The Mental Healthcare Act, 2017

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Introduction

In a significant move towards recognizing the importance of mental health and ensuring the well-being of individuals, the Mental Healthcare Act, 2017 was enacted in India. It represents a pivotal moment in the history of mental health legislation in India. The main motive of this act is “to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.” This transformative legislation aimed to address the long-standing gaps in mental healthcare services and promote the rights of persons with mental illnesses. By focusing on individuals' protection, treatment, and rehabilitation, the Act has laid the foundation for a more inclusive and compassionate approach to mental healthcare in the country. 

Definition of Mental Illness under the Mental Healthcare Act, 2017

In the previous Act of 1987 (The Mental Healthcare Act, 1987), the term mental illness was defined as “any mental disorder and seldom as mental retardation” whereas the enactment of the 2017 Act resulted in an elaborated definition of mental illness. Under Section 2 of the Act, ‘Mental illness’ is defined as “a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize 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, especially characterized by subnormality of intelligence.” 

Important provisions of the Act

Rights of Persons with Mental Illness

Persons with mental illness have certain rights that are recognized and protected by various laws and international conventions. These rights are aimed at promoting their dignity, autonomy, and well-being, and ensuring that they are treated with respect and equality. Sections 18- 28 of the Mental Healthcare Act illustrate various rights provided to a person suffering from mental illness which are listed as follows:

• Right to Access Mental Healthcare: It is defined under Section 18 of the Mental Healthcare Act, 2017 which establishes the right of every person to access mental healthcare and treatment from mental health services that are affordable, accessible, and of good quality. It emphasizes the need for mental health services to be provided without discrimination, ensuring that vulnerable populations have equal access to care.
• Right to community living: Section 19 of the Act illustrates that persons with mental illness have the right to live, work, and participate fully in their communities. They should not be subjected to isolation or segregation but rather have equal opportunities for social inclusion, education, and employment.
• Right to protection from cruel, inhuman, and degrading treatment: This right ensures that every person with mental illness should have the right to live in dignity. As per Section 20 of the Act, Persons with mental illness should have the right to privacy, to be protected from any kind of abuse either verbal, physical, sexual, or emotional, to live in a hygienic and safe environment, to not be forced to work in a mental health establishment and to have adequate sanitary conditions.
• Right to equality and non-discrimination: Persons with mental illness have the right to be free from discrimination based on their mental health condition. They should be treated with dignity and respect, and their access to employment, education, housing, and healthcare should not be unjustly restricted. This Right of persons with mental illness is elaborated under Section 21 of the Act. 
• Right to Information: It ensures that every person with mental illness has access to information about their mental health condition, treatment options, and other relevant aspects. Also, they should be informed about their diagnosis, proposed treatment, potential risks, and benefits. Section 22(2) of the Act also illustrates that information as mentioned above should be provided to individuals with mental illness when the person is in a position to receive it rather than at the time of the start of treatment or admission. 
• Right to confidentiality: Under Section 23 of the Act, the right to confidentiality is elaborated. It protects the privacy of persons with mental illness ensuring that their personal information including their photographs, medical records, and mental health status are kept confidential and not disclosed without their consent, except in certain circumstances as provided by the law. The same should apply to all information in electronic or digital format in real or virtual space, as mentioned in Section 24 of the Act. This right helps maintain trust between individuals and their healthcare providers and encourages open and honest communication. 
• Right to access medical records: As per Section 25, all persons with mental illness should have the right to access their medical records where “the mental health professional in charge of the records may withhold specific information in the medical records if disclosure would result in serious mental harm to the person with mental illness or likelihood of harm to other persons.” 
• Right to personal contacts and communication: It allows persons with mental illness to refuse or receive visitors as well as telephone or mobile phone calls, as mentioned under Section 26. This right ensures that they can communicate with family members, friends, and other support networks unless such contact is deemed harmful to their well-being.
• Right to legal aid: This right is discussed under Section 27 of the Act stating every individual is entitled to receive free legal services. It also states that “It shall be the duty of magistrate, police officer, person in charge of such custodial institution as may be prescribed or medical officer or mental health professional in charge of a mental health establishment to inform the person with mental illness that he is entitled to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987) or other relevant laws or under any order of the court if so ordered and provide the contact details of the availability of services.” 
• Right to make complaints about deficiencies in the provision of services: A mentally ill person can complain to a mental health professional or medical officer, the concerned Board, and the State Authority regarding the deficiencies in the provision of treatment, care, and services in the mental health establishment (Section 28).

