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STUDY OF MENTAL HEALTH LAW

AND THE NEED FOR ITS REFORM


IN INDIA
Divya Suresh | Radhika Agarwal | Swati Agarwal | Tushar Tarun
Introduction
 Mental health law is the area of the law that is applied
specifically to persons with a diagnosis or possible
diagnosis of mental illness, and to the people involved in
managing or treating others in this situation. Clearly it is a
very crucial area of human well-being. This is a subject
many do not want to talk about, so strong is the stigma
attached to it.
 The Mental Health Act, 1987 - primary law applicable to
mentally ill persons in India, providing for treatment and
care of mentally ill persons and makes provisions with
regard to their affairs, property etc. As will be seen
subsequently in the course of this paper, it adopts a
‘medical school perspective’ in defining mentally ill
persons; at the same time parts of it incorporate humanist
elements as well.
 The progress in the field of Psychiatry and awareness of the
rights of mentally challenged persons, as well as
consciousness of human rights of the mentally ill has
What is mental illness?
Serious mental disorders like psychosis, severe
depression, retardation etc affect only a small
section of the population;
Sizeable population suffers from common
mental disorders like anxiety, depression,
fear, somatic symptoms due to alcohol and
drug abuse etc.
What is mental illness?
The World Health Organization prescribes that
these common disorders also be included in
the ambit of mental illness, as they affect a
person’s mental wellbeing and health, even if
to a less severe degree.
World Federation of Mental
Health
Three-point method to define mental health:
Are you comfortable within yourself?;
Are you comfortable with other people?;
Are you able to meet life’s demands?. If the
Answer to all three is affirmative, then one is
mentally healthy.
Rights of the Mentally Ill and
Stigmas Attached
 One of the greatest lacuna in relation to mental health issues
relates to awareness about the same. Firstly, there is a dire
need to educate the general public on the problems faced
by the mentally ill and how, with the correct environment
and help, they can potentially lead meaningful lives. In
addition, mentally ill persons, their families, health workers,
lawyers, and other persons working towards protection and
promotion of mental health often have limited knowledge
about the nature of such illness, or about the rights of the
person.
 The crux of mental health care is that society has some moral
and ethical duties to provide care to the mentally sick; this
is apart from the legal duty to provide care. The mentally ill
person deserves the same privileges enjoyed by normal or
healthy human beings. Thus the human rights of a mentally
ill person are two fold – first those that provide them the
same privileges enjoyed by other members of the
community, and secondly those that ensure them the right
to protection against exploitation or degradation of any
kind
RIGHTS
Human Rights –
Same privileges enjoyed by other members of
the community
Right to protection against exploitation or
degradation of any kind.
right to be treated with respect
right to privacy
right to voluntary admission in a mental
health care institution
RIGHTS OF THE MENTALLY ILL
Human Rights –
Right to receive care and rehabilitation in the
community
Right to give informed consent for any
treatment
Right to socio-economic security
Right to legal assistance and finally
Right not to be subjected to any kind of social
exclusion or ostracism.
UN General Assembly: Fundamental
Freedoms and Rights
All persons have the right to the best available
mental health care, which shall be part of the
health and social care system.
All persons with a mental illness shall be
treated with humanity and respect for the
inherent dignity of the human person.
UN General Assembly: Fundamental
Freedoms and Rights
All persons with mental illness have the right
to protection from economic, sexual, and
other forms of exploitation, and degrading
treatment.
There shall be no discrimination on the
grounds of mental illness.
Every person with a mental illness shall have
the right to exercise all civil, political,
economic, social and cultural rights
recognized by the Universal Declaration of
Human Rights.

LEGAL FRAMEWORK CONCERING
MENTAL ILLNESS

This subject includes issues in both
common law and statute law.
Common law, which is based on case law
rather than statutes, issues include such
concepts as mens rea, insanity defences,
sane and insane automatism amongst
others.
Statute law usually takes the form of a
Mental health act or equivalent. An
example is the Mental Health Act 1983 in
England and Wales, the Indian Mental
Health Act etc.

