THE MENTAL HEALTH CARE BILL, 2013 - dnis. · PDF fileAzharuddin . 13. Shrimati Sarika Devendra...

REPORT NO.

74

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON HEALTH AND FAMILY WELFARE

SEVENTY-FOURTH REPORT

On

THE MENTAL HEALTH CARE BILL, 2013 (Ministry of Health and Family Welfare)

( P r e s e n t e d to t h e C h a i r m a n , Rajya Sabha on t h e 2 0 t h November, 2013) ( F o r w a r d e d to t h e Speaker, L o k Sabha on t h e 2 0 t h November , 2013)

Rajya Sabha Secretariat, New Delhi NOVEMBER, 2013/ KARTIKA, 1935 (SAKA)

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON HEALTH AND FAMILY WELFARE

SEVENTY-FOURTH REPORT On

THE MENTAL HEALTH CARE BILL, 2013 (Ministry of Health and Family Welfare)

( P r e s e n t e d to t h e C h a i r m a n , Rajya Sabha on t h e 20 t h November, 2013) ( F o r w a r d e d t o t h e Speaker, L o k Sabha o n t h e 2 0 t h November , 2013)

Rajya Sabha Secretariat, New Delhi NOVEMBER, 2013/ KARTIKA, 1935 (SAKA)

C O N T E N T S

P A G E S

1. COMPOSITION OF THE COMMITTEE (i)

2. PREFACE (ii)-(iii)

3. A C R O N Y M S (iv)

4. REPORT 1- 56

5*. OBSERVATIONS/RECOMMENDATIONS AT A G L A N C E

6*. MINUTES

7*. A N N E X U R E

* to be appended at printing stage

5

10

15.

20.

25

30

COMPOSITION OF THE COMMITTEE (2013-14)

RATYA SABHA 1. Shr i Brajesh Pathak - Chairman 2. Shr i Rajkumar Dhoot 3. Shrimat i B. Jayashree 4 . Shri M o h d . A l i K h a n . Dr . Prabhakar Kore

6. Dr . R. Lakshmanan * 7. Shr i Rasheed M a s o o d 8. Shri Jagat Prakash N a d d a 9 . Dr . Vi jay laxmi Sadho

. Shri A r v i n d K u m a r Singh

LOK SABHA 11. Shr i K i r t i A z a d 12. Shr i M o h d . A z h a r u d d i n 13. Shrimat i Sarika Devendra Singh Baghel 14. Shr i Kuvarj ibhai M . Baval ia

Shr imat i P r iya Dut t 16. Dr . Sucharu Ranjan Ha lda r 17. M o h d . A s r a r u l Haque 18. D r . M o n a z i r Hassan 19. Dr . Sanjay Jaiswal

Shr i C h o w d h u r y M o h a n Jatua 21. Dr . Tarun M a n d a l 22. Shr i Mahaba l M i s h r a 23. Shr i Zafar A l i N a q v i 24. Shr imat i Jayshreeben Patel

. Shr i H a r i n Pathak 26. Shr i R a m k i s h un 27. Dr . A n u p K u m a r Saha 28. D r . A r v i n d K u m a r Sharma 29. D r . Raghuvansh Prasad Singh

. Shr i P.T. Thomas 31. Vacant SECRETARIAT Shri P.P.K. Ramacharyulu Joint Secretary Shri R. B. Gupta Director Shrimati Arpana Mendiratta Joint Director Shri Dinesh Singh Deputy Director Shri Pratap Shenoy Committee Officer

* vacant vide disqualification as a member of the Council of States (Rajya Sabha) w.e.f. 19t h September, 2013.

(1)

PREFACE

I, the Chairman of the Department-related Parliamentary Standing Committee on Health and Family

Welfare, having been authorized by the Committee to present the Report on its behalf, present this

Seventy-fourth Report of the Committee on the Mental Health Care Bi l l , 2013*.

2. In pursuance of Rule 270 of the Rules of Procedure and Conduct of Business in the Council of

States relating to the Department-related Parliamentary Standing Committees, the Chairman, Rajya

Sabha, referred** the Mental Health Care Bi l l , 2013 ( Annexure I) to the Committee on the 20 t h August,

2013, as introduced in the Rajya Sabha on the 19t h August , 2013 for examination and report within

three months.

3. The Committee issued a Press Release inviting memoranda/views from individuals and other

stakeholders. (Annexure-II). In response thereto, 59 Memoranda from individuals and others relevant to

the Bi l l were received till the specified date. List of individuals from whom memoranda were received is

at Annexure-III.

4. The Committee held seven sittings during the course of examination of the Bi l l , i.e., on

29t h August, 16t h September, 04t h October, 11 t h October, 21s t October, 1s t November and 11 t h November,

2013. The list of witnesses heard by the Committee is at Annexure-IV.

5. The Committee considered the draft Report and adopted the same on 11 t h November, 2013.

6. The Committee has relied on the following documents in finalizing the Report:-

(i) Mental Health Care Bi l l , 2013;

(ii) Background Notes on the Bi l l received from the Department of Health and Family Welfare;

(iii) Presentation, clarifications and Oral evidences of Secretary, Department of Health & Family Welfare;

(iv) Memoranda received on the Bi l l from various institutes/ bodies/associations/organizations/experts and replies of the Ministry on the memoranda selected by the Committee for examination.

(v) Oral evidences and written submissions by various stakeholders/experts on the Bi l l ; and

(vi) Replies to the questions/queries raised by Members in the meetings on the Bi l l , received from the Department of Health & Family Welfare

7. On behalf of the Committee, I would like to acknowledge with thanks the contributions made by those who deposed before the Committee and also those who gave their valuable suggestions to the Committee through written submissions.

(ii)

8. For facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report.

NEW DELHI; 1 1 t h N o v e m b e r , 2 0 1 3 Kartika 20 , 1935 (Saka)

BRAJESH PATHAK

C h a i r m a n , Department-related Parliamentary Standing

Committee on Health and Family Welfare

* Published in Gazette of India E x t r a o r d i n a r y Part I I S e c t i o n 2, dated 1 9 t h A u g u s t , 2 0 1 3 .

** Rajya Sabha P a r l i a m e n t a r y B u l l e t i n Part II, N o . 5 1 1 7 4 , dated 2 0 t h A u g u s t , 2 0 1 3 .

(iii)

5. C M H A - Central Men ta l Hea l th Author i ty

10. D M H P - District Men ta l Hea l th Programme

15. I R D A - Insurance Regulatory and Development Author i ty

20. M H R C - Men ta l Heal th Review C o m m i s s i o n

25. PG - Post-Graduate

30. S O R - Statement of Objects and Reasons

ACRONYMS

1. AD - Advance Directive 2. A I I M S - A l l India Institute of M e d i c a l Sciences 3. B O V - Board of Visi tors 4. C I P - Central Institute of Psychiatry

6 . C M H C - Central Men ta l Hea l th C o m m i s s i o n 7. C R P D - Convent ion on the Rights of Persons w i t h Disabili t ies 8. C r P C - Code of C r i m i n a l Procedure 9 . C R R - Central Rehabil i tat ion Register

11. E C T - Electro-convulsive Therapy 12. G H P U s - General Hea l th Psychiatric Uni ts 13. I H B A S - Institute of H u m a n Behaviour & A l l i e d Sciences 14. I P C - Indian Penal Code

16. IPS - Indian Psychiatry Society 17. L G B R I M H - L o k o p r i y a Gopina th Bordo lo i Regional Institute of Menta l Heal th ,

Tejpur 18. M H A - Men ta l Hea l th A c t 19. M H C B - Men ta l Hea l th Care B i l l

21. N I M H A N S - Na t iona l Institute of Men ta l Hea l th and Neuro-Sciences 22. N M H P - Na t iona l Men ta l Hea l th Programme 23. NR - Nomina ted Representative 24. P H C - Pr imary Heal th Centre

26. PwD Act, 1995- Persons w i t h Disabilit ies Act , 1995 27. R C I - Rehabili tation C o u n c i l of India 28. S M H A - State Men ta l Heal th Author i ty 29. S M H C - State Menta l Heal th C o m m i s s i o n

31. U N C R P D - Un i t ed Nat ions Conventions on the Rights of Persons w i t h Disabilit ies 32. UT - U n i o n Territory

(iv)

REPORT The Mental Health Care Bil l , 2013 (hereinafter referred to as the Bill) was

introduced in the Rajya Sabha on the 19th August,2013 and referred to the

Department related Parliamentary Standing Committee on Health and Family

Welfare on the 20t h August, 2013 for examination and report thereon.

2. As per the information furnished by the Ministry of Health and Family Welfare

the Mental Health Care Bil l , 2013 seeks to consolidate the legislations related to

mental illness and improve the conditions in mental health facilities existing in the

country while ensuring the process of appeal by a person admitted to a psychiatry

institution, rehabilitation, reintegration with families and community in non-

medical settings. The Bil l addresses the issues of mental illness and capacity to

make mental health care and treatment decisions; advance directive; nominated

representative; rights of persons with mental illness; duties of appropriate

government; central and state mental health authorities; mental health

establishments; mental health review commission; admission, treatment and

discharge. The Bil l also consolidates the law regarding the responsibilities of other

agencies, restriction to discharge functions by professionals not covered by

professional offences and penalties.

3. According to the Statement of Objects and Reasons (SOR) of the Bill , the

United Nations Convention on the Rights of Persons with Disabilities, which was

ratified by the Government of India in October, 2007, made it obligatory on the

Government to align the policies and laws of the country with the Convention. The

need for amendments to the Mental Health Act, 1987 was felt by the fact that the

related law, i.e., the Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 was also in the process of amendment.

The Mental Health Act, 1987 could not protect the rights of persons with mental

illness and promote their access to mental health care in the country. In the light of

above it was proposed to repeal the Mental Health Act (MHA), 1987 and bring in a

new legislation.

4. The Statement of Objects and Reasons (SOR) of the Bil l further states that the

Bill proposes to repeal the Mental Health Act, 1987. Its objectives are to: (i)

protect and promote rights of the persons with mental illness during the delivery of

health care in institutions and in the community; (ii) ensure that health care,

treatment and rehabilitation of the persons with mental illness, is provided in the

least restrictive environment possible, and in a manner that does not intrude on

their rights and dignity; (iii) fulfil the obligations under the Constitution and the

obligations under various International Conventions ratified by India; (iv) regulate

public and private mental health sectors within a rights framework to achieve the

greatest public health good; (v) improve accessibility to mental health care by

mandating sufficient provision of quality public mental health services and non-

discrimination in health insurance; (vi) establish a mental health system integrated

into all levels of general health care; and (vii) promote principles of equity,

efficiency and active participation of all stakeholders in decision making.

5. Keeping in view the objectives behind the proposed legislation and its impact

on the people who are mentally i l l , the caregivers, the families and professionals

associated with this health sector, the Committee decided to have opinion of

different stakeholders on the Bil l , and issued a Press Release, inviting

views/suggestions from all the stakeholders. An overwhelming response to the

Press Release was received by the Committee. A considerable number of

organizations/stakeholders/ individuals/associations submitted memoranda

containing their views. The Committee held extensive interactions with

representatives of associations/organizations/Councils/institutes as well as

renowned experts and professionals from the discipline of Psychiatry and care-

givers/family members and patients.

6. The Ministry of Health and Family Welfare in its background note made the following submissions. :-

"The M e n t a l H e a l t h A c t , 1 9 8 7 (MHA, 1987) was e n a c t e d to r e g u l a t e the a d m i s s i o n a n d t r e a t m e n t o f persons w i t h m e n t a l i l l n e s s t o p s y c h i a t r i c i n s t i t u t i o n s a n d f o r the management o f t h e i r p r o p e r t y a n d affairs. O v e r the y e a r s , the MHA, 1 9 8 7 has been c r i t i c i z e d by many s t a k e h o l d e r s i n c l u d i n g persons w i t h m e n t a l i l l n e s s , f a m i l i e s a n d c a r e g i v e r s , r i g h t s a n d d i s a b i l i t y a c t i v i s t s , u s e r - s u r v i v o r s o f p s y c h i a t r i c c a r e a n d a segment o f the p r o f e s s i o n a l p s y c h i a t r i c c o m m u n i t y . The g r o w i n g c o n c e r n t h a t the MHA , 1 9 8 7 needed to be amended g a i n e d u r g e n c y w i t h the ratification of the United N a t i o n s C o n v e n t i o n on the R i g h t s o f Persons w i t h D i s a b i l i t i e s (UNCRPD) by the G o v e r n m e n t o f I n d i a in O c t o b e r , 2 0 0 7 w h i c h r e q u i r e s I n d i a to a m e n d or replace l a w s n o t c o m p l i a n t w i t h the CRPD. The d e m a n d f o r amendments t o M e n t a l H e a l t h A c t , 1 9 8 7 was s t r e n g t h e n e d b y the f a c t t h a t the r e l a t e d A c t , The Persons w i t h D i s a b i l i t i e s (Equal O p p o r t u n i t i e s , P r o t e c t i o n o f R i g h t s a n d F u l l P a r t i c i p a t i o n ) A c t , 1 9 9 5 was a l s o in the process of amendment. The MHA, 1 9 8 7 c o u l d n o t p r o t e c t the r i g h t s o f persons w i t h m e n t a l i l l n e s s a n d p r o m o t e access t o m e n t a l h e a l t h c a r e in the c o u n t r y . Therefore it was p r o p o s e d to repeal the MHA, 1 9 8 7 a n d b r i n g in a new l e g i s l a t i o n . Essential Features of the Mental H e a l t h c a r e B i l l 2 0 1 3 :

• The C e n t r a l a n d S t a t e M e n t a l H e a l t h A u t h o r i t i e s w i l l c o n t i n u e a s

r e g u l a t o r y a g e n c i e s .

• A n y p e r s o n , w i t h o r w i t h o u t m e n t a l illness, can m a k e a n A d v a n c e

D i r e c t i v e (AD) s t a t i n g h o w h e / s h e wishes t o b e t r e a t e d f o r a f u t u r e

m e n t a l illness a n d a l s o h o w h e does n o t wish t o b e t r e a t e d . Such a n A D

can a l s o be c h a l l e n g e d by f a m i l i e s , p r o f e s s i o n a l s e t c . This p r o v i s i o n i s

i n c l u d e d t o m e e t t h e CRPD's r e q u i r e m e n t f o r p r o t e c t i n g l e g a l c a p a c i t y o f

p e r s o n s w i t h m e n t a l illness.

• A p e r s o n w i t h m e n t a l illness can a p p o i n t a N o m i n a t e d R e p r e s e n t a t i v e t o

t a k e d e c i s i o n s f o r him/her. This p r o v i s i o n t o o i s i n c l u d e d t o m e e t t h e

CRPD's r e q u i r e m e n t f o r p r o t e c t i n g l e g a l c a p a c i t y o f p e r s o n s w i t h m e n t a l

illness.

• A p e r s o n w i t h m e n t a l illness has t h e r i g h t t o l i v e i n , b e p a r t of, a n d n o t

s e g r e g a t e d f r o m s o c i e t y . G o v e r n m e n t has a n o b l i g a t i o n t o p r o v i d e f o r

h a l f w a y h o m e s , c o m m u n i t y c a r i n g c e n t r e s e t c .

• The M H C Bill, 2 0 1 3 m a k e s a c l e a r a s s e r t i o n t h a t a l l p e r s o n s h a v e a r i g h t

t o access m e n t a l h e a l t h c a r e a n d t r e a t m e n t f r o m m e n t a l h e a l t h services

r u n o r f u n d e d b y t h e G o v e r n m e n t . Such services s h o u l d b e a f f o r d a b l e , o f

g o o d q u a l i t y a n d a v a i l a b l e w i t h o u t d i s c r i m i n a t i o n .

• A p e r s o n w i t h m e n t a l illness h a s t h e r i g h t t o b e p r o t e c t e d f r o m c r u e l ,

i n h u m a n a n d d e g r a d i n g t r e a t m e n t . Some t r e a t m e n t s c u r r e n t l y b e i n g

used w i l l b e p r o h i b i t e d , m o s t i m p o r t a n t l y , E l e c t r o - c o n v u l s i v e Therapy

g i v e n w i t h o u t a n a e s t h e s i a a n d t h e p r a c t i c e o f c h a i n i n g p a t i e n t s t o t h e i r

beds.

• The B i l l r e c o g n i z e s t h a t t h e o v e r w h e l m i n g m a j o r i t y o f t h e m e n t a l l y i l l a r e

i n t h e i r h o m e s . Caring f o r a m e n t a l l y i l l p e r s o n i s f i n a n c i a l l y a n d

e m o t i o n a l l y d r a i n i n g f o r a n y family. A s i g n i f i c a n t p o r t i o n o f t h e

w a n d e r i n g h o m e l e s s h a v e m e n t a l illness. The Bill t h e r e f o r e addresses t h e

needs o f f a m i l i e s a n d c a r e g i v e r s a n d t h e needs o f t h e h o m e l e s s m e n t a l l y

ill.

• I n s o m e i n s t a n c e s o f a d v a n c e d illness, w h e n t h e p e r s o n i s n o t i n a

p o s i t i o n t o m a k e d e c i s i o n s f o r h i m s e l f / h e r s e l f i t m a y b e necessary i n t h e

b e s t i n t e r e s t o f t h e h e a l t h a n d w e l f a r e o f t h e p e r s o n w i t h m e n t a l illness

t o b e a d m i t t e d , t o a t r e a t m e n t f a c i l i t y w i t h t h e s u p p o r t o f t h e i r

n o m i n a t e d r e p r e s e n t a t i v e . The B i l l sets o u t i n s o m e d e t a i l t h e m e a s u r e s

e s t a b l i s h e d t o e n s u r e t h a t a l l cases o f s u p p o r t e d a d m i s s i o n a r e r e v i e w e d

w i t h o u t loss o f t i m e . This i s w e l l w i t h i n t h e p r o v i s i o n s o f A r t i c l e 1 2 o f t h e

UNCRPD.

• A l l cases o f such s u p p o r t e d a d m i s s i o n s w i l l be r e v i e w e d by a M e n t a l

H e a l t h Review C o m m i s s i o n w h i c h w i l l f u n c t i o n t h r o u g h D i s t r i c t Boards.

The e s s e n t i a l t a s k o f t h e C o m m i s s i o n / B o a r d s i s t o e n s u r e t h a t a d m i s s i o n

o f a n y p e r s o n t o a m e n t a l h e a l t h f a c i l i t y i s t h e l e a s t r e s t r i c t i v e c a r e o p t i o n

u n d e r t h e c i r c u m s t a n c e s .

• The M H C Bill has p r o v i s i o n s f o r C e n t r a l a n d S t a t e M e n t a l H e a l t h

A u t h o r i t i e s (CMHA & SMHA) a n d a M e n t a l H e a l t h Review C o m m i s s i o n

(MHRC). This i s t h e s t r u c t u r e f o l l o w e d i n a l l m o d e r n a n d p r o g r e s s i v e

l e g i s l a t i o n s . The CMHA a n d SMHA a r e l a r g e l y a d m i n i s t r a t i v e b o d i e s

c o n c e r n e d w i t h r e g u l a t i n g / s e t t i n g s t a n d a r d s f o r m e n t a l h e a l t h f a c i l i t i e s ,

m a i n t a i n i n g r e g i s t e r s o f such f a c i l i t i e s a n d o f m e n t a l h e a l t h p r o f e s s i o n a l s

a n d carry o u t t r a i n i n g f u n c t i o n s . The c o m p o s i t i o n o f t h e s e b o d i e s

r e f l e c t s t h e s e f u n c t i o n s .

• The MHRC is a q u a s i - j u d i c i a l b o d y to p r o v i d e an i n d e p e n d e n t o v e r s i g h t to

t h e f u n c t i o n i n g o f m e n t a l h e a l t h f a c i l i t i e s a n d p r o t e c t t h e r i g h t s o f

p e r s o n s w i t h m e n t a l illness i n t h e s e f a c i l i t i e s . I t t h u s m e e t s t h e n e e d f o r

an i n d e p e n d e n t r e v i e w m e c h a n i s m as r e q u i r e d u n d e r t h e CRPD. The

c o m p o s i t i o n o f t h e MHRC r e f l e c t s i n q u a s i - j u d i c i a l f u n c t i o n ( h e a d e d b y a

r e t i r e d H i g h C o u r t J u d g e a n d s t a f f e d w i t h D i s t r i c t Judges).

• The d i r e c t i o n a n d t h r u s t o f t h e M H C Bill, 2 0 1 3 i s t h a t t h e S t a t e assumes

t h e r e s p o n s i b i l i t y f o r p r o v i d i n g a d e q u a t e h e a l t h c a r e , i n c l u d i n g s u p p o r t t o

c a r e g i v i n g f a c i l i t i e s . A t p r e s e n t t h e D i s t r i c t M e n t a l H e a l t h P r o g r a m m e

(DMHP) o p e r a t e s i n 1 2 3 d i s t r i c t s i n t h e c o u n t r y t h o u g h i t m u s t b e

r e c o g n i z e d t h a t d e l i v e r y o f h e a l t h c a r e services i s n o t o p t i m a l e s s e n t i a l l y

f o r t h e r e a s o n t h a t t h e D M H P r e q u i r e s every d i s t r i c t t o h a v e a f u l l

c o m p l e m e n t o f a p p r o p r i a t e l y t r a i n e d p r o f e s s i o n a l s . Though t h e N a t i o n a l

M e n t a l H e a l t h P r o g r a m m e ( N M H P ) offers f i n a n c i a l s u p p o r t t o s t a t e

g o v e r n m e n t s t o i n c r e a s e t h e n u m b e r o f s e a t s i n m e d i c a l c o l l e g e s a n d

n u r s i n g c o l l e g e s i n t h e a p p r o p r i a t e d i s c i p l i n e s , p r o g r e s s has n o t b e e n

fast. The 1 1 t h Plan o u t l a y f o r N M H P i n c l u d i n g DMHP was Rs.623 crores.

I n a p a r a l l e l exercise t o t h e d r a f t i n g o f t h e M H C B i l l 2 0 1 3 , t h e D M H P has

been s u b s t a n t i a l l y r e w o r k e d w i t h a f o c u s o n c o m m u n i t y a n d h o m e b a s e d

c a r e a s r e q u i r e d b y t h e M H C Bill, 2 0 1 3 . "

7. During the course of his oral evidence before the Committee on the 29th

August, 2013, the Secretary, Department of Health and Family Welfare

apprised the Committee of the salient features of the Bill . He pointed out that

unlike the existing Act, which mixes healthcare and social care issues, the present

Bil l seeks to isolate the purely healthcare-related aspects while not going into the

questions of guardianship and civic and political rights. He pointed out that the

number of psychiatrists in our country is very small; it is not more than 4,000.

Further, the number in public sector, amongst these 4,000, would be a small

number. Many are in private practice. So, this is one of the reasons that this Bill

insists on various levels of community-based care and half-way homes. It is

because every person with illness is not going to have access to a qualified

psychiatrist. There may be one level of consultation, but on-going care and

treatment will need to be provided in the districts, sometimes at the PHC level,

through care givers. Number of those people is not adequate, but clearly, the onus

is on the Department to create much larger number of health professionals in this

area who cannot all be psychiatrists.

8. Further elaborating on the present scenario on the mental health care

facilities in the country, the Secretary, submitted that the most exhaustive studies

have been done by the National Human Rights Commission, which after the

Erwadi tragedy of 2001, undertook a very detailed study. At that time, 36 mental

health facilities were there in the country which is 38 now. The study was very

detailed and that report brought out many of the instances of cruel treatment and

people being chained, people being beaten, people being denied any kind of

dignity. If there was one question that has driven this whole process, it was on the

voluntary versus involuntary admission. It was presumed that all the time, a

person with mental illness has the capacity to make a decision unless the situation

was so exceptionally otherwise that he could not take a decision. Even in those

situations, the quasi judicial process would come into play.

9. Apprising the Committee of the scenario of Post Graduation Education Dr.

P. Satishchandra, Director, NIMHANS, Bengaluru during the course of his

deposition before the Committee on 11th October, 2013 delineated on the brief

history of the Acts enacted in the field of mental health and the need for

introduction of the present Bill . He also made the following suggestions as regards

the Bi l l : (i) need to exclude general hospitals from the licensing procedure under

the definition of 'Mental Health Establishment' in the Bi l l ; (ii) need to exclude

people with alcohol and substance users ( who do not have substance induced

mental illness and mental retardation/intellectual disability) in the definition of

"Mental Ilness"; (iii) Electro Convulsive Therapy should be done under

Anaesthesia always; (iv) Need to have State Mental Health Commission(SHMC)

in each State and Union Territories and the said commission will be formed in

consultation with Central Mental Health Commission and the State. He further

stated that Mental Health Boards will be constituted by the SHMC after assessing

the needs, etc. He also delineated that the following rights need to be enlisted in

the B i l l : (a) Mental illness should not be a ground for divorce;(b) disability due to

mental illness is usually ignored or discriminated. Mental disability need to be

considered on par with physical disability for all disability benefits; (c) all general

hospitals(public and private) shall not refuse emergency psychiatry treatment.

10. He further submitted that Post Graduate Education in Psychiatry in the country

is growing very well now as compared to few years back. In the last five years, the

number of seats have been doubled. In all medical colleges now, the Psychiatry

Department has been started. There are many psychiatric departments running

these courses. The Central Institutes like the National Institute of Mental Health

and Neurosciences, Bengaluru, the CIP (Ranchi) and Tejpur have doubled the

intake of the seats. However, the number of psychiatrists in this country still does

not exceed 4,000, and that is why, there is a great need to add on the number of

psychiatrists. He felt that the only way of addition was to increase the Institutes as

well as the courses at the level of post-graduation in the medical colleges.

According to him a serious attempt has been made by the Government and it was

expected that within the next two to three years' time, there would be a significant

increase in the number of the post-graduates coming out of these institutions. But,

compared to the western world, the number of psychiatrists in this country was

definitely very low. The way to progress was to use the other mental health

professionals in the form of psychologists. The psychiatrist social workers as well

as the psychiatrist nurses are also needed. Their number is also significantly less.

Thus , there is a dire need to increase the number of seats in all these colleges.

