Insights into the Mental Healthcare Act, 2017

Introduction

INTRINSIC NEED TO FOR A MENTAL HEALTH CARE ACT

It is of utmost importance for a country to introduce a Mental Healthcare Act as it serves as an essential towards safeguarding the rights and dignity of the persons affected by mental disorders as well as for developing an accessible and effective mental health care service for the citizens of the country.

OBJECTIVE OF THE ACT

Effective mental healthcare legislation also plays an integral role in the furtherance of the objective of integrating mental health care services into the community, it will also channelize the path to overcome the stigma attached to mental disorders, discrimination, and exclusion of mentally- ill persons. Furthermore, mental health law can establish guidelines through which a country develops its mental health policy[1], or reinforce previously established mental health policies that seek to provide effective and accessible mental health care through the community.

INCEPTION OF MENTAL HEALTHCARE ACT, 2017 IN INDIA

On March 27, 2017, Lok Sabha in a unanimous decision passed the Mental Healthcare Act 2017.  The definition propounded by the new legislation for the mental illness is as follows:

“A substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.”

This act successfully revoked the much-criticized and biased 1987 act of the Mental Healthcare since the revoked act had failed in recognizing the rights of a mentally ill person and was responsible for conditionally isolating patients of mental health. Another highlight of this Act is to protect the rights of a person with mental illness and thereby facilitating his/her access to treatment by an advance directive allowing individuals to decide how they want to be treated for their illness.

Salient Feature of the Act

Every person through this legislation has been bestowed with the right to access good, convenient, and affordable mental health care services[2] in the country. The act safeguards the interests of the mentally ill persons. It aims at protecting them against the inhumane treatment by giving access to free legal services and their medical records; and the right to complain in the event of deficiencies in provisions.

1. Through this act every person except a minor who is mentally ill has a right to make an advance directive. This implies a conscious choice as to how he/she wants treatment for the respective illness. They also have a right to nominate their representative.
2. The government is to set up the Central Mental Health Authority at the national level and the State Mental Health Authority in every state. Under this all the mental health practitioners and institutions will have to register themselves. These bodies will further register and supervise the activities of such institutions; they will focus on subsequent development, advise the government to take adequate measures for reform, and so on.
3. The act further outlines the procedure very strategically and constructively for the admission, treatment, and consequential discharge of the ill patients.
4. One of the applauded and welcomed features of this act is the decriminalization of suicide[3]. Suicide was a penalizing offense under Section 309 of the Indian Penal Code. The government has taken the onus to rehabilitate such patients and avoid repetition of such instance; rather than smothering them at the behest of orthodox law.
5. Another challenging obstacle the act crosses is that a person with mental illness is not subject to electroconvulsive therapy (ECT) therapy without the use of muscle relaxants and anesthesia. Furthermore, ECT therapy is not performable on minors.
6. The act has made efforts to hold the other agencies responsible; also it imposes a duty on the police officer in charge of a police station. They are to report to the Magistrate if they have reason to believe that a mentally ill person is facing ill-treatment or neglect. It also directs the police to take care of any wandering person who can be mentally ill to subsequently take him for medical examination and required treatment.
7. The act holds an authoritative nature. It creates a financial punishment for those who violate the provisions of the Act. The punishment for violating provisions under this Act is imprisonment up to 6 months or Rs. 10,000 one or both. Repeat offenders can face up to 2 years in jail or a fine of Rs. 50,000–5 lakhs or both.
8. The act also creates a right to community living for the patients. It gives them a right to live with dignity, protection from cruel, inhuman, or degrading treatment; treatment equal to persons with physical illness; right to legal aid; and recourse against deficiencies in provision of care, treatment, and services.
9. One of the distinct features of the act is to provide free quality treatment for homeless persons or those belonging to below poverty line (BPL), even if they do not possess a BPL card. However, in our country, mental illness is considerably equal to depression; and isolation is considerably a plausible recourse of treatment; the financial burden on government is too high.

The Drawbacks of the Mental Healthcare Act, 2017

Various stakeholders of the country welcomed The Mental Healthcare Act, 2017. It received applause for overcoming the shortcomings of the much-criticized act of 1987. However, it would be ambitious to say that the present act is void of any shortcomings or lacunas in the provisions of the Act. After dealing with the salient features of the Act, it furthermore becomes relevant to deal with the drawbacks of the act and analyze them critically.

I. THE BARE PROVISIONS OF THE ACT

The bare reading of the definition itself of mental illness highlights a major lacuna or loophole in the act. There is a grave technical error which reflects the poor understanding of the concept of mental illness in the first place.

