Top
Know the Law

Peace Of Mind: An Examination Of The Mental Healthcare Act Of 2017

Raghav Tankha
11 Sep 2020 4:39 AM GMT
Peace Of Mind: An Examination Of The Mental Healthcare Act Of 2017
x
Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
599+GST
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

The times we go through has refocussed attention to the importance of maintaining good mental health and managing stress and anxiety properly. In India, apart from the age-old stigma attached to seeking mental health, another issue is being able to afford good mental healthcare. Private mental healthcare professionals, much like any others, would be out of the reach of people who are not well off.

Mental healthcare legislation in India was found to be lacking in various respects and had to be brought into conformity with the convention of the United Nations Rights of Persons with Disabilities and its optional protocol which India signed and ultimately ratified on the first of October in 2007. The mental healthcare bill was introduced in the Rajya Sabha in 2013 and eventually passed in 2017. The Act came into force in 2018 and is widely seen as a positive development in ensuring the proper and dignified treatment of persons who have a mental illness.

This Article seeks to examine the notable provisions of the Mental Healthcare Act and the Rehabilitation Council of India Act and examine the statutory framework prevailing in India pertaining to Mental Healthcare

The Mental Healthcare Act of 2017

The mental healthcare Act was passed on 7th April 2017 and came into force on 7th July 2018.

The purpose of the Act is "to provide for the mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare services and for matters connected therewith or incidental thereto."Section 2 is the definition clause anddefines of 'mental health establishment,' 'mental illness,' 'clinical psychologists, ' etc.[1]

Some of the important definitions for our purpose are being reproduced below:

  • "mental health establishment" means any health establishment, including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy establishment, by whatever name called, either wholly or partly, meant for the care of persons with mental illness, established, owned, controlled or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person, where persons with mental illness are admitted and reside at, or kept in, for care, treatment, convalescence and rehabilitation, either temporarily or otherwise; and includes any general hospital or general nursing home established or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person; but does not include a family residential place where a person with mental illness resides with his relatives or friends;
  • "mental illness" means 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, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;

Chapter V of the Act specifies the rights of persons with mental illness.

Section 18 (1) specifies that every person will have the right to access mental healthcare and treatment from mental health services, which are run or funded by the appropriate government. This right intends to make available affordable, good quality mental healthcare services without any discrimination in a manner that is acceptable to the persons of mental health illness and their families and caregivers.

The services which are mentioned in Section 18(1) are specified in Section 18(4). The definition is inclusive and not exhaustive. The government must make the following services available for people:

  • Acute mental healthcare services such as outpatient and inpatient services
  • Half-way homes, sheltered accommodation, supported accommodation
  • Mental health services to support the family of a person with mental illness or home-based rehabilitation
  • Hospital and community-based rehabilitation establishment and services
  • Child mental health services and old age mental health services.

Section 18(5) lays down the mandatory duties of the appropriate government with respect to mental health services. The Appropriate Government will either be the Central Government or the State Government or the Government of the Union Territory depending on whose jurisdiction a mental health establishment comes under.The duties of the Government include integrating health services into general healthcare services at all levels, ensuring that no person, including children, will be required to travel long distances to avail of mental healthcare and to make services available in all districts. The Government is also expected to reimburse expenses if there are no government services in the district and provide free services to persons living below the poverty line.

Section 20 intends to protect persons with mental illness from degrading treatment while they are admitted to a mental health establishment and include rights such as living in a safe and hygienic environment, having adequate sanitary conditions, wearing their own clothes and not being subject to the compulsory shaving off of their head, etc.

Section 23 gives a person with mental illness the right to the confidentiality of his mental health, mental healthcare and physical healthcare and bars all healthcare professionals providing care or treatment to a person with mental illness from releasing information unless it comes within the specified exceptions such as if there is any threat or harm likely to be caused to another person.

Section 27 provides the right to a person with mental illness to receive free legal aid to exercise any of his rights given under the Act.

Section 33 establishes the Central Mental Health Authority, and section 43 specifies the duties of the Authority. The Authority must supervise all the mental health establishments under the central government and maintain a national list of clinical psychologists, psychiatric social workers, and mental health nurses based on the information it receives from the State Authority. It must also train law enforcement officials and mental health professionals and meet twice a year.

Section 45 makes it mandatory for states to create a State Mental Health Authority. Section 55 specifies the functions of the State Authority. The State Authority must register all mental health establishments in the State and develop quality and provision norms for them. It is also expected to supervise all mental health establishments and receive complaints about deficiencies against them. It must also register clinical psychologists, mental health nurses, and psychiatric social workers and publish a list of such persons. The State Authority must meet at least four times a year.

Chapter X pertains to mental health establishments, and Section 65 makes their registration with the Authority mandatory unless exempted by the Central Government.

Once the Authority specifies minimum standards, all mental health establishments must meet them within six months from the date of which they have been specified. Only after the Authority is satisfied that the establishment meets the requirements will it issue the certificate of registrationIn order to be registered and to be continued to be registered, the Mental health establishment must fulfil the minimum standards of facilities and the minimum qualifications for the persons they are engaging.The Authority may categorise mental health establishments and specify different standards for different categories of mental health establishments. These standards must be introduced within a period of eighteen months from the commencement of this Act.

Section 66 specifies the procedure for registration of mental health establishments, and section 67 provides for the auditing of mental health establishments every three years to ensure that they are complying with the minimum standards for registration as a mental health establishment.

Section 68 provides the Authority with the powers to inspect and inquire on the basis of a complaint or suo- moto with respect to non-adherence of minimum standards specified under the Act. Appeals against the decision of the Authority will lie to the High Court (section 69)

Section 73 establishes mental health review boards to hear matters relating to persons with mental illness.

Offences and penalties have been specified in chapter XV of the Act and include fines and imprisonment.

The Rehabilitation Council of India Act 1992[2]

Since there is some ambiguity as to the requirement of registration of mental health professionals in the Mental HealthCare Act, we have to examine the provision of the Rehabilitation Council of India Act to resolve this ambiguity.

The Act of 1992 (amended in 2000) makes registration mandatory for certain categories of 'rehabilitation professionals' in order for them to practice in India. Section 2(n) defines this term as being as follows:

  • Audiologists and speech therapists
  • Clinical psychologists
  • Hearing aid and ear mould technicians
  • Rehabilitation engineers and technicians
  • Special teachers for educating and training the handicapped
  • Vocational counsellors, employment officers and placement officers dealing with handicapped
  • Multi-purpose rehabilitation therapists, technicians or
  • Such other category of professionals as the Central Government may, in consultation with the Council, notify from time to time

Such rehabilitation professionals have to mandatorily get themselves registered with the Rehabilitation Council of India in order to work in an institution or practice in any part of India.

Analysis and Conclusion:

The prime focus of the legislation is aimed at ensuring that the State recognises its obligation to try and improve the lives of persons with mental illness and proper treatment while they are admitted to a mental health establishment. The definition of mental illness itself is wide and would include within its sweep everything from anxiety, to more severe ailments like depression, schizophrenia, etc.

The Authorities under the Act are the central and State Mental Health Authorities and also Mental Health Review Boards.

The Central and State Mental Health Authorities are tasked with overseeing mental health establishments and ensuring that they meet minimum standards and to maintain a list of such establishments. The Authorities are also given the power to initiate complaints on their own motion or on receipt of complaints as to non-adherence to the minimum requirements by mental health establishments. Mental health establishments must also be audited every three years. Thus it is clear that the focus of the Act is aimed at regulating these mental health establishments.

The Delhi Government has formed the State Mental Health authority as required by the Act and specified the minimum standards[3] to be met for being registered as a mental health establishment and has also published a list of such establishments that can easily be accessed on the internet.[4][5] Not all states have constituted a State Mental Health Authority and rules, for instance Goa is yet to do so[6]. The registration of mental healthcare professionals in the State and making a list easily accessible is extremely important and beneficial to any person desirous of availing of mental health services as they can access the list of the professionals in their State. This is a benefit that applies across the board as even those persons who can afford mental healthcare can see an organised list of recognised mental health establishments. The fact that these establishments have been recognised by the State Mental Health Authority would give at least some credibility to the mental health professionals as to fulfilling the minimum requirements. Therefore, there would be some background checks of such professionals who are publicly listed. This exercise should be undertaken by all the states in India and be provided to the Central Mental Health Authority at the earliest.

There is ambiguity as to whether all categories of mental health professionals will come under the purview of the Act and have to get themselves registered. The definition of mental health establishments is inclusive; however, the way it is worded does not suggest that individual mental health professionals who do not operate out of an establishment would be covered under its ambit and have to get themselves registered.

As per the Rehabilitation Council of India Act, the only kind of psychologists who have to get themselves mandatorily registered to practice are clinical psychologists. Unlike in other countries such as the United States of America, there is also no need to give a written exam in order to become licensed to practice in India. One possible solution is for the Central Government, in consultation with the Council to add all categories of mental health professionals who are practicing or desirous of practicing in India. Thus, while the Mental Healthcare Act is focussed on ensuring that mental health establishments function properly, a suitable notification by the Central Government adding more categories of professionals such as therapists/ counselling psychologists to the definition of a rehabilitation professional may be one of the possible solutions to remedy this problem.

However, given that the Rehabilitation Council of India is perceived by persons working in the field as not being inclusive and having good standards of practice, the better solution would be to form a separate body or an association which regulates and registers all categories of mental health professionals and makes sure everyone practicing in India is registered. There should also be a written examination to become licensed to practice as a mental health professional/ therapist in India.

In Conclusion, the enactment of the Act is a welcome step in trying to ensure the maintenance of some minimum standards in mental healthcare establishments, keeping them in check and making the same access available to all classes of citizens. However, there is a need to either amend the law in a way so as to include everyone in its ambit and bring the requirements to practice up to international standards.

Next Story
Share it