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MENTAL HEALTH ACT, SALIENT FEATURES,

OBJECTIVES, CRITIQUE AND FUTURE DIRECTIONS
Dr. J. K.
Trivedi
1
INTRODUCTION
Mental health legislation is essential for protecting the rights and dignity of persons with mental
disorders, and for developing accessible and effective mental health services. Effective mental
health legislation can provide a legal framework to integrate mental health services into the
commnity and to overcome stigma, discrimination and e!clsion of mentally"ill persons.
#egislation can also create enforceable standards for high $ality medical care, improve access to
care, and protect civil, political, social and economic rights of mentally"ill individals, inclding a
right of access to edcation, hosing, employment and social secrity.
%rthermore, mental health law can establish gidelines throgh which a contry develops its
mental health policy, or reinforce previosly established mental health policies that seek to
provide effective and accessible mental health care throgh the commnity.
Mental health legislation plays an important role in implementing effective mental health services,
particlarly by tili&ing political and poplar will to reinforce national mental health policies.
Enactment of mental health legislation can improve fnding of mental health services, create
accontability for those responsible for providing mental health services and overcome
breacratic gridlock to ensre compliance with mental health policies and directives.
'() and international giding principles for mental health care mandate that all hman rights,
inclding the right to privacy, informed consent, confidentiality, freedom from crel and nsal
treatment and nondiscrimination shold be garanteed throgh mental health legislation.
*n '() (E+#T( ,E-),T ./0011 it was reported that 234 of contries in 5oth"+sia have
mental health legislation and rest of the 664 have no sch law. Mental health care in *ndia over
the last /7 years has been an intense period of growth and innovation.
*ndia enters the new millennim with many changes in the social, political, and economic fields
with an rgent need for reorgani&ation of policies and programmes. The mental health scene in
*ndia, in recent times, reflects the comple!ity of developing mental health policy in a developing
contry.
The 8ational (ealth -olicy ./00/1 clearly spells ot the place of mental health in the overall
planning of health care.These developments have occrred against the over /7 yr of efforts to
integrate mental
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1. MD .-sych.1, M,9 -sych .:.K.1 -rofessor, Department of -sychiatry, K; Medical
:niversity, #cknow"//2006, *ndia
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health care with primary health care .from 1<371, replacement of the *ndian #nacy +ct 1<1/ by
the Mental (ealth +ct 1<=3, and the enactment of The -ersons with Disabilities +ct 1<<7 focsing
on the e$al opportnities, protection of rights and fll participation of disabled persons. The
growth of volntary action for mental health care in the areas of sicide prevention, disaster
mental health care, setting p of commnity mental health care facilities, movement of family
members .care givers1 of mentally ill individals, drg dependence, pblic interest litigation to
address the hman rights of the mentally ill> research in depression, schi&ophrenia and child
psychiatric problems are other ma?or developments.
The rapid growth of private psychiatry with associated spread of services to peripheral cities and
small towns and challenges of reglation is another significant development of the last 10 years.
+gainst the above positive developments, the main challenges are the e!tremely limited nmber
of mental health professionals .abot 10,000 professionals of all categories for one billion
poplation1 and the very limited mental health service infrastrctre .abot 60,000 psychiatric
beds for over a billion poplation1> limited investment in health by the government .estimated
pblic sector e!penditre on health is only 13 4 of total health e!penditre1 and problems of
poverty .abot 604 of poplation live below poverty line1 and low literacy with associated stigma
and discrimination for persons with mental disorders .Mrthy, /00@1.
