Year : 2018 | Volume
: 19 | Issue : 1 | Page : 9--14
Mental health care act 2017: Review and upcoming issues
Prasanna Kumar Neredumilli, V Padma, S Radharani
Department of Psychiatry, Andhra Medical College, Visakhapatnam, Andhra Pradesh, India
Dr. Prasanna Kumar Neredumilli
Department of Psychiatry Government Hospital For Mental Care, Visakhapatnam, Andhra Pradesh
Mental Health Care (MHC) Act 2017 is published in the Gazette by Government of India. It is aimed at strengthening human rights of persons with mental illness. Changes such as advance directive and nominated representative are new, and review boards and responsibilities of government are clearly emphasized. The objective of this article is to give an overview of MHC act 2017 and its upcoming issues while implementing it.
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Neredumilli PK, Padma V, Radharani S. Mental health care act 2017: Review and upcoming issues.Arch Ment Health 2018;19:9-14
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Neredumilli PK, Padma V, Radharani S. Mental health care act 2017: Review and upcoming issues. Arch Ment Health [serial online] 2018 [cited 2021 Sep 17 ];19:9-14
Available from: https://www.amhonline.org/text.asp?2018/19/1/9/235323
Legislation plays a vital role in the treatment of persons suffering from mental disorders. Insight of illness may not be present in majority of mental disorders when compared to physical illness and the law guides for treatment in a proper direction. In India, different legislations have come. Mental Health Care (MHC) Act 2017 has passed through different timelines. It was passed and approved by Parliament and got assent by the president in April 2017 and eventually come into force from May 29, 2018. Earlier with the Mental Health Act (MHA) 1987, there was a start for human approach for treating mental disorders with provisions for human rights but without emphasis on issues like consent. Provisions for voluntary admissions and special circumstances were started. As it involved the department of police and honorable courts in admission and discharge procedures, it had failed to remove virtual criminal flavor on admission of patients with mental illness. There was no time frame for maximum period of inpatient hospitalization for persons admitted involuntarily with exception of special circumstances.
Management of persons suffering from mental illness was being done mostly in inpatient settings in hospitals and closed wards, and they were at disadvantage position as there were chances for vulnerability and human rights violation. These violations in human rights could lead to further psychiatric issues such as depression and anxiety.
Convention on the rights of persons with disabilities (CRPD) was passed by the United Nations (UN) General Assembly in 2006 and was signed and ratified by India in 2007 and made India eventually responsible for the revision of disability laws in India and introduction of MHC Act  2017. MHC act is published in the spirit of UNCRPD with human rights of person with mental illness (PMI) and review board acting as the backbone on the fulcrum of mental capacity.
As per MHC act 2017, mental health professional (MHP) includes psychiatrist, professionals having a postgraduate degree including Ayurveda in Mano Vigyan Avum Manas Roga or Homoeopathy in Psychiatry or Unani in Moalijat (Nafasiyatt) or Siddha in Sirappu Maruthuvam, and also a professional registered with the concerned State Authority under Section 55 (clinical psychologists, mental health nurses [MHNs], and psychiatric social workers) and they will become eligible for assessing mental capacity and eventually for admitting them as inpatient in independent admissions as per the 2017 act. Mental health establishment (MHE) includes inpatient establishments of all health establishments including all other medical treatment modalities as specified by act for care of PMI excluding residential places. This makes even the multispecialty hospitals and general hospitals under the purview of the act for registration as MHE and these hospitals may not register due to unnecessary fears which may lead to decreased treatment options for PMI. The Indian Psychiatric Society has given representations to government to remove general hospital from registration as MHE, but the Government did not consider it. The act highlighted the importance of clause “meant for care” for PMI, and this is reflected for defining places like sheltered accommodation for not specifying MHE registration as seen in draft rules.
Even though it may appear that the MHCA 2017 may not be applicable to MHP practicing at outpatient services or establishments without registration, there are some sections of the act they too have to follow. These include advance directive (AD), aspects of confidentiality, rights to access basic medical records by patients, and provisions of treatment procedures such as electroconvulsive therapy (ECT), psychosurgery, seclusion, and emergency treatment.
The definition of mental illness encompasses in broader sense and is not equated with unsoundness of mind and has to be determined by international classification of diseases (ICD 10) and not by the past treatment or hospitalization. The broader definition of mental illness may lead to persons having milder mental illness to be branded as having mental illness leading to stigma and further may affect the persons for accessing treatment. The clause “mental conditions associated with abuse of alcohol or drugs” signify that deaddiction centres may come under the purview of act unless they specify that they give care for only substance abuse persons.
