Analysis of the MENTAL HEALTHCARE ACT OF 2017

1. -BY HEENA MALHOTRA
18010125426
BA LLB 1st YEAR (DIV. E)
Assignment Chosen: With reference to any one of the
underlying principles of the Indian Constitution (as
stated in the Preamble to the Constitution), analyze any
recent Act of the Indian Parliament and justify its
conformity or dissonance (as you see it) with the
principle. Give a brief account of the
background/environment behind the development.
INTERNAL-
III

2. CARE ACT OF 2017

4. BACKGROUND-
■ Following the enforcement of the Mental HealthcareAct (MHCA), 2017, universal mental
health care is now a justiciable right.
■ The Public healthcare system of India includes mental healthcare but less than 1% is spent on
mental health from the budget allotted to healthcare in India.
■ Further, stigmatization and discrimination are serious causes of concern, with numerous
documented cases of human rights violations as a result of poor quality of mental health care,
forced admissions in mental health hospitals, and a denial of socio-economic rights.
■ The new act intends to align and harmonize existing laws with the Convention on Rights of
Persons with Disabilities and its optional protocol which India ratified in 2007.
■ This has been a welcome development since India’s falling ranks in the World Happiness Index
which considers psychology as a major aspect to determine the overall well-being of citizens of
the country. Recently India has been ranked 140 in theWorld Happiness Index.

5. Major developments from the
introduction of this Act-
■ Introducing proxy decision-making options;
■ Including opportunities to make advance directives (AD);
■ Aspiring to establish parity with physical disorders;
■ Regulating all facilities that provide psychiatric care irrespective of systems of medicine practiced or nature of service provider;
■ Setting up systems to ensure due process when personal liberties are restricted;
■ Regulatory monitoring of restraints and out-casting of patients
■ Banning practices that are widely considered as inhumane;
■ Defining the role of police in ensuring patient safety;
■ Bringing informed consent to the core of practice;
■ Minimizing the role of magistrates in mental health care;
■ Instructing insurance providers not to discriminate against mental illness; and
■ Decriminalizing suicide.

6. BROAD PRINCIPLESCOVERED BYTHE ACT
Economic
justice
Socialism
Social
Justice
Fraternity-
assuring
dignity of
individuals
Equality of
opportuniti
es
Economic
Justice
MHCA,2017

7. ■ ‘Socialism’ was added in the Preamble by the 42nd Amendment in 1976. It implies that the
Constitution of India aims to secure social and economic equality and fair distribution of
wealth among all sections of people in the country. Some socialistic principles are
categorically reflected in the Articles 39, 41, 42 and 43 which are incorporated in the
Directive Principles of State Policy.The MHCA, 2017 brings Mental Healthcare within the
general public healthcare system.
■ The Preamble enshrines three types of Justice- social, economic and political.To ensure
Social Justice the Constitution has made special arrangements for the weaker sections of
the society, abolished untouchability, provided free education up to a certain standard, etc.
Economic justice implies that the Constitution seeks to ensure economic security for the
common people and to do way with unequal distribution of income and wealth and provide
quality and adequate healthcare without discriminating on the basis of class.

8. ■ Liberty: The other important ideal of the IndianConstitution is to ensure liberty to its citizens
for the all round development of their personality.Accordingly, the Preamble provides for
liberty of thought, expression, belief, faith and worship.The Constitution of India provides a
number of Fundamental Rights to the citizens and also protects theses rights.
■ To ensure Equality: Equality is the basis of a democratic state. Equality is necessary for the
development of a society. Hence, the term ‘equality’ has been inserted in the Preamble to our
Constitution. Equality has been guaranteed by the ‘Rule of Law’.To establish equality, our
Constitution has provided for the Right to Equality as a Fundamental Right.The Indian
Constitution ensures equality before the eyes of law to all persons, citizens and non- citizens.
The Constitution also prohibits discrimination on grounds of religion, race, caste, sex, place of
birth or any of them.The MHCA, 2017 provides for equality in access to quality and adequate
mental healthcare, class no bar.

9. ■ India as aWelfare state: India is committed to the ideal of a welfare state and must
establish socio- economic justice.The Preamble lays the foundation of a welfare state
in India.The Preamble inherently contains the mystic ideal of a welfare state. India is
committed to democracy and respects individual liberty, providing to all her citizens,
the equality of status and opportunity.The Directive Principles of State Policy
involving social, economic, political and cultural goals are like instructions to the state.
They aim at establishing a welfare state in India.

