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Indian Journal of Law and Legal Research Volume IV Issue IV I ISSN: 2582-8878

THE MENTAL HEALTHCARE ACT, 2017

Sunit Pmtap, Institute of Law, NIRMA University

Introduction

According to the statistics of WHO (world health organization) around 7.5 % Indians suffer
from some or the other mental disorder, around 56 million Indians suffer from depression and
approximately 38 million Indians suffer from anxiety disorders. Globally India is in the top
three countries where people are most affected by anxiety, schizophrenia and bipolar disorder,
Accordingly it reveals that how mental health has always been neglected in our society and
also the existing societal stigma around it wherein people are very much afraid to even talk
about it which is why these diseases even though treatable becomes fatal as the sense of
acceptance of the mental health problems among people is not present but things have changed
a bit, since the past few years various organizations and also people have come up who are not
shying away from talking openly about the various mental health problems existing around us
that anyone in their respective lives can face one such prominent example is when Naomi
Osaka who is a world class tennis player was reportedly to be facing depression and how
difficult was for her to cope with it this shows that mental health problems are a real thing and
it can occur to anyone in the society and it is also a high time that we should stop ignoring these
problems and start talking openly about it. The legislation also felt that the Mental Healthcare
Act is the need of the hour so that the patients are able to have a sense of recognition and they
don't feel neglected. So finally in 2018 the MHA was enacted. Even though India had a Mental
Health Act in 1987 but it was repealed soon after the enactment of this act as the former was
not able to address the rights of persons with mental illness and was not able to promote their
access to mental health care in the country.

The United Nations which is an important organization gave a major breakthrough to all the
people with mental diseases around the world when In 2006 they adopted the convention on
the rights of persons, which is an international human rights treaty of the UN which recognizes,
protects, and supports the rights of persons with disabilities. The convention applies to persons
with mental illness and psycho- social disabilities thus recognizing plight of mentally ill people
and taking steps in order to improve their situation so that they can be treated well and can take

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further steps for their improvement it also gives them a sense of confidence that United Nations
is backing them up. India signed and ratified the convention on I, October 2007, thus making
it legally bound for India to comply with the laws that are adopted in the convention, another
reason why India had to make a new law is that the then Mental Health Act of 1987 was not
according to the laws that were adopted in the convention. Finally in 2018 the by the assent of
the president The Indian Mental Health Care act came into force.

Some shortcomings of the act

Now let us understand who exactly is a mentally ill person, a mentally ill person is a person
who is suffering from a Mental disease, often known as mental health problems, it encompasses
a broad spectrum of disorders that impact our emotions, thought, and behaviour.

To elaborate further on the definition of mental illness per se it is provided under the Mental
Healthcare Act of 2017 "mental illness" is 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 it 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.

From the definition given above it is quite pertinent that this definition can is quite restrictive
in nature because it does not take into account some significant and more prevailing disorders
such as:

1. The Conversion disorder. like Blindness, paralysis etc.

2. Phobias such as hydrophobia (the fear of water).
3. Panic disorders
4. Personality disorders (rigid and unhealthy pattern of thinking).

Also, as per the definition given in this act Only people with a "substantial" impairment in
thinking, mood, perception, orientation, or memory that severely compromises judgement,
behaviour, capacity to recognise reality, or ability to manage the demands of daily life are
covered. Not every PMI (psychological medical inventory) is covered under this law. In simple
terms, it refers to people who suffer from severe mental illnesses. Section 3 [3] also adds to the

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Indian Journal of Law and Legal Research Volume IV Issue IV I ISSN: 2582-8878

complication by stating that mental disease must be determined according to the nationally or
internationally accepted medical criteria. In my opinion Section 3 (determination of mental
illness) and Section 2(s) that is the definition of mental illness have to be combined, and the
meaning should be conveyed as per the requirement of the law and preamble. However, Section
3 (mental illness determination) should be limited to clinical usage by clinicians and must take
precedence throughout the administration of mental healthcare services, whereas Section 2(s)
must be used for legal purposes (legal definition) by the MHRB in adjudicating cases.

The act can be considered as a fundamental step towards bringing mental issues into the
mainstream discussion of the society and trying to reduce the taboos formed around it.
However, the act allows for clinical intervention at an advanced level and it is also silent on
the issue of mental and emotional wellbeing prevention and promotion. As its pertinent from
section 89 of the act which talks about the admission of patients to mental health establishments
if there is a risk of causing harm to others or to the patient himself which gives out a message
the mental issues are solely related to wild outbursts and dangerousness whereas it is proved
every now and then that the mentally ill patients are triggered by their intermediate
surroundings which tend to worsen the situation. Instead of finding some appropriate solution
section 89 tends to dilapidate their situation. Another discussion point should be the definition
of the mental health professionals under the act. The definition outcasts psychotherapists and
psychoanalysts and only includes clinical practitioners thus defeating the quote of "prevention
is better than cure ".

Though there are some noticeable flaws in the act but they are subject to discussion and they
can be amended in future.