SIGNIFICANCE OF MENTAL HEALTH
LEGISLATION
In some jurisdictions court orders are
required for compulsory treatment while in
others treating psychiatrists may treat
compulsorily by following set procedures.
In the latter case there are usually
methods of appeal or regular scrutiny to
ensure compliance with the law.
Not all countries have mental health acts.
The World Health Report (2001) lists the
following percentages by region for
countries in those regions with and
without mental health legislation
SIGNIFICANCE OF MENTAL HEALTH
LEGISLATION
Regions With Legislation No Legislation
Africa 59% 41%

The Americas 73% 27%

Eastern Mediterranean 59% 41%

Europe 96% 4%

South-East Asia 67% 33%

Western Pacific 72% 28%


WHO GUIDELINES
WHO provides support to countries in developing
and implementing progressive mental health laws
that promote and protect the rights of people with
mental disorders. Through direct technical assistance
to countries, regional and national training
workshops, and distance learning programmes, WHO
provides technical information and training on
international human rights standards related to the
rights of people with mental disorders, as well as
practical guidance on steps required to assess,
develop and implement progressive mental health
law. A number of materials and tools have been
developed to provide a clear framework for technical
assistance and training in this area, including the
WHO Resource Book on Mental Health, Human Rights
and Legislation and the WHO Checklist on Mental
Health Legislation.
WHO GUIDELINES
Promotion of Mental Health and Prevention of Mental
Disorders
Access to Basic Mental Health Care
Mental Health Assessments in Accordance with
Internationally Accepted Principles
Provision of the Least Restrictive Type of Mental
Health Care
Self-Determination
Right to be Assisted in the Exercise of Self-
Determination
Availability of Review Procedure
Automatic Periodical Review Mechanism
Qualified Decision-Maker
Respect of the Rule of Law
Policy Perspective
Hospitalization
Family/Community Care Module
Counseling patient’s family
US and UK Law
U.K.
 Major Enactments
Care Standards Act, 2000
Disability Discrimination Act, 1995
Health Act, 2006
Health Act, 2009
Health and Social Care Act, 2008
Mental Capacity Act, 2005
Mental Health Act, 2007
History: UK
 The Lunacy Act 1890 granted power to hospital
or asylum power to detain “lunatics, idiots
and persons of unsound mind”.
 The Mental Deficiency Act 1913 made few
amendments and gave power establishing
Board of Control to monitor these asylums.
 Mental Health Act 1959 is the current law which
got amended by Mental Health Act 2007
Mental Health Act-UK
 mental disorder - any disorder or disability of
the mind
– Pre-amendment - mental illness, arrested or
incomplete development of mind,
psychopathic disorder and any other disorder
or disability of mind
 Person with learning disability is not suffering
from mental disorder
 Approved Social Worker – approved Mental
Health Practitioner
– Pre –amendment – social worker with
extensive knowledge of working with people
of mental disorder
Mental Health Act-UK
Mental Health Act Commission
It is authorised to keep under review all
aspects of the care of formal patients.
It can investigate complaints, appoint panels
to give a second opinion on consent to
treatment (including treatment given to
community patients and certain informal
child patients).

