This article was writen by Vidhatri Bharti, a student of Army Institute of Law.
According to the WHO estimates 1 in 4 persons will be affected by some form of mental illness once in their lifetime and as per National Institute Of Mental Health & Neurosciences 13.7% of India’s general population is projected to be suffering from a variety of mental illnesses and about 10.6% require immediate intervention.As per the national Mental Health Survey of October 2016 forty million Indians experience depression each year.
The Mental Health Act of 1987 was enacted for making provisions for the care and protection of the mentally ill.
HISTORY AND BACKGROUND:
In 2007 the Indian government had ratified U.N. Convention on the rights of persons with disabilities and the convention required the law of our country to align with the convention. Thus, this new bill was introduced as the previous act did not meet the requirements and did not adequately protect the rights of the mentally ill.
The Parliament on 27th March 2017 passed the ‘Mental Healthcare Bill’ in the Lok Sabha that decriminalises suicide attempt by mentally ill people and provides services for people with mental illness. This bill aims to protect and restore property right of mentally ill persons and seeks to give patients access to affordable treatment and insurance. The bill replaces the Mental Health Act, 1987 and according to the Union Health Minister JP Nadda it is a ‘Rights-based Bill’.
MAIN PROVISIONS OF THE ACT:
- An important factor in the Bill, which has also been in the news for a while, is that it separates attempt to suicide from the Indian Penal Code. In effect, IPC provisions cannot be invoked in case of an attempt to suicide. It also prohibits electro-convulsive therapy. Electro-convulsive therapy is allowed only with the use of muscle relaxants and anaesthesia. The therapy is prohibited for minors.
Some of the other major provisions of the act are:
- Under the statute every person has the right to access mental health care and treatment from services run or funded by the government. This right to access mental health care not only includes affordable and good quality but also easy access to services. Persons with mental illness also have the right to equality of treatment, protection from inhuman and degrading treatment, free legal services. They can access their medical records, and also complain regarding deficiencies in provision of mental health care.
- A mentally-ill person has the right to make an advance directive that would state how he wants to be treated for the illness during a mental health situation and who his nominated representative shall be. This advance directive has to be certified by a medical practitioner or has to be registered with the Mental Health Board. In case a mental health professional/ relative/care-giver does not wish to follow the directive while treating the person, he can make an application to the Mental Health Board to review/alter/cancel the advance directive thereby keeping the interest of both the parties in mind.
- Both central and state level administrative bodies are required under the bill to deliver the following-(a)register, supervise and maintain a register of all mental health establishments,(b)develop quality and service provision norms for such establishments,(c)maintain a register of mental health professionals, (d) train law enforcement officials and mental health professionals on the provisions of the Act, (e) receive complaints about deficiencies in provision of services, and (f) advise the government on matters relating to mental health.
- Under the statute every mental health establishment has to be registered with the relevant Central or State Mental Health Authority and has to fulfil various criteria’s described under the bill for a successful registration. The Bill also specifies the process and procedure to be followed for admission, treatment and discharge of mentally ill individuals. A decision to be admitted in a mental health establishment as far as possible has to be made by the person with the mental illness except when he is unable to make an independent decision or conditions exist to make a supported admission unavoidable.
- It mandates the establishment of The Mental Health Review Commission which will be a quasi-judicial body that will periodically review the use of and the procedure for making advance directives and advise the government on protection of the rights of mentally ill persons. The Commission shall with the concurrence of the state governments, constitute Mental Health Review Boards in the districts of a state. 
- The Bill mandates the central and state governments to ensure access to mental health services in every district. These will include outpatient and inpatient services, hospitals, and community-based rehabilitation establishments, thereby involving huge financial expenditure. However, the financial memorandum of the Bill does not estimate the expenditure required to meet the obligations under the Bill nor does it provide details of the sharing of expenses between the central and state governments.
- Without the allocation of adequate funds, the implementation of the Bill could be affected. The Standing Committee examining the Bill had noted that public health is a state subject. Since several states face financial constraints, the central government might have to step in to ensure funds for the implementation of the law.
- The provision of decriminalises suicide also can be used or rather misused by hampering with the setup guaranteed under the bill and moulding it to ones’ own benefit.
Though the bill marks a paradigm shift in the care and protection of the mentally ill the success of this progressive law depends on how the community keeps the pressure on the designated central and state authorities to implement it in spirit.
There are also concerns that the bill is too ambitious and unrealistic and given the lack of infrastructure may not be able to deliver what it proposes to do. Moreover looking at the shortage of psychiatrist and budget allocated to mental health which has been discussed above the possibility of effective implementation of this act is grim.
However, the decriminalisation of suicide remains a watershed provision although it requires rehabilitation from the side of authorities and the initiate on the part of the government shuld be appreciated.