Mental Health and Law in India

Mental health has emerged as a matter of importance and concern over last few months.
Often viewed as taboo subject, mental health is slowly but surely being talked about with
many prominent sportspersons and other personalities sharing their struggles with mental
illnesses. Still mass sensitization and education is required. The law also plays a part in it.

Convergence of law and mental health is an interesting area for study. Government of India
has enacted The Mental Health Care Act, 2017 (hereinafter referred to as the ‘Act’) in order
to provide for “mental healthcare and services for persons with mental 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.” Since India is signatory
to UN Convention on Rights of Persons with Disabilities and its Optional Protocol, it was
deemed necessary by the Government to align and harmonise the existing laws with the UN
Convention.

The Act of 2017 is a comprehensive piece of legislation and has replaced The Mental Health
Act, 1987. Now let’s have a look into salient features of the Act.

 Definitions

The Act defines Mental Illness as “means 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 sub normality of intelligence.” The definition also covers within its purview
the mental conditions arising due to substance abuse, which is quite realistic approach but
this definition has certain grey areas.

Firstly, depression is classified as a mood disorder which symptomizes as constant low mood,
inability to experience pleasure, etc. Majorly, depression does not impair judgment or reality
perception of the person suffering from it. A literal interpretation of the definition of mental
illness may exclude depression from within its purview. Similar is the case with panic
disorders and phobias. This is required to be looked into because in the past, depression has
been linked with suicides including the recent ones of some actors across various film
industries in India.

Secondly, section 3 of the Act provides that mental illness is to be determined in accordance
with nationally or internationally accepted medical standards to be notified by Central
Government. The Government is yet to notify such medical standards. Moreover,
international standards like DSM and International Classification of Diseases 10 (by WHO)
are liberally worded as compared to the definition under the Act. This has created a dilemma
of the sorts regarding the benchmark for assessing mental illness under the Act.

Section 3 clauses (3) and (4) clarify that association with cultural, racial or religious group,
political, economic or social status, non-conformity with moral, religious, political or social
beliefs and past history of mental illness are not the basis for determination of mental illness.
This is a silver lining in the Act. This provision has also been applied by Supreme Court in
Navtej Singh Johar vs UOI (2018) 10 SCC 1. Supreme Court (per Justice Nariman) used
these provisions to refute the claims that homosexuality is mental illness. Supreme Court also
opined that under the scheme of the Act, homosexuality cannot be termed as mental illness.

Mental Health Professional is also defined under the Act. According to section 2(r), Mental
Health Professional means- a Psychiatrist or a professional registered with State Authorities
or a professional having post graduate degree related to psychiatry in Ayurveda, Unani,
Sirappu Maruthuvam and Homeopathy streams.

This definition is quite inclusive in nature and includes some non-conventional streams and it
practitioners within its ambit.

 Rights of Person with Mental Illness

The Act grants certain rights to the person with mental illness. Chapter V of the Act provides
for the rights available under the Act. They are:-

1. Right to Access Mental Healthcare

Section 18 of the Act provides that every person shall have right to access mental healthcare
and treatment from mental health services run or funded by Government. This right include
right to access of services “of affordable cost, of good quality, available in sufficient
quantity, accessible geographically, without discrimination on the basis of gender, sex,
sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any
other basis and provided in a manner that is acceptable to persons with mental illness and
their families and care-givers.”

A person who is destitute or homeless or a person living below poverty line has right to
access the mental health services free of cost. Section 18 also ensures that the quality of
services provided shall be equal to quality of general health services and no discrimination
shall be done with person suffering from mental illness.

2. Right to Community Living

The Act recognizes the vulnerability that persons with mental illness may face at
home. Section 19 of the Act provides that the person with mental illness has a right to live in
a society and not be segregated from it. If such person is forced to live in mental health
establishment merely because he is not accepted by his family or is homeless then
Government is required to provide appropriate support including legal aid to such person.

3. Right to Humane Treatment and Equality

Section 20 of the Act provides that a person with mental illness has a right to live with
dignity. Every such person has a protection from cruel, inhuman and degrading treatment.
The right provided u/s 20 is a cluster of various rights namely, right to privacy, right not to be
subjected to tonsuring, protection against sexual, emotional, physical and verbal abuse, etc.

Section 21 of the Act provides that a person with mental illness shall be treated equal to
persons with physical illness with respect to healthcare provided to them. No discrimination
can be meted out to mentally ill person on the grounds mentioned in section 18.

4. Right to Information and Confidentiality

Section 22 of the Act provides for right to information to person with mental illness and his
nominated representative. The information covered under section 22 relates to nature of
illness, proposed treatment plan and its side effects, law under which such person is admitted
to mental health establishment, etc.

Under section 23, a person with mental illness has a right to confidentiality in respect of his
mental health, mental healthcare, treatment and physical healthcare. All health professionals
providing care or treatment to a person with mental illness are duty bound to keep all such
information confidential which is obtained during care or treatment. Certain exceptions like
prevention of threat to life, court ordered disclosure, etc. are there to this right.

Section 24 of the Act provides for restriction on releasing of any photo, information or digital
information of person undergoing treatment at a mental health establishment. This
information cannot be released to media without the consent of person with mental illness.
This restriction is limited to the period such person is undergoing treatment. Restriction after
the period of treatment is not provided. This must be changed because a person may not be
comfortable with sharing his history of mental health with media due to stigma attached with
mental illness in Indian society.

Section 25 of the Act provides for the right of person with mental illness to access his basic
medical records. Mental health professional may withhold such information if the disclosure
would result in harm to such person or to other person.

5. Other Rights

Section 26 of the Act provides a right to personal contact and communication. A person with
mental illness has a right to accept or refuse any visitors or telephonic/electronic
communication. This right can be exercised against society at large or specific persons.

Under section 27, person with mental illness has a right to legal aid in order to exercise his
rights under the Act. Such person is entitled to receive free legal aid under Legal Services
Authorities Act, 1987 and Magistrates, Police, Mental Health Professionals, etc. are duty
bound to inform him about the same.

Under section 28 any person with mental illness or his nominated representative has a right to
complain regarding deficiencies in provision of care, treatment and services in a mental
health establishment. This complaint can be made to person in-charge of mental health
establishment, Mental Health Review Board and State Mental Health Authority.

 Advance Directives and Nominated Representatives

One of the most talked about feature of the Act is advance directives. It is a novelty
introduced by the Government under the Act. Advance directive simply means a set of
written instructions given by a person explaining how medical decisions for him have to be
taken when he himself cannot take such decision.
Chapter III of the Act deals with advance directives. Under Section 5, any person who is not
a minor can give written advance directives specifying the way he wishes to be cared or
treated or way he wishes not to be cared or treated for a mental illness. Advance directives
may also contain order of precedence in which individuals can be appointed as his Nominated
Representatives. Advance directives are applicable only for the period when the person is
unable to take decisions for himself with respect to mental or physical treatment. Advance
directive can be amended, cancelled or revoked anytime by the person who made it. Advance
directives are to be certified by a medical practitioner and are to be registered with Mental
Health Review Board constituted by State Mental Health Authority. Supreme Court in the
case of Common Cause vs UOI (2018) 5 SCC 1 has given detailed guidelines regarding
advance directives, their mode of making, procedure for carrying them out, etc. These
guidelines are applicable on advance directives given under the Act or otherwise.

Advance directives are binding upon nominated representative and the medical professional
treating the person with mental illness. If the medical professional does not wish to follow the
directives while treating a person with mental illness then he has to apply before Mental
Health Review Board. The Board will then take a decision after giving an opportunity of
hearing to all concerned parties. This procedure may appear to be well balanced on paper but
it comes with a fair share of practical constraints. A procedure which involves conducting of
hearings to reach upon a decision may take long period of time and may prove detrimental to
health and interests of a person with mental illness. In case of emergency, a medical
practitioner can give emergency treatment for mental illness after obtaining Informed
Consent of nominated representative. Informed Consent for the purpose of the Act means a
free consent given after being informed about risk and benefits of the treatment and
alternative treatments available. The Act defines an emergency as any situation in which
treatment is necessary to prevent death or irreversible harm to health of person with mental
illness or others or to prevent him from causing serious damage to property belonging to self
or to others. A state of emergency is where the expression of an individual’s will and
preference is most likely at risk and it is at this very point that the Act allows for it to be
ignored. Even if it is not an emergency, the onus is on the person with mental illness or their
nominated representative to give a copy of the directive to the practitioner. Not receiving a
copy of the directive absolves the practitioner from any liability for not following it.

Advance directive is a practice of Western Countries which are more developed as compared
to India. Demography of India and Western Countries are quite different. Since advance
directives give a patient more power over his treatment, a well informed and researched
approach is required for reaching at a decision. In India, a major chunk of population is not
well aware about mental illnesses let alone the treatments available for them. This may result
in directives which may be detrimental to the health of a person, but a medical practitioner
may be bound to either follow them or to not admit a person with mental illness at his
institution.