Mental Health Act-UK
 Compulsory admission to Hospital or
Guardianship for patients not involved in
Criminal Proceedings
– Maximum duration of detention – 28 days
– Application for admission – by Approved
Mental Health Practitioner or nearest relative
– Discharge by –
 Clinician
 Hospital manager
 Nearest relative with 72 hours notice
 Mental Health Review Tribunal
Mental Health Act-UK
Admission for treatment
Duration – 6 months extended by 6 months
then for a year and further
Guardianship
Duration – six months extended by six months
AMHP or nearest relative can be guardian
Two doctors must confirm that the patient
need guardian
Mental Health Act-UK
Warrant for search and removal of patient in
case there is reasonable belief that patient -
is being ill-treated or neglected
is unable to care for him or herself and lives
alone
 In that case a magistrate can issue a warrant
authorising a police officer (with a doctor and
AMHP) to enter any premises where the person
is believed to be and remove him or her to a
place of safety.
Mental Health Act-UK
 Patients involved in criminal proceedings
– 28 days renewable to further 28 days
(maximum 12 weeks)
– Crown Court or Magistrates' Court remands
the accused person to hospital on evidence
from one doctor that –
 there is 'reason to suspect' that he/she is
suffering from a mental
 it would be 'impracticable' for a report on his or
her mental condition to be made if he/she were
remanded on bail.
Mental Health Act-UK
 Transfer of patient to hospital from prison
– Duration of detention – 6 months renewable
by 6 months and then 1 year till treated
 the Home Secretary orders the transfer, if
satisfied by evidence from two doctors that –
– an offender has a mental disorder of a nature
or degree that makes detention for medical
treatment appropriate
– appropriate medical treatment is available for
him/her.
Mental Health Act-UK
 Supervised Community Treatment
– Patient can be put under SCT when his/her formal
detention ends
– CTO must be supported by AMHP
– Patient must be liable to be detained
– a CTO does not authorise treatment without
consent of the community
– a patient may be held for up to 72 hours. After this
time, either the patient must be released back
into the community or the CTO revoked
– If it is revoked, he or she once again becomes
'liable to be detained' and treatment can
continue
Mental Health: USA
Is covered by various state legislations like
Alaska,  Illinois etc.
Mental Health Courts
Veteran Treatment Courts
Mental Health Parity Act
Veteran Treatment
Courts: USA
 Established to address the needs of veteran
defendants with substance dependency
and/or mental illness issues
 For non violent felony or misdemeanour
offenses
 Eight Such courts in existence
– Buffalo, New York; Orange County, California;
Tulsa, Oklahoma; Santa Clara County,
California; Rochester, New York; Anchorage,
Alaska; Madison County, Illinois; and San
Bernardino County, California
Mental Health Court
 More than 150 in number
 A specialized court which employs a problem solving
approach to court processing in lieu of more
traditional court procedures for certain defendants
with mental illnesses;
 Judicially supervised, community based treatment plans
for each defendant participating in the court, which a
team of court staff and mental health professionals
design and implement;
 Regular status hearings at which treatment plans and
other conditions are periodically reviewed for
appropriateness, incentives are offered to reward
adherence to court conditions, and sanctions are
imposed on participants who do not adhere to the
conditions of participation;
 Criteria defining a participant’s completion of
(sometimes called graduation from) the program.
Mental Health Court
 Essential Elements
– Planning & Administration - A broad based group of
stakeholders representing the criminal justice,
mental health, substance abuse treatment, and
related systems and the community guides the
planning and administration of the court.
– Target - Eligibility criteria is to address public
safety and consider a community’s treatment
capacity, in addition to the availability of
alternatives to pre-trial detention for defendants
with mental illnesses. Eligibility criteria also take
into account the relationship between mental
illness and a defendant’s offenses, while allowing
the individual circumstances of each case to be
considered.
Mental Health Court
 Essential Elements
– Timely participant identification - Participants
are identified, referred, and accepted into
mental health courts, and then linked to
community-based service providers as
quickly as possible.
– Terms of Participation – to promote public
safety, facilitate the defendant’s
engagement in treatment and provide for
positive legal outcomes for those individuals
who successfully complete the program
Mental Health Court
 Essential Elements
– treatment supports and services – Mental
health courts connect participants to
comprehensive and individualized treatment
supports and services in the community.
– Confidentiality
– court team - A team of criminal justice and
mental health staff and service and
treatment providers receives special, on
going training and helps mental health court
participants achieve treatment and criminal
justice goals by regularly reviewing and
revising the court process.
Mental Health Parity Act
It provide a legal framework for acting and
making decisions on behalf of individuals who
lack the capacity to make particular decisions
for themselves.

Mental Health Parity Act
 The Act assumes that everyone can make their
own decisions just that some people need
support.
 The Act makes provision for people to plan
ahead for a time when they may need
support. This introduces advanced decisions
to refuse treatment.
 The Act is decision specific in that it deals with
difficulties a person may have with a
particular issue.
 The Act upholds the principle of Best Interest
for the individual concerned.
Mental Health Parity Act
 A Court of Protection will help with difficult
decisions. The Office of the Public Guardian 
 (formerly Public Guardianship Office), the
administrative arm of the Court of Protection,
will help the Act work.
 An Independent Mental Capacity Advocate 
 (IMCA) service will provide help for people who
have no intimate support network.
 The Act makes it a criminal offence to wilfully
neglect someone without capacity.
Mental Health Parity Act
 Basic Principles (S. 1)
– A person must be assumed to have capacity unless it is
established that they lack capacity.
– A person is not to be treated as unable to make a
decision unless all practicable steps to help him to do
so have been taken without success.
– A person is not to be treated as unable to make a
decision merely because he makes an unwise
decision.
– An act done, or decision made, under this Act for or on
behalf of a person who lacks capacity must be done,
or made, in his best interests.
– Before the act is done, or the decision is made, regard
must be had to whether the purpose for which it is
needed can be as effectively achieved in a way that is
less restrictive of the person’s rights and freedom of
action.
Mental Health Parity Act
It provides that employers can retain discretion
regarding the extent and scope of mental
health benefits offered to workers and their
families, including cost sharing, limits on
numbers of visits or days of coverage, and
requirements relating to medical necessity.
Mental Health Parity Act
 The law covers mental illnesses (i.e. mental
health services);
 it does not cover treatment of substance abuse
or chemical dependency.
 Existing state parity laws are not preempted by
the federal law (i.e., a state law requiring
more comprehensive coverage would not be
weakened by the federal law, nor does it
preclude a state from enacting stronger
parity legislation).
 The law applies only to employers that offer
mental health benefits; it does not mandate
such coverage.
Mental Health Parity Act
 The law allows for many cost shifting mechanisms,
such as adjusting limits on mental illness
inpatient days, prescription drugs, outpatient
visits, raising co-insurance and deductibles, and
modifying the definition of medical necessity.
– Therefore, lower limits for inpatient and outpatient
mental illness treatments are expected to
continue, and in some cases, actually expand to
help keep costs down.
 The law applies to both fully insured state
regulated health plans and self insured plans that
are exempt from state laws under the Employee
Retirement Income Security Act (ERISA), which
are regulated by the Department of Labor.
Mental Health Parity Act
The law has a small business exemption which
excludes businesses with 50 employees or
less.
The law allows an increased cost exemption;
employers that can demonstrate a one
percent or more rise in costs due to parity
implementation will be allowed to exempt
themselves from the law.
Law in India – The
Mental Health Act
HISTORY OF THE MENTAL HEALTH
LAW
 IN INDIA
Traditional, indigenous
medicine recognised
separate category of
mental illness but
treatment was part of
general health care
separate lunatic asylums
and institutions were
established – these
mostly provided
services for British
citizens


