The Mental Healthcare Act, 2017: A Radical Step towards Sound Mental Health in India

 

Mr. Nishant Kumar

 

ABSTRACT:

The long awaited Mental Healthcare Act, 2016 received the assent of President of India on 7^th April 2017, can be considered as a radical step for the purpose of providing for the right to better healthcare for mentally ill patients and decriminalizes attempt to commit suicide. The Act not only ensures every person`s right to have an access to mental health care and treatment from mental health services run or funded by the appropriate government but it also guarantees free treatment for all such persons who are homeless or belong to Below Poverty Line, even in the absence of BPL card. This act further reads for setting up of Central Mental Health Authority at national level and State Mental Health Authority in every State. The Act provides complete regulatory framework to fix accountability upon all the stakeholders who is either directly or indirectly dealing with mental health patients in India. This research paper attempts to examine the salient features of this act briefly and to understand the need and objectives sought to be achieved by the enactment of this Act. It furthers elaborates constitution of regulatory authorities, its powers and functions for the effective administration and implementation of this act. Finally this paper concludes in the light of some suggestion and recommendations.

 

 

INTRODUCTION:

The new Mental Healthcare Act, 2017 which has received  the  assent  of  the  President  on  the 7^th  April, 2017 is indeed a revolutionary step in mental health in India. The act attempts to incorporate number of provisions so as mental health patients can be treated in a more humane manner. One of the key provisions of the Act is decriminalisation of attempt to commit suicide, which is currently punishable under Section 309 of the Indian Penal Code¹. This means that mentally-ill patients, which were hitherto treated as “criminals” shall be treated with more dignity and respect, as “persons who are undergoing severe stress”, and thus need to access to mental health care facilities such as counselling, and other mental health remedies.

 

Status of Mental Health in India

Mental health has today become a much talked about subject. The prominence it has gained in the last few months stands strongly supported given the statistics of mental health related problems in our country. According to an ANI report, the importance of estimates of mental health related problems place their prevalence rates at 5 percent of the population, which amounts to roughly 50 million individuals in our country.

 

Mental health contributes to 11.6 percent of the global burden of disease and the fact is that only 14.52 percent of those afflicted receive treatment which approximates to 7.26 million. Despite this there is a 300 percent shortage of experts in India. ²

 

Other salient features of the Act³ may be summarized as below:

Definition of Mental Illness⁴:

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.

 

Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards.

1.    Rights of persons with mental illness: 

This provision states that every person will have the right to access mental healthcare from services which are operated or funded by the government. It also includes good quality, easy and affordable access to services. It also provides for the right to equality of treatment, seeks to protect such persons from inhuman treatment, access to free legal services, their medical records, and the right to complain in the event of deficiencies in provisions.

 

The Act also assures free treatment for such persons if they are homeless or belong to Below Poverty Line, even if they do not possess a BPL card.

 

Every person with mental illness shall have a right to live with dignity and there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.

 

A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.

 

The photograph or any other information pertaining to the person cannot be released to the media without the consent of the person with mental illness. ⁵

 

There is a mention of the right to access mental health care and treatment at affordable cost, good quality which is acceptable to person with mental illness, their family members, and caregivers.

 

2. Advance Directive: 

This provision empowers a mentally-ill person to have the right to make an advance directive that explains how she/he wants to be treated for the requisite illness and who her/his nominated representative shall be. This directive has to be vetted by a medical practitioner.

 

The advance directive should be certified by a medical practitioner or registered with the Mental Health Board.

If a mental health professional/ relative/care-giver does not wish to follow the directive while treating the person, he can make an application to the Mental Health Board to review/alter/cancel the advance directive.

 

3. Mental Health Establishments: 

This provision states that every mental health establishment has to be registered with the respective Central or State Mental Health Authority. For registration, the concerned establishment needs to fulfill different criteria as mentioned in the Act.

 

The Act empowers the government to set-up Central Mental Health Authority at national-level and State Mental Health Authority in every State. Every mental health institute and mental health practitioners including clinical psychologists, mental health nurses and psychiatric social workers will have to be registered with this Authority.

 

These bodies will (a) register, supervise and maintain a register of all mental health establishments,(b) develop quality and service provision norms for such establishments, (c) maintain a register of mental health professionals, (d) train law enforcement officials and mental health professionals on the provisions of the Act, (e) receive complaints about deficiencies in provision of services, and (f) advise the government on matters relating to mental health.

 

4. The Act also outlines the procedure and process for admission, treatment and subsequent discharge of mentally ill persons.

 

5. Mental Health Review Commission and Board: 

This is a quasi-judicial body responsible for reviewing procedure for making advance directives. It will also advise the government on the protection of mentally ill persons’ rights. It further states that the body in agreement with the state governments constitute Mental Health Review Boards in states’ districts.