Apart from this, the post-graduates in medicine are being trained in psychiatry

now, and, a short-term training course has been given to many of the District

Medical Officers. They have all been provided with a short-term training in the

institutions like Central Institutes of Bangalore, Tejpur and Ranchi. He also stated

that the physicians, general practitioners and the doctors in the District Mental

Hospitals are being trained under the National Mental Health Programme as well

as District Mental Health Programme, and, this short-term training helps them to

deal with the acute emergencies at the peripheral centers. Regarding the

Electroconvulsive Therapy with a modified variety, Dr. Satishchandra stated that

the number of anaesthetists in the country is 16,000 and the number of

psychiatrists is 4,000. So, at every place, where the psychiatrists were available,

there were anaesthetists and that the Government has been requested to provide

these facilities of anaesthetists . Further this law will ensure that the facilities are

provided at all these places where ECT has to be given.

Views of the State Governments 11. To acquaint itself with the views of the State Governments, the Committee

sought the written comments of all the State/UT governments. However, only

Delhi government responded. In a written submission, the Government of Delhi

furnished the following comments based on the experience of Institute of Human

Behabiour &Allied Sciences (IHBAS), Delhi and technical office of State Mental

Health Authority (SMHA), Delhi:

(i) Differentiation of "treatment order" versus "admission order" in the Bil l as mandatory admission for involuntary treatment is difficult to apply in the community setting and is also not in the spirit of the government policy of promoting and providing community based mental health services including rehabilitation. (ii) Confidentiality of Psychiatric Case Records Related to Right to Information Act must be ensured. Thus the clause related to right to access to medical records must be finetuned accordingly. (iii) Provision of Mobile Mental Health Service needs to be introduced in the Bil l and specially the provision of legal authorization for emergency medication in the field by Mobile Mental Health Unit team should be mentioned in the draft Bill . (iv) There should be separate provision in the draft Bil l regarding foreign nationals with clear clauses as problems in terms of admission/initiation of treatment/forced treatment/discharge are faced when foreign national is being brought by Police/Magistrate/Embassy. (v) A provision for district wise Board of Visitors should be made in the Bil l and Board of Visitors should be sectorised by making provision for district wise BOV. (vi) Make it mandatory for all lincensed psychiatric hospitals/ nursing homes to provide emergency psychiatric services. (vii) The provision of retired judge to be the Chairman of the proposed Mental Health Review Commission may be reviewed as it would be better if some person from user/carer/advocacy group can be given the charge of the Chairman of Mental Health Review Commission. (viii) Government Hospital Psychiatry Units should be brought under ambit of SMHA in the Bill . Views of Other Stakeholders/Experts Some important issues raised by some of the other experts/stakeholders are discussed briefly hereunder-: 12. During her presentation on 21s t October, 2013 before the Committee,

Ms. Amita Dhanda, Professor and Head, Centre for Disabilities Studies, N A L S A R

University of Law, Hyderabad submitted that she was of the view that the said

Bil l was not in harmony with the United Nations Convention on Rights of Persons

with Disabilities (UNCRPD) in letter and spirit and was in infringement of Part III

of the Constitution. The said Bil l gives no power to the affected person to seek exit

from the institution if he was not satisfied with the treatment. The Bil l is also silent

on the right of the affected person to live independently and there was a need to

bring an amendment to the proposed legislation in this regard. Further there was a

need to relook at clause 124 which says that all persons who attempt to commit

suicide are presumed to be suffering from mental illness unless proved otherwise.

Further there was a need to relook at clause 114(2) of the Bil l in which "proof of

Mental Illness" obtained from a Board would suffice for obtaining 'divorce' which

was not fair to convert a legal dispute into a medical dispute. Therefore, there was

a need to delete this provision.

13. Dr. Vikram Patel from the Public Health Foundation of India (PHFI) during his

deposition before the Commitee on 11th October, 2013 supported the Bill and

stated that the proposed Bill is a vast improvement over the last enactment in

1987. He made the following points in support of the Bill: (i) Constitution of

Mental Health Review Board in the districts under Section 80 of Chapter XI is a

key step to safeguard the rights of persons with mental health conditions;(ii) the

Bill contains sufficient safeguards in regard to the provisions for 'Advance

Directive' and 'Nominated Representative' (iii) unlike previous legislation where

the entire onus to protect the rights of the individual with mental condition was

on the magistrate, the new Bill places this responsibility on a five member district

board on which it would be mandatory to have a psychiatrist on board to review

the clinical status of patient and the psychiatrist has major decision making

powers in the functioning of the Board.

14. He further stated that for the majority of Indians who suffer from a mental

illness, and in particular those who live in poor and rural circumstances, the

unavailability of appropriate, evidence based mental health care was a major

impediment to their recovery. The quality of life of such persons and their

caregivers was abysmal, often initiating a downward spiral into further poverty,

hopelessness and even homelessness. Social exclusion, violent victimization and

human rights abuse were more prevalent in people with mental illness. The lack of

access to evidence based treatment and care for mental illness has reached a critical

point and a concerted national effort was needed to address this public health

crisis.

15. He also stated that the MHCB enshrines access to health care as a right

and holds the Government accountable for service delivery. The Bill proposes to

foster a climate of reforms both within Mental Hospitals and in the community by

setting up a Mental Health Review Commission that would regulate admission,

discharge and deal with violation of rights.

16. The Committee heard the views of Dr. S.K. Deuri, Director, Lokopriya

Gopinath Bordoloi Regional Institute of Mental Health (LGBRIMH), Tejpur,

Assam on the Bill on the 16t h December, 2013. Dr. Deuri submitted that entry

point for treatment was given in the Bill but the Bill was silent on the procedure

for exit of patients after availing treatment. The Bill was also silent on

rehabilitation of the treated and recovered patients. He also raised the issues like

criminals being sent to Mental Institutions without availability or otherwise of

beds in such institutions; no proper definition of psychiatric nurse/psychiatric

social worker; regressive provision for transportation of patient from one State to

another which would not be in the interest of the patient. In a written

submission, the Department of Psychiatric Social Work, LGBRIMH, Tezpur Assam

made the following submissions:

(i) The Mental Health Care Bill 2013 has changed its outlook from a medical model

to a social model by incorporating the rights based provisions of UNCRPD. Unlike

the earlier Mental Health Act 1987(Chapter VIII, Section 81), the current one has

made provision for detailed rights of the person with mental illness in the Chapter

5.

(ii) Chapter I, Clause 2 defines Mental Health Professionals and but the definitions

put forth are wrongly inserted. It has been put forth that due to absence of

adequate number of professional social workers with M Phil degree, a lower PG

degree has been proposed as the required qualification for Psychiatric Social

Workers. This similar justification should have also been applied for all the mental

health professionals (Psychiatrist, Clinical Psychologists and Psychiatric Nurse) as

all are in the similar status in terms of quantity.

(iii) Rules could be specified that in places where there are shortages of

manpower with M Phil degree, personnel with PG in Social Work could be trained

under the NMHP to augment the services as Psychiatric Social Worker Assistant,

just as Medical Officers with training and experience in Psychiatry were

designated to take on the role of Psychiatrists by the State authority. (Chapter 1,

Clause 2 , Section x)

(iv) In regard to Mental Health Review Commission (MHRC), the number of

members should be increased. A representative from the allied professions like

psychiatric social work, clinical psychology and psychiatric nursing should be

considered to be a part of the Commission. Sections 80 and 81 which deals with

the Review Board at district levels, should consider increasing the number of

members. A representative from the allied professions like psychiatric social work,

clinical psychology and psychiatric nursing should be considered to be a part of the

commission.

(v) The proposed Bil l still continues its link with the correctional system. The

clause 101, chapter XII, on ' leave from the hospital' requires a police officer to

accost the person with mental illness to return to treatment facility. This further

serves to stigmatise the person with mental illness. The section dealing with 'leave'

should be repealed. It also contradicts with person's right to get discharged without

any consent from officer in charge/psychiatrist.

(vi) The Bil l vests the right to transfer the person with mental illness from one

mental health establishment to another, within and outside a state to the State

Authority and this could go against the interest of the person and his right . This

has the danger of abandonment and alienation of the person. Treating personnel in

Mental Health need to move to Prisons as part of integration of services and

community extension initiatives . A prison set-up coming to a hospital is not a very

practical move.

(vii) In Clause 109 under Chapter XIII , section 7 requires an FIR to be lodged for

any mentally i l l homeless person. The matter of using the police measures like

lodging FIR further increases the stigma and the person could get lost in the

system.

(viii) Clause 128 of protection for acts done in good faith does not include the

mental health professionals. Non- inclusion of mental health professional in this

provision is discriminatory.

(ix) The Bil l is silent on issues of rehabilitation aspects for chronic mental illness.

There is no provision for protecting the rights of persons with mental illness who

are abandoned/disowned by their family members/who refuse to accept the person

back into the family. The Bil l also could make a provision for addressing

stigmatizing behaviors in family, community and workplace. A provision should

be inserted as a penalty for indulgence in stigmatizing behavior and act as

deterrence in the society.

17. Dr. Sudhir K Khandelwal, Professor of Psychiatry, AIIMS, New Delhi

during the course of his deposition before the Committee on the 4th, October,

2013 stated that though the Bil l had addressed certain other concerns, there were

certain concerns which needed to be addressed viz. high level of qualification

needed to qualify as a clinical psychiatrist would act as a dampener as manpower

needed to qualify for the post of clinical psychiatrists would be difficult to find

in practice; definition of mental illness is ill-conceived and is over inclusive;

features like 'causing distress or impairment' would make practically whole of

Indian population mentally i l l at some point of time; number of clauses in the

'advance directive' would make it a difficult and lengthy process to actually

implement the said directive in practice; it is not clear if the person with the power

of advance directive has power for making the treatment decisions of the patient

only, or if he could also make civil and property related decisions also; it had not

been specified or defined ' serious mental harm' or likelihood of harm, thus the

provision regarding access to medical records might be misused; it is not clear

whether the Mental Health Review Commission (MHRC) will function as an

Authority or a Tribunal; fuctions of MHRC not clearly defined; the issues of

purview of State Mental Health Authority (SMHA), co-ordination among various

SMHAs had not been addressed; need for exemption in the provisions of the said

Bil l for the purpose of admission and discharge of mentally ill persons in General

Psychiatric care unit of the General Hospital; the Bil l is silent on provisions of

care and services for mentally ill homeless people; civil rights and property rights

have been ignored in the Bil l ; process of drafting MHRC is neither clear , nor

transparent.. He further stated that the Bil l should focus on governance and not the

treatment aspect and unmodified ECT treatment should be exempted from ban

under this Bill .

18. At the meeting held on 4th, October, 2013, Ms. Vandana Gopikumar,

Founder Trustee, The Banyan Centre, Chennai submitted before the Committee

that she was in favour of the Bil l in the present form. However, she suggested for

need to reframe clause 124 of the Bil l ; and need to include Primary Health Centres

(PHCs) under the ambit of the said Bil l .

19. During the course of the meeting held on 16th September, 2013, the

Committee heard the views of Dr. Indira Sharma, President, Indian Psychiatry

Society (IPS) along with fellows of Indian Psychiatry. Dr. Sharma submitted before

the Committee that as the Head of Indian Psychiatry Society she was against the

enactment of the said Bill in its present form. Delineating the reasons for the

same, she stated that the said Bill had been drafted without taking into

consideration the viewpoint of Indian Psychiatry Society (IPS). She stated that

though the society was a conglomeration of 5000 Members, it had been ignored

while drafting the Bill. She was of the view that the concepts incorporated in the

Bill like use of terms Advance Directive, nominated representatives; making

willingness of the patient mandatory for availing treatment were alien to Indian

culture, which would be dangerous for the patient as well as his near and dear

ones. She emphasized focusing on the family model treatment in which the

family members would be in a position to give consent on the need for

subjecting a patient to psychiatric treatment.

20. Dr. B.S Chavan, Chairman, IPS submitted that the concept of parents of

child having to take permission of Mental Health Review Commission for

treatment of mental illness was dehumanizing for the parents and the child in

question. Dr. T.V. Asokan, President-Elect, IPS was of the view that the concept

of nominated representative would lead to a tussle between the family of the

person suffering from mental illness and the nominated representative who may

not be a blood relation of the person suffering from mental illness and such

nominated representative could misuse the said provision for usurping the

property or deriving other benefits which would devolve upon the person

suffering from mental illness. Dr. T.S.S. Rao, Editor in Chief, Indian Journal of

Psychiatry, IPS was of the view that the said Bill treats Psychiatric diseases as a

stigma which was not good from the patients' as well as from doctor's point of

view. Dr. Dinesh Kataria, Convenor, IPS was of the view that the provisions of

the said Bill would lead to the exodus of doctors studying Psychiatry in India to

foreign shores.

21. Dr. Nirmala Srinivasan, Director, Action for Mental Illness, Bengaluru

during her deposition before the Committee on 4 t h October, 2013 stated that

while supporting the Bill she opined that the Bill needed to be nuanced in certain

terms viz. proper definition of family care giver needed to be included in the Bill;

need to make family of the affected person inclusive in the said Bill. She insisted

on the need for more broader role for nominated representative in the said Bill

and need to include safeguards in the Right to manage property of the affected

person.