HISTORY OF THE MENTAL HEALTH
LAW
 INLunacy
Indian INDIAAct,
contnd.
1912
The terminology used in this Act was
stigmatizing and degrading - words such as
‘lunatics’ and ‘idiots’ were used in this act to
describe mentally ill persons.
The procedure for admission and discharge
was tedious and full of red-tapism.
Only a board of visitors could discharge a
patient and this board used to meet once in
a month. In spite of being cured, a person
who had mental illness continued to be
institutionalized for a long period of time.
 1987 – MENTAL HEALTH ACT
OBJECTIVE OF THE MENTAL
HEALTH ACT
Stop stigmatisation of mental
illness as it is curable –
words like lunatic were
removed and it was
recognised that mental
illness can be cured
Treatment of mentally ill
persons like other sick
persons – shift from
institutionalisation and
protection of society to
treatment
To be in tune with advances in
medical science –
recognising the medical and
clinical aspects of mental
IMPORTANT ASPECTS OF THE
ACT
Right to admission and
treatment in a
psychiatric
hospital/nursing home
available to mentally ill
persons (including
prisoners and addicts)
Procedure for admission
and release of patient
Licensing of institutions
and practitioners and
supervision of the same
Removal of stigmatizing
language

VOLUNTARY ADMISSION AND
DISCHARGE
 UNDER
A person can request THE
medical ACT
officer for admission
to a psychiatric hospital or psychiatric nursing
home for treatment
In case of a minor, request by the guardian
Medical officer makes an inquiry within 24 hours
and if the person is satisfied that there is a need
for admitting the person then the same is done
Such a person has to be discharged within 24 hours
of request being made
Or a Board of two medical officers has to be
constituted and if they decide that the person
should not be discharged then the person can be
treated for 90 days more

INVOLUNTRAY
ADMISSION
On the request of a relative or friend of mentally ill
person who is unable to express his desire for
admission, medical officer can admit the person if he
feels that it is in interest of the person
Discharge by request to Magistrate
Also a Magistrate can give a reception order for
detaining a person in a psychiatric hospital on request
of medical officer, relative or spouse
Medical officer can make a request only when treatment
has to be extended for six months or the person must
be detained for his health and personal safety or for
protection of others
Relative can make a request only in absence of the
spouse
IN V O LU N TA R Y
A D M IS S IO N O N
D E T E N T IO N B Y
P O LIC E Police officer can detain any
person whom he has reason to
believe to be so mentally ill as
to be incapable of taking care of
himself
He has to detain a person if he
has reason to believe to be
dangerous by reason of mental
illness.
The person or his friends/relatives
have to be informed
Has to be produced before a
Magistrate within 24 hours
Magistrate can pass a reception
order after examination of the
person
D IS C H A R G E O F
IN V O LU N TA R Y
PA T IE N T S
MO on the recommendations of
two medical practitioners can
order discharge in writing
The person who had request
admission can also make a
request for discharge and MO
can order discharge
The mentally ill person can make
a request to the Magistrate with
a certificate from the MO
The procedure for discharge is
focused on protecting the
society rather than treating the
patient
No rehabilitation procedure

