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Legislation for Mental Healthcare – Mental Healthcare Act, 2017

1. History

Mental health of a person decides the overall well being of a human being. The development of modern psychiatry has always been seen, especially in colonial and post-colonial times, through the prism of a western science.[1] The first ever legislation regarding mental illness was introduced in British era was the Lunatic Removal act 1851 which ceased to exist in 1891. But this legislation was for British patients who had migrated to India. After British officials took over Indian administration many legislation were passed by the colonial courts. Some of which were:

  • The Lunacy (Supreme Courts) Act of 1858;
  • The Lunacy (District Courts) Act of 1858;
  • The Indian Lunatic Asylum Act of 1858 (with amendments passed in 1886 and 1889)[2];
  • The Military Lunatic Act of 1877;[3]
  • Indian Lunacy Act of 1912.[4]

But these acts were not properly constructed to its effectiveness as the mentally ill patients were more or less treated as a danger and threat to society. They were detained in the asylum for indeterminate period of time and were poorly treated with no medical assistance. Later the rights of the mentally ill were in question which lead to the inception of Mental Healthcare Act of 1987.The advantage of the Mental Healthcare Act (MHA) of 1987 was that it characterized mental sickness in a dynamic way, setting accentuation on care and treatment instead of on guardianship. It also laid down guidelines to ensure human rights, guardianship and the administration of the property of individuals with a mental ailment.

This act was criticised by many regarding its legal procedure thus Mental Healthcare Act, 2017 was passed after necessary amendments were made.

2. Mental Healthcare Act, 2017

In India mental healthcare legislation has played an imminent role in developing the concept of what mental health is and how important it is to treat mentally ill in the society. According to WHO “Mental disorders comprise a broad range of problems, with different symptoms. However, they are generally characterized by some combination of abnormal thoughts, emotions, behaviour and relationships with others. Examples are schizophrenia, depression, intellectual disabilities and disorders due to drug abuse”.[5] Healthcare are efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals. We can also understand from the provisions of this act that mental illness is viewed with same seriousness as physical illness. It is rightly quoted by B.K.S Iyengar that, “Health is a state of complete harmony of the body, mind and spirit. When one is free from physical disabilities and mental distractions, the gates of the soul open.” Article 14 and Article 21 of the Indian constitution defines the necessity to understand the rights of the mentally ill and also their right to live life with dignity[6].

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The provisions of the newly amended Mental healthcare Act, 2017 is vast .So we will be discussing about some of the important provisions of the Act that has contributed significantly in providing better quality of life to the mentally ill:

  • Determination of mental illness and capacity to make mental healthcare decision.

In this act it has clearly stated that mentally ill should be determined according to the prescribed standards which are accepted nationally and internationally. It also clarifies that social, political or economic strata, moral values and beliefs, past treatment or hospitalisation etc are not the determinants of mental illness. Determination of mental illness will only be implies by an order given by court.

  • Advance directive

Advance directives are basically directives given by mentally ill before ceasing to have capacity to make decisions. These directives gives them right to specify how they want or not want to be cared and treated, and who will be their nominated representative.

  • Nominated representative

The nominated representatives are the persons who are elected by the mentally ill. They all expected to fulfil duties that are mentioned in the advanced directive. Section 14 – Section 17 discusses regarding the appointment, revocation of appointment and duties of nominated representatives.

  • Rights of person with mental illness

This act also takes care about the basic rights of the mentally ill and the services that they can avail; it also talks about how people from rural area or BPL (Below Poverty Line) can access the mental healthcare service  The custody of child who is born to a deranged person is also specified. Some other rights that person with mental illness and his nominated representative shall have are rights to the information, right to confidentiality (with exceptions), right to refuse or receive visitors and to refuse or receive and make telephone or mobile phone calls, free legal services to exercise any of his rights, right to complain regarding deficiencies in provision of care, treatment and services in a mental health establishment

  • Duties of appropriate government, central and state authorities
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Duties of appropriate government which are mentioned in this Act are, to create awareness about social stigma about mental health, provide proper  mental health facilities, provide training to the mental healthcare professional and meet the international standards, effective coordination of services between the department and the Ministry. Further Central mental health authority and State mental health authority are established under this act, their composition, functions and other duties are elaborately mentioned in it.

  • Mental health establishment

Sections 73 – 84 deals with procedure for registration, inspection and inquiry of mental health establishments. Mental healthcare establishment is necessary as they provide necessary treatment and care to the mentally ill. These establishments should work properly without any hindrance. Due to the growing need of mental healthcare in India it is necessary to supervise its functions so as to curb any unlawful mental establishment which try to gain profits.

  • Offences and penalties

Penalties for establishing or maintaining mental health institutions in violation of provisions of this Act are clearly stated.

These provisions are the guidelines to protect and treat the mentally ill, thus makes a better environment and society for them. Mental Healthcare 2017 is an attempt by the legislature to give equal importance to mental health as physical health. [7]

3. Conclusion

Needless to say that this Act has evolved from seeing deranged people as a liability to the society to dignified citizens. All the mental institutions are guided by it; those which violate these provisions are punished according to the penalties prescribed by Mental Healthcare 2017. The appropriate government authorities and other mental healthcare authorities are suppose to uphold their functions for smooth facilitation of services. These guidelines have strengthened the implementation and the issue of mental ill patients These provisions have been made for the welfare of the society in general and it is the duty of the government and judiciary to make sure that these laws help in improving the conditions of mentally ill.

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[1] A.R.Basu, Historicizing Indian psychiatry, INDIAN J PSYCHIATRY. 47(2):126–129 (2005).

[2] The Indian Lunatic Asylum Act of 1858, No. 34, Parliament of India (1858).

[3] The Military Lunatic Act of 1877, No. 11, Parliament of India (1877).

[4] Indian Lunacy Act of 1912, No. 4, Parliament of India (1912).

[5] Mental Disorder, World health Organisation,  https://www.who.int/mental_health/management/en/#:~:text=Mental%20disorders%20comprise%20a%20broad,disorders%20due%20to%20drug%20abuse.

[6] Naz Foundation v. Government of NCT and others, W.P. (C) 7455, 2001 (India).

[7] Mental Healthcare Act ,2017 § 21, No. 17, Parliament of India (2017).


Cite this article (The Bluebook 20th ed.)-

Surya Sunilkumar, Legislation for Mental Healthcare – Mental Healthcare Act, 2017, Ex Gratia Law Journal, (August 11, 2020), https://exgratialawjournal.in/blawg/human-rights/legislation-for-mental-healthcare-mental-healthcare-act-2017/.

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Author

Surya Sunilkumar
Student - Ramaiah Institute of Legal Studies