This article is written by Priyanka Cholera, a student of MKES College of Law, Mumbai University.
Table of Contents
The Guest Speakers:
Shambhavi Singh is a Child and Adolescent Psychologist and an Arts-Based Therapist. Alumni of Queen’s University Belfast she currently holds the post of Secondary Counsellor and Social-Emotional Learning (SEL) Curriculum lead in an International School at Pune. Her expertise lies in Mood Disorders, Behaviour Modification, and Parent Training.
Suveer Gaur is an alumnus of the University of Delhi and currently holds the position of Principal Associate at a Jaipur based law firm. He practiced litigation at the Rajasthan High Court and also has experience in Corporate Law.
Salonee Agarwal is an alumnus of the University of Delhi and currently practices litigation at the Delhi High Court.
The Host:
Sammanika Rawat, Head of Placements at LawSikho.
What is the Mental Healthcare Act, 2017? What leads to its implementation?
Suveer Gaur explained his take by quoting Joaquin Phoenix’s quote from the movie Joker, the problem with “The worst part of having a mental illness is people expect you to behave as if you don’t.” The data from the National Mental Health Survey says that 13% of the population suffers from it and expresses the grave scarcity of professionals as well as how Mental Health Act, 2017 was formed. India has taken steps for Mental Health since 1987 with The Mental Act, later in 2007 India signed The Convention on the Rights of Persons with Disabilities and its Optional Protocol undertaking that it will promote mental health and destigmatization as well as desegregation. In 2016 Rights of Persons with Disability Act was passed and all these efforts lead to 2017 and The Mental Health Act 2017 was passed. Regardless of these efforts not only there is ignorance among people but even legal professionals do not know about its existence.
What is the main difference between Mental Health and Mental Health Illness?
Expert Shambhavi Singh said mental health is a summation of thoughts, feelings and actions, and all our actions are based on it, every individual has mental health just as physical health. As people we all have bad thoughts sometimes, which is in phases it comes and goes, however when it is persistent and obstructs our routine and daily life it could be identified as a mental health illness. She also insisted that we don’t have to have a mental illness to take care for our mental health; it should be given equal importance as physical health.
People are more scared now than ever about their mental health, how do they deal with that?
Shambhavi said society supports happiness and has conditioned us to believe we should be happy all the time, the latter is impossible. Hence instead of being scared the best thing one can do is reflect on him. Fame and money have failed to make many people happy, and if you realise your mental health needs help the best way is to accept it and work on it without implying any judgment on yourself. There are spaces and professionals willing to help you. Acknowledge it, accept it and Do something about it.
Is there any universal access to Mental Health Care in India?
Salonee Agarwal gives her insight referring to the Mental Healthcare Act of 2017, discussing the rights of the person while receiving help with his mental health illness, emphasizing on the fact that securing the right of the person is the core substance of the act and these rights have been insisted by many psychiatrist journals too. The rights are – access to mental health care, community living, and protection from cruel inhuman and degrading treatment, and right from prevention of any kind of abuse, right to information access to medical records and confidentiality. She also pointed out how courts are having a staunch stance in favor of these rights mentioned above. There are state as well central mental healthcare centers that work to preserve the same rights and people who are illegally detained. The act gives the same platform of importance to mental illness as physical illnesses. Along with these rights, she explained in detail the Section 27 of The Act which provides free legal services, the magistrate, police officers and medical officers are responsible to inform the patient about this right.
What kind of support is needed for the caregivers of mentally ill people?
Shambhavi , gave her advice on the importance of support of caregivers, by giving her instances from her professional career as a psychologist, as when a person suffers from mental illness the whole family goes through a lot of problems both mentally and financially to care for the patient. The difficulty also stems from lack of training as professionals have invested years to adept with illness, which is unlikely in the case of family members. She also cited the case of her patient, where he had voluntarily decided to not take any help and in this situation to expect an untrained family to deal with it is extremely unfair. Hence support for caregivers is equally important as support for people with illnesses.
What are the provisions for capacity and nominated representatives within the Mental Healthcare Act?
Suveer said that as much as it is important to know “What Is Mental Illness”, to understand “What Is Not A Mental Illness” is also equally or more important as this concept is directly linked to capacity and advance directives. There are provisions of Advance Directive- which has similar features as a Legal Will does, an Advance directive is right to decide how or when he wants to be treated, this provision. The provision of Advance Directive is inspired by the debate around Euthanasia and Judgment on giving Living will a legal status.
