A LEGISLATIVE COMMENTARY ON

MENTAL HEALTHCARE ACT, 2017 AND ITS DRAWBACKS

SUBMITTED BY: DIVYAM WADHWA

PRN: 18010126244

DIVISION: C; 2ND YEAR; BBA LLB (HONS.)

SUBJECT: LAW AND PSYCHOLOGY (2ND INTERNAL ASSESSMENT)

SUBMITTED TO:

PROF. KAMAXI SAMBARI

___________________
 LAW AND PSYCHOLOGY

INTRODUCTION

On April 7 2017, the President gave his vote to the Mental Healthcare Bill and with that the
Mental Health Care Act 2017 came to existence. This act provides for the persons who are
suffering with mental illness with healthcare and services to protect their rights. This act
came to existence in order to harmonize and put into alignment the local Mental Healthcare
Act 1987 with the Convention on Rights of Persons with Disabilities and its Protocol which
was adopted by the UN on December 13th, 2006 and came into force on May 3rd, 2008.

The definition of mental illness has been clearly defined in the act as "a substantial disorder
of thinking, mood and perception, orientation, or memory that grossly impairs judgment,
behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental
conditions associated with the abuse of alcohol and drugs. But it doesn't regard mental
retardation, a condition of arrested or incomplete development of mind of a person, specially
characterized by sub normality of intelligence, as mental illness" 1

ANALYSIS OF SALIENT FEATURES AND THE RESPECTIVE PROVISIONS

1) PROHIBITED PROCEDURES

Few procedures which seems barbarian and clearly against human rights are prohibited
exclusively. For example, Electro-convulsive therapy, Sterilization of men or women,
chaining etc2. These procedures make mental healthcare seem to be an entirely gruesome
experience but these patients need to be aware that these procedures are forbidden and that
they need not be scared and come forth with the treatment in a positive attitude.

2) ROLE OF CENTRAL MENTAL HEALTH AUTHORITY

It will enlist and register all the mental healthcare institutions under the control of the Central
Government, and will fund and direct quality services that need to be maintained for different
types of mental institutions and list of all the medical professionals which are to be contacted
in case of emergency .

1
Section 2(s)
2
Section 95 (1)

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3) DECRIMINALISATION OF ATTEMPT TO SUICIDE

As per section 115(1) of the act, a person who attempts to commit suicide shall be presumed,
to have severe stress and shall not be tried and punished under the said code.

Thus, the formation of the act has allowed the sensitive care that has to be taken to such
victims of suicide who are mentally stressed and unaware about their well-being, this act has
allowed now to take special care to such cases wherein the victim has attempted suicide due
to stress or mental illness and has provided provisions through which they cater to the needs
of mentally unhealthy or unfit personnel.

4) REGULATION OF INFORMAL ADMISSIONS IS DISCRIMINATION AGAINST

The act upholds the idea that all citizens, including those with mental illness, have a right to
equality and non-discrimination. Section 21 (1) states that “every person with mental illness
shall be treated as equal to persons with physical illness in the provision of all healthcare.”
Contrary to these declared principles of parity with physical illness, the act has brought all
voluntary admissions of adult persons with mental illness under its purview

HOW DOES MENTAL HEALTHCARE ACT 2017 VIOLATES INDIA’S

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was
adopted by the General Assembly of the United Nations on 13 th December, 2006. The
purpose of the Convention, as stated in Article 1, is “to promote, protect and ensure the full
enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and
to promote respect for their dignity.” Article 1 defines “persons with disabilities” to “include
those who have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in society on
an equal basis with others.”3 The UNCRPD does not make any distinction between
disabilities.

3
Convention on the Rights of Persons with Disabilities: Resolution/Adopted by the General Assembly, 24
January 2007, Article 1, A/RES/61/106

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 Distinction of Disabilities: In India, Comprehensive law on disabilities covering

 Colonial Relics Continued: Mental Healthcare Act, 2017 replaces the Mental Health
Act, 1987. The latter, in turn replaced the Indian Lunatic Asylums Act, 1858 and the
Indian Lunacy Act, 1912, both colonial legislations that focused on detaining disabled
people in custody.4 While replacing these legislations, the 1987 Act carried on colonial
continuities of forceful detention through „involuntary commitment‟.

