ADVANCING MENTAL HEALTH RIGHTS, AN ANALYSIS OF THE MENTAL HEALTHCARE ACT, 2017

Suhana,

Punjab School of Law, Punjabi University, Patiala, Punjab

 1. INTRODUCTION:

The Mental Healthcare Act, of 2017 is a comprehensive legislation concerning all aspects of mental healthcare from treatment to medication to kind of doctors to definitions. Additionally, the Act also offers certain important Rights that should be made available to any person who is suffering from mental illness. The said Act particularly became more important with the rise in mental illness cases after 2020. There has been a steep rise in patients with mental illness since the coronavirus outbreak in the country. In a recent survey conducted by the Indian Psychiatry Society, the sudden rise in those suffering from mental illness is up to 20 percent. According to the study, at least one out of every five Indians is suffering from mental illness.[i]

The holistic definition of healthcare has undoubtedly come to be accepted all over the world nowadays. Healthcare encompasses a composite union of physical, spiritual, mental, or social dimensions. According to WHO, Mental health is a state of well-being in which an individual realizes his or her abilities, can cope with the normal stresses of life, can work productively, and can contribute to his or her community.[ii]

In simple terms, mental health is crucial as it directly impacts our ability to make decisions. Specifically in Indian society, there are rarely any open discussions regarding this issue. Even if someone discloses this, then they don’t receive the necessary support from their family or friends and suggest it of being a temporary thing that can be treated on its own. This is because of the lack of awareness, the social stigma attached to it, and the inadequate existing infrastructure. This lack of support further leads to severe consequences for the person and his Family and ultimately for the Nation and Society. Therefore, proper medication facilities must be available for mental healthcare services.

2. HISTORICAL CONTEXT:

The Indian lunacy act, of 1912[iii] was one of the earliest legislations regarding mental health in India. However, it was mainly concerned with custodial care of people with mental illness which meant that there was no treatment and rehabilitation. Later, in post-independent India, the Mental Healthcare Act of 1987[iv] replaced the Indian lunacy act, of 1912. It focused on the treatment but here, human rights were completely ignored.

Therefore, a new legislation was enacted to align with the international obligations i.e.  UNCRPD (The United Nations Convention for Rights of Persons with Disabilities)[v]. India has signed and ratified this convention on 1st October 2007.

The Mental Healthcare Act, 2017 was passed by the Rajya Sabha and the Lok Sabha in August 2016 and March 2017 respectively. The Act got presidential assent on 7th April 2017 and was notified by the Central Government on 29th May 2018.

3. OBJECTIVES OF THE ACT:

The Mental Healthcare Act 2017 has 16 Chapters and 126 Sections. The Preamble to the Act lays down two important objectives:

· Providing Mental Healthcare services for persons with mental illness.

· Protect, Promote, and Fulfil the rights of persons with mental illness during the delivery of health care services.

4. RIGHTS OF PERSONS WITH MENTAL ILLNESS (Sec 18-28):

Chapter V of the Act constitutes the Heart and Soul of this Act as it clearly articulates the Rights that a person with mental illness is entitled to.

1. Right to access mental health care (Sec 18): S. 18 of the Act states that mental healthcare services and treatment should be accessible to all from mental health services run or funded by the government. This means that the state must provide all types of mental health services The section also clarifies that the term ‘accessible’ is inclusive of good quality, affordable, geographically accessible, and available to all without any discrimination based on certain grounds. It further clarifies if the right to access mental health care is not available from the community health center and upwards that is taluka level and district level, then compensation has to be provided to persons with mental illness for seeking treatment somewhere else. Also, free treatment has to be given to the below-poverty-line patients or the destitute. right to access treatment also means long-term care like rehabilitation services, supported accommodation and sheltered accommodation have also been mentioned.

2. Right to community living (Sec 19): It states that every person with mental illness has a right to live in society and not to be separated from it. In case it is impossible to live with family or the family has abandoned that person, the government has to provide him with legal aid so that he can exercise his right to the family home. S. 21(2) provides that every mother with mental illness whose child is under 3 years of age shall not be separated from him/her. However, in case of risk of harm to the child, they can be reasonably separated with a review of this decision every 15 days.

3. Right to protection from cruel, inhuman, and degrading treatment (Sec 20): The right to live with dignity is a basic fundamental right provided under the Indian constitution. The mental healthcare act has specifically reiterated it for the person with mental illness. The person should be protected from a cruel, inhumane, or degrading environment. S. 20 mentions some rights that would constitute dignity such as the right to a safe and hygienic environment, adequate sanitation facilities, right to privacy, proper clothing, recreational education and religious practices, and protection from all forms of physical, verbal, emotional, or sexual abuse. These rights have come out of various recommendations and judgments of courts on the issue of bad treatment meted out to persons suffering from mental illness.

