The Mental Healthcare Act & The Mental Healthcare Bill

What are the Mental Health Act and Mental Health Care Bill?
The Mental Health Act is meant to regulate institutions for mental health care and provide for procedures for admissions of persons with mental illness to these institutions, and provide for procedures relating to guardianship and disposal of their assets when required. The Mental Health Care Bill is meant to regulate the same issues, however, more in line with the human rights paradigm which India is obligated to implement post the ratification of The Convention on Rights of Persons with Disabilities.
Under the Mental Health Act, the guardian of a ‘mentally ill’ (defined as a person who is in need of treatment for any mental disorder other than mental retardation) ward could apply to the medical officer in charge of a psychiatric hospital for their admission as a ‘voluntary patient’. The minor shall be admitted if deemed necessary by the Medical Officer upon inquiry which must take place within a period of 24 hours. If the minor gains majority during their stay and if they do not make an application for extension of voluntary stay upon gaining majority, the minor shall be discharged within a period of one month.
Alternatively, the guardian can seek discharge of the voluntarily admitted patient. There were no other specific rights given to minors who had psycho-social disabilities that were brought under the purview of the Act.

What changes are being proposed under the Mental Health Care Bill?
Under the Mental Health Care Bill, ‘mental illness’ has a wider definition i.e. a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.
Minors are not entitled to make advance directives. However, a legal guardian may make one on their behalf. The legal guardian shall also be deemed to be the ‘nominated representative’ unless the State Mental Health Review Board decides otherwise, if it is of the opinion that the legal guardian is not working in the best interests of the child.

How can a child with disability be admitted into mental health establishments?
Admissions of minors to mental health establishments can be done under the following conditions:
An application must be made for admission by the nominated representative of the minor. The decision on the application shall be made by two professionals (either two psychiatrists, or one psychiatrist and one mental health professional or one psychiatrist and one medical practitioner) on the basis of their personal examination of the minor within a period of a maximum seven days preceding the application and their independent conclusion that:

  1. the minor has a mental illness of a severity requiring admission to a mental health establishment
  2. admission shall be in the best interests of the minor, with regard to their health, well-being or safety, and also, where ascertainable, taking into their own wishes and the reasons for reaching this decision
  3. the mental healthcare needs of the minor cannot be fulfilled unless they are admitted, and
  4. all community based alternatives to admission have been shown to have failed or are demonstrably unsuitable for the needs of the minor in question

What rules need to be followed by these mental health institutions?
Minors shall be kept apart from adults in an environment that takes into account their developmental and other age-appropriate needs

  1. The nominated representative or an attendant appointed by the nominated representative shall stay with the minor within the institution at all times (in case the representative is male, a female attendant must be appointed)
  2. A system of regular monitoring by the State Mental Health Review Board is mandated in the case of minors
  3. Treatment shall be given with the informed consent of the nominated representative
  4. If the minor attains majority during their stay in the mental health institution, they will be treated as a voluntary patient or their stay may be converted into a ‘supported’ admission by their nominated representative

The Bill prohibits the following:

  1. Electro-convulsive Therapy in any form being performed on a minor unless with the prior informed consent of the guardian and the concerned State Mental Health Review Board
  2. Sterilization being performed as a form of treatment for mental illness
  3. Chaining in any manner whatsoever
  4. Psychosurgery without the informed consent of the patient (no exception for nominated representative)
  5. Seclusion and solitary confinement
  6. Restraints except when
    1. it is the only means available to prevent imminent and immediate harm to the person concerned or to others
    2. it is authorised by the psychiatrist in charge of the person’s treatment at the mental health establishment

Which mental health establishments are regulated under the law?
All mental health establishments must seek a license under this law (both the Mental Health Act as well as the proposed Bill) to operate. The definition of mental health establishment under the Bill is wide and includes any health establishment (including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy establishment) by whatever name called (e.g. clinic, centre, home, spa etc.) either wholly or partly, meant for the care of persons with mental illness (which means even if the establishment includes services for persons with mental disorders along with persons who do not have diagnosed mental disorders), regardless of ownership (public/private/charity) where persons with mental illness are admitted and reside at, or kept in, for care, treatment, convalescence and rehabilitation, either temporarily or otherwise.
It also includes any general hospital or general nursing home regardless of ownership, but does not include a residential place where a person with mental illness resides with his/her relatives or friends. Operating without a license can incur heavy fines upwards of 50,000 INR.

In case I am being deprived of my rights at a mental health care institution, where can I seek redressal?
As of now, the only redressal that can be sought is from the High Court for deprivation of Fundamental Rights under the Constitution of India, as patient rights are not recognized under the law. The Mental Health Care Bill mandates the establishment of Mental Health Boards to look into these concerns.