10. ■ Fraternity: There is also a commitment made in the Preamble to promote the value of fraternity that
stands for the spirit of common brotherhood among all the people of India. In the absence of
fraternity, a plural society like India stands divided.To promote fraternity and a feeling of
brotherhood among the people to emphasize the fundamental unity of the country against the
divisive forces of regionalism, communalism and the like, certain attempts have been made for the
removal of social distinctions and inequalities based on caste, class, creed, language, religion, region,
etc.Without unity among its citizens, a state could not be successful.Therefore, to give meaning to all
the ideals like justice, liberty and equality, the Preamble lays great emphasis on fraternity. In fact,
fraternity can be realized not only by abolishing untouchability amongst different sects of the
community, but also by abolishing all communal or sectarian or even local discriminatory feelings
which stand in the way of unity of India.
■ Dignity of the individual: Promotion of fraternity is essential to realize the dignity of the individual. It
is essential to secure the dignity of every individual without which democracy can not function. It
ensures equal participation of every individual in all the processes of democratic governance.

11. ANALYSIS OFTHE ACT-
■ The Act provides for definitions under Section 2 of the Act. Some of which are
important to point our their consonance with the principle of ensuring dignity of
individuals as enshrined in the constitution:
■ Advanced Directive which is the modus operandi of treatment i.e., the manner in
which the patient would like to be treated and would not like to be treated.
■ Informed consent of the patient is supposed to be taken.
■ Least restrictive environment- in which the patient can realize his basic rights in an
environment which poses the least impediments.

12. ■ Mental illness of a person shall not be determined on the basis of political, economic
or social status or membership of a cultural, racial or religious group, or for any other
reason not directly relevant to mental health status of the person; non-conformity
with moral, social, cultural, work or political values or religious beliefs prevailing in a
person’s community.The provision reflects freedom of choice, liberty of thought and
expression.

13. ■ Integrating mental health service into general health service reflects Socialism; Parens patriae,
i.e., the public policy power of the state to intervene against an abusive or negligent parent,
legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in
need of protection.
■ The Act provides for easy access to mental healthcare which is hassle-free in even the most
basic sense, for example, it makes a provision that patients should not be expected to travel
long distances for treatment.
■ Ch 6- Duty of govt (parens patrie) - awareness, reducing stigma, ensure productivity of
workforce, duties of central authorities and state authorities. Chapter 13 provides for duty of
police officers- if reason to believe suffering w mental illness- take under protection- take him
to nearest public hospital w/in 24 hrs of taking into protection.

14. ■ A separate chapter is provides for the rights of persons with mental illness ranging from
right against discrimination on the basis of gender, sex, sexual orientation, religion, culture,
caste, social or political beliefs, class, disability or any other basis and right against
exploitation, segregation from the society, right to privacy, right to equality, right to
information, right to legal aid, Right to community living; (equal treatment); Protection
from cruel, inhuman treatment, right to information, right of confidentiality (privacy), right
to access to medical records and to complain about inadequate service delivery.
■ Electro ConvulsiveTherapy and psychosurgery are included in prohibited procedures.
■ Section 115 provides for de-criminalization of suicide and appropriate treatment of those
who were/ are suicidal.There will be presumption of severe stress in cases of attempt to
suicide rather than treating it as a crime.
■ Section 103 provides for treatment of prisoners with mental illness.

15. DISADVANTAGES OFTHE ACT-
■ Discrimination still persists in the form of discrimination against single individuals
living without family.
■ Provision forAdvance Directive Can Backfire since the patients are not in a mental
position to decide what is best for them.There occurs a dilemma in terms of striking a
balance between the rights of the individual.
■ RejectingThe Lifesaving Effect Of ElectroconvulsiveTherapy outrightly by the Act,
there occurs a dilemma in terms of striking a balance between the rights of the
individual.
■ But the act upholds the idea that all citizens, including those with mental illness, have
a right to equality and nondiscrimination. Section 21 (1) states that “every person with
mental illness shall be treated as equal to persons with physical illness in the provision
of all healthcare.”Contrary to these declared principles of parity with physical illness,
the act has brought all voluntary admissions of adult persons with mental illness under
its purview.

16. Conclusion
■ The legislation was much needed for the country to help citizens realise their rights
better and eliminate the stigma around mental health treatment and institutions.
■ The State has acted in furtherance of the aims of the Constitution by introducing this
Act.
■ This development will also ensure that we have a more productive labour and
workforce as the bill seeks to ensure parity between physical illness and mental illness.
■ The Act has called for more humane treatment of people with mental illness.There
has been a huge leap from the MHCA,1987 in terms of even the language used, for
instance, the newAct does not use “detention” or “custodial care” anymore.