INDIAN MHA (1987), INADEQUACIES AND SUGGESTED IMPROVEMENTS
-rior to 1<<6, *ndian #nacy +ct, 1<1/ was governing the mental health in *ndia. *n 1<@3 when we
got independence and *ndian -sychiatric society came into e!istence, *#+, 1<1/ was considered
an inappropriate act for mentally ill. 5o *-5 drafted a mental health bill and sbmitted it to govt. of
*ndia
1<70 bt it took another /= years for govt. to present it in the #ok 5abha which was sbse$ently
referred to J-9. Aarios committees established didnBt conslt *-5 at any ?nctre thogh 10
psychiatrists were invited to give oral evidences. +fter a gap of another = years the bill was
adopted as Mental (ealth Cill by ,a?ya 5abha in 1<=2 and the #ok 5abha in 1<=3. This bill
received -residentBs assent on May, 1<=3 bt another 2 years were wasted before finally
implementing the act in +pril
1<<6.
T!"#$%&'&($!) *)!+ $% ,-! ./,
8ew term -reviosly sed terms
-sychiatric hospital 8rsing home +sylm
Mentally ill person #natic
Mentally ill prisoner 9riminal #natic
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1. ,eception orderD Means an order for admission and detention of a mentally ill person in a
psychiatric hospital or nrsing home.
/. -sychiatric hospital or nrsing homeD *t is a hospital for the mentally ill persons maintained by
the
government or private party with facilities for otpatient treatment and registered with appropriate
licensing athority. +dmitting a mentally ill to a general nrsing home is an offence.
6. Medical officerD + registered medical
practitioner.
@. Medical officer in"chargeD *s a medical officer who is in"charge of a psychiatric hospital or
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nrsing home.
7. Mentally ill personD *s a person sffering from mental disorder, other than mental retardation,
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needing treatment.
2. Mentally ill prisonerD *s a mentally ill person, ordered for detention in a psychiatric hospital, ?ail
or other places of safe cstody
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./,
1.To establish central and state athorities for licensing and spervising the psychiatric
hospitals.
/.To establish sch psychiatric hospitals and nrsing
homes.
6.To provide a check on working of these
hospitals.
@. To provide for the cstody of mentally ill persons who are nable to look after themselves and
are dangeros for themselves and or, others.
7.To protect the society from dangeros manifestations of mentally
ill.
2.To reglate procedre of admission and discharge of mentally ill persons to the psychiatric
hospitals or nrsing homes either on volntary basis or on re$est.
3.To safegard the rights of these detained
individals.
=.To protect citi&ens from being detained
nnecessarily.
<. To provide for the maintenance charges of mentally ill persons ndergoing treatment in sch
hospitals.
10.To provide legal aid to poor mentally ill criminals at state
e!penses
11.To change offensive terminologies of *ndian #nacy act to new soother
ones
The advantage of the Mental (ealth 1<=3 is that the act is conceptally definitely many steps
ahead of *#+ .*ndian #nacy +ct1, 1<1/, trying to keep pace with advances in psychopathology
and psychopharmacology. The fact that even for decades after *ndian received its
independence, we were contining with an otdated and anarchic law speaks volmes abot the
importance of this act. (owever, whatever fallacies that have come to the fore ever since this law
was enforced are de to following factsD
E +t the time of conception of law, private psychiatry was still in infancy and the growth and
development of private psychiatry was neither foreseen nor predicted. That might be the
reason the law in its crrent form seems to be biased against private psychiatry.
E The field of psychiatry itself has grown by leaps and bonds and the scope of this branch has
widened beyond the hori&ons predicted before. (ence so many changes have crept into this
field that the law after two decades already seems otdated.
(owever all this criticism shold not shift or focs from the fact that this law at the time of
its
enactment, was definitely a breakthrogh and distinctly miles ahead of the then obsolete and
anarchic *ndian #nacy +ct,1<1/.Aarios 0&)$,$5! /-.%(!) in the M(+, 1<=3 areD
E More hmane approach to problems of mentally ill persons by changing the terminology e.g.
lnatics and criminal lnatics have been replaced by the term mentally ill person and mentally
ill prisoner etc. and new chapters on management of their property and protection of hman
rights have been inclded
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E 9reation of 9entral and 5tate Mental (ealth +thorities" a welcome step to safegard the
interests of the mentally ill person nder one athority
E -rocedre for admission and discharge of volntary patients have been simplified and
liberali&ed. *n this act, no consent from two visitors is re$ired as well as no written re$est is
re$ired
E Minor can be admitted with the consent of a gardian nder this act. This provision is not
there in
the *ndian #nacy +ct, 1<1/
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E 5eparate provision for admission of involntary patients nder category F+dmissions :nder
5pecial 9ircmstancesG
E 5pecial centres for special poplation like drg addicts, nder 12 years, mentally ill prisoners
etc.
