By Prateeksha Shrivastava, Faculty of Law, Lucknow University, Uttar Pradesh.
The life of a person is characterized by his physical and mental well-being. Mental health means the ability of a person to set up a balance in life. Physical well-being of a person means coordination between different body parts and organs. Mental well-being is a psychological term. It affects a person’s emotions and efficiency. Mental illness refers to mental disorder characterized by alterations in mood or behavior. Psychologists, psychiatrists, nurses, etc. can help in the treatment of mental illness with the help of proper medication, counseling and therapy.
In India, the concern for mental healthcare is not new. Mental healthcare in India can be divided into two phases: the Pre-Independence Phase and the Post-Independence Phase.
- The Indian Lunatic Asylum Act was passed in 1858. It was later modified and the Indian Lunacy Act was passed in 1912.
- The Indian Psychiatric Society was established in 1947, some time after our Independence.
- The Mental Health Act was passed in 1987.
- The Mental Healthcare Bill, 2016 superseded all these previous acts. It was passed on 7th April, 2017, in the Parliament.
Mental Healthcare Act
The Mental Healthcare Act, 2017, has been defined as “An Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto”. According to the Act, mental health care 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. Mental illness shall be determined on the basis of international health standards. Every person, including the mentally ill persons, shall be provided with the authority to make mental health care and treatment decisions under this Act.
Boon or Bane?
For the first time, there is a law that ensures right to access mental healthcare and treatment. Right to access mental healthcare means mental healthcare services of affordable cost, of good quality, available in sufficient quantity, accessible geographically and without any discrimination. It also assures free treatment for homeless and poor people. According to the Act, there shall be no discrimination on the basis of religion, caste, sex, origin and class. The Act also provides right to privacy to the person with mental illness, right to information about their illness, protection from inhuman treatment, right to appoint a nominated representative etc. A person with mental illness shall have the right to live in a safe and hygienic environment, to have adequate sanitary conditions, to proper clothing, to protect from any type of abuse, to have facilities for education recreation and religious practices.
The person with mental illness is given the right to make an advance directive signed by a medical practitioner or Mental Health Board that states how he/she wants to be treated as well as how he or she doesn’t want to be treated. The Bill empowers the government to set up a Mental Health Authority at Central as well as State level. The authority should register and maintain all mental health establishments and advise the government on matters relating to mental health. A Mental Health Review Board is to be established to protect the rights of persons with mental illness. The person with mental illness shall have the right to personal contacts and communication, right to legal aid, right to complain about deficiencies in provision of services.
A person with mental illness shall not be given electro-convulsive therapy without anesthesia. Also, ECT will not be performed on minors. They shall not be chained in any manner under any circumstance. They shall not be subjected to seclusion or solitary confinement. Suicide is decriminalized under this Act. A person who attempts suicide shall be presumed to be suffering from mental illness at that time and will not be punished under the Indian Penal Code. It is the duty of the government to provide care, treatment and rehabilitation to the person who attempts suicide and to presume that he has been undergoing severe stress and to reduce the risk of attempt to suicide again.
The Mental Healthcare Act, however, has some loopholes too. The Act doesn’t provide any clear information regarding the management of property of the person with mental illness. These persons can be subjected to exploitation. The Act doesn’t provide sharing of expenses between the Center and the State. Financial constraints are faced by several States. So this will be an additional burden for them. The Bill should have a provision for allocation of funds.
Advance directive doesn’t apply in the case of emergency treatment. It can be overruled easily by a simple application. It should be ensured that the people know their rights and move to Mental Health Board in case of violation of their right. Admission and treatment of mental illness largely depends on the nominated representative.
There is no provision for support in case of any legal issue, for the person who is mentally ill. There is also no mention of punishment to those who exploit the person who is mentally ill. It is difficult to seek mental health treatment in shelter homes as it has no mention in the Bill.
There are many times when more-than-one legislation has to be considered, for instance, in a case of divorce, what will be the future of a mentally ill child? The Bill is silent with regard to this perspective. A person with mental illness is also a person with disabilities. If there is a clash between Persons with Disabilities Act, 2016, and Mental Healthcare Act, 2017, Mental Healthcare Act, 2017, shall prevail. Persons with mental illness may have to wait for several days within the Mental Health Establishment before the Mental Healthcare Board considers their appeals. The process might prove to be time taking and exhaustive for the ill person.
The proposed rules are mandated by law but are not binding upon the Ministry. Prevention is better than cure but the important issue of promotion of mental well-being has been neglected in the Act.
There are many examples of progressive policies that do not get properly implemented. Mental Healthcare Act, 2017, is unique in its purpose as it provides right to access mental healthcare. It can just be considered a beginning of a long and strenuous process of implementation. We need cross-party support to provide complete benefits of the Act to the persons with mental illness, and to their families too. The government must review the Act on a regular basis to fill in the blanks.