© Springer India 2015
Savita Malhotra and Subho Chakrabarti (eds.)Developments in Psychiatry in India10.1007/978-81-322-1674-2_3232. The Mental Health Act of India
(1)
Department of Psychiatry, Maulana Azad Medical College and G.B. Pant Hospital, New Delhi, India
Keywords
Mental health act1987IndiaR.C. Jiloha, Director, Professor and Head
1 Introduction
Science has progressed immensely in the realm of curing and treating various diseases and disorders. The legal framework pertaining to diseases and disorders is also being strengthened with time. However, the same has not been the case of persons suffering from mental illnesses. Being a vulnerable section of the society, persons with such illnesses have been recurring victims of cruelty, ridicule, abuse and neglect of their legitimate rights. Mental disorders account for 13 % of the global burden of diseases (Kamra and Tiwari 2012).
Only 59 % people worldwide live in a country, where there is dedicated mental health legislation.1 In India, we have over 10 crore people suffering from a mental illness, there are just 43 mental hospitals and about 4,000 psychiatrists.2
Mental health services in the Indian subcontinent began with the establishment of mental hospitals. The need and demand of mental hospitals during the early British rule were influenced by the ideas and concepts as prevalent in England during that period (Sharma 1987). The idea behind incorporating any measure with respect to mental illness was to isolate the affected patients, preferably in an institution, and keep them away from the mainstream society as much as possible. Primarily, these hospitals or asylums were constructed away from the cities with high enclosures. The rules and the laws with respect to the admission care and discharge of the mentally ill have their origin in the English Acts such as Act for Regulating Private Mad Houses, 1774 and Country Asylums Act, 1808 (Kathleen 1972). In the middle of the nineteenth century, Lord Ashley introduced three amended acts, the Lunacy Regulation Act, 1853, the Lunatic Care and Treatment Amendment Act, 1853 and the Lunatic Asylums Act, 1853 (Sharma 1987).
After the British Crown took over the reins of India from the East India Company, it enacted the first Indian Lunacy Act (No 36) of 1858 providing guidelines for establishment of lunatic asylums and to regulate procedure for admission of the mentally ill. This Act was later modified in 1883, with more elaborate instructions for admission and care of the mentally ill. The sole purpose of establishing lunatic asylums was to segregate mentally ill who were considered as troublesome and dangerous to the society. It is obvious that the asylums constructed at that time were simply places for detention.
Due to deplorable condition of mentally ill in lunatic asylums and growing public concern, the government contemplated having a central supervision of these asylums in 1906 and Indian Lunacy Act 1912 (No 4) came with a racial bias. Separate institutions were established for European and Indian patients. In 1920, nomenclature was changed and the name Mental Hospital was substituted for lunatic asylum . Administrative control of these institutions was passed on to the civil surgeon of the district from the prison authorities (Kathleen 1972).
The Lunacy Regulation Act, 1853, the Lunatic Asylums Amendment Act, 1853, the Indian Lunacy Act, 1858 and the Indian Lunacy Act, 1912 were some of the archaic legislations that dealt with mental illness where persons suffering from such an illness were referred to as lunatics or idiots, were provided only custodial care, thereby ignoring the overarching principles of equality and dignity of individuals, as well as the International Instruments such as the Universal Declaration of Human Rights, which inter alia provides that all human beings are born free and equal in dignity and rights.3
The developments during the first half of the twentieth century brought newer insights into the understanding of mental disorders as medical illness requiring humane and sympathetic treatment. Introduction of general hospital psychiatric units (GHPUs) and electroconvulsive therapy (ECT) in the fourth decade of twentieth century and anti-psychotics and anti-depressants in the 1950s and 1960s revolutionised the concept of treating mental disorders. The mentally ill no longer remained subjects of amusement, ridicule, neglect or affliction by supernatural powers, and they came in the domain of treatable medical conditions (Wig 1978).
The Indian Lunacy Act of 1912 fell short and could not keep pace with the fast-developing field of psychiatry. It soon outlived its utility as it was no longer relevant to the needs of the society and the mentally ill. The Bhore Committee Report (Sharma 1987) pointed out that the existing mental hospitals were quite out of date and were designed for detention and custodial care without regard for curative treatment. In 1949, the Indian Psychiatric Society drafted ‘Indian Mental Health Act Bill’ (Varma 1953). The Bill was introduced in the parliament several times, but due to political reasons, it took many years to be enacted. After 40 years of independence, in 1987, came the Act, arousing expectations, raising hopes, making promises and generally heralding a new, a better and a more decent life for the mentally ill living a stigmatising existence. The Indian Mental Health Act (Act 14), 1987 replaced the Indian Lunacy Act, 1912 and the Jammu and Kashmir Lunacy Act, 1977.
Following are the objectives of the Act:
1.
The attitude of the society has changed, no stigma should be attached with mental illness and the mentally ill persons should be treated like any other patient.
2.
With the rapid advancement in medical sciences and mental health, the Indian Lunacy Act, 1912 has become outmoded, and it is necessary to have fresh legislation with provisions of treatment.
3.