Advance Directive

Section 5 allows individuals to create advance directives, which specify the treatment they would prefer or refuse in the future, in case they lose decision-making capacity. Section 5(1) of the Act states that “Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, 

• The way the person wishes to be cared for and treated for a mental illness;
• The way the person wishes not to be cared for and treated for a mental illness; and
• The individual or individuals, in order of precedence, he wants to appoint as his nominated representative…” 

This provision ensures that individuals’ autonomy and choices are respected even when they are unable to express them personally.

Mental Health Establishments

The enacted Mental Healthcare Act provides power to the government to establish the Central Mental Health Authority and State Mental Health Authority at National-level and State-level respectively. Anyone either a person or an organization who proposes to run or establish the mental health establishment has to register themselves under the appropriate authority. The Act also illustrates a detailed procedure for registration inspection and inquiry of mental health establishments. Moreover, every mental health institute and all mental health practitioners will have to register with the authority. Mental Health practitioners include nurses, psychiatric social workers, and clinic psychologists. These bodies are responsible to:

• Maintain quality of care by providing safe and effective mental healthcare services as well as by maintaining proper hygiene and safety standards. 
• Register, supervise, and manage a register of mental health establishments and professionals.
• Train mental health experts and law enforcement administrators on the provisions of the Act.
• Assist the government in matters pertaining to mental health.
• Establish a mechanism for addressing complaints and grievances.

Mental Health Review Boards

These boards play a crucial role in safeguarding the rights of individuals with mental illnesses by reviewing and ensuring the legality of admissions, discharges, and treatments. They act as independent bodies to prevent any potential abuse or neglect and provide a mechanism for individuals to seek redressal of grievances. Sections 73- 84 of the Mental Healthcare Act, 2017 illustrate important provisions related to the Mental Health Review Boards. 

Decriminalization of Suicide

According to Section 115 of the Act, “Notwithstanding anything contained in Section 309 of the Indian Penal Code (45 of 1860) 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.” It emphasizes the need for care, treatment, and support for individuals who attempt suicide, shifting the focus from punishment to rehabilitation.

Prohibited Procedures 

There are various methods or procedures used for treating persons with mental health issues but some of the procedures are prohibited and are discussed efficiently under Section 95. It states, “Notwithstanding anything contained in this Act, the following treatments shall not be performed on any person with mental illness: 

1. electro-convulsive therapy without the use of muscle relaxants and anesthesia; 
2. electro-convulsive therapy for minors; 
3. sterilization of men or women, when such sterilization is intended as a treatment for mental illness; 
4. chained in any manner or form whatsoever.”

Penalties and offences

Section 107: Any person who runs or carries a mental health establishment without registration is liable to a penalty not less than 5,000 rupees but which may extend to 50,000 rupees for the first contravention, for the second contravention he/she is liable to a penalty not less than 50,000 rupees but which may extend to 2,00,000 rupees, or for every subsequent contravention he/she is liable to a penalty not less than 2,00,000 rupees but which may extend to 5,00,000 rupees. Moreover, if any mental health professional serves knowingly in such an establishment (not registered) is liable to a penalty extending to 25,000 rupees.

Section 108: Any individual who violates any provision of the Act is punishable with imprisonment for a term which may extend to 6 months or with a fine extending to 10,000 rupees or with both for first contravention and for subsequent contravention with imprisonment for a term extending to 2 years or with fine not less than 50,000 rupees or with both.

Related Case Laws

• Syed Bashir-ud-din Qadri vs. Nazir Ahmed Shah & Ors. (March 10, 2010)
• Jeeja Ghosh & Anr. vs. Union of India & Ors. (May 12, 2016)
• Common Cause (A Regd. Society) vs. Union of India and Another (March 09, 2018)
• Accused X vs. State of Maharashtra (April 12, 2019)
• Ajay Kumar Pandey & Ors. vs. State of U.P. & Ors. (August 01, 2022)

Conclusion

The Mental Healthcare Act, 2017 is a significant step towards creating a more inclusive approach to mental healthcare in India. By prioritizing the well-being and rights of individuals with mental illnesses, the Act aims to reduce stigma, ensure access to quality care, and empower individuals to make decisions regarding their treatment and care. It highlights the importance of a compassionate and human rights-oriented approach to mental health, setting the stage for a more inclusive and supportive society.