Reviewing the Mental Healthcare Act, 2017
Legal matters

Reviewing the Mental Healthcare Act, 2017

Amba Salelkar

The Mental Healthcare Act was recently notified in the Official Gazette after being passed by both th houses of Parliament. The Act seeks to change the way we treat mental health and ensure that our law is in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The Act is quite comprehensive and establishes new procedures and authorities 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. Even so, 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, under Chapter V 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 not only allopathic treatment. However 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 one needn’t travel very far to access it, or schemes may have to compensate for travel expense to access it

  • 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 a psychosocial disability and find yourself being forced out of your home, the Act provides 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 clarification in the Rules but will most likely be before the local Magistrate.

What’s not so good

The Act provides for two means of support to exercise capacity in deciding one’s mental health treatment:

  • An Advance Directive, under Chapter IIIthat you can execute regarding the treatment that you want during a mental health episode and also specifying the treatment that you do not want during a mental health episode.

  • A Nominated Representative under Chapter IV that you can appoint to take decisions on your behalf when a medical practitioner deems you to lack capacity to decide on your own.

Unfortunately these are not absolute. Both can be overruled if an application is made in that behalf to the Mental Healthcare Board. In addition, Advance Directives do not apply in the case of emergency treatment. You can take the following safeguards to ensure the best fulfillment of your will and preference during times of crisis:

  • Take the time to draw up documents on your Advance Directive and appointing 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.

  • Ensure that a self-attested copy of your Advance Directive is with your Nominated Representatives because failure to produce it allows deviation from it by mental health professionals.

  • Ensure that they know their rights under the Act and how to move the Mental Health Board where jurisdiction exists in case of violations.

The law still permits for involuntary institutionalization under Sections 89 and 90, if:

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

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

  • 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 this is the least restrictive care option possible in the circumstances, and consider an Advance Directive that requires otherwise (but is not bound by it). Lastly, the admission will only be made if you are found to be ineligible to receive care and treatment as an independentpatient because you are unable to make mental health care and treatment decisions independently and need very high support from your nominated representative. This involuntary admission can be for a 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 under Section 98 – 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 that. If the conditions of the law are met, long term admissions can be granted even up to 180 days each time.

Provisions regarding addressing violation of rights in mental healthcare establishments leave the onus on the individual to report them without acknowledging 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 under Section 27, but there is no provision for support to brief the counsel.

When you are considering options for seeking treatment in a ‘mental health establishment’, the definition of the same is very wide and includes any establishments for care, treatment, convalescence and rehabilitation of persons with psychosocial disability. These require licensing under Chapter X of the Act, and anyone running an establishment that can be said to be a mental health establishment can be fined for not obtaining license under Section 107. Therefore, you may find it difficult to seek mental health treatment in shelter homes for domestic violence victims, children’s homes, senior citizen daycare, etc. which may find it easier to just avoid taking in people with psychosocial disabilities rather than seeking licensing under the Act. The Act already provides for mandatorily shifting of persons perceived to have mental illness in State-run custodial institutions to mental health establishments under Section 104.

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. The PwDA has a non obstante clause which states that the law shall be in addition to, and not in derogation of, any law for the time being in force. The Mental Healthcare Act, in Section 120,shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. In case of a clash between the two legislations, the Mental Healthcare Act will prevail.

The Act also does not do away with declarations of ‘unsound mind or findings of mental illness for the purpose of divorce proceedings, etc. If you are facing legal proceedings where it is alleged that you are of unsound mind in proceedings relating to divorce, custody, etc. the concerned Court is supposed to refer all such determinations to the Board under Section 105 of the Act. This may be inconvenient as it amounts to running two parallel proceedings with respect to the same case.

Decisions regarding continuation of deprivation of liberty for the purposes of mental health treatment are to be taken by the Mental Healthcare Board, while earlier under the 1987 Act this decision was to be taken by a Magistrate. A Magistrate is present at the local level, while the Mental Healthcare Board need not be present even at every district or even, in the case of the north eastern region of India, in every State for that matter. You or your nominated representative may find it difficult to move the Board. Persons with psychosocial disabilities may have to wait for several days within mental health establishment before the Board considers their appeals.

Even if the Board finds that a person no longer requires an order of supported admission to the Mental Health establishment, the Act provides that they may continue to remain in the mental health establishment as an independent patient and does not clarify for how long and what procedure is to be adopted to give the person an effective chance to live in the community.

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

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