4. Right to equality and non-discrimination (Sec 21): S. 21 states that every person with mental illness shall be treated as equal to a person with physical illness in the provision of the following healthcare:

· There shall be no discrimination on certain grounds.

· The same quality of emergency services and facilities should be provided.

· Provision of ambulance services in the same manner, extent, and quality.

· Living conditions in health establishments shall be of the same manner, extent, and quality.

· Any other health services.

5. Right to information (Sec 22): it states that the person with mental illness and his nominee shall have access to information regarding the provisions under which he has been admitted, the nature of the mental illness, the treatment plan, etc.

6. Right to confidentiality (Sec 23 & 24): the act imposes a duty on all mental healthcare professionals to maintain the confidentiality of all the information obtained during the treatment related to mental health, mental treatment, physical health, etc. It also lays out certain exceptions wherein it is reasonable to disclose such information. No photograph or any information shall be released of the person without his consent.

7. Right to access medical records (Sec 25): S. 25 lays down that the person suffering from mental illness shall have access to all his basic medical records. These basic medical records have been mentioned in form B of the Mental Healthcare Rules, 2018. Further, it states that such records can be withheld by the mental health professional in case of the likelihood of serious harm to the person with mental illness or other persons. The professional must inform the person to appeal to the medical health review board for the release of such information.

8. Right to personal contact and communication (Sec 26): This provision provides the right to a person with mental illness to refuse or receive visitors, telephonic conversations, and emails. However, this discretion does not apply in cases wherein telephones or emails are from:

· Any Judge or officer authorized by a competent court

· Members of the concerned Board, the Central Authority, or the State Authority

· Any member of the Parliament or a Member of the State Legislature

· Nominated representative, lawyer, or legal representative of the person

· Medical practitioner in charge of the person’s treatment

· Any other person authorized by the appropriate Government

9. Right to legal aid and complaint (Sec 27 & 28): S. 27 is very crucial as it provides the means of access to the rights provided under this Act. it states that the person with mental illness shall be entitled to receive free legal aid to exercise his rights under this Act. S. 28 further states that the person or his nominated representative shall be entitled to complaint regarding any deficiencies in the medical services.

5. DUTIES OF THE GOVERNMENT(29-32):

The MHCA imposes a duty on the government to promote public awareness of mental health and the human resource development of persons with mental illness. Sec 29 – 32 of the Act lays down the following duties of the government:

1. The government must design, plan, and implement programs and policies for the promotion of mental health and prevention of mental illness. These policies should also specifically be made for the prevention of suicides and attempted suicides in the country.

2. the government should take measures to create awareness about mental health and illness among the general public. For this purpose, this Act must be widely publicized through public media. The government officials shall periodically conduct awareness and sensitization training. The government must implement programs to reduce social stigma in society towards persons with mental illness.

3. The government must collaborate with institutions of higher education and training to address the human resource requirements of mental health services in the country.

6. IMPLEMENTING AUTHORITIES:

Three implementing authorities have been notified under the Act. These are:

· Central Mental Health Authority (S. 33 – 44):

1.1 Composition: The Act provides for the establishment of a Central Mental Health Authority within 9 months from the date on which the Act receives Presidential assent. The members are nominated by the Central Government. The composition of the Central Authority has also been provided by the Act. The Secretary or  Additional Secretary in the Department of Health and Family Welfare is the ex officio chairperson of the Central Authority. It also includes specialized talent in the form of members from the various other related Departments such as the Department of AYUSH, the Department of Disability Affairs of the Ministry of Social Justice and Empowerment, and the Ministry of Women and Child Development. It also includes one clinical psychologist, one psychiatric social worker and two persons representing persons who have or have had mental illness. The members can hold the office for a term of three years or till attaining the age of seventy years.

1.2 Functions: The Act lays down that on the establishment of this Central Mental Healthcare Authority, all the assets and liabilities of the Central Authority for Mental Health Services constituted under the Mental Health Act, 1987 shall be transferred and vested to this newly established authority. Sec. 43 of the Act provides the following functions of the Central Authority:

1. Registering and maintaining the registrations of all mental health establishments under the central and state government along with coordination of the state mental health authorities. 

2. Develop quality and service provision norms for different types of mental health establishments under the Central Government.

