The Mental Healthcare Act 2017
(No. 10 of 2017)
(Made easy summary for users, caregivers and other stakeholders)
The Act, which received President of India’s Assent on the 7th April 2017, has been enacted to provide mental healthcare and services to persons with mental illness and to protect, promote and fulfill their rights related to mental healthcare and services and matters connected therewith or incidental thereto. Therefore, the provision of guardianship that existed in the Mental Health Act 1987, that stands repealed (Section 126.1), does not find a place in this Act. This provision, now, has been included in the Rights of Persons with Disability Act 2016.
A summarized version of more relevant provisions of the Act has been compiled and classified below:
Classification of a person as mentally ill
A person can be classified as person with mental illness only for the purposes directly relating to the treatment of the mental illness or in other matters covered under the Act or any other law. (Section 3.2)
Capacity to make mental healthcare and treatment decisions
A person with mental illness shall be deemed to have capacity to make decisions regarding his mental healthcare or treatment provided he understands the information relevant to take a decision on the treatment or personal assistance, consequence of a decision or lack of decision on the treatment or admission and can communicate his decision. (Section 4.1)
Obligations of the State
- To provide acute mental health care services, outpatient and inpatient (Section 18.4.a)
- To provide Half-Way Homes, Sheltered Accommodation, Supported Accommodation (Section 18.4.b)
- To provide services which facilitate Home Based Rehabilitation (Section 18.4.c)
- To provide Community Based Rehabilitation Establishments and Services (Section 18.4.d)
- To provide Integrated Mental Health Services as part of General Health Care Services (18.5.a)
- To provide treatment to persons with mental illness which enables their living in the community and with their families (Section 18.5.b)
- To bear/reimburse the cost of treatment in a non-government health establishment if the state run mental health services are not available within a district. (Section 18.5.f)
Rights of Persons with Mental illness
Right to make an Advance Directive
A person shall have the right to make an advance directive (which is not violative of any law of the land) stating how to be treated and how not to be treated for the illness during a mental health situation. (Sections 5 to 13)
Right to appoint a Nominated Representative
A person shall have the right to appoint a nominated representative to take on his/her behalf all health related decisions (Sections 14 to 17)
Right to access mental health care
A person shall have the right to access to mental health care, treatment and services run or funded by the Government which are affordable, of good quality, in sufficient quantity, available nearby and without any discrimination (Section 18.1 &2)
Right to free services
A person with mental illness (PMI) living below poverty line, a destitute or a homeless shall get free treatment at state run or funded health establishments. (Section 18.7)
Right to get quality services
The mental health services made available to PMI by the state shall be of the same quality as of general health services. (Section 18.8)
Right to get free medicines
All medicines on the essential drug list shall be made available to PMIs free of cost at all times at the establishments run or funded by the government.
Right to community living
A PMI shall have the right to live in community and be part of and not segregated from society (Section 19.1)
Right to protection from cruel, inhuman and degrading treatment
Every PMI shall be protected from cruel, inhuman or degrading treatment in any mental health establishment (MHE). (Section 20.2)
Right to live in an environment which is safe and hygienic and has other basic amenities
Every PMI admitted in an MHE shall have a right to safe and hygienic living environment, proper sanitation and facilities for leisure, recreation, education, religious practices and privacy
Right to clothing
Every PMI living in a MHE shall have a right to proper and dignified clothing so as to prevent exposure (Section 20.2.e)
Right to refuse work and get paid for the work done
No PMI shall be forced to work in a MHE and those who agree to work shall be paid appropriate remuneration for the work done. (Section 20.2.f)
Right to protection
Protection from all forms of physical, verbal, emotional and sexual abuse (Section 20 k)
Right to legal aid
A PMI shall be entitled to receive free legal services to exercise his/her rights available under the Act. (27.1)
Prohibited Procedures/ Practices and Restrictions
No tonsuring
No PMI in a MHE shall be subjected to compulsory tonsuring. (20.2.i)
No compulsion to wear uniforms
A PMI shall not be forced to wear uniform provided by the MHE. (Section 20.2.j)
No discrimination.
There shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability. (21.1.a)
No Electroconvulsive Therapy (ECT) without anesthesia
ECT shall not be performed without the use of muscle relaxants and anesthesia. (Section 95.1.a)
Restriction on Electroconvulsive Therapy (ECT) for minors
As a rule, ECT shall not be performed on minors. In exceptional cases it can be done after obtaining an informed consent of the guardian and with prior permission 0f the Board. (Section 95.1.b and 95.2.)
No sterilization
Sterilization of men or women, intended as a treatment for mental illness, shall not be done.