E Establishment and maintenance of psychiatric hospitals and psychiatric nrsing homes in
private sector which was not in the earlier law
E Discharge procedre have been made easy and more
simplified
E There are new different addition in this law like protection of hman rights of mentally ill
persons, penalties, cost of maintenance and management of properties of mentally ill persons
E -rohibition on any research on sb?ects withot proper
consent.
C"$,$/$)#
+lthogh this act has provided some respite both to the patients and the professionals bt has
become inade$ate with time and has varios shortcomings which act as a barrier in providing
mental health services .-rateek ,astogi, /0071. The legislation does not promote commnity"
based mental health care and widespread access to mental health services or incorporating
mental health care into primary health care. The Mental (ealth +ct shold be amended so that it
gives priority in protecting the rights of persons with mental disorders, promotes development of
commnity"based care and improves access to mental health care.
C"$,$/.' .)0!/,) &6 MHA 1987 .) . 8-&'!
1. The act doesnBt reflect the govt. policy on mental health framed in 1<3= as well as Mental
(ealth -rogramme,1<=3
/. 8o attention to '() gidelines
6. #egal considerations have been given more weightage in comparison to medical ones
@. %ailed to remove the criminal flavor by keeping the power of criminal cort to e!ert its
control over admissions and discharge of non criminal mentally ill persons
7. 8o importance to family and commnity psychiatry
2. There are no provisions for pnishing the relatives and officers re$esting nnecessary
detention of a person to sch hospitals
3. )nce a person is admitted to mental hospital he is termed insane or mad by the society.
There shold be provisions in the act to edcate the society against these
misconceptions
=. Mch stress is laid on hospital admission and treatment. This again increases the cost of
health care. 8o provisions are made for home treatment
<. The act has no provision for transportation of an nwilling patient e!cept by police
Mental health act is divided into 10 chapters consisting of 98 sections. The short details of the
chapters, the inadequacies in them and suggested improvements are being described below:
C-.0,!" ID Deals with preliminaries of the act, definitions and provides for change of offensive
terminologies sed in *ndian #nacy act 1<1/.
uggested changes:
9hange of older terminologies to newer ones might be good from practical aspect as it will be
helpfl in removing the social stigma attached to the illness. This change shold be implemented
in practice and not on paper.
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1. Medical officerD F+ registered medical practitioner.G
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E +ccording to law can be even an +yrvedic or homeopathic medical officer in
;overnment service whereas hould be a qualified ps!chiatrist9
/. Mentall! ill personD Fperson who is in need of treatment by reason of any mental disorder
other than mental retardationG
E The definition does not specify the types of mental illness to be inclded> this can lead
to misse of the term and is attached with stigma for the person labelled Hmentally
illH.
E Mentally retarded sb?ects have been e!clded. Mentally retarded sb?ects need
separate services in the form of rehabilitation, prevention etc. + law for helping
victims of mental illness shold not e!clde victims of profond mental retardation
from its prview, as they too are in great need for treatment and care. They too
shold have access to psychiatric (ospitals. *f the law presmes that profond
mentally retarded persons cold be ade$ately taken care of in the e!isting
instittions for the mentally retarded, it is certainly not based on grond realities.
6. "icensed ps!chiatric hospital or licensed ps!chiatric nursing home: #means a psychiatric
hospital or psychiatric nrsing home as the case may be licensed, or deemed to be licensed,
nder the +ctG
I Definitions of psychiatric hospitals and psychiatric nrsing homesG .5ection/$1
e!cldes government hospitals, and is discriminatory. *n this case a niform policy
shold be adopted.
