The Supreme Court of India, New Delhi. Photo: PTI
- Implementation of the Mental Health Care Act 2017 on the ground has been slow – but there have been significant developments in the judicial arena.
- The courts’ decisions to invoke the Act’s various safeguards for persons with mental illness allow us to question other laws that discriminate against persons with mental illness.
- Overall, the judiciary’s choice to adopt a socio-legal lens through which to interpret the scope of the MHCA has laid down a progressive jurisprudence.
- Maintaining a register of mental health establishments in the state
- Developing good-quality and service provision norms for mental health establishments
- Maintaining and publishing a register of mental health professionals, and
- Building capacity among law enforcement officers and other stakeholders
- Registering, reviewing, altering, modifying or cancelling advance directives
- Appointing nominated representatives
- Receiving and deciding on applications submitted by persons with mental illness or their nominated representatives, or any other interested person, against the decision of medical officers or mental health professionals in charge of a mental health establishment
- To act based on complaints received regarding care and services, and
- Visiting and inspecting prisons
The Mental Healthcare Act (MHCA) 2017 entered into force in May 2018. It is a legislation that adopts a rights-based approach to regulate mental healthcare and treatment in India. It draws on the guiding principles of the UN Convention on the Rights of Persons with Disabilities (CRPD).
As such, the MHCA is a milestone because it marks the first time an Indian law recognised the right of all persons to access state-funded mental healthcare services and facilities, sans discrimination on any basis.
The provisions of the previous and now-repealed Mental Health Act 1987 focused largely on administrative procedures, instead of addressing the need for services and protecting the rights of service-users and their caregivers.
For example, it empowered judicial officers to issue reception orders authorising the detention of persons with mental illness in institutions for treatment, thus creating stigma and criminalising the process of medical admission. More importantly, the law didn’t adequately protect the rights of persons with mental illness and didn’t contain any provisions to ensure informed consent for healthcare and treatment. This is because it didn’t acknowledge the autonomy and agency of persons with mental illness in making decisions.
The 1987 Act was also poorly implemented, going by the fact that many states didn’t establish regulatory bodies such as state mental health authorities even 30 years after the Act had come into force.
In 2007, India ratified the CRPD. All state parties that ratify the CRPD are required to draft or amend their domestic laws and policies to comply with it. And to meet these obligations, the government introduced the Rights of Persons with Disabilities (RPD) Act 2016 to replace the Persons with Disabilities Act 1995 – followed by the MHCA in 2017.
While the civil, political, economic and social rights of persons with mental illness are protected under the RPD Act, the MHCA ensures the right to access mental healthcare, treatment and services for all persons.
The MHCA adopts a person-centred approach, promoting a shift from institutionalisation towards community-based care. It ensures that the autonomy of persons with mental illness is protected and their right to make decisions pertaining to their own mental health care and treatment is upheld.
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Mental health laws across the world have evolved over the years. An important and common facet of this transition in discourse has been the recognition of the capacity and autonomy of persons with mental illness. The CRPD has played a pivotal role in this regard.
Under the MHCA as well, all persons with mental illness are presumed to have the capacity to make decisions regarding their own mental treatment, unless proven otherwise. The Act acknowledges that a person’s capacity could vary depending on the situation and context, as a result of which they will need help with making good decisions. To safeguard their autonomy and support persons with mental illness to make their own decisions, the MHCA makes room for advance directives and the appointment of nominated representatives.
Three definitions
An advance directive is a written document by which any person – not necessarily those living with mental illness – may state how they wish to be treated, or not, in situations where they have a limited capacity to make decisions regarding their care and treatment.
A nominated representative is an individual appointed by a person with mental illness to make decisions on their behalf if their capacity is limited.
The MHCA understands capacity as the ability to make decisions after understanding and assimilating the relevant information, the potential consequences of the forthcoming decision and communicating it properly.
Under the Act, all persons with mental illness have the right to be treated equally, and are protected from cruel, inhuman, and degrading treatment. Its provisions include the right to confidentiality, community living, access to medical records and legal aid. It mandates the creation of regulatory bodies – such as the state mental health authorities (SMHAs) and the mental health review boards (MHRBs) – and for governments to maintain a register of mental-health professionals and establishments.
The Act also requires insurance companies to provide health insurance coverage for mental illness at par with physical illnesses.
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Like many other laws in India, the MHCA is a well-drafted instrument that has been held back by poor implementation. Despite the rules and regulations being issued at the time of the enforcement of the Act, several states and Union territories are yet to draft rules and to establish SMHAs and MHRBs.
In fact, according to the response to an RTI application filed earlier this year, only eight states and UTs have sent draft rules to the Ministry of Health and Family Welfare for approval. Some states have also set up SMHAs and MHRBs, but they’re non-functional for the most part.
