An Anal­y­sis of the Men­tal Health­care Act, 2017

Libertatem Magazine - - News Story - Niy­ati Raval

The Union govern­ment has re­cently launched the Na­tional Health Pol­icy, 2017, which fo­cuses on pro­vid­ing bet­ter treat­ment, rights, and le­gal reme­dies for pa­tients. It separately fo­cuses on treat­ment for men­tally chal­lenged pa­tients. So, the par­lia­ment has re­cently passed the Men­tal Health­care Bill, which re­peals and re­places the Men­tal Health Act, 1987. It was pub­lished on 7th April 2017 in the Of­fi­cial Gazette of In­dia. It pro­vides for pro­tect­ing and restor­ing prop­erty rights of men­tally ill per­sons. The Men­tal Health­care Act, 2017 pro­vides statu­tory rights to men­tally chal­lenged and psy­chic pa­tients in the form of a right to ac­cess men­tal health­care and treat­ment. It also pro­vides for pro­ce­dure and process of ad­mis­sion, treat­ment and dis­charge of pa­tients.

Back­drop of Men­tal Health­care Act, 2017

Since the ad­vent of mankind on this planet, men­tal dis­or­ders have re­mained one of the un­solved puzzles faced by the med­i­cal fra­ter­nity. Some­times, men­tal re­tar­da­tion, which ex­ists by birth, is also treated at par with a men­tal dis­or­der. How­ever, this is not the case. There may be ‘n’ no. of fac­tors af­fect­ing the men­tal health of a per­son. Psy­chol­o­gists have tried to trace the causes of said dis­or­ders, viz. de­pres­sion, com­plexes, ha­rass­ments faced dur­ing child­hood/ ju­ve­nile pe­riod, etc. In an­cient times, peo­ple suf­fer­ing from men­tal dis­or­ders were dis­crim­i­nated and os­tra­cized. They were also made to un­dergo phys­i­cal tor­tures and chained in closed rooms or in even more in­hu­mane con­di­tions. Even in the mod­ern times, cer­tain so­ci­eties con­tinue the same prac­tices.

Many so­ci­eties con­sider that men­tally ill per­sons can­not be cured. Men­tal health­care is one of the ne­glected ar­eas in the med­i­cal field in In­dia. The so-called mod­ern treat­ments are some­times in­hu­mane for men­tally ill pa­tients with­out prior writ­ing to them. But, the new Act pro­vides for an ‘ad­vance di­rec­tive’ in writ­ing, which is not for mi­nors, stat­ing how they want to be treated for the par­tic­u­lar ill­ness, and which has to be vet­ted by the med­i­cal prac­ti­tioner. The pa­tient can have a ‘nom­i­nated rep­re­sen­ta­tive’, in­form­ing choices of the pa­tient to have men­tal treat­ment. The Act re­places the Men­tal Health Act of 1987. Pub­lic health is a sub­ject of the State List. The Bill man­dates the Cen­tral and State gov­ern­ments to pro­vide and en­sure bet­ter treat­ment and ac­cess to health ser­vices in ev­ery dis­trict.

Ear­lier, men­tal health es­tab­lish­ments in­cluded only the psy­chi­atric nurs­ing homes and hos­pi­tals. But now, un­der the Act, Ayurveda, Yoga and Naturopathy, Unani, Sid­dha and Home­opa­thy es­tab­lish­ments con­trolled by govern­ment are also in­cluded. It also states that any men­tal health es­tab­lish­ment has to be reg­is­tered with a Cen­tral/state men­tal health author­ity. It puts an obli­ga­tion on the Cen­tre and State level med­i­cal in­sti­tu­tions to main­tain a list of men­tally ill pa­tients un­der­go­ing treat­ment. The State author­ity shall also pre­pare a reg­is­ter of the pro­fes­sion­ally qual­i­fied per­son­nel to pro­vide health­care ser­vices. Salient Fea­tures of the Act

Firstly, it broad­ens the def­i­ni­tion of the men­tal dis­or­der. It does not in­clude men­tal re­tar­da­tion. The for­mer in­cludes sub­stan­tial dis­or­der of think­ing, mood, per­cep­tion, ori­en­ta­tion or mem­ory that grossly im­pairs judg­ment, be­hav­ior, ca­pac­ity to rec­og­nize re­al­ity or abil­ity to meet the or­di­nary de­mands of life, men­tal con­di­tions as­so­ci­ated with the abuse of al­co­hol and drugs, while the lat­ter is a con­di­tion of ar­rested or in­com­plete devel­op­ment of a per­son ‘s mind, es­pe­cially char­ac­ter­ized by sub-nor­mal­ity of in­tel­li­gence. Sec­ondly, it guar­an­tees rights re­gard­ing prop­erty, and the man­ner of bet­ter treat­ment. For chil­dren, there are child men­tal health­care ser­vices and for se­nior ci­ti­zens, spe­cific ser­vices made. The ap­pro­pri­ate govern­ment author­ity shall en­sure that no dis­crim­i­na­tion be made in the qual­ity of ser­vices pro­vided to men­tal chal­lenged per­sons. The Bill states that ev­ery per­son would have the right to spec­ify how he would like to be treated for men­tal ill­ness in the event of a men­tal health sit­u­a­tion. They will also spec­ify the per­son re­spon­si­ble for tak­ing de­ci­sions with re­gard to their treat­ment, ad­mis­sion into a hospi­tal, etc.

