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The Mental Health Act Bill 2016 was passed in the Rajya Sabha on 8th August 2016 and is expected to be discussed in Lok Sabha during next session. The Bill repeals the existing Mental Health Act, 1987. The Bill  is aimed to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto. 

The Convention on Rights of Persons with Disabilities and its Optional Protocol was adopted on the 13th December, 2006 at United Nations Headquarters in New York and came into force on the 3rd May, 2008. India has signed and ratified the said Convention on the 1st October, 2007. The Bill is aimed to align and harmonise the existing laws with the said Convention.

The Bill provides that Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards. The Bill adopts a radically different approach empowering the individual to make decisions concerning his/her mental healthcare or treatment. The Bill provides every person, except a minor, with a right to make an Advance Directive specifying the way the person wishes to be cared for and treated for a mental illness and also to appoint a nominated representative, who is entrusted with the task of protecting the interests of the person suffering from mental illness.

One of the most important feature of this Bill is that a person attempting suicide shall be presumed, though rebuttable, to be suffering from severe stress and hence, exempt from trial and punishment. The Bill also seeks to impose on the government a duty to rehabilitate such person to ensure that there is no recurrence of attempt to suicide.

The Bill guarantees a right of affordable, accessible and quality mental health care and treatment from mental health services run or funded by Central and State governments. The Bill also makes provision for a range of services to be provided by the appropriate government. The right to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and care-givers

The Bill provides that every person with mental illness shall,––

  1. have a right to live in, be part of and not be segregated from society; and
  2. not continue to remain in a mental health establishment merely because he does not have a family or is not accepted by his family or is homeless or due to absence of community based facilities.

Where it is not possible for a mentally ill person to live with his family or relatives, or where a mentally ill person has been abandoned by his family or relatives, the Bill casts a duty on the appropriate Government to provide support as appropriate including legal aid and to facilitate exercising the right to family home and living in the family home. The Bill also provides that every person with mental illness shall have a right to live with dignity. The Bill further provides that every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare

The Bill does not provide for management of property of mentally ill persons. This is a serious cause of concern as mentally ill persons could easily be exploited and their property taken away from them, leaving such individuals in a perpetual state of dependency. The series of rights recognised by the Bill do not account for property management of mentally ill persons.

The Bill also casts a duty on the Government to plan, design and implement programmes for the promotion of mental health and prevention of mental illness in the country and also casts a duty on the Central and state Governments to establish Central and State Mental Authority as well as Mental health Review Board.

The Bill also provides for the following treatments not be performed on any person with mental illness–

  1. electro-convulsive therapy without the use of muscle relaxants and anaesthesia;
  2. electro-convulsive therapy for minors;
  3. sterilisation of men or women, when such sterilisation is intended as a treatment for mental illness;
  4. chained in any manner or form whatsoever.

The Bill seeks to provide for a person with mental illness to live with dignity and also protect his confidentiality as regards to his illness and treatment as well as provides for medical facilities.

- Dominic Braganza (Partner - Abhay Nevagi & Associates)

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