Decoding The Mental Healthcare Act, 2017: An In-depth Analysis Of India's Mental Health Legislation

Dhairya Kumar & Sanya Garg

24 July 2023 6:02 AM GMT

  • Decoding The Mental Healthcare Act, 2017: An In-depth Analysis Of Indias Mental Health Legislation

    In the coeval times, the term “health” is not limited to the physical aspect of the body but also includes mental and spiritual well-being. The concept in itself has attracted colossal credibility and has encouraged the government to look after the existing facilities and make way for up-to-the-minute developments taking place in terms of mental health care. The Mental Health Care...

    In the coeval times, the term “health” is not limited to the physical aspect of the body but also includes mental and spiritual well-being. The concept in itself has attracted colossal credibility and has encouraged the government to look after the existing facilities and make way for up-to-the-minute developments taking place in terms of mental health care. The Mental Health Care Act, 2017 has a history of originating in the earlier act, the Mental Health Act, of 1987, which was a beacon of hope as it explicitly mentioned the Fundamental Human Rights of a mentally ill patient. The MHCA, 2017 is a revolutionary tool for India, as the people of the country still weigh up the mantras of the shamans, and passing legislation like this is a big step towards eradication of misconceptions associated with mental illness. It provides for acknowledgement of a statutory right to receive mental health care and treatment.

    It is noteworthy to mention that the ratification of the UN Convention on the Rights of Persons with Disabilities by the Government of India played a vital role in effecting the transformation from MHA, 1987 to MHCA, 2017. In the present scenario, the MHCA can be considered as ‘Gold Standard’ for providing access to Mental HealthCare Services to people by making it a statutory right. The passing of this Bill was a landmark moment. Key features of the Act include its proclivity to autonomy and dignity of individuals suffering from mental illness. It also seeks to separate the intermingling of the concepts of mental illness and unsoundness of mind, thereby ensuring different kind of socio-legal rights like right to vote, right to enter into legal relationship to the mentally ill people. The preamble of the Act lays down emphasis on the delivery of healthcare services to persons with mental illness (PwMI). The Mental HealthCare Act, 2017 in its Section 120 explicitly declares the provisions mentioned under this Act to have an overriding effect, if any inconsistency arises with any other statute being in force at that time. This helps in reducing any ambiguity or misconceptions that may create a barrier in the proper implementation of the Act. The Act contains various astounding features.

    Right to Access Mental Healthcare:

    The Mental Healthcare Act, 2017 is very proactive in ensuring access to mental healthcare facilities and services that are funded partially or completely by the governmental authorities. Such access has been granted to all individuals irrespective of their culture, caste, class etc. under Section 18 of the Act as a part of Chapter V. The provision of half- way homes under sub-section 4, clause (b) needs to be appreciated. These half-way homes are supposed to be transitional housing facilities for those recuperating from mental illness who don't need hospital-level care anymore but aren't yet able to live independently. According to administrators, the institutions' goal is to preserve each individual's mental health while simultaneously enhancing their potential for independent or communal life. These homes can provide the necessary skills and confidence to these people to manage themselves.

    The Act also outlines a plan for people with mental illnesses who live below the poverty line to get affordable mental healthcare services and treatment in facilities that are supported or managed by the government, regardless of whether they have a below poverty line card. More than 150 million Indian individuals, or 10% of the population, live with a mental health illness and require support services, according to the National Mental Health Survey from 2016.[1] Additionally, according to the poll, between 70% and 92% of those who require mental healthcare cannot receive the adequate services.[2] The amount of significance that the Act gives to aspect of accessibility can be gauged from the fact, that it has a complete chapter containing 11 sections devoted to this single aspect. However, despite this the implementation has not been uniform and there are various sorts of financial and procedural hurdles that are encountered by people in accessing such services.

    Determination of Mental Illness:

    The Act makes claim for classifying mental illnesses on the latest medical standards prevailing. In context of our country, the International Classification of Diseases (ICD) 10th edition issued by WHO is currently being used for the same. The same has been described under chapter II of the Act. There is certain bar prescribed under the Act, on the basis of which a person cannot be classified mentally ill. These include:

    1. i.The affiliation of an individual to particular racial or religious group or his socio-political status.
    2. ii. Non- Conformity to prevailing socio-religious and cultural values.
    3. iii.Previous medical history related to treatment and hospitalisation. Although, it can still have a persuasive impact on the same.

    Under the MHCA, 2017, the distinction between mentally illness and unsoundness of mind has clearly been highlighted. Interpretation of the Section 3(5) indicates that even though a person may be declared as mentally ill on medical standards but, he cannot be classified as of unsound mind till the time, the same has been declared by a competent court. The Supreme Court in the case of Eera v. State (NCT of Delhi)[3] also created a distinction between being mentally ill and mentally retarted. The latter is majorly based on the concepts of Intelligence quotient and mental age, whereas the former does not have any direct relationship with the same.

    Advance Directives:

    The MHCA, 2017 Act tries to emphasize the personhood and autonomy given to persons with mental illness (PwMI) by making provision of Advance Directive as specified under its chapter III. Such clauses confer the individual with ability to decide the course of action in advance in the event of their incapacity. This provision states that the person may demand therapy for anticipated "incompetence" and is based on the narrative about Ulysses who aspires to hear the sirens that are alluring but deadly. Thus, he instructs to ship’s crew to tie him along the mast so that he can listen to them without being compelled to do something as a result of it.[4] The validity of this clause has also been upheld by the Supreme Court in the case of Common Cause v Union of India. The court had remarked that ‘The sacred right to a life with dignity might be realized through advanced medical directives. The said directive will dispel many doubts at the relevant time of need during the course of the treatment of the patient. Apart from that, it will strengthen the treating physicians' minds since they will be able to confirm, if they are acting in a lawful manner.’[5] An essential feature of these directives that could be highlighted is that these cannot be in oral form. The Act of 2017 clearly specifies that the person has to give such directives in writing. This has majorly been done to prevent any sort of misuse or manipulation. It must be kept in mind that this provision cannot be exercised by a minor.

    A minor as clear from the definition clause of the Act has been defined as individual who has not completed the age of 18 years. These directives are not absolute in nature and can be overridden by individual making them, while he is in sound state of mind and is capable of knowing the nature of his actions. It must be noted that these advance directives must not be against the public policy of the country i.e., it should be in compliance with laws and policies enacted. Under Section (5)(1)(c), the individual also the authority to choose his nominated representatives in order of precedence by way of advance directives. This has also been discussed in detail under Chapter IV of the Act. However, the clause has certain issues that needs to be remedied. Section 5 on advance directives has a number of issues that constitute its main concern. It states that emergency care covered by Section 103 is exempt from advance directives. The clause pertaining to emergency care is Section 94, not Section 103, as stated in Section 5(9). In reality, the rights of prisoners with mental illnesses are covered under Section 103 of the Act. So, this may also be viewed as a minor drafting error. Apart from this, the matter of grave concern is that an advance directive is suspended during times of emergency treatment.[6] There are certain other grey areas that can be pointed out in regard of section 5 such as the standard procedure for specifying or making the advanced directives is absent, which indicates ambiguity and question the existence of the very right that it generates.

    Decriminalisation of Suicide and Prohibition on usage of electro-convulsive Therapy:

    One of the most striking and welcoming features of the MHCA, 2017 is that it tries to decriminalize suicide. Section 309 of the IPC, 1860 provides for provision of penalisation of individual who attempts of commit suicide. However, this historic blunder has been undone under Chapter XVI which deals with miscellaneous aspects of the Act. Section 115 eloquently directs the governmental authorities to presume severe stress on part of those individuals who indulge in suicide and to make relevant institutions for the treatment and rehabilitation of such persons. In accordance with the Act, suicide is being categorised as a psychiatric issue as opposed to a product of a criminal predisposition. Moreover, a list of additional safeguards has been made to preserve the privacy of those in such acute distress.

    The Law Commission of India in its 42nd Report and 210th Report had also recommended for decriminalization of attempt to suicide. The commission in this aspect had remarked that by penalizing individuals suffering from severe distress to such an extent that they are compelled to commit suicide is a kind of double punishment. Section 115 of the Act also gets the approval of the Punitive theory as the person committing suicide is not harming other people, and his act is motivated by psychological reasons. Thus, he deserves to be treated and cared for and not punished.[7]

    The Act has also placed certain restrictions on the usage of Electro-Convulsive therapy as method for treatment of individuals suffering from mental illness. Under chapter XII of the Act titled, ‘Admission, Treatment and Discharge’, Section 95 lists out several guidelines in regard to the same. It has prohibited the use of electro-convulsive therapy without the application of muscle relaxants and anaesthesia. There has also been an attempt to make this therapy completely out of bounds for treatment for minors as proposed by the WHO, but an exception has been carved out in this regard under Section 95(2) of the Act, where subject to the informed consent of the concerned board formed under the Act and guardians of the minor individual, electro-convulsive therapy can be administered if it is necessary for treatment or lifesaving purposes. These provisions are also in line with the recommendations that were proposed by the Parliamentary Standing Committee in its 74th report on the Mental Health Care Bill, 2013.

