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Mental Healthcare Act, 2017: The Need of the Hour

Mental health is a pervasive problem faced in India. A remarkable surge in mental health can be seen after the ratification of the United Nations Convention on the Rights of Person with Disabilities (UNCRPD) by the Government of India in 2007, which mandates the signatory countries to follow its recommendation, which led to the presentation of the Mental Healthcare Bill, 2013 in the Parliament. The Bill passed in 2017; thus, the Mental Healthcare Act of 2017 came into existence.

Mental health is an integral part of a person’s health, including its emotional, psychological, and social well-being. It is more than the absence of mental illness; it affects how a person thinks, feels, and acts.

Mental health is an essential aspect of every phase of life. A person’s mental health helps to determine how he deals with stress and makes choices as and when compared to others. It is not discussed openly in India; thus, no importance is given to a person’s mental health.

Mental Healthcare Bill, 2013

The Mental Healthcare Bill got introduced in the Rajya Sabha on 19th August 2013. The Mental Health Act, 1987, was repealed the Mental Health Care Bill, 2013. The bill’s objective was to ratify the United Nations Conventions on the Rights of Person with Disabilities in 2007. The convention mandates the country’s laws to align with the Convention. The earlier existing law neither protected the rights of the person with mental illness nor promoted access to mental health care. Thus, the New Bill got introduced.

Key features of the mental healthcare bill

The key features of the Mental Healthcare Bill are as follows:

  • The bill provides the right to the person with mental illness.
  • The bill confers the right on a mentally-ill person to make a directive on how he wants the treatment for his condition.
  • The bill created the central and state mental health authority, which is the administrative body to emphasise mental health and its related aspects.
  • The bill requires the registration of mental health establishments with the central or state health authority.
  • The bill specifies the procedures for the process and procedure for admission, treatment and discharge of mentally-ill individuals.
  • The mental health review commission board is a quasi-judicial body established to review the procedure to make the directive and advise the government to protect the rights of mentally ill persons.
  • The bill decriminalises suicide and prohibits electro-conclusive therapy.

Mental Healthcare Act, 2017

The Mental Healthcare Act 2017 was enacted in the year 2017 to provide mental healthcare and services to persons with mental illness. The Act came into force on 29th May 2018.

The act also promotes and fulfils the person’s rights during mental healthcare and services. It is progressive in nature and patient-centric, protecting the rights of the person with mental illness.

Mental illness

Mental illness, as defined under Section 2(1)(s) of the Mental Healthcare Act, 2017, is a substantial disorder related to thinking, mood, memory and other activities that impairs the judgement, behaviour and capacity of a person to recognise the reality or ability of a person to meet the ordinary demands of life. However, mental illness does not include mental retardation, which is a condition of incomplete development of the mind.

Mental illness gets defined as per medical criteria nationwide or overseas. Mental illness cannot get decided according to a person’s political, economic or social status; neither could it be determined based on cultural society, race or religious group or non-conformity with the community.

Advance directive

Chapter III of the Mental Healthcare Act, 2017 provides provision for the advance directive. Section 5 of the MHC Act, 2017, provides that every significant person has a right to make an advance directive in writing. He can make such advance directive for the following purpose:

  • How the person desires to be treated and taken care of for his mental illness?
  • How does the person not want to be taken care of and treated?
  • The individual he desires to be nominated as his representative.

The advance directive is made by the person irrespective of past mental illness. When a person ceases the ability to make decisions, it can invoke the advance directive. The directive remains in force until the person regains the ability to make decisions. A person under the capacity will override the decision.

Section 6 of the Act provides that the advance directive is to be made in the manner specified by the regulation of the Central Authority. The provisions concerning the advance directive do not apply to the emergency treatment as provided under section 9 of the MHC Act, 2017.

