Home / Opinion / Mental Healthcare Act: A paradigm shift

The Mental Healthcare Act, 2017, which was passed by the Rajya Sabha in August 2016 and the Lok Sabha in March 2017, is a landmark law for many reasons. For the first time in our country, the Act creates a justiciable right to mental healthcare. This is fascinating because physical healthcare is not yet a statutory right! The right to mental healthcare is the core of the Act and represents the government’s attempt to address the neglect of this aspect of healthcare for decades.

The law also requires the government to make provisions for persons with mental illness to live in the community and not be segregated in large institutions. The government must now make provisions for half-way homes, group homes and other such facilities for rehabilitating persons with mental health problems.

The law takes a rights-based approach to all aspects of mental healthcare. There are times when persons with mental illness are unable to express or communicate their preference for treatment to their treating psychiatrists. Therefore, the new Act makes provision for writing an advance directive which people can make when they are well. Through such advance directives, people can state their preferences for treatment, including how they would like to be treated for mental illness, the treatments they would not like to take, and finally, nominate a person who could take decisions on their behalf in such situations. This kind of provision has been made for the first time in healthcare legislation in India.

The Act provides persons with mental illness protection from cruel, inhuman and degrading treatment, right to information about their illness and treatment, right to confidentiality of their medical condition and right to access their medical records, to list just a few rights. The government is explicitly made responsible for setting up programmes for the promotion of mental health, prevention of mental illness and suicide prevention programmes. Given the huge shortage of trained mental health professionals in the country, the Act requires the government to meet internationally accepted norms for the number of mental health professionals within 10 years of passing this law. It has also effectively decriminalized suicide attempts by ‘reading down’ the power of section 309 of the Indian Penal Code.

This Act has been in the making for seven years, with extensive consultations with all stakeholders. In November 2013, the all-party parliamentary standing committee on health and family welfare approved the Bill introduced in the Rajya Sabha while proposing 23 amendments. The United Progressive Alliance (UPA) government accepted these amendments (barring two); they were introduced by the current government when the Bill was passed in the Rajya Sabha.

There are factual inaccuracies in member of Parliament Rajeev Satav’s article in Mint last week. He says that the National Democratic Alliance (NDA) government introduced the Bill in the Rajya Sabha with 134 amendments and “the modifications led to a complete overhaul of the intent, structure and provisions of the original Bill, and the spirit of the UN convention was missing". This is simply not true. Apart from the 21 amendments arising out of the parliamentary standing committee’s recommendations, the remaining 100-odd amendments are largely procedural (change of words/terminology) which have no impact on the intent, content or provisions of the Act.

He is also wrong when he says that the Bill lapsed due to the dissolution of the Lok Sabha. The Bill was introduced in the Rajya Sabha in August 2013 and stayed alive until it was passed in August 2016. It was only moved to the Lok Sabha in September 2016.

Satav also says that the Act does not have procedures for making advance directives. However, these have been included in the rules and regulations to the Act, as advised by the law ministry. The draft regulations put out for public consultation by the government on 20 September 2017 outline a detailed procedure for writing an advance directive. A form template has also been included in the draft regulations for this purpose. This is more user friendly than what was originally provided in the Bill.

This law had cross-party support and both UPA-II and the current NDA government have helped it along. This was also demonstrated during the Lok Sabha debate, when 29 members of Parliament from different political parties spoke and supported it. It would be a shame if we now introduce partisan party politics into the discourse.

Passing the Mental Healthcare Act, 2017, is the start of a long, arduous implementation process. There are many examples of progressive policies and legislation in India which do not get effectively implemented. We should ensure that this Act does not suffer the same fate. Once again, we need cross-party support for effective implementation so that persons with mental illness and their families benefit fully.

It is a pleasure to see parliamentarians like Satav take a keen interest in mental health. This should be publicly applauded. Now, he and his colleagues from across the political spectrum—in Parliament and in the states—as well as bureaucrats need to join hands with mental health stakeholders in implementing this Act to make the law a lived reality for persons with mental illness in India.

Soumitra Pathare is a consultant psychiatrist and director, Centre for Mental Health Law and Policy, Indian Law Society, Pune. He was involved in drafting the Mental Healthcare Act, 2017, as well as its rules.

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