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Introduction to the Mental Healthcare Act (MHC), 2017
The Mental Healthcare Act, 2017 came into existence in 2017 and was commenced on 29 May 2018 in India. This act aims at protecting and promoting the mental health rights of the persons with mental illness throughout the care process.
The act provides a deep understanding of the roles and functions of the authorities and the establishments who are responsible for providing the mental healthcare facilities.
The key aspect of this law is to give people with mental illness more control over their healthcare through advance directives and nominated representatives, protecting their rights, dignity, and ability to live in the community. In an effort to reduce stigma around mental illness and enhance mental healthcare services, it places a strong emphasis on confidentiality, equal treatment, legal assistance, and specialized treatment requirements.
The Act provides the right to every person to make an ‘Advance Directive’ in writing regardless of their history of mental illness or other mental health concerns. It describes the way a person wants themselves to be treated – or wishes to not be treated – for any future mental illness along with the provisions of appointing a Nominated Representative.
Specific recommendations and options for their mental health can be provided in writing. The Advance Directive thus gives people the ability to decide in advance how they want to be treated for their mental health, even if they later lose their capacity or are unable to express their choices.
Section 5(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall remain effective until such person regains capacity to make mental healthcare or treatment decisions.
Specific recommendations and options for their mental health can be provided in writing. The Advance Directive thus gives people the ability to decide in advance how they want to be treated for their mental health, even if they later lose their capacity or are unable to express their choices.
In this article, we delve into the benefits of the act, its gaps, socio-historic context and updates that have come forth since then.
Understanding the Mental Healthcare Act (MHC), 2017 from its Socio- Historical Context:
1) Evolution of the Law:
In the 1900s era, laws about mental health in India were influenced a lot by the British Colonialism. In 1912, they combined these laws into the Indian Lunacy Act, which was based on a British law from 1845. After India became independent in 1947, there was an attempt to make a new law for mental health, but it took more than 35 years for the Mental Health Act of 1987 to come into being. This law had gaps because it was based on understandings of mental health and illness from the past, that has evolved significantly since . The MHC Act of 1987 did not provide for rights of mentally ill persons and instead prioritised institutionalisation of mentally ill persons. It also necessitated stringent and arbitrary licensing requirements for psychiatrists.
2) Other Mental Health Programs:
The prevalence of Mental Health concerns and the widening treatment gap were proving challenging to address, particularly in the diverse Indian context, with the vast majority of those experiencing such concerns lacking awareness of emerging concerns and awareness of as well as access to treatment facilities for mental and behavioural disorders. Thus, public mental health and community mental health measures became increasingly important to develop. Moreover, in the Indian context, historically treatment and care options were located within the community – rising in support of the lack of institutionalizations, trained professionals and institutionalized care.
The World Health Organization (WHO) made a suggestion that led to the creation of India’s National Mental Health Programme (NMHP). The WHO had advised its members to create National Mental Health Programmes (NMHPs) in order to enhance mental health services and address the expanding mental health issues in their individual countries, including India. India adopted the NMHP in 1982. The NMHP in India was expanded upon by the District Mental Health Programme (DMHP). It was started in the 1990s to address the district-level shortage of mental health practitioners, facilities, and amenities. In order to incorporate mental healthcare into the primary healthcare system, DMHP focused on offering persons at the district level mental health treatments, awareness, and support. To close the gap in the provision of mental healthcare at the grassroot level, the program included outreach initiatives, training for healthcare professionals, community education, and the supply of mental health services.
3) Recent developments:
The Mental Healthcare Bill, 2013, introduced in the Rajya Sabha on August 19, 2013, to replace the previously existing Mental Health Act of 1987.
The major reason for introducing this bill was that on December 13, 2006, the UN General Assembly approved the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which was made to safeguard the rights and dignity of people with disabilities. On March 30, 2007, the UNCRPD was made available for signature. On March 30, 2007, the day the treaty was made available for signing, India formally ratified it. The convention places a strong emphasis on the values of equality of opportunity, accessibility, respect for innate dignity, and the freedom to make one’s own decisions, as well as it strongly emphasized the principle of non-discrimination. Thus necessitating the alignment of national laws with international standards.
Then the Bill was referred to the Standing Committee which was responsible for examining the Bill, it played a crucial role in shaping its provisions, and on 20th November 2013 put out their report suggesting poignant changes to the Bill, related to capacity, advance directive, funds, property management, insurance, decriminalising suicide and use of seclusion. This Bill was passed by the Rajya Sabha on 8th August 2016 .