3. Supervision of all mental health establishments under the central government.

4. Advise the Central Government on all matters relating to mental healthcare and services.

5. Train all persons including law enforcement officials, mental health professionals, and other health professionals about the provisions and implementation of this Act.

· State Mental Health Authority (S. 45 – 56): Similar to the Central Authority, the Act states the composition of the State Mental Health Authority. It states that all the assets and liabilities of the State Authority for Mental Health Services constituted under the Mental Health Act, 1987 shall be transferred to the State Authority. The following are the functions of the State Authority:

1. Register mental health establishments in the State and maintain and publish a register of such establishments.

2. Develop quality and service provision norms for different types of mental health establishments in the State.

3. Supervise all mental health establishments in the State and receive complaints about deficiencies in the provision of services.

4. Register clinical psychologists, mental health nurses, and psychiatric social workers in the State to work as mental health professionals, and publish the list of such registered mental health professionals in such manner as may be specified by regulations by the State Authority.

5. Train all relevant persons including law enforcement officials, mental health professionals, and other health professionals about the provisions and implementation of this Act.

6. Discharge such other functions concerning matters relating to mental health as the State Government may decide.

Further, the Act also lays down provisions regarding the Mental Health Establishments (S. 65 – 72) and Mental Health Review Boards (S. 73 – 84).

7. OFFENCES AND PENALTIES: 

Chapter XV(Sec 107-109) lays down the penalties for offences under this Act. These can be classified into three kinds of offences:

1. Penalties for establishing Mental Health Establishment in contravention of this Act (S. 107): S. 107(3) states that the penalty under this section shall be adjudicated by the state authority. If the person fails to do so, the order would be transferred to the collector of a district where the person owns any property to be recovered as arrears of land revenue. All the sums by way of Penalty shall be credited to the Consolidated Fund of India.

2. Penalties for contravention of provisions of this act or rules, and regulations made thereunder (S. 108).

3. Offences by Companies (S. 109): S. 109 states that the person in charge of the company or otherwise responsible for company affairs at the time when the offence is committed shall be deemed guilty and liable for the punishment. However, if the person proves that the offence was committed without his knowledge or he has taken due diligence, then he won’t be liable for the offence.

OFFENCES

 

PENALTIES

1. Carrying Mental Health institution without registration.

First contravention

5,000 – 50,000 Rs.

 

second contravention

50,000 – 2,00,000 Rs.

 

For every subsequent contravention

2,00,000 – 5,00,000 Rs.

2.MentalHealth Professional knowingly serving in such institution.

 

25,000 Rs.

3. Contravention of this Act or rules and regulations made thereunder.

First contravention

Imprisonment- 6 months/fine of 10,000 Rs. Or both.

 

Subsequent contravention

Imprisonment- 2 years/fine – 50,000- 2,00,000 Rs. Or both

8. DECRIMINALIZING THE SUICIDE ATTEMPT:

Sec. 309 of the Indian Penal Code states that whoever attempts to commit suicide or does any act of commission of such offence shall be punished with imprisonment which may extend to 1 year or fine or both. This made it apprehensive for the survivors to get help.

The Mental Healthcare Act of 2017 is a landmark legislation in this regard as it decriminalised the suicide attempt. Section 115 of the act states “presumption of severe stress in case of attempt to commit suicide”. It states that unless otherwise proved, it shall be presumed in case of an attempt to commit suicide that the person had severe stress and he shall not be tried and punished under the Indian penal code. 115(2) further states that the government should provide care, treatment, and rehabilitation to such persons to minimize the risk of recurrent such attempts. While the Mental Healthcare Act, 2017 (MHCA) decriminalizes attempted suicide for all practical purposes, section 309 of the IPC continued to remain a legal provision resulting in considerable confusion among relevant stakeholders on how the MHCA provision and section 309 interact in daily clinical practice.[vi]

However, a remarkable shift has been seen with the passing of new criminal laws. The Bhartiya Nyaya Sanhita, 2023 which has replaced the Indian Penal Code does not have provisions criminalising attempt to suicide. However, attempted suicide with the motive of preventing a public servant from doing his duty is still punishable under Sec. 224 of the Bhartiya Nyaya Sanhita, 2023 (BNS, 2023).

9. STRENGTHS AND WEAKNESSES OF THE ACT:

· Strengths of the Act:

1. The Rights provided under Chapter V constitute the heart and soul of this legislation. These ensure the protection of rights of dignity, privacy, and healthcare of persons with mental illness.

2. The remarkable thing that the MHA has done is the decriminalization of attempted suicide. it recognizes the need for care rather than punishment for such persons.