If a person (including PMI) is able to understand the information for decisions admission, treatment or personal assistance or appreciate reasonably foreseeable consequences of decision or communicate the decision by means of speech, expression or gesture, then he is deemed to have capacity to make decision regarding MHC treatment and can write AD and is eligible for admissions on independent basis. Persons suffering from neurotic disorders and psychotic disorders with the exception of chronic disorganized psychosis, delirium, dementia and organic psychosis may have capacity and may be considered under this act and eventually has to be admitted on independent basis. The clause “mental capacity” segregates PMI and this segregation may raise doubts whether MHC Act is in true spirit of UNCRPD or not. There needs to be further information by the guidance document of the expert committee.
A person who is not a minor having mental capacity can write directive as specified by mental health authority regarding his intention for the way he/she wishes to be cared for and not to be cared for and can appoint nominated representative (NR) in spite of whether he/she is having past illness or had treatment for mental illness. NR has to sign if name is mentioned in AD and also signatures by two witnesses have to be taken. In case PMI comes alone and has not written or given AD, he/she may be given treatment after consent and may be admitted as in patient admission. If PMI wants to be treated at corporate hospital only and relative is not in a financial position to give treatment, then relative or caregiver or MHP may apply to board for review of AD. PMI suffering from psychosis may perceive that harm will be done by known persons like family members or unknown persons and may write AD and thereby cannot get treatment. In these situations also, MHP or relative may approach the board for review of AD. The provision of AD may not be aware in illiterate persons and implementation of these sections by them is debatable. The past literature also reveals that implementation of AD has been difficult. However, there are some favorable aspects of AD for MHP and these include nonapplicability of AD in emergency treatment, duty of PMI or NR to make access of AD, and MHP not liable if not given copy of AD or for unforeseen consequences of valid AD.
Psychiatric illness may cause burden to caregivers and in turn can affect the care of PMI. The MHC act 2017 has given sections for support of PMI by way of NR. The NR can be a relative or caregiver, suitable person appointed by board, or person of organization registered under societies registration act and may be revoked by board. NR shall not be minor and has to give consent in writing to MHP. NR can seek information of diagnosis and treatments, rehabilitation, planning discharge, application for admission, and give consent if required.
The high caregiver burden with mental disorders can sometimes lead to orphanage of PMI leading to wandering aimlessly and NR could support in this issue. In situ ations where the PMI has not written NR, may be due to unawareness of the act, then relative or caregiver can be deemed to be considered as NR and if not willing then the board appoints a suitable person. In admission where PMI is voluntarily admitted as independent admission, NR is not necessary to stay with him. In cases where family is included in delusional rubric of patient, there are chances of appointing other person who may not be having good intent as NR and the role of NR in this type of cases may not be appreciable. The Indian Psychiatric Society has highlighted that AD and NR are not patient friendly, but the government has not considered the representation.
The state shall maintain a panel of trained caregivers whose antecedents are verified by police and having them will help family members to attend to their personal duties. There are rules for providing emergency service number available to family caregivers at every district headquarter to call for help. Special care shall be taken by the government regarding vulnerable caregivers such as single, adolescent, and elderly caregivers.
Human rights are given major importance and includes the right to access MHC treatment, cost affordability and good-quality mental health services, accessibility, and without discrimination. The facilities include acute care and outpatient and inpatient treatment.
There are sections in MHC act 2017 for PMI to have a dignified life, protection from cruel treatment, self-hygiene, privacy, proper clothing, pay for work, living in community, adequate food, no tonsuring, no force of uniforms, emergency and ambulance services, mobile, e-mail facilities, and free legal services. Insurance for mental disorders and treating the PMI according to International guidelines. There are provisions for not separating woman and child below 3 years of age and if separated for more than 30 days it should be approved by authority. This act has given significance for rights of PMI receiving inpatient treatment and grossly neglected the rights of PMI of community. Unemployment is reported to be significant in persons with mental disabilities  when compared to other disabilities, and this issue is not give importance in this act.
Government has to take measures and they include allocating budget in terms of adequacy, priority, equity and legal aid. It shall support establishments for PMI to live in less restrictive community and in family. The other measures include conducting programmes for suicide and stigma prevention. Measures for increasing human resources of mental health services were mentioned. However, feasibility and practical implementation in real scenario may be debatable. Regarding confidentiality, information of PMI has to be made available only to NR and MHP and has to be protected from others except in threat to life. In cases of NR who sometimes may not be a family member, the availability of confidential information can affect the privacy of information of PMI.
The duties of central and state Government includes establishment of halfway homes, sheltered accommodation, and Supported accommodation, hospital and community based rehabilitation services. The supported accommodation is for those who have own or rented accommodation without caregiver, and they will get domiciliary care at doorstep.
The government shall start child mental health services, provide psychotherapies like cognitive behavior therapies and also include mental health in school syllabus. There shall be counselor in secondary schools. Elderly PMI shall have quality mental health services.