What is not a mental illness is the example of how the absurd notion of “Homosexuality” being considered to be mental illness is prevalent in many societies. Hence it is important to know that belonging to certain groups with different beliefs or backgrounds or non-conformity of social norms should never be considered like mental illness. An important feature of the act i.e. ‘A person with an unsound mind shall not be considered as mentally ill’. Is it wise to give a person illness control of his course of treatment as a Registered Advance directive, which cannot be revoked by anyone but himself, considering the lack of information around him. Additionally, the onus is on Mental Health Establishments to find out about Advance Directive and not on family members. There should be a Central Registration System that can be accessible to all Mental Health Establishments.
What are the Mental Health Establishments and what is the Admission and Discharge process? What is the Mental Health Review Board?
Suveer said as any establishment which caters to the need for mental illness is considered to be mental health establishments. Additionally, The loopholes that exist around compulsion on registration and provision of temporary registration additionally the burden to the establishments regarding audits that has to take place every three years.
In the Admission process, whoever with illness approaches the establishment has to be admitted if diagnosed.in case of people not capable of deciding for themselves, their family can take a call for them or according to their Advance Directive, the procedure of admitting a minor is that two independent professional have to ascertain his illness and a legal guardian needs to accompany all the time.
The discharge process is voluntary in case of voluntarily admitted individuals, in case of admission by the nominee, the admission can only be for 30 days and readmission after 7 days of discharge. The same process in the case of minors.
Mental Health Review Boards are formed under The Act by The State, including a group of districts. The composition of the review board includes a person who has been as a district judge or can be, representatives from district administration, professionals have representation and two people who have been mentally ill. The board will conduct hearings for the patients at establishments. The loophole, he believes, is the cap on age being on very high.
What are the concerns of Mental Health Establishments regarding the patients and provisions of the Act?
Sambhavni, states that every patient’s requirements are different, disorders like addiction or substance abuse might require patients to stay at the facility, whereas disorders like OCD. According to her, the directives of the action despite being a well-intentioned clash with the practicality of situations, as no two disorders can be treated the same.
What can be the remedies for deficiency of the Act?
Salonee said that the remedies that are provided in the Section 28 of The Act and the hierarchy of authorities is one the deficiencies of the Act, the act is more procedural, and defines every aspect of authority involved, transfer of liabilities from the 1987 act. In cases of human rights many times the provision of law and the practical aspects are in collision. The budget regarding The Mental Health Care is quite low compared to the need that exists. The government has undertaken many programs regarding the planning, developing and implementing programs for promotion and awareness, prevention and destigmatization but there is lack of effort into the implementation of it.
Is there active participation from people and schools regarding awareness of mental health?
Sambhavi, said that the current Act of 2017 has been transcended from the Lunacy Act. This is a positive sign of awareness and acceptance. The age of social media has taken the right step into the direction of change, and now is the time to Act in real life, but Prevention needs to be more important as currently the act is completely based on the aftermath of mental illness. Hence the work needs to begin at the awareness stage. Often counselors at government institutions are not paid well, that needs to change. Especially in school, there have to be trained counselors to teach children how to change the train of thought. We’re looking at the problem but not acting on it in our personal lives.
What about homeless people suffering from Mental Disorders, what can be done?
Salonee, directs to Section 100 of the Act which gives authority to local police to take care of the person by filing the FIR and taking them to the establishment and ensuring them are assessed. In cases where the person is below the poverty line, the onus lies on the state to fund his care.
Questions by audience
Are there any State or Central Mental Health Authorities in our country?
Salonee answers it as Chapter 6 and 7 has provided guidelines on it. And we do have it in our country. The central mental health authority is difficult to trace virtually and not all states have it.
What are the loopholes regarding Guardianship or other loopholes in the Act?
Suveer answers it as there is too much lack of awareness to count on guardians to take the right step is not ideal. Also, the act has decriminalized an attempt to suicide.
There should be the promotion of the concept of insurance in terms of mental illness, considering therapy is not cheap. There is the provision and it has been promoted by the Supreme Court to make it mandatory.
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