Mental Health Act & Legal Aid in India
The Mental Healthcare Act & Legal Aid in India
By – Dr. Kalpeshkumar L Gupta*
Constitution of India provides for rights to all whether he/she is able, disabled, mentally/physically capable or incapable. We can see in our daily life that rights of the disabled, mentally/physically person are violated and ignored. They do have rights like any other people in the society. We as a society are responsible for this situation. When society fails, it requires a law to be enacted to enforce those rights. On April 7, 2017 gave accent to The Mental Healthcare Act, 2017. Act provides for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto. India fulfilled its obligation under Convention on Rights of Persons with Disabilities and its Optional Protocol was adopted on the 13th December, 2006 at United Nations Headquarters in New York and came into force on the 3rd May, 2008. The Mental Health Act, 1987 is hereby repealed.
Let’s see some provisions of the act to proceed with the issue.
Section 2(o) "Mental healthcare" includes analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness.
Section 2(s) “Mental Illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence
Section 3. Determination of Mental Illness
(1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government.
(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,–– (a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person; (b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.
(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness.
(5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.
Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government (Section 18). Every person with mental illness shall,–– (a) have a right to live in, be part of and not be segregated from society; and (b) not continue to remain in a mental health establishment merely because he does not have a family or is not accepted by his family or is homeless or due to absence of community based facilities (Section 19)
Right to Legal Aid (Section 27)
(1) A person with mental illness shall be entitled to receive free legal services to exercise any of his rights given under this Act.
(2) It shall be the duty of magistrate, police officer, person in charge of such custodial institution as may be prescribed or medical officer or mental health professional in charge of a mental health establishment to inform the person with mental illness that he is entitled to free legal services under the Legal Services Authorities Act, 1987 or other relevant laws or under any order of the court if so ordered and provide the contact details of the availability of services
Any person with mental illness or his nominated representative shall have the right to complain regarding deficiencies in provision of care, treatment and services in a mental health establishment (Section 28).
Appropriate governments shall take all measures in creating awareness about mental health and illness and reducing stigma associated with mental illness (Section 28). The Central Govt. shall establish for the purposes of this act, Central Mental Health Authority under Section 33 and The State Govt. shall establish for the purposes of this act, State Mental Health Authority (Section 45).
The State Authority shall, by notification, constitute Boards to be called the Mental Health Review Boards (Section 73). Any person with mental illness or his nominated representative or a representative of a registered non-governmental organisation, with the consent of such a person, being aggrieved by the decision of any of the mental health establishment or whose rights under this Act have been violated, may make an application to the Board seeking redressal or appropriate relief (Section 77).
Role of NGOs, Civil Societies & Legal Aid
As we seen above that government is having an ambitious plan to address issue of mental illness. It has set up mechanism like mental health authority and mental health review board for proper implementation of the act. What if this mechanism fails to perform? In this situation role of NGOs, Civil Societies and Legal Service Authority is utmost important. These organizations can act proactively to achieve the desired goal. NGOs, Civil society themselves or approaching legal service authority can take action so that affected person can get their rights. Section 27 of the said act specifically mentions for legal aid. Recently National Legal Service Authority (NALSA) documented legal aid provided to mentally challenged woman. NALSA succeeded in getting rights for the woman. Here is link https://www.youtube.com/watch?v=6DHleCDXrpc.
The Mental Healthcare Act http://egazette.nic.in/WriteReadData/2017/175248.pdf
Dr. Kalpeshkumar L Gupta is the Founder of ProBono India