The major importance of human rights in MHCA 2017 will eventually lead changes in aspects of caring PMI and may include upgrade facilities in sanitary and environmental conditions, making preventive measures to all forms of abuse to PMI, facilities for caring both mother and child, maintaining records and to release information to PMI or NR or board if needed, aspects of confidentiality and facilities of telephones or e-mail, and providing details of board and free legal services.
Central Mental Health Authority and State Mental Health Authority
Central Mental Health (CMH) Authority comprises 20 members with 3-year term and maximum age of 70 years and have to meet every 6 months and may be joined by televideo conference. CMH comprises of secretary, joint secretaries of department of health and family, director general of health services, director of central institutes, mental health professional with 15 years experience, psychiatric social worker, clinical psychologist, MHN, two members of PMI, caregivers, persons of nongovernmental organization (NGO), and persons relevant to mental health. CMH shall register MHE, have quality norms of MHE, supervise MHE, maintain national register of MHP, train MHP, and advise central government on MHC.
State mental health authority shall meet not <4 times a year and comprises principal secretary, joint secretary, head of mental health institute, eminent psychiatrist, MHP, psychiatric social worker, clinical psychologist, MHN, two members of PMI, caregivers, and persons of NGO. The Indian Psychiatric Society has requested to include professional associations of psychiatrists in authorities, the government has not considered.
Mental Health Establishment Registration
MHE registered as clinical establishment can apply for registration with fees as prescribed, after fulfilling standards specified by authority and within 10 days without inquiry can get provisional registration having validity for 12 months. This is followed by publishing online or print of all particulars of MHE by authority within 45 days. MHE has to submit the evidence for minimum standards within 6 months from the date of such standards specified by the authority. The authority shall give public notice for filing objections, and MHE has to submit evidence and if there are no objections communicated to MHE, then it is deemed to get permanent registration. The authority shall conduct audit of all registered MHE every 3 years. In case if MHE fails in aspects of human rights or persons of MHE had committed an offence then the authority may issue showcause, and at last, registration may be canceled. MHE has to display certificate, website, phone, and address of board. Among the members of AUDIT, there shall be psychiatrist and one a representative of an organization for PMI.
Mental Health Review Board
Mental Health Review Board will be set up mostly in every district as per the CMH recommendation and will be for a term of 5 years. Review board members can be holding office up to the maximum age of 70 years and members comprise Honourable District Judge (retired also considered), representative of district collector, psychiatrist, medical practitioner, and two persons can be either PMI or caregivers or persons of NGO. The proceedings are deemed to be judiciary proceedings as per the IPC 193, 219, 228 and also shall be held in camera. They have to dispose application given by MHP for supported admissions within 7 days for Section 89, 21 days for Section 90, and 90 days for others. Their remuneration and salaries will be met by central authority grants. The functions of board includes registering and reviewing AD, appoint NR, decide objections against MHP and MHE, deciding for nondisclosure of PMI information, visit jails, protect human rights.
Mental illness comprises different disorders and, in some cases of delusional disorder where the delusion is systematized, it will be difficult for nonpsychiatrists to recognize this as mental illness, and in these types of cases psychiatrist has to give extra effort as he/she is the only person of board having adequate knowledge for mental illness and has to convince the other board members. As the board will be set up at district level or areas specified by authority, it will become difficult for the PMI and MHP staying in remote areas for access of board and it may lead to delay in treatment.
Admission and Treatment
Voluntary admission as per the MHA 1987 is changed as independent admission (Section 86 of MHC act 2017 and Section 17 of 1987) and refers to admission of PMI who has the capacity to make MHC and treatment decisions or requires minimal support in making decision and has mental illness of severity requiring admission, likely to benefit or understand the nature and purpose of admission. Informed consent has to be taken. The person admitted in this section may himself be discharged even without the consent of medical officer. MHP includes psychiatric social worker and mental health nurse, and they may admit PMI in MHE as per the act. But whether they will be having considerable experience in assessing capacity for treatment decisions is a matter of debate. In cases of PMI not able to understand the purpose or nature of treatment resulting in not accepting the treatment and also unable to take care himself, violent, then the PMI has to be admitted as supported admission (Section 89 of MHC act 2017 and Section 19 of MHA 1987) after application given by NR provided PMI shall not be readmitted within 7 days. It is followed by examination by psychiatrist and MHP and if the findings are as per this section of the act, then PMI can be admitted for a maximum period of 30 days after taking AD and it has to be reported to board. Consent can be obtained from NR and the consent from PMI has to be reviewed every 7 days. If admission requires more than 30 days or readmission within 7 days (section 90), they should be examined by two psychiatrists and can be admitted for a maximum period of 90 days if they satisfy norms as per this section of the act and have to inform the board for permission, taking account of AD and consent should be reviewed fortnightly along with planning for community-based treatment. While the PMI is receiving treatment as per supported admission and in case if NR wishes for discharge of PMI then he has to apply to the Board. In this section, the treating psychiatrist should be cautious for checking consent and record notes and intimating the board at regular intervals as specified.
