| Abstract|| |
India has an enormous burden of mental illness. In spite of the recognition of this population of people living with mental illness, the treatment gap continues to be about 83%. In order to meet this vast unmet need and in the view of aligning the mental health legislation with the international standards and the UN-Convention on the Rights of Persons with Disabilities, the Mental Healthcare Act 2017 was passed and enforced recently. The provisions in the act have been controversial from its conception. Now after the enforcement of the act, all mental health professionals (MHPs) have a legal binding to follow the provisions in the law. The MHPs are accountable to the statutory bodies – the Central Mental Health Authority, State Mental Health Authority (SMHA), Mental Health Review Board, and finally, the High Court or the Supreme Court. The Mental Healthcare Act (MHCA) and relevant articles/documents obtained pertaining to MHCA and their evaluation were reviewed, the major focus being on the role of statutory/regulatory bodies. Furthermore, an attempt was made to summarize the previous experiences in inspection of mental health establishments by SMHA of Karnataka. We concluded that the MHCA will have both positive and negative aspects. Many of the provisions in the law may appear unclear and unrealistic by many practitioners. However, it becomes precautionary for the MHPs to be well equipped with the MHCA and be acquainted with the requirements of the statutory bodies for ensuring a safe practice. The outcome of the implementation of the act will become evident only with time.
Keywords: Mental Healthcare Act 2017, mental health establishments, statutory bodies
|How to cite this article:|
Prashanth N R, Abraham SE, Hongally C, Madhusudan S. Dealing with statutory bodies under the Mental Healthcare Act 2017. Indian J Psychiatry 2019;61, Suppl S4:717-23
| Introduction|| |
The burden of mental illness is enormous in India. It is estimated that just over one in ten people in India have a mental health issue, one in twenty people suffer from depression, and 0.8% have a “severe mental disorder.” In a recent systematic analysis conducted on community representative epidemiological samples, schizophrenia accounted for 1.7 million, bipolar affective disorder (BPAD) for 1.8 million, depression for 11.5 million, alcohol and substance misuse for 3 million, and dementia for 1.8 million in India. Despite this, in India, treatment gaps >83% exist due to various reasons.
India is implementing a variety of initiatives to address this large need. These initiatives need to be supported by clear and pragmatic mental health law in line with international human rights legislation. India now leads the way globally in revising mental health legislation in line with international human rights standards and will be highly relevant to many other countries, especially those who have also ratified the UN-Convention on the Rights of Persons with Disabilities.
India has recently revised its mental health legislation with a new law – the Mental Healthcare Act (MHCA) 2017 which came into force from April 7, 2018, superseding the previously existing Mental Health Act, 1987. It gives it opening statement as:
“An Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.”
Along with the Indian Rights of Persons with Disabilities Act 2016, it will bring Indian law closely in line with the WHO-RB (WHO Resource Book on Mental Health, Human Rights and Legislation).
MHCA 2017 empowers persons with mental illness and aims to safeguard the rights of the people with mental illness, along with access to health care and treatment without discrimination from the government. It includes provisions for the registration of mental health-related institutions and for the regulation of the sector which necessitates setting up mental health establishments (MHEs) across the country to ensure that no person with mental illness will have to travel far for treatment. The range of services shall include (a) acute mental health-care services such as outpatient and inpatient services; (b) provision of half-way homes, sheltered accommodation, and supported accommodation as may be prescribed; (c) provision for mental health services to support family of persons with mental illness or home-based rehabilitation; (d) hospital- and community-based rehabilitation establishments and services as may be prescribed; and (e) provision for child mental health services and old-age mental health services.
In the context of the new MHCA 2017 act, it becomes necessary for mental health practitioners to ensure that the best services are provