Mental Healthcare Bill, 2016: Features, Issues and Analysis

The Mental Healthcare Bill, 2016 was recently passed by Rajya Sabha. The Bill would be repealing the existing Mental Health Act, 1987.

Background

• There are around 6-7% of the country’s population suffering from some kind of mental illness, while 1-2% suffer from acute mental diseases.
• Currently, to address mental illness, The mental Health Act, 1987 is in existence. However, it is being criticised for its inadequate provisions to protect the mentally ill persons.
• The Indian government in 2007 had ratified the United Nations Convention on the Rights of Persons with Disabilities, which required the laws of the country to align with the convention. To that effect, the Mental Health Care Bill, 2013, was first introduced in the Rajya Sabha to repeal the existing Mental Health Act, 1987.

Key Features

• The Bill provides, every person has right to access mental health care and treatment from services run or funded by the government.
• Under it, these also have right to equality of treatment, protection from inhuman and degrading treatment, access to their medical records free legal services etc.
• It also has a provision to protect, promote and fulfill the rights of such persons during delivery of mental health care and services.
• The Bill focuses on community based treatment and special provisions for women and health have also been provided.
• In case of person who attempts to commit suicide shall be presumedto be suffering from mental illness at the time of attempting suicide unless proved otherwise.
• Such person shall not be liable to punishment under section 309 (attempt to commit suicide) of Indian Penal Code (IPC).
• It also provides for establishment of Central and State Mental Health Authority. It also establishes Mental Health Review Commission and Board (MHRCB) as a quasi-judicial body.

Important Provisions of the Mental Healthcare Bill, 2016

Mental Healthcare Bill seeks to decriminalise the Attempt to Commit Suicide

Besides decriminalising suicide, the bill seeks to impose duty on the government to rehabilitate such person to ensure that there is no recurrence of attempt to suicide.

Seeks to fulfil India’s international obligation pursuant to the Convention on Rights of Persons with Disabilities and its Optional Protocol

India signed and ratified the Convention on 1^st October 2007. The Bill adopts a more nuanced understanding of “mental illness” than the Act of 1987. The Act of 1987 is narrow in its approach.

Seeks to adopt a rights-based approach, which is a first in the mental health law of India

Chapter V of the Bill operates as a charter of rights for persons with mental illness consolidating and safeguarding the basic human rights of these individuals. The Bill guarantees every person the right to access mental health care and treatment from mental health services run or funded by government. The Bill also recognises the right to community living; right to live with dignity; protection from cruel, inhuman or degrading treatment; treatment equal to persons with physical illness; right to relevant information concerning treatment other rights and recourses; right to confidentiality; right to access their basic medical records; right to personal contacts and communication; right to legal aid; recourse against deficiencies in provision of care, treatment and services.

Provisions for registration of institutions and regulation of the sector

The Bill provides for the creation of Central and State Mental Health Authorities in order to ensure registration and supervision of mental health establishments; to develop quality and service norms for these establishments; to ensure registration of psychologists, mental health nurses, psychiatric social workers; to train law enforcement officials and mental health professionals about implementation of the Bill; and to advise government on mental health related issues. Registration of mental health establishments is made mandatory by providing for stringent penalty for violation.

The Bill allows only restricted use of Electro-convulsive therapy

The Bill would completely prohibit Electro-compulsive therapy (“ECT”) as a measure of emergency treatment. It also prohibits ECT without muscle relaxants and anaesthesia. ECT is completely prohibited for minors except with informed consent of the guardian and prior permission of the concerned Board.

The Bill seeks to tackle stigma attached to mental illness

By addressing mental illness from a holistic perspective and by empowering mentally ill persons, the Bill seeks to remove the stigma attached to mental illness. It is a serious effort to usher in equality for the mentally retard individuals.

Questions & Answers

This bill should be analyzed in the light of the below questions:

• Mental Healthcare Bill will be bypassing Section 309 of IPC?
• Still, the Mental Healthcare bill is a concern for mentally ill patients with respect to property.

Mental Healthcare Bill will be bypassing Section 309 of IPC?

The Section 309 of the IPC makes any attempt to commit suicide a punishable offence for which imprisonment could extend up to a year.

There have been debates since long such as the 42nd report of the Law Commission in 1971 which called for decriminalizing attempt to suicide. Subsequently, the Indian Penal Code (Amendment) Bill, 1978 was passed by the Rajya Sabha omitting Section 309 of IPC. However, the proposed law could not be passed as the Lok Sabha was dissolved before the Bill could be passed.

Again in 1997, The Law Commission altered it position in the 156th report, where it recommended retaining the provision. This was in reaction to the famous Gian Kaur versus State of Punjab case of 1996 which upheld the constitutional validity of Section 309.

Finally, in 2008, the Law Commission, again in its 210th report, called for decriminalizing and humanization of attempt to suicide. It was here that the attempt to suicide was suggested to be regarded as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment.

The final shape to decriminalising suicide would therefore be given by the Mental Healthcare Bill, 2016 if it is passed by the Lok Sabha and it becomes an Act.

The Mental Healthcare bill is a concern for mentally ill patients with respect to property.

The Act of 1987, had provisions for property of the mentally ill patients. However, the Mental Healthcare Bill, 2016 pays no heed to this issue. This is appearing as a serious cause of concern because the mentally ill persons could easily be exploited and their property could be taken away from them, leaving such individuals in a perpetual state of dependency.

Therefore, keeping this issue in mind, where the bill is providing so many rights and immunities to the mentally ill persons, no provision for the property management is a matter of concern.

The Standing Committee on the bill has therefore recommended that the central government implement necessary transitory schemes so that the persons do not fall in the trap of dependency.

Way Forward

The Bill under consideration mandates the central and state governments to ensure access to mental health services in every district. However, what is lacking in the bill is the financial aspect which has made no estimates of the expenditure required to meet the obligations and nor does the bill provide details of the sharing of expenses between the central and state governments.

For the bill to work in actuality, allocation of adequate funds is utmost needed.

Public Health being a state subject and also keeping in mind of the financial constraints faced by the states, it would become important on the part of the central government to step in to ensure funds for successful implementation of the law.