THE MENTAL HEALTHCARE ACT 2017: A CRITICAL ANALYSIS
By Raj Krishna and Snehil
[Raj Krishna and Snehil are fifth and third year (respectively) students of B.A. LL.B. (Hons.) at Chanakya National Law University, Patna.]
Mental health problems are not unheard of today. In our day-to-day life, we often come across Persons with Mental Illness (“PMI”). It is pertinent to note that the PMI constitute the most vulnerable section of our society. They rarely get access to appropriate medical treatment as their family members often try to hide their condition out of a sense of shame.
Further as per reports of the Canadian Medical Health Association, mental health and physical health are fundamentally linked. It is so because individuals suffering from serious mental illness are at a higher risk of experiencing a wide range of chronic physical conditions and vice versa. [i] Thus, one can connect mental illness with disability.
State of Mental Healthcare in India:
According to a study published by The Lancet Psychiatry, 14.3% of the India’s total population is suffering from various mental health disorders. [ii] It is deeply upsetting to know that India as a nation not only lacks empathy but also fails to provide proper amenities to its people. One horrific incident took place in 2001, when Erwadi mental home witnessed a devastating fire that left 28 chained mentally disabled patients dead. Further, according to the World Health Organization’s (“WHO”) Mental Health Atlas 2017, the Indian government’s total expenditure on mental health as a percentage of total government health expenditure was a mere 1.3 per cent. Thus, the protection of rights of the PMI was highly called for, keeping in view the surrounding circumstances. [iii] As a result, the government of India in 2017 enacted the Mental Healthcare Act to acknowledge the magnitude of the problem.
The need for Mental Healthcare Act 2017 was also felt because Mental Health Act of 1987 did not do justice when it came to protecting the rights of the PMI. Further the United Nations Convention on the Rights of Persons with Disabilities 2006 (“UNCRPD”) mandates every signatory to provide “disabled persons the right to liberty (Article 14), integrity (Article 17), rights to freedom of expression (Article 21), privacy (Article 22), the right to freedom from torture and inhuman treatment (Article 15), rights to equal recognition before the law (Article 12) access to justice (Article 13), the right to home and family life (Article 23), the right to education (Article 24), right to health (Article 25), habilitation and rehabilitation (Article 26), the right to non-discrimination (Article 5), the right to independent living and community inclusion (Article 19), the right to personal mobility (Article 20), the right to work and employment (Article 27), the right to participation in cultural life (Article 30) and the right to be free from exploitation and abuse (Article16).” [iv]
The Mental Health Act 1987 did not entail all the principles of UNCRPD resolution. In addition to this, the constitutional validity of the Act was challenged by various human rights groups because some of the provisions of the Act were being perceived as curtailing the personal liberty of the mentally disabled. The Act also failed to address the stigma that was attached with the PMI admitted in the mental health establishments. [v] As a result of the aforementioned shortcomings, it became necessary to introduce a new legislation on mental health. [vi]
Mental Healthcare Act 2017: Salient Features:
The Mental Healthcare Act 2017 (“MHCA”) came as a breath of fresh air for the PMI. [vii] The Act gives PMI the right to access mental healthcare facilities available and also the right to claim compensation from the state in case of unavailability of these services. In addition to this, now the PMI have a right to community living, confidentiality, right to access medical records, protection from cruelty and inhumane treatment, right to equality and non-discrimination, among other rights. [viii] Some salient features of the Act are as follows:-
Decriminalization of Suicide: – According to Section 309 of the Indian Penal Code, “whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to 1 year or with fine, or with both.” [ix] However, accepted as a progressive move, the MHCA entails that the person attempting the commission of suicide shall be presumed to have severe stress and shall not to be tried and punished unless proved otherwise. The Act also bestows a duty upon the government to provide care, treatment, and rehabilitation to such persons in order to reduce the risk of recurrence of the same. [x]
Right to make an advance directive: – As per the MHCA, the patient now has the right to decide the way s/he should or should not be treated. Along with this, the right also enables the patients to choose a nominee who could take decisions on their behalf with respect to treatment or for any other purposes. [xi]
Right to access healthcare services: – The PMI have the right to access mental health services funded by the government under this Act. In case the government is unable to provide such kind of facilities in the district where the PMI reside, then the government should ensure that they can access such facilities at any other centre and shall bear the entire cost of the treatment.
