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Mental Health Rights in India: What you need to know

Updated: Jan 2, 2023

The Mental Health Care Act (MHCA) in India was enacted in 2017 and since then the entire landscape of mental healthcare has transformed in our nation. This new legislation has been designed with an even higher focus on mental healthcare from a rights-based approach. It has recognized the soaring levels of injustice people with mental illness have long been facing and for the first time, Access to mental healthcare was stated as a constitutional right of every individual. Changes like these in our legislation have brought about significant hope among people that live with mental illness, by reassuring that the government recognizes and to some extent penalizes mental health injustice.

But even though these laws exist, many people to this date are unaware that their rights are being exploited and that the act of injustice they're facing is a mere breach of law. This article has been written with the aim of spreading awareness about mental health rights and disseminating basic knowledge about this new legislation so that the next time you notice a violation of these rights, you can be the one to take action!



Basic guiding principles of MHCA:

  • All individuals have basic human rights, including the right to equality, liberty and dignity.

  • Every person must be given the autonomy to make the choices they consider the best for themselves and this extends to decisions about their mental health care and treatment.

  • Everyone has the right to full participation and inclusion in society.

  • No person can be discriminated against based on any grounds such as caste, class, ethnicity, sex, gender, sexual orientation, religion, disability, and social, political or cultural beliefs.

  • Every person has the right to receive any form of support to help them make their own decisions.


Rights of people with Mental Illness under MHCA 2017



1. Access to affordable health care

"Every person shall have a right to access mental health care and treatment from mental health services run or funded by the appropriate Government,” the new law declares. Basically, anyone living with a mental illness in India now has a right to good quality, affordable health care in a place near you. The doctors and staff at the facility should not discriminate against anyone on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability etc. If any of this is violated, you can in fact go to court to ensure that your rights are protected. And if you can’t afford it, the government is mandated to provide you treatment free of cost.


Public Health Centres (PHCs) will now have to gear up to identify and treat people with common mental disorders. PHCs and all tertiary centres will have to revamp their approach to care and move from a exclusively bio-medical approach towards one that is much more psycho-social. The Bill clearly indicates that access to care cannot only be restricted to pill popping but has to have support in terms of problem solving and access to welfare benefits.


2. Informed consent and power to take decisions

People living with mental illness can now make decisions regarding their health and treatment as long as they can understand the information related to the treatment and its consequences, and are able to communicate it.Which means no one else can forcefully admit anyone in a hospital if they are lucid and understand what is happening to them. The new law also mandates that if you are living with a mental illness, you have the right to know not only the nature of your illness, but also the proposed treatment and possible side effects.


3. Right to live in a community

Persons with mental illnesses have the right to live in a community and cannot be segregated from society. For those whom this is not possible, the government must provide legal and other necessary forms of support to help them live a regular life. Additionally, a woman in a mental health care institution cannot be separated from her child who is less than three years old, unless doctors feel that the child could be harmed.


4. Right to confidentiality

You do not have to divulge details of your illness or treatment to anyone. The right to confidentiality also applies to doctors treating you, and also prohibits the media from publishing any such information without the individual's consent.


5. Prohibited procedures

Electroconvulsive therapy (ECT), also known as ‘shock treatment’, cannot be performed on adults without the use of muscle relaxants and anesthesia. For children, the therapy is completely banned.

Hospitals are also barred from sterilising patients, chaining them or abusing them in any other cruel manner. Patients cannot be made to live in unsafe and unhygienic environments, and should have access to wholesome food, privacy and facilities for leisure, recreation, etc. and appropriate remuneration for the work they do in mental healthcare institutions.


6. Advance directive

A significant provision, the new law allows persons with mental illnesses to give an ‘advance directive’ for how they should be treated in case of a mental health situation. You can now appoint a person as a representative to take decisions on your behalf in case you’re not in a position to. Although there are bureaucratic trappings - the directive has to be certified by a medical practitioner registered with the medical board. And in case the nominated caregiver does not want to follow the directive, they will have to petition the medical board to override them.


7. Decriminalisation of suicide

Suicide will not longer be treated as a criminal offence. Persons who do attempt suicide will be considered to be under severe stress by the law.


8. Punishment for those who violate law

For first time offenders, violating the law can result in imprisonment for a maximum period of six months, or a fine which may extend to Rs 10,000, or both. For subsequent violations, the person can be imprisoned for a maximum of two years or can be fined anywhere between Rs 50,000 and Rs 5 lakh, or both. If you are stopped from exercising any of these rights, you can have free legal services to fight for your rights.


The Review Commission, will consists of a mixed group of people including everyone from judges to activists and even mental health survivors. "This group will ensure that power is in the hands of people seeking care besides being also greatly supportive to the needs of the caregivers. People who are affected are the ones to gain the most."


However, people are a little apprehensive about this "very aspirational, well-intentioned and very doable" bill. Very often, bills that are really well-intentioned do not translate into immediate change or even mid term or long term change on the ground if the Bill if it is not executed thoroughly.


References:


Government of India. (2017). Mental Healthcare Act 2017. https://www.indiacode.nic.in/bitstream/123456789/2249/1/a2017-10.pdf


Duffy, R. M., & Kelly, B. D. (2017). Concordance of the Indian Mental Healthcare Act 2017 with the World Health Organisation’s checklist on mental health legislation. International Journal of Mental Health Systems, 11(1). https://doi.org/10.1186/s13033-017-0155-1


Government of India. (2016). Rights of Persons with Disability Act 2016. https://www.indiacode.nic.in/bitstream/123456789/2155/1/A2016_49.pdf


Centre for Mental Health Law & Policy. (2021). Deconstructing the DMHP: Part I. https://cmhlp.org/wp-content/uploads/2021/08/Issue-Brief-DMHP-I.pdf


Government of India. (2014, October). National Mental Health Policy of India. https://nhm.gov.in/WriteReadData/l892s/6479141851472451026.pdf


Gulzar, A. (n.d.). Frequently asked questions about the national commission for allied and healthcare profession act 2021. Psytizenship. Retrieved December 7, 2021, from https://www.psytizenship.com/p/faqs-about-ncahpact2021




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