Finally, the Mental Healthcare Bill, 2013 resulted into the Mental Healthcare Act of 2017, it was passed on 7 April 2017 and came into effect on 29 May 2018 after receiving the President’s assent.
4) Recent notification for Insurance Providers:
The Insurance Regulatory and Development Authority of India (IRDAI) notification in 2019 stated that all insurance companies must ensure coverage for mental illness in health insurance policies. It required that no distinction or prejudice be made in providing coverage for mental health disorders and that mental illness should be treated in the same way as other bodily illnesses. The purpose of this order was to guarantee that people with mental health problems have proper insurance coverage and support in accordance with the MHC Act. Then, in May 2021, the IRDAI stated that any insurance plan bought after the MHC Act, 2017 came into effect must automatically cover mental illness. No exception or exclusion is allowed henceforth. All insurance companies are instructed to follow these rules from October 31, 2022.
“Every person shall have a right to access mental health care and treatment from mental health services run or funded by the appropriate Government,” says the Act.
As described above, the MHC Act provides the benefit of nominating a Nominated according to Section 14 and making the Advance Directive as per Section 5 of the act.
Beside these, the Act also recognises the rights of the persons (including children and older persons) with mental illness. Further benefits of the law as described as under:
- Right to community living: This act provides the persons who don’t have family support, the appropriate government shall provide support including legal aid and to facilitate exercising his right to family home and living in the family home. The Appropriate Government according to the act shall make sure that no person with mental illness shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides.
- Right to live with Dignity: Every person with mental illness shall be protected from cruel, inhuman or degrading treatment in any mental health establishment shall have the right to adequate provision for wholesome food, sanitation, space and access to articles of personal hygiene, in particular, women’s personal hygiene be adequately addressed by providing access to items that may be required during menstruation. As per Section 20 of the MHC Act, 2017, no cruel, inhuman and degrading treatment is allowed.
- Right to Information: People with mental illness and their Nominated Representative have the right to know about the law, their illness, and treatment. They also have the right to access their medical records.
- Right to Confidentiality: Section 23 safeguards privacy of people who are experiencing mental health concerns. It obligates healthcare professionals to maintain confidentiality regards the personal information received while treating the person, except in the special circumstances.
Exceptions to confidentiality may occur in case required to avert danger to others or save the person’s life in which case certain aspects of relevant information may be shared with the nominated representative, concerned health professionals, and/or where necessary. Concerned Board or the Central Authority or High Court or Supreme Court or any other statutory authority competent to do so can also direct information release in the interests of public safety, national security, or similar reasons. The balance in this part is between patients’ privacy and the interests of those individuals and their societies. - Right to Personal Communication: People with mental illness can decide who they want to talk to. They can choose to talk to friends, family, or others, if it follows the rules of the mental healthcare establishments.
- Right to Legal support: Section 27 of the MHC Act ensures free legal aid to exercise rights of people living with mental illness .
- Healthcare facilities: Access and availability of mental healthcare at par with regular healthcare at Government Facilities according to Section 18 (1) of the MHC Act, 2017. According to its Section 18(7) Government shall provide mental health treatment and services free of any fee and without any financial cost to persons with mental illness who are below poverty line, destitute or homeless, whether or not they are in possession of a below poverty line card.
Section 18 (5) (f) states that in case minimum mental health services (as specified under sub-clause (e) of sub-section (4)) are not available in the district wherein a person experiencing mental illness resides, the person is entitled to avail of any other health service in the district, and entrusts the appropriate Government with the responsibility to bear the costs of such treatment availed by the person.
Section 18(10) says all individuals with mental illness shall always have free access to all medications on the Essential Drug List at health facilities maintained or funded by the Government. - Decriminalizing Suicide Attempts: Attempted suicide has been effectively decriminalized under Section 115. It is assumed that a person attempting to commit suicide is experiencing extreme stress and shouldn’t be prosecuted or punished in accordance with Indian Penal Code. This provision emphasizes a compassionate and rehabilitative approach rather than a punitive one and focuses giving care, therapy, and rehabilitation to the person in order to prevent subsequent suicide attempts.
- ECT: It also affirms that a person with mental illness shall not be subjected to electroconvulsive therapy (ECT) without the application of muscle relaxants and anaesthesia. Electro-convulsive therapy for minors is prohibited.
