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INTRODUCTION

Health encompasses the composite union of physical, spiritual, mental, and social dimensions
according to the World Health Organization (WHO), which recognizes that “mental health and well-
being are fundamental to quality of life, enabling people to experience life as meaningful, become
creative and active citizens.” Mental health is significantly different from general health as in certain
circumstances mentally ill people may not be in a position to make decisions on their own.1 Mental
illness lasts for a protracted period and has a lifelong impact which gradually result in a poor quality
of life.2 Those who suffer rarely get access to appropriate medical counselling and treatment as their
families try to hide their condition out of a sense of shame. This attitude not only harms patients but
also leaves them vulnerable to exploitation, abuse, neglect, and marginalization.

According to a study conducted by the National Institute of Mental Health and Neurosciences, India,
in 2016, across 12 different states, the prevalence of depression for both current and lifetime is 2.7%
and 5.2%, respectively. Approximately 1 in 40 and 1 in 20 people are suffering from past and current
episodes of depression all over the country.3 Another critical aspect is the existing infrastructure and
workforce in our country to address this health challenge. There are just about 40 mental institutions
(out of which only nine are equipped to provide treatment for children) and fewer than 26,000 beds
available for a nation comprising 150 billion people.4 The WHO report on the Mental Health reveals
that there are just three psychiatrists, and even lesser number of psychologists for every million people
in India, which is 18 times fewer than the commonwealth norm of 5.6 psychiatrists/100,000 people.5

Keeping in view the massive health burden of mental illness in our country, existing inadequate
infrastructure/workforce, the social stigma attached, and glaring shortcomings of Mental Healthcare
Act 1987, it becomes imperative for the government and various stakeholders to address these issues.
There is also a need to work on the country's international obligation toward the mentally ill people as

1
Patel V, Kleinman A. Poverty and common mental disorders in developing countries. Bull World Health Organ
2003;81:609-15.
2
Mander H. Living Rough Surviving City Streets. A Study of Homeless Populations in Delhi, Chennai, Patna and Madurai
– For the Planning Commission of India. Available from: http://www.planningcommission.nic.in/reports/sereport/ser/
ser_rough.pdf.
3
Math SB, Srinivasaraju R. Indian psychiatric epidemiological studies: Learning from the past. Indian J Psychiatry
2010;52:S95-103.
4
Gururaj G, Girish N, Isaac MK. Mental, neurological and substance use disorders: Strategies towards a systems approach.
NCMH Background Papers-Burden of disease in India. New Delhi: Ministry of Health and Family Welfare; 2004.
5
World Health Organization. Mental Health Atlas 2011 – Department of Mental Health and Substance Abuse. Geneva:
World Health Organization; 2011.

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per the Convention on Rights of Persons with Disability (2007) and its optimal protocol. 6 Hence, a
patient-centric bill that safeguards available, affordable, and accessible mental healthcare services was
a long due in India.

THE UN-CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (UN-


CRPD)

In 2006, the UN-CRPD was published and it came into force in 2008. Since then it has been signed by
over 160 countries.7 India ratified the UN-CRPD in 2007.8 Under the UN-CRPD, persons with
disabilities include those with long-term mental or intellectual impairment. The UN-CRPD attempts
to emphasize and address the attitudinal and environmental barriers that individuals with impairments
face. This has been perceived as a progressive and irreversible step away from a “medical model” of
disability and towards a social model. Rao et al., describe it as a move from a “charity based” to a
“rights based” approach to disability.9 The UN-CRPD appears strongly opposed to involuntary
treatments and affirms the legal capacity of individuals at all times. The convention requires that
ratifying countries revise their laws to make them concordant with the convention. Consequently,
India’s mental health care legislation needed to be reformed and the UN-CRPD duly prompted the
drafting of two important pieces of legislation in India: the Mental Healthcare Act 2017 (IMHA) and
the Rights of Persons with Disability Act 2016 (RPDA).10

