The Mental Healthcare Act

“Human dignity is the anchor norm of human rights. Each individual is deemed to be of inestimable value and nobody is insignificant. People are to be valued, not just because they are economically or otherwise useful but because of their inherent self-worth.” - Routledge Handbook of Disability Law and Human Rights, 2016.

The Mental Healthcare Act, 2017, (hereinafter referred to as the “Act”) which repealed the Mental Health Act, 1987, was enacted to conform to the United Nations Convention on Rights of Persons with Disabilities and to harmonize it with the said Convention. The Act, which came into force on 29^th May, 2018, is a legislation with an aim to provide for mental healthcare and services for persons with mental illness and protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services.

What is mental illness?

Mental illness 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. It does not include mental retardation.

What is mental retardation?

Mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

What are the functions of the Central Mental Health Authority?

The Central Mental Authority, established under the Act, has various functions to perform. It has to register all mental health establishments under the control of the Central Government and maintain a register of all mental health establishments in the country based on information provided by all State Mental Health Authorities of registered establishments and compile update and publish (including online on the internet) a register of such establishments; develop quality and service provision norms for different types of mental health establishments under the Central Government; supervise all mental health establishments under the Central Government and receive complaints about deficiencies in provision of services; maintain a national register of clinical psychologists, mental health nurses and psychiatric social workers based on information provided by all State Authorities of persons registered to work as mental health professionals and publish the list (including online on the internet) of such registered mental health professionals; train all persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of the Act; advise the Central Government on all matters relating to mental healthcare and services, etc.

What are the functions of the State Mental Health Authorities?

The functions of the State Mental Health Authority established under the Act, are - to register and supervise all mental health establishments of the State, register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals, train all relevant persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of the Act.

What are the functions of the Mental Health Review Boards?

The functions of the Mental Health Review Boards, constituted by the State Mental Health Authority are - to register or cancel an advance directive (right of a person to express in writing the way the person wishes to be cared for and treated for mental illness or the way the person wishes not to be cared for and treated for mental illness), to appoint a nominated representative, to receive and decide application from a person with mental illness or his nominated representative, to adjudicate complaints regarding deficiencies in care and services, to visit and inspect prison or jails and seek clarifications from the medical officer in-charge of health services, to conduct an inspection, inquiry and take action against any mental health establishment which has violated the rights of persons with mental illness. Transfer of persons with mental illness from one Mental Health Establishment to another Mental Health Establishment, in the absence of a Mental Health Review Board, is not possible at all.

What are the rights of persons with mental illness?

The Act enables a person with mental illness to receive free legal aid services under the Legal Services Authorities Act, 1987. A person with mental illness has numerous other rights as well, under the Act, like, right to access mental healthcare, right to community living, right to protection from cruel, inhuman and degrading treatment, right to equality and non-discrimination, right to information, right to confidentiality, restriction on the release of information in respect of mental illness, right to access medical records, right to personal contacts and communication, and right to make complaints about deficiencies in the provision of services.

What are the duties of police officers under the Act?

The police officers have important duties, under the Act, such as - to take under protection any person whom the officer thinks, has a mental illness and is incapable of taking care of himself or to be a risk to himself or others because of mental illness. The police officer has to report about such person with mental illness to the concerned Magistrate and if the Magistrate has reason to believe that such person has a mental illness or is neglected, then, the Magistrate has the power to convey or admit such person to a mental health establishment. Under the Act, in case, a person with mental illness is found homeless, a first information report of the missing person has to be lodged at the concerned police station and the police shall be duty-bound to trace the family of such person.

What are the duties of nominated representatives of minors and persons who have completed the age of eighteen years?

Nominated representatives of minors (persons who have not completed the age of eighteen years) and persons who have completed the age of eighteen years, have significant duties under the Act. The nominated representatives have to support the persons with mental illness in all respects and in their best interests. The Act has decriminalized the attempt to commit suicide which is one of the most important features in the Act and any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished.

What are the duties of the Central Government and the State Governments?

It is the duty of the Central Government and the State Governments to promote mental health and preventive programmes, create awareness about mental health and illness, reduce the stigma associated with mental illness, take measures as regard to human resource development and training, etc.

How can the objectives of the Act be achieved in Jammu & Kashmir?

In order to achieve the objectives of the Mental Healthcare Act, 2017, time is ripe to build a robust mental healthcare system in line with the said Act. The police and other law enforcement agencies have to be sensitised about the powers they possess, under the Act, for the rehabilitation of persons suffering from mental illness. The Government of the Union Territory of Jammu & Kashmir, need to promote mental health and preventive programmes, create awareness about mental health and illness, and reduce the stigma associated with mental illness. They are also obliged under the Act to set-up a mental health establishment in the medical wing of at least one prison of the Union territory and prisoners with mental illness may ordinarily be referred to and cared for in the said mental health establishment.

What did the Supreme Court observe in Navtej Singh Johar v. Union of India and in Accused ‘X’ v. State of Maharashtra?

In the case of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, the Supreme Court held that an irreducible core of the right to life is dignity. Justice N. V. Ramana, Judge, Supreme Court of India, aptly enunciated in the case of Accused ‘X’ V. State of Maharashtra, Criminal Appeal No. 680 of 2007, that, “all human beings possess the capacities inherent in their nature even though, because of infancy, disability, or senility, they may not yet, not now, or no longer have the ability to exercise them. When such disability occurs, a person may not be in a position to understand the implications of his actions and the consequence it entails.” Therefore, concerted steps need to be taken to effectively implement the Mental Healthcare Act, 2017 in the Union Territory of Jammu & Kashmir so that the rights of persons with mental illness are protected, promoted and fulfilled, purposefully.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.