Reviewing the Mental Healthcare Act, 2017
Legal matters

Reviewing the Mental Healthcare Act, 2017

Amba Salelkar

The Mental Healthcare Act came into operation on 7 April, 2017. The Act seeks to change the way we treat mental health and ensure that our law is in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Act is quite comprehensive—it establishes new procedures and authorities that must be set up for its implementation. These may take time to set up and receive the budgets that are warranted to ensure their effectiveness—which is why the impact of the law may not be immediate. In 2018, the Mental Healthcare (Rights of Persons with Mental Illness) Rules came into force. Even though this is a ‘young law’ by Indian standards, we can look at the letter of the law and understand what we can look forward to and what we should be aware of.

What's good

The Act ensures that all persons shall have the right to access mental healthcare and treatment, from mental health services run or funded by the government. This means that you can walk into any government-run mental health service in your locality (or in a neighboring one, if not available in your own) and seek free treatment. The definition of treatment is quite wide and does not only refer to medication, and allopathic treatment.

That said, the availability of this depends a lot on government policy and budget allocation; so we may have to wait a while to see a range of treatments and alternatives available at all levels. These should be:

  • Affordable, which may depend on your income levels.

  • Of good quality.

  • Available in sufficient quantity.

  • Accessible geographically, which is to say that you mustn’t need to travel very far to access it. Or that if you do, there are schemes available that will compensate you for the travel expenses involved.

  • Be available without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability.

  • Provided in a manner that is acceptable to persons with mental illness and their families and caregivers, keeping in mind concerns regarding dignity and confidentiality.

The law recognizes the vulnerability that persons with psychosocial disabilities face at home. If you are a person with psychosocial disability and find yourself being forced out of your home, the Act says that you will have access to support, including legal aid, to ensure that you have the right to live in the home. The exact procedure for such an application under Section 19 of the Act needs to be checked in the respective State rules.

What’s not so good

Capacity, as per the Act, refers to the ability of a person to make a decision about their own mental heathcare and treatment. There are two means of support, provided in case of a situation where a medical practitioner finds that you do not have this capacity:

An Advance Directive: Through an advance directive, you can take a decision about what treatment you want and don’t want in case of a mental health episode. For example, you may choose to state in your advance directive that you must not be administered electroconvulsive therapy (ECT) in case of an episode.

A Nominated Representative: A person whom you can appoint to take decisions on your behalf when a medical practitioner says that you don’t have the capacity to make a decision on your own.

Unfortunately the rights of a person with a psychosocial disability are not absolute when it comes to making an advance directive and appointing a nominated representative. Both of them can be overruled if an application is made on your behalf to the District Mental Health Review Board.

An advance directive will not be used in case of treatment required for an emergency. Here’s what you can do to make sure that the decisions taken in case you have a mental health episode are in line with your will and preference:

Take the time to draw up documents on your advance directive, and to appoint your nominated representative. If you have a regular healthcare provider, inform them of the fact that you have an advance directive and a nominated representative, preferably in writing (email, registered post).

Ensure that a self-attested copy of your advance directive is with your nominated representative, because failure to produce it allows deviation on the part of mental health professionals.

Make sure that your nominated representative knows their rights under the Act, and is aware of how to approach the relevant district mental health review board in case of a violation of rights.

The law still permits for involuntary institutionalization if:

  • You have recently threatened or attempted to cause bodily harm to yourself, or

  • You have recently behaved violently towards another person or if you have caused someone to fear bodily harm from you, or

  • You seem to be unable to care for yourself to a degree that puts you at risk of harm to yourself.

A professional must certify that being admitted to a psychiatric hospital is the least restrictive care option possible in the circumstances. In such a situation, the professional must also factor in—but is not bound by—an advance directive in which you specify that you do not wish to be institutionalized involuntarily. Such an admission will only be made if you are found to be ineligible to receive care and treatment as an independent patient. This will happen in case of a mental health episode where you are unable to make mental healthcare and treatment decisions independently, and need very high support from your nominated representative. This involuntary admission can be for a maximum period of 30 days. It is only when this period is to be extended beyond the 30 days that the Board must confirm the admission.

Persons who are in long-term care may be directed by the Board to have a discharge plan formulated–this is not a necessary step, it is optional. For persons already in long-term institutional care there is no time bound plan towards deinstitutionalization, neither is there any commitment in the Act towards it. If the conditions of the law are met, long-term admissions can be granted even up to 180 days each time.

Options available in the Act to address violation of rights in mental healthcare establishments leaves the onus on the individual to report them. This does not acknowledge the serious imbalance of power between the staff of the establishment and the person who has the label of a psychosocial disability. Persons with psychosocial disabilities are to be given the option of legal aid, but there is no provision for support to be provided to the person with the disability while they brief the lawyer about the matter at hand.

When you are considering options for seeking treatment in a ‘mental health establishment,’ the definition of the term is very wide and includes any establishments for care, treatment, recovery and rehabilitation of persons with psychosocial disability. These require licensing under the Act, and anyone running an establishment that can be said to be a mental health establishment can be fined for not obtaining the required license. This means that you may find it difficult to seek mental health treatment in shelter homes for domestic violence victims, children’s homes, senior citizen day care homes for instance.

Such spaces might find it easier to just avoid taking in people with psychosocial disabilities, rather than seek licensing. The Act already provides for mandatory shifting of persons perceived to have mental illness in State-run custodial institutions—such as being in police custody, in jail, a detention centre—to mental health establishments.

What’s worrying

Persons with a diagnosis of mental illness are also persons with disabilities for the purpose of the Persons with Disabilities Act, 2016 (PwDa). The PwDA has a clause that says that in spite of any other provision available, the PwDA will act as an addition to a law that is currently in force, not as something that can go against it. This means that the Mental Healthcare Act, 2017 will have an overriding effect in case of a situation where the Act is stating one thing and the PwDA is stating another.

The Act also does not do away with declarations of ‘unsound mind’ or findings of mental illness for the purpose of divorce proceedings. When you face a legal proceeding where it is being alleged that you are of unsound mind and this is a factor in the matter of a divorce, custody rights, the court is required to follow a procedure as per the Act. It must refer such decisions to the relevant district mental health review board. This might be inconvenient as it will amount to running two parallel proceedings for the same case.

A decision regarding continuation of being deprived of certain freedoms for the purpose of mental health treatment will be taken by the Board. In the previous 1987 Act such a decision was to be taken by a magistrate. This is a cause for worry—a magistrate is present at the local level, while the Board need not be present at every district or, in the case of the north eastern region of India, in every state. In such a situation you or your nominated representative may find it difficult to make an application to the Board. Persons with psychosocial disabilities may have to wait for several days within the mental health establishment before the Board considers their appeals.

Even if the Board finds that someone no longer requires an order of supported admission, the Act allows that the person may continue staying in the establishment as an independent patient. The Act does not provide clarity about the maximum period of time it can take for such a person to return to live in a community, or what actions can be taken to give them a chance to live in one.

Amba Salelkar is a lawyer based in Chennai, with a special interest in disability law and policy.

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