LEGISLATIVE COMMENT- MENTAL HEALTH CARE ACT

2017

-HARITHA DHINAKARAN
Abstract-

Health and Life is of extreme importance and must be revered. The

mental and physical well-being of any human being comes under the
scope of health as well as life. A wholesome and invigorating balance is
required to be maintained for ensuring the overall well-being of a person.
On the contrary, in a country like India mental illness is more of a topic
that has been forbidden to be discussed, it has become very imperative to
note that such a well-being is necessary to invoke a proper functioning of
the economy as a mentally ill workforce would drastically hinder the
economic development of the country.

Keywords- Mental well-being, Health

Introduction-

Health as defined by the UN encompasses the mental, physical and social

well-being and not merely the absence of any disease or infirmity. WHO
has also advocated for the fact that health is something that should be
made universally accessible and every citizen is entitled to ‘highest
attainable standard’ of health. Health, according to the WHO is a
fundamental right and this should never be distinguished on the basis of
religion, race, ethnicity, social condition or political belief, for that
matter.

The definition of Health substantiates in itself the idea of mental well-

being, mental illness should not be stigmatized. In India, there is a
constant need for the derivation of lack of stigmatization in this arena,
rather than sympathy.

A study was conducted by the WHO in 2015, which revealed a shocking

revelation that one in five Indians suffer from depression in their lifetime,
which is almost equivalent to around 200 million people of 1283 million
inhabitants and citizens, which entails 16 per cent of the population.
These numbers are insignificant, it is still a matter that is at the brink
considering the overall development of the country.

India’s standing in the field of mental well-being is quite substandard and

late as compared to the United States’ National Mental Health Care Act
which came into effect on the July 3 rd, 1946 and the United Kingdom’s
Mental Health Act, 1959. In India, the first act that took Mental Health
into effective consideration was the Mental Health Act, 1987.

This act was subsequently superseded by the Mental Health Care Act
2017 that introduced a lot of novel changes into a field that is thought of
as the least important, and this came into force on the 7 July, 2018.

Salient Features of the Act-

The Mental Health Care Act aligns itself with the existing laws in The
Convention on Rights of Persons with Disabilities as India had ratified
and adopted the Optional Protocol.

The Act has tried to eliminate the stigma around Mental Illnesses by
asserting that no individual or authority has the right to classify or
declare any other person to be mentally ill unless that person is found to
be in direct treatment of that illness.

Some of the changes that were novel to this act are-

 Decriminalization of the attempt to commit suicide by ensuring that

such individuals are in sufficient availability of rehabilitation
facilities. Until this act came into effect any person who attempts to
commit suicide was penalized under Section 309 of the Indian
 Penal Code, 1860. The maximum penalty awarded for the same was
a year in prison.
 Registration of sufficient mental health related organizations and
institutions to generate awareness amongst the general public and
eradicate the stigmatization of the said matter.
This ensures that such mental health establishments are pan India
so that commutation for the individuals suffering from mental
issues is more convenient.
 Empowerment rather than Justification of mental illnesses is one of
the major aims that this act has constantly advocated for. This
markedly makes a departure from the previous Mental Illness Act
of 1987. This act seeks to take cognizance and recognize the sector
of persons with mental illnesses and give them the freedom in
taking independent decisions regarding their health.
 Another stellar aim of this act is to primarily safeguard the rights of
the persons with mental illness and metal wellbeing is
encompassed as one of the fundamental rights under WHO.
Medical Insurance also includes mental illness apart from physical
ailments.
 India’s stand and ratification of the Convention on the Rights of
Persons with Disabilities and the Optional Protocol.
 Muscle Relaxants, and anesthesia and the usage if
Electroconvulsive Therapy (ECT) has been barred from usage on
normal occasions and can only be sought for in emergencies.
 Enabling free treatment for people who are homeless and below
the poverty line.
 Confidentiality and privacy for the people suffering from mental
illnesses has been taken into cognizance and has been better
implemented than ever before.

Critical Analysis of the Act

There has been several constructive and optimistic aspects of the Act but
there has been some shortcomings as well. This act has provided for the
access of mental health services for every person suffering from mental
illnesses. This means that the provision seeks to provide accessibility to
everyone. But this brings about a drawback because there is an already
existing medical infrastructure inability at the district level. Therefore,
the financial allocation for the same would be difficult for the
governments to bear.

The very fact that, Mental illness being a characteristic illness that can
be cured by clinical procedures and medicines narrows the perspective of
promoting mental well-being as the very initiative of prevention. Thus the
ambit of the term “medical health professional” should include
counselors, psychotherapists and so forth.

The act also seems to be very silent on the property management of

persons who are mentally ill. Also the act in its solitude cannot be
considered in cases. For example, in case of divorce between a couple ,
what happens to the mentally ill child is neglected in the Act. The act is
also silent of the compensation and punishment awarded in case of
exploitation of a mentally ill person.

The concept of advance directive has been adopted from the Western
Countries. This seeks to give power to the patients to decide as to
whether they want certain treatment or not. However this also brings
forth a shortcoming. Mental illnesses are different from general Illnesses
as they are chronic and does not give the patient sufficient knowledge to
make sound decisions. In such a case, having a nominated personnel
would only increase the time of being mentally ill as that person is also
bound to have lesser knowledge in this regard.

In the midst of such shortcomings, there has also been certain welcome
move such as the decriminalization of attempt to suicide and suicide.
However, a major loophole could be in the cases of dowry-related
burning/ attempted homicide, such a condition can be easily faked as a
suicide.
Moreover, in a country like India with billions as a population setup,
persons with mental illnesses face a major aggravation by socio cultural,
economic and other cultural factors such as lack of access to healthcare,
stigma, discrimination and superstition, the act does not offer any early
intervention and precautionary measures.

Drawbacks- Liberal in its Principles and let down by Provisions

Going into the nitty-gritties of the Act in itself, there are a few
shortcomings-

 The Act mentions that there would be a six member review board
formed- the constitution of that board consists of only one
psychiatrist. A single psychiatrist taking a decision would not be
sufficiently well- advisable.
 All patients being given the option of choosing the forms of
treatment could serve as a hampering process.
 This act provides as a support of Doctrine of Advance Directives as
elaborated above which could increase the work of the
psychiatrists and India barely meets the number of psychiatrists
required to substantiate and cater to the huge population.
 The act seeks to establish new mental health establishments across
districts rather than seeking to reform the already existing ones.

Conclusion and Suggestions-

According to a study conducted,1 students between the age group of 12

to 19 commit suicide due to “study stress”. Therefore, it should be
mandated to provide for a qualified counsellor at every institution.

The new Mental Healthcare Act 2017 is supposed to change the

elemental approach on psychological and mental problems as well as a
smart patient-centric health care, rather than a criminal-centric one, in
India, the second most inhabited country and one in all the quickest
economies within the world. the rules ought to be reviewed on aspects

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like primary interference, reintegration, and rehabilitation as a result of
while not such strengthening, its implementation would be incomplete
and therefore the issue of former psychological state patients can still
exist. Hence, being optimistic about the Act, there is a need to wait and
watch for its implementation. Rest assured, this act would face a
strenuous struggle in its effective implementation.