Rights of persons with mental illness

Chapter V of The Mental Healthcare Act, 2017, provides rights of the person with mental illness. The rights of the person with mental illness are as follows:

  1. Right to access mental health care: As per Section 18 of the Act, every person has a right to access mental health care. The right extends to getting the mental health services run or funded by the appropriate government. Accordingly, people living in India with mental illness can now avail themselves of the right to good quality and affordable health care. The doctors and staff at the mental health care facility shall not discriminate against anyone. Such discrimination cannot get done on any grounds such as gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability etc. One can visit the court to protect his rights if any grounds get violated. If one cannot afford the treatment of mental health, then the government must provide the treatment free of cost.
  2. Right to community living: According to Section 19 of the Act, the person with mental illness has the right to live in the community. He is neither denied the opportunity to dwell in the community nor excluded from it. The government must give a person the appropriate legal and other support if doing so is impossible.

    Also, if such a person in mental health is a woman, she cannot be separated from her child if such a child is less than three years of age. The child can only be separated from the mother if the doctor feels the child can get harmed.

  3. Protection from cruel, inhuman and degrading treatment: The person with a mental illness has the right to get protection against cruel, inhuman or degrading treatment. The Constitution of India provides a fundamental right to every person to live with dignity. Similarly, Section 20 of the mental health act provides the right to persons with mental illness to live with dignity.

    Thus, they have the right to live in a safe and hygienic environment, with proper sanitary facilities and facilities for leisure, education and religious practices.

  4. Consent and the power to make decisions: According to the Act, people with mental illness can decide on their health and treatment. The person can make such choices related to the mental illness with mental illness till he can understand the information related to the treatment and the consequences of the treatment. Also, the person must be able to communicate about such treatment.

    It means that no other person is eligible to make the decision or admit such a person to a hospital if such person is lucid and can understand what is happening to them. According to Section 21 of the act, a person with mental illness has a right to equality and non-discrimination. If he can understand the nature of the illness and its treatment along with its side effect, he has the right to make his own decisions.

  5. Right to information: Section 22 of the Act, provides every person with mental illness the right to information regarding his admission to the hospital and treatment. The information provided to him must be in the language and form that a person is receiving the information.
  6. Right to confidentiality: In sections 23 and 24 of the Act, the person with mental illness has the right to confidentiality. He is not required to divulge the facts of the illness to anyone, and he has this right even from the doctors treating him.

    The doctors are required to keep the details of your treatment confidential. Even the media cannot publish information regarding a person’s mental condition without his consent.

  7. Right to access medical records: Section 25 of the Act, provides that a person with mental illness shall have the right to access their medical records.
  8. Right to personal contact and communications: Section 26 of the Act, provides that the person with mental illness, who is admitted to the mental health establishment, has the right to refuse or receive or make phone calls at reasonable times and as per the norms of the establishments.
  9. Right to legal aid: Section 27 of the Act is entitled to receive free legal services.
  10. Right to complain about deficiencies in the provision of services: Section 28 of the Act provides the right to complain about deficiencies in care, treatment and services.

Duties of appropriate government

Chapter VI of the Mental Healthcare Act, 2017, deals with the duties of the Appropriate Government towards a person’s mental health. Appropriate Government, as defined under section 2 of the Act. It means the Central Government for the mental health establishment is owned and controlled by the central government.

If a mental health facility is located on state territory. In that case, it is owned and controlled by the state government, whereas if it is situated on union territory, it is owned or controlled by the union territory government.

Following are the duties of the appropriate government:

  1. Promote mental health and preventive programme: Section 29 provides that the appropriate government must plan and implement programmes to promote mental health and prevent mental illness in the country. The appropriate government also must plan, design and implement public health programmes to reduce suicides.
  2. Create awareness: Section 30 provides that the appropriate government should take measures to create awareness about mental illness. The government must give wide publicity to mental health through public media, television, radio, print or any other media. It is also necessary for the government to initiate programmes that reduce the stigma of mental illness.
  3. Development of human resources: Section 31 states that the government must take measures required to develop the human resource to provide mental health care services. The medical staff must be trained in public healthcare places and prisons to provide emergency mental healthcare.
  4. Coordinate with government: The government must ensure effective coordination between the ministry providing health care services and the departments dealing with the matter.