This doesn’t mean the MHCA 2017 is destined for ignominy. Implementation on the ground is slow – but there have been significant developments in the judicial arena. Owing to inaction from nodal authorities, stakeholders have turned to the high courts and the Supreme Court for recourse – and the courts have played an important role through their interpretations of the Act’s provisions.
Mental health researchers, activists, service-users and civil society organisations have all approached the courts on a variety of issues – including the establishment of SMHAs and MHRBs, insurance coverage for persons with mental illness, rehabilitation of persons who have recovered from mental illness, and the notification of minimum standards to be followed by mental health establishments.
Interpreting the MHCA 2017
In 2018, in Navtej Singh Johar v. the Union of India, Supreme Court delivered a landmark judgement to decriminalise homosexuality and read down Section 377 of the India Penal Code. While doing so, the court relied on the MHCA’s definition of mental illness and its protections against discrimination.
Specifically, we can apply the court’s decision to invoke the right to equality and non-discrimination under Section 21 of the MHCA as a ground to prohibit discrimination against persons with mental illness based on their sexual orientation to other laws with provisions that discriminate against persons with mental illness. For example, according to the Hindu Marriage Act 1955 and the Special Marriage Act 1954, mental illness is recognised as a ground for divorce, annulment or disqualification for marriage.
In its judgement, the court also reasoned that as per Section 3 of the MHCA, mental illness must be diagnosed based on internationally accepted standards, like the International Classification of Diseases (ICD-10), under which homosexuality is not a mental illness.
In Common Cause v. Union of India (2018), a constitutional bench of the apex upheld passive euthanasia, and observed that given international developments, there was a need to reconsider the criminalisation of suicide. The bench referred to Section 115 of the MHCA, which states that we must assume that a person who attempts suicide is under severe distress, instead of warranting punitive action under Section 309 of the Indian Penal Code (which criminalises suicide). The bench observed:
“Section 115 marks a pronounced change in our law about how society must treat an attempt to commit suicide. It seeks to align Indian Law with emerging knowledge on suicide, by treating a person who attempts suicide beingneed of care, treatment and rehabilitation rather than penal sanctions.”
The bench also referred to Section 5 of the MHCA when issuing guidelines on the use of advance directives for passive euthanasia.
In Accused X v. the State of Maharashtra (2019), the Supreme Court quoted the MHCA 2017 in several instances. For example, it cited Section 23, which protects the rights to confidentiality and privacy of persons with mental illness, to direct the court registry to not disclose the name of the accused since they had a mental illness.
The judgement also cited Section 20, which bestows upon all persons with mental illness the right to live with dignity. The court observed that an individual’s choice to exercise their will and preference for decision-making after having understood the information provided and its consequence is a part of the right to dignity. And while commenting on the mental health and wellbeing of prisoners, the bench observed:
“… the aspiration of the Act [MHCA] was to provide mental health care facility for those who are in need including prisoners. The State Governments are obliged under Section 103 of the Act to setup a mental health establishment in the medical wing of at least one prison in each State and Union Territory, and prisoners with mental illness may ordinarily be referred to and cared for in the said mental health establishment.”
Also read: Indian Media Is Often Irresponsible When Reporting on Suicide
Role of courts in implementing, monitoring
India’s courts have interpreted the act not just in letter but also in spirit, which has played a crucial role vis-à-vis monitoring the Act’s implementation.
Under Section 45 of the MHCA, for example, state governments are required to constitute SMHAs. An SMHA is a statutory body to be composed of a range of stakeholders, including caregivers and persons with lived experience. Its roles and responsibilities include:
Three years after the Act was enforced, several states were yet to establish SMHAs, while some states continued with SMHAs operating under the provisions of the Mental Health Act 1987.
Next, the ‘newer’ SMHAs are required to constitute MHRBs, which are responsible for protecting the rights of persons with mental illness. Their key functions include:
SMHAs and MHRBs are critical for the MHCA’s proper implementation. So when they’re not established, they effectively hold up numerous barriers for persons with mental illness attempting to access the rights ensured to them.
For example, in the absence of MHRBs, persons with mental illness will be unable to file advance directives or appoint nominated representatives. The MHCA provides for both these tools to protect the rights of persons with mental illness in situations where they may have limited capacity.
In the face of such inaction, high courts have intervened to direct states to establish MHRBs. In 2019, the Delhi high court issued a notice to the Delhi SMHA to file a report on why MHRBs hadn’t yet been constituted. In 2020, the Karnataka high court asked the government why it was so slow to set up SMHAs in line with the Act. High courts in Kerala and Punjab have also responded to petitions by directing state governments to establish MHRBs.