3. The Act allows individuals to specify their treatment preference in advance called Advanced Directives under this Act. It respects the autonomy of such persons.

4. The act specifies the establishment of central and state mental health authorities to regulate the implementation of the services as provided under this Act.

5. The Act clearly states the responsibility of the government regarding provisions for persons with mental illness.

·Weaknesses of the Act:

1. There are significant gaps in the implementation of this legislation. It is especially challenging in the case of rural areas because of adequate infrastructure and awareness

2. there is a lack of awareness and sensitization among the public regarding mental health and the legislation available.

3. inadequate funding and shortage and trained medical professionals pose a constraint in the implementation of the Act.

10. RECOMMENDATIONS AND FUTURE DIRECTIVES:

1. The infrastructure and resources for implementation of this Act need to be strengthened. In rural areas, building basic mental healthcare infrastructure should be a priority of the government.

2. Awareness campaigns must be organized to educate people about mental health, mental healthcare services, and the rights available to such persons under this Act.

3. Comprehensive training programs should be provided to mental health professionals. They must be well aware of the provisions of this Act.

4. More funds need to be allocated to this sector as mental health illnesses are grappling more among the youth.

5. Mental healthcare should be integrated with general healthcare services to provide inclusive and holistic care. This will also help in reducing the problem of social stigma related to mental illness.

6. Research and development concerning mental health need to be promoted to evolve better healthcare practices.

7. Learning from the best practices of other countries through collaborations at the international level will help in improving our healthcare system.

11. CONCLUSION:

The Mental Healthcare Act is a significant legislation that aims to provide comprehensive and holistic care and protection to persons with mental illness and promote non-discrimination. It is a progressive step that also aligns with international standards and India’s international commitments. While the Act has made significant progress, continuous efforts are needed to overcome the implementation challenges and realize its full potential.

12. REFERENCES:

1. The Mental Healthcare Act, ( Act No. 10 of 2017), https://www.indiacode.nic.in/bitstream/123456789/2249/1/A2017-10.pdf, (Last Accessed: 1st August 2024).

2. The Mental Health Act, (Act No. 14 of 1987), https://ncwapps.nic.in/acts/THEMENTALHEALTHACT1987.pdf ( Last Accessed: 1st August 2024).

3.  Final Draft Rules, MHC Act, 2017, Ministry of Health and Family Welfare, Government of India, https://main.mohfw.gov.in/sites/default/files/Final%20Draft%20Rules%20MHC%20Act%2C%202017%20%281%29.pdf (Last Accessed: 1st August 2024).

4. Mental Healthcare Act (2017) The Roadmap Ahead, http://www.businessworld.in/article/Mental-Healthcare-Act-2017-The-Roadmap-Ahead/09-10-2017-127980/ (Last Accessed: 1st August 2024).

5. Influence of the New Mental Health Legislation in India, Rakesh K. Chadda, National Library of Medicine, National Center for Biotechnology Information, Government of United States, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8277537/ (Last Accessed: 1st August 2024).

6. Mental Health Care and its Management, Standing Committee Report, PRS Legislative Research, Government of India, https://prsindia.org/policy/report-summaries/mental-health-care-and-its-management (Last Accessed: 1st August 2024).

[i] 20% increase in patients with mental illness since coronavirus outbreak: Survey, India Today, 31 May 2020, https://www.indiatoday.in/india/story/20-per-cent-increase-in-patients-with-mental-illness-since-coronavirus-outbreak-survey-1661584-2020-03-31 (Last Accessed: 19th July 2024).

[ii] WHO Health and Well Being, World Health Organisation, https://www.who.int/data/gho/data/major-themes/health-and-well being#:~:text=Mental%20health%20is%20more%20than,socioeconomic%2C%20biological%20and%20environmental%20factors (Last Accessed: 19th July 2024).

[iii] The Indian Lunacy Act ( Act No. IV of 1912), https://www.indastream/123456789/11080/1/indian_lunacy_act_1912.pdf (Last Accessed: 19th July 2024).

[iv] The Mental Healthcare Act, (Act No. 14 of 1987), https://ncwapps.nic.in/acts/THEMENTALHEALTHACT1987.pdf (Last Accessed: 19th July 2024).

[v] Convention on Rights of persons with Disabilities and optional Protocol. United Nations, https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (Last Accessed: 19th July 2024).

[vi] Ramya Pillutla, Decriminalising attempted suicide in India: the new Penal code, IMHO, 30th Oct 2023, https://cmhlp.org/imho/blog/decriminalising-attempted-suicide-in-india-the-new-penal-code/ (Last Accessed: 21st July 2024).