An Analysis of the Mental Healthcare Act, 2017
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.
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.