If admission is extending beyond 90 days, it can be extended for 120 days at first instance and thereafter for 180 days each time after complying with the provisions of this section of act. Provisions for involuntary admission of PMI with disability/chronicity may not be in tune with UNCRPD, but in psychological disorders it is different as there may situations of harm or death of himself or others by PMI may eventually require these types of sections for safety and protection of PMI or others.
PMI who are wandering, not capable of taking care of himself can be taken under protection by police officer and after informing NR they may produce before public health establishment (100 of MHC Act 2017, 23 of MHA 1987). If he / she had mental illness then PMI has to be treated as per the provisions of act and in case if he/she is not eligible as per independent admission then has to be examined by psychiatrist and MHP as per se ction 89. In case of PMI is ill treated or neglected then the police officer may produce for 10 days in MHE and after assessment the treatment of PMI has to be followed as per the provisions of the act (101,102 of MHC Act 2017, 25 of MHA 1987). In case of prisoners act, Air force act, Army act, Navy act and code of criminal procedure can be treated at psychiatric ward in medical wing of prison and when there is no facility of psychiatric ward they can be transferred to MHE after permission from board (103 of MHC Act 2107, 27 of MHA 1987). As per the rules under section 121 of MHC Act there shall be screening for all inmates of prison during the time of entry including Mental status examination, urine testing for common drugs of abuse, protocols for dealing prisoners with suicidal risk, counselling for stress and prison after care services. When proof of mental illness is challenged during the judicial proceedings of honourable court then the honourable court may send to board for scrutiny (105 of MHC Act 2017,26 of MHA 1987).
In admission of minor (Section 87 of MHC act 2017 and Section 16 of MHA act 1987), NR of minor has to give application to medical officer and after being examined by two psychiatrists or psychiatrist and medical officer or psychiatrist and MHP and if they are satisfied as per the norms of this section then the minor can be admitted in separate accommodation from adults, consent taken from NR and informed and informed to board. If admission lasts more than 30 days, it should be again informed to the board. In case of minor girl and NR is male, a female attendant should be appointed by NR.
Medical treatment can be given for mental illness by registered medical practitioner to a PMI either at MHE or at community for a maximum period of 72 h with informed consent of NR to prevent death or irreversible harm to health of person or person inflicting serious harm to himself or person causing serious damage to property. Electroconvulsive therapy (ECT) shall not be used as form of treatment in this section of emergency treatment. There is provision of transportation of PMI to nearest MHE.
ECT without anesthesia, sterilization of PMI, and chained procedures shall not be performed. PMI shall not be kept in seclusion and only physical restraint should be used to prevent imminent harm and to be recorded in medical notes. Board permission has to be taken for ECT in minors and in case of psychosurgery.
ECT is effective treatment and has been using since long time with less side effects. Imposing ban on unmodified ECT may lead to removal of efficacious treatment for the PMI of remote distant places where anesthetist may not be available. ECT is a lifesaving option in emergency psychiatric situations like suicide and removing its role cannot be replaced. The Indian Psychiatric Society has highlighted the importance of unmodified ECT, but the Government has not considered.
There are provisions for psychiatrist responsibility for PMI care and future treatment in consultation with PMI or NR. But for PMI who are not interested to continue medication after discharge or stopped treatment after going into community, there are no alternative provisions to deal with them. Provisions for rehabilitation and managing the assets/property of PMI are not given in this act. The research should be conducted with informed consent from PMI, state authority, and institutional ethics committee.
If a person contravenes the act there are fines ranging from imprisonment of 6 months, ten thousand rupees to 2 years, five lakh rupees. There is provision for the central government for control over CMH. In cases of difficulties that arise in giving effect to the act, the central government may publish orders for making provisions not consistent with act. In view of communication and travel difficulties, there are provisions for Northeastern states regarding relaxations for time frames. As per the MHC act 2017, a person who commits suicide is presumed to have severe stress and shall not be punished. However, the clause “unless proved otherwise” of this section may make police to investigate for the cause. There will be no prosecution or legal proceedings against authority or board when done in good faith. However, relaxations for legal proceedings done in good faith were given to authorities and board but not to MHP and other personnel directly involved in treatment.
The future favorable ray of hope for MHPs includes guidance document by expert committee on mental capacity as mental capacity is the backbone for AD and admission procedures. The other includes the power of central authority to modify or make additional regulations on AD after periodical review.
Mental health care Act 2017 is published with main emphasis of Rights of PMI in every aspect. MHP should give utmost importance to the Rights, address the transitions from MHA 1987 to MHCA 2017 including taking care to record and maintain case notes at every stage.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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