Further discrimination on any grounds such as gender, sex, sexual orientation, class, religion, caste, etc. is prohibited in the rendering of mental health care services. [xii]
Right to free healthcare services: – All the persons who are either homeless or destitute or live below the poverty line have the right to avail all the mental healthcare facilities and services free of cost in all the government funded institutions. This provision is a welcome step towards ensuring the well-being of the underprivileged who are unable to access and afford even basic health facilities, let alone mental healthcare. [xiii]
Right not to be treated under prohibited treatment: – The Act, in all its form, prohibits electroconvulsive therapy for children and in the case of adults, the therapy has to be performed by taking certain precautions such as using muscle relaxants and anesthesia. [xiv]
Right to confidentiality: – The Act provides the PMI a right to confidentiality under which the details of his/her mental illness and the treatment which they are undergoing would be kept confidential unless it is to prevent any harm in the interest of public safety etc. However, the same could be revealed to the nominee and the mental health professionals in order to enable them to provide a proper treatment to the PMI. [xv]
Effective implementation: – To ensure the effective implementation of the rights given under this Act, the Act entails specific duties of the appropriate government and also the establishment of the Central Mental Health Authority. [xvi]
Lacunae in the Mental Healthcare Act 2017:
The Mental Healthcare Act 2017 provides a clause of Advance Directive (AD) which implies that a patient will have a choice to decide the matter of treatment. The Act presumes that the patients have sufficient knowledge in regard of the various treatment options available, which is hard to imagine in an Indian setting. The Act fails to provide for the full list of treatment options available so that a decision can be taken by the individual without any misinformation. [xvii]
Secondly, the Act provides that the patient can nominate a member who will make decisions on his/her behalf if they lose their mental capacity. However, the Act doesn’t provide a clear procedure for doing the same. [xviii] Thirdly, as per the provisions of the Act, the only condition for supported admission to a psychiatry hospital is that the patient can cause harm to self or others or is unable to take care of self. [xix] This provision is stigmatizing as it equates severe mental illness with dangerousness. [xx]
Further Mental Healthcare Act 2017 provides for the constitution of an expert committee which will ensure regular review and effective implementation of the Act. However, the efficacy of such a body is still to be questioned. [xxi]
The Way Forward:
There is no doubt that the Mental Healthcare Act 2017 is a big leap from the previous legislations. It is because the Mental Healthcare Act 2017 has imbibed all the progressive principles that have already been incorporated in the law books by the developed countries and United Nations, thereby making our legislation in sync with the modern times. Some sections of the Act are problematic; however, with future amendments in the necessary areas, this Act can prove to be a blessing. [xxii]
(The views and opinions expressed in this article are authors’ own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)
[i] The Relationship between Mental Health, Mental Illness and Chronic Physical Conditions, Canadian Mental Health Association, available at: https://ontario.cmha.ca/documents/the-relationship-between-mental-health-mental-illness-and-chronic-physical-conditions/ (last visited February 20, 2020).
[ii] 1 in 7 People in India Suffer From Mental Illness: Lancet, available at: https://fit.thequint.com/mind-it/mental-health-burden-india-states-lancet-study (last visited January 25, 2020).
[iii] The gaps in Mental Healthcare, available at: https://www.livemint.com/Opinion/LADv4BI5kQkl2QS5OI2LvN/The-gaps-in-the-Mental-Healthcare-Act.html (last visited January 25, 2020).
[iv] Convention on the Rights of Persons with Disabilities – Articles, available at: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html (last visited January 25, 2020).
[v] Jagadish A, Ali F, Gowda MR. “Mental Healthcare Act 2017 – The way ahead: Opportunities and Challenges”. 41 Indian J Psychol Med 113-118(2019).
[vi] Math SB, Basavaraju V, Harihara SN, Gowda GS, Manjunatha N, Kumar CN, Gowda M. “Mental Healthcare Act 2017 – Aspiration to action” 61 Indian J Psychiatry 660-666 (2019).
[vii] Kumar MT. “Mental healthcare Act 2017: Liberal in principles, let down in provisions” 40 Indian J Psychol Med 101-107 (2018).
[ix] The Indian Penal Code, 1860, s.309.
[x] Math SB, Basavaraju V, Harihara SN, Gowda GS, Manjunatha N, Kumar CN, Gowda M. “Mental Healthcare Act 2017 – Aspiration to action” 61 Indian J Psychiatry 660-666 (2019).
[xi] Legal rights of persons with mental illness, available at https://blog.ipleaders.in/legal-rights-of-persons-with-mental-illness/ (last visited January 27, 2020).
[xii] Supra note [x].
[xiv] Supra note [xi].
[xv] Supra note [x].
[xvi] Legal rights of persons with mental illness, available at: https://blog.ipleaders.in/legal-rights-of-persons-with-mental-illness/ (last visited January 27, 2020).
[xvii] Mental Healthcare Act: A step in the right direction, but ‘loopholes’ remain, available at: https://www.hindustantimes.com/punjab/mental-healthcare-act-a-step-in-the-right-direction-but-loopholes-remain/story-iy3L0pfkvLcDUCRsszlgqM.html (last visited January 30, 2020).
[xix] The Mental Healthcare Act 2017, s. 89.
[xx] Supra note [xvii].
[xxi] The gaps in Mental Healthcare, available at https://www.livemint.com/Opinion/LADv4BI5kQkl2QS5OI2LvN/The-gaps-in-the-Mental-Healthcare-Act.html (last visited January 25, 2020).
[xxii] Kumar MT. “Mental healthcare Act 2017: Liberal in principles, let down in provisions” 40 Indian J Psychol Med 101-107(2018).