‘A healthy mind resides in a healthy body’ – is something all of us have been hearing since childhood. While we are conscious of the importance of physical health, most of us very conveniently ignore the ‘mental health’ aspect and do not see it as a matter of serious concern.
A WHO study revealed that about 7.5 % of the Indian population suffers from some kind of mental health disorder. Despite these alarming statistics, the subject of mental health is still considered to be taboo. In other words, while we are ready to suffer silently, we are not willing to talk about it. This can be attributed to the social construct of the concept and the tendency of the people to label and stigmatize those suffering from mental illnesses. Such people are often thought to be ‘weak-minded’ and their problems are brushed under the carpet, without doing anything to address them. Even those caregivers who do understand are not able to do much, due to their lack of knowledge on the subject. Meanwhile, the recent pandemic-induced lockdown has also witnessed a spike in cases of depression, anxiety, and similar issues, given the uncertainty of the current situation. With the issue of ‘mental health’ becoming more relevant than ever before, the time is ripe to learn more about the same, especially its legal aspects.
Mental Healthcare Act, 2017 
In the year 2017, the Parliament passed a very ambitious legislation, the Mental Healthcare Act, thereby repealing the Mental Health Act of 1987. This Act was introduced to bring the Indian law in line with the Convention on Rights of Persons with Disabilities and its Optional Protocol, in compliance with India’s international obligation. The enactment of this law was seen as a welcome step, as the previous Act was archaic and draconian in nature. Indeed, in many ways, the 2017 Act has proved to be much better than its predecessor. Certain progressive features of the Act have been discussed as follows.
First and foremost is the definition of ‘mental illness’ itself. Quite an expansive definition has been adopted which encompasses several types of disorders, be it related to mood, perception, thinking, or orientation which have the effect of disabling individuals from meeting the ordinary demands of life. In a surprising move, persons suffering from substance abuse disorders have also been included. While other terms are self-explanatory, the legislature needs to provide clarity on how it intends to tackle the problem of ‘substance abuse’ under this Act.
Taking cognizance of the inhumane and often indifferent behaviour meted out towards mentally ill individuals. Chapter V of the Act also emphasizes upon their rights, to bring them at par with the other individuals of the society. These include the right to live with dignity free from any kind of discrimination, right to privacy, right to confidentiality, right to environmental hygiene and articles of personal hygiene, etc. Further, guaranteeing them the right to community living reaffirms their sense of independence and self-belief and also seeks to promote their integration with society. Another important right is the right to information regarding the nature of the illness, the proposed treatment, and any possible side-effects of the same, which the concerned institution is under an obligation to provide to the patient himself or the nominated representative.
Additionally, in an attempt to ensure that mental ailments are given as much importance and attention as physical ailments, insurers have been made liable to provide medical insurance for the treatment of mental illnesses. Most of the rights enumerated herein are already bestowed upon them by the Constitution of India. Such reiteration is a testament to our will to move towards a more progressive nation, where they are able to exercise their equal rights in reality.
Keeping up with the idea of humane treatment of mentally ill individuals, this Act has also prohibited certain procedures like the use of electroconvulsive therapy, permitting it only in emergency cases, that too with the muscle relaxants and anesthesia. However, an absolute ban has been placed on ECT in the case of minors.
This Act takes another step in the right direction by recognizing the agency of the mentally ill. This is evident through provisions where they have been given the right to make an advanced directive and to choose their nominated representative. The former empowers the individual to choose the mode of treatment he/she wishes to undergo in the future, which becomes effective when he/she loses the capacity to make decisions for themselves. On the other hand, the latter are those persons who, during the period of incompetence of the mentally ill individuals, are required to take decisions regarding treatment, taking into consideration the values, background, and interests of the patient. Not only are they supposed to make the concerned individual understand the consequences of taking or not taking a decision, but they are also the ones who are to report in case of any abuse or exploitation of the mentally ill individual.
Besides the above provisions, the Act provides for the establishment of Central and State Mental Health Authorities, who are primarily tasked with the supervision of the registered Mental Health Establishments. It also talks about the constitution of Mental Health Review Boards, for protecting the rights of the mentally ill, which perform several functions like deciding upon complaints of deficiencies in services inter alia. Moreover, it has provisions for regulating admission, both voluntary and supported, as well as treatment and discharge. Along with the usual stakeholders, duties of certain other agencies have also been included like police, magistrates, and the prison authorities.