    Rights of Prisoners with Mental Illness:

    The Mental HealthCare Act, 2017 is also proactive in protecting the rights of prisoners who suffer from mental illness or require medical care and treatment. Such a provision has been made under Section 103 of the Act under Chapter XIII. If a prison's medical wing does not have a psychiatric ward, the aforementioned rule allows for the transfer of a prisoner with a mental illness to a mental health facility after acquiring approval of the concerned board. The Act expressly requires the government to build mental health facilities in at least one prison's medical wing in the concerned state. In the case of X v State of Maharashtra[8], a division bench of the Supreme Court held that the existence of post-conviction mental illness cannot be overlooked by the government. Numerous variables, including congestion, a lack of privacy, and isolation, have been cited by both the International Red Cross and the World Health Organization as contributing factors for the development of such disorders.

    In the aforementioned case, the hon’ble court had directed the government that if the prisoner satisfied the requisite conditions mentioned under the Act, then he should be entitled to his rights under the Act. Inmates require more mental healthcare than the normal population does, both while they are still inside the jail and when they leave and try to reintegrate into society. They are 2 times as inclined as the general community to commit suicide. Upon being released from prison, their medical problems do not stop. Under the Act, the medical officers are liable to submit reports to the Mental Health Review Boards on a quarterly basis indicating about the status of mental health of the prisoners. Apart from this, members of such boards also have the power to visit these prisons on a regular basis to ensure prisoners with mental illnesses are being taken care of in a proper way. Thus, proper implementation of the different provisions of MHCA, 2017 at the ground level becomes very significant to address the underlying issues.

    Criticism and the Way Ahead:

    The provisions mentioned in the MHCA, 2017 are commendable, but ensuring their proper implementation would require strain on the already stretched financial resources. In India, less than 1% of the entire healthcare budget is allocated for mental health; if necessary, steps are to be made to guarantee that the rights of people with mental illness as indicated above are not infringed, this budgetary allocation has to be dramatically increased.

    The importance of the family carers who make up the dominant workforce in mental healthcare in India has not been take into consideration by MHCA, 2017. The routine requirements of patients are met by their families, who also frequently become the target of behavioural outbursts from the patient. Families supervise medicines, transport patients to hospitals for consultations, and take care of their finances. When taking into account the local realities, MHCA could have maintained the option for family members to reside with patients while they are hospitalised (wherever practical). This would help in ensuring continuum of care to the patient, even after he is released from the hospital and would give the family the chance to receive psychosocial support, including instruction on how to care for the patient, as well as lowering the risk of patient abuse.[9] Also, the Act has certain provisions that deal with choosing of nominated representatives, but surprisingly there is ambiguity regarding removing of such representatives once they have been appointed. It is interesting to note that even the medical officials do not possess the ability to remove them. Thus, more clarity in this respect would certainly be appreciated. Another grey area presented in the act is that the definition that has been presented for mental health professionals does not include a standard set of qualifications for such professional. This has a potential of affecting the standard of care that an individual will receive. By requiring registration of mental healthcare facilities, the act eagerly advances its goal of protecting and promoting the human rights of people with mental illness (yet oblivious to the limited resources at its disposal). This will undermine the intent of the law and enable harassment of the providers of mental healthcare by encouraging “Red Tapism."[10]

    The National Mental Health Program in the nation is likewise disregarded by the Act. The Act should have required all states to put it into effect, but it does not. Due to the constraints on resources, the MHA of 1987 cannot be completely implemented. The MHCA, 2017 however, has been presented without a clear strategy on how to satisfy the resource requirements. This is an aspect that needs to be monitored closely and addressing it is the need of the hour.

    Views are personal.

    [1] National Institute of Mental Health and Neuro Sciences, Bengaluru NIMHANS, National Mental Health Survey of India, 2015-16: Summary (Publication No. 128, 2016.)

    [2] ibid

    [3] Eera v State NCT of Delhi (2017) 15 SCC 133

    [4] Sarin, Alok, ‘On psychiatric wills and the Ulysses clause: The advance directive in psychiatry’ Indian Journal of Psychiatry (2012) 54(3) pg 206-207

    [5] Common Cause v Union of India (2018) 5 SCC 1

    [6] Gowthaman Ranganathan, ‘A Note on Advance Directive Under the Mental Healthcare Act, 2017’ (2020) 6.1 RSRR 165

    [7] Saurabh Anand, ‘Suicide in India: A Socio-Legal Perspective’ (2018) 8 GJLDP (October) 96

    [8] X v State of Maharashtra (2019) 7 SCC 1

    [9] Chadda RK, ‘Influence of the New Mental Health Legislation in India’ (2020) 17 BJPsych International 20

    [10] Harikumar Pallathadka, ‘A Critical Review Of India's Mental Healthcare Law’ European Journal of Molecular & Clinical Medicine (2021) 7, 8, 5896-5907.

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