The Mental Health Care Bill : Provisions and Analysis
Loksabha Passed the mental health care bill 2016 in March. The bill constitutes of many signficant changes and improvements in the field of mental illness in India. Here, we have described and analyzed the whole concept of the bill.
The parliament passed the Mental Healthcare Bill, 2016, which aims to provide for mental health care and services for persons with mental illness. This bill also ensures that these persons have the right to live a life with dignity by not being harassed or discriminated against. This bill decriminalizes suicide.
This bill was cleared by Rajya Sabha in August last year. In March, the Mental Healthcare Bill was passed by Lok Sabha too.
The Population of the mentally ill people in India
Currently, there are no official data about the population of the mentally ill people in India.
In India, it was estimated that 6-7% of the population suffered from mental disorders in 2005, and approximately 1-2% suffered from severe mental disorders such as bipolar disorder and schizophrenia.
Nearly 5% of the population suffered from common mental disorders such as depression and anxiety. However, real numbers could be higher, as mental illness often goes underreported due to the associated stigma. The World Health Organization has recently estimated that 1 in 4 persons will be affected by some form of mental illness once in their lifetime.
Provisions in the Bill
1. Definition of Mental Illness
The Bill defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs ability to meet the ordinary demands of life, judgment, behavior, capacity to recognize reality, or mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of incomplete or arrested development of mind of a person, specially characterized by sub-normality of intelligence.
There should be national and international medical standards for identifying the Mental illness. Earlier, Mental illness was defined as any mental disorder and sometimes as mental retardation.
2. Rights of persons with mental illness
The Bill makes sure that every person shall have a right to access mental health care and treatment from mental health services run by the government. The Bill also has the provision which assures free treatment for mentally ill persons if they are homeless or belong to Below Poverty Line, even if they do not possess a BPL card.
The bill states that every person with mental illness shall have a right to live with dignity. The bill strongly advocates that there shall be no discrimination against mentally ill people on any basis including gender, sex, religion, culture, sexual orientation, caste, social, class, disability and political beliefs. This right also includes good quality, affordable and easy access to services such as minimum mental health services in every district.
The bill provides rights of confidentiality in respect of mental health, treatment, mental health care, and physical health care to mentally ill people.
The Bill prohibits the release of the photograph or any other information related to a mentally ill person in the media without the consent of the person.
The Bill ensures the right to specify how a mentally ill person would like to be treated for mental illness in the event of a mental health situation.
The bill also gives right of choosing the person responsible for taking decisions with regard to the treatment, his admission into a hospital, etc.
Persons with mental illness also have the right to protection from inhuman and degrading treatment.
3. Advance Directive
The Mental Health Care bill advocates that a person with mental illness shall have the right to make an advance directive that states how he/she wants to be treated for the illness and who his/her nominated representative shall be.
The advance directive is required to be certified by a medical practitioner or registered with the Mental Health Board.
The bill gives right to review/alter/cancel the advance directive if a mental health professional/ /care-giver/ relative does not wish to follow the directive while treating the person. In such case,
4. Mental Health Authority
The Bill gives power to the government to set-up Central Mental Health Authority at national-level and State Mental Health Authority in every State.
Every mental health practitioners and mental health institute including mental health nurses, clinical psychologists, and psychiatric social workers will be required to be registered with this Authority.
These Authority bodies will have following responsibilities:
(i) These bodies will supervise, register, and maintain a register of all mental health establishments.
(ii) These bodies will develop service and quality provision norms for such establishments.
(iii) These bodies will maintain a register of mental health professionals
(iv)These bodies will train law enforcement officials and mental health professionals on the provisions of the Act
(v) These bodies will get complaints and information about deficiencies in the provision of services. (vi) These bodies will be responsible to advice the government on matters relating to mental health.
5. Mental Health treatment
The Bill also specifies the process and procedure to be followed for admission, treatment, and discharge of mentally ill individuals.
A medical practitioner or a mental health professional shall not be held liable for any unforeseen consequences of following a valid advance directive.
The bill clarifies that now a person with mental illness shall not be subjected to electro-convulsive therapy. The bill says muscle relaxants and anesthesia would be mandatory for doing so. Also, minors will not be subjected to electro-convulsive therapy.
The bill also states that sterilization will not be performed on such persons.
The bill adds a new provision that the mentally ill people shall not be chained in any manner or form whatsoever under any circumstances.
A person with mental illness shall not be subjected to solitary confinement or seclusion. Physical restraint on mentally ill people may only be used, if necessary.
6. Suicide is De-criminalized
A landmark provision in the bill is that a person who attempts suicide shall be presumed to be suffering from mental illness at that time and will be exempted from the punishment under the Indian Penal Code.
Before the bill, attempting suicide was punishable with imprisonment for up to a year and/or a fine. This Bill decriminalizes suicide by assuming that whoever attempts suicide will be presumed to be under severe stress, and shall not be punished for it.
The Bill mandates that every insurance company shall provide medical insurance for mentally ill persons on the same basis as is available for physical illnesses.
Issues with the Bill
The Bill does not address issues pertaining to the guardianship of mentally ill persons.
Before this, the 1987 Act had detailed provisions pertaining to appointment and removal of a guardian, and his powers and duties.
Apart from it, the provisions related to guardianship of mentally ill persons are in the Rights of Persons with Disabilities (RPD) Bill, 2014, which has been pending in Parliament.
When this bill becomes a law then there will be a legal vacuum with regard to provisions of guardianship of mentally ill persons.
Another issue with the Bill is that it does not prescribe specific penalties for non-compliance with several of its provisions.
A general punishment for non-compliance is imprisonment up to 6 months or a penalty of up to Rs 10,000, or both. Repeat offenders can face up to two years in jail or a fine of Rs 50,000 to Rs 5 lakh or both. The absence of specific penal provisions might create confusions with regard to the implementation of the Bill.
Challenges in implementation
The Bill states that it is mandatory for the central and state governments to ensure access to mental health services in every district. These services include hospitals, community-based rehabilitation establishments and outpatient and inpatient services.
But, the financial memorandum of the Bill neither it provides details of the sharing of expenses between the central and state governments nor estimates the expenditure required to fulfill the obligations under the Bill.
Without the allocation of required funds, the implementation of the Bill would be affected badly. The Parliamentary Standing Committee which was examining the Bill had noted that public health is a state subject. Since many states in face financial constraints, the central government might have to take responsibility to ensure funds for the implementation of the mental health care bill.
The Mental Health Care Bill, 2016, is a watershed legislation that formulates clear responsibilities for the state and has provisions that empower individuals and families of the country. More importantly, it can expand access to treatment, which is abysmally poor today.
The Centre Government has adopted a medicalised approach to attempted suicide, treating it as the outcome of severe stress. The bill rightly outlaws the application of the Indian Penal Code section that criminalizes suicide.
A responsibility is also put on the authorities to rehabilitate and care for such individuals.
This means that official policy must put efforts to strengthen the social determinants of health, especially universal welfare support systems against catastrophic events in people’s lives. There is a huge urgency that reliable and free professionals for the purpose of counseling must be widely offered.
Ultimately, the success of this more progressive law will depend on how the community keeps up the pressure on the designated Central and State authorities to implement it in letter and spirit.