UNSCRAMBLING THE MENTAL HEALTHCARE ACT, 2017- (Article)

 

INTRODUCTION

            The life of humans are precious. The mental health of humans are equally as that of physical health. Human beings does not know how to control their emotions. They always share their emotions, feelings with the fellow human beings. The stress, depression and anxiety are caused due to varied reasons and if that properly not balanced, leads to the mental instability of the people. Therefore special care and need has to be given to the people with mental illness. Those illness can be cured with medications and the full-fledged support from the family. Keeping these in mind Indian Parliament has enacted a new legislation for mental health, named the Mental Healthcare Act, 2017.

BACKGROUND OF THE ACT

            The Lunacy Act, 1912 was the enactment which was in force after independence of India to deal with the mental illness people. The Act addresses mentally suffered people as ‘lunatics’. This word itself brings a negative connotation on mental suffered people. Therefore the Parliament enacted a new law called the Mental Health Act, 1987, by replacing the earlier Lunacy Act, 1912. However, the 1987 Act also suffered from serious disadvantages:

·         The 1987 Act was descriptive in nature;

·         The Act was not particular regarding the rights of the mentally ill people[1], there was no described rights for the mentally ill people; and

·         Offences and penalties provisions under the Act was not severe. The penalty for opening a mental health hospital illegally was only imprisonment of three months and fine of Rs. 200. And for continuing the same, the punishment was six months imprisonment and Rs. 1000 as fine. The penalty for persons whoever not abiding with the provisions of the Act is punished with a fine of Rs. 500.

In a single word, the 1987 Act can be called as a draconian enactment. Therefore the Parliament replaced this Act and passed a new Act on 7th April, 2017, ‘The Mental Healthcare Act, 2017.’

OVERVIEW OF THE NEW ACT

            The Mental Healthcare came into effect from 7th July, 2018. The 2017 Act is more individualistic in nature. The Act focused more on providing certain rights to the people with mental illness. The definition provided for the term mental illness made the Act more unique. The Act defines mental illness as a disorder in the thinking or perception or memory that results in impairment of judgment or behaviour or capacity to recognise reality or ability to meet the ordinary demands of life and the mental conditions which are associated with the over-usage of alcohol and drugs[2].

i.                    Rights of persons with mental illness

The 2017 Act provides an exhaustive list of rights which are only for the mental illness persons. The rights are:

·         S. 18 – Right to access mental healthcare and treatment and the right to free treatment to persons, if they are homeless or destitute or belongs to below poverty line (BPL card is not mandatory);

·         S. 19 – Right to community living;

·         S. 20 – Right to live with dignity and right to protection from inhuman, cruel and degrading treatment;

·         S. 21 – Equality and non-discrimination of mentally ill people;

·         S. 22 – Right to information;

·         S. 23 – Right to confidentiality;

·         S. 24 – Photograph or any other information pertaining to the person cannot be released in the media without the person’s consent; and

·         S.Right to legal aid and complaints in deficiencies of services.

ii.                  Mental health authority

            S. 33 and 45 of the Mental Healthcare Act, 2017 provides for the establishment of Central and State Mental Health Authority. The main power of these authorities is to take care of the people with mental illness in their allotted areas, the mode of treatment given to mentally ill people and also the extent of rights of mentally ill people availed by them.

            iii.        Mental Health Review Board

                        S. 73 of the Act provides for the formation of the Mental Health Review Board. The main function of the Board is to protect the rights of person with mental illness by deciding the complaints received to them.

            iv.        Decriminalization of suicide

                        One of the main provision of the Act is that it decriminalizes the offence of suicide. Under Indian Penal Code, suicide is still criminal, but this Act decriminalizes suicide, taking into consideration the stress and depression undergone by the mentally ill people.

            v.         Offences and penalties

                        The new Act provides for stricter penal provisions. Section 107 provides for the penalty for opening a mental health hospital illegally is fine of Rs. 5,000 which may be extend to Rs. 50,000 and for continuing offence, the penalty is fine of at least Rs. 50,000 which may extend to Rs. 2,00,000. Section 108 provides for the penalty for person not abiding with the provisions of the Act is imprisonment of six months and fine of Rs. 10,000 and for continuing the same, imprisonment of two years and fine of Rs. 50,000 which may extend to Rs. 5,00,000 or both.

POSITIVE SIDE OF THE ACT

·         The 2017 Act has gone beyond the 1987 Act. The Act tried to meet the expectations and addresses the needs of the mentally ill people;

·         The Act has been enacted with adherence to international norms. India being ratified the United Nations Convention on Rights of persons with Disabilities, 2006, to incorporate the provisions of the convention in the national law enacted the 2017 Act; and

·          The new Act empowers mental health ill people, the Act is providing that the mentally ill people also have basic human rights and explained the legal rights for them.

NEGATIVE SIDE OF THE ACT

·         The Act has not focused on how to prevent mental illness. The rate of mentally ill people in India is increasing at a rapid rate;

·         The Act remains silent on how to maintain mental stability. The Act only addresses on how to treat the mentally ill people;

·         The number of psychiatrists to treat the mentally ill people is not adequate to meet all the mentally ill people; and

·         Lack of public expenditure. Only a little fund is allocated to meet the expenditures for treatment of mentally ill people.

CONCLUSION

            It is cent percent true that the Mental Healthcare Act, 2017 is far better than the earlier 1987 Act on the Mental Health. The new Act is comprehensive and specific when compared to the earlier Act. This Act is a big step taken by the Indian government in the right direction. But the real issue is how the Act is going to be enforced. Many Acts enacted by the Indian government remains only in the paper work. The same situation should not happen with the Mental Healthcare Act, 2017. The mentally ill people are the people to whom special need and care has to be given. Therefore the Act relating to them should be enforced strongly.


[1] S. 81 of the Mental Health Act, 1987.

[2] S. 2 (s) of the Mental Healthcare Act, 2017.

 

-Bini R. A

School of Excellence in Law

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