Being a welfare state, our Country plays a vital role in social inclusion and provides equal opportunity and participation. The Government of India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007. The Convention mandates the laws/rules governing the country to follow its recommendations. There was a grave need for the present law to suit the changing times and for it to be in line with the UNCRPD. Hence, the legislature harmonized the national legislations1.The preamble of the Mental Healthcare Act, 2017 (Act or MHCA) aims to provide mental healthcare and services for persons with mental illness and to promote, and fulfil the rights of such persons during delivery of mental healthcare and services. The act is progressive, patient-centric, and rights-based. Chapter 5 on the "Rights of the persons with mental illness" is the heart of this legislation.
Definition of mental illness
The Act defines "Mental Illness"2 as "a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognize 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, especially characterized by sub normality of intelligence." As per this definition, this Act is applicable only to those who have "substantial" impairment in thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life. This law does not apply to all persons with mental illness (PMI). In simple words, it applies to those who have severe mental disorders. Section 3 of the Act says that mental illness is to be determined in accordance with nationally or internationally accepted medical standards.
Positive Aspects of the MHCA, 2017
The Act envisages the right of the patients to access a range of mental healthcare facilities.3 In case these services are not available, a PMI is entitled for compensation from the state. Various rights such as right to community living, right to confidentiality, right to access medical records, right to protection from cruelty and inhumane treatment, and right to equality and non-discrimination are all ensured by the law. It does not make distinctions amongst the PMI on the basis of poverty though all destitute and homeless PMI are entitled to free mental health treatment. It restricts electroconvulsive therapy (ECT) without anaesthesia and any type of ECT to children and also restricts psychosurgery.
Concept of Consent
This legislation rotates around autonomy and gives every person the right to make an advance directive which is a written statement explaining "how they want to be cared" and "how they should not be cared for" in case they become incapacitated because of the mental illness. Further, any person (except minors) have the right to choose a Nominated Representative (NR) to assist the patient with treatment-related decisions. Any information relating to a PMI undergoing treatment in a Mental Health Establishment (MHE) shall not be released to the media without the consent of the PMI. This right shall also apply to all information stored in electronic or digital format in real or virtual spaces. The media also need to restrain themselves from depicting or disclosing the identity of the PMI during reporting in specific cases that come to media attention. Right to privacy is maintained under the Act. Under the Act, there is a provision for involuntary admission with the support of the NR and also appeals can be made to the Mental Health Review Board (MHRB), which will also review all admissions that are extended beyond 30 days.
Mental Health legislations in other countries
- In the rural areas and poorer urban areas of South Africa, there are very few psychiatrists or medical practitioners with knowledge and experience of psychiatry.
- The Italian Public Law enacted in 1978, and the Mental Health Act of 1983 in England and Wales, are prominent examples of a shift from custody and incarceration to the integration and rehabilitation of persons with mental disorders.
- In Japan, the Mental Hygiene Law was enacted in 1950 and encouraged the development of psychiatric hospitals and ensured financial support for patients who were admitted involuntarily.
Prohibitions and Punishments
MHCA, 2017 also restricts the procedures such as sterilization (of men or women when intended as a treatment for mental illness), unmodified ECT, seclusion, and chaining. The Act also regulates research on PMI and the use of restraints and neurosurgical treatment for them. According to Section 309 of the Indian Penal Code, 1860, "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". The government has a duty to provide care, treatment, and rehabilitation to a person having severe stress and who attempts to commit suicide, to reduce the risk of recurrence of such an attempt. Punishments prescribed under the Act are too harsh, and there is no provision to assess whether a contravention is accidental, due to practical difficulties, or deliberate. Medical personnel are already covered under various legislations such as the Consumer Protection Act, 1986, Medical Council of India, State Medical Council, National Human Rights Commission, and civil and criminal laws against medical negligence.
Role of family
The Act has not specified any role of the family members in providing care in the hospital environment. There is a huge need for family members to be involved in the provision of care. If there are no family members, the medical board (comprising of two mental health professionals) can make provisions to surpass the requirement of a family member. Hence, provision in law needs to be introduced wherever involuntary inpatient treatment is required - by default one family member needs to accompany and be with the PMI during inpatient treatment.
Conclusion and Analysis
There is a need to make provisions to enhance the resources and skills among professionals/workers in the field of mental health and to make provisions for adequate financial support/budget. The earlier law (Mental Health Act, 1987) did not specifically provide a definition of mental illness. It defined a "mentally ill person" as "a person who is in need of treatment by reason of any mental disorder, other than mental retardation". Substance use disorder (SUD) was not specifically mentioned anywhere else, except in Chapter III. However, the current act, MHCA 2017, has included SUD in the definition of mental illness itself. A drawback is contained in Section 89 of the MHCA, 2017, which allows a person with mental illness to be admitted and treated without his consent, but with request from a nominated representative. The Act ignores that the family assumes the role of primary caregivers first. Even the clinicians depend on the family. Thus, having adequate family support is the need of the patient, the clinician, and the healthcare administrators. The Act also ignores the presence of a mental health program in the country. The Act should have mandated all the states to implement National Mental Health Programme and the state mental authority should have been made responsible for the same.
There are various ways through which the pitfalls can be corrected. One such way is to remove the concept of addiction treatment from the ambit of MHCA, 2017 by eliminating the reference of SUD from the definition of mental illness. Many countries like United Kingdom, Australia (in many of its states), and New Zealand have kept SUD out of their mental health acts and have enacted separate laws for addiction and its treatment because person(s) with substance abuse act differently and the treatment for such person(s) has to be different.
1. The Mental Health Act, 1987and Persons with Disability Act, 1995 with the UNCRPD
2. Section 3 of the Act.
3. These facilities include rehabilitation services in the hospital, community, and home, halfway homes; sheltered accommodation; and supported accommodation.
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