Redressal of Complaints:
According to Section 28 of the MHC Act, 2017 “any person with mental illness or his nominated representative, shall have the right to complain regarding deficiencies in provision of care, treatment and services in a mental establishment to:”
Consequences of violating the Mental Healthcare Act, 2017
According to Section 108 of the Act, consequences for Breaking the Act’s Rules or Regulations, a person may face imprisonment for up to six months or a fine by the Mental Health Review Board, which is an independent tribunal established under the Mental Health Act.
Section 109 of the Act states the consequences of offences by Companies – If a company commits an offense under this Act, everyone responsible for the company’s business conduct at the time of the offense may be held accountable.
Gaps in the Mental Healthcare Act, 2017:
The Act considers all possible provisions related to protecting rights and providing facilities to the people with mental illness in mental illness, but there are certain gaps that must be addressed to improve the act and how it’s support of those experiencing mental health concerns.
- Focus is on treatment, requires a stronger spotlight on preventive measures and mental health promotion
- No provisions related to Mental Health concerns and coverage at Workplace: It’s important to make provisions that helps employers understand and support mental health better. Just like the law of Sexual Harassment at Workplace, the government shall make rules that say employers have to teach their workers about mental health and provide ways to get help if needed. After the rules are set, it’s up to the companies and employers to make sure this happens. This will make the workplace better for everyone.
- Definition of Mental Healthcare Professionals can be expanded to include psychotherapists, psychoanalysts, counsellors and other mental health professionals who may be significant contributors to promoting positive mental health working from a preventative perspective.
NOTE: An identified grey area pertains to advance directives as per section 5 subsection (5), that states:
“ Any advance directive made contrary to any law for the time being in force shall be ab initio void.”
We note that a layman may not be aware of all the laws that may take precedence over the advance directive made while having the capacity to make decisions regarding their healthcare. In cases like this access to legal and psycho education about the possibilities that one can rely on for treatment measures, and any limitations needs to be made clear to the person in advance – to truly uphold the spirit and intention of Advance Directives.
Conclusion:
In conclusion, the Mental Healthcare Act of 2017 plays an important role in protecting the rights of people dealing with mental illness in India by allowing Advance Directives and appointing Nominated Representatives, the act empowers individuals to make decisions about their mental health treatment. It grants them rights to community living, access to information, confidentiality, and personal communication, while also ensuring affordable mental healthcare options.
In essence, the act has achieved certain progress in reducing the stigma around mental health, promoting individual treatment, and establishing legal provisions for improved mental healthcare. And by addressing the existing gaps and encouraging employers to actively support mental health, government can contribute more towards the approach of mental well-being.
FAQ’s:
Here are some FAQ’s to support your understanding of the MHC Act, 2017:
The Mental Healthcare Act (MHC), 2017, significantly addresses the topic of suicide as described in Section 309 IPC —making the attempt to commit suicide punishable only as an exception. Notable sections of the Act are mentioned below:
Section 115(1): “Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”
Section 115(2):“The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”
According to Section 5(1) “Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely:–
(a) the way the person wishes to be cared for and treated for a mental illness;
(b) the way the person wishes not to be cared for and treated for a mental illness;
(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14.”
A person can make a written advance directive to decide:
i) Care and treatment to or not to be given for mental illness
ii) Nominated representative to give or refuse consent to treatment on behalf of a minor
Under Section 20 of the Act, Right to protection from cruel, inhuman and degrading treatment has been described, according to which Every person with mental illness shall be protected from cruel, inhuman or degrading treatment in any mental health establishment and shall have the right “to have adequate provision for wholesome food, sanitation, space and access to articles of personal hygiene, in particular, women’s personal hygiene be adequately addressed by providing access to items that may be required during menstruation .”
According to Section 21(2)
According to Section 104 (1) of the Act if the person in charge of a state-run custodial institution suspects that a resident has or may have a mental illness, they must take the resident to the nearest mental health establishment for assessment and necessary treatment.
According to Section 18 (5) (d) the State must ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides.
There are no direct implications for employers and workspaces under the Act. The Act intends, however, to support every citizen to have access to quality health care services. It requires employers to reimagine their workplace set up, in line with the Act.
Particularly with the IRDAI notification regarding inclusion of mental health in insurance policies, organisations now need to ensure coverage of mental health expenses in the health insurances for their employees.
Written by Anjali Sharma (Intern), Rosanna Rodrigues and Deeksha Rai.
Written by Anjali Sharma (Intern), Rosanna Rodrigues and Deeksha Rai.