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The Mental Health Care Act (MHCA) received the assent of the President of India on April 7, 2017, and was notified on May 29, 2018. MHCA came with great promise and hope for improving the treatment and care of persons with mental illness (PMI), and making mental health care a right of all individuals in India. At five years of its existence, it is time to review its performance.
With the promulgation of the MHCA 17, India reformed its mental health laws making it fully aligned with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), focusing on the promotion of the rights to community inclusion, dignity, autonomy, empowerment, and recovery for all people with mental illness.
MHCA 17 is “An Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during the delivery of mental healthcare and services and for matters connected therewith or incidental thereto.”
The preamble of the Act has two parts:
Provide for mental health care and services for persons with mental illness; andTo protect, promote, and fulfill the rights of such persons during the delivery of mental health care and services.
Chapter 5 of the Act refers to the “Rights of persons with mental illness.” The Act makes access to mental health care and treatment from mental health services funded or run by the government, a right of every individual. It also makes it obligatory on the government to make sufficient provision to set up a range of services required by PMI (Chapter 5, clause 18[1]). In addition, it states that “every person with mental illness shall be treated as equal to persons with physical illness in the provision of health care…” (Chapter 5, Clause 21[1]; and the government shall integrate mental health services into general healthcare services at all levels of health care including primary, secondary, and tertiary health care (Chapter 5, Clause 5 a) MHCA Act in parenthesis.
It is a promising legislation and a welcome development. The aims and objectives of the Act are laudable and in keeping with the need of the hour. Psychiatrists, mental health professionals, persons with mental illness (PMI) and their families, and society in general welcome the Act.
However, even after five years of its existence, the Act appears to be a non-starter in most parts of India. Constitution of State Mental Health Authorities, Mental Health Review Boards, and framing of Rules and Regulations, as mandated in the Act, have not been done in many states (barring a few exceptions) or are not fully functional. This poses a major hindrance in the delivery of services to PMI.
Definition of mental illness as per the Act is “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….”. This definition includes mostly serious mental illness of a severe degree who may need protection of law, and constitutes only a small proportion (<20%) of all mental illness.
On point no 2 of the objectives, though the intent is laudable, the procedures prescribed to fulfill this objective are far from satisfactory and even counter-productive. This is where the problems lie specially in implementation of the Act. Unfortunately, many provisions are borrowed in toto from laws in UK and Canada, which are inapplicable to the socio-cultural system prevailing in India.
There is a concept of Nominated Representative (NR) who has the authority and right to take treatment decisions for the PMI in case the patient is unable to do so. This concept is alien to Indian Society. NR is applicable in situations where there are no families as caretakers, as is prevalent in western societies, or if the PMI is homeless or abandoned. In India, family members are the caretakers of PMI in majority and absence of family is an exception rather than a rule. Sometimes patients suffering from major mental illness during severe phase, turn against family members, and this negativity disappears as the patient improves with treatment. Thinking that someone other than the close family members would act in the best interest of the PMI is a far-fetched argument. There is also a risk of vested interests getting designated as NR. Thus, denying the first right to family to take decisions about the treatment of PMI alienates the family and creates distrust, distress, and disruption, weakening the social fabric. Families feel helpless and distraught. It is ironical that the family and caregivers are mentioned in discharge planning (Section 98) but not in the admission process (Section 89) in the Act. Assigning all treatment decisions to NR also alienates psychiatrists who act in good faith in favor of the well fare and well-being of patients.
Similarly, the concept of Advance Directive (AD) is not in keeping with the socio-cultural realities of India. Provision of AD requires the PMI to have sufficient knowledge of treatments available for mental illness and make informed decisions that will be beneficial to him/her. In reality, it is only presumptive and most patients in India may not have such level of knowledge. Many times patients with mental illness refuse treatment due to impaired insight and poor judgment temporarily or may be unaware of the consequences of various treatment choices. They have to be explained and advised about various treatment options and its relative benefits. AD made at a stage of illness where patients have impaired insight or loss of personal and social judgment that has a potential to improve with treatment, may not be in their best interest. It is also impossible to establish retrospectively that the AD was made when the patient had the capacity to do so.
In the Act, mental illness is equated with dangerousness and very severe levels of disturbance for the purpose of supported/involuntary admission (Section 89, 1a,
(i) has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself; or
(ii) has recently behaved or is behaving violently toward another person or has caused or is causing another person to fear bodily harm from him; or
(iii) has recently shown or is showing an inability to care for himself to a degree that places the individual at risk of harm to himself”).