 

6. Decriminalising suicide and prohibiting electro-convulsive therapy: 

The most notable of all is the provision which effectively decriminalises suicide attempt under the Indian Penal Code by mentally ill persons by making it non-punishable. Electro-convulsive therapy, which is allowed only with the use of anaesthesia, is however out of bounds for minors. Imprisonment can be given for a period of six months to two years and fines range from Rs 10,000 to Rs 5,00,000, if such techniques are continued to be used.

 

7. Ban on Forced Sterilization:

It prohibits forced sterilisation of mentally-ill patients, their chaining and confinement, and the separation of mother and child. ⁶ 

 

8. In-line with International Commitments:

It repeals the Mental Health Act, 1987. The Government of India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007⁷. The Convention requires the laws of the country to align with the Convention. The new Act was introduced as the existing Mental Health Act, 1987 did not fulfill the obligations of the UNCRPD.

 

9. Medical Insurance to cover mental illness:

Medical insurance for treatment of mental illness shall be at par with physical illness by all insurers. Mental health insurance has remained a neglected area for long. This new feature will have huge and significant impact for the persons with mental illness, family, and caregivers. ⁸

 

 

10. “Duties of appropriate Government.”

This is a unique feature as the appropriate Government will have responsibility to plan, design, and implement programs for mental health such activities related to promotion, prevention, reduction of suicide, stigma. The important aspect will also to address the human resource needs which include training of medical officers and other persons.

 

The onus will be on appropriate Government to make such provisions for range of services including outpatient and inpatient services, half-way homes, sheltered accommodation, supported accommodation, hospital- and community-based rehabilitation, free cost of medicines, specialized services of child and adolescent, and old age mental health. The appropriate Government will ensure necessary budgetary provisions for effective implementation along with integration of mental health services into general health care at all levels of health. ⁹

 

Critical Appraisal of the Mental Health Act:

The Mental Healthcare Act stands out for its wide consultations, rigorous debate both in parliament and in the Standing Committee, and its incorporation of a large number of stakeholder views as well as recommendations and changes. The Act was debated at the regional and central levels, with stakeholders and mental health professionals. Nearly all the suggestions of the Standing Committee were incorporated in the Act and the Rajya Sabha passed it in 2017 with several amendments accepted as well. ¹⁰

 

In general, there are several features which may be seen as welcome step by persons with mental illness, their family, caregivers, professionals, care providers, and significant others. However, it seems ambitious and poses a huge responsibility and challenge to all stakeholders for its effective implementation. ¹¹

 

The new Act tries to be over-inclusive in its approach stretching beyond its legislative limit, and despite noble intentions behind it, it would be a challenge for the stakeholders whether the contents of the Act are legislation, program, policy, or even a treatment guideline. There are highly qualified and accountable bodies to design a program or to recommend the treatment guidelines.

 

On a closer look, this Act premises on a hypothesis that the MHC providers and family members are the main violators of the rights of the persons with mental illness, which is unfortunate. On the other hand, the Act does not take into account of family members' significant contribution, caregivers' burden, isolation, frustration, and violence they undergo because of persons with mental illness. ¹² The Act is silent on the role and contribution of family members in providing care. Unlike the West, in India, family is the key resource in the care of patients with mental illness¹³.

 

Families assume the role of primary caregivers for two reasons. First, it is because of the Indian tradition of interdependence and concern for near and dear ones in adversities. Second, there is a paucity of trained mental health professionals required to cater to the vast majority of the population; ¹⁴ hence, the clinicians depend on the family. Thus, having an adequate family support is the need of the patient, clinician, and the healthcare administrators. Unfortunately, that Act does not foster the need to support the family members in providing care.

 

Person with mental illness may revoke, amend, or cancel advanced directives many times in a day, and family members will be finding difficult to handle such situations. Only the mental health board has powers to amend or overrule the advance directive. This needs to be done in very short time to enable the treatment (24–48 h). If patient has written costly treatment or private/corporate hospital (which family cannot afford) in advance directives, then who will bear the cost of costly treatment. Considering the available human resources (Medical and Judicial), economic constraint, and our collective community efforts in treating patients with mental illness, our Indian population is not ready for such advanced directives. Above all these, research studies data do not support the use of advance directives in person with mental illness (Cochrane review). It would be prudent to do more research in this area in our population before to introduce this advance directive. ¹⁵

 

This advance directive will welcome more litigations and heavy burden on family members. It is advisable that advance directive needs to be kept out of the purview of the Act. ¹⁶ The Cochrane database of systematic review on advance treatment directives for people with severe mental illness reported that there are too few data available to make definitive recommendations to introduce it. Even in the West, this has certainly not had its intended benefit. For the Indian reality, to be rushing in with legislation on this count is rather hasty and ill conceived. ¹⁷

The district-level mental health review boards, which are quasi-judicial bodies overseeing the effective implementation of the MHC delivery system, could introduce new hurdles for treatment delivery and unnecessary delay. This could be simply because of non-availability of judicial workforce and other resources to operate at every district levels. If these issues are not addressed, this may cause delay in initiating treatment, which may cause enormous amount of stress on the care providers. Delay in addressing the issue can defeat the purpose of the Act. If these boards do not operate on day-to-day basis at each hospital level, then this can cause serious adversarial impact on the mental health care of the person. Unfortunately, mental health care is taking an ugly turn similar to western country where involuntary mental health care is argued in the court of law. MHC is becoming a tedious, prolonged, and costly judicial proceeding. These mental health review boards need to have time limit (<72 h) to take decision, especially with regard to capacity to consent for treatment issues. The mainstream judicial system is incapable of handling such complaints because of lack of sensitivity and also being clogged with a huge pendency of mainstream cases. These boards need to move away from tardy judicial process/procedures.