Mental Health Authority

The Mental Healthcare Act of 2017 provides provisions for establishing mental health authority at the Central and State levels.

Central mental health authority

Chapter VII of the Mental Healthcare Act, 2017 provides the provision for the establishment of the Central Authority. Section 33 of the MHCA, 2017, provides that the central government is required to create an authority to fulfil the functions provided under the Act. The authority so created is known as the Central Mental Health Authority.

Functions of central authority

Section 43 provides functions that the central authority is required to perform. Listed below are the functions of the Central Authority:

  • To register all the mental health establishments under the central government’s control and compile the information.
  • To develop the services and quality of the services provided by the mental health care establishments under the Central Government.
  • To supervise the mental health establishment and receive complaints about deficiencies in services related to the Mental Health Care establishment.
  • To create and maintain the register of mental health professionals.
  • To train all the people, including the mental health professionals, enforcement officials, etc., regarding the provisions and implementation of the Act.
  • To advise the central government.
  • To discharge any other function related to mental health care and related services.

State mental health authority

Chapter VIII of the Mental Healthcare Act, 2017 provides provision to establish the State Mental Health Authority. The Mental Health Authority is established under Section 45 of the MHC Act, 2017. Accordingly, every state government should establish an Authority within the act, known as the State Mental Health Authority.

Functions of the state mental health authority

Section 55 provides functions the State Mental Health Authority must perform. Listed below are the functions of the State Authority:

  • To register all the mental health establishments in the state except those referred to under section 43 of the MHC Act, 2017.
  • To develop the quality and service of the mental health establishments.
  • To supervise the mental health establishment in the state. Also, to receive the deficiencies in the provision of the services.
  • To register the clinical psychologist, mental health nurses and the list of mental health professionals and publish such lists.
  • To train the relevant professionals to meet the requirements of the MHC Act, 2017.
  • To discharge the functions related to mental health as decided by the state.

Mental health review board

Chapter XI of the mental health act provides provisions about the Mental Health Review Board. The mental health review commission is to be known as the quasi-judicial body. The body is responsible for periodically reviewing the use and procedure to make an advance directive and advise the government on protecting the rights of mentally ill persons.

The Central Government make rules concerning the mental health review board. The regulations for the mental health review board are made keeping in mind the following:

  • The workload upon the board in the state in which such board gets constituted
  • The number of mental health establishments in the state
  • The number of persons with mental illness in the state
  • The population in the district in which the board is to be constituted
  • The district’s geographical and climatic factors

Conclusion

Before the Mental Healthcare Act 2017, no such provision defined Mental illness. The act sets principles that the mental health professional needs to embrace. It decriminalises attempts to suicide, which is seen as the highlight of the act.

The Mental Health Act provides the provision related to advance directives. It bans inhumane treatment procedures. It fixes institutions by engaging them and maintaining the prescribed work standard. It provides punishments for the person who does not follow the Act.

FAQs

What is mental illness?

Mental illness is a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs the judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life.

What is the concept of an advance directive?

An advance directive, as the term suggests, means giving direction in advance regarding the way of treatment to the nominated representative. The advance directive, as per the provision of the Mental Healthcare Act, 2017, can only come into action if the patient cannot make his decision.

When did the Mental Healthcare Act of 2017 come into force?

The Mental Healthcare Act of 2017 came into force on 29th May 2018.

Does the Mental Healthcare Act of 2017 decriminalise the attempt to suicide?

Yes, the Mental Healthcare Act of 2017 decriminalises attempts to suicide and decriminalising the suicide attempt has become the highlight of the Act.

About Author

Anshita Surana, born in the year 1999 in Guwahati, Assam and brought up in Hanumangarh, Rajasthan, where I completed my elementary and secondary education from the CBSE board.

Currently, Pursuing B.B.A.LL.B(H) from K. R. Mangalam University, Gurugram.

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