Procedures laid down for admission and treatment of PMI with high support needs are highly bureaucratic, impractical, and tardy, leading to delay and denial. Conventionally, advice for hospitalization is the prerogative of the treating doctor in all medical/surgical specialties and patient is asked to give written consent for the same, whereas, in MHCA, it is the patient or the NR who seeks admission by filing a formal application on a specified form to the medical officer in-charge of the MHE. This seems an unnecessary step. The admission should be possible on the recommendation of the psychiatrist with the written consent of the patient or NR as the case may be. Patients and families in need of immediate treatment in such a severe situation feel harassed, and unsupported. The necessity of invoking AD, NR as a prerequisite before any treatment can be instituted even in acute situation, needs to be reviewed and simplified. Treatment should not be allowed to be delayed waiting for completion of these formalities which in reality take at least a few days to weeks.
There is unwelcome judicial and bureaucratic over reach. Judicial officials are tasked with decisions about treatment, admission, and discharge of patients in mental health establishment (MHE), which is illogical and unnecessary. These are clinical (medical) decisions best left to a psychiatrist. This also slows the system down making it inefficient.
Under the Act, only government officials are protected from legal proceedings for actions taken in good faith, excluding the family, care givers, and mental health professionals, whereas family, care givers, and mental health professionals also act in good faith for the care of the PMI and should also be similarly protected.
Police, judiciary, insurance companies, and all others who are involved in the mental health care of PMI are not sensitized or on board to take up the responsibilities and duties as specified in the Act. Nothing has been done to achieve that.
Mental illness is not a monolith. Mental illnesses present with a wide spectrum of conditions and disorders that require highly individualized treatment plans instituted in different settings and a range of services. All patients with mental illnesses and services do not need special regulation and protection under law. There is a small minority of patients who by virtue of its severity or nature, having lost insight or capacity, loss of sound judgment or those who are abandoned, wandering, or homeless, etc., need the highest protection of law.
It is also mandated in the Act that mental health care is to be integrated with general health care at all levels (Section 18, 5 (a)); however, there is no mechanism outlined in the Act to achieve this objective. Definition of mental illness as per the Act completely excludes a large majority patient of common mental disorders and less severe serious mental disorders being treated in outpatient clinics of general hospital psychiatry or psychiatric hospitals and nursing homes, from the ambit of the law, whereas, for inpatient care for all such patients, such facility will require registration as mental health establishment as defined in the Act.
Many patients with mental illness transition from one level of severity to another during the course of their illness and may shift from a state of preserved capacity at one time to losing it temporarily at another. Management of such dynamic clinical states should be possible without the hassle of having to shift patients from one service to another or of bureaucratic procedures. It would be helpful if inpatient care during acute phase of illness, for a short period of time (e.g.,
Most patients of common mental illnesses and those with associated medical comorbidities seek treatment in general healthcare settings. A large proportion (30-80%) of medically ill persons treated in in-inpatient facility of general healthcare settings also suffer from associated psychiatric illnesses (such as depression, anxiety, delirium, dementia, psychosis, and addiction) and are being treated there. Going by the definition of the mental health establishment given in the Act, all general healthcare facilities will qualify to be labeled as mental health establishments and will come under the purview of the Act. This is another fallacy in the Act. The Act fails to acknowledge and provide for co-occurrence of physical and mental illness.
The Act should be in line with the overall philosophy of health care, latest knowledge, best practices, and standard treatment guidelines applicable internationally. Mental health care should be treated at par with physical health care, made freely accessible to all in general healthcare settings, and regulated only in specified circumstances. There are many situations even in general health care (e.g. organ transplant, end-of-life care, medical termination of pregnancy, etc.) that require legal regulation. Ideally, there should be a general healthcare Act covering all specialties of health care including mental illness where ever legal regulation is required. Erstwhile mental hospitals, separate and away from the society, is a legacy of the past. Medical science has advanced and understanding of psychiatric illnesses and its treatments have come a long way since then. This could be one big step toward removing stigma from mental illness.
In its present form, the MHCA is unimplementable in letter and spirit. The experience so far reveals that the various provisions of the Act, purported to protect the rights of PMI during delivery of treatment, are a hindrance in the delivery of treatment, thus depriving many of the necessary and timely treatment. This is a situation of compromising the right to treatment at the cost of protection of rights during treatment. The Act needs to be majorly amended if not repealed.
1. Mental Health Care Act 2017:The Gazette of India Extraordinary Part II, Section I, NO 10, New Delhi, 07 April, 2017 [Google Scholar]
2. National Mental Health Survey of India 2015-16. Ministry of Health and FW Government of India and National Institute of Mental Health and Neurosciences, 2016 [Google Scholar]
3. World Health Organization. Geneva: World Health Organization; 2015. WHO's Mental Health Atlas 2014. [Google Scholar]
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