Explained | Does India’s Mental Healthcare Act, 2017 protect patients’ rights and dignity in institutions?

The government-run facilities are “illegally” keeping patients long after their recovery, in what is an “infringement of the human rights of mentally ill patients”, according to a recent report by NHRC

Updated - February 18, 2023 07:35 am IST

Published - February 16, 2023 08:30 am IST

Image for representational purpose only.

Image for representational purpose only. | Photo Credit: The Hindu

The story so far: The National Human Rights Commission (NHRC) in a report flagged the “inhuman and deplorable” conditionof all 46 government-run mental healthcare institutions across the country; out of which three are run by the Union government and the remaining by State governments. The facilities are “illegally” keeping patients long after their recovery, in what is an “infringement of the human rights of mentally ill patients”, the report notes. Moreover, the perennial shortage of doctors, lack of infrastructure, and proper amenities speak of a “very pathetic and inhuman handling by different stakeholders”, according to the report. 

The human rights body’s observations were made after visits to all operational government facilities, to assess the implementation of the Mental Healthcare Act, 2017 (MHCA). The MHCA, which experts note was a “watershed moment for the right to health movement in India,” discourages long-term institutionalization of patients and reaffirms the rights of people to live independently, and within communities. This right is doubly guaranteed under the Rights of Persons with Disabilities Act of 2016. 

Long-term institutionalisation thus not only violates Article 21 of the Constitution which protects personal liberty, but also indicates a “failure of the State Government(s) to discharge the obligation under various international Covenants [such as the United Nations Convention]relating to rights of persons with disabilities which have been ratified by India,” the present report stated. 

What does the Mental Healthcare Act, 2017 say? 

MHA’s predecessor — the Mental Health Act, 1987 — prioritised the institutionalisation of mentally-ill people and did not afford any rights to the patient. “The previous Act provided disproportionate authority to judicial officers and mental health establishments to authorise long-stay admissions often against the informed consent and wishes of the individual. As a result, several persons continue to be admitted and languish in mental health establishments against their will,” says Tanya Fernandes, a researcher with the Centre for Mental Health Law and Policy (CMHLP). 

The 1987 iteration embodied the ethos of the colonial-era Indian Lunacy Act of 1912, which linked criminality and madness, Priti Sridhar, CEO of Mariwala Health Initiative (MHI), further explains. Asylums were places where “abnormal” and “unproductive” behaviour was studied as an individual phenomenon, isolating the individual from society. The intervention is meant to correct an inherent deficit or “abnormality”, thereby leading to “recovery”.  

“On the basis of social norms, psychiatry solidified the creation of a normal/abnormal, which is what many experience as stigma today. Psychiatry also enabled the idea of segregation as safety for communities and societies — and in tracing the legacy we can see that the intention was never to define illness but to protect social order,” a 2020 MHI journal article stated. 

In 2017, the MHCA in essence dismantled the clinical heritage attached to asylums. As part of Section 19, the government was made responsible for creating opportunities to access less restrictive options for community living — such as halfway homes, sheltered accommodations, rehab homes, and supported accommodation. The Act also discourages using physical restraints (such as chaining), objects to unmodified electro-convulsive therapy (ECT), and pushes for the rights to hygiene, sanitation, food, recreation, privacy, and infrastructure. 

Also Read | Insurance firms to comply with mental health Act: HC

Importantly, the Act recognised “people have a capacity of their own — unless proven otherwise,” Manisha Shastri, Researcher at CMHLP adds. Under Section 5, people are empowered to make “advance directives”. They can nominate a representative for themselves, thereby potentially helping to eliminate absolute forms of guardianship in favour of supported decision-making. This is barring cases where the person needs a higher degree of care and support (even then the admission is done for a limited period, Ms. Shastri notes). 

Experts note this was the first time a psychosocial approach to mental healthcare was adopted. The Act acknowledged that environmental factors — such as income, social status, and education — impact mental well-being, and therefore, recovery needs a psychiatric as well a social input. “The Act has shifted from providing only treatment to centring the rights and the will of the person,” Mangala, a project officer at MHI, notes. “Earlier it was treatment, but now it is more in terms of care.” 

What are the challenges to implementation?

