- 1 Introduction
- 2 The History of Mental Health Law in India
- 2.1 Pre-Independence
- 2.2 Post-Independence
- 2.3 The Mental Healthcare Act, 2017
- 3 Suggestions
- 4 Conclusion
The subcontinent of India contains 97.5 million mental health patients with merely 4,000 mental health facilities available. 1Mental Health Atlas 2011 – Department of Mental Health and Substance Abuse, World Health Organization, India Chapter, https://www.who.int
The ratio of mental health patient to mental health facilities is minuscule. 2Mathematically after calculating the ratio comes up to 1: 0.00004102564 (patient: facility)
The Act in force was Introduced in parliament by Ghulam Nabi Azad. The Act aims at providing care and services for persons with mental illness. As well as ensure, advance and adhere to the entitlements of such people during conveyance of mental well-being assistance and administrations and for issues associated in addition to that or accidental to that. The Act superseded Mental Health Act, 1987. The Act received assent on 7th April 2017 and was active from 29th May 2018. No amendments are pending in parliament as on February 2020.
The History of Mental Health Law in India
The evolution of laws concerning mental well being in India is an interesting phenomenon to study. Indian Mental Health Act is a direct descent of the colonial rule. Hence, the history of mental wellness legislation in India can be interpreted and understood from the British Raj perspective in India, especially in the colonial and post-colonial era. The development of contemporary psychiatry has always been seen, especially in colonial and post-colonial times, through the prism of western science. 3A.R.Basu, Historicizing Indian psychiatry, INDIAN J PSYCHIATRY.47(2):126–129 (2005).
The British Monarch took control of the Indian Government from the East India Company in 1858. This also brought many changes in the administration and healthcare system, which later resulted in the establishment of more lunatic asylums. Within 100 years there was unprecedented growth in the number of asylums.
Under the acts as mentioned earlier, patients were detained for an indeﬁnite period in poor living conditions, with little chance of recovery or discharge. This led to the introduction of a bill in 1911 that consolidated the then prevailing legislation and led to the Indian Lunacy Act (ILA) 1912. 4O. Somasundaram, The Indian Lunacy Act, 1912 The Historic Background, 1987, Vol 29 Iss. 1, Pg 3-14, http://www.indianjpsychiatry.org
The ILA 1912 was mainly the ﬁrst law that governed mental wellness in India. It brought in fundamental change for the management of asylums, which were renamed as mental hospitals.
However, this Act focused on the protection of the general public from those that were considered dangerous to society (i.e. patients with a mental illness). This is one of the leading causes of stigmatization of mental illnesses. In the pre-independence era, a person with mental illness was tagged a danger not just to society but to themselves, many years later, this tag still sticks with people. Although scientifically, mental illness is recognized as being at par with physical illness, it is a taboo in Indian society.
The Indian Psychiatric Society (IPS) drafted a mental health bill and submitted it to the Govt. of India in 1950. Still, it took nearly four decades for the Govt to adopt the Mental Health Bill by Rajya Sabha in 1986 and the Lok Sabha in 1987. This Bill received President’s assent in May 1987, but another six years wasted before finally implementing the Act in April 1993. J. 5K.Trivedi., Mental Health Act, Salient Features, Objectives, Critique And Future Directions. Clinical Practice Guideline, Pub Indian Psychiatric Society, (2009). Available online at http://www.indianjpsychiatry.org/.
Mental Health Care (MHC) Act of 2017 has passed through different timelines. It was passed and approved by parliament and got assent by the President in April 2017 and eventually come into force from 29th May 2018. Earlier with the Mental Health Act (MHA) 1987, there was a start for a humanistic approach for treating mental disorders with provisions for human rights but without emphasis on issues like consent. Provisions for voluntary admissions and particular circumstances started.
As it involved the department of police and honourable courts in admission and discharge procedures, it had failed to remove virtual criminal flavour on the admission of patients with mental illness. There was no time frame for a maximum period of inpatient hospitalization for persons admitted involuntarily except for exceptional circumstances.
