India's Mental Healthcare Act 2017

Many countries in the World, mostly erstwhile British Colonies, have separate laws for persons with mental illness PwMI). In British India separate laws were passed for them (then called lunatics); to keep them in lunatic asylums away from the community as they were a risk for others in the community. These lunatic asylums, consisting of closed barracks, were generally in the neighbourhood of jails, outside the cities and were under the control of the Inspector General of Prisons. Slowly the concepts changed and the process of reforms started. Today, we believe that PwMI should live in the community and the rights taken away from them through laws framed in mid nineteenth and early twentieth century should be restored and they should enjoy the same rights as the others with physical illnesses.

The Mental Healthcare Act 2017 (MHCA 2017) provides protection to PwMI of their rights related to their illness and treatment in accordance with the United Nations Convention of the Rights of persons with Disability (UNCRPD). The Preamble of the MHCA 2017 states that as India has signed and ratified the UNCRPD, it is necessary to align and harmonise the existing laws with the Convention. UNCRPD is the human rights convention concerning persons with disabilities (PwDs) including PwMI. It contains rights of PwDs aimed to improve their access to society, education and employment. UNCRPD was adopted by the General Assembly of the UNO on 13th December 2006, which India signed on 30th March 2007, the day it was opened for signature. India ratified it on 1st October 2007. It came into force on the 3rd May 2008, the day it was signed by the 20th member state.

By signing the CRPD, India committed that it would follow the convention and would not do anything which might violate human rights of PwDs. By ratification, India committed that it shall take legislative, administrative, adjudicative, and programmatic measures to implement the convention towards the promotion, and protection of human rights, including fundamental freedom of PwDs.

The Mental Healthcare Bill was passed by the Lok Sabha on 27th March 2017 and Rajya Sabha on 30th March 2017. It received the President of India’s Assent on the 7th April 2017. It was notified by the Government on 29th May 2018. Beneficial features of the MHCA 2017 are given below, with sections from the Act and Rules quoted. The quoted numbers in brackets indicate the section, the sub-section and the clause of the Act respectively.

Capacity to make mental healthcare and treatment decisions

The Act recognises the right of PwMI to make decisions regarding their mental healthcare and treatment, with the presumption, that they have the capacity to do so unless proven otherwise. (4) Every person shall have a right to make an Advance Directive (AD) stating how he wishes, his mental illness to be treated and cared and how not to be. (5)

Every person shall have a right to appoint a Nominated Representative (NR) to support him, in case of need, in taking treatment related decisions. (5.c, 14.1 & 17)

Treatment Related Rights

  • Right to access to mental health care, treatment and services run or funded by the Government which shall be affordable, of good quality, in sufficient quantity, available nearby and without any discrimination (18.1 &2)
  • Free mental health services and treatment at state run or funded health establishments to BPL persons (with or without BPL cards), destitute or homeless (18.7)
  • Mental health services of equal quality as other general health services without any discrimination (18.8)
  • Medicines on the essential drug list, free of cost to all the PwMI, at all times, at all the MHEs run or funded by the Government (18.10)

Rights in a Mental Health Establishment

  • Protection from cruel, inhuman and degrading treatment (20.2)
  • Safe and hygienic living environment, proper sanitation and facilities for leisure, recreation, education, religious practices and privacy (20.2.b, c & d)
  • Proper and dignified clothing to prevent exposure (20.2.e)
  • Wholesome food, sanitation, space and access to articles of personal hygiene (20.2.h)
  • Right to refuse work and receive appropriate remuneration for the work done. ( 20.2.f)
  • Protection from all forms of physical, verbal, emotional and sexual abuse ( 20 k)
  • Right to move to a less restrictive community based establishment, when it is no longer required to stay in a more restrictive mental health establishment (19.3)

Human Rights in a Mental Health Establishment

  • No forced tonsuring (20.2.i)
  • No compulsion to wear uniforms (20.2.j)
  • No discrimination on any basis - gender, sex, sexual orientation, religion, culture, caste, political beliefs, class or disability (21.1.a)
  • Right to information (22)
  • Right to confidentiality (23)
  • Right to access medical records (25)
  • Right to personal contacts and communication (26)
  • Right to legal aid (27)
  • Right to complain about deficiencies in services (28)

Services by the State

  • Adequate acute mental health care services, both for outpatients and inpatients (18.4.a)
  • Services such as Half way Homes, Sheltered Accommodation, Supported Accommodation (18.4.b)
  • Services to facilitate Home Based Rehabilitation (18.4.c)
  • Setting up of Community Based Rehabilitation Establishments (18.4.d)
  • Integrated Mental Health Services as a part of general health care services (18.5a)
  • Treatment to PwMI in a manner which inter alia helps their living in the community and with their families (18.5.b)
  • Setting up of MHEs across the country to ensure that no PwMI has to travel far for treatment (18.5.d)
  • Reimbursement of the cost of treatment in a non-government health establishment if the state run mental health services are not available within a district (18.5.f)
  • Quality mental health services to be provided by the state on par with general health services (18.8)
  • Medicines on the essential drug list to be made available free of cost at all times at all the MHEs run or funded by the Government (18.10)

Prohibitions and Restrictions

  • No Electroconvulsive Therapy (ECT) without anesthesia and muscle relaxant (95.1.a)
  • Restriction on Electroconvulsive Therapy (ECT) for minors (95.1.b)
  • No sterilization as a part of treatment (951.c)
  • No chaining (95.1.d)
  • Restriction on Psychosurgery (96)
  • No solitary confinement (97)
  • Restriction on Physical Restrain (97)

Miscellaneous Provisions

  • A less than three year old child not to be separated from inpatient mother unless the severity of her illness poses a threat to the child's life or health (21.2)
  • Insurance Companies to make provisions for medical insurance for the treatment of mental illness on the same basis as for the treatment of physical ailments (21.4)
  • Free legal services to exercise rights available under the Act (27.1)
  • Measures to reduce stigma associated with mental illness (30)
  • Registration in place of licence for MHEs (65)
  • Provision for Emergency Treatment (94)
  • Police to take under protection any person found wandering who appears to have mental illness and is incapable of taking care of himself or is a risk to himself or others by reason of mental illness (100).
  • Decriminalisation of attempt to commit suicide; those with attempted suicide to be rehabilitated by the Government as opposed to prosecution. (115)

In conclusion

  • It is early to make an assessment about the Act.
  • No law of the land is perfect.
  • No law can fully satisfy all the stake holders.
  • No law is forever; it can be amended when required and even replaced by a new law.
  • MHCA 2017 extends substantial benefits to PwMI, and protects their human and health related rights.
  • The Act is progressive and in tune with the changing times.
  • Some of the provisions may pose challenges for the families.
  • The state may not find resources for some of the cost intensive benefits.
  • Intense advocacy will be required to find resources to implement the provisions of the Act and the Rules made under it.
  • While, being optimistic about the Act, there is a need to wait and watch for its implementation.
Amrit Bakhshy
Amrit Bakhshy is president of SAA since 2010, and has authored a book on mental health and caregiving, which is available in English and Marathi. He is also on the Institution Body of NIMHANS and chairperson of their Hospital Management Committee.
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