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Mental health is an integral part of health and it is more than the absence of mental illnesses.
It is the foundation for well-being and effective functioning of individuals. It includes mental
well-being, prevention of mental disorders, treatment and rehabilitation.

In this light, on March 27, 2017, Lok Sabha in a unanimous decision revoked the existing
Mental Healthcare Act 1987, which had been widely criticized for not recognizing the rights
of a mentally ill person, and passed the Mental Healthcare Act 2017, which was passed in
Rajya Sabha on August 2016 and got its approval from Honorable President of India on April
2017.

This Act was passed to provide mental healthcare and services for persons with mental illness
and to protect, promote and fulfil the rights of such persons during delivery of mental
healthcare and services and for matters connected therewith or incidental thereto.
The Act was drafted based on the recommendations of the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD).

This 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 sub-normality of
intelligence.

Following are few key provisions of the Act:

? Right of a mentally-ill person:
This Act stipulates the right of every person to access mental healthcare and treatment
from mental health services run or funded by the appropriate Government. The right
to access mental healthcare and treatment has been defined by the Act to mean
‘mental health services of affordable cost, of good quality, available in sufficient
quantity, accessible geographically, without discrimination on the basis of gender,
sex, sexual orientation, religion, culture, caste, social or political beliefs, class,
disability or any other basis and provided in a manner that is acceptable to persons
with mental illness and their families and care-givers.’

Chapter 3 of the Act also confers powers on individuals (above 18 years) to issue
advance directives specifying who he/she wants to appoint as nominated
representatives and the way he/she wishes to be cared for.

This Act also specifies the right of mentally-ill persons to live with dignity and their
right to confidentiality.

? Establishment of Central and State Authority:
This Act led to the establishment of a Central Authority i.e., Central Mental Health
Authority and State Authority i.e., State Mental Health Authority for the regulation &
co-ordination of mental health services under the central and state governments
respectively.

? Decriminalizing suicide and prohibiting electroconvulsive therapy:
It decriminalizes suicide attempts by a mentally ill person and it imposes on the
government a duty to rehabilitate such person to ensure that there is no recurrence of
attempt to suicide. Electro-convulsive therapy without the use of muscle relaxants and
Anaesthesia and electro-convulsive therapy for minors were also restricted through
this Act. This Act also prohibits procedures such as sterilisation of men or women,
when such sterilisation is intended as a treatment for mental illness as well as chaining
individuals in any manner or form whatsoever.

? Offences and Penalties:
The Act specifies that the contravention of any of the provisions of this Act, is to be
punishable with imprisonment for a term which may extend to six months, or with a
fine which may extend to ten thousand rupees or with both, and that subsequent
contraventions would be punishable with imprisonment for a term which may extend
to two years or with fine which shall not be less than fifty thousand rupees but which
may extend to five lakh rupees or with both.

Conclusion and Analysis:
Despite the Act being quite comprehensive, it lacks in its implementation and applicability.
This Act sanctions accessibility to mental health services to all. It also mandates the provision
of mental health services be established and available in every district of the country.
However, with already inadequate medical infrastructure at district and subdistrict levels, the
financial burden borne by the state governments is massive.

The right to advance directives, which gives patients more autonomy to decide certain aspects
of their own treatment, though an innovative concept, lacks in terms of materiality. This is
because local factors such as existing mental health resources and lack of awareness about
mental illness in India have not been taken into account. Mentally ill persons who suffer from
serious psychological disorder often lack the ability to make sound decisions and do not
always have a relative to speak on their behalf. In such a situation, the treating physician is
the best to take decisions because patients or their nominated representatives have limited
knowledge on mental health and mental illness. Hence, from a physician perspective, this
directive lengthens the time of admission of mentally ill persons.

In fact, The Indian Psychiatric Society has even highlighted that advance directive and
nominated representatives are not patient friendly.

The newly introduced decriminalization of suicide was definitely a welcome move. But there
is a high probability of misuse of this provision. In cases of dowry-related burning/attempted
homicide, this could be twisted as attempted suicide and would not warrant the needed
attention.

Additionally, in developing countries like India, persons with mental illness and their
situations are aggravated by socioeconomic and cultural factors, such as lack of access to
healthcare, superstition, lack of awareness, stigma, and discrimination. This bill does not
direct any provisions to address these factors. The mental healthcare bill does not offer much
on prevention and early intervention either.

Finally, there is also a dire 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.

Therefore, The Mental Healthcare Services Act 2017, despite its novel provisions, still has a
long way to go to ensure an effective mechanism and machinery to provide quality mental
health care and services for persons with mental illness.

References:
? The Mental Health Care Act, 2017
? Mental Healthcare Bill: Despite the Positive Reforms, a Lot More Needs to be Done for the
Mentally Ill. First Post. (April 8, 2017), https://www.firstpost.com/india/mental-healthcare-bill-despite-the-positive-reform-a-lot-more-needs-to-be-done-for-the-mentally-ill-
3373156.html
? Mental Healthcare Act 2017: Need to Wait and Watch, NCBI (April 2018),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5932926/#ref33

By
Athira Mathew
BA LLB Hons,
Christ University

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