C-.0,!" II Deals with the procedres for establishment of mental health athorities at central and
state levels.
uggested changesD #icensing athorities do not have a doctor who may be in a better position to
assess the facilities and services of these centers.There shold be bdgetary provisions in the
law.
ee appendi$ % for
details
C-.0,!" IIID *t lays down the gidelines for establishment and maintenance of psychiatric hospitals
and nrsing homes. There is a provision for licensing athorities to process applications for
license which have to be renewed every five years.
uggested changesD 8o mention is made of incorporating ;eneral hospitals and centers in this
act rather they are prohibited. 5ch hospitals if taken along may provide a better health care.
#icensing process shold be made simpler. -rovision shold be there for checking the working
of licensing athorities and powers vested in them to be limited.
C-.0,!" IVD *t deals with the procedres of admission and detention of mentally ill in psychiatric
hospitals.
&or a detailed flowchart of admission, discharge and leave for absence procedure see appendi$
%%% ' %(
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uggested changesD
1. Emergency sitationsD To be an emergency, it mst be demonstrated that the time
re$ired to
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follow sbstantive procedres wold case sfficient delay and lead to harm to the
concerned person or others
E *nvolntary admission and treatment only on the assessment and advice of a
$alified mental healthJmedical practitioner
E Emergency treatment mst be time limited .say within one week1 and sbstantive
procedres for involntary admission and treatment if necessary mst be initiated
as soon as possible and completed within this period
E Emergency treatment shold not incldeD Depot in?ection, E9T, 5terili&ation
-sychosrgery and other irreversible
treatment.
/. +dmission nder special circmstances .involntary patients1 .5ection 1<1. There shold
be set 9riteria for involntary admission.
6. -rocedre for involntary admission .sggestions1D
I Two accredited medical practitioner, of which one shold be a psychiatrist, to
certify mental disorder.
I -rovision for reglar time bond review of involntary admissions by review body.
Discharge procedres to be fle!ible and easy, to prevent nnecessary
detention
I To review processes regarding people who are admittedJtreated involntarily.
Establishment of independent and impartial cort like body with a ?dicial fnction
.Mental (ealth Tribnal1. This body to assess each involntary admission and
treatment. *n developing contries like ors paper review of straightforward cases
can be done and hearings only for more contentios cases to entertain appeals
against involntary admissionJtreatment
I %rther detention re$ires reception order from a magistrate
I )verly legal, cmbersome and complicated for patients and their family
I Magistrate to take final decisionJno mention of a
psychiatrist
,eview Cody shold review the cases at periodic intervals and shold have the
power to discharge the patients if withheld nnecessarily. +thori&e or prohibit
intrsive and irreversible treatment for e!amples -sychosrgeryJ5terili&ation.
*n developing contries like ors with limited resorces the review body
mentioned
previosly can perform the following
fnctionsD
E ,eglar inspection of mental health facilities
E ,eglar monitoring of patients welfare and well being
E -roviding gidance for minimi&ing intrsive treatment
E Keeping records and statistics
E To make recommendations to concerned athorities
C-.0,!" VD *t deals with the inspection, discharge, leaves of absence and removal of mentally ill
persons.
uggested changesD This section does make provision for appointment of visitors for every
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psychiatric hospitalJnrsing home. H*nspecting )fficerH means a person athorised by the 5tate
;overnment or by the licensing athority to inspect any psychiatric hospital or psychiatric nrsing
home. The nmber of visitors shold not be less than five, of whom at least one shold be a
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psychiatrist or at least a medical officer and two social workers. (owever most of the time
inspecting officer is a medical officer withot proper training or gidelines to condct the
inspection of a psychiatric hospitalJnrsing home.
+lthogh the act provides for a simpler discharge procedre bt no provisions are made for after
discharge care and rehabilitation, of patients. Mch stress is laid on hospital admission and
treatment.This again increases the cost of health care. 8o provisions are made for home
treatment.
