will be appointed by Chairperson of the State Authority and will hold office for a term of five years or up to the age of seventy years, whichever is earlier and can be reappointed for another term of five years or up to the age of seventy years whichever is earlier.
Representative of the District Collector or District Magistrate or Deputy Commissioner of the districts in which the Board is to be constituted;
Two members of whom one shall be a psychiatrist and the other shall be a medical practitioner.
Two members who shall be persons with mental illness or care-givers or persons representing organisations of persons with mental illness or care-givers or nongovernmental organisations working in the field of mental health

Seeking Redressal

Any person with mental illness or his nominated representative or a representative of a registered nongovernmental organisation, with the consent of such a person, being aggrieved can make an application to the Board seeking redressal or appropriate relief. All proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code.

Powers and functions of Board

The Mental Health Review Board has the power to

To register, review, alter, modify or cancel an advance directive;
To appoint a nominated representative;
To receive and decide application from a person with mental illness or his nominated representative or any other interested person against the decision of medical officer or mental health professional in charge of mental health establishment or mental health establishment under section 87 or section 89 or section 90;
To receive and decide applications in respect non-disclosure of information specified under sub-section (3) of section 25;
To adjudicate complaints regarding deficiencies in care and services specified under section 28;
To visit and inspect prison or jails and seek clarifications from the medical officer in-charge of health services in such prison or jail.

All proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code. The Board will not ordinarily grant an adjournment and all the proceedings of the Board will be held in camera.

DECRIMINALISATION OF ATTEMPT TO SUICIDE

The Act has decriminalised attempt to suicide, presuming it a severe stress.

The Act says: 115.

Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

BAR TO JURISDICTION

The Act does not allow any civil court to entertain any suit or proceeding in respect of any matter which the Authority or the Board is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

The Act also says, “No suit, prosecution or other legal proceeding shall lie against the appropriate Government or against the chairperson or any other member of the Authority or the Board, as the case may be, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or regulation made thereunder in the discharge of official duties.”

The provisions of this Act are going to have overridden effect over anything inconsistent with them in any other law.

CONCLUSION

The Act passed by the Parliament was long due and it is definitely historic in more ways than one. India lacks an efficient mental healthcare system. The present system suffers from lack of infrastructure and professionals in this field. The result of this was shoddy treatment and deplorable state of people with mental illness.

The decriminalisation of suicide is one of the major achievements of the Act. The other big achievement of the Act is the ban on electro convulsive therapy unless it has been approved by the Mental Health Board and involves in this decision the nominated representatives and the patient himself too. It has not left it to doctors to decide whether the person should be given ECT even if some prominent doctors calling it as ‘life saving’.

The Act has recognised the rights of the persons with mental illness and has tried to integrate the delivery of mental health treatment with the mainstream health treatment. The Act has reiterated the need for looking at the mental health issues as health-related issues and need to destigmatise mental health illness so as to give the persons their due respect to live in dignity within community and in home with their families. It is the duty of the government to provide shelter or half way homes to those who are destitute and do not have homes.

The Act has asked the government to put in place infrastructure which are lacking at the present. Another problem relates to lack of human resources. The Act has not specifically made any provisions to increase the human resources available in the mental healthcare. There is a severe lack of doctors, psychologists and trained nurses in the mental healthcare. There is another drawback in this Act which is inadequate representation of psychiatrists and psychologists in the authorities and review boards that the Act tries to put in place. The Act has overall tried to address the problems that the mental healthcare in India was facing, and it is incumbent upon the government both at the centre and states to implement the act in all earnest.

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