Paradigm Shift: Mental Healthcare Act, 2017

The Mental Healthcare Act of 2017 was implemented on July 7 this year. This landmark law takes a paradigm shift from its predecessor, as it moves from discriminating and criminalising the mentally ill, to acknowledging and providing them their rights during the delivery of treatment and care. 

For the first time, this law provides every Indian citizen the “right to access mental healthcare.” Additionally, it recognises new patient’s rights and emphasises medical attention for those attempting to take their lives.

This reflects that the law takes a patient-centric, rights-based approach and recognises the autonomy of Indian citizens with mental illness, like never before. This is in accordance with the United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD). The law aims to secure the fundamental right and liberty of persons living with mental illness.

Key highlights

The repealed Mental Health Act of 1987, was largely criticised. It labelled persons with mental health concerns as criminals, which induced stigma towards mental illnesses.

One of the highlights of the latest Act is the clause which decriminalised an attempt to suicide (Section 309 of the Indian Penal Code). This move was based on the presumption that the person would be under severe mental distress. The idea reflects the overall difference in approach from the previous law. 

Since, this aspect of the Act has been widely covered, we will discuss the patient-centric approach and the provisions related to the same. 

Rights-based narrative:

Another major highlight, is the aim to withhold the basic human rights of an individual who is going through mental health concerns. This legislation provides every person with mental illness:

  • Access to affordable care
  • Equality in treatment
  • Protection from harassment
  • Free legal services
  • Agency to make treatment-related decisions
  • Access medical records
  • Power to report in case of a deficiency in treatment
  • Ability to nominate a representative for caretaking

The law requires the Primary Health Care Centres (PHCs) to become more proactive in providing long-term welfare benefits rather than temporary caregiving. The law also ensures the right to live in a community. This implies that the government will take steps to provide adequate homes and institutions for rehabilitation. Persons with mental health problems are also given the right to confidentiality in case of their condition and their medical records. 

The law provides two new facilities:

  • The Advance Directive (AD)
  • The Nominated Representative (NR)

The provision of writing an advance directive, provides active participation rights to individuals living with mental illness. It allows a person (not necessarily one with mental illness) to indicate their choice of treatment in case of future illness. This directive must be certified by a medical practitioner who is registered with the Mental Health Board for validity. 

Similarly, the Act allows individuals to nominate any person of their choice to take decisions on their behalf in case of an illness. Although not compulsory, these clauses are an empowering step to increase awareness about mental illnesses. 

This rights-based approach is a path-breaking step for our country. But, many challenges must be resolved for the Act to start benefiting people who live with mental illness. 

Challenges in implementation

Given the lack of infrastructure and appropriate knowledge around mental healthcare in India, the challenge arises at implementation in the grass-roots level. 

“It is important to understand the concept of Advance Directives properly. They are advance statements made by any person (not necessarily one who already has a mental illness), when they are well and have the capacity to make decisions. So there is no reason why the decisions made by someone who has the capacity [to do so] should not be respected. Moreover, in effect, it is consent/refusal of consent given in advance before a person loses capacity to make decisions,” says Dr. Soumitra Pathare. He was closely involved in drafting the Mental Healthcare Act, 2017. He is also a consultant psychiatrist and Director, Centre for Mental Health Law and Policy, Indian Law Society, Pune, India.

Further, India needs to improve its medical infrastructure, to realise the right to access affordable mental healthcare.

Addressing this issue, Dr. Pathare says, “It will spur the development of mental health services. Because this is now a justiciable right. Mental health services are not 'infrastructure' heavy, but human resource heavy. There are provisions in the act for the government to increase the number of mental health professionals in the country.”

It is certain that the meagre allocation and spending on mental healthcare will pose a hurdle for PWMIs to get affordable treatment. However, the recent implementation of mental health insurance brings a significant change in this narrative. 

Moreover, Dr. Pathare says that the Mental Healthcare Act, under Section 18, requires the government to provide adequate funding to ensure fulfilment of the right to access mental health care. 

The ground realities in patient care lack infrastructure and resources in India. So the Act, although robust in its structure, depends majorly on the prospective funding allocated towards mental healthcare. To reflect its benefits during implementation, the guidelines must be understood with clarity. 

“It is not far stretched in terms of implementation - sure there will be problems, but then, all change is difficult,” adds Dr. Pathare. 

A difficult, but necessary change

The new law might sound aspirational, but it enables the spread of awareness around mental healthcare. 

However, for this Act to get its action right, the government and all its stakeholders must recognise their responsibilities. This is specifically towards providing accessible and affordable care, and rehabilitation for people with mental health concerns.

“Everything and everyone involved in the mental health sector will have to become an agent of change as well as be affected by change. It’s going to be an incremental process and change will not happen overnight. But the Act has put in place a framework for change of mental health services in the country,” says Dr. Pathare.

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