The drafting of the UN-CRPD was a long and complex process. In contrast to prior international human
rights treaties, human rights organisations were heavily involved from the outset. The World Network
of Users and Survivors of Psychiatry played a highly influential role and set forth its views on capacity
as non-negotiable, it sought to ban institutional care and forced treatment. Much debate occurred
concerning emergency circumstances but in the end time ran out and no provisions were made for
these.11 This may call into question the UN-CRPDs ability to address all mental health issues, in

6
World Health Organization. Disability and Health, Fact Sheet. Geneva: World Health Organization; 2016. Available
from: http://www.who.int/mediacentre/factsheets/fs352/en/.
7
Steinert C, Steinert T, Flammer E, Jaeger S, Impact of the UN convention on the rights of persons with disabilities (UN-
CRPD) on mental health care research - a systematic review, BMC Psychiatry. 2016 May 26; 16():166.
8
Id
9
Rao GP, Ramya VS, Bada, The rights of persons with Disability Bill, 2014: How "enabling" is it for persons with mental
illness?. 2016 Apr-Jun; 58(2):121-8.
10
Id
11
Fina VD, Cera R, Palmisano G, editors. The United Nations convention on the rights of persons with disability: a
commentary. Cham: Springer; 2017. pp. 1–40.

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particular emergency situations. Currently, however, the UN-CRPD provides the legal framework for
mental health legislation in all countries that have ratified it.

INDIA’S MENTAL HEALTH LEGISLATION

The first mental health legislation in India was introduced by the British colonial government in 1858,
when three Acts relating to mental health were adopted: the Lunacy (Supreme Courts) Act, the Lunacy
(District Courts) Act and the Indian Lunatic Asylum Act.12 These acts focused on asylum-based care
but, due to the conditions that many patients found themselves in, pressure mounted on government to
reform mental healthcare more generally. In 1912, the Indian Lunacy Act was passed.

Following Indian independence, the Indian Psychiatric Society submitted a revised mental healthcare
Bill in 1950 which was finally enacted as the Mental Health Act in 1987. This document introduced
many important changes, including modern terminology, the creation of the Central and State mental
health authorities, prohibition of non-consensual research, and simplification of discharge
procedures.13 The 1987 legislation, however, faced a lot of criticism from the outset: concerns were
raised that it gave more emphasis to legal consideration rather than medical care; its position on the
family was criticized; and it failed to make provisions for home-based treatments, among other
matters.14 From the perspective of international law, moreover, the 1987 legislation was not in line
with the UN-CRPD when it was published in 2006.
The Mental Healthcare Act, 2017, was passed by the Rajya Sabha in August 2016 and the Lok Sabha
in March 2017. It received presidential assent on April 7th, 2017 and replaced the 1987 Act. The new
act intends to align and harmonize existing laws with the Convention on Rights of Persons with
Disabilities and its optional protocol which India ratified in 2007.

Advantages of The Mental Healthcare Act, 2017


Adopting an inclusive approach in lieu with the UN-CRPD was much required for India. A shift from
the old Mental Healthcare Act has resulted in several positive outcomes, as discussed below:

12
Narayan CL, Shikha D, Indian legal system and mental health, Indian J Psychiatry. 2013 Jan; 55(Suppl 2):S177-81.
13
Kallivayalil RA, Trivedi JK, Tripathi A, Social factors and forensic psychiatry in India. Curr Opin Psychiatry. 2009 Sep;
22(5):482-7.
14
Id

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a. Rights of persons with mental illness
The Mental Healthcare Act 2017 aims to provide mental healthcare services for persons with mental
illness. The Act, under Chapter V ensures the rights of persons with mental illness. It states that all
persons shall have the right to access mental healthcare and treatment from mental health services run
or funded by the Government.15 It ensures that these persons have a right to live life with dignity by
not being discriminated against or harassed.16 Every person shall have a right to confidentiality in
respect of his/her illness and treatment.17 The act also recognizes the right to community living; right
to live with dignity; protection from cruel, inhuman, or degrading treatment; treatment equal to persons
with physical illness; right to relevant information concerning treatment, other rights and recourses;
right to confidentiality; right to access their basic medical records; right to personal contacts and
communication; right to legal aid; and recourse against deficiencies in provision of care, treatment,
and services. The act also assures free quality treatment for homeless persons or for those belong to
below poverty line (BPL), even if they do not possess a BPL card.

