Nearly four weeks of war and conflict in Ukraine is having devastating consequences on Ukrainians and migrants alike. Not only is the war disrupting critically-needed care and breaking already strained health systems, but the trauma, terror, and anguish is putting a massive strain on people’s mental health. Mental health support should be prioritised for civilians fleeing Ukraine’s war, particularly for those who have endured traumatic events such as the loss of homes and loved ones, which increases the risk of mental health problems such as PTSD, anxiety, and depression.
Given the considerable risk of mental health consequences of war, as well as the potential for having long-term effects, it is critical to address the mental health regulatory landscape in India, as the Ukraine-Russia crisis may escalate into an insurgency phase, resulting in increased mental health needs.
In this article, Team YLCC brings you an overview on the Mental Healthcare Act, 2017, Read on!
Mental Healthcare Scenario in India
The mental health landscape in India has faced a paradigm shift, from a diagnoses + medication based approach towards a holistic-recovery based approach that addresses all social determinants that affect a persons’ mental health.
The first legislation that threw light upon mental health in India but only in the form of Custodial Care of Persons with Mental Illness was the Indian Lunacy Act, 1912 (Lunacy Act). The legislation focused more on administration rather than treatment.
Post-Independence, The Lunacy Act was replaced by the Mental Health Act, 1987. The 1987 Act focused on treatment, however, the Human Rights of the Mentally Ill persons were not given the required recognition.
In October 2007, India ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Since its ratification, India was required to harmonize and align its existing legislations with the provisions of CRPD and for that purpose, the 1987 Act was repealed by the enactment of the Mental Healthcare Act, 2017 (MHA 2017) whose Preamble holistically focuses on provision of Care and Services (Treatment, Care and Rehabilitation) and Protection, Promotion and Fulfilment of the Rights of the Mentally Ill while undergoing treatment.
Major Highlights of the MHA 2017
The 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 subnormality of intelligence.”[1]
- Mental Illness and Capacity to Make Mental Healthcare and Treatment Decisions
Section 3 of the MHA 2017 states that determination of mental illness must always be done based on national/internationally accepted medical standards and it must not be determined on the basis of political, economic or social status or membership/non-conformity with any moral, cultural, racial or religious work/values/group. Furthermore, past treatment or hospitalisation in a mental health establishment shall not by itself determine a person’s mental illness. Also, if a person is determined to be mentally ill, it shall not be implied that the person is of unsound mind unless declared as such by a competent court.[2]
Section 4 states that unless shown otherwise, every person is considered to have the Mental Capacity to make decisions about his or her mental health care. A person is deemed to have the Mental Capacity when such person can understand the information that is necessary to make a decision on the treatment or admission, or can appreciate consequences of a decision or lack of decision on the treatment, or can communicate the decision.[3]
- Advance Directive
Section 5 sets out the provision for an Advance Directive, which is a legal document that gives a mentally ill person (except for a minor) the right to make an advance directive on how they wish to be treated for their illness and who will be their Nominated Representative (who assists the patient with treatment related decisions). Advance Directive can only be invoked when such person ceases to have Mental Capacity to make healthcare/treatment decisions. A medical officer in charge of a mental health establishment or a medical practitioner or a mental health professional medical professional must approve this directive. However, a medical practitioner or a mental health professional shall not be held liable for any unforeseen consequences on following a valid advance directive.[4]
- Rights of Persons with Mental Illness
The Legislation’s explicit provision of Rights of Persons with Mental Illness is a novel aspect.[5] These rights have become justiciable due to their statutory recognition. The following are the rights established by the Act:
- Right to access mental healthcare
- Right to community living
- Right to live with dignity and be protected from cruel, inhuman and degrading treatment and all forms of abuse
- Right to equality and non-discrimination
- Right to information
- Right to confidentiality
- Right to access medical records
- Right to personal contacts and communication
- Right to legal aid
- Right to complain regarding deficiencies in the provision of care, treatment and services
- Implementing Authorities
- Central Mental Health Authority
The Central Mental Health Authority’s (Central Authority) role is to enlist and register all mental healthcare institutions under the Central Government’s control, as well as to fund and direct the quality services that must be maintained for various types of mental institutions, as well as to maintain a list of all medical professionals who should be contacted in the event of an emergency.
