Mental Healthcare Bill, 2016: Concerns required to be addressed.

Abstract

Byline: Choudhary. Narayan Sir, The Guest Editorial titled, “Mental Health Care Bill, 2016: A boon or bane?” published in the July-Septemper (volume 58) issue of your esteemed journal provides an excellent critical appraisal by describing the positive features of the Bill as well as highlighting the probable difficulties expected to be created by the Bill in the delivery of mental healthcare. It is rightly said that the major task would be to effectively formulate the rules which takes into account the opinions of all stakeholders and is in the best interest of the person with mental illness (PMI).[sup][1] I would like to point out that the nomenclature has now been changed to Mental Healthcare Bill (MHCB), 2016 (i.e. the word “health care” is combined and now “healthcare”) by the amendments introduced by Rajya Sabha.[sup][2],[3] It is important to mention that the provisions regarding judicial inquisition as described in the Chapter VI in the Mental Health Act – 1987 (MHA-87) have been dropped in the MHCB. It is because of the fact that after adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), all persons with disability including the PMI are to have rights, equally with others, to own or inherit property, movable or immovable and to control their financial affairs.[sup][4] The provisions regarding guardianship for the PMI have now been included in the Right of Persons with Disabilities Bill, 2014 (RPWD Bill), which has now been passed by both the houses. The Section 13 of the RPWD Bill authorizes any District Court to record a finding that a mentally ill person is incapable of taking care of himself/herself and of taking any legally binding decisions on his/her own. It should be noted that the RPWD Bill uses the term “mentally ill person” and not “persons with mental illness” as in the MHCB. After recording the finding, the court shall make an order for appointment of a limited guardian to take care of such mentally ill person and take all legal binding decisions on his/her behalf in consultation with such person. The district court may grant plenary guardianship to the mentally ill person under extraordinary situations where limited guardianship may not be awarded. The plenary guardian may take all legally binding decision on his/her behalf without any obligation to consult such person.[sup][5] Now, as the RPWD Bill, 2016 has been passed by both the houses of the Parliament, it would come into force after notification by the Central Government from a certain appointed date. As the section 13 of this Bill starts with the phrase “Notwithstanding anything contained in any other law for the time being in force”, the provision of the section 13 would prevail over the provisions of judicial inquisition of the MHA-1987. But it is not clear what would happen to proceedings already started and the orders already passed under the MHA-1987. Section 111 of the RPWD Bill, which gives power to the Central Government to remove difficulties, may come out to be helpful in this respect. Concerns have been raised that blanket requirement of registration of all places of where the PMI are admitted, reside at or kept in for care, treatment, convalescence, or rehabilitation would invite a sort of “license raj” of harassing mental health-care providers. It is prudent to keep general hospital psychiatry units (with open units only) to be kept out of the requirement of registration. …