b. Prohibition of certain procedures


The Act has restricted the usage of Electroconvulsive therapy (ECT) to be used only in cases of
emergency, and along with muscle relaxants and anaesthesia. Further, ECT has additionally been
prohibited to be used as viable therapy for minors.18Sterilization shall not be performed in such patients
neither they will be put into solitary confinement nor isolation.19 It decriminalizes suicide attempt by
a mentally ill person. It also imposes on the government a duty to rehabilitate such person to ensure
that there is no recurrence of attempt to suicide.20

c. Responsibility of other agencies


A police officer in charge of a police station shall report to the Magistrate if he has reason to believe
that a mentally ill person is being ill-treated or neglected. The bill also imposes a duty on the police
officer in the charge of a police station to take under protection any wandering person; such person
will be subject to examination by a medical officer and based on such examination will be either
admitted to a mental health establishment or be taken to her residence or to an establishment for
homeless persons.21

15
Section 18, MHA, 2017
16
Section 21, MHA, 2017
17
Section 23, MHA, 2017
18
Section 94, MHA, 2017
19
Section 95, MHA, 2017
20
Section 115, MHA, 2017
21
Chapter XIII, MHA, 2017

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Disadvantages of The Mental Healthcare Act, 2017
There are many positive/constructive aspects to this bill, but it is not without its shortcomings, it is not
fool proof in the Indian context. Few of these are elaborated here:

a. No Safeguards in the Nominated Representatives (NR) System


The new act has left huge uncertainties and many unanswered questions. If an NR is not acting in the
best interests of a patient, the NR should ideally be removed. A patient who lacks capacity cannot
remove an existing NR. Even while having capacity, they may not have the courage or financial
freedom to remove a family member as NR. Any such removal can unsettle family relationships. A
procedure to remove the NR could have been included in the act. The act, as it stands now, states that
only the patient can revoke or change the NR. Unfortunately, the patient can do so only if they have
the capacity, and if they had the capacity, they would not have needed an NR in the first place.

b. Advance Directive (AD) that can backfire


Chapter III of the Mental Health Act, 2017 provides for Advance Directive. The concept, which gives
patients more power to decide certain aspects of their own treatment, has been picked up from the
West. However, unlike developed countries, local factors such as existing mental health resources and
lack of awareness about mental illness in India have not been taken into account. Mentally ill persons
who suffer from serious psychological disorder often lack the ability to make sound decisions and do
not always have a relative to speak on their behalf. In such a situation, treating physician is the best to
take decisions because patients or their nominated representatives have limited knowledge on mental
health and mental illness. Hence, from a physician perspective, this new directive will definitely
lengthen the time of admission of mentally ill persons.22

c. Treatment Refusal and Capacity while under 89


Section 89 provides for admission and treatment of persons with mental illness, with high support
needs, in mental health establishment, up to thirty days. Informed consent for a medical intervention
is a cornerstone of the doctor–patient relationship. In mental disorders, many countries have taken a
deliberately slow route to incorporate the capacity criteria for admission and treatment. This is because,

22
Mental Healthcare Bill: Despite the Positive Reforms, a Lot More Needs to be Done for the Mentally Ill. First Post;
08thApril, 2017. Available from: http://www. firstpost.com/india/mental-healthcare-bill-despite-the-positive-reform-a-lot-
more-needs-to-be-done-for-the-mentally-ill-3373156.html.

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in contrast to a physical disorder, in mental health, there are many situations where a patient with full
capacity would require compulsory treatment.

Unlike physical disorders, in mental disorders, the consideration is about the risk to oneself and others
due to the illness. In such situations, the patient's preference to accept or refuse one or all treatments
should not prevent the patient from receiving appropriate treatment, even if such treatment is against
the patient's wishes. One purpose of sections 89 and 90 is to provide treatment when a person with a
severe mental disorder is a risk to themselves or others. However, the act does not give the Medical
Officer, the power to appropriately treat the admitted patient if the treatment contravenes the patient's
previous wishes (AD), the patient refuses the treatment (while having capacity to do so), or the NR
(for a person with no capacity) refuses the proposed treatment. There is also the possibility that a
patient admitted under section 89/90 could refuse treatment once he regains capacity. This would mean
that a patient who meets the criteria for involuntary admission can remain in a hospital without
receiving any treatment. This would completely defeat the purpose of involuntary admission and have
a paralyzing effect on the MHE.