The definition does not include mental retardation; which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence. As per this definition, this act is technically applicable only to those who have “substantial” impairment in thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life. Even people with personality disorders face exclusion from the act; which shows that the act only focuses on grave disorders.

II. RIGHT TO DISSEMINATE INFORMATION

The act also gives power to an NR to unlimited information on patients’ illness (Section 22). There is an urgent need to define information. Mental health professionals express reservations over such sharing of information, describing it as “breach of confidentiality” as per Medical Council Ethics 2002. This issue impinges on the fundamental right to privacy. Only patients may obtain their medical records. Or appropriate legal authorities may obtain them on a written request.

III. PUNISHMENT FOR VIOLATION OF ACT

The step to incorporate financial as well as statutory punishment for the people who violate the act is commendable and bona fide; but the punishments prescribed for the same are too harsh. The violation mentioned in the Act, is ,at times, accidental as well; and there is no provision of immunity for that. The responses and behavior of mentally ill people are at times erratic and irrational; there lies a possibility of an influx of complaints against officers or people in charge; this is due to the delusion of patients and litigation cases in the courts.

This fear of violating the law or penalization as a response to such complaints also creates a negative tendency of not taking care of such ill persons and abandoning them. Hence, there is an urgent need to find a balance to avoid wrongful penalizing; and limit the scope of the benefit of the doubt the patients get, while essentially safeguarding their rights as well.

IV. COMMUNITY TREATMENT ORDERS

As per the Act, the psychiatrist is responsible for patient care and treatment after discharge. This clause (Section 98) is idealistic but not possible in custodial care (involuntary patients), destitute patients, and voluntary admissions; wherein only the patient receives briefing or counselling regarding future treatment. The decision to accept/refuse treatment is a patient’s choice. The absence of discharge planning should not be a ground for negligence. There are other factors such as active cooperation of the patient and family members, that ensure continuity of care.

If the lawmakers are serious about this issue of “the continuity of care,” or “community treatment,” or “provision of care,” then they may enable the mental healthcare providers and family members with the introduction of the compulsory community treatment order (CTO). The act is silent on CTO which is acting as an effective way to treat persons with chronic mental disorders.

V. LACK OF RESOURCES

The Act does have elaborated provisions to establish mental health care service centers and aims to financially help the ill persons, however, it is to be realized that owing to India’s GDP and its developing nature, we do have a dearth of resources. Hence, the expected expenditure is not made by the government and the allocation of resources is not adequately balanced and directed towards this sector. This makes the provisions only existential on paper and lacks implementation.

VI. BUDGET AND RESEARCH

Since the budget of our country is very mainstream directed and often lacks the proper allocation of resources. The research on medication and treatment of psychological disorders is also very primitive in our country owing to such poor allocation of resources.

The drawback of the act is that it fails to create a compulsory mechanism to allocate a particular percentage of share of revenue for this sector, defeating the purpose of not only the provisions under the Act.

VI. SPECIFICATIONS ON THE ROLE OF THE FAMILY

The act does not specify the role of the family members in providing care in the hospital environment. There is a high need that family members need to be involved in the provision of care. This process not only protects the patient’s rights but also gets the family members involved in active treatment processes such as psychoeducation, supervised medication, family therapy, to be co-therapist, and also in the rehabilitation process. All these make a huge difference in continuity and outcome of the treatment

Conclusion

The new Mental Healthcare Act 2017 is aimed at changing the fundamental orthodox approach to mental health issues and fight the attached social stigma and discrimination to such patients. The act aims to include sensible patient-centric health care, instead of a criminal-centric one, in India which is the second-most populous country and one of the fastest economies in the world. The guidelines need to be reviewed on aspects such as primary prevention, reintegration, and rehabilitation because without such strengthening, its implementation would be incomplete and the issue of former mental health patients will continue to exist.

The act is very progressive also has a couple of drawbacks which are pointed out by the author in the aforementioned paper and there are certain clauses that would showcase a potential challenge in implementation. Hence, being optimistic about the Act, there is a need to wait and watch for its implementation. The act would be considered to be truly successful once such implementation is efficient and over the period of time our country can overcome the social-political-legal-economical obstacles attached to the successful treatment of the mentally ill persons.

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References:

[1] Thara R, Rameshkumar S, Mohan CG. Publications on community psychiatry. Indian J Psychiatry 2010;

[2] Health insurance to now cover treatment of mental illnesses, Bloombergquint 17.08.2018. https://www.thequint.com/news/insurance-to-cover-mental-healt.

[3] CHAPTER XVI: Section115; Mental Health Care Act  2017: https://www.prsindia.org/uploads/media/Mental%20Health/Mental%20Healthcare%20Act,%202017.pd.