LICENSING AND REGULATORY
PROVISONS UNDER THE ACT
Government may establish or maintain psychiatric
hospitals or psychiatric nursing homes
Every person establishing or maintaining a
psychiatric hospital or psychiatric nursing home
must get a license – Not applicable to
Government hospitals and nursing homes
The applicant should be in a position to prescribe
minimum facilities
The license can be revoked if the institution is not
maintained properly
Inspection can be done by inspecting officer
CRITICISM OF THE ACT and
RECOMMENDATIONS
Consolidation of general health care and
psychiatric care – no more segregation and
stigmatisation
Lesser role of Magistrate in admission and
discharge – transfer of responsibility to
medical practitioners
Equivalent regulatory and licensing measures
for government and private hospitals
Licensing of only those hospitals which want to
admit mentally ill patients
The Act should not allow research on a MI
person who is incapable of consenting on the
basis of consent of guardian – international
best practice requires independent body to
Role of the Judiciary
Tamil Nadu v. Union of India
(2002)
Ervadi case : Mentally ill
persons chained by a
dargah and died in
accidental fire
Supreme Court criticized
implementation of the
Act
Asked for a district wise
survey to make a list
of licensed and
unlicensed institutions
and asked the police to
stop unlicensed
institutions
Asked Government to
consider licensing for
Role of the Judiciary
State of Gujarat and Another v. Kanaiyalal
Manilal and Others, (1997) – looked at
maintenance provisions under the Act – duty
of the Government to bear the costs – said
that there is statutory obligation on the
government to provide for maintenance of
mentally ill persons

Sheela Barse v. Union of India, 1993 – mentally
ill persons who are not criminals can not be
detained in jails – examination of mentally ill
persons by a practitioner and then treatment.

Implementation
Efforts
Implementation of MHA
What the NMHP has
achieved
District Mental Health Programs are present in
several districts. Grants have been released
for the modernization of the psychiatric wings
of 75 Government Medical colleges and
General Hospitals and 26 Mental Hospitals.
Rs.1000 crore in general has been allocated to
the NMHP and Rs.70 crore has been allocated
to implement the NMHP in 2008 – 09.
PROBLEMS WITH IMPLEMENTATION
OF THE ACT
Very few mental hospitals and psychiatrists (as
most have private practice)
Lack of adequate finance
Exploitation of inmates in the state run institutions
Continued focus on old remedies like drugs, ECT
etc rather than innovative treatment like
counseling, rehabilitation etc.
NHRC reported human rights violation of MI
persons (especially right to chose)
Lack of safety and hygiene
Unnecessary detention
Critique of the NMHP
It follows a ‘medical model’ as opposed to a
‘community model’. Role of NGOs, community
action groups and people’s collectives reduced to
‘referring cases’ to the nearest hospital.
Potential of community care not recognized.
‘Grassroots’ work involved doctors setting up out-
reach sites and providing consultation and
medication services, essentially what was
provided by hospitals.
Funds get lost in trivial issues such as how many
jeeps to buy.
Training of PHC staffers and medical officers to
recognize mental illnessis counter-productive as
they cannot be expected to turn into mini-
psychiatrists with a few weeks of training.
Interview with Dr. Nirmala
Srinivasan
A Separate Mental Health
Policy?
THE WAY AHEAD
Community based model of
care – strengthening the
PHC system
Integration with general
health care
Training of the persons
working with MI persons
Spreading awareness about
MI – sensitizing people
about mental health issues.
Different treatment for MI
persons depending on the
seriousness of MI
Rehabilitation and follow up
including support for
vulnerable groups
THE WAY AHEAD
Changes in licensing policy – more
transparency, less red-tapism,
simplification of procedures and services
of medical practitioners
Criminal sanctions to prevent exploitation
Moving away from focus on mental illness
and its traditional medical treatment –
more attention to the patient’s needs and
incorporation of new methods.

What can we learn from
foreign jurisdictions
 Civil and criminal aspects of the mental ill should be handled
differently.
 Guidelines similar to the Mental Health Parity Act in the UK
can be adopted so that the mentally ill can be properly
represented.
 Given the higher incidence of stressful jobs in India and the
attendant issues, provisions such as the US Mental Health
Parity Act can be incorporate i.e. employers calling the
shots about the kind of mental health support then can
provide to their employees.
 Something similar to a Mental Health Court can be adopted to
deal with crimes committed by the mentally ill. This can
only be done after an aggressive campaign to spread
awareness and sympathy for the mentally ill.

Thank You