“The strongest people are those who win battles we know nothing about.” ~Anonymous. The Constitution of the World Health Organization (WHO) defines ‘Health’ as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’ Adding to this, WHO recognizes that mental health and well-being are essential for assisting people to experience a meaningful and quality life as well as to become creative and active citizens. It shows that mental healthcare is of utmost importance to have a quality life but there are persons with mental disability who, in certain circumstances, lack the ability to make decisions on their own. The mental illness lasts long and has a significant impact on the life of the individual, which sometimes goes on deteriorating with an increase in time and age.
A study conducted by the National Care of Medical Health (NCMH) reported in WHO states that at least 6.5 percent of the Indian population suffers from different serious mental disorders, with no discernible rural-urban differences. There are various effective treatments and measures available to help the patients, but the number of mental health workers like psychologists, psychiatrists, and doctors required is extremely low. As per a 2014 report, it was as low as ‘one in 100,000 people.’  Moreover, in recent times, due to COVID-19, the mental health of people is getting exacerbated day by day. As per a recent 2020 study, 43 percent of Indians are suffering from depression.
The Mental Healthcare Act, 1987 provisions are falling short in coping with such situations. Moreover, India also has to address the international obligations towards mentally ill people that it had due to the Convention on Rights of Persons with Disabilities, signed in 2007. Thus, the government enacted a new Mental Healthcare Act, 2017 to address the unaddressed issues of prior legislation and to give effect to the provisions of the Convention signed. This article attempts to elucidate the provisions of the Mental Healthcare Act 2017 and then critically analyses it to put forth the pros and cons of the Act.
The Mental Healthcare Act,2017
Lok Sabha in a unanimous decision passed the bill on March 27, 2017, which further got implemented on April 07, 2017, after getting the assent of the President of India. The Mental Healthcare Act (MHA), 1987 contained a narrow definition of ‘mental illness.’ MHA, 2017 defined it in a broader way as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize 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, especially characterized by sub-normality of intelligence.”
The 2017 Act has replaced the MHA, 1987, which was widely criticized for not providing the rights to mentally ill persons as well as for its narrow definitions. The 1987 Act was used to isolate mentally ill persons. However, these issues got addressed in the new Act of 2017. MHA, 2017 provides the right to access mental healthcare services to every mentally ill person. Moreover, it puts a duty on such services to be convenient, affordable, accessible, and of good quality. This act also strives to protect mentally retarded persons from inhumane treatment by providing the right to free legal aid as well as the right to complain in the event of deficiencies in provisions.
Chapter III of the act provides provisions for “Advance Directives,” through which a person or the representative of that person can make an advance directive towards the way he/she wants to be treated or not wants to be treated during the treatment procedure. The act also provides the right to equality and non-discrimination, the right to information, the right to confidentiality, the right to access medical records, and others. Furthermore, the act decriminalizes the attempt to suicide by mentally ill persons, which is a crime under Section 309 of the Indian Penal Code (IPC). The act imposes a duty on the state to rehabilitate mentally ill persons who attempt to do so and ensure that he/she might not attempt it again.
The act also states that electroconvulsive theory (ECT) shall not be administered to minors. It further states that the ECT should not be used without the use of muscle relaxants and anesthesia on others. The act has further established a central authority along with state authorities in every state. All mental health institutes, as well as practitioners (mental health nurses, clinical psychologists, and psychiatric social workers), have to register themselves with these authorities. Further, Section 100 of the act provides authority to the police officers that they can take any mental person under protection if they found them wandering or at risk. The person taken under protection must not be detained or kept in lockup. He should be subjected to examination under a medical officer, and then based on the report of that examination either admitted to any medical establishment or his/her residence or an establishment of homeless persons.
The act also imposes penalties if someone establishes or maintains any mental health establishment in contravention of the provisions formulated under this act; or contravenes with the rules or regulations made under the act; or if any company commits an offense by contravening the rules. If someone violates the provisions of the act, then the acts award the punishment up to six months or ten thousand rupees or both. Repeat offenders can attract the same up to two years or fine between fifty thousand to five lakhs or both.
