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Decoding the Mental Healthcare Act, 2017

This Article analyses the provisions and points out lacunae in the Mental Healthcare Act, 2017 in light of a recent case on these facts. It explores the mental healthcare space in the country and how efficient policy making in this sphere is the need of the hour today.
Recently, a 19 year old has moved the Hon’ble High Court of Delhi alleging that a psychiatrist practicing at the Vidya Sagar Institute of Mental Health (Neuro & Allied Sciences), New Delhi has breached his trust by informing his mother that he was ‘exploring his sexual orientation’. While being treated for an Obsessive Compulsive Disorder, the petitioner had confided in the psychiatrist about his sexual orientation, which she revealed to his mother even after the petitioner made multiple requests to maintain confidentiality.
Speaking out about one’s sexual orientation, especially in a society like ours, comes at a price. The consequences can be extreme, varying from social condemnation to visits to witch doctors! Many continue to associate being queer with being unnatural, mentally ill or worse, possessed. The prejudice meted out to those openly on the LGBTQIA+ spectrum is such that even after the decriminalization of Section 377 of the Indian Penal Code, 1860, many lead a life of secrecy and fear. In a backdrop like that, coming out, i.e. openly revealing one’s sexual orientation is a deeply personal decision, one that has an undeniable effect on every single aspect of life. For many such individuals, accepting oneself is as challenging and draining as finally being accepted by society.
Thankfully, due to mental illnesses becoming a part of mainstream conversation in urban India, individuals facing gender dysphoria are now seeking therapy. Persons suffering from other mental illnesses are also consulting mental health practitioners. Eminent American psychologist Dr. Edward Bordin has defined a good therapeutic relationship as one that consists of a bond of trust, care and respect. By robbing from the petitioner a chance to come out to his parents, despite making his lack of consent clear, the concerned psychiatrist has shown neither and has, in effect, defeated the very purpose he was in therapy for. This is one of the aspects that are governed by the Mental Healthcare Act, 2017 (hereinafter, the Act). A bare reading of the Act makes it clear that it is an ambitious legislation, but one with its fair share of loopholes.
Understanding Mental Health in the Indian Context 
The ground reality is quite grim. Mental illnesses may quite possibly be the next epidemic that rocks India. As per a report published by The Lancet Psychiatry, one in seven Indians suffers from mental illnesses of varying degrees. A report published by the National Crime Records Bureau titled the ‘Accidental Deaths and Suicides in India 2019’ states that in 2019, a staggering 1.39 lakh Indians died by suicide and these are only the cases that were reported.
The Act, with its provisions that aim at revolutionising the mental health discourse in India, is in itself lost in oblivion, with mental illnesses continuing to be stigmatized. The lack of awareness when coupled with apathy leads to disastrous consequences. Fulfilling the mandates of the Act would require a complete overhaul of the system and therefore, immense government expenditure. In a country that spends only a paltry 0.06% of its health budget on mental health, mental healthcare for all seems to be a distant dream.
In the Union Budget 2021-22, a lowly sum of Rs. 40 crores has been allocated for the National Mental Health Programme. In the post-covid world, with the majority of the population stuck at home, many grieving losses of dear ones, jobs and the smaller, simple joys of life, more people run the risk of falling prey to mental illnesses than ever before. Therefore, in times when mental healthcare needs to be prioritized, the hesitance of the government to loosen its purse strings seems counterproductive.
The lack of funding also puts on hold the process of capacity building and training of mental health professionals and with not enough competent individuals on the field, how do we ensure treatment for all? Increased budgetary allocation is thus, essential to give effect to the Act in letter and spirit. This money then needs to be put towards increased on-ground awareness campaigns, capacity building initiatives and setting up and running of counselling and treatment centres, as provided by the Act.
The shortage of qualified professionals is an issue in itself. As per a report on the National Mental Health Programme, it was found that there existed only 3,800 psychiatrists against a requirement of 11,500, while the number of clinical psychologists was a dismal 898 against the required 17,250. Out of this small pool of practitioners, most are occupied in private spaces because they are ineligible for a government job, another reason for the unfortunate condition of mental health at the grassroots. A masters in Psychology is not enough to be recognized by the government. A minimum qualification of an M Phil degree from an institute of repute such as NIMHANS is needed to be eligible for holding positions in districts. By doing so, the government is ousting a large pool of competent professionals from fulfilling goals that it has set up for itself.
Analysing the Mental Healthcare Act, 2017
The Act is a giant leap for the Indian mental healthcare space. It essentially follows a rights based approach. One of the most remarkable provisions is that it decriminalizes attempts to die by suicide under Section 115, notwithstanding the penal provisions prescribed under Section 309 of the Indian Penal Code, 1860. It provides for an empathetic viewpoint to be taken towards those who attempt to take their own lives. The section talks of suicide not as a criminal offence, but as an act attempted under severe stress and one that necessitates treatment, not incarceration.
The Act empowers the patient to make their own choice with respect to the preferred mode of treatment and allows for the choosing of a nominee who shall be allowed to make decisions on the patient’s behalf in case of mental incapacity. The Act, inter alia, has provisions that mandate that mental healthcare should be available to all and the mentally ill should be treated with dignity and prevented from cruel, inhuman and degrading treatment. It also promises free quality treatment to homeless persons or for those belonging to Below Poverty Line (BPL) sections of the society, even if they do not possess a BPL card. The Act also provides that healthcare professionals must maintain confidentiality.
The Act takes an important step by talking of mental health issues as an illness that needs to be treated, thereby breaking the notions and taboos associated with them. It is, however, tacit on the importance of prevention and promotion of mental and emotional well-being. The Act, thereby provides for clinical intervention at a very advanced stage. This can also be observed under Section 89 which provides for admission to psychiatry hospitals on the sole ground that there is a chance that patients may cause harm to themselves or others. This propagates the stigma that mental illness equates only to wild outbursts and dangerousness. It is a rather common observation that many mentally ill patients get constantly triggered by their immediate surroundings which worsens their situation. Section 89 essentially provides that the patient, instead of being rescued from such triggers, must be allowed to deteriorate. The definition of mental health professionals only includes clinical practitioners and not counsellors and psychotherapists which further defeats the possibility of early intervention. Therefore, the theme of ‘prevention is better than cure’ is found to be missing from the entire legislation.
The Act, by permitting patients to decide the course of their treatment, presumes that they will be well-versed with its aspects. This presumption can be dangerous, especially in India where not everyone enjoys the same levels of education. A clear procedure should be put in place that describes when can a patient make such a call and provides for treatment options available so that an informed choice can be made. Procedural safeguards also need to be placed in order to decide upon nominees and to ascertain mental incapacity.
The scope of the Act must be widened and made more inclusive. Procedural safeguards must be put in place and the lacunae suggested above be addressed. The government must start to invest in the mental healthcare space, especially in post-pandemic India. NGOs and other organisations working towards the cause of mental health also need to be recognized and promoted so as to ensure maximum on-ground implementation of the Act.  It is high time now that the government wakes up to the slow poison of mental illness that is creeping into the lives of its citizens. It needs to acknowledge that a truly Atmanirbhar Bharat can only be one that has a fit mind, body and soul.




Mannat Marwah is a third year law student at Symbiosis Law School, Noida. 

Content Picture Credit: Elite Medical Center







Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.

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