Shortcomings of the 2017 Act
Although the Mental Healthcare Act, 2017 is a laudable legislation in several respects, it has its lacunae and loopholes. The main focus of the Act seems to be treatment and not prevention or early intervention. It treats mental illness more like a clinical issue, evident from the list of ‘mental health professionals’ which include only clinical professionals and has no mention of counselors or psychotherapists. Since mental health issues are very much preventable in nature, the failure of the legislature to address this aspect comes forward as a glaring omission.
Mental illness is something that has the capability to affect people from all walks of life, irrespective of class, caste, gender, or profession. In such a scenario, the right to accessible and affordable good quality mental health services assume a lot of significance. While the Act does promise such services, the ground reality is quite different. For a population of about 1.3 billion people, India has only 4,000 mental health practitioners and experts. Even for those who do get access to good professionals, regular therapy sessions and regular treatment prove to be very expensive. Instead of encouraging people to voice their issues, lack of competent professionals, and the high cost prevent such people from coming out with their problems. Experts have also opined that if India integrates the mental health services into its fundamental healthcare system, the infrastructure will improve and the cost will decrease. However, appropriate actions need to be taken by the government in this regard, otherwise, such rights will remain mere paper promise.
The right of the mentally ill person to make an advance directive is a very important feature of the Act. However, the procedure for going about the same has not been specified. This aspect had been addressed by the Original Bill of 2013 which also provided for the ascertainment of mental insolvency. Unfortunately, the same has not been adopted in the final legislation. Also, while it is expected that the individual decides on his mode of treatment, no options or guidance has been provided for the same to ensure that he makes a fully informed decision.
It should be noted that the composition of the National and State level authorities and Review Board include more number of officials and less number of experts. Leaving important decisions related to mental health in the hands of a majority of non-experts does not seem to be appropriate.
Decriminalization of Attempt to Suicide
The major highlight of this Act is the effective decriminalization of Section 309 of the Indian Penal Code, which talks about the attempt to commit suicide. Section 115 of the Act presumes that any such person who attempts to commit suicide is under severe stress and makes it a non-punishable act. This provision is the culmination of years of debate on whether ‘attempt to suicide’ should be considered an offence or not. This step is also in line with the suggestion contained in the 210th Law Commission Report titled ‘Humanization and De-criminalization of the Attempt to Suicide’. Experts have always maintained that since such acts are a result of extreme stress and mental disturbance, what such a person needs is not punishment, but treatment. However, proceedings being initiated under this Section soon after the suicide attempt did nothing to reduce the risk of recurrence and only contributed to elevating the pre-existing stress.
The Act makes the concerned government liable to provide proper care and rehabilitation to the concerned person. While this move of seeking to address the core reason behind suicide warrants appreciation, the question that arises is how much this provision is actually followed. Even after the law becoming redundant, the police continue to book people under the same. In one such incident, the response of the police was that they had not received any intimation from the government regarding the decriminalization of the concerned Section. One of the reasons for the confusion regarding the status of this provision is that despite effective decriminalization, the provision has not been repealed and has continued to remain in the law books. Such incidents are also representative of the lack of mental health awareness and literacy amongst the different agencies.
This brings to light another serious issue. While the Act obliges the government to promote mental health, there has not been much progress on this front. A good legislation is of no use till people are not aware of it or the subject of the legislation itself. Mental health awareness programs should be organized for all the stakeholders, be it state agencies, healthcare institutions, workplaces, colleges or even schools and the concerned authorities should also be sensitized to deal with such situations. The more people are aware of mental health, the lesser would be the stigma attached to this sensitive issue.
Mental health issues are gradually becoming the ‘new normal’ in India. In order to prevent a future mental health crisis, India needs to work towards spreading awareness about mental health in all sections of society. With a fairly good legislation in place, effective implementation is the need of the hour. As far as the lacunae in the law are concerned, the government should take appropriate steps to correct the same. To conclude, it can be said that concerted efforts of all the stakeholders involved will undoubtedly mark the rise of a mentally healthy and progressive India.
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 The Mental Healthcare Act, 2017 (Act No. 10 of 2017)
 The Mental Health Act, 1987 (Act No. 14 of 1987)
 Supra note 2, s. 2(1)(s)
 Ravindra Rao, Mohit Varshney et.al., “Mental Healthcare Act, 2017 and Addiction Treatment: Potential pitfalls and trepidations”, 61, IJP, 208-212 (2019) available at http://www.indianjpsychiatry.org/article.asp?issn=0019-5545;year=2019;volume=61;issue=2;spage=208;epage=212;aulast=Rao (Accessed on May 25, 2020)
 Supra note 2 Chapter V
 Supra note 2 s.95
 Supra note 2, Chapter III
 Supra note 2, Chapter IV
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 Supra note 1
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