MENTAL HEALTHCARE ACT, 2017: A BRIEF ANALYSIS

INTRODUCTION:

‘Health’ as defined by the World Health Organization (WHO) is “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” This definition takes us beyond the layman understanding of health as a state of being disease-free. Most remarkably, this definition stresses on the importance of a sound mental state and also on social well-being of an individual. The WHO also discusses the exact definition of what is mental health, which encompasses a state which allows an individual to cope with the day-to-day stresses of life and is able to function effectively, while being able to contribute to one’s community at the same time.

Upon a brief perusal of the preamble to the Mental Healthcare Act, 2017, the objective of the act is made clear as being, “An Act to provide for mental healthcare and services for persons with mental [7th April, 2017.] illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.” The preamble of the Act also lays down the driving force behind the enactment of this act, i.e. the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) and its Optional Protocol which was adopted on the 13^th of December, 2006, which was ratified by India on 1^st October, 2007.

Over 300 million individuals, i.e. about 4% of the world population suffer from depression, however, despite these massive numbers, the access to appropriate healthcare remains poor even today. The enactment of the Mental Healthcare Act, 2017 rescinds the older Mental Healthcare Act, 1987, which was widely criticized for failing to recognize the rights of the mentally ill. The most visibly effective provision of the Act is its Chapter 5, which discusses “Rights of the persons with mental illnesses.”

This article aims to discuss the fundamentals of this Act and the possibilities presented by it, while also keeping in mind its shortcomings and the developments that are due and should be introduced in due course of time.

NECESSITY OF THE NEW ACT:

The necessity of public healthcare and its importance as a state function is not only accepted by international treaty laws, but is also prominently discussed in the Indian Constitution. The Constitution of India is unique for having provided for such elaborate provisions which discuss healthcare, its importance and the seminal role that is expected to be played by the state machinery in ensuring the benefits of healthcare for all citizens of the country.

It is common knowledge that enshrined under Part IV of the Constitution are the Directive Principles of State Policy (DPSP). Though not enforceable by the Courts of Law, these serve as guiding principles for the functioning of the organs and instruments of the State. Enshrined under Part IV of the Constitution, Article 38 belies upon the state the responsibility to social order that shall facilitate public welfare. Article 39(e) discusses the necessity to ensure protection of the health of workers, irrespective of their age and gender. Similarly, under Article 41 endows upon the State the responsibility to assist the sick or old with provisions to secure their right to work, education and also provide public assistance in cases of unemployment. Article 42 provides for the protection of mother and infants from hazards to their well-being such as harsh working conditions while Article 47 lays an obligation on the state to ensure the conception and deployment of effective steps to boost living standards and overall nutrition level of the citizens.

These provisions discussed previously, are some of the many provisions enshrined in the Indian Constitution that focuses on the need to provide support and foster and ensure effective delivery of healthcare to the citizens of the country by means of state sponsorship or otherwise. Thus, post the adoption of the constitution in the year 1950, wider understanding and de-stigmatization of mental health has worked in favour of the introduction of mental health into the wider ambit of essential healthcare facilities. Thus, the sanction of an inclusive and effective mental health legislation adheres to the principles adopted in the Indian Constitution as well.

The Act of 2017 provides every individual the right to access mental healthcare from services that are run or supported by the government and makes it an obligation of the government to provide such services to the people with mental illnesses (PMI). Further, the act provides for free mental healthcare services for PMIs living below the poverty line.

The new Act became a necessity upon the evolution of multiple driving factors which highlighted the inadequacies of the previous Act, enacted back in 1987. The provisions of the older Act were not in consonance with the pointers laid down by the UNCRPD and also didn’t adequately represent the rights that should be guaranteed to patients, for eg the right to be protected from unnecessary detentions in mental health facilities, lack of guidelines to support the rehabilitation or social integration of such patients and possible human rights concerns regarding various provisions of the Act among many others. These factors, cumulatively, were responsible for the eventual scrapping of the old Act and the introduction of a more forward-looking Act in the year 2017.

IMPROVEMENTS THROUGH THE NEW ACT

The Act of 2017 introduced certain major transformations into the Mental Healthcare regime in India.

The following were some of the major improvements brought about in the new Act.