No mechanical restrains
There shall be no chaining a person with mental illness, in any manner or form. (Section 95.1.d)
Restriction on Psychosurgery
Psychosurgery shall not be performed as a treatment for mental illness without obtaining the informed consent of the patient and approval from the Board, (Section 96.1)
Restriction on physical restraints
Physical restrains shall be used sparingly, only when absolutely needed, and are deemed as the least restrictive method. (Section 97.1)
No solitary confinement
Seclusion and solitary confinement is totally banned. (Section 97.1)
Miscellaneous Provisions
A small child to stay with inpatient mother
A woman receiving institutional care, treatment or rehabilitation shall ordinarily not be separated from her child if the child is below the age of three. (Section 21.2)
Insurance cover for mental illness
Emergency Treatment
Any Registered Medical Practitioner can initiate emergency treatment to any person with mental illness if there is threat to self, others, objects or property. (Section 94.1)
Protection to homeless persons with mental illness
Officer I/C of a police station shall take under protection any person found wandering at large within the limits of the police station, if he/she appears to be with mental illness and is incapable of taking care of himself/herself. (Section 100.1.a)
The person taken under protection shall be taken within 24 hrs.to the nearest public health establishment for assessment of the person’s health care needs. (Section 100.3)
Attempt to commit suicide not an offence
A person who attempts to commit suicide will be presumed to be “suffering from severe stress’’ and shall not be and shall not be subjected to any investigation or prosecution. (Section 115.1)
Mental Health Authorities
The Central and the State Mental Health Authorities shall be the regulatory agencies.
The Central Mental Health Authority (CMHA) shall advise the Central Government on matters relating to mental health care and services. Its functions, inter alia, will include registering and supervising all mental health establishments under the control of the Central Government, maintaining a register of all mental health establishments in the country and maintaining a national register of clinical psychologists, psychiatric nurses and psychiatric social workers and discharge such other related functions as the Central Government may decide. (Section 43.1)
The State Mental Health Authority (SMHA) shall register all mental health establishments in the State (except those under the control of the Central Government) and shall maintain and publish a register of such establishments. Its other important functions include developing quality and service provision norms for mental health establishments in the State, supervise all mental health establishments in the State and register clinical psychologists, mental health nurses, and psychiatric social workers in the State and publish their lists and discharge such other related functions as the State Government may decide. (Section 55.1)
Mental Health Review Boards
The SMHA shall constitute Mental Health Review Boards (MHRB) for a district or a group of districts in the State. (Section 73)
MHRBs shall provide an independent oversight to the functioning of mental health facilities and protect the rights of persons with mental illness in such facilities, thus meeting the need for an independent review mechanism as required under the Convention on the Rights of Persons with Disabilities (CRPD).
The functions of the Board shall include to register advance directive, appoint a nominated representative, receive and dispose of complaints received against mental health establishments, enquire and take action against mental health establishments where violations of human rights of persons with mental illness are reported. (Section 82.1)
Registration of Mental Health Establishments (MHE)
No person or organization shall establish or run a mental health establishment (where persons with mental illness are admitted and reside at or kept in for care, convalescence and rehabilitation) treatment) unless it has been registered with the concerned authority. (Sections2.p & 65.1)
Independent Admission
Any person who considers himself to have a mental illness and desires to be admitted to any MHE for treatment may request the concerned authority in the MHE for admission as an independent patient. (Section 86.1)
Any person admitted as independent patient shall be discharged immediately on request made by such patient. A mental health professional, however, may prevent discharge for a maximum period of 24 hrs to make an assessment necessary for readmission and continuation of treatment under the category Supported Admission with High Support Needs. Depending upon the assessment, the patient would either be discharged or readmitted as a supported patient before the expiry of 24 hour period. (Section 88)
Supported Admission
A person with mental illness, with high support needs can be admitted in a mental health establishment, for a maximum period of 30 days, on the basis of an application made by the nominated representative of the person provided a psychiatrist and a mental health professional/medical practioner have independently examined the person during the last 7 days and both have independently concluded that the person has a mental illness of such severity that the person has or can cause harm to himself or to others or is unable to take care of himself which places him under risk/harm. (Section 89)
On the expiry of 30 days, the patient may continue to stay in the mental health establishment after a fresh independent assessment by two psychiatrists and approval by the Board for a limited period of 90 days in the first instance. The 90 day period can be extended by a period of 120 days at the first instance and thereafter by a period of 180 days each time following the procedure described above.
If the assessment is negative, the patient may still continue to stay at the mental health establishment as an independent patient after meeting the required conditions for independent admissions. (Section 90)
Admission under a Magisterial Order
When a person, who may have a mental illness, is brought before a magistrate, the magistrate may convey the person to a public mental health establishment for assessment and treatment. Alternatively the magistrate may authorize the admission of the person in a mental health establishment for a period not exceeding 10 days to enable the mental health establishment to carry out an assessment of the person and plan for necessary treatment.
On completion of the assessment, the mental health establishment shall submit a report to the concerned magistrate and the person shall be dealt with as per the provisions of the Act.
- Amrit Bakhshy