Analysis of the Act
The provisions of the act show that it is framed with a view to providing holistic development to mentally ill persons. However, the implementation is a herculean task, which the government has to perform in a serious manner. Although the Act contains the various provisions related to mental infrastructure, the mental infrastructure in India is not up to the mark. WHO states that in India, there is a huge shortage of psychiatrists and psychologists as compared to the number of people suffering from mental health issues. It further states that in India, there are only psychiatrists (0.3), nurses (0.12), psychologists (0.07), and social workers (0.07) available (per 100,000 population), while anything above three psychiatrists and psychologists per 100,000 population is the desirable number.
About 7.5 percent of Indians suffer from some mental disorder. Moreover, the WHO predicted that roughly 20 percent of India will suffer from mental illnesses by the end of 2020. As per the numbers, about 56 million Indians suffer from depression, and another 38 million Indians suffer from anxiety disorders. Further, the Lancet studies suggest that the contribution of India to global suicide deaths increased from 25.3 percent in 1990 to 36.6 percent in 2016 among women and from 18.7 percent to 24.3 percent among men.
Thus, to curb such data, the provisions of MHA might play a crucial role subject to effective implementation. The act provides that every district and subdistrict should have to establish and avail the services to mentally ill persons. As already stated, the infrastructure is not of that level, and further, this provision might overburden the state’s treasury. Thus, it is the duty of the central government to facilitate the states in establishing the same instead of leaving it in their hands.
Mentally ill persons also face discrimination in India. A study conducted with the samples of five metropolitan cities of India revealed that there is a significant presence of perceived stigma of mental illness with higher levels of perceived stigma among female participants. To curb such discrimination and stigmatization, the Act includes the provision to create awareness about mental health and illness to reduce the stigma associated with it. However, the new Act formulates various provisions, it does not provide any guidelines or rules to effectively implement it.
The prime focus of the legislation is that the State must recognize its obligations to improve the lives of people with mental illness and assist them in proper treatment. The Act aims to regulate mental health establishments as well. It can be inferred from the provision where authorities are given the power to initiate suo moto complaints or on receipt of complaints if any mental health establishment does not adhere to the principles and guidelines stated in the act. Mental health establishments are also to be audited every three years.
The Act states about Central and State authority, but even after more than three years of the implementation of the act, various states are still functioning without any such establishment. Further, registration of mental healthcare professionals, as well as establishments, is also necessary so that the list containing such data can help the persons willing to avail or in need of such assistance.
The enactment of the act is a welcome step as it at least lays down guidelines to be followed by medical establishments. It also provides various rights to the mentally ill persons that were not available in the previous act. However, there is a need to address the issues stated above and extensively implement them in an effective way so that it can also show the development at ground level.
- Constitution of WHO, available at: https://www.who.int/about/who-we-are/constitution (Last Visited May 01, 2021).
- “India is the most depressed country in the world” India Today, October 10, 2018.
- “43% Indians suffering from depression: Study” The Times of India, July 28, 2020.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 2(s).
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 27, 28.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 5.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 21, 22, 23, 24, 25.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 29, 115.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 95.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 65, 66.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 100.
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 106, 107, 108, 109.
- Anisha Bhatia “World Mental Health Day 2020: In Numbers, The Burden Of Mental Disorders In India” NDTV India, October 09, 2020.
- Kerem Boge, Aron Zieger, Aditya Mungee, Abhinav Tandon, Lukas Marian Fuchs, Georg Schomerus, Thi Minh Tam Ta, Michael Dettling, Malek Bajbouj, Matthias Angermeyer, Eric Hahn, “Perceived stigmatization and discrimination of people with mental illness: A survey-based study of the general population in five metropolitan cities in India.” Indian J Psychiatry 60:24-31 (2018).
- The Mental Healthcare Act, 2017 (Act 10 of 2017), sec. 30.
BY KAUSTUBH KUMAR | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI