Demystifying new Mental Healthcare Bill, 2016

Recently, the Rajya Sabha passed “The Mental Healthcare Bill, 2016”, and is expected to be discussed in Lok Sabha during next session. However, this Bill repeals the existing Mental Health Act, 1987 that is vastly different in letter and spirit. The Act of 1987 had been widely criticized for proving to be inadequate to protect the rights of mentally ill persons. Here are certain important points about the new Bill:

Mental Healthcare Bill seeks to decriminalize the Attempt to Commit Suicide.
The most significant feature of this Bill is that a person attempting suicide shall be presumed, though rebuttal, to be suffering from severe stress (the words ‘mental illness’ in the old Bill substituted with ‘severe stress’) and hence, exempt from trial and punishment. The Bill also seeks to impose on the government a duty to rehabilitate such person to ensure that there is no recurrence of attempt to suicide.

Seeks to fulfill India’s international obligation pursuant to the Convention on Rights of Persons with Disabilities and its Optional Protocol

India signed and ratified the Convention on 1st October 2007. The Bill adopts a more nuanced understanding of “mental illness” than the Act of 1987. However the Bill varies from the social model of disability incorporated in the Convention. The social model of disability focuses on how disability hampers a person’s full and effective participation of the society. The Bill, on the other hand, adopts a narrow approach to see mental illness as hampering recognition of reality or ability to meet the ordinary demands of life and also as conditions associated with drug and alcohol abuse.

Seeks to empower persons suffering from mental-illness, marking a departure from the Act of 1987Whereas the Act of 1987 did not recognize the agency and capacity of a person suffering from mental illness, the Bill adopts a radically different approach empowering the individual to make decisions concerning her mental healthcare or treatment. This is in line with the objective of the Convention to uphold the inherent dignity of the persons with disabilities.

The capacity to take such decisions is recognized if the individual can understand relevant information, appreciate foreseeable consequences of such decisions and also can communicate them. The Bill also lays down certain parameters for determination of mental illness, seeking to use nationally and internationally accepted medical standards, especially the standards adopted by World Health Organization. The provision also seeks to preclude irrelevant factors in the determination of mental illness.

The Bill provides every person, except a minor, with a right to make an Advance Directive specifying the way the person wishes to be cared for and treated for a mental illness and also to appoint a nominated representative, who is entrusted with the task of protecting the interests of the person suffering from mental illness.

It is mandatory for every medical officer and psychiatrist to provide treatment to an individual as per the Advance Directive except when the Mental Health Review Board finds that the directive can be altered on considerations like lack of free will, information or capacity; or illegality of the content; or circumstances differing from those anticipated by the person making the directive.

Adopts a rights-based approach, which is a first in the mental health law of India. The Bill creates a rights-based framework for mentally ill persons. This is a remarkable difference from the Act of 1987. Whereas the Act of 1987 provided only general protections against indignant or cruel treatment, Chapter V of the Bill operates as a charter of rights for persons with mental illness consolidating and safeguarding the basic human rights of these individuals. The Bill guarantees every person the right to access mental health care and treatment from mental health services run or funded by government. This right is meant to ensure mental health services of affordable cost, of good quality, of sufficient quantity, are geographically accessible and are provided without discrimination.

The Bill 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 recourse; right to confidentiality; right to access their basic medical records; right to personal contacts and communication; right to legal aid; recourse against deficiencies in provision of care, treatment and services. Every insurer is bound to make provision for medical insurance for treatment of mental illness on the same basis as is available for treatment of physical illness.

Provisions for registration of institutions and regulation of the sector
The Bill provides for the creation of Central and State Mental Health Authorities in order to ensure registration and supervision of mental health establishments; to develop quality and service norms for these establishments; to ensure registration of psychologists, mental health nurses, psychiatric social workers; to train law enforcement officials and mental health professionals about implementation of the Bill; and to advise government on mental health related issues.

Registration of mental health establishments is made mandatory by providing for stringent penalty for violation. The registration is contingent on the establishment complying with the regulations issued by relevant Authority. The Bill also provides for the creation of Mental Health Review Boards that has adjudicatory powers over the various rights and protections guaranteed by the Bill.

Further, an appeal is allowed to the High Court against the order of the Authority or the Board, while there is a bar on jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter which the Authority or the Board is empowered to decide. These provisions have been critically viewed for creating dependency of mental health practitioners on the government.

The Bill allows only restricted use of Electro-convulsive therapy.
The Bill completely prohibits Electro-compulsive therapy (“ECT”) as a measure of emergency treatment. It also prohibits ECT without muscle relaxants and anaesthesia. ECT is completely prohibited for minors except with informed consent of the guardian and prior permission of the concerned Board.

Property Management
Unlike the Act of 1987, the Bill does not provide for management of property of mentally ill persons. This is a serious cause of concern as mentally ill persons could easily be exploited and their property taken away from them, leaving such individuals in a perpetual state of dependency. The series of rights recognized by the Bill do not account for property management of mentally ill persons. The Standing Committee report took note of this discrepancy and recommended that the central government implement necessary transitory schemes.

Responsibilities of certain other Agencies
The Bill imposes a duty on the police officer in the charge of a police station to take under protection any person found wandering at large within the limits of the police station; 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.

Further, 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. Upon this report, the Magistrate may pass an order to cause the person to be produced before him to be subsequently examined by a medical officer or a mental health professional or be provisionally admitted to a mental health establishment. The Bill also provides that whenever during a judicial process, a proof of mental illness is produced and the same is challenged, the court shall refer it to the concerned Board and the Board shall submit its opinion to the court.

Funds
The Bill guarantees a right of affordable, accessible and quality mental health care and treatment from mental health services run or funded by Central and State governments. The Bill also makes provision for a range of services to be provided by the appropriate government. However, the estimate of expenditure required to meet the obligations under the law is not available. It is also not clear how the funds will be allocated between the Central and the State governments. The Standing Committee report recommended allocation of funds to states noting that without such allocation, states facing financial constraints will not be able to implement the bill.

The Bill seeks to tackle stigma attached to mental illness
By addressing mental illness from a holistic perspective and by empowering mentally ill persons, the Bill seeks to remove the stigma attached to mental illness. It makes effort to secure equal treatment for persons with mental illness and those with physical illness. However, some critics believe that the Bill, especially the expansive definition of “mental illness”, will only hurt a large number of victims of even minor mental illnesses and their families, because of the wide prevalence of stigma, while not really tackling the issue of stigma.