The contention is that Mental Healthcare Act, 2017 though a deviation from its
predecessors continues with some of the colonial relics. This is evident from the
provisions relating to the admission of persons with high support needs, which could
result in involuntary confinement. This is provided in Section 89 of
the Mental Healthcare Act, 2017. It relates to admission and treatment of persons
with mental illness, with high support needs, in mental health establishment for up to
thirty days, which may further be extended up to a period of 90 days as prescribed in
Section 90. Admission under Sections 89 and 90 may be made by way of an application
by a nominated person. Thus, the decision relating to admission is delegated to a
nominated person, which amounts to substituted decision making.

 Best Interest over Will and Preference: The Act provides for the appointment of a
nominated person under Section 14. The duties a nominated representative is mentioned
in Section 17 which states that, “while fulfilling his duties under this Act, the nominated
representative shall consider the best interest of the person with mental illness.”5As
mentioned earlier, the GC-I requires a shift from „best interest‟ to „will and preference‟.
Therefore, the Act's continued reliance on the „best interest‟ as opposed to the „will and
preference‟ is in contravention of the UNCRPD and the GC-I.

4
Mental Health Act, 1987, No. 14 of 1987, Part II and Part III (1987)
5
Mental Healthcare Act, 2017, No. 10 of 2017, § 17

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 No Importance to Decision of Disabled Person: Chapter XI of the Act provides for the
constitution of a Mental Health Review Board comprising the district magistrate, district
collector and persons with mental illness. This board is bestowed with wide ranging
powers including the power to remove a nominated person and appoint another person.
Allowing the possibility for the board to interfere with the nomination of a person,
amounts to the board substituting the decision of the disabled person. Further, in the
absence of a nominated person, a wide range of persons are deemed to be „nominated
person‟ including officers from the department of social welfare. 6 Deeming the
nomination of a person, not explicitly nominated by a disabled person, amounts to
substitution. This is a clear violation of India's commitments under the UNCRPD.

 Wide Powers in the Hand of Mental Health Review Board: The other support
mechanism is the „advance directive‟ provided for in chapter III of the Act. The Act states
that a person who is not a minor can make an advance directive in which she can mention
the way she wishes to be cared for and treated for through a mental illness, and also the
way not to be treated and cared. The advance directive is also subject to review by the
board and the board may alter, modify or even cancel the advance directive. As seen in
the case of „nominated persons‟, such wide powers in the hands of a board constituted of
members disconnected with the person is contrary to the spirit of UNCRPD.

CONCLUSION

The UNCRPD mandates universal legal capacity to all. Towards this end, the UNCRPD and
the GC-I clarifies the need to shift from substituted capacity to supported capacity. The two
key support mechanisms provided in the mental healthcare act are „advance directives‟ and
„nominated person.‟ As demonstrated above, both these mechanisms fall short of compliance
under the UNCRPD.

However, it is worthwhile to note that the Mental Healthcare Act, 2017 for the first time has
mandatory rights affirming provisions for persons with psycho-social disability. Chapter V on
„Rights of Persons with Mental Illness‟ guarantees the right to access mental healthcare, the
right to community living, the right to protection from cruel and inhuman and degrading

6
Mental Health Act, 1987, No. 14 of 1987, §17

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treatment, the right to equality and non-discrimination, and the right to information and
confidentiality. These provisions are compliant with the UNCRPD.

SUGGESTIONS AND RECOMMENDATIONS

However, it is pertinent to note that because of absence of the right to legal capacity in
the Act, which has been guaranteed under Article 12 of the UNCRPD, the realization of these
rights will also be jeopardized. Therefore, the Mental Healthcare Act, 2017 itself falls short
of compliance under the UNCRPD. Further, the continuing existences of laws that deny legal
capacity to disabled persons also add to our non-compliance. A legislation that truly imbibes
the letter and spirit of the UNCRPD and revokes laws that deny legal capacity is the need of
the hour. Until then, the rights assured under the Mental Healthcare Act, 2017 would remain
illusory.

Thus, the translation of international norms from the UNCRPD to the municipal law is
incomplete. The global analysis of reform trends in legal capacity show that many countries
are at varying degrees of compliance with universal legal capacity.300 The resistance in
embracing universal legal capacity in municipal law will have to be overcome in ways similar
to what was done at the international level, i.e. through advocacy, negotiations and putting
the voices of disabled persons at the forefront.

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