In fact, in 2018, in Dr Sangamitra Acharya & Anr. v. State (NCT of Delhi), the Delhi high court directed the city’s police to prepare a manual in consultation with legal and mental health experts to spread awareness on the MHCA’s provisions regarding the rehabilitation of homeless persons with mental illness.
The court also directed “the Centre and SMHAs in collaboration with the state judicial academies” to “hold programmes on periodic basis with civil society groups, residents’ welfare associations, police officers, lawyers and judges to sensitise them” about the various provisions of the MHCA.
Similarly, in Shikha Nischal v. National Insurance Company Limited & Anr. (2021), the same court observed that the MHCA recognises the right of persons with mental illness to health insurance and also requires insurance companies – public and private – to provide such insurance for mental illnesses.
This provision is based on the principle of parity – with mental illnesses to be treated at par with physical illnesses. The petitioner had approached the court stating a violation of Section 21 of the Act, since an insurance company had rejected her claim for treatment of her mental illness. The court observed that the grounds to reject the petitioner’s reimbursements were indefensible.
In its landmark judgment, the court directed the insurance company to pay the petitioner Rs 25,000 for forcing her to opt for litigation.
Even though the Insurance Regulatory and Development Authority of India, or IRDAI, issued a notification to all insurance providers to comply with provisions of the Act in 2018, such discriminatory practices continue. And in response to the Shikha Nischal writ petition, the Delhi high court directed IRDAI to ensure all products issued by insurance firms comply with the MHCA’s Section 21.
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Since 2018, the Supreme Court has been hearing arguments in the contempt petition Gaurav Kumar Bansal v. Mr Dinesh Kumar. The petitioner sought judicial intervention for the rehabilitation of persons with mental illness who have recovered but are languishing in hospitals or ‘halfway’ homes because they have no family or community support.
Section 19 (2) of the MHCA says that a person with mental illness shall “not continue to remain in a mental health establishment merely because he does not have a family or is not accepted by his family or is homeless or due to absence of community-based facilities”. It also requires the government to provide support, including legal aid, and facilitate their right to home and community-living.
While the court is yet to pronounce its decision, a closer reading of the arguments presented and orders issued thus far indicate the judiciary’s will to implement the MHCA.
For example, in an order on September 1, 2021, the three judge bench observed that “pushing the cured patients who were overstaying in mental health care institutions to beggar homes and old age homes is insensitive”. It directed the governments of Maharashtra and Uttar Pradesh to establish ‘halfway’ homes and rehabilitation centres for persons recovering from mental illness in a fixed time frame – instead of simply redesignating old age or beggar homes as halfway homes.
The Bench also observed that such redesignation wouldn’t “amount to a valid discharge of its duties and obligations by the state government of complying with the directions of [the Supreme Court] as well as the provisions of the Mental Healthcare Act 2017”.
The order also gave the Ministry of Social Justice and Empowerment four weeks to set up an online dashboard providing details of halfway homes in all states and UTs, the facilities there, and their capacity and occupancy – to be updated in real-time.
Taking note of the findings of reports published by the National Institute of Mental Health and Neurosciences, Bengaluru, in 2016 and the National Commission for Women in 2019, the bench also ordered all states and UTs to take “remedial measures” to address “serious concerns” highlighted in these reports, and file an affidavit within three months.
All the cases cited thus far illustrate the range of issues that petitioners have asked the courts to address, vis-à-vis the MHCA. In turn, the orders and judgements delivered in these cases have been crucial to ensure nodal authorities discharge their duties in line with the Act’s provisions – thus rendering the judiciary a critical stakeholder and ally in its implementation.
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The judiciary’s choice to adopt a socio-legal lens through which to examine and interpret the scope and provisions of the MHCA has contributed to the advancement of rights of persons with mental illness, by laying down a progressive jurisprudence. It has also opened paths for us to adopt and move towards a more inter-sectoral approach to mental health, taking into account the role and influence of structural determinants and barriers.
However, the responsibility of implementing and monitoring the MHCA to protect and promote the rights of persons with mental illness does not lie with the judiciary alone – it lies with the executive, too.
In Gaurav Kumar Bansal, despite the Supreme Court bench issuing multiple orders, several states have failed to submit a status report on the MHCA’s implementation of the MHCA. Such lack of response raises doubts about the executive’s commitment to implementing the Act. The judiciary has stepped in to remedy the resulting injustices, but the executive must step up as well.
Manisha Shastri is a research associate; Arjun Kapoor is a research fellow and programme manager; and Dr Soumitra Pathare is a consultant psychiatrist and director – all at the Centre for Mental Health Law & Policy, Indian Law Society, Pune.