C-.0,!" VID *t deals with the ?dicial in$isition regarding alleged mentally ill persons possessing
property and its management.
ee appendi$ %% for
details
uggested changesD -roperty and inheritance rights are protected nder *ndian law althogh the
legal determination of capacity to assme fll control of oneBs property or to control oneBs inherited
assets does not re$ire the opinion of a medical professional, ths increasing the possibility that
sb?ective bias cold prevent individals recovered from mental illness from controlling their own
assets.
C-.0,!" VIID *t deals with the maintenance of mentally ill persons in a psychiatric hospital or
psychiatric nrsing homes.
uggested changesD 8o provision for patients with no estate and no relative, the state shold be
made responsible for sch patients. Mental health legislation shold inclde integration with
8M(- and 8;)Bs to improve commnity and primary psychiatric services. #egislation shold
ensre the introdction of mental health interventions into primary health care. *n developing
contries like ors delivering mental health services throgh primary health services is the most
viable strategy. *ntegrated care redces stigma associated with mental illnesses and also
promotes mental health
C-.0,!" VIIID *t deals with the protection of hman rights of mentally ill
persons.
uggested changesD )nce a person is admitted to mental hospital he is termed insane or mad by
the society. There shold be provisions in the act to edcate the society against these
misconceptions. *ndian common law provides a patient with a right to informed consent and
confidentiality of patient records, althogh the Mental (ealth +ct only re$ires informed consent
for e!perimental treatment. *t is provided that research on sch sb?ects can be carried ot by
consent of gardian or if sch research is of direct benefit to him for prposes of diagnosis or
treatment. *s it not like treating them as inanimate ob?ectsI This provision violates hman rights
and shold be amended.
*ndian law severely crtails the civil and political rights of mentally ill individals. (ind and -arsi
personal laws preclde the right of mentally ill individals to marry and sanction divorce if the
spose is likely to remain mentally"ill. FMadness certificateG of the mental health professionals are
sed by hsbands to divorce, desert or throw ot wives from their matrimonial homes. 'omen
are admitted in the mental asylm as per the directives of the Mental (ealth +ct, 1<=3.
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C-.0,!" VIII ; C-.0,!" I<D These sections pertained to F-enalties and -rocedresG and
FMiscellaneosG no changes are sggested for
these.
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.#!%+#!%,)
There shold be provision in the law for treatment of the destitte. The act shold also ensre that
the (man ,ights of the mentally ill patients are protected and that it follows the '() gidelines.
There shold be provisions in the law for the after care of the mentally ill after discharge from the
hospital to ensre their fll integration back into the society.
NATIONAL MENTAL HEALTH PROGRAMME, THE BENEFITS, THE FALLACIES AND
SCOPE FOR IMPROVEMENT
*ndia is one of the few contries that have a 8ational (ealth -olicy .8(-, /00/1 that mentions
mental health, as well as a 8ational Mental (ealth -rogram .8M(-1 and a dedicated Mental
(ealth +ct 1<=3 .M(+1. Cy identifying -(9s as the epicentre for psychiatric treatment, 8M(-
.1<=/1 attempted to integrate mental health into general health. *t also proposed to
deinstittionali&e to a commnity rather than hospital based model. (owever, by /00/, only 100
of 200 districts were broght nder 8M(-. This failre was de to poor fnding, inade$ate
ndergrad crriclm in psychiatry, manpower shortage, and poor evalation, non"
implementation of M(+ and privatisation of mental health care.
The 11th -lan with a ,s1000 cr. allocation for mental health proposes to cover the remaining 700
districts by the end of the -lan period. (owever, mental illness is a progressive disorder> for every
100 districts covered each year, there will be a backlog of districts withot mental health services
)source ww w .acmiindia.com*.