 

Alternatively, the first level of review could be independent hospital review board, which can address those contentious issues in a cost-effective and timely manner at the patient's doorsteps/hospital. Hence, it would be prudent to create consumer-friendly (independent) MHC hospital boards at every hospital using local resources. This MHC hospital board could be comprised of independent psychiatrist/mental health professionals, family caregivers, and recovered patient. Another alternative is to create a board of visitors at each hospital (along the lines of Mental Health Act, 1987) to perform similar functioning.

 

CONCLUSION:

There has been a major shift from predominant seclusion or custodial care as in the Indian Lunacy Act, 1912 when the effective treatment was deficient; to the Mental Health Act of 1987 that mainly focused on the treatment and care of mentally ill with some tangential efforts to reduce stigma and cater for their human rights; to the present Mental Health Care Act of 2017 that focuses mainly on the human rights of persons with mental illness and their institutionalization, thereby affecting the care of the persons with mental illness. With the present Act, there lies an imminent danger of heralding the stigma and scare of mental ill patients along with institutionalization syndrome that plagued the pre-scientific era. It is prudent for the policymakers to account for the culture of the land, newer scientific developments in the mental health field, analyze the met-unmet needs of the patients and family, make provisions to bridge the treatment gap, make provisions to enhance the workforce resources and skill building among health professionals/workers in the field of mental health, provide comprehensive health-care services, promote healthy attitudes toward such patients, and make provisions for adequate financial support/budget (for plan and non-plan expenditures) while making law of the land. The need of the hour is a law that can be implemented in practice that can cater to the health needs at all levels of prevention (primary, secondary, and tertiary levels of prevention) while protecting the human rights of the mental health workers as well as the end-users and their relatives¹⁸.

 

REFERENCES:

1.     The Act said, “Notwithstanding anything contained in section 309 of the Indian Penal Code, 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 the said Code.”

2.     Mental Healthcare Act passed in Parliament: All you need to know, available at: http://www.business-standard.com/article/current-affairs/mental-healthcare-Act-passed-in-parliament-all-you-need-to-know-117032800401_1.html (last visited: March 28, 2017: 10 P.M.).

3.     What is the Mental Healthcare Act?, available at: http://indianexpress.com/article/what-is/mental-healthcare-Act-passed-parliament-lok-sabha-4588288/ (last visited: March 28, 2017: 10 P.M.).

4.     K. DeepaLakshmi, All You Need to know About the Mental Health Care Act, available at: http://www.thehindu.com/news/national/all-you-need-to-know-about-the-mental-healthcare-Act/article17662163.ece (last visited: March 28, 2017: 10 P.M.). 

5.     Supra note 3.

6.     Anoo Bhuyan, Why the Mental Healthcare Act Is An Example of Healthy Law-Making, available at: https://thewire.in/119332/mental-healthcare-Act-parliament/ (last visited: March 28, 2017: 9.30 P.M.).

7.     Narayan CL, Shikha D, Narayan M., The Mental Health Care Act 2013: A Step Leading to Exclusion of psychiatry from the mainstream medicine?, Indian J Psychiatry 2014;56:321-4.

8.     Rao GP, Math SB, Raju M, Saha G, Jagiwala M, Sagar R, Sathyanarayana Rao T S. Mental Health Care Act, 2016: A boon or bane?. Indian J Psychiatry 2016;58:244-9.

9.     Id.

10.   Id.

11.   Id.

12.   Avasthi A. Preserve and Strengthen Family to Promote Mental Health. Indian J Psychiatry 2010;52:113-26.

13.   Id.

14.   Math SB, Chandrashekar C, Bhugra D. Psychiatric epidemiology in India. Indian J Med Res 2007;126:183-92.

15.   Sarin A, Murthy P, Chatterjee S. Psychiatric Advance Directives: Potential challenges in India. Indian J Med Ethics 2012;9:104-7.

16.   Campbell LA, Kisely SR. Advance Treatment Directives for People with Severe Mental Illness. Cochrane Database Syst Rev 2009:CD005963.

17.   Sarin A. On psychiatric Wills and the Ulysses Clause: The Advance Directive in Psychiatry. Indian J Psychiatry 2012;54:206-7.

18.   Rao GP, Math SB, Raju M, Saha G, Jagiwala M, Sagar R, Sathyanarayana Rao T S. Mental Health Care Act, 2016: A Boon or Bane?. Indian J Psychiatry 2016;58:244-9.