22. Shri Amrit Kumar Bakshy, President, Schizophrenia Awareness

Association, Maharashtra; during his deposition on 4th, October, 2013

submitted the following that there was a need for a complete ban on modified

ECT. Further it was important to provide definitions of family care giver and paid

care giver separately in the said Bill. He submitted that nominated representative

appointed under section 14 should be deemed to be nominated representative

to give effect to advance directive when the need arises to avoid confusion and

conflict; a hierarchy among relatives may be given in the Advance Directive

clause; "shall" in place of "shall endeavour "in Section 21 (2) regarding medical

insurance to make it more effective; "who has reason to believe...." In sub

sections (1) and (2) of Sections 110 may be substituted with "who has some

evidence to the effect...." to protect the family caregivers from harassment.

23. Shri Akhileshwar Sahay, Whole Mind India Foundation, Pune; during his

deposition on 4th, October, 2013 submitted that he was a bipolar patient and

undergoing psychiatric treatment for the same in AIIMS and was completely in

favour of the present Bill. He felt that the present Bill should be passed by the

Parliament into an Act and whatever infirmities which are presently in the said

Bill could always be taken care of in the future by way of an amendment to the

present Bill after it was passed. He was also thankful that the provision which

decriminalized 'suicide' had become a part of the said Bill.

24. The Committee heard the views of Dr. Shekhar Saxena, Director, Department

of Mental Health and Substance Abuse, World Health Organization, Geneva,

Switzerland on 11th October, 2013. Dr Saxena delineated the following points

on the said Bill: (i) the present Bill laid emphasis on the quality aspect and

encouraged transparency in the field of Mental Health unlike previous Acts, (ii)

laid emphasis on ECT treatment not to be given to children; (iii) the terms

'Advance Directive' and 'Nominated Representative' are in line with the United

Nations Convention on Rights of Persons with Disabilities(UNCRPD).

Clause-by-Clause Examination of the Bill 25. During the course of the examination of the Bil l the Committee took note of

concerns, suggestions and amendments as expressed by various

experts/stakeholders duly communicated them to the Ministry for its response.

Committee's observations and recommendations contained in the Report reflect an

extensive scrutiny of all the viewpoints put forth before it. Upon scrutiny of the

replies received from the Ministry, various amendments to the said Bil l have been

suggested by the Committee which are discussed in the succeeding paragraphs.

26. Clause 1(3) and 1(4) 1 . ( 1 ) This A c t may be c a l l e d the M e n t a l H e a l t h Care A c t , 2 0 1 3 . (2) I t s h a l l e x t e n d to the w h o l e o f I n d i a . (3) The p r o v i s i o n s of t h i s A c t , except the p r o v i s i o n s of sections 3 3 , 45 a n d 73, s h a l l come i n t o f o r c e w i t h i n a p e r i o d of three months f r o m the date on w h i c h i t receives the assent of the P r e s i d e n t . (4) The p r o v i s i o n s of sections 33, 45 a n d 73 s h a l l come i n t o f o r c e w i t h i n a p e r i o d of n i n e months f r o m the date on w h i c h it receives the assent of the P r e s i d e n t .

27. Suggestions The provisions of this Act, except the provisions of sections 33, 45 and 73, shall

come into force within a period of three months from the date on which it

receives the assent of the President. The provisions of sections 33, 45 and 73 shall

come into force within a period of nine months from the date on which it receives

the assent of the President. In this respect, it is important that usage of the

phrase "within three months" may be confusing as the exact date is not fixed and

could be anytime within three months. Moreover, no procedure such as

notification in the gazette by the Central Government has been prescribed in the

Bill as a means of notifying to the general public that the Bill has become

effective. Thus either there should be fixed/ determinable date on which the Bill

comes into effect or the Bill should clearly provide that the date on which the

Central Government notifies in the gazette would be the date from which the law

would be implemented.

28. Ministry's Response The Ministry has agreed and stated that this Bil l shall come into force 9 months

from the date on which it receives the assent of the President, or any earlier date if

so notified by Government.

29. Recommendation of the Committee

The Committee acknowledges that the Ministry has accepted the suggestion

regarding amendments to clause 1(3) and (4). The Committee is of the view

that the new provisions would lend greater clarity and coherence to the

operation of the proposed Act and serve the intended purpose. The

Committee, therefore, recommends that the proposed amendment may be

incorporated in the Bill.

30. CLAUSES 2 (1)(f) (f) " c l i n i c a l p s y c h o l o g i s t " means a p e r s o n — (i) h a v i n g a r e c o g n i s e d qualification i n C l i n i c a l P s y c h o l o g y f r o m a n i n s t i t u t i o napproved a n d r e c o g n i s e d , b y the R e h a b i l i t a t i o n C o u n c i l o f I n d i a , c o n s t i t u t e d u n d e r s e c t i o n 3 o f the R e h a b i l i t a t i o n C o u n c i l o f I n d i a A c t , 1 9 9 2 ; or

(ii) h a v i n g a Post G r a d u a t e degree in P s y c h o l o g y or A p p l i e d P s y c h o l o g y a n d a M a s t e r o f P h i l o s o p h y i n C l i n i c a l P s y c h o l o g y o r m e d i c a l a n d s o c i a lp s y c h o l o g y o r M a s t e r s o f P h i l o s o p h y i n m e n t a l h e a l t h a n d s o c i a l p s y c h o l o g y o b t a i n e d after c o m p l e t i o n o f a f u l l time c o u r s e o f t w o years w h i c h i n c l u d e ss u p e r v i s e d c l i n i c a l t r a i n i n g o r d o c t o r a t e i n c l i n i c a l p s y c h o l o g y w h i c h i n c l u d e ss u p e r v i s e d c l i n i c a l t r a i n i n g , f r o m any u n i v e r s i t y r e c o g n i s e d by the UniversityG r a n t s C o m m i s s i o n e s t a b l i s h e d u n d e r the University G r a n t s C o m m i s s i o n A c t , 1956;

31. Suggestions Since Clinical Psychology professionals work with persons with Mental Illness

(acute and chronic), the "Clinical Psychologists" are brought under the purview of

the RCI Act and their registration with RCI has been made mandatory (In Clinical

Rehabilitation Register, maintained by the Council).

Currently, no university, department, hospital, association, partnership, NGO, or

corporate body without a valid recognition by the Council, under the provision of

RCI Act, 1992, conduct, offer or offer to conduct any of Clinical Psychology

training courses, unless these entities are approved by the Council for the function

stated.

The RCI defines "Clinical Psychologists" as follows i. A Professional Qualification in Clinical Psychology recognized by the RCI,

from time to time, obtained from RCI approved institutions and granted by

an University recognized by University Grants Commission as per Section 11

and 12 of RCI Act, 1992.

ii. Registration in the Central Rehabilitation Register (CRR) as per Section 13 of

RCI Act, 1992.

In defining "Clinical Psychologists" in the proposed Bil l , the RCI Act, 1992 has

been over ruled by including degrees like 'Master of Philosophy in Mental Health

and Social Psychology' of 'Ph.D. in Clinical Psychology' as qualification for

Clinical Psychologists, whereas RCI, the apex body does not recognize them. In

view of this, it is suggested to remove this section 2(l)(f)(ii) from the Bill . The

terms in sub-clause (ii) of clause (f) which reads as "doctorate in clinical

psychology which includes supervised clinical training" in the current version of

the Bil l may be omitted since Ph.D. in any branch of Psychology including so

called "Clinical Psychology" is NOT RECOGNISED by the Council as

professional qualification on various counts. Thus, there is scope of serious legal

ramifications and a flawed legislation thus defeating the very purpose for which

the Bil l is being prepared.

32. Response of the Ministry: The Government accepts the suggestion of RCI and section 2 (1) (f) will be amended accordingly : The amended section 2 (1) (f) shall read as follows : Clinical psychologist means -

(i) having a recognized qualification in clinical psychology from an institution approved and recognized by the Rehabilitation Council of India, constituted under Section 3 of the Rehabilitation Council of India Act, 1992 ; or

(ii) having a Post Graduate degree in Psychology or Applied Psychology and a

Master of Philosophy or medical and social Psychology or Master of Philosophy in

mental health and social psychology obtained after completion of a full time course

of two years which includes supervised clinical training from any University

recognized by the UGC established under the University Grants Commission Act,

1956 and approved and recognized by the Rehabilitation Council of India Act, 1992.

33. Recommendation of the Committee The Committee recommends that the Ministry may bring the suggested

amendment in the clause.

34. Clause 4 (1) 4. (1) E v e r y p e r s o n , i n c l u d i n g a p e r s o n w i t h m e n t a l i l l n e s s s h a l l be deemed to have capacity to make d e c i s i o n s r e g a r d i n g h i s m e n t a l h e a l t h care or t r e a t m e n t , i f such p e r s o n has a b i l i t y t o , — (a) u n d e r s t a n d the information r e l e v a n t to the m e n t a l h e a l t h care or t r e a t m e n t d e c i s i o n ; (b) r e t a i n t h a t information; (c) use or w e i g h t h a t information as p a r t of the process of m a k i n g the m e n t a l h e a l t h care o r t r e a t m e n t d e c i s i o n ; a n d (d) c o m m u n i c a t e h i s d e c i s i o n b y any means ( i n c l u d i n g t a l k i n g , u s i n g s i g n l a n g u a g e o r any o t h e r m e a n s ) .

35. Suggestions The clause seeks to place onerous requirements on persons with mental illness to

show that they have the capacity to make decisions related to their mental health

treatment and care. To be deemed to have capacity, a person with mental illness is

required to show that she/he is able to understand information relevant to mental

health or treatment decisions, retain that information, use or weigh such

information in decision-making and communicate her/his decision. If any of the

four mentioned criteria is not fulfilled then the person will not be 'deemed' to have

capacity to make mental health treatment and care related decisions. Despite the

stated objective of the Bil l to respect the autonomy and promote active

participation of persons with mental illness in decision-making, section 4 creates a

presumption in law against the capacity of person with mental illness. Section 4,

especially section 4(b) and (c), in their application, will exclude, amongst others,

persons with Alzheimer's and dementia.

It is suggested that there be a presumption in favour of persons with mental illness and that the section be altered as follows:

Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental health care or treatment unless it is proved that

(a) The person is unable to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, and

(b)The person is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

36. Ministry's Response The Ministry accepts this suggestion and suggests that Section 4 be changed as follows : Section 4 (1) shall read as follows Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental health care and/or treatment unless it is proved that a) The person is unable to understand the information that is relevant to making adecision about the treatment, admission or personal assistance service, and

b) The person is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision. c) Unable to communicate his decision by any means (including talking, using sign language or any other means) Section 4 sub-sections (2), (3) and the Explanation remain the same.

37. Recommendation of the Committee The Committee observes that there is merit in the reservations expressed with

regard to Clause 4 and the Ministry, has agreed to incorporate the necessary

changes and thus, uphold the constitutional norm of equality. It also reflects

the principle of self-determination which gives right to a person with mental

illness to make mental health care and treatment decisions. The Committee,

therefore, recommends that the new/alternate clause as proposed by the

Ministry in respect of Clause 4(1), may be included in the Bill.

38. Clause 11(1) and 11(2)

11. (1) Where a m e n t a l h e a l t h professional or a r e l a t i v e or a c a r e - g i v e r of a p e r s o n desires n o t t o f o l l o w a n a d v a n c e d i r e c t i v e w h i l e t r e a t i n g a p e r s o n w i t h m e n t a l i l l n e s s , such m e n t a l h e a l t h professional or the r e l a t i v e or the c a r e - g i v e r of the p e r s o n may make an a p p l i c a t i o n to the c o n c e r n e d B o a r d to review, alter, modify or c a n c e l the a d v a n c e d i r e c t i v e . (2) Upon receipt of the a p p l i c a t i o n u n d e r s u b - s e c t i o n (1), the B o a r d may, after g i v i n g a n opportunity o f h e a r i n g t o a l l c o n c e r n e d p a r t i e s ( i n c l u d i n g the p e r s o n whose a d v a n c e d i r e c t i v e is in q u e s t i o n ) , e i t h e r uphold, modify, a l t e r or c a n c e l the a d v a n c e d i r e c t i v e after t a k i n g i n t o c o n s i d e r a t i o n the f o l l o w i n g , namely:— (a) w h e t h e r the a d v a n c e d i r e c t i v e was made by the p e r s o n o u t o f h i s o w n f r e e w i l la n d f r e e f r o m f o r c e , u n d u e influence o r c o e r c i o n ; o r

(b) w h e t h e r the p e r s o n i n t e n d e d the a d v a n c e d i r e c t i v e to apply to the presentc i r c u m s t a n c e s , w h i c h may be different f r o m those a n t i c i p a t e d ; or

(c) w h e t h e r the p e r s o n was sufficiently w e l l informed to make the d e c i s i o n ; or (d) w h e t h e r the p e r s o n h a d capacity t o make d e c i s i o n s r e l a t i n g t o h i s m e n t a l h e a l t h care or t r e a t m e n t when such a d v a n c e d d i r e c t i v e was made; or (e) w h e t h e r the c o n t e n t of the a d v a n c e d i r e c t i v e is c o n t r a r y to o t h e r l a w s or c o n s t i t u t i o n a l p r o v i s i o n s . 39. Suggestions The proposed clause allows a mental health professional or relative or care-giver

to override an advance directive where they 'desire 'not to follow it. Such a person

may make an application to the Board to review, or cancel the advance directive. It

is suggested that it should be mandatory to make an application to the Board to

review the decision to not follow the advance directive. The provision is too broad

and vague, since nearly anybody can challenge an advance directive, merely on a

subjective 'desire'. Though the decision to override the advance directive has to be

reviewed by a Board, the burden of proof regarding the validity of the advance

directive as well as their capacity lies on the person with mental illness. The

provision overrides the right to autonomy and consent of a person with mental

illness. The right to autonomy stems from the right to dignity, which is an inherent

part of the right to life guaranteed under Article 21 of the Constitution of India.