- State Mental Health Authority
Similar to the Central Authority, the role of State Mental Health Authority (State Authority) is to enlist, register, supervise all mental health establishments in the State and develop quality and service provision norms for different types of mental health establishments in the State. Additionally, they also have to register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals, and publish the list of such professionals in such manner as may be specified by regulations by the State Authority.
- Mental Health Review Board
The Mental Health Review Boards (Board) are to be Constituted by the Relevant State Authority. It is a quasi-judicial body and its role is to register, review, alter, modify or cancel an advance directive, to appoint a nominated representative and to receive and decide application against the decision of medical officer/ medical professional and to decide applications in respect non-disclosure of information. Additionally, the Board is also required to adjudicate complaints regarding deficiencies in care and services. Furthermore, the Board is also mandated to visit and inspect prison/jails and seek clarifications of health services in such prison/jail.
- Prohibited Procedures
Section 95 clearly prohibits the following procedures:
- Electro-convulsive therapy without the use of muscle relaxants and anesthesia
- Electro-convulsive therapy for minors (if in the opinion of minor’s psychiatrist, electro-convulsive therapy is required, then, such treatment shall be done with the informed consent of the guardian and prior permission of the concerned Review Board.)
- Sterilization of men or women, when such sterilization is intended as a treatment for mental illness
- Chained in any manner or form whatsoever.
Section 96 clearly stipulates that; no psychosurgery shall be performed until:
- The informed consent of the patient on whom surgery is being performed has been obtained, and
- Approval from the concerned board to perform the surgery has been obtained.
- Decriminalization of Suicide
Section 115 establishes a presumption of extreme stress in favor of people who attempt suicide and imposes an obligation on the state government to offer care, treatment, and rehabilitation to those who are suffering from severe stress in order to decrease the likelihood of recurrence of attempt to suicide. It further prohibits the trial and punishment of persons attempting suicide under the Indian Penal Code.[6]
Conclusion
MHA 2017 has been heralded as both a game-changer and an impediment to effective patient care. However, there is some dispute as to how genuine the Advance Directive Document appointing the Nominated Representative is, because there is the potential for abuse of the Act’s provisions by unauthorised persons using fraudulent ways to be nominated, if such appointment is not validated as bonafide.
Psychiatrists are listed as one of the primary mental health practitioners under the act and they are also allowed to consult with family members or caregivers if the mentally ill person is being discharged to live with them.[7] This provision has brought a lot of criticism against the Act.[8]
One of the major highlights of the Act is that it includes provisions aimed at bringing about a paradigm shift for the better in terms of mental healthcare access across the country, particularly for those living below the poverty line.[9]
It’s worth noting that the MHA 2017 signals a significant shift in how people with mental illnesses are treated. This transition was made possible by focusing on safeguarding and supporting the rights of people with mental illnesses, as well as ensuring that they are treated and rehabilitated in the least restrictive environment feasible while maintaining their dignity.
[1] Section 2(s), Mental Healthcare Act, 2017
[2] Section 3, Mental Healthcare Act, 2017
[3] Section 4, Mental Healthcare Act, 2017
[4] Section 5, Mental Healthcare Act, 2017
[5] Chapter V, Mental Healthcare Act, 2017
[6] Section 115, Mental Healthcare Act, 2017.
[7] Section 98, Mental Healthcare Act, 2017.
[8] Narayan CL, Shekhar S, The mental health care bill 2013: A critical appraisal. Indian J Psychol Med.
[9] Section 18(7), Mental Healthcare Act, 2007.
YLCC would like to thank Shloka Jain for her valuable insights in this article.