 Suicide and Prohibited Practices

The Act is celebrated for effectively repealing section 309 of IPC which provides for
punishment in cases of attempt to commit suicide. Section 115 of the Act provides that
“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 also obligates
the Government to provide care, treatment, and rehabilitation to a person who attempts
suicide due to severe stress. This provision is being hailed for decriminalising attempt to
commit suicide. However, this endorsement of section 115, as decriminalising attempted
suicide is misplaced and is not entirely true.

Section 115 does not decriminalise attempted suicide. It creates a strong presumption in
favour of a person who attempts suicide and onus to prove otherwise lies on the State.
Section 115 presumes that the person attempting suicide is under severe stress and hence
should not be punished for the same. If the situation is not so, then the State has to produce
very strong evidence to prove that the suicide was attempted for a reason other than severe
stress. In terms of Indian Evidence Act, 1872, in case of attempted suicide, the courts will
presume severe stress to be a proven fact unless it is disproved by the State. Section 115 has
rightly highlighted the position that a person who commits or attempts to commit suicide is
more often than not, a victim of circumstances rather than a culprit.

One explicit clarification which should have been added to section 115 is that it does not
apply in circumstances where suicide is attempted for a reason other than severe mental
stress. Threat to suicide is sometimes employed as a tactic to pressurize individuals or
Government. Section 115 should not be applied to such cases.

Section 95 of the Act prohibits use of electro-convulsive therapy without the use of muscle
relaxants and anaesthesia, electro-convulsive therapy for minors, sterilization of person
suffering from mental illness and chaining of a person with mental illness. Electro-convulsive
therapy can be used for minors with the consent of their guardians. This provision is in lines
with the right against inhuman treatment meted out on persons with mental illness.

 Insurance and Free Treatment to Poor

The Act directs the insurers to provide medical insurance covering mental illness on the same
basis as physical illness. This is a welcome step as insurance coverage of mental illness will
encourage people to proactively seek treatment for it without financial constraints. Pursuant
to enactment of the Act, IRDA had issued directives to all medical insurers to include mental
illness within their ambit. Apart from HDFC ERGO policy, no other insurance policy has
included mental illness within its coverage. Even insurance under Ayushman Bharat PM JAY
has a scant reference to mental illness coverage. It is unclear what illnesses are covered under
the scheme. The laxity of IRDA in ensuring coverage for mental illnesses has been noted by
Supreme Court and a notice has been issued to it on 16 June 2020 in the case of Gaurav
Kumar Bansal vs UOI (WP(Civil) No. 425/2020).

The Act also provides for free treatment for persons who belong to below poverty line strata
of society or are homeless or destitute. Possession of BPL card is not necessary for this
purpose.

 Grey Areas of the Act

The Act is a forward looking piece of legislation on many fronts but it has its fair share of
grey areas to be looked into. Section 120 of the Act is non-obstante provision and has
overriding effect over existing laws. In 2016, the Parliament enacted Person with Disabilities
Act (PWDA) which also has non obstante clause with a provision that PWDA is in addition
to other laws and not in their derogation. A person suffering from mental illness is also a
person with disability under PWDA. Hence, in case of clash between these two legislations,
Mental Healthcare Act will prevail, resulting in deprivation of benefits under PWDA to the
person suffering from mental illness.

The Act lays down comprehensive set of bodies, institutions and authorities to be set up. It
also provides for free treatment of poor. All these measures if properly implemented will
require a great amount of funds. Since, health is subject matter of State List, the onus lies
upon State governments who often raise the issue of fund crunch. The Act simply provides
for setting up of funds for Central and State Mental Health Authority for meeting out of the
expenses pertaining to salaries, expenses, etc. of Mental Health Authorities. It is silent upon
sharing of expenditure between Centre and State and no provision is there for providing
financial assistance to the States. For a country spending less than 1.5% of its GDP on
healthcare, infusion of funds is required. The Government should formulate a fund sharing
formula with States. Central Government shall also contemplate tax deduction on CSR
amount spent by Corporates for mental health initiatives run in collaboration with it.

The Act has been in force for about three years now and then also very little has been done on
the ground. The Act is silent upon some aspects which can be dealt with by drafting rules
under the Act. The Mental Healthcare Act, 2017 is progressive on many fronts but its proper
implementation is yet to be seen. In absence of proper implementation, this Act will also be
lost in oblivion without making much impact, just like its predecessor.

- Author Mayank Sahu is a Lawyer and is a graduate of Dr. RMLNLU,

Lucknow.

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