It is considered necessary:
(a)
To regulate admissions and to protect the rights of the inpatients.
(b)
To protect the society from patients who become a danger and a nuisance.
(c)
To protect citizens from being detained without sufficient cause.
(d)
To regulate responsibility for maintenance.
(e)
To provide facilities for establishing guardianship or custody of mentally ill who are unable to look after themselves.
(f)
To establish Central and State Authorities for Mental Health.
(g)
To regulate the powers of the government in relation to mental health.
(h)
To provide legal aid to mentally ill at state expense in certain cases.
The general expectation was that the legislation would usher in a new era of proper care and dignified life for the psychiatric patients.
2 The Mental Health Act, 1987
The Act that is spread over 10 chapters and 98 clauses extends to whole of India and came into force on 1 April 1993. The Act represents a departure from the earlier Act by bringing the latest concepts and knowledge in the field of mental health. Following are the important features of the Act:
1.
Nomenclature: The Indian Lunacy Act used terms, which were derogatory at the time and context. They undermined the human dignity of the mentally ill and were replaced by acceptable terms. Mental hospitals are known in the Act by the terms psychiatric hospitals or psychiatric nursing homes. The patients are not to be called as lunatics, meaning thereby idiots or persons with unsound mind. In the new Act, they are known as psychiatric patients who are in need of treatment. An important departure from the earlier Act is that the mentally challenged (retarded) have been excluded from the ambit of this Act, which has evoked a mixed response from the professionals. Change in nomenclature brings psychiatry at par with other medical disciplines and de-stigmatises mental illness.
2.
Supervision of psychiatric hospitals: The Chapter II of the Act deals with the creation of Mental Health Authorities both at centre and state levels, as watchdog bodies to assure quality of services. This brings mental health services under the ambit of the Mental Health Authority, making the services accountable and responsible for the care of mentally ill. However, licensing of psychiatric nursing homes is perceived to be a different yardstick for those who wish to establish a private hospital or a nursing home (Antony 2000).
3.
Admission procedures: While retaining the earlier modes of admission, i.e. voluntary and under reception order, a new category of admission procedure has been introduced under Section 19 (Chapter IV), which does not involve judiciary to admit an uncooperative or unwilling patient for a period of 90 days with the support of two medical certificates. This provision is helpful in emergency situations where the patient requires immediate medical intervention, but is unable to give his consent. Experiences reveal that many professionals make use of this mode of admission as an easier option for admitting a patient who is unable to give consent. The procedure for admitting a voluntary patient is also simplified. Approval of members of Board of Visitors is not required for admitting a voluntary patient according to the Mental Health Act, 1987.
4.
Functioning of the Board of Visitors: Chapter V deals with inspection, discharge, leave of absence and removal of mentally ill. The Act insists on inclusion of psychiatrists and social workers as members of the board giving clear directions with respect to its working. Subsequently, members from judiciary were also added to the team. Patients’ records considered to be confidential by the medical officer incharge may not be accessible to the members of the board. To ensure regularity in members, visits to the hospital, the Act provides that a member absenting himself for three consecutive months forfeits his membership.
5.
Judicial safeguards for patients’ rights: Chapter VI deals with judicial inquisition regarding alleged mentally ill persons possessing property, custody of his person and management of his property. It incorporates some newer provisions, which are consistent with other civil laws and procedures governing management of such property by managers. The Mental Health Act, 1987 provides safeguards for the patients, and there is greater penalty for misuse of property by managers. Liability to meet cost of maintenance of mentally ill by government in certain cases is elaborately described. There is also a provision by which persons legally bound to maintain mentally ill persons are not absolved from such a liability.
6.
Humanitarian provisions: Chapter VIII (Section 81) of the Act contains a progressive and explicit provision on ‘protection of human rights’ of the mentally ill persons. No mentally ill person during treatment is to be subjected to any indignity. No research, unless of direct benefit in diagnosis and treatment of the patient can be conducted. Letters or other communications of the patient cannot be intercepted, detained or destroyed.
7.
Penalty for detaining a patient in psychiatric hospital or nursing home other than the licensed ones: The Act provides for the punishment for detention of a patient in a hospital or nursing home other than the licensed ones.
The Act defines a mentally ill person to be a person who is in need of treatment by reason of any mental disorder. However, mental disorder as such is not defined (Trivedi 1989). The definition of mental illness excludes mental retardation, without providing alternative options for the care of the mentally retarded. As a result, persons with severe and profound mental retardation who need comprehensive care from mental health experts are deprived of these services. While defining the psychiatric hospital or psychiatric nursing home, the Act includes these institutions established and maintained by government or another person and excludes general hospitals or nursing homes established and maintained by the government, but not those established and maintained by any other person. It means that the private general hospitals or nursing homes admitting psychiatric patients are treated like psychiatric hospitals or nursing homes meaning thereby, they have to follow the rules as laid down for psychiatric hospitals or nursing homes. This discriminatory approach has led to resentment among the psychiatrists, and it is observed during these 20 years that many psychiatrists do not admit their patient in privately run general hospitals for want of a license (Antony 2000).
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