-sychiatrists insist that FEarly treatment is early recoveryG, bt this has escaped the attention of
health e!perts in the -lanning 9ommissionD for this oversight, victims in rral areas are likely to
pay the price. 'e do appreciate the manpower constraints" arond @700 trained mental health
workers for @0 million mentally disabled patients. That is precisely why global strategies call for
integration into general health programs. 8(,9 .1<<<1 report says that there is on an average,
1 -(9 for every
60,000 poplation, 1 doctor for every 6000 poplation, one male and female worker for every 6
to
7000 poplation. 8,(M proposes to cover 1= 5tates nder the 11th -lan. The +5(+ .+ccredited
5ocial (ealth +ctivists1 volnteers are best sited to detect early and typical symptoms of mental
disorders seen in the -(9s.
Cesides, the need of the hor is sitable and ?st allocation of resorces at grassroots levels,
greater nmber and better trained workers at -(9 level, fi!ing the responsibility for ade$ate
tili&ation of resorces, strong monitoring mechanisms with legal powers and provision of reglar
review. *t wold also be highly sefl to take help of 8;)Bs and to involve mass media in these
endeavors.
CONCLUSION
Mental health legislation shold be viewed as a process rather than as an event that occrs ?st
once in many decades. This allows it to be amended in response to advances in the treatment of
mental disorders and to developments in service delivery systems. (owever, fre$ent
amendments to legislation are not feasible becase of the time and financial resorces re$ired
and the need to conslt all stakeholders.
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+ possible soltion is to lay down reglations that are separate from legislation bt can be
enforced throgh it. #egislation can inclde provision for the establishment of reglations and can
otline the
'() .'
-ark K. -
-rateek
+ntony J
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procedre for modifying them.The most important advantage of reglations is that they do not
re$ire lawmakers to be repeatedly voting for amendments.
Mental health legislation is essential for complementing and reinforcing mental health policy and
providing a legal framework for meeting its goals. 5ch legislation can protect hman rights,
enhance the $ality of mental health services and promote the integration of persons with mental
disorders into commnities.
The basic fnction of any law is to frame rles and reglations which are least restricting and will
enable the weak to en?oy all their civil rights withot any hindrances. + more penal and less
therapetic service wold only increase the isolation of psychiatry from other clinical specialities.
REFERENCES
?Mental (ealth
Delhi, /003.
+ct, 1<=3. Care act with short comments> 9ommercial #aw -blishers,
? arkBs te!tbook of -reventive and 5ocial Medicine. 13th ed., Jabalpr. Canarsidas
Chanot -blisher. /00/.
? , + decade with the mental health act, 1<=3. *ndian Jornal of -sychiatry.
?,astogi ./0071D Mental (ealth +ct 1<=3" +n +nalysis. J*+%M> /3.61.
? orld (ealth )rgani&ation1D Mental (ealth +tlas. ./0071.'() -ress, ;eneva.
?
'orld (ealth )rgani&ation ./0011. The 'orld (ealth ,eport ./0011D Mental (ealthD 8ew
:nderstanding, 8ew (ope.
?
'orld (ealth)rgani&ation ./0071. '() ,esorce Cook on Mental (ealth, (man
,ights
and #egislation. -art of the Mental (ealth -olicy and 5ervice ;idance -ackage.
+vailable atD httpDJJww w .wh o .intJmentalKhealthJpolicyJenJ.
?'orld (ealth
?
'orld (ealth
)rgani&ation ./0071. Mental (ealth +tlas /007.
)rgani&ation ./007e1. Mental (ealth -olicy, -lans and -rogrammes. -art
of
t h e M e n t a l ( e a l t h - o l i c y a n d 5 e r v i c e ; i d a n c e - a c k a g
e httpDJJww w .wh o .intJmentalKhealthJpolicyJenJ .accessed Jly, /00=1.
? , Mental (ealth *n The 8ew MillennimD ,esearch 5trategies %or *ndia, *ndian
J
Mrthy ,5
Med ,es 1/0, +gst /00@, pp 26"22.