Some welcoming provisions

The act also includes some of the most welcoming provisions which were not present in the
earlier act such as:
-

The Decriminalisation of suicide - The act presumes that the person committing suicide is
under severe stress and he should not be punished under the Indian Penal Code furthermore it
also imposes a duty that the appropriate government shall have a duty to provide care, treatment
and rehabilitation to the person who attempted suicide in order to reduce the risk of recurrence
of attempt to commit suicide.

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Indian Journal of Law and Legal Research Volume IV Issue IV I ISSN: 2582-8878

Role of nominated representatives -- The act also introduced the mandates of the role of the
nominated representative for minors, the ability to change NR(nominated representative) if he
or she is deemed unfit, the ability for very young children (3 years of age) to stay with their
mothers receiving treatment for mental illnesses, the requirement for NR to accompany minors
during inpatient treatment, the requirement to report the admission of a minor patient to the
mental health review board (MHRB) within 72 hours, and the prohibition on electroconvulsive
therapy for minors.

Section 21(4) which provides that every insurer shall make provision for medical insurance for
treatment of mental illness on the same basis as is available for treatment of physical illness.
Which means that the insurance companies are now required to treat mental health diseases at
par with the physical illness they cannot discriminate among them.

Section 29 of the act provides for the governments duty to reduce the stigma that exists in the
society for mentally ill people through the required media channels or through other medium
of communication. Because of this section now the government is also required to play an
active role in the awareness of mental health issues which would further make the government
accountable and they would be forced to carry out such awareness programmes.

The act also provides legal rights to the mentally ill patients which were missing in the repealed
act. It also gives the right to the patients to know about the medical treatment of which they are
given.

The act also has provisions for the creation of advance directives which is a written declaration
that explains "how the patients wish to be cared for" and "how they should not be cared for" if
they become incapable due to mental illness. In addition, the individual (excluding minors) can
designate an NR to help him or her make treatment-related decisions.

Also, any information about a PMI (psychological medical inventory) receiving treatment in
an MHE (mental health establishment) is not to be shared with the media. The media must also
refrain from showing or publicising the identity of the PMI in specific situations that are
reported to the media. Involuntary admission with the support of the NR is allowed under the

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legislation, and appeals can be taken to the Mental Health Assess Board (MHRB), which will
also review all admissions that last longer than 30 days.

Conclusion

Though the act has introduced several provisions which would spark a debate and fruitful
conversations regarding the existing situation of the mentally ill people in the country which
would ultimately result in the improvement of the act. The legislation also needs to take into
consideration the existing state of the medical infrastructure in the country we all were witness
of how the medical infrastructure completely collapsed during the second wave of COVID
basically it needs to improve its state in order to successfully and more practically implement
the act in the country and the required patients are able to benefit from it. Also, the government
needs to increase the share of expenditure it does towards the medical infrastructure in its
annual budget. According to the National Health Policy , 2017 they had recommended that
expenditure on health infrastructure should be around 2.5-3% of the total GDP but the current
expenditure is way less than that at least the government should try to reach the required
threshold in order to successfully implement the act and reap its benefits in the future.

Noticeable judgement

In the case of Navtej Joharand Others v. Union of India, the Supreme Court of India recently
decriminalised homosexuality in a landmark decision. The Court found Section 377 of the
Indian Penal Code, 1860, to be unconstitutional since it criminalises consenting sexual
activities between two adults. Section 377 discriminates against members of the LGBTIQ
community based on their sexual orientation, according to the Court, and breaches their
fundamental rights granted by the Indian Constitution. After reviewing existing constitutional
principles, international precedents, and expert opinions, the Court came to this judgement.
However, the Court's decision was based in part on a careful reading of the Mental Healthcare
Act of 2017. The Court pointed out that homosexuality is not a mental illness or problem, and
that LGBTIQ people cannot be discriminated against because of their sexual orientation, citing
the anti-discriminatory provisions of the Mental Healthcare Act, 2017. The Court's
interpretation of Section 377 of the Mental Healthcare Act, 2017 is significant because it can

be used to challenge other legislation that discriminate against people with mental illnesses.
The Court also emphasises mental health practitioners' and counsellors' responsibility while
providing mental healthcare to LGBTIQ people. Finally, the Courts' interpretation of the

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Indian Journal of Law and Legal Research Volume IV Issue IV I ISSN: 2582-8878

Mental Healthcare Act, 2017 reflects the Act's dedication to being an anti-discrimination law
that upholds constitutional values and safeguards the rights of people with mental illnesses.

References

1. https: //egazette.nic.in/WriteReadData/2017/175248.pdf

2. https: //journals.lww.com/indianjpsychiatry/Fulltext/2019/61004/Mental_Healthcare_Act_2
017 A spirationto_action.9.aspx

3.https://pubmed.ncbi.nlm.nih.gov/30683633/

4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5932926/

5. https: //j ournals.lww.com/indianjpsychiatry/Fulltext/2019/61004/Liabilitiesandpenalties_

under_Mental_Healthcare.19.aspx

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