Senior psychiatrist Dr Nimesh Desai is director of the Delhi government-run Institute of Human Behaviour and Allied Sciences (IHBAS) and helped it achieve the status of ‘Institute of National Importance’. Dr Desai was earlier with the National Institute of Mental Health and Neurosciences (NIMHANS), Bangalore, and the All India Institute of Medical Sciences (AIIMS), Delhi. In an interview with AJITA SINGH, he said the Mental Healthcare Act, 2017, is a “game changer,” though it remains to be seen what effects it will have for different stakeholders, particularly PMIs (persons with mental illness), the end users and their families.

Excerpts:

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Q: What is your take on the government’s current policy on mental health care: Mental Health Policy of India, 2014?

A: It is indeed praiseworthy and creditable that we have a Mental Health Policy, and it is obviously remarkable in many ways. It is hoped that the provisions of this policy will be operationalised through the implementation of the new Mental Healthcare Act, 2017, and the National Mental Health Programme. The consultative processes which should have occurred before the finalisation of such a policy do not seem to have happened adequately. It is also worth noting that in line with the “intentionalism” in all such matters, our policy document seems quite like a policy document for any other country ~ specially in the developed world. The local context of a country like ours, especially the socio-cultural aspects, seem to be lacking. These aspects become all the more relevant for preventive and promotive aspects of mental health, which find significant mention in the policy document.

Q: What was the original Mental Health Act?

A: The previous Act was the Mental Health Act, 1987, implemented from 1993-94. The experience with the 1987 Act had begun surfacing within the first few years. In 1999, the Indian Psychiatric Society (IPS), with consensus, deliberated on shared experiences and concluded that there was a requirement for some amendments and also a need to start planning on the drafting of a new Act.

Q: Why did it need amendments? Were there some flaws in the Act?

A: As such there were no major “flaws”. Some important aspects of the Mental Health Act, 1987, though did require modifications, essentially from the point of view of families and patients as well as psychiatrists. The emerging groups of mental health activists and human rights lawyers had serious reservations about a few aspects of Section 19 of that Act. Specifically hospitalisation and admission of “patients” by the psychiatric nursing home or hospitals were major concerns. At the same time, the liberal and humanitarian provision of Section 40, which authorised the professional mental health teams of such hospitals to discharge recovered or treated persons, was not fully utilised due to fear of possible consequences. Such provisions also led to the opinion among activist groups that the Act provided inappropriate ‘power’ in the hands of psychiatrists and hospitals. This evolving movement in the early part of the 21st century within the country, mandated by the larger global movement of the drafting of a United Nations Convention of Rights of Persons with Disability (UNCRPD), where the right-based implementation of treatment divisions for Persons with Mental Illnesses (PMIs) seemed to be involved, resulted in the change. As soon as the UNCRPD was ratified by the Government of India and Parliament, the international obligation to align the mental health law with UNCRPD became even more compelling and resulted in immediate drafting of the new Bill. After a few revisions and two readings in the Rajya Sabha, the Bill was passed by both Houses and secured presidential assent, to be notified in April 2017, replacing the 1987 Act.

Q: What is the new Act? What good does it entail for patients?

A: The notified new Mental Healthcare Act, 2017, not only establishes new procedures and authorities for its implementation, it ensures that our law is in line with UNCRPD. Under Chapter V, the Act ensures that all persons shall have the right to access free mental health care and treatment from mental health services run or funded by the government. Treatment includes allopathic treatment that is affordable, good quality, accessible geographically, available without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability. It is provided in a manner that is acceptable to persons with mental illness and their families and caregivers, keeping in mind concerns regarding dignity and confidentiality. The law recognises the vulnerability that persons with psychosocial disabilities face at home. If you are a person with a psychosocial disability and find yourself being forced out of your home, the Act provides that you will have access to support, including legal aid, to ensure that you have the right to live in the home.

Q: What are the advantages of the new Act?

A: The Mental Healthcare Act 2017 which replaced the previous 1987 Act is a landmark law for mental health services in India. It not only allows various rights to those suffering from mental health who were often victims of stigma, malpractice, assault and abuse within the mental healthcare system but also gives them the right to direct their preferred choice of treatment under advanced directive and also allows those with mental illness to choose a representative to take decisions on their behalf in case their condition worsens. The changes were effected to abolish illegal or wrongful admissions into mental health nursing homes, as was believed to be happening earlier, especially in remote areas. Another interesting change brought about by the Act is decriminalising of attempted suicide ~ a step towards the betterment of mental healthcare in India. Not all suicides are due to mental disorders. Some are due to social issues, some due to interpersonal issues.

Q: Are there any flaws in the new Mental Health Act, 2017?

A: The right to choose treatment under the new Act for those seeking mental health care also empowers them not to take the treatment. It allows those with mental illness the right not to seek treatment or refuse consent. This Act makes treating people, who don’t accept that they have mental illness, difficult. This provision might end up adding to problems. The new Act makes it a prerequisite for a Mental Health Review Board to approve the need for prolonged hospitalisation and treatment for someone with mental illness in case they refuse their consent, even if the person trying to enforce the treatment is a family member or a medical authority. There are challenges in the implementation of Advanced Directive and Mental Health Review Board. The Act provides for two ways to exercise options in deciding one’s mental health treatment: An Advance Directive, under Chapter III that one can execute regarding the treatment that one would want during a mental health episode and also specifying the treatment that one does not want during a mental health episode. One can appoint a Nominated Representative under Chapter IV, to take decisions on one’s behalf when a medical practitioner deems you to lack the capacity to decide on your own. These are not absolute. Both can be overruled if an application is made to the Mental Healthcare Board. In addition, Advance Directives do not apply in cases of emergency treatment.

Q: Do you think the amendments have served the purpose?

A: It is too early to comment on whether the new Act has served its purpose. The implementation has just begun. The experience with provisions of the new Act, specifically the entirely new provisions like the Mental Health Review Boards (MHRBs), and Advance Directive (AD) and Nominated Representative (NR); some prohibited treatment procedures, are yet to come to light. As claimed by persons and groups who were involved in the drafting of this new Act, at various stages, the Mental Healthcare Act, 2017, is definitely a “game changer,” although it remains to be seen what kind of a game changer it will prove to be, and what effects it will have for different stakeholders, particularly the PMIs, the end users and their families. One can only hope that after a few years, the significant lack of consensus among various stakeholders will lessen and everyone will work with more synchronisation.

Q: What improvements has the new Act brought in?

A: It will be a matter of debate for many years to come if the new Act is an “improvement” on the previous one and would depend on what stakeholder position one occupies. Nonetheless, it must be recognised that the new Act is based on a fundamentally different framework than earlier, and is also reflective of spread of rights-based frameworks in all areas of human services, compared with empowerment of the consumers/ users of any services, thereby direct or indirect erosion of the power enjoyed and exercised by the “establishment” and the “service providers” in the case, the hospitals and the psychiatrists. The fact that many stakeholders’ groups have been dissatisfied with the process of lawmaking as well as the final Act, leads to expectation of turmoil. It seems that despite such expectations and the huge diversity of opinion, better sense seems to be prevailing and initial implementation is certainly less tumultuous than it was apprehended. The softer aspects of how the services may have been adversely affected may emerge over time, as well as the long-term impact.