While the MHCA safeguards the rights of people in mental healthcare establishments, enforcement challenges remain. Almost 36.25% of residential service users at state psychiatric facilities were found to be living for one year or more in these facilities, according to a 2018 report by the Hans Foundation. Experts note three main reasons: non-compliance to MHA regulations, absence of community-based services, and social stigma that looks at a person with mental illness as a “criminal” deserving of incarceration. 

Under the MHCA, all States are required to establish a State Mental Health Authority and Mental Health Review Boards (MHRBs) – bodies that can further draft standards for mental healthcare institutes, oversee their functioning and ensure they comply with the Act. Ms. Fernandes notes that in a majority of the States, “these bodies are yet to be established or remain defunct…Further, many States have not notified minimum standards which are meant to ensure the quality of MHEs.”  

The absence of MHRBs renders people unable to exercise rights or seek redressal in case of rights violations. In September 2022, the Bombay High Court responded to a plea stating that mental healthcare institutes “do not routinely assess the condition of patients to ascertain if they can be discharged.” It results in cases where people “languish” in mental hospitals for decades, if not years, the plea said. In a separate order in December, the Court subsequently noted the “regrettable state of affairs.” The Court was informed that the State Mental Health Authority – which was required to meet at least four times every under Section 56, had remained inactive until August 2022. The Court further reprimanded the government for its failure to implement the Act. 

Ms. Sridhar of MHI notes that the Act takes on a human rights lens by shifting the obligation of care onto different stakeholders — including caregivers, government institutions, police officials, and mental health practitioners. Poor budgetary allocation and utilization of funds further create a scenario where shelter homes remain underequipped, establishments are understaffed, and professionals and service providers are not adequately trained to deliver mental healthcare, she added. 

While the Act says a person can walk out if they are recovered, in practice, people still need somebody– a caregiver or thestate -- to take them out. People are either put in these establishments by families or through the police and judiciary. In many cases,families refuse to take them because of the stigma attached to incarceration or the idea that the person is no longer functional in society. Gender discrimination plays a role here: women are more likely to be abandoned due to “family disruption, marital discords and violence in intimate relationships,” according to a study. Many long-term patients at mental healthcare institutions, especially women have no place to go -- families do not want them back and some are even ask to stay on at the institution as they do not want to go back. Moreover, 55.4% of people who lived in mental healthcare facilities were referred to by the police or magistrates – most people have histories of homelessness, poverty, and a lack of education– and they thus have no place to go after recovery. 

Also Read | ‘Housing is important in rehabilitating mentally ill people’

While Section 19 recognises the right of people to “live in, be part of, and not be segregated from society,” there have been no concrete efforts towards implementation, according to Ms. Shastri. The dearth of alternative community-based services -- in the form of homes for assisted or independent living, community-based mental healthcare services, and socio-economic opportunities – further complicates access to rehabilitation. In 2021, a petition was filed before the Supreme Court challenging the rehabilitation of persons from long-stay mental health establishments into beggar homes or custodial homes in Maharashtra. The plea was in relation to the Maharashtra government shifting 190 patients – who had no family to return to –to beggar homes, women shelter homes, and age-old homes as a way to “rehabilitate” them in society. The Court subsequently ordered for this practice to be discontinued since it violates MHCA, 2017, and that the people be transitioned into community-based rehabilitation facilities instead. 

States have begun experimenting with this model of reintegration and recovery: Chennai’s Institute of Mental Health launched five halfway home, in collaboration with an NGO and managed by the District Mental Health Programme in October 2021, where people can access the confidence and skills needed to manage themselves outside a structured institution. Kerala has also started half-way homes and community living centres, providing rehabilitation to people who are abandoned by family members, who don’t wish to return to their families, who have no memory of their families, and those who have mental disabilities and are unable to work. 

In the absence of rehabilitation, institutions are the only spaces available for many persons living with mental illness. According to Jasmine Kalha, a research fellow at CMHLP, “this is not the first time NHRC reports have highlighted various challenges and human rights violations within these institutions yet nothing changes on the ground… the real question is where do we go from here- why aren’t we implementing rights and recovery-based approaches to change attitudes and practices on the ground?” 

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