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All India Legal Forum THE MENTAL HEALTHCARE ACT, 2017Author:Riya Goel(Research Board Member, AILF)INTRODUCTIONThe Mental Healthcare Act, 2017 provides mental Health Care services for persons with mental illness. This Act was passed on 7 April 2017 and came into force from 7 July 2018. It ensures that persons with mental illness do not get discriminated against. It assures that there is the free treatment for such persons if they are below the poverty line. It revoked the existing The Mental Healthcare Act, 1987, which was criticized for not recognizing the rights of a mentally ill person. It also reversed section 309 of the Indian Penal Code which criminalizes any attempt to suicide by a mentally ill person. The Act strengthens the human rights of persons with mental illness. It facilitates mentally ill person, to access treatment for illness.IMPORTANT DEFINITIONSAuthority: Under Section 2(c), it means the Central Mental Health Authority or the State Mental Health Authority. Care-giver: Under Section 2(e), a caregiver is a person who resides with a mentally ill person and is responsible for providing care to that person and includes a relative or any other person who performs this function.Clinical Psychologist: Under Section 2(g), it means a person having a recognised qualification in clinical psychology from an institution approved by the Rehabilitation Council of India, or a person having a postgraduate degree in psychology or clinical psychology or applied psychology and a master of philosophy in clinical psychology or medical and social psychology obtained after completion of a full-time course of 2 years which includes supervised clinical training from any recognised rmed Consent: Under Section 2(i), it means the consent given for a specific intervention without any force, undue influence, fraud, threat, mistake, or misrepresentation. It must be obtained after disclosing to a person adequate information including risks and benefits of the specific intervention in a language and manner understood by such a person.Mental Healthcare: Under Section 2(o), analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such a person for his mental illness or suspected mental illness.Mental Illness: Under Section 2(s), it means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, a mental condition associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence.Prisoner with Mental Illness: Under Section 2(w), it means a person with mental illness who is under trial or convicted of an offence and detained in a jail or prison.DETERMINATION OF MENTAL ILLNESSUnder Section 3, mental illness can be determined according to National or International accepted medical standards. No person can be treated as a person with mental illness except for the purposes directly related to the treatment of the mental illness. Mental illness cannot be determined on the following basis:Political, economic, or social status for membership of a cultural, racial, or religious group, which are not directly relevant to the mental health issue of a person.Nonconformity with moral, social, cultural, work, or political values or religious beliefs prevailing in a person’s community.CAPACITY TO MAKE MENTAL HEALTH CARE AND TREATMENT DECISIONS UNDER SECTION 5Every person with mental illness shall have the capacity to make decisions regarding his Mental Health Care or treatment if he has the ability to:Understand the information of the treatment,Appreciate any reasonable consequence of the decision or lack of decision on the treatment or admission or personal assistance,Communicate the decision by means of speech, expression, gesture, or any other means.The information regarding the treatment of such a person shall be given using simple language. The information can also be given in sign language, visual aids, all any other means which can enable the person with mental illness to understand the information.RIGHTS OF PERSON’S WITH MENTAL ILLNESSRight to access Mental Healthcare (Section 18):Every person has a right to access Mental Health Care and treatment from Mental Health services run or funded by the appropriate Government.It includes mental health services of affordable cost, good quality, accessible geographically, without any discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability, or any other basis.Persons with mental illness living below the poverty line or who are homeless are entitled to mental health treatment and services free of any charge and at no financial cost at all mental health establishments are run or funded by the appropriate Government.Right to community living (Section 19):Every person with mental illness has a right to live in and be a part of the society.No person can continue to remain in a mental health establishment because he does not have a family, not accepted by family, homeless, or due to absence of community-based facilities.The appropriate Government will provide support including legal aid, if such person is abandoned by his family or relatives.Right to protection from cruel, inhuman and degrading treatment (Section 20):Every person with mental illness have a right to live with dignity.Every person with mental illness shall be protected from cruel, inhuman, or degrading treatment in any mental health establishment.Every such person has the right to live in a safe and hygienic environment, have adequate sanitary conditions, have reasonable facilities for leisure, recreation, education, and religious practices, privacy, and proper clothing to protect from exposure of the body.No person with mental illness shall be forced to undertake work in a mental health establishment, compulsory shaving of head hair, and not forced to wear uniforms provided by the establishment.Right to equality and non-discrimination (Section 21):Every person with mental illness shall be treated as equal to persons with physical illness.There shall be no discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, or disability.Emergency facilities and emergency services for mental illness shall be of the same quality and availability as provided to persons with physical illness.Persons with mental illness are entitled to use the ambulance services.A child under the age establishment of a woman receiving care, treatment, or rehabilitation at a mental health establishment cannot be separated during her stay in such an establishment.Every insurer should make a provision for medical insurance for the treatment of mental illness.Right to information (Section 22):A person with mental illness shall have the information regarding the provision of this act, the right to make an application to the concerned board for a review of the admission, the nature of the person’s mental illness, the treatment plan, and the side effects of the treatment.Right to confidentiality (Section 23): Every person with mental illness have the right to confidentiality in respect of his mental health, Mental Health Care, treatment, and physical healthcare.All health professionals providing care or treatment to a person with mental illness has a duty to keep all such information confidential.The health professionals can disclose the information of a person with mental illness, to the following persons:Mental health professionals to enable them to provide care and treatment.Nominated representative to enable him to fulfill his duties.To protect any other person from harm or violence.To prevent threat to life of any other person.For the interest of public safety and security.No photograph or any other information of a person with mental illness can be released in media without the consent of such person.This right is also applied to all the information stored in electronic or Digital format in real or virtual space.Right to access medical records (Section 25):A person with mental illness has the right to access his basic medical records.However, the mental health professional can with hold specific information if the disclosure would result in serious mental harm to the person with mental illness.Right to personal contacts and communication (Section 26): A person with mental illness has the right to refuse or receive visitors or make telephone calls.Such person can send and receive mail through electronic mode including email when admitted in a mental health establishment.Following persons cannot be restricted from visits, telephone calls, all mails:Any Judge or officer authorised by a competent court.Members of the concerned Board, the Central Authority, or the State Authorities.Any member of the ParliamentNominated representative for lawyer of the personMedical practitioner in charge of the treatment.Right to Legal Aid (Section 27): It is the duty of the magistrate, police officer, person in charge of such custodial institution, or medical Health professionals to inform the person with mental illness that he is entitled to free legal services.Right to make complaints about deficiencies in provision of service (section 28):Any person with mental illness can complaint regarding deficiencies in provision of care, treatment, and services in a mental health establishment, to:The medical officer or mental health professional in charge of the establishment,The concerned board,The State Authority.FUNCTIONS OF CENTRAL AUTHORITYUnder section 43, the Central Authority has the following functions:Register all mental health establishments and maintain a register of all mental health establishments in the country e and compile update and publish a register of such establishments.Supervise all mental health establishments and receive complaints about deficiencies in provision of services.Maintain a national register of clinical psychologists, mental health nurses and psychiatric social workers and publish the list of such registered mental health professionals.Train all persons including law enforcement officials and health professionals about the provisions and implementation of this Act.Advise the Central Government on all the matters relating to mental health care and services.FUNCTIONS OF THE STATE AUTHORITYUnder Section 55, the State Authority has the following functions:register all mental health establishments in the State and publish a register of such establishments.develop quality and service provision norms for different types of Mental Health establishments in the State.Supervise all mental health establishments and receive complaints about deficiencies in provision of services.Register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals and publish the list of registered mental health professionals.Train all relevant persons including law enforcement officials and other health professionals about the provisions and implementation of this Act. ................
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