The Bill guar­an­tees ev­ery per­son the right to ac­cess men­tal health­care and treat­ment from the govern­ment. This right in­cludes af­ford­able, good qual­ity, and easy ac­cess to fa­cil­i­ties such as min­i­mum men­tal health ser­vices in ev­ery dis­trict. Per­sons with men­tal ill­ness also have the right to equal­ity of treat­ment, and pro­tec­tion from in­hu­man and de­grad­ing treat­ment.

Cur­rently, at­tempt­ing sui­cide is pun­ish­able with im­pris­on­ment for up to a year and/or a fine. The Bill de­crim­i­nal­izes sui­cide. It states that who­ever at­tempts sui­cide will be pre­sumed to be un­der se­vere stress, and shall not be pun­ished for it. There­fore, Sec­tion 309 of In­dian Pe­nal Code will be read as this one. The elec­tro con­vul­sive ther­apy will only be al­lowed with the use of anes­the­sia and, more­over, out of bounds for mi­nors.

The Bill re­quires that ev­ery in­sur­ance com­pany shall pro­vide med­i­cal in­sur­ance for men­tally ill pa­tients on the same ba­sis as is avail­able for those with phys­i­cal ill­nesses.

A per­son with a men­tal ill­ness ad­mit­ted to a men­tal health es­tab­lish­ment shall have the right to refuse or re­ceive vis­i­tors, sub­ject to the norms of such men­tal health es­tab­lish­ments.

The con­cerned author­ity needs to ful­fill the cri­te­ria, as men­tioned in the bill. Any es­tab­lish­ment has to be reg­is­tered with the ap­pro­pri­ate Cen­tral/state men­tal health author­ity. Gen­eral pun­ish­ment of im­pris­on­ment up to 6 months, or a penalty up to Rs.10,000, or both, is pro­vided in the Act. It pro­vides the pro­ce­dure and process for ad­mis­sion, treat­ment, and dis­charge of pa­tients. The said Act also calls for es­tab­lish­ing Men­tal Health Re­view Com­mis­sions at State level, and Men­tal Health Re­view Boards in dis­tricts, re­spon­si­ble for re­view­ing the pro­ce­dure to make ad­vance di­rec­tives, and ad­vis­ing the govern­ment on im­ple­ment­ing a men­tally ill per­son’s rights.

Chal­lenges posed by the Act

The Bill does not pro­vide for ad­vance di­rec­tive to mi­nors, as per Sec­tion 5 of the said Act. All the ser­vices are to be en­sured by both Cen­tral and State gov­ern­ments. The ex­pen­di­tures es­ti­mated will not meet the obli­ga­tions un­der the bill.

The Cen­tre and State, both have re­spon­si­bil­i­ties as per the Act; it does not pro­vide sharing of funds be­tween them. All the States have dif­fer­ent fi­nan­cial con­di­tions; the Cen­tral govern­ment has to en­sure funds for meet­ing the le­gal obli­ga­tions.

Some sug­ges­tions

Pub­lic health is a State sub­ject. It does not ad­dress guardian­ship of men­tally ill per­sons. The 1987 Act has de­tailed the ap­point­ment and re­moval of guardians for pa­tients. But it is also men­tioned in Per­sons with Dis­abil­i­ties Bill, 2014, which is pend­ing in the Par­lia­ment. There is a dearth of 4500 psy­chi­a­trists and 12500 staff mem­bers to cater to the needs of men­tally chal­lenged pa­tients. ‘Men­tal Health Re­view Com­mis­sion’, es­tab­lished un­der the Men­tal Health­care Act, 2017 is an at­tempt to stream­line men­tal health­care de­liv­ery. It de­crim­i­nal­izes sui­cide and pro­hibits elec­tro con­vul­sive ther­apy. It is, how­ever, out of bounds for mi­nors. If some of the past years’ re­ports are seen, sui­cides are com­mit­ted by stu­dents of schools and col­leges. The for­mer are higher in num­ber, maybe due to peer pres­sure, or aca­demics. Men­tal child­care homes need to be cau­tious while giv­ing treat­ment; ad­vance di­rec­tive should be pro­vided to the chil­dren, or to their guardians. The chal­lenge needs to be met. Also, spe­cific pun­ish­ments need to be given in the Men­tal Health­care Act, 2017. There are reme­dies and treat­ments avail­able in Ayurveda and other tra­di­tional meth­ods of In­dia, which are safer than elec­tro con­vul­sive ther­apy and other mod­ern tech­niques. We hope the re­cently made law will be im­ple­mented prop­erly to meet the obli­ga­tions of the Men­tal Health­care Act, 2017.

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