The Mental Healthcare Act, 2017
The right to access care and treatment for mental wellness means mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination based on gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or some other premise and provided in a manner that is adequate to people with mental illness and their families and care-givers.
That the Act accomplished was the rescinding of the Mental Healthcare Act, 1987, which has been widely criticized for in a way dehumanizing patients and people suffering from issues of mental illness. 6Also see, Murthy RS. Mental health initiatives in India (1947-2010). Natl Med J India 2011;24:98-107.
The following can be considered the salient features –
Rights of persons with mental illness
Every person has the right to get to mental health care, and treatment from administrations run or supported by the Government.
The right to get to mental health care incorporates reasonable, good standard of and straightforward access to services. Persons with mental illness even have the right to equality of treatment, protection from barbaric and corrupting treatment, free legal services, access to their medical records, and, and complain regarding deficiencies in the provision of mental health care. As understood from the preamble of the Act.
Admission of persons with mental illness
The Act traces the strategy and procedure for affirmation, treatment, and also ensuing release of mentally ill persons.
Decriminalizing suicide and prohibiting electroconvulsive therapy
The next paramount feature of the Act is the decriminalizing of suicide. Mental Health Care Act, 2017 S. 115
It should be noted that Section 309 of the Indian Penal Code, criminalizes attempted suicide, this Act seeks to consider and understand the trauma a person had to go through to resort to suicide as the end means. The Act also aims to cast a duty on the Government to provide care, treatment and rehabilitation to a person, having severe stress. As for the people who attempted to commit suicide, the Act seeks to reduce the risk of recurrence of attempt to commit suicide. Ibid
- The Act also provides for the following treatments not be performed on any person with mental illness–
- electroconvulsive therapy without the use of muscle relaxants and anaesthesia;
- electroconvulsive therapy for minors;
- sterilization of men or women, when such sterilization intended as a treatment for mental illness;
- chained in any manner or form whatsoever.
A mentally-ill person has the right to form an advance directive that states how they want to be treated for the illness during a mental health situation and who their nominated representative shall be. An advance directive has to be certified by a person from the medical field or a person who is enlisted with the Mental Health Board. If a mental health professional/ relative/care-giver does not wish to follow the directive while treating the person, they can make an application to the Mental Health Board to review/alter/cancel the advance directive.
Mental Health Review Commission and Board
The Mental Health Review Commission is a quasi-judicial body which periodically reviews the utilization of and the procedure for creating advance directives and advise the Government on the protection of the rights of mentally ill persons. The Commission with the concurrence of the state governments, constitute Mental Health Review Boards within the districts of a state.
The Board will have the power to register, review/alter/cancel an advance directive,
appoint a nominated representative, adjudicate complaints regarding deficiencies in care and services, receive and decide application from a person with mental illness/his nominated representative/any other interested person against the decision of a medical officer or psychiatrists in charge of a mental health establishment.
The punishment for violating provisions under this Act will be 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.
The new Mental Healthcare Act 2017 is supposed to change the fundamental approach on mental health issues including sensible patient-centric health care, instead of a criminal-centric one, in India – the second most inhabited country and one of the fastest economies in the world. The Act ensures a right of modest, obtainable and quality mental health care and treatment from mental health administrations run or financed by Central and State governments. The Act also makes provision for a range of services to be provided by the appropriate Government.
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. Hence, being optimistic about the Bill, there is a need to wait and watch for its implementation.
The Act does not provide for management of the property of mentally ill persons. This is a genuine purpose of worry as mentally ill people could without much of a stretch be misused, and their property detracted from them, leaving such people in a never-ending state of dependency. The series of rights recognized by the Act does not account for property management of mentally ill persons.
The history of mental health in India is not an untroubled one. The stigmatization of mental health in our society is a grave concern. The development in law displays that we are moving forwards in matters of mental health. Although it may take us some time, we have come a long way from viewing mentally ill people as a danger to society to them just needing some extra help from criminalizing suicide to understand the pressure that drives people to commit such an extreme act.