CASE LAWS

As the Mental Health Care Act, 2017 came into force only from July 7, 2018, 23 cases under the
legislation have not been decided. However, certain landmark cases under the previous act which are
still relevant have been discussed below.

1. Upendra Baxi v. State of UP24

Facts: Upon Writ Petition, the Supreme Court asked to enforce rights of occupants of State Protective
Homes for Women, Agra. The Supreme Court asked them to submit a report where it was shown that
33/50 inmates had differing degrees of mental disability and were not examined at the time of
admission. 14 people were even released without determining their mental state and with no money to
cover their train fare to home.

23
MHA Notification:
https://indiacode.nic.in/ViewFileUploaded?path=AC_CEN_12_13_00024_201710_1517807327874/notificationindividu
alfile/&file=MHA+2017+notification.pdf
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(1983) 2 SCC 308

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Court: Directed that psychiatry treatment must be provides to mentally ill inmates for which record of
the time and place has to be maintained.

2. Sheela Barse v. UOI25

Facts: A Writ Petition was filed when it was found out that children were kept in jails across the
country for “safe custody” as they were allegedly physically handicapped and/or mentally retarded.
Court: The Supreme Court gave three important orders. A. The State Government must remove them
to a home where they can be looked after properly. B. They should be given proper medical treatment
and C. The court asked doordarshan and AIR to give publicity requesting NGO’s to offer help.

3. Z vs. The State of Bihar and Ors26

Background: The appellant, a 35-year-old mentally retarded woman was abandoned by her family and
brought to Shanti Kuti, a destitute home. A medical test on the time of her joining, showed that she
was pregnant [25th January 2017]. She was taken to Patna for an ultrasound and it was confirmed that
she was 13 weeks 6 days pregnant [8th February 2017]. She revealed that she was raped, and she
wished to terminate the pregnancy [8th February 2017]. She was taken to PMCH for a termination
and her father and brother were called to sign a consent form. However, the hospital authorities did
not proceed with the termination [14th March 2017, 19 weeks]. She was again taken to PMCH, but
the termination was not carried out and, by that time, her pregnancy was 20 weeks old and she was
found to be HIV+ve [3rd April 2017].

High Court Writ Petition: Appellant approached the High Court which directed IGIMS to constitute a
medical board to assess her and the fetuses physical and mental condition [10th April]. The report
suggested that the pregnancy was 20 to 24 weeks old and the termination of pregnancy would require
major surgical procedure along with the subsequent consequences such as bleeding, sepsis and
anesthesia hazards. The report said: The fetus is not suffering from any abnormality. Fetus seems to
have been infected with HIV, but any definite opinion can be given only when the child attains the age
of 18 months. Did not suggest anything on the lines that if the victim is allowed to carry the pregnancy
to its full course, then she will suffer any risk of life or grave injury to her physical or mental health.

25
(1986) 3 SCC 632
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MANU/SC/1011/2017

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The High Court dismissed the writ petition filed by the appellant since she did not meet the threshold
level set out in the termination of pregnancy act. Moreover, another reason was that she filed the writ
petition before the high court after 20 weeks of her pregnancy while the act permits termination only
up to 20 weeks.

Supreme Court: The present appeal before the Supreme Court is in lieu of the dismissal of Writ petition
by the High Court. The SC held that the Appellant had communicated her desire to terminate
pregnancy at the right stage. The SC reprimanded the hospitals involved and stated that seeking
permission of the father and brother was unnecessary since she was capable of giving her consent. In
light of this, it drew the difference between mentally retarded and mentally ill. The act only requires
consent for minors or mentally ill people and not people who are mentally retarded. Additionally,
definition of mental illness in MHA Section 2(s), explicitly excludes mental retardation. The court
referred to Suchita Srivastava Case and said that it was in the best interests of a mentally retarded
woman to undergo an abortion and she is capable of giving consent and deciding what is in her best
interests.

