The Mental Healthcare Act, 2017
Administered Ministry: Ministry of Health and Family Welfare / Department of Health and Family Welfare
Section
Section 1 Short title, extent and commencement.
(1) This Act may be called the Mental Healthcare Act, 2017.
(2) It shall extend to the whole of India.
(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint; or on the date of completion of the period of nine months from the date on which the Mental Healthcare Act, 2017 receives the assent of the President.
(2) It shall extend to the whole of India.
(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint; or on the date of completion of the period of nine months from the date on which the Mental Healthcare Act, 2017 receives the assent of the President.
1. 29th May, 2018, vide Notification No. S.O. 2173(E), dated 29th May 2018, see Gazette of India, Extraordinary, Part II, sec. 3(ii).
Section 2 Definitions.
(1) In this Act, unless the context otherwise requires,--
(a) "advance directive" means an advance directive made by a person under section 5;
(b) "appropriate Government" means,--
(i) in relation to a mental health establishment established, owned or controlled by the Central Government or the Administrator of a Union territory having no legislature, the Central Government;
(ii) in relation to a mental health establishment, other than an establishment referred to in sub-clause (i), established, owned or controlled within the territory of--
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;
(c) "Authority" means the Central Mental Health Authority or the State Mental Health Authority, as the case may be;
(d) "Board" means the Mental Health Review Board constituted by the State Authority under sub-section (1) of section 80 in such manner as may be prescribed;
(e) "care-giver" means a person who resides with a person with mental illness and is responsible for providing care to that person and includes a relative or any other person who performs this function, either free or with remuneration;
(f) "Central Authority" means the Central Mental Health Authority constituted under section 33;
(g) "clinical psychologist" means a person--
(i) having a recognised qualification in Clinical Psychology from an institution approved and recognised, by the Rehabilitation Council of India, constituted under section 3 of the Rehabilitation Council of India Act, 1992 (34 of 1992); or
(ii) having a Post-Graduate 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 two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) and approved and recognised by the Rehabilitation Council of India Act, 1992 (34 of 1992) or such recognised qualifications as may be prescribed;
(h) "family" means a group of persons related by blood, adoption or marriage;
(i) "informed consent" means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person;
(j) "least restrictive alternative" or "least restrictive environment" or "less restrictive option" means offering an option for treatment or a setting for treatment which--
(i) meets the person's treatment needs; and
(ii) imposes the least restriction on the person's rights;
(k) "local authority" means a Municipal Corporation or Municipal Council, or Zilla Parishad, or Nagar Panchayat, or Panchayat, by whatever name called, and includes such other authority or body having administrative control over the mental health establishment or empowered under any law for the time being in force, to function as a local authority in any city or town or village;
(l) "Magistrate" means--
(i) in relation to a metropolitan area within the meaning of clause (k) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a Metropolitan Magistrate;
(ii) in relation to any other area, the Chief Judicial Magistrate, Sub-divisional Judicial Magistrate or such other Judicial Magistrate of the first class as the State Government may, by notification, empower to perform the functions of a Magistrate under this Act;
(m) "medical officer in charge" in relation to any mental health establishment means the psychiatrist or medical practitioner who, for the time being, is in charge of that mental health establishment;
(n) "medical practitioner" means a person who possesses a recognised medical qualification--
(i) as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in the State Medical Register, as defined in clause (k) of that section; or
(ii) as defined in clause (h) of sub-section (1) of section 2 of the Indian Medicine Central Council Act, 1970 (48 of 1970), and whose name has been entered in a State Register of Indian Medicine, as defined in clause (j) of sub-section (1) of that section; or
(iii) as defined in clause (g) of sub-section (1) of section 2 of the Homoeopathy Central Council Act, 1973 (59 of 1973), and whose name has been entered in a State Register of Homoeopathy, as defined in clause (i) of sub-section (1) of that section;
(o) "Mental healthcare" includes analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness;
(p) "mental health establishment" means any health establishment, including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy establishment, by whatever name called, either wholly or partly, meant for the care of persons with mental illness, established, owned, controlled or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person, where persons with mental illness are admitted and reside at, or kept in, for care, treatment, convalescence and rehabilitation, either temporarily or otherwise; and includes any general hospital or general nursing home established or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person; but does not include a family residential place where a person with mental illness resides with his relatives or friends;
(q) "mental health nurse" means a person with a diploma or degree in general nursing or diploma or degree in psychiatric nursing recognised by the Nursing Council of India established under the Nursing Council of India Act, 1947 (38 of 1947) and registered as such with the relevant nursing council in the State;
(r) "mental health professional" means--
(i) a psychiatrist as defined in clause (y); or
(ii) a professional registered with the concerned State Authority under section 55; or
(iii) a professional having a post-graduate degree (Ayurveda) in Mano Vigyan Avum Manas Roga or a post-graduate degree (Homoeopathy) in Psychiatry or a post-graduate degree (Unani) in Moalijat (Nafasiyatt) or a post-graduate degree (Siddha) in Sirappu Maruthuvam;
(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions 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, specially characterised by subnormality of intelligence;
(t) "minor" means a person who has not completed the age of eighteen years;
(u) "notification" means a notification published in the Official Gazette and the expression notify shall be construed accordingly;
(v) "prescribed" means prescribed by rules made under this Act;
(w) "prisoner with mental illness" means a person with mental illness who is an under-trial or convicted of an offence and detained in a jail or prison;
(x) "psychiatric social worker" means a person having a post-graduate degree in Social Work and a Master of Philosophy in Psychiatric Social Work obtained after completion of a full time course of two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) or such recognised qualifications, as may be prescribed;
(y) "psychiatrist" means a medical practitioner possessing a post-graduate degree or diploma in psychiatry awarded by an university recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956), or awarded or recognised by the National Board of Examinations and included in the First Schedule to the Indian Medical Council Act, 1956 (102 of 1956), or recognised by the Medical Council of India, constituted under the Indian Medical Council Act, 1956, and includes, in relation to any State, any medical officer who having regard to his knowledge and experience in psychiatry, has been declared by the Government of that State to be a psychiatrist for the purposes of this Act;
(z) "regulations" means regulations made under this Act;
(za) "relative" means any person related to the person with mental illness by blood, marriage or adoption;
(zb) "State Authority" means the State Mental Health Authority established under section 45.
(2) The words and expressions used and not defined in this Act but defined in the Indian Medical Council Act, 1956 (102 of 1956) or the Indian Medicine Central Council Act, 1970 (48 of 1970) and not inconsistent with this Act shall have the meanings respectively assigned to them in those Acts.
(a) "advance directive" means an advance directive made by a person under section 5;
(b) "appropriate Government" means,--
(i) in relation to a mental health establishment established, owned or controlled by the Central Government or the Administrator of a Union territory having no legislature, the Central Government;
(ii) in relation to a mental health establishment, other than an establishment referred to in sub-clause (i), established, owned or controlled within the territory of--
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;
(c) "Authority" means the Central Mental Health Authority or the State Mental Health Authority, as the case may be;
(d) "Board" means the Mental Health Review Board constituted by the State Authority under sub-section (1) of section 80 in such manner as may be prescribed;
(e) "care-giver" means a person who resides with a person with mental illness and is responsible for providing care to that person and includes a relative or any other person who performs this function, either free or with remuneration;
(f) "Central Authority" means the Central Mental Health Authority constituted under section 33;
(g) "clinical psychologist" means a person--
(i) having a recognised qualification in Clinical Psychology from an institution approved and recognised, by the Rehabilitation Council of India, constituted under section 3 of the Rehabilitation Council of India Act, 1992 (34 of 1992); or
(ii) having a Post-Graduate 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 two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) and approved and recognised by the Rehabilitation Council of India Act, 1992 (34 of 1992) or such recognised qualifications as may be prescribed;
(h) "family" means a group of persons related by blood, adoption or marriage;
(i) "informed consent" means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person;
(j) "least restrictive alternative" or "least restrictive environment" or "less restrictive option" means offering an option for treatment or a setting for treatment which--
(i) meets the person's treatment needs; and
(ii) imposes the least restriction on the person's rights;
(k) "local authority" means a Municipal Corporation or Municipal Council, or Zilla Parishad, or Nagar Panchayat, or Panchayat, by whatever name called, and includes such other authority or body having administrative control over the mental health establishment or empowered under any law for the time being in force, to function as a local authority in any city or town or village;
(l) "Magistrate" means--
(i) in relation to a metropolitan area within the meaning of clause (k) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a Metropolitan Magistrate;
(ii) in relation to any other area, the Chief Judicial Magistrate, Sub-divisional Judicial Magistrate or such other Judicial Magistrate of the first class as the State Government may, by notification, empower to perform the functions of a Magistrate under this Act;
(m) "medical officer in charge" in relation to any mental health establishment means the psychiatrist or medical practitioner who, for the time being, is in charge of that mental health establishment;
(n) "medical practitioner" means a person who possesses a recognised medical qualification--
(i) as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in the State Medical Register, as defined in clause (k) of that section; or
(ii) as defined in clause (h) of sub-section (1) of section 2 of the Indian Medicine Central Council Act, 1970 (48 of 1970), and whose name has been entered in a State Register of Indian Medicine, as defined in clause (j) of sub-section (1) of that section; or
(iii) as defined in clause (g) of sub-section (1) of section 2 of the Homoeopathy Central Council Act, 1973 (59 of 1973), and whose name has been entered in a State Register of Homoeopathy, as defined in clause (i) of sub-section (1) of that section;
(o) "Mental healthcare" includes analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness;
(p) "mental health establishment" means any health establishment, including Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy establishment, by whatever name called, either wholly or partly, meant for the care of persons with mental illness, established, owned, controlled or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person, where persons with mental illness are admitted and reside at, or kept in, for care, treatment, convalescence and rehabilitation, either temporarily or otherwise; and includes any general hospital or general nursing home established or maintained by the appropriate Government, local authority, trust, whether private or public, corporation, co-operative society, organisation or any other entity or person; but does not include a family residential place where a person with mental illness resides with his relatives or friends;
(q) "mental health nurse" means a person with a diploma or degree in general nursing or diploma or degree in psychiatric nursing recognised by the Nursing Council of India established under the Nursing Council of India Act, 1947 (38 of 1947) and registered as such with the relevant nursing council in the State;
(r) "mental health professional" means--
(i) a psychiatrist as defined in clause (y); or
(ii) a professional registered with the concerned State Authority under section 55; or
(iii) a professional having a post-graduate degree (Ayurveda) in Mano Vigyan Avum Manas Roga or a post-graduate degree (Homoeopathy) in Psychiatry or a post-graduate degree (Unani) in Moalijat (Nafasiyatt) or a post-graduate degree (Siddha) in Sirappu Maruthuvam;
(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions 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, specially characterised by subnormality of intelligence;
(t) "minor" means a person who has not completed the age of eighteen years;
(u) "notification" means a notification published in the Official Gazette and the expression notify shall be construed accordingly;
(v) "prescribed" means prescribed by rules made under this Act;
(w) "prisoner with mental illness" means a person with mental illness who is an under-trial or convicted of an offence and detained in a jail or prison;
(x) "psychiatric social worker" means a person having a post-graduate degree in Social Work and a Master of Philosophy in Psychiatric Social Work obtained after completion of a full time course of two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) or such recognised qualifications, as may be prescribed;
(y) "psychiatrist" means a medical practitioner possessing a post-graduate degree or diploma in psychiatry awarded by an university recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956), or awarded or recognised by the National Board of Examinations and included in the First Schedule to the Indian Medical Council Act, 1956 (102 of 1956), or recognised by the Medical Council of India, constituted under the Indian Medical Council Act, 1956, and includes, in relation to any State, any medical officer who having regard to his knowledge and experience in psychiatry, has been declared by the Government of that State to be a psychiatrist for the purposes of this Act;
(z) "regulations" means regulations made under this Act;
(za) "relative" means any person related to the person with mental illness by blood, marriage or adoption;
(zb) "State Authority" means the State Mental Health Authority established under section 45.
(2) The words and expressions used and not defined in this Act but defined in the Indian Medical Council Act, 1956 (102 of 1956) or the Indian Medicine Central Council Act, 1970 (48 of 1970) and not inconsistent with this Act shall have the meanings respectively assigned to them in those Acts.
Section 3 Determination of mental illness.
(1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government.
(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,—
(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
(b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community.
(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person's mental illness.
(5) The determination of a person's mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.
(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,—
(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
(b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community.
(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person's mental illness.
(5) The determination of a person's mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.
Section 4 Capacity to make mental healthcare and treatment decisions.
(1) Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental healthcare or treatment if such person has ability to—
(a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or
(b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or
(c) communicate the decision under sub-clause (a) by means of speech, expression, gesture or any other means.
(2) The information referred to in sub-section (1) shall be given to a person using simple language, which such person understands or in sign language or visual aids or any other means to enable him to understand the information.
(3) Where a person makes a decision regarding his mental healthcare or treatment which is perceived by others as inappropriate or wrong, that by itself, shall not mean that the person does not have the capacity to make mental healthcare or treatment decision, so long as the person has the capacity to make mental healthcare or treatment decision under sub-section (1).
(a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or
(b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or
(c) communicate the decision under sub-clause (a) by means of speech, expression, gesture or any other means.
(2) The information referred to in sub-section (1) shall be given to a person using simple language, which such person understands or in sign language or visual aids or any other means to enable him to understand the information.
(3) Where a person makes a decision regarding his mental healthcare or treatment which is perceived by others as inappropriate or wrong, that by itself, shall not mean that the person does not have the capacity to make mental healthcare or treatment decision, so long as the person has the capacity to make mental healthcare or treatment decision under sub-section (1).
Section 5 Advance directive.
(1) Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely:—
(a) the way the person wishes to be cared for and treated for a mental illness;
(b) the way the person wishes not to be cared for and treated for a mental illness;
(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14.
(2) An advance directive under sub-section (1) may be made by a person irrespective of his past mental illness or treatment for the same.
(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall remain effective until such person regains capacity to make mental healthcare or treatment decisions.
(4) Any decision made by a person while he has the capacity to make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such person.
(5) Any advance directive made contrary to any law for the time being in force shall be ab initio void.
(a) the way the person wishes to be cared for and treated for a mental illness;
(b) the way the person wishes not to be cared for and treated for a mental illness;
(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14.
(2) An advance directive under sub-section (1) may be made by a person irrespective of his past mental illness or treatment for the same.
(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall remain effective until such person regains capacity to make mental healthcare or treatment decisions.
(4) Any decision made by a person while he has the capacity to make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such person.
(5) Any advance directive made contrary to any law for the time being in force shall be ab initio void.
Section 6 Manner of making advance directive.
An advance directive shall be made in the manner as may be specified by the regulations made by the Central Authority.
Section 7 Maintenance of online register.
Subject to the provisions contained in clause (a) of sub-section (1) of section 91, every Board shall maintain an online register of all advance directives registered with it and make them available to the concerned mental health professionals as and when required.
Section 8 Revocation, amendment or cancellation of advance directive.
(1) An advance directive made under section 6 may be revoked, amended or cancelled by the person who made it at any time.
(2) The procedure for revoking, amending or cancelling an advance directive shall be the same as for making an advance directive under section 6.
(2) The procedure for revoking, amending or cancelling an advance directive shall be the same as for making an advance directive under section 6.
Section 9 Advance directive not to apply to emergency treatment.
The advance directive shall not apply to the emergency treatment given under section 103 to a person who made the advance directive.
Section 10 Duty to follow advance directive.
It shall be the duty of every medical officer in charge of a mental health establishment and the psychiatrist in charge of a person's treatment to propose or give treatment to a person with mental illness, in accordance with his valid advance directive, subject to section 11.
Section 11 Power to review, alter, modify or cancel advance directive.
(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.
(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 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 healthcare 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.
(3) The person writing the advance directive and his nominated representative shall have a duty to ensure that the medical officer in charge of a mental health establishment or a medical practitioner or a mental health professional, as the case may be, has access to the advance directive when required.
(4) The legal guardian shall have right to make an advance directive in writing in respect of a minor and all the provisions relating to advance directive, mutatis mutandis, shall apply to such minor till such time he attains majority.
(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 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 healthcare 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.
(3) The person writing the advance directive and his nominated representative shall have a duty to ensure that the medical officer in charge of a mental health establishment or a medical practitioner or a mental health professional, as the case may be, has access to the advance directive when required.
(4) The legal guardian shall have right to make an advance directive in writing in respect of a minor and all the provisions relating to advance directive, mutatis mutandis, shall apply to such minor till such time he attains majority.
Section 12 Review of advance directives.
(1) The Central Authority shall regularly and periodically review the use of advance directives and make recommendations in respect thereof.
(2) The Central Authority in its review under sub-section (1) shall give specific consideration to the procedure for making an advance directive and also examine whether the existing procedure protects the rights of persons with mental illness.
(3) The Central Authority may modify the procedure for making an advance directive or make additional regulations regarding the procedure for advance directive to protect the rights of persons with mental illness.
(2) The Central Authority in its review under sub-section (1) shall give specific consideration to the procedure for making an advance directive and also examine whether the existing procedure protects the rights of persons with mental illness.
(3) The Central Authority may modify the procedure for making an advance directive or make additional regulations regarding the procedure for advance directive to protect the rights of persons with mental illness.
Section 13 Liability of medical health professional in relation to advance directive.
(1) A medical practitioner or a mental health professional shall not be held liable for any unforeseen consequences on following a valid advance directive.
(2) The medical practitioner or mental health professional shall not be held liable for not following a valid advance directive, if he has not been given a copy of the valid advance directive.
(2) The medical practitioner or mental health professional shall not be held liable for not following a valid advance directive, if he has not been given a copy of the valid advance directive.
Section 14 Appointment and revocation of nominated representative.
(1) Notwithstanding anything contained in clause (c) of sub-section (1) of section 5, every person who is not a minor, shall have a right to appoint a nominated representative.
(2) The nomination under sub-section (1) shall be made in writing on plain paper with the person's signature or thumb impression of the person referred to in that sub-section.
(3) The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.
(4) Where no nominated representative is appointed by a person under sub-section (1), the following persons for the purposes of this Act in the order of precedence shall be deemed to be the nominated representative of a person with mental illness, namely:—
(a) the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or
(b) a relative, or if not available or not willing to be the nominated representative of such person; or
(c) a care-giver, or if not available or not willing to be the nominated representative of such person; or
(d) a suitable person appointed as such by the concerned Board; or
(e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness:
Provided that a person representing an organisation registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board.
(5) The representative of the organisation, referred to in the proviso to sub-section (4), may make a written application to the medical officer in-charge of the mental health establishment or the psychiatrist in-charge of the person's treatment, and such medical officer or psychiatrist, as the case may be, shall accept him as the temporary nominated representative, pending appointment of a nominated representative by the concerned Board.
(6) A person who has appointed any person as his nominated representative under this section may revoke or alter such appointment at any time in accordance with the procedure laid down for making an appointment of nominated representative under sub-section (1).
(7) The Board may, if it is of the opinion that it is in the interest of the person with mental illness to do so, revoke an appointment made by it under this section, and appoint a different representative under this section.
(8) The appointment of a nominated representative, or the inability of a person with mental illness to appoint a nominated representative, shall not be construed as the lack of capacity of the person to take decisions about his mental healthcare or treatment.
(9) All persons with mental illness shall have capacity to make mental healthcare or treatment decisions but may require varying levels of support from their nominated representative to make decisions.
(2) The nomination under sub-section (1) shall be made in writing on plain paper with the person's signature or thumb impression of the person referred to in that sub-section.
(3) The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.
(4) Where no nominated representative is appointed by a person under sub-section (1), the following persons for the purposes of this Act in the order of precedence shall be deemed to be the nominated representative of a person with mental illness, namely:—
(a) the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or
(b) a relative, or if not available or not willing to be the nominated representative of such person; or
(c) a care-giver, or if not available or not willing to be the nominated representative of such person; or
(d) a suitable person appointed as such by the concerned Board; or
(e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness:
Provided that a person representing an organisation registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board.
(5) The representative of the organisation, referred to in the proviso to sub-section (4), may make a written application to the medical officer in-charge of the mental health establishment or the psychiatrist in-charge of the person's treatment, and such medical officer or psychiatrist, as the case may be, shall accept him as the temporary nominated representative, pending appointment of a nominated representative by the concerned Board.
(6) A person who has appointed any person as his nominated representative under this section may revoke or alter such appointment at any time in accordance with the procedure laid down for making an appointment of nominated representative under sub-section (1).
(7) The Board may, if it is of the opinion that it is in the interest of the person with mental illness to do so, revoke an appointment made by it under this section, and appoint a different representative under this section.
(8) The appointment of a nominated representative, or the inability of a person with mental illness to appoint a nominated representative, shall not be construed as the lack of capacity of the person to take decisions about his mental healthcare or treatment.
(9) All persons with mental illness shall have capacity to make mental healthcare or treatment decisions but may require varying levels of support from their nominated representative to make decisions.
Section 15 Nominated representative of minor.
(1) Notwithstanding anything contained in section 14, in case of minors, the legal guardian shall be their nominated representative, unless the concerned Board orders otherwise under sub-section (2).
(2) Where on an application made to the concerned Board, by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it, the concerned Board is of the opinion that,—
(a) the legal guardian is not acting in the best interests of the minor; or
(b) the legal guardian is otherwise not fit to act as the nominated representative of the minor,
it may appoint, any suitable individual who is willing to act as such, the nominated representative of the minor with mental illness:
Provided that in case no individual is available for appointment as a nominated representative, the Board shall appoint the Director in the Department of Social Welfare of the State in which such Board is located, or his nominee, as the nominated representative of the minor with mental illness..
(2) Where on an application made to the concerned Board, by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it, the concerned Board is of the opinion that,—
(a) the legal guardian is not acting in the best interests of the minor; or
(b) the legal guardian is otherwise not fit to act as the nominated representative of the minor,
it may appoint, any suitable individual who is willing to act as such, the nominated representative of the minor with mental illness:
Provided that in case no individual is available for appointment as a nominated representative, the Board shall appoint the Director in the Department of Social Welfare of the State in which such Board is located, or his nominee, as the nominated representative of the minor with mental illness..
Section 16 Revocation, alteration, etc., of nominated representative by Board.
The Board, on an application made to it by the person with mental illness, or by a relative of such person, or by the psychiatrist responsible for the care of such person, or by the medical officer in-charge of the mental health establishment where the individual is admitted or proposed to be admitted, may revoke, alter or modify the order made under clause (e) of sub-section (4) of section 14 or under sub-section (2) of section 15.
Section 17 Duties of nominated representative.
While fulfilling his duties under this Act, the nominated representative shall—
(a) consider the current and past wishes, the life history, values, cultural background and the best interests of the person with mental illness;
(b) give particular credence to the views of the person with mental illness to the extent that the person understands the nature of the decisions under consideration;
(c) provide support to the person with mental illness in making treatment decisions under section 89 or section 90;
(d) have right to seek information on diagnosis and treatment to provide adequate support to the person with mental illness;
(e) have access to the family or home based rehabilitation services as provided under clause (c) of sub-section (4) of section 18 on behalf of and for the benefit of the person with mental illness;
(f) be involved in discharge planning under section 98;
(g) apply to the mental health establishment for admission under section 87 or section 89 or section 90;
(h) apply to the concerned Board on behalf of the person with mental illness for discharge under section 87 or section 89 or section 90;
(i) apply to the concerned Board against violation of rights of the person with mental illness in a mental health establishment;
(j) appoint a suitable attendant under sub-section (5) or sub-section (6) of section 87;
(k) have the right to give or withhold consent for research under circumstances mentioned under sub-section (3) of section 99.
(a) consider the current and past wishes, the life history, values, cultural background and the best interests of the person with mental illness;
(b) give particular credence to the views of the person with mental illness to the extent that the person understands the nature of the decisions under consideration;
(c) provide support to the person with mental illness in making treatment decisions under section 89 or section 90;
(d) have right to seek information on diagnosis and treatment to provide adequate support to the person with mental illness;
(e) have access to the family or home based rehabilitation services as provided under clause (c) of sub-section (4) of section 18 on behalf of and for the benefit of the person with mental illness;
(f) be involved in discharge planning under section 98;
(g) apply to the mental health establishment for admission under section 87 or section 89 or section 90;
(h) apply to the concerned Board on behalf of the person with mental illness for discharge under section 87 or section 89 or section 90;
(i) apply to the concerned Board against violation of rights of the person with mental illness in a mental health establishment;
(j) appoint a suitable attendant under sub-section (5) or sub-section (6) of section 87;
(k) have the right to give or withhold consent for research under circumstances mentioned under sub-section (3) of section 99.
Section 18 Right to access mental healthcare.
(1) Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government.
(2) 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.
(3) The appropriate Government shall make sufficient provision as may be necessary, for a range of services required by persons with mental illness.
(4) Without prejudice to the generality of range of services under sub-section (3), such services shall include—
(a) provision of acute mental healthcare services such as outpatient and inpatient services;
(b) provision of half-way homes, sheltered accommodation, supported accommodation as may be prescribed;
(c) provision for mental health services to support family of person with mental illness or home based rehabilitation;
(d) hospital and community based rehabilitation establishments and services as may be prescribed;
(e) provision for child mental health services and old age mental health services.
(5) The appropriate Government shall,—
(a) integrate mental health services into general healthcare services at all levels of healthcare including primary, secondary and tertiary healthcare and in all health programmes run by the appropriate Government;
(b) provide treatment in a manner, which supports persons with mental illness to live in the community and with their families;
(c) ensure that the long term care in a mental health establishment for treatment of mental illness shall be used only in exceptional circumstances, for as short a duration as possible, and only as a last resort when appropriate community based treatment has been tried and shown to have failed;
(d) ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides;
(e) ensure that as a minimum, mental health services run or funded by Government shall be available in each district;
(f) ensure, if minimum mental health services specified under sub-clause (e) of sub-section are not available in the district where a person with mental illness resides, that the person with mental illness is entitled to access any other mental health service in the district and the costs of treatment at such establishments in that district will be borne by the appropriate Government:
Provided that till such time the services under this sub-section are made available in a health establishment run or funded by the appropriate Government, the appropriate Government shall make rules regarding reimbursement of costs of treatment at such mental health establishment.
(6) The appropriate Government shall make available a range of appropriate mental health services specified under sub-section (4) of section 18 at all general hospitals run or funded by such Government and basic and emergency mental healthcare services shall be available at all community health centres and upwards in the public health system run or funded by such Government.
(7) Persons with mental illness living below the poverty line whether or not in possession of a below poverty line card, or who are destitute or homeless shall be entitled to mental health treatment and services free of any charge and at no financial cost at all mental health establishments run or funded by the appropriate Government and at other mental health establishments designated by it.
(8) The appropriate Government shall ensure that the mental health services shall be of equal quality to other general health services and no discrimination be made in quality of services provided to persons with mental illness.
(9) The minimum quality standards of mental health services shall be as specified by regulations made by the State Authority.
(10) Without prejudice to the generality of range of services under sub-section (3) of section 18, the appropriate Government shall notify Essential Drug List and all medicines on the Essential Drug List shall be made available free of cost to all persons with mental illness at all times at health establishments run or funded by the appropriate Government starting from Community Health Centres and upwards in the public health system:
Provided that where the health professional of ayurveda, yoga, unani, siddha, homoeopathy or naturopathy systems recognised by the Central Government are available in any health establishment, the essential medicines from any similar list relating to the appropriate ayurveda, yoga, unani, siddha, homoeopathy or naturopathy systems shall also be made available free of cost to all persons with mental illness.
(11) The appropriate Government shall take measures to ensure that necessary budgetary provisions in terms of adequacy, priority, progress and equity are made for effective implementation of the provisions of this section.
Explanation.—For the purposes of sub-section (11), the expressions—
(i) "adequacy" means in terms of how much is enough to offset inflation;
(ii) "priority" means in terms of compared to other budget heads;
(iii) "equity" means in terms of fair allocation of resources taking into account the health, social and economic burden of mental illness on individuals, their families and care-givers;
(iv) "progress" means in terms of indicating an improvement in the State's response.
(2) 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.
(3) The appropriate Government shall make sufficient provision as may be necessary, for a range of services required by persons with mental illness.
(4) Without prejudice to the generality of range of services under sub-section (3), such services shall include—
(a) provision of acute mental healthcare services such as outpatient and inpatient services;
(b) provision of half-way homes, sheltered accommodation, supported accommodation as may be prescribed;
(c) provision for mental health services to support family of person with mental illness or home based rehabilitation;
(d) hospital and community based rehabilitation establishments and services as may be prescribed;
(e) provision for child mental health services and old age mental health services.
(5) The appropriate Government shall,—
(a) integrate mental health services into general healthcare services at all levels of healthcare including primary, secondary and tertiary healthcare and in all health programmes run by the appropriate Government;
(b) provide treatment in a manner, which supports persons with mental illness to live in the community and with their families;
(c) ensure that the long term care in a mental health establishment for treatment of mental illness shall be used only in exceptional circumstances, for as short a duration as possible, and only as a last resort when appropriate community based treatment has been tried and shown to have failed;
(d) ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides;
(e) ensure that as a minimum, mental health services run or funded by Government shall be available in each district;
(f) ensure, if minimum mental health services specified under sub-clause (e) of sub-section are not available in the district where a person with mental illness resides, that the person with mental illness is entitled to access any other mental health service in the district and the costs of treatment at such establishments in that district will be borne by the appropriate Government:
Provided that till such time the services under this sub-section are made available in a health establishment run or funded by the appropriate Government, the appropriate Government shall make rules regarding reimbursement of costs of treatment at such mental health establishment.
(6) The appropriate Government shall make available a range of appropriate mental health services specified under sub-section (4) of section 18 at all general hospitals run or funded by such Government and basic and emergency mental healthcare services shall be available at all community health centres and upwards in the public health system run or funded by such Government.
(7) Persons with mental illness living below the poverty line whether or not in possession of a below poverty line card, or who are destitute or homeless shall be entitled to mental health treatment and services free of any charge and at no financial cost at all mental health establishments run or funded by the appropriate Government and at other mental health establishments designated by it.
(8) The appropriate Government shall ensure that the mental health services shall be of equal quality to other general health services and no discrimination be made in quality of services provided to persons with mental illness.
(9) The minimum quality standards of mental health services shall be as specified by regulations made by the State Authority.
(10) Without prejudice to the generality of range of services under sub-section (3) of section 18, the appropriate Government shall notify Essential Drug List and all medicines on the Essential Drug List shall be made available free of cost to all persons with mental illness at all times at health establishments run or funded by the appropriate Government starting from Community Health Centres and upwards in the public health system:
Provided that where the health professional of ayurveda, yoga, unani, siddha, homoeopathy or naturopathy systems recognised by the Central Government are available in any health establishment, the essential medicines from any similar list relating to the appropriate ayurveda, yoga, unani, siddha, homoeopathy or naturopathy systems shall also be made available free of cost to all persons with mental illness.
(11) The appropriate Government shall take measures to ensure that necessary budgetary provisions in terms of adequacy, priority, progress and equity are made for effective implementation of the provisions of this section.
Explanation.—For the purposes of sub-section (11), the expressions—
(i) "adequacy" means in terms of how much is enough to offset inflation;
(ii) "priority" means in terms of compared to other budget heads;
(iii) "equity" means in terms of fair allocation of resources taking into account the health, social and economic burden of mental illness on individuals, their families and care-givers;
(iv) "progress" means in terms of indicating an improvement in the State's response.
Section 19 Right to community living.
(1) Every person with mental illness shall,—
(a) have a right to live in, be part of and not be segregated from society; and
(b) 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.
(2) 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 appropriate Government shall provide support as appropriate including legal aid and to facilitate exercising his right to family home and living in the family home.
(3) The appropriate Government shall, within a reasonable period, provide for or support the establishment of less restrictive community based establishments including half-way homes, group homes and the like for persons who no longer require treatment in more restrictive mental health establishments such as long stay mental hospitals.
(a) have a right to live in, be part of and not be segregated from society; and
(b) 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.
(2) 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 appropriate Government shall provide support as appropriate including legal aid and to facilitate exercising his right to family home and living in the family home.
(3) The appropriate Government shall, within a reasonable period, provide for or support the establishment of less restrictive community based establishments including half-way homes, group homes and the like for persons who no longer require treatment in more restrictive mental health establishments such as long stay mental hospitals.
Section 20 Right to protection from cruel, inhuman and degrading treatment.
(1) Every person with mental illness shall have a right to live with dignity.
(2) Every person with mental illness shall be protected from cruel, inhuman or degrading treatment in any mental health establishment and shall have the following rights, namely:—
(a) to live in safe and hygienic environment;
(b) to have adequate sanitary conditions;
(c) to have reasonable facilities for leisure, recreation, education and religious practices;
(d) to privacy;
(e) for proper clothing so as to protect such person from exposure of his body to maintain his dignity;
(f) to not be forced to undertake work in a mental health establishment and to receive appropriate remuneration for work when undertaken;
(g) to have adequate provision for preparing for living in the community;
(h) to have adequate provision for wholesome food, sanitation, space and access to articles of personal hygiene, in particular, women's personal hygiene be adequately addressed by providing access to items that may be required during menstruation;
(i) to not be subject to compulsory tonsuring (shaving of head hair);
(j) to wear own personal clothes if so wished and to not be forced to wear uniforms provided by the establishment; and
(k) to be protected from all forms of physical, verbal, emotional and sexual abuse.
(2) Every person with mental illness shall be protected from cruel, inhuman or degrading treatment in any mental health establishment and shall have the following rights, namely:—
(a) to live in safe and hygienic environment;
(b) to have adequate sanitary conditions;
(c) to have reasonable facilities for leisure, recreation, education and religious practices;
(d) to privacy;
(e) for proper clothing so as to protect such person from exposure of his body to maintain his dignity;
(f) to not be forced to undertake work in a mental health establishment and to receive appropriate remuneration for work when undertaken;
(g) to have adequate provision for preparing for living in the community;
(h) to have adequate provision for wholesome food, sanitation, space and access to articles of personal hygiene, in particular, women's personal hygiene be adequately addressed by providing access to items that may be required during menstruation;
(i) to not be subject to compulsory tonsuring (shaving of head hair);
(j) to wear own personal clothes if so wished and to not be forced to wear uniforms provided by the establishment; and
(k) to be protected from all forms of physical, verbal, emotional and sexual abuse.