40. Ministry's Response The Ministry accepts this suggestion and proposes the following changes: 11 (1) Where a mental health professional or a relative or a care-giver of a person desires not to follow an advance directive while treating a person with mental illness, such mental health professional or the relative or the care-giver of the person shall make an application to the concerned Board to review, alter, modify or cancel the advance directive. 11(2) Upon receipt of the application under sub-section (1), the Board shall, after giving an opportunity of hearing to all concerned parties (including the person whose advance directive is in question), either uphold, modify, alter or cancel or otherwise determine the applicability of the advance directive after taking into consideration the following, namely:— (a) whether the advance directive was made by the person out of his own free will and free from force, undue influence or coercion; or (b) whether the person intended the advance directive to apply to the present circumstances, which may be different from those anticipated; or (c) whether the person was sufficiently well informed to make the decision; or (d) whether the person had capacity to make decisions relating to his mental health care or treatment when such advanced directive was made; or (e) whether the content of the advance directive is contrary to other laws or constitutional provisions. 41. Recommendation of the Committee: The Committee recognizes the fact that if Clause 11(1) and (2) is not amended,

it may become tool of exploitation of person with mental illness and dilute

their rights. Thus, the Committee endorses the proposed amendments to

Clause 11(1) and (2) and recommends that the changes may be suitably made

in the Bill so that the Board be required to examine the bonafides of the

decision to override the advance directive in a holistic manner.

42. Clause 18(4)

18(4) Without p r e j u d i c e to the g e n e r a l i t y of r a n g e of services u n d e r s u b - s e c t i o n (3),such services s h a l l i n c l u d e — (a) p r o v i s i o n o f a c u t e m e n t a l h e a l t h care services such as o u t p a t i e n t a n d i n p a t i e n t services; (b) p r o v i s i o n of half-way homes, s h e l t e r e d a c c o m m o d a t i o n , s u p p o r t e d a c c o m m o d a t i o n ; (c) p r o v i s i o n f o r m e n t a l h e a l t h services t o support f a m i l y o f p e r s o n w i t h m e n t a l i l l n e s s or home based r e h a b i l i t a t i o n ; (d) h o s p i t a l a n d c o m m u n i t y based r e h a b i l i t a t i o n establishments a n d services; (e) p r o v i s i o n f o r c h i l d m e n t a l h e a l t h services a n d o l d age m e n t a l h e a l t h services. 43. Suggestions In Clause 18(4)(b), the terms "half-way homes", "sheltered accommodation" and

"supported accommodation" have been not defined in the Bill . Further, in Clause

18 (4)(d) the term "community based rehabilitation establishments and services"

too has not been defined. It will be in order to either define these concepts under

the Bil l or instead allow the Central Authority or State Authority to frame rules for

establishment of these institutions. Therefore, sub-clause (4) of Clause 18 may be

modified as follows:

"(4) Without prejudice to the generality of range of services under sub¬ section (3), such services shall include-(a) (b) Provision of half-way homes, sheltered accommodation, supported accommodation, as may be prescribed: (c) (d) Hospital and community based rehabilitation establishments and

services, as may be prescribed: (e)

44. Response of the Ministry The Ministry has suggested that the words "as may be prescribed" may be inserted at the end of Clause 18(4) (b) and (d). 45. Recommendation of the Committee While endorsing the inclusion of the words "as may be prescribed" to Clause

18(4) (b) and (d), as proposed by the Ministry, at the Committee's behest, the

Committee recommends that the Government should carry out the proposed

modifications in the Bill.

46. Clause 21(2) 2 1 (2) The I n s u r a n c e R e g u l a t o r y D e v e l o p m e n t A u t h o r i t y e s t a b l i s h e d u n d e r the

I n s u r a n c e R e g u l a t o r y D e v e l o p m e n t A u t h o r i t y A c t , 1 9 9 9 s h a l l endeavour t o ensure

t h a t all i n s u r e r s make p r o v i s i o n s for m e d i c a l i n s u r a n c e for t r e a t m e n t o f m e n t a l

i l l n e s s on the same basis as is a v a i l a b l e for t r e a t m e n t of p h y s i c a l i l l n e s s .

47. Suggestions

Clause 21 of the MHCB aims to obtain equality for persons with mental illness by

treating them at par with persons with physical illness. However this equality is

only limited to equality in emergency facilities; ambulance services; living

conditions and health services. When it comes to medical insurance which is one of

the areas of discrimination, Clause 21(2) only mandates "IDRA to endeavour to

ensure that all insurers make provisions for medical insurance for treatment of

mental illness on the same basis as is available for treatment of physical illness."

48. Ministry's Response

The term "shall endeavour" was inserted on the insistence of the Dept of Financial Affairs. However, change has been made as below:

The Insurance Regulatory Development Authority established under the Insurance

Regulatory Development Authority Act, 1999 shall (delete "endeavour to'')

ensure that all insurers make provisions for medical insurance for treatment of

mental illness on the same basis as is available for treatment of physical illness.


The Committee notes that Clause 21(2) which seeks to provide for

acceptance of medical insurance policies for persons with mental illness by the

insurance companies the same way as for physical illness is intended to

eliminate the existing discriminatory provisions and would provide a great

relief to persons with mental illness and their families. The effect is however,

diluted by the word "shall endeavour". The Committee, therefore, endorses

deletion of the word "endeavour" and recommends that as agreed to by the

Ministry, at the Committee's behest, the word "shall" may be retained in the

Bill.

50. Clause 23(2)

23 (2) A l l h e a l t h p r o f e s s i o n a l s p r o v i d i n g care o r t r e a t m e n t t o a p e r s o n w i t h m e n t a l i l l n e s s s h a l l have a duty to keep a l l such information confidential w h i c h has been o b t a i n e d d u r i n g care o r t r e a t m e n t w i t h the f o l l o w i n g e x c e p t i o n s , namely:— (a) r e l e a s e of information to the n o m i n a t e d r e p r e s e n t a t i v e to e n a b l e h i m to fulfil h i s d u t i e s u n d e r t h i s A c t ; (b) r e l e a s e o f information t o o t h e r m e n t a l h e a l t h p r o f e s s i o n a l s a n d o t h e r h e a l t h

p r o f e s s i o n a l s to e n a b l e them to p r o v i d e care a n d t r e a t m e n t to the p e r s o n w i t h m e n t a l i l l n e s s ; (c) r e l e a s e of information i f i t is necessary to p r o t e c t any o t h e r p e r s o n f r o m h a r m or v i o l e n c e ; (d) only such information t h a t is necessary to p r o t e c t a g a i n s t the h a r m identified s h a l l be released; (e) r e l e a s e of information in the case of life t h r e a t e n i n g emergencies w h e r e such information is urgently needed to save l i v e s ; (f) r e l e a s e of information upon an order by c o n c e r n e d B o a r d or the C o m m i s s i o n orH i g h C o u r t or Supreme C o u r t or any o t h e r s t a t u t o r y a u t h o r i t y competent to do so; a n d

(g) r e l e a s e of information in the i n t e r e s t s of p u b l i c safety a n d security.

51. Suggestions

Clause 23(2)(e) is very vague and leaves scope for ambiguity and confusion in

implementation stage. It does not specify why, when and how much information is

to be released. It simply says that release of information in the case of life

threatening emergencies where such information is urgently needed to save lives.


The Ministry has proposed the following changes in 23(2)(e) "(e) release of information if it is necessary to protect any other person from harm or violence provided that only such information that is necessary to protect against the harm identified shall be released;" 53. Recommendation of the Committee

The Committee observes that the clause 23(2) in the Bill deals with the right to

confidentiality in respect of a person with mental illness. Therefore, any scope

of ambiguity will defeat the purpose of this clause to keep all such information

confidential which has been obtained during care or treatment by health

professionals providing care or treatment to a person with mental illness. Any

exception to such important clause should be carefully framed with clear

intentions so as to avoid conflict and confusion at the implementation stage.

The Committee therefore recommends that the proposed changes may be


54. Clause 25 1 ) A l l persons w i t h m e n t a l i l l n e s s s h a l l have r i g h t t o access t h e i r m e d i c a l r e c o r d s . (2) The p s y c h i a t r i s t in charge of such records may w i t h h o l d specific information in

the m e d i c a l records i f d i s c l o s u r e w o u l d r e s u l t i n , — (a) s e r i o u s m e n t a l h a r m t o the p e r s o n w i t h m e n t a l i l l n e s s ; o r (b) l i k e l i h o o d of h a r m to o t h e r persons. (3) When any information in the m e d i c a l records is w i t h h e l d f r o m the p e r s o n , the

p s y c h i a t r i s t s h a l l inform the p e r s o n w i t h m e n t a l i l l n e s s o f h i s o r her r i g h t t o apply to the c o n c e r n e d B o a r d f o r an order to r e l e a s e such information

55. Suggestions

The Clause does not specify or define 'serious mental harm' or 'likelihood of

harm' and in what form this access is to be provided . This provision is to be

seriously reconsidered in view of potential of it being misused.

56. Ministry's Response Serious mental harm or likelihood of harm is a judgement to be made by the

psychiatrist and will have to be justified by the psychiatrist if this decision is

challenged by the person with mental illness. The way this provision may be

misused has not been specified.

57. Recommendation of the Committee The Committee recommends that the scope of misuse of medical records may

be relooked and suitably addressed before finalising the Bill.

58. Clause 27(2)

27(2) It s h a l l be the duty of m e d i c a l officer or p s y c h i a t r i s t in c h a r g e of a m e n t a l

h e a l t h e s t a b l i s h m e n t to inform the p e r s o n w i t h m e n t a l i l l n e s s t h a t he i s e n t i t l e d to

f r e e l e g a l services u n d e r the L e g a l Services A u t h o r i t i e s A c t , 1 9 8 7 o r o t h e r r e l e v a n t

l a w s or u n d e r any order of the c o u r t i f so o r d e r e d a n d p r o v i d e the c o n t a c t d e t a i l s

of the a v a i l a b i l i t y of services.

59. Suggestions

Clause 27 (2) is insufficient when read in relevance to Clauses 109 and 111

which brings within its ambit persons who 'may have a mental illness'. It imposes

duty only on the medical officer or psychiatrist in charge of a mental health

establishment to inform the person with mental illness that he is entitled to free

legal services. The purpose of clause 111 is to divert people from the criminal

justice system into the health care system. Section 111 sub-section (1) clause (a)

mentions that the person shall be dealt with in accordance with the provisions of

this Act and therefore all the rights protections in this Bil l will become applicable.

However, Clause 27 (2) does not impose any responsibility on the magistrate or

police officer to inform the person about his right to legal aid with respect to

Section 111. Thus, there is scope of arbitrariness application.


Taking into account the concerns expressed here, the Ministry proposes the

following:

It shall be the duty of the magistrate, the police officer, person in charge of a

custodial institution, medical officer or psychiatrist 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.


The Committee observes that it is important to amend clause 27 (2) so that

for want of information or due to their ignorance people with mental illness

are not deprived of legal remedies and rights guaranteed to them through

various provisions of the Bill. The Committee is of the view that the suggested

changes will address the concerns regarding arbitrariness. The Committee,

therefore, recommends that the amendments to Clause 27(2) as agreed to by

the Ministry, at the Committee's behest, may be duly incorporated in the Bill.

62. Clause 65(4)

(4) Every mental health establishment shall, for the purpose of registration and continuation of registration, fulfil—

(a) the minimum standards of facilities and services as may be specified by regulations made by the Central Authority;

(b) the minimum qualifications for the personnel engaged in such establishmentas may be specified by regulations made by the Central Authority; (c) provisions for maintenance of records and reporting as may be specified by regulations made by the Central Authority; and (d) any other conditions as may be specified by regulations made by the Central Authority.

63. Suggestions

As per Clause 65 (4) of the Bil l , Central Authority appears empowered to make regulations in relation to, i n t e r a l i a , minimum standards of facility and services, minimum qualification of personnel engaged in such establishment, provisions regarding maintenance of records and reporting etc.

However, delegation of this power solely to Central Authority to the exclusion of the State Authority militates against the concept of multi-layered regulation. This is also required as the local exigencies play a major role in any public health planning and regulation. The State Authorities will be in best position to understand the requirements and practical difficulties in their own state, and the regulations made by them will be more suited to administration. This is even more important as the implementation of the regulation will, in fact, be undertaken by the State Authorities. In view of the same, it is only proper that any regulation made for regulating the mental health establishment also involves the State Authorities. This may be achieved in various ways, such as:

a) The regulations made by Central Authority must be made in consultation with State Authorities. This may pose practical challenges as there will be numerous State Authorities to be consulted, and consequently the regulation making process may get unduly delayed.

b) The regulations made by Central Authority may be modified by the State Authority with its own local jurisdiction.

c) The State Authority may be empowered to make regulations for mental health establishment within the jurisdiction of its own state. This may pose difficulties of implementation as many State Authorities may lag behind in framing their own regulations.

The power to the State Authority to modify the regulations for registration made by Central Authority may be the most suitable via-media. While such amending

regulations of the State Authority will need to be placed before the State Legislature, a further level of scrutiny may be built by requiring the Governor to ratify the regulations made by the State Authority for them to be effective.

In view of the above, we suggest addition to the following proviso to Clause 65(4) of the Bil l :

" P r o v i d e d t h a t the State A u t h o r i t y may modify, a l t e r or a m e n d any r e g u l a t i o n made by the C e n t r a l A u t h o r i t y in so far as such r e g u l a t i o n applies to any m e n t a l h e a l t h e s t a b l i s h m e n t w i t h i n the j u r i s d i c t i o n of the State A u t h o r i t y (not b e i n g a m e n t a l h e a l t h e s t a b l i s h m e n t u n d e r the C e n t r a l G o v e r n m e n t ) . P r o v i d e d further t h a t no r e g u l a t i o n made by the State A u t h o r i t y modifying, a l t e r i n g or a m e n d i n g the r e g u l a t i o n s made by the C e n t r a l A u t h o r i t y s h a l l be effective unless ratified a n d approved by the G o v e r n o r . "

64. Ministry's Response Every mental health establishment shall, for the purpose of registration and

continuation of registration, fulfil—

(a) the minimum standards of facilities and services as may be specified by regulations made by the (word Central deleted) Authority; (b) the minimum qualifications for the personnel engaged in such establishment as may be specified by regulations made by the (word Central deleted) Authority; (c) provisions for maintenance of records and reporting as may be specified by regulations made by the (word Central deleted) Authority; and (d) any other conditions as may be specified by regulations made by the (word Central deleted) Authority. 65. Recommendation of the Committee

The Committee notes that the amendment suggested by the Ministry is not

clearly framed. There is scope of ambiguity in interpretation. The

Committee, therefore, recommends that while retaining the amendments

proposed by the Ministry, the term Authority may be explicitly defined.

66. Clause 81

Each Board shall consist of-

(a) a District Judge, or an officer of the State judicial services who is qualified to

be appointed as District Judge or a retired District Judge who shall be

chairperson of the Board;

(b) representative of the District Collector or District Magistrate or Deputy

Commissioner of the districts in which the Board is to be constituted;

(c) two members who shall be mental health professionals of whom at least one

shall be a psychiatrist;

(d) two members who shall be persons with mental illness or care-givers or

persons representing organisations of persons with mental illness or care-

givers or non-governmental organisations working in the field of mental

health.

67. Suggestion

Both the members of the Mental Health Review Board proposed under the

above clause should be psychiatrists as a psychiatrist, being a specialist is better-

equipped to protect the interests of the patient.


The Committee notes that out of the two members proposed under

Clause 81(c), at least one shall be a psychiatrist. The Clause, however, does

not clearly spell out who the other "mental health professional" shall be.

Keeping in view the fact that the Mental Health Review Boards have been

envisaged to play a critical role in protecting the interests of persons with

mental illness, the Committee feels that the second "mental health

Professional" proposed under Clause 81(c) needs to be a qualified medical

practitioner so that the two qualified medical professionals appointed under

this Clause are able to share their expertise with the rest of the Board and

enable it to take appropriate decisions. The Committee, therefore,

recommends that the Ministry may make necessary amendments in Clause

81(c).

69. Clause 99(11)

99(11) I f a p e r s o n w i t h m e n t a l i l l n e s s has made an a d v a n c e d i r e c t i v e , i t s h a l l be

t a k e n i n t o a c c o u n t before the commencement of t r e a t m e n t .

70. Suggestions

Mental illness is a chronic illness, the patient has to undergo treatment for a long

time, and insisting admission in a Government hospital for more than 90 days or

more than 120 days and waiting for a decision from the District Review

Commission is definitely cumbersome procedure. There are conditions where the

patient does not want to get treated and has to be forced to get treated. Secondly,

there are certain legal situations. When the patient claims to be unaware of what he

had done, a different set of rules will govern him.Medical treatment without the

informed consent of the person amounts to cruel, inhuman and degrading treatment

and is a violation of the rights to dignity, consent, autonomy and bodily integrity

under Article 21 of the Constitution.


For purposes of clarity in Section 99, the Ministry proposes the following amendment to Section 99 sub-section 11 to read as follows

E v e r y p e r s o n w i t h m e n t a l i l l n e s s a d m i t t e d u n d e r t h i s s e c t i o n s h a l l b e p r o v i d e d t r e a t m e n t after t a k i n g i n t o a c c o u n t , (a) A n A d v a n c e D i r e c t i v e i f any; o r

(b) informed consent of the p a t i e n t w i t h the support of h i s n o m i n a t e d r e p r e s e n t a t i v e subject to the p r o v i s i o n s of s u b - s e c t i o n 12.


The Committee feels that for purposes of clarity in Section 99 it is important

to bring the amendment to Clause 99 (11) and remove the fallacies. The

Committee, therefore, endorses the changes suggested by the Ministry and

recommends that the same may be carried out in the Bill to remove the

lacunae and make it in consonance with Article 21 of the Constitution.

73. Clause 100(2) to (9)

(2) The l e a v e referred to in s u b - s e c t i o n (1) s h a l l n o t be extended b e y o n d the p e r i o d o f the d u r a t i o n o f a d m i s s i o n p e r m i s s i b l e u n d e r s e c t i o n 9 6 o r s e c t i o n 9 8 o r s e c t i o n 9 9 , as the case may be. (3) The m e d i c a l officer or p s y c h i a t r i s t in c h a r g e of the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l o b t a i n the consent of the n o m i n a t e d r e p r e s e n t a t i v e before t a k i n g a d e c i s i o n of g r a n t i n g l e a v e . (4) The m e d i c a l officer or p s y c h i a t r i s t in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t may in w r i t i n g c a n c e l the l e a v e of absence of the p e r s o n w i t h m e n t a l i l l n e s s a d m i t t e d in such e s t a b l i s h m e n t if he c o n s i d e r s it appropriate to do so in the i n t e r e s t of such p e r s o n . (5) I f the p e r s o n w i t h m e n t a l i l l n e s s , on expiry o f the p e r i o d o f h i s l e a v e or on c a n c e l l a t i o n of h i s l e a v e of absence u n d e r s u b - s e c t i o n (4) does n o t r e t u r n to the e s t a b l i s h m e n t , the m e d i c a l officer or p s y c h i a t r i s t in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l f i r s t c o n t a c t the p e r s o n o n l e a v e a n d h i s n o m i n a t e d r e p r e s e n t a t i v e . (6) I f the p e r s o n w i t h m e n t a l i l l n e s s a n d h i s n o m i n a t e d r e p r e s e n t a t i v e f e e l t h a t c o n t i n u e d a d m i s s i o n in the m e n t a l h e a l t h e s t a b l i s h m e n t i s n o t necessary, t h e n , such p e r s o n a n d h i s n o m i n a t e d r e p r e s e n t a t i v e s h a l l c o m m u n i c a t e the same t o the m e d i c a l officer or p s y c h i a t r i s t in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t , w h o s h a l l f o r m a l l y d i s c h a r g e such p e r s o n f r o m the m e n t a l h e a l t h e s t a b l i s h m e n t . (7) If the m e d i c a l officer or p s y c h i a t r i s t in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t has r e a s o n t o b e l i e v e t h a t the p e r s o n r e q u i r e s o n g o i n g a d m i s s i o n t o a m e n t a l h e a l t h e s t a b l i s h m e n t a n d the n o m i n a t e d r e p r e s e n t a t i v e agrees w i t h the assessment o f such m e d i c a l officer or p s y c h i a t r i s t , a n d such p e r s o n w i t h m e n t a l

i l l n e s s refuses to r e t u r n to the h o s p i t a l on expiry of l e a v e or c a n c e l l a t i o n of h i s l e a v e of absence, the m e d i c a l officer or the p s y c h i a t r i s t in c h a r g e of the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l report to the P o l i c e Officer in charge of the p o l i c e s t a t i o n w i t h i n the l i m i t s o f whose j u r i s d i c t i o n the m e n t a l h e a l t h e s t a b l i s h m e n t i s s i t u a t e d , to convey the p e r s o n to the m e n t a l h e a l t h e s t a b l i s h m e n t . (8) I f the p e r s o n w i t h m e n t a l i l l n e s s referred to in s u b - s e c t i o n (7), is n o t conveyed by the P o l i c e Officer f o r any reasons, to the m e n t a l h e a l t h e s t a b l i s h m e n t w i t h i n one m o n t h of the expiry of h i s l e a v e or c a n c e l l a t i o n of h i s l e a v e of absence, as the case may be, such p e r s o n s h a l l be deemed to have been d i s c h a r g e d f r o m such m e n t a l h e a l t h e s t a b l i s h m e n t . (9) The p r o v i s i o n s o f s u b - s e c t i o n (8) s h a l l n o t p r e c l u d e r e a d m i s s i o n o f the p e r s o n w i t h m e n t a l i l l n e s s i n a c c o r d a n c e w i t h the p r o v i s i o n s o f t h i s A c t .

74. Suggestions The section perpetuates the perception of people in mental health establishments as

dangerous to society and continues to stigmatize them. Requiring a police officer

to forcibly convey the person back to the mental health establishment against his

will take away all the fundamental rights of a person guaranteed under the

Constitution.


The Ministry agrees with this suggestion and therefore, recommends the following changes : Section 100 (1) is retained. A l l sub-sequent subsections from (2) to (9) are deleted.


The Committee appreciates the changes proposed by the Ministry at the

Committee's behest and recommends that necessary changes may be carried

out in the Bill.

77. Clause 101

I f a p e r s o n w i t h m e n t a l i l l n e s s a d m i t t e d t o a m e n t a l h e a l t h e s t a b l i s h m e n t u n d e r t h i s

A c t absents himself w i t h o u t l e a v e o r w i t h o u t d i s c h a r g e f r o m the m e n t a l h e a l t h

e s t a b l i s h m e n t , he s h a l l be t a k e n i n t o p r o t e c t i o n by any P o l i c e Officer at the request

of the m e d i c a l officer or p s y c h i a t r i s t in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t

a n d t a k e n b a c k t o the m e n t a l h e a l t h e s t a b l i s h m e n t i m m e d i a t e l y :

P r o v i d e d t h a t i n the case o f a p e r s o n w i t h m e n t a l i l l n e s s n o t a d m i t t e d u n d e r s e c t i o n

112, the p r o v i s i o n s of t h i s s e c t i o n s h a l l n o t apply after the expiry of a p e r i o d of one

m o n t h f r o m the date of such absence of such p e r s o n f r o m the m e n t a l h e a l t h

e s t a b l i s h m e n t .

78. Suggestions The proposed Bil l still continues its link with the correctional system. The clause

101, chapter XII, on 'leave from the hospital' requires a police officer to accost the

person with mental illness to return to treatment facility. This further serves to

stigmatise the person with mental illness. The section dealing with 'leave' should

be repealed. It also contradicts with person's right to get discharged without any

consent from officer in charge/psychiatrist.


The Ministry has proposed following changes:

If a person with mental illness whom section 112 applies absents himself without

leave or without discharge from the mental health establishment, he shall be taken

into protection by any Police Officer at the request of the medical officer or

psychiatrist in charge of the mental health establishment and taken back to the

Mental health establishment immediately. Delete the proviso to Section 101.


The Committee agrees to the changes proposed by the Ministry and

recommends that required modifications may be made in the Bill.

81. Clause 104 (2)

104(2) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d in s u b - s e c t i o n (1), if, in the o p i n i o n of

p s y c h i a t r i s t in charge of a m i n o r ' s t r e a t m e n t , e l e c t r o - c o n v u l s i v e therapy is

required, t h e n , such t r e a t m e n t s h a l l be done w i t h the consent of the g u a r d i a n a n d

p r i o r p e r m i s s i o n o f the c o n c e r n e d B o a r d .

82. Suggestions Although the Bil l prohibits ECT for minors, it may be used if in the opinion of the

psychiatrist in charge of treatment ECT is required. Currently, consent of the

guardian and prior permission of the Board are pre-requisites for ECT for minors.

There is no requirement for informed consent of the guardian before administering

ECT. It is suggested that in granting permission for ECT, the Board should make

an enquiry into the maturity of the minor to understand the nature and consequence

of the treatment. Especially in cases where the minor disagrees with the decision of

the guardian. International best practice suggests that ECT should be done only

after the opinion of a non-treating psychiatrist is sought which is also absent from

the section. It is submitted that, if at all allowed, there should be an accompanying

provision prohibiting the use of ECT on minors below a certain age, as is done in

many countries. However, due to its extreme side effects and its controversial

practice in the treatment of mental illness in minors, a blanket ban on ECT for

minors is suggested as is recommended by the World Health Organisation.


This provision has been made in consultation with the medical professionals as

there may be rare emergencies when a minor may require this for life saving

purposes. Hence the Bil l provides for this in exceptional circumstances with

adequate protection of the Board. Indian legal system does not recognize the

concept of maturity of minors. The opinion of a non-treating psychiatrist before

administering ECT will happen automatically as a non-treating psychiatrist will be

a member of the District Board which has to give its approval before administering

the procedure. However, it is agreed that the word "informed" is missing in

Section 104 sub-section 2. Thus, clause 104 (2) will read as: Notwithstanding

anything contained in sub-section (1), if, in the opinion of psychiatrist in charge of

a minor's treatment, electro-convulsive therapy is required, then, such treatment

shall be done with the informed consent of the guardian and prior permission of

the concerned Board.