Order: Rs. 3,000,000 as compensation under the Victims Compensation Scheme as framed Under
Section 357-A of the Code of Criminal Procedure. Keeping in view the mental injury that the victim
has to suffer, we are disposed to think that the Appellant should get a sum of Rs. 10,00,000/- (Rupees
ten lakhs only) as compensation from the State and the same shall be kept in a fixed deposit in her
name so that she may enjoy the interest. SC held it was too late for the pregnancy to be terminated and
that state will bear all expenses of bringing up the child.

4. Sangamitra Acharya and Ors. vs. State (NCT of Delhi) and Ors.27

Background: Z is a 23-year-old woman (Z) who left her parents’ home and was residing with her music
teachers in their home since she turned 18. They are the petitioners seeking a writ of habeas corpus in
the present case.

Metropolitan Magistrate: When the girl first left her parents’ house at the age of 18, the parents
instituted Criminal Complaint under Section 25 of the MHA in the Court of the Metropolitan
Magistrate, Delhi. In the said complaint Z's parents averred that there was a history of mental illness

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MANU/DE/1453/2018

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running in the family and that their daughter's behavior had undergone a drastic change since 2011.
They alleged that their daughter had been enticed away by the Petitioners who had undue influence
over Z from the time when she was a minor. They alleged that their daughter was suffering from a
serious mental disorder which required medical care and treatment. They prayed for a direction that Z
should remain under the care and control of her parents. Z informed the MM that she was a major; had
never suffered from any mental ailment; had no intention of joining her parents and wanted to live
separately. The MM dismissed the petition holding that Z did not suffer from any mental illness.

Second attempt: There was second attempt by the family to declare her mentally unfit which failed
again. Overall test findings indicated that the patient suffered from a great deal of stress as well as
anxiety owing to the "family conflict she is having". She went on to stay with the petitioners. About a
year thereafter, Z was forcibly taken away from the residence of the petitioners by her parents to a
private mental hospital (CIMBS) and kept there without her consent.

Supreme Court: The Mental Health Act is a statute that has provisions that might result in the
deprivation of a person's liberty. In the present case, Z was, to begin with, treated as a person who was
not able to express her willingness as a voluntary patient. A person brought to a mental health
institution without her consent and sought to be admitted faces a serious infraction of her life and
liberty. This dictates the mandatory nature of the safeguards under the MHA having to be scrupulously
followed. Unless a patient is actually found to be suffering from a mental illness which cannot be
treated except by way of admission into the hospital, such patient should not be admitted either as a
voluntary or involuntary patient into a mental health institution. This is the scheme of the MHA itself
and, therefore, a violation of the statutory procedure results in not only incalculable harm to the person
but also a serious violation of her constitutional rights.

Order: The Court considers it appropriate to direct that the Delhi Police shall prepare a manual
detailing how to deal with cases under the Mental Health Act, 1987 and, after 7th July 2018, the Mental
Healthcare Act 2017. It must prepare a protocol in consultation with legal experts as well as experts in
mental healthcare and spread awareness on the issue of mental health. The Central and State Mental
Health Authorities must, in collaboration with the State Judicial Academies, hold programmes on
periodic basis with civil society groups, Resident's Welfare Associations, Police Officers, lawyers and
Judges to sensitize them about the various compliances under the MHA and its successor, the Mental
Healthcare Act 2017, and how to treat persons who are sought to be governed by the said legislation.
It also held that Z can go back to living with the petitioners.

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CONCLUSION

There is no doubt that, in its scope, the new act is a big leap from the 1987 act. It is an attempt to
absorb progressive views and principles that are now endorsed by the global community. The new act
has set out some principles that mental health professionals will embrace and embed in practice.
However, the new act is also a deliberate attempt by the state to shirk its responsibilities and shift the
burden to families. This is likely to result in numerous unintended and mostly negative consequences.
Breaching its own stated principles of equality, the act ends up discriminating against the mentally ill.
There is a paucity of comprehensive rules and regulations to cover all the settings. The resolve to
implement the principles underlying the act appears weak, given the avoidance of ring-fenced
resources beyond inflationary adjustments.

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