THE MENTAL HEALTH CARE ACT,2017
The Mental Health care Act, 2017 which will come into force from July 7, 2018 was passed on April 7, 2017. This Act superseded the previously existing Mental Health care Act, 1987 that was passed on 22 May, 1987. This Act has been enacted to provide mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.
BACKGROUND OF THIS ACT
This Act has been framed to comply with the Convention on Rights of Persons with Disabilities and its Optional Protocol to which India is a signatory and thus India being bound to align and harmonise the existing laws with the said convention. According to a World Health Organisation Report, approximately 36% of Indian population suffers from depression at any given time. The thrust of the Act is to provide the Right to mental healthcare and it very well signifies the government’s attempt to address this issue which has been neglected for decades.
DEFINITIONS
The Act defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. In this Act, “Mental healthcare” includes analysis and diagnosis of a person’s mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness.
KEY FEATURES OF THIS ACT
Advance Directive
One of the most significant provision of this Act is the “Advance Directive”. This authorises a mentally ill person to have the right to make an advance directive which clearly mentions as to how he/she wishes to be treated for his/her illness and who his/her nominated representative shall be. Of course, this directive has to comply with the regulations made by the Central Authority.
Nominated Representative
This Act makes provision for the appointment of nominated representative by the mentally ill person. In case of absence of any recommendation by the mentally ill person, any relative, care giver, suitable persons such as Director, Department of Social Welfare may be appointed to act as the nominated representative.
Right of persons with mental illness
The Act incorporates a number of safeguards to persons with mental illness. These are-
• Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government. This right encompasses within its domain three core principles- affordability, availability and accessibility.
• Those living below the poverty line whether or not in possession of a below poverty line card, or who are destitute or homeless shall be entitled to mental health treatment and services free of any charge and at no financial cost at all such establishment run, funded or designated by the Government.
• Another significant right is the right to equality and non-discrimination. Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare.
• Such mentally ill persons and their nominated representative have been given the right to information. This information includes right to know the provisions of this Act, nature of person’s mental illness and proposed treatment etc. in a language which he can understand.
• This Act also provides for the right to confidentiality to a mentally ill person in respect of his mental health, healthcare and treatment subject to certain exceptions.
• These mentally ill persons have also been granted the right to access their basic medical records.
• It also provides proviso in regard to personal contacts and communication as to whom he/she wants to contact and whom he/she doesnot.
• Persons with mental illness have been granted the right to free legal services as provided under the Legal Services Authority Act, 1987.
• They have been provided with the right to make complaints about deficiencies in provision of services to the concerned authorities.
Mental Health Authority
The Act seeks to establish a Central Mental Health Authority at the national level and State Mental Health Authorities in every State. The function of these authorities is to:-
• Maintain a register of all mental health establishments under Central and State Government.
• Develop quality and service provision norms for these establishments as well as to supervise them.
• Maintain a register of mental health professionals.
• Train every relevant persons about the provisions and implementation of this Act
• Discharge such other functions as the Central or State Government may decide accordingly.
Mental Health Authority Fund
The Mental Health care Act, 2017 provides for the setting up of Central Mental Authority Fund and State Mental Health Authority Fund to keep an account of all the grants, loans, fees, charges, sums etc., made by the authorities under this Act. This Fund shall be utilised for meeting the salary, allowances, remuneration of the officials connected with discharging the purposes of this Act.
Mental Health Establishments
The Act makes it mandatory for every mental health establishment to be registered with the respective Central or State Mental Health Authority. For registration, these establishments need to fulfil certain criteria as mentioned in the Act.
Mental Health Review Boards
The Act incorporates certain provisions for the establishment of Mental Health Review Boards. This quasi-judicial body shall be mainly responsible for-
• Registering, reviewing, altering, modifying or cancelling an advance directive
• Appointing a nominated representative
• Adjudicating complaints regarding deficiencies in care and services
• Taking appropriate measures to protect the right of persons with mental illness
Procedure and Process
The Act highlights the procedure and process for admission, treatment and subsequent discharge of mentally ill persons. The Act provides that-
• No electro-convulsive therapy without the use of muscle relaxants and anaesthesia can be performed on these persons
• No electro-convulsive therapy can be performed for minors
• Sterilisation cannot be performed on such persons
• These persons cannot be chained in any manner or form whatsoever
• These persons shall not be subjected to seclusion or solitary confinement and physical restraint can be used only if necessary.
Offences and Penalties
Under this Act, the punishment for contravention of any of the provisions will attract an imprisonment of six months or 10,000 rupees fine or both. For any subsequent contravention, the imprisonment can be extended to two years or with fine of Rs.50000 to 5 lakhs or both.
Decriminalising Suicide
Under Section 115 of this Act, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under Section 309, Indian Penal Code. It also imposes a duty on the Government to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
CONCLUSION
Overall, we can say that the Mental Health care Act, 2017 is a crucial step in treating mental illness of persons. The provisions made in this behalf are commendable. The most important of them being the overturning of the outdated and grossly inhumane Section 309 of Indian Penal Code. However, this Act faces many challenges at its doorstep like poor medical infrastructure of the country, acute shortage of mental health professionals, lack of adequate funds, social stigma etc. It will be interesting to witness the implementation of this Act but one thing needs to be kept in mind. This Act has not seen the light of the day just because of one person or one government but it is a combined effort of we, the people and hence, only we can contribute to the successful implementation of this Act.
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