The Committee is of the opinion that Clause 104 prohibiting certain

treatments, such as unmodified ECT and sterilisation and restrain on chaining

are highly desirable pro human right provisions. The Committee however has

reservations on ECT for minors and recommends that the Ministry must

ensure that all treatments are to be done with informed consent by bringing in

proposed necessary changes in the Bill. Appropriate changes may be made in

the Bill accordingly.

85. Clause 106

(1) The p h y s i c a l r e s t r a i n t or s e c l u s i o n may only be used w h e n , — (a) i t i s the only means a v a i l a b l e to p r e v e n t i m m i n e n t a n d i m m e d i a t e h a r m to

p e r s o n c o n c e r n e d o r t o o t h e r s ; (b) it is a u t h o r i s e d by the p s y c h i a t r i s t in c h a r g e of the person's t r e a t m e n t at the m e n t a l h e a l t h e s t a b l i s h m e n t . (2) P h y s i c a l r e s t r a i n t o r s e c l u s i o n s h a l l n o t be used f o r a p e r i o d l o n g e r t h a n i t i s a b s o l u t e l y necessary to p r e v e n t the i m m e d i a t e r i s k o f significant h a r m .

(3) The m e d i c a l officer or p s y c h i a t r i s t in c h a r g e of the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l b e r e s p o n s i b l e f o r e n s u r i n g t h a t the method, n a t u r e o f r e s t r a i n t o r s e c l u s i o n , j u s t i f i c a t i o n f o r its i m p o s i t i o n a n d the d u r a t i o n o f the r e s t r a i n t or s e c l u s i o n are i m m e d i a t e l y r e c o r d e d in the person's m e d i c a l notes. (4) The r e s t r a i n t or s e c l u s i o n s h a l l n o t be used as a f o r m of p u n i s h m e n t or d e t e r r e n t i n any c i r c u m s t a n c e a n d the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l n o t use r e s t r a i n t or s e c l u s i o n merely on the g r o u n d of s h o r t a g e of staff in such e s t a b l i s h m e n t . (5) The n o m i n a t e d r e p r e s e n t a t i v e o f the p e r s o n w i t h m e n t a l i l l n e s s s h a l l be informed a b o u t every i n s t a n c e o f s e c l u s i o n or r e s t r a i n t w i t h i n a p e r i o d o f twenty

f o u r h o u r s . (6) A p e r s o n w h o i s p l a c e d u n d e r r e s t r a i n t o r s e c l u s i o n s h a l l be kept i n a p l a c e w h e r e h e c a n cause n o h a r m t o himself o r o t h e r s a n d u n d e r r e g u l a r o n g o i n g s u p e r v i s i o n o f the m e d i c a l p e r s o n n e l a t the m e n t a l h e a l t h e s t a b l i s h m e n t . (7) The m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l i n c l u d e all instances o f r e s t r a i n t a n d s e c l u s i o n , in the report to be sent to the c o n c e r n e d B o a r d on a m o n t h l y b a s i s . (8) The C o m m i s s i o n may make r e g u l a t i o n s f o r the p u r p o s e of c a r r y i n g o u t the

p r o v i s i o n s o f t h i s s e c t i o n . (9) The B o a r d may o r d e r a m e n t a l h e a l t h e s t a b l i s h m e n t to desist f r o m applying r e s t r a i n t a n d s e c l u s i o n i f the B o a r d i s o f the o p i n i o n t h a t the m e n t a l h e a l t h e s t a b l i s h m e n t i s p e r s i s t e n t l y a n d wilfully i g n o r i n g the p r o v i s i o n s o f t h i s s e c t i o n .

86. Suggestions

Seclusion might be used widely on the grounds of shortage of staff. There is no

evidence for efficacy of seclusion. Thus, seclusion should be banned.

87. Ministry's Response Seclusion or solitary confinement of a person with mental illness is banned. Physical restraint may only be used when, -(a) it is the only means available to prevent imminent and immediate harm to person concerned or to others; (b) it is authorised by the psychiatrist in charge of the person's treatment at the mental health establishment. (2) Physical restraint (word 'or seclusion' deleted) shall not be used for a period longer than it is absolutely necessary to prevent the immediate risk of significant harm.

(3) The medical officer or psychiatrist in charge of the mental health establishment shall be responsible for ensuring that the method, nature of restraint (word 'or seclusion' deleted), justification for its imposition and the duration of the restraint or seclusion are immediately recorded in the person's medical notes. (4) restraint (word 'or seclusion' deleted) shall not be used as a form of punishment or deterrent in any circumstance and the mental health establishment shall not use restraint (word 'or seclusion' deleted) merely on the ground of shortage of staff in such establishment. (5) The nominated representative of the person with mental illness shall be informed about every instance of (word 'seclusion' deleted) or restraint within a period of twenty-four hours. (6) A person who is placed under restraint (word 'or seclusion' deleted) shall be kept in a place where he can cause no harm to himself or others and under regular ongoing supervision of the medical personnel at the mental health establishment. (7) The mental health establishment shall include all instances of restraint (word 'and seclusion' deleted), in the report to be sent to the concerned Board on a monthly basis. (8) The Commission may make regulations for the purpose of carrying out the provisions of this section. (9) The Board may order a mental health establishment to desist from applying restraint (word 'and seclusion' deleted) if the Board is of the opinion that the mental health establishment is persistently and wilfully ignoring the provisions of this section. 88. Recommendation of the Committee The Committee accepts the deletion of the word "seclusion" from Clause 106

(2) (3) (4) (5) (6) (7) and (9) and hopes that it would bring more clarity in the

said Clause with regard to the rights of persons with mental illness to dignity

and liberty. The Committee, therefore, recommends that the deletions as

proposed by the Ministry may be carried out in the Bill.

89. Clause 108 (1) The p r o f e s s i o n a l s c o n d u c t i n g r e s e a r c h s h a l l o b t a i n f r e e a n d informed consent f r o m a l l persons w i t h m e n t a l i l l n e s s f o r p a r t i c i p a t i o n i n any r e s e a r c h i n v o l v i n g i n t e r v i e w i n g the p e r s o n o r p s y c h o l o g i c a l , p h y s i c a l , c h e m i c a l o r m e d i c i n a l i n t e r v e n t i o n s .

(2) In case o f r e s e a r c h i n v o l v i n g any p s y c h o l o g i c a l , p h y s i c a l , c h e m i c a l or m e d i c i n a l i n t e r v e n t i o n s t o b e c o n d u c t e d o n p e r s o n w h o i s u n a b l e t o g i v e f r e e a n d informed consent b u t does n o t r e s i s t p a r t i c i p a t i o n in such r e s e a r c h , p e r m i s s i o n to c o n d u c t such r e s e a r c h s h a l l b e o b t a i n e d f r o m c o n c e r n e d State A u t h o r i t y . (3) The State A u t h o r i t y may a l l o w the r e s e a r c h to p r o c e e d based on informed consent b e i n g o b t a i n e d f r o m the n o m i n a t e d r e p r e s e n t a t i v e o f persons w i t h m e n t a l i l l n e s s , i f the State A u t h o r i t y is satisfied t h a t — (a) the p r o p o s e d r e s e a r c h c a n n o t be p e r f o r m e d on persons w h o are capable of g i v i n g f r e e a n d informed consent; (b) the p r o p o s e d r e s e a r c h is necessary to p r o m o t e the h e a l t h of the p o p u l a t i o n r e p r e s e n t e d by the p e r s o n ; (c) the p u r p o s e of the p r o p o s e d r e s e a r c h is to o b t a i n k n o w l e d g e r e l e v a n t to the

p a r t i c u l a r h e a l t h needs o f persons w i t h m e n t a l i l l n e s s ; (d) a f u l l d i s c l o s u r e of the i n t e r e s t s of persons a n d o r g a n i s a t i o n s c o n d u c t i n g the

p r o p o s e d r e s e a r c h i s made a n d there i s no conflict o f i n t e r e s t i n v o l v e d ; a n d (e) the p r o p o s e d r e s e a r c h f o l l o w s all the n a t i o n a l a n d i n t e r n a t i o n a l g u i d e l i n e s a n d r e g u l a t i o n s c o n c e r n i n g the c o n d u c t of such r e s e a r c h a n d e t h i c a l approval has been o b t a i n e d f r o m the i n s t i t u t i o n a l e t h i c s c o m m i t t e e w h e r e such r e s e a r c h i s to be c o n d u c t e d . (4) The p r o v i s i o n s of t h i s s e c t i o n s h a l l n o t r e s t r i c t r e s e a r c h based study of the case notes of a p e r s o n w h o is u n a b l e to g i v e informed consent, so l o n g as the a n o n y m i t y of the persons is secured. 90. Suggestions

Persons participating in such research must also be given the right to withdraw

their consent during any stage of the research to give meaning to their rights to

dignity, autonomy, consent and bodily integrity. Similarly, the nominated

representative should also have the right to withdraw their consent during any

stage of the research.

It is submitted that the current guidelines for the State Authority to permit research

and medical intervention are not sufficient. The State Authority should make an

inquiry into the potential harm and benefits that may be caused to the concerned

person.


The Ministry has proposed amendments as under: (b) the proposed research is necessary to promote the mental health of the

population represented by the person; (c) the purpose of the proposed research is to obtain knowledge relevant to the particular mental health needs of persons with mental illness; (5) Persons p a r t i c i p a t i n g in r e s e a r c h s h a l l have the r i g h t to w i t h d r a w t h e i r

consent a t any stage o f the r e s e a r c h . In c i r c u m s t a n c e s m e n t i o n e d u n d e r s u b - s e c t i o n (3), i f a n o m i n a t e d r e p r e s e n t a t i v e has g i v e n informed consent f o r the p e r s o n w i t h m e n t a l i l l n e s s to p a r t i c i p a t e in r e s e a r c h , the n o m i n a t e d r e p r e s e n t a t i v e s h a l l have the r i g h t to w i t h d r a w t h i s consent at any stage of the r e s e a r c h .


The Committee appreciates that the Ministry has accepted the suggestions

and proposed amendments in the Bill. The proposed amendments may be

incorporated in the Bill

93. Clause112 (1) A n o r d e r u n d e r s e c t i o n 3 0 o f the P r i s o n e r s A c t , 1 9 0 0 o r u n d e r s e c t i o n 1 4 4 o f

the A i r F o r c e A c t , 1 9 5 0 , o r u n d e r s e c t i o n 145 o f the A r m y A c t , 1 9 5 0 , o r u n d e r

s e c t i o n 143 or s e c t i o n 1 4 4 of the Navy A c t , 1957, or u n d e r s e c t i o n 3 3 0 or s e c t i o n

335 of the Code of C r i m i n a l P r o c e d u r e , 1 9 7 3 , d i r e c t i n g the a d m i s s i o n of a p r i s o n e r

w i t h m e n t a l i l l n e s s i n t o any s u i t a b l e m e n t a l h e a l t h e s t a b l i s h m e n t , s h a l l b e sufficient

a u t h o r i t y f o r the a d m i s s i o n of such p e r s o n in such e s t a b l i s h m e n t to w h i c h such

p e r s o n may be lawfully transferred f o r care a n d t r e a t m e n t t h e r e i n .

(2) The m e d i c a l officer of a p r i s o n or j a i l s h a l l send a q u a r t e r l y report to the c o n c e r n e d B o a r d certifying t h e r e i n t h a t there are n o p r i s o n e r s w i t h m e n t a l i l l n e s s in the p r i s o n or j a i l . (3) The B o a r d may v i s i t the p r i s o n or j a i l a n d ask the m e d i c a l officer as to why the

p r i s o n e r w i t h m e n t a l i l l n e s s , i f any, has been kept in the p r i s o n or j a i l a n d n o t transferred f o r t r e a t m e n t t o a m e n t a l h e a l t h e s t a b l i s h m e n t . (4) The m e d i c a l officer in charge of a m e n t a l h e a l t h e s t a b l i s h m e n t w h e r e i n any

p e r s o n referred to in s u b - s e c t i o n (1) is d e t a i n e d , s h a l l once in every six m o n t h s , make a s p e c i a l report r e g a r d i n g the m e n t a l a n d p h y s i c a l c o n d i t i o n o f such p e r s o n to the a u t h o r i t y u n d e r whose

o r d e r such p e r s o n i s d e t a i n e d .

94. Suggestions Under clause 112, Chapter XIII, Prisoners with mental illness needs to be guarded

by the State authorities. Since prisons have all facilities, all prisoners with mental

illness could be treated in the hospital section of jails. Treating personnel in

Mental Health need to move to Prisons as part of integration of services and

community extension initiatives. A prison set-up coming to a hospital is not a very

practical move.

95. Ministry's Response Section 112 does not require that persons should be moved out of the prison

compound to access mental health care. There can be mental health establishments

in the medical wing of prisons and persons with mental illness are cared for in

these areas.


The Committee feels that the reply of the Ministry does not address the

concern in an explicit manner and there is need to ensure that there is no

ambiguity whatsoever in the clause. The Clause should spell out details in a

more explicit manner so as to avoid confusion and conflict in the

implementation. The Committee, therefore, recommends that the Ministry

may re-examine the concern raised with regard to Clause 112 and address the

same appropriately.