1. Decriminalization of Suicide
2. Increased focus on promoting public awareness about mental health
3. Provision of legal aid for the mentally ill
4. Provision of Medical Insurances for the mentally ill
5. Redefining mental illnesses in an inclusive manner
6. Establishment of a Central Mental Health Authority

A more progressive legislative outlook towards an otherwise stigmatized subject shall entailsignificance legally, politically and also socially. The Indian Psychiatric Society (IPS) was roped in to advice the lawmakers at various stages of discussions and deliberations when this Act was being formulated, and, although not a part of the actual drafting of the Act, the society hailed the decriminalization of suicide in the 2017 Act as the single most transformative and radical provision brought about by this Act. The Act relieves those attempting suicide from the criminal liability they were earlier exposed to under the provisions of Section 309 of the Indian Penal Code, 1860, which provided for upto one-year imprisonment against an individual for having attempted to commit suicide. Under Section 115 of the new Act, the fundamental outlook has undergone a transformation. The Section reads, “(1) Notwithstanding anything contained in section 309 of the Indian Penal Code (45 of 1860) 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. (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.” Those attempting suicide have been viewed as being under mental stress or suffering from other mental issues and not as committing a criminal offence. The same Act also allows for proper care and protection to such people.

Another key development promoted through the Act of 2017, was that of inclusive insurance regimes. The Insurance Regulatory and Development Authority of India (IRDAI), post the enactment of this Act has issued directives to the insurance providers for the inclusion of mental illnesses within the ambit of their health insurance policies. The same provision, has been given impetus under Section 21(4) of the Act. Provision of insurances at par with those available for other insurances shall go a long way to encourage and ensure access to appropriate healthcare for mentally ill individuals.

With Section 29 of the Act mandating the implementation of programs to create awareness about mental health and Section 30 providing for Governmental dissemination of information about mental health among the masses, the possibility of a more educated and aware citizenry has become a strong possibility. Further, with Section 31 of the Act creating a duty upon the Government to ensure sensitization and adequate training for healthcare professionals and other individuals working at public healthcare facilities, institutions like jails etc., the possibility of mentally ill people on the fringes of society getting access to appropriate care increases drastically. Further, as per the provisions of the new Act, a mentally ill individual who might be a party to a legal conflict shall be entitled to the requisite legal aid to pursue their case.

A more fundamental paradigm shift brought about by this Act is reflected through the definition provided for mental illness under Section 2(s), which reads, “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” The wide ranging inclusiveness of this definition, which covers most key medical and social factors is an indicator of the drastic change this Act intends to bring about through its enactment. Proper implementation of these provisions has also been well-contemplated, i.e. through the institution of a Central Mental Health Authority, provided for by Section 33 of the Act and State Mental Health Authorities, provided for by Section 45 of the same Act.

LIMITATIONS:

Despite positives radiated through significant portions of the Act, scope for improvement, additions and newer perspectives always remains.

The Mental Healthcare Act, 2017 is no exception. One of the prominent features of the Act was the expert advice sought from various parties, like the IPS, however, the same weren’t included in the drafting of the Act. This remains a significant possibility which could have helped enhance the overall scheme of the Act. The Act, through Section 5 provides for an unique provision called ‘advanced directives’, which shall allow the patients to exercise control and also regulate certain aspects of their treatments. However, the Act severely lacks when it comes to laying down the procedural aspects of the same. In the absence of concrete procedures, ambiguity shall persist and the exercise of one’s right shall be restricted. Further, through Section 94, the Act endeavours to ban Electroconvulsive Therapy (a procedure that involves the passage of small bursts of electric current through the brain with an intention to trigger small seizures, which are intended to reverse symptoms of critical mental illnesses), which has for long been effectively used as a life-saving procedure, especially under emergencies. This provision has been widely criticized for being a myopic effort of the policy-makers, which might deny life-saving resources to patients. Further, the requirement for a standard set of operational prerequisites appears to be a must for such legislations which deal with specialized areas like healthcare. This lacunae in the Act might serve to warrant for lower quality of healthcare for the patients, which shall be detrimental to the intention of the Act.

CONCLUSION:

The journey of India’s mental healthcare legislation isn’t similar to what exists in many other countries, especially those which encounter significantly different social and economic standards. However, the evolution of the regime in exercise has been inspiring. With the enactment of the new Act and the overall progressive view it emanates, although requiring possible alterations, the overall legislative intention is optimistic.

The analysis attempted in this article is preliminary in nature and not exhaustive either. It is more of an introductory note and a summary of what the Act enshrines and its intention is to provide for a basic understanding of the Act. Analysis, comparative studies and scholarly deliberation shall be a fundamental requirement for further evolution of the legislation and for a better social, legal and medical future for the masses.