This blog is written by ASHAFAK HUSEN, pursuing Bachelor of Law, from D.D.U. Gorakhpur, University, Gorakhpur, Uttar Pradesh.
Introduction
The Mental Healthcare Act, 2017, marks a significant turning point in India’s approach to mental health. Enacted on April 7, 2017, and enforced from May 29, 2018, this legislation represents a departure from the earlier Mental Health Act of 1987, which was criticized for its failure to protect the rights of individuals with mental illnesses. The 2017 Act redefines “mental illness” as a substantial disorder affecting thinking, mood, perception, orientation, or memory, resulting in impaired judgment or an inability to meet the ordinary demands of life, including conditions linked to substance abuse.
One of its key triumphs is the decriminalization of suicide attempts, which were previously punishable under Section 309 of the Indian Penal Code. Additionally, the Act empowers individuals with mental illnesses, recognizing their agency to make decisions regarding their health when they possess the necessary knowledge. It safeguards their rights, ensuring equal access to healthcare and treatment without discrimination, with insurers mandated to provide medical insurance on par with physical ailments.
Furthermore, the Act introduces essential provisions, such as the registration and supervision of mental health establishments, restrictions on electroconvulsive therapy usage, and the responsibility of other agencies, including the police, in protecting individuals with mental illnesses. It also emphasizes community living and non-discrimination.
History of the bill
The genesis of the Mental Healthcare Act, 2017, can be traced back to India’s earlier Mental Health Act of 1987, which primarily focused on the institutionalization of individuals with mental illnesses. However, the 1987 Act drew widespread criticism for its failure to uphold the rights of those suffering from mental disorders. It lacked provisions to protect their well-being and often resulted in the isolation of individuals within mental health institutions.
Recognizing the urgent need for reform, India embarked on a legislative journey to overhaul its approach to mental healthcare. The Mental Healthcare Act, 2017, emerged as a response to these shortcomings. This comprehensive legal framework was unanimously passed in the Lok Sabha on March 27, 2017, and received approval from the President in April of the same year. It became effective on May 29, 2018.
The new Act signified a paradigm shift from the previous legislation. It redefined the concept of “mental illness” to align with internationally accepted medical standards, emphasizing impairment in thinking, mood, perception, orientation, or memory that affects judgment or the ability to meet daily life demands. Moreover, it discarded the punitive aspects associated with suicide attempts by individuals with mental illnesses.
Object of the Act
The Mental Healthcare Act, 2017, embodies a clear and profound objective to revolutionize mental healthcare in India by prioritizing the rights, dignity, and well being of individuals grappling with mental illnesses. This landmark legislation aims to rectify the shortcomings of its predecessor, the Mental Health Act of 1987, which often led to the isolation and discrimination of those with mental disorders.
The primary purpose of the 2017 Act is to provide comprehensive mental healthcare services and safeguard the rights of individuals with mental illnesses. It redefines “mental illness” according to internationally accepted medical standards, emphasizing conditions that significantly impair thinking, mood, perception, orientation, or memory, resulting in judgment impairment or an inability to meet daily life demands.
Crucially, the Act seeks to decriminalize suicide attempts by individuals with mental illnesses, offering them opportunities for rehabilitation instead of punitive measures. It empowers individuals with mental illnesses, acknowledging their agency to make decisions about their health when they possess the requisite knowledge.
The Act enshrines various rights, including equal access to healthcare, protection from inhuman treatment, access to free legal services, and the right to complain in case of deficiencies in provisions. It underscores community living and strives to eliminate discrimination.
IMPORTANT PROVISIONS
| S.NO | IMPORTANT PROVISIONS | EXPLANATION |
| 1. | DECRIMINALISATION OF ATTEMPTED SUICIDE | This provision decriminalizes attempted suicide, recognizing that individuals who attempt suicide need care, support, and rehabilitation rather than punishment. By removing the legal stigma associated with attempted suicide, the Act promotes a compassionate approach to mental health and encourages individuals to seek help without fear of legal repercussions. This provision aligns with international human rights standards and reflects a shift towards a more progressive and rights-based approach to mental healthcare. |
| 2. | RIGHT TO ACCESS MENTAL HEALTHCARE | This provision mandates the provision of mental healthcare services to all individuals, including those with mental illness, within the community and at public health facilities. It ensures that mental healthcare services are accessible and available to all citizens, irrespective of their socioeconomic status or geographic location. By guaranteeing the right to access mental healthcare, the Act aims to address disparities in mental health service provision and promote equity in healthcare delivery. This provision is essential for promoting early intervention, treatment, and support for individuals with mental illness, thereby improving their overall well-being and quality of life. |
| 3. | INFORMED CONSENT | This provisionmandates the provision of mental healthcare services to all individuals, including those with mental illness, within the community and at public health facilities. It ensures that mental healthcare services are accessible and available to all citizens, irrespective of their socioeconomic status or geographic location. By guaranteeing the right to access mental healthcare, the Act aims to address disparities in mental health service provision and promote equity in healthcare delivery. This provision is essential for promoting early intervention, treatment, and support for individuals with mental illness, thereby improving their overall well-being and quality of life. |
| 4. | ADVANCE DIRECTIVES | This provision allows individuals to make advance directives specifying the treatment they wish to receive or refuse in the event that they lose decision-making capacity due to mental illness. Advance directives empower individuals to have control over their treatment preferences and ensure that their wishes are respected even if they are unable to communicate them later. By enabling individuals to plan for their mental healthcare in advance, the Act promotes autonomy, dignity, and self-determination, while also providing clarity and guidance for healthcare providers and caregivers. This provision enhances the rights and agency of individuals with mental illness, allowing them to participate actively in decisions about their care. |
| 5. | ESTABLISHMENT OF MENTAL HEALTH BOARDS | This provision mandates the establishment of Mental Health Review Boards at the district level to safeguard the rights of individuals with mental illness. These boards serve as independent bodies responsible for reviewing admissions, making decisions regarding the discharge of individuals, and addressing complaints regarding mental healthcare services. By providing oversight and accountability in the delivery of mental healthcare, the Review Boards ensure that the rights and interests of individuals with mental illness are protected. They play a crucial role in upholding the principles of fairness, transparency, and justice in mental healthcare delivery, thereby promoting trust and confidence in the mental health system. |
| 6. | REGULATION OF MENTAL HEALTH ESTABLISHMENTS | This provision regulates and monitors mental health establishments to ensure that they meet specified standards of care and treatment. It includes requirements related to infrastructure, staffing, and quality of care provided to individuals with mental illness. By setting standards and guidelines for mental health establishments, the Act aims to improve the quality and safety of mental healthcare services. It also enhances accountability and transparency in the operation of mental health facilities, ensuring that individuals receive appropriate and ethical treatment. This provision is essential for protecting the rights and well-being of individuals with mental illness and promoting the overall effectiveness of the mental health system. |
| 7. | RIGHTS OF PERSONS WITH MENTAL ILLNESS | This provision protects the rights of persons with mental illness, ensuring their dignity, autonomy, and equality in society. It prohibits discrimination on the basis of mental illness and promotes their inclusion in all aspects of life. The provision guarantees the right to access mental healthcare, education, employment, and housing without discrimination. Additionally, it safeguards the right to privacy, confidentiality, and access to legal aid for persons with mental illness. By upholding these rights, the Act aims to reduce stigma, promote social acceptance, and empower individuals with mental illness to lead fulfilling and meaningful lives. This provision reflects a commitment to human rights principles and ensures that persons with mental illness are treated with respect, compassion, and dignity. |
PENAL PROVISIONS
| S.No | PENAL PROVISIONS | EXPLANATION |
| 1. | Penalities for establishing or maintaining mental health establishment in the contravention of provisions of this act | The MHE without registration shall be liable to a penalty which may extend to ₹ 50,000 for the first contravention, up to ₹ 2 lakh for a second contravention, and up to ₹ 5 lakh for every subsequent contravention. |
| 2. | Punishment for contravention of provisions of the Act or rules or regulations made thereunder | For initial contravention, imprisonment for a term up to 6 months or fine up to ₹ 10,000 or both. For any subsequent contravention, imprisonment up to 2 years or fine up to ₹ 5 lakh or both. |
| 3. | Offenses by companies | Where a company has committed an offense under this Act, every person who, at the time the offense was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. |
Need and Significance
The Mental Healthcare Act, 2017, emerged as a crucial response to address the long-standing gaps and challenges in India’s mental healthcare system. Its need and significance are underscored by several compelling factors:
- Historical Inadequacy: Prior to the enactment of the 2017 Act, India’s mental health legal framework was primarily governed by the Mental Health Act of 1987. This outdated legislation lacked a rights-based approach and was criticized for prioritizing institutionalization over community-based care. The need for reform was evident in the face of evolving global standards and India’s commitment to international human rights treaties.
- Human Rights and Dignity: The Act is deeply rooted in the principles of human rights and dignity. It acknowledges the fundamental rights of individuals with mental illnesses, aligning with the Convention on the Rights of Persons with Disabilities (CRPD). By decriminalizing suicide attempts, protecting against inhuman treatment, and ensuring equal access to quality mental healthcare, the Act advances the cause of human rights and dignity for a vulnerable population.
- Empowerment of Individuals: One of the most significant aspects of the Act is its empowerment of individuals with mental illnesses. Through advance directives, they gain the right to make informed decisions about their treatment and nominate representatives. This shift towards patient agency is a major milestone in mental healthcare, as it recognizes the capacity of individuals to participate actively in their own care.
- Destigmatization: India, like many countries, has grappled with deep-seated stigma surrounding mental illnesses. Families often hid the conditions of their loved ones due to fear and shame. The Act’s focus on rights and non-discrimination is pivotal in challenging these stigmatizing attitudes. By placing individuals’ rights at the forefront, it encourages open conversations about mental health and reduces the societal stigma associated with it.
- Equal Access to Healthcare: The Act guarantees that individuals with mental illnesses have the right to access quality mental healthcare services. It emphasizes the importance of these services being convenient, affordable, and accessible, regardless of a person’s socio-economic status. This provision addresses the longstanding issue of disparities in mental healthcare access.
- Regulation and Oversight: The establishment of the Central Mental Health Authority and State Mental Health Authorities signifies a commitment to regulating and overseeing mental healthcare establishments and practitioners. This ensures that care is delivered ethically and upholds the rights of individuals. The Act sets standards and guidelines for mental health services, enhancing accountability.
- Prevention and Rehabilitation: While the Act primarily focuses on treatment and rehabilitation, it also opens doors for prevention and early intervention efforts. By recognizing the agency of individuals and their right to make decisions about their care, it encourages proactive approaches to mental health, potentially reducing the burden of severe mental illnesses.
- International Obligations: India’s commitment to international treaties, particularly the CRPD and its Optional Protocol, played a pivotal role in the enactment of the 2017 Act. The Act aligns with these obligations and demonstrates India’s dedication to fulfilling its international human rights commitments.
Criticism and Limitations
While the Mental Healthcare Act, 2017, marks a substantial improvement in India’s approach to mental health, it is not without its criticisms and limitations:
- Implementation Challenges: One of the most significant hurdles is the effective implementation of the Act. Despite its progressive provisions, translating them into action requires robust infrastructure, adequate funding, and trained professionals. The lack of mental health facilities, especially in rural areas, poses a severe challenge to delivering care and services as mandated by the Act.
- Advance Directives: While the provision for advance directives empowers individuals to make decisions about their treatment, it may not fully align with India’s social and cultural context. Many individuals with severe mental disorders may lack the capacity to create such directives or nominate representatives. In such cases, treating physicians often need to make decisions in the best interest of the patient.
- Financial Burden: The Act places substantial responsibilities on state governments to provide free quality treatment, including insurance coverage, for mental illnesses. Given India’s already strained healthcare budget, the financial burden of fulfilling these obligations may be overwhelming, potentially impacting the quality and accessibility of mental healthcare services.
- Stigma and Awareness: The Act does little to address the deep-seated stigma surrounding mental illness in India. Discrimination and prejudice against individuals with mental disorders persist, making it challenging for them to seek help or participate fully in society. More comprehensive efforts to raise awareness and reduce stigma are needed.
- Prevention and Early Intervention: The Act primarily focuses on treatment and rehabilitation, but it does not place a strong emphasis on prevention and early intervention. Mental health issues often go undetected until they reach crisis levels. Incorporating preventive measures and early intervention strategies would be crucial in addressing the growing mental health burden.
- Resource Allocation: The Act does not provide clear guidelines on how funds should be allocated between the central and state governments to meet the obligations outlined in the legislation. This lack of clarity could lead to disparities in the availability and quality of mental healthcare services across different states.
- Misuse of Decriminalization: While the decriminalization of suicide attempts is a positive step, there is a potential for misuse, especially in cases of dowry-related violence or attempted homicide, where self-harm may be falsely portrayed as a suicide attempt to evade legal consequences.
- Limited Focus on Prevention: The Act primarily concentrates on treatment and rehabilitation, with limited attention to prevention strategies. Preventing mental health issues and early intervention could significantly reduce the overall burden on the healthcare system.
Conclusion
The Mental Healthcare Act, 2017, represents a pivotal moment in India’s approach to mental health. It has ushered in a new era of compassion, patient-centric care, and recognition of the rights and dignity of individuals with mental illnesses. By decriminalizing suicide attempts, empowering patients with advance directives, and ensuring equal access to quality mental healthcare, the Act signifies a departure from the punitive and discriminatory practices of the past.
However, this transformative legislation is not without its challenges. Effective implementation remains a significant hurdle, given the need for robust infrastructure, funding, and trained professionals. The financial burden on state governments to provide free quality treatment is substantial, and addressing deep-seated stigma and raising awareness about mental health remain ongoing tasks.
Furthermore, the Act’s limited focus on prevention and early intervention underscores the need for a comprehensive approach that extends beyond treatment and rehabilitation.
In spite of these challenges, the Mental Healthcare Act, 2017, is a beacon of hope for the millions of individuals grappling with mental illnesses in India. It signifies a commitment to a future where mental health is treated with the same importance as physical health and where every person, regardless of their mental health status, can live a life of dignity and fulfillment.
As the nation continues its journey towards a more inclusive and compassionate mental healthcare system, it is imperative to address the Act’s limitations, allocate resources judiciously, and work collectively to reduce stigma, increase awareness, and prioritize prevention. In doing so, India can truly fulfill the promise of the Mental Healthcare Act, 2017, and provide a brighter and more hopeful future for individuals and families affected by mental illnesses.