97. Clause 113

If it appears to the p e r s o n in charge of a State r u n c u s t o d i a l i n s t i t u t i o n ( i n c l u d i n g

b e g g a r s homes, o r p h a n a g e s , women's p r o t e c t i o n homes a n d c h i l d r e n homes) t h a t

any r e s i d e n t of the i n s t i t u t i o n has, or is likely to have, a m e n t a l i l l n e s s , t h e n , he

s h a l l take such r e s i d e n t of the i n s t i t u t i o n to the nearest m e n t a l h e a l t h e s t a b l i s h m e n t

r u n o r f u n d e d b y the appropriate G o v e r n m e n t f o r assessment a n d t r e a t m e n t , a s

necessary.

98. Suggestions Apart from those sections relating to transfer, the Mental Health Care Bil l does not

apply in custodial care institutions including prisons. Individuals with mental

illness in prisons and other State run custodial institution (e.g. beggars homes,

orphanages, women's protection homes and children homes), should be monitored

under the Act.


The Ministry has suggested following changes:

If it appears to the person in charge of a State run custodial institution (including

beggars homes, orphanages, women's protection homes and children homes) that

any resident of the institution has, or is likely to have, a mental illness, then, he

shall take such resident of the institution to the nearest mental health establishment

run or funded by the appropriate Government for assessment and treatment, as

necessary. The m e d i c a l officer in charge of the m e n t a l h e a l t h e s t a b l i s h m e n t s h a l l

be r e s p o n s i b l e f o r assessment of the p e r s o n a n d the t r e a t m e n t needs of the p e r s o n

w i t h m e n t a l i l l n e s s s h a l l b e addressed i n a c c o r d a n c e w i t h the p r o v i s i o n s o f t h i s A c t

as applicable in the p a r t i c u l a r c i r c u m s t a n c e s .


The Committee is of the opinion that people in custodial institutions are very

vulnerable to abuse of their rights. Thus, keeping in view their special

circumstances, proposed amendments are very much warranted. The Ministry

has accepted the suggestions and come out with the amendment and the

Committee accepts it. The Committee, recommends that the addition in

Clause 113 as agreed to by the Ministry, at the Committee's behest, may be

suitably incorporated in the Bill.

101. Clause 114(1) 114. (1) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d in any o t h e r law f o r the t i m e b e i n g in

f o r c e , a person's c u r r e n t or past a d m i s s i o n to a m e n t a l h e a l t h e s t a b l i s h m e n t or a

person's c u r r e n t o r past t r e a t m e n t f o r m e n t a l i l l n e s s s h a l l n o t b y itself, w i t h o u t

p r e j u d i c e to the p r o v i s i o n s o f any law f o r the t i m e b e i n g in f o r c e or custom or

usage g o v e r n i n g p e r s o n n e l l a w s o f such p e r s o n , be a g r o u n d f o r d i v o r c e .

102. Suggestions Sub-clause (1) of Clause 114 starts as a 'notwithstanding' clause, however, towards

the end it turns into a clause which does not prejudice other laws for the time being

in force. This creates confusion as to the status of this provision. If this provision is

to operate notwithstanding other laws for the time being in force, there is no need

for a without prejudice clause, and if this law is not intended to prejudice any other

law for the time being in force, this provision is not required.

The right to divorce flows from other laws and these laws have their own

intricacies. At a time when divorce laws are being liberalized to ensure that

unhappy and unworkable marital relations are allowed to end, if this provision is

intended to close a right to divorce available under divorce laws, it may have other

unintended consequences. It is best that any change to marital laws be undertaken

as separate exercise and only after its consequences have been sufficiently

analysed. Further, certain forms of mental illness are grounds for divorce under the

respective personal laws. Therefore, an amendment to such legislations may be

required to give full effect to this provision, if it is decided to retain the same.


The Ministry proposes an amendment to Clause 114 by deleting sub-clause(l).

104. Recommendation of the Committee The Committee accepts the suggestion of the Ministry to delete sub- clause 1 of Clause 114 from the Bill. The Committee recommends that this amendment may be carried out in the Bill.

105. Clause 123 (1) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d i n t h i s A c t , the p r o v i s i o n s o f t h i s A c t s h a l l , t a k i n g i n t o c o n s i d e r a t i o n the c o m m u n i c a t i o n , t r a v e l a n d t r a n s p o r t a t i o n difficulties, apply to the States of Assam, M e g h a l a y a , Tripura, M i z o r a m , Manipur, N a g a l a n d , A r u n a c h a l P r a d e s h a n d S i k k i m , w i t h f o l l o w i n g modifications, namely:— (a) u n d e r s u b - s e c t i o n (3) of s e c t i o n 8 0 , the p r e s i d e n t of the C o m m i s s i o n may c o n s t i t u t e a s i n g l e B o a r d f o r a l l the States; (b) in s u b - s e c t i o n (2) of s e c t i o n 88, reference to the p e r i o d of "seven days", a n d in s u b - s e c t i o n (3) of t h a t s e c t i o n , reference to the p e r i o d of " t w e n t y - o n e days" s h a l l be c o n s t r u e d as "ten days " a n d "thirty days ", respectively; (c) in s u b - s e c t i o n (9) of s e c t i o n 96, reference to the p e r i o d of "seventy-two h o u r s " s h a l l be c o n s t r u e d as "one h u n d r e d twenty h o u r s " , a n d in sub-sections (3) a n d (12) of t h a t s e c t i o n , reference to a p e r i o d of "seven days" s h a l l be c o n s t r u e d as "ten days "; (d) in s u b - s e c t i o n (3) of s e c t i o n 97, reference to the p e r i o d of "twenty-four h o u r s " s h a l l be c o n s t r u e d as "seventy-two h o u r s "; (e) in clauses (a) a n d (b) of s u b - s e c t i o n (9) of s e c t i o n 9 8 , reference to the p e r i o d of "three days" a n d "seven days" s h a l l be c o n s t r u e d as "seven days" a n d "ten

days" respectively; (f) in s u b - s e c t i o n (3) of s e c t i o n 9 9 , reference to the p e r i o d of "seven days" a n d in s u b - s e c t i o n (4) of t h a t s e c t i o n , reference to the p e r i o d of " t w e n t y - o n e days" s h a l l be c o n s t r u e d as "ten days " a n d "thirty days " respectively; (g) in s u b - s e c t i o n (4) of s e c t i o n 103, reference to the p e r i o d of "seventy-two h o u r s " s h a l l be c o n s t r u e d as "one h u n d r e d twenty h o u r s " .

(2) The p r o v i s i o n s of clauses (b) to (g) of s u b - s e c t i o n (1) s h a l l a l s o apply to the States o f Uttarakhand, H i m a c h a l P r a d e s h a n d Jammu a n d K a s h m i r a n d the Union t e r r i t o r i e s o f Lakshadweep a n d A n d a m a n a n d N i c o b a r Islands.

106. Suggestions

Chapter XVI section 123 makes provision for a single Board for 8 North Eastern

states. Keeping in view the difficulties of connectivity and terrain a single board

would never be able to take on this onerous responsibility. It is not understandable

for whose convenience one Review Board (NE region) has been proposed for an

area spreading across 262,230 sq kms. It is proposed that this provision for a single

board for NER be discontinued. In States like Assam every district should have a

board like in other parts of the country. As an alternative, all districts having

District Mental Health Program should have a Mental Health Review Board in the

rest of the states of North East Region if district level board are not possible.

107. Ministry's Response This is only an enabling provision which was made on the basis of suggestions

from stakeholders at the regional meeting held in the North-East. It is not

compulsory that there is only one Board for the North Eastern states and it is

possible to have separate District Boards for the North Eastern States as well as all

districts in Assam.


The Committee feels that ambiguity in this regard should be removed. The

Committee recommends that necessary drafting modifications may be made in

the clause so that the intent behind the clause that this is only enabling

provision and it is possible to have separate district boards for the North¬

Eastern States including Assam, is reflected in the Bill.

109. Clause 124

P r e s u m p t i o n of m e n t a l i l l n e s s in case of a t t e m p t to c o m m i t s u i c i d e by p e r s o n . 124. (1) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d in s e c t i o n 3 0 9 o f the I n d i a n P e n a l Code, any p e r s o n w h o attempts to c o m m i t s u i c i d e s h a l l be presumed, unless p r o v e d o t h e r w i s e , to be suffering f r o m m e n t a l i l l n e s s a t the time o f a t t e m p t i n g s u c i d e a n d s h a l l n o t b e l i a b l e t o p u n i s h m e n t u n d e r the s a i d s e c t i o n . (2) The appropriate G o v e r n m e n t s h a l l have a duty to p r o v i d e care, t r e a t m e n t a n d r e h a b i l i t a t i o n t o a p e r s o n , h a v i n g m e n t a l i l l n e s s a n d w h o a t t e m p t e d t o c o m m i t s u i c i d e , to r e d u c e the r i s k o f r e c u r r e n c e o f a t t e m p t to c o m m i t s u i c i d e .

110. Suggestions The decriminalization of persons attempting to commit suicide is a welcome step.

However, the lack of criteria for what may constitute 'an attempt to commit

suicide' is vague and ambiguous. As opined by the Supreme Court of India in P.

Rathinam v. Union of India [1994 AIR1844] people may attempt suicide for a

number of reasons, which may not necessarily be related to their mental health.

The section therefore becomes open to arbitrariness and is in violation of article

14 of the Constitution.

Three issues which we feel will arise with the enactment of Section 124: A. The unintended consequence of the law creating this presumption of mental

illness is that a person who has attempted suicide will now be subject to

'mental health treatment'.

B. There are serious concerns with regard to the issue of abetment of suicide, which is punishable under Section 306 IPC. C There are concerns with regard to the role played by institutionalization in silencing victims of domestic violence. 111. Ministry's Response

The Ministry has proposed following amendments Title of the Section : P r e s u m p t i o n of severe stress in case of a t t e m p t to c o m m i t s u i c i d e

(1) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d in Section 3 0 9 o f the I n d i a n P e n a l Code a n d the Code o f C r i m i n a l P r o c e d u r e , any p e r s o n w h o attempts to c o m m i t s u i c i d e s h a l l be presumed, unless p r o v e d o t h e r w i s e , to have severe stress at the t i m e of a t t e m p t i n g s u i c i d e a n d s h a l l n o b e l i a b l e t o p r o s e c u t i o n a n d p u n i s h m e n t . (2) The appropriate G o v e r n m e n t s h a l l have a duty to p r o v i d e care, t r e a t m e n t a n d r e h a b i l i t a t i o n to a p e r s o n h a v i n g severe stress a n d who a t t e m p t e d to c o m m i t s u i c i d e , to reduce the r i s k of r e c u r r e n c e of a t t e m p t to c o m m i t s u i c i d e . 112. Recommendation of the Committee

Though section 124 of the Bill seeks to make a presumption vis-a-vis mental

illness, the stage at which such a presumption operates is unclear. It is

necessary to avoid any scope of ambiguity in both enforcement as well as

interpretation of the clause. The Committee, therefore, accepts the

modifications proposed by the Ministry and recommends that they may be duly


113. Clause 126 The C e n t r a l G o v e r n m e n t may, if it c o n s i d e r s so necessary in the i n t e r e s t of persons

w i t h m e n t a l i l l n e s s b e i n g g o v e r n e d b y the M e n t a l H e a l t h A c t , 1987, take

appropriate i n t e r i m measures by m a k i n g scheme f o r the smooth i m p l e m e n t a t i o n of

the p r o v i s i o n s o f t h i s A c t .

114. Suggestions Clause 126 of the MHCB only allows for the Central Government if it considers it

necessary in the interest of persons with mental illness being governed by the

M H A to take appropriate interim measures by making a scheme for the smooth

implementation of the provisions of MHCB. Insofar as MHCB does not address

the issues undertaken by Chapter VI of MHA, this clause is of little assistance.

It is therefore submitted that the MHA cannot be repealed until the question of

property management by persons with mental illness is settled. There is an

inextricable relationship between the economic status of persons with mental

illness and their care and treatment. It is important to ensure that these

connections are duly appreciated before a statute on mental health care is

enacted. Such an examination is especially required because the present Bill, as

this memorandum has attempted to show is neither in harmony with the CRPD

nor with the Indian Constitution.


The Central Government may, if it considers so necessary in the interest of

persons with mental illness being governed by the Mental Health Act, 1987, take

appropriate interim measures by making necessary transitory schemes ( w o r d s "for

t h e s m o o t h i m p l e m e n t a t i o n o f t h e p r o v i s i o n s o f t h i s Act" d e l e t e d ) .


The Committee feels that precautionary measures are to be taken before totally

repealing the Mental Health Act, 1987 and accepts the suggestion of the

Ministry.

117. The Committee adopts the remaining clauses of the Bill without any changes. The Bill may be passed incorporating the suggestions made by the Committee.

Miscellaneous

118. The Committee notes that there are as many as 18 clauses of the Bill

which will become sections after enactment which involve expenditure from

the Consolidated Fund of India and Financial Memorandum appended to the Bill

states that it is not possible to estimate the financial burden at this stage but at

the same time the Financial Memorandum does not assure that necessary

allocation shall be made when the provision of the Bill will be implemented.

States will have to implement its provisions, health being a State subject. The

Committee, therefore, recommends that as most of the States are facing

resource crunch it is the duty of the Centre to ensure funds for implementing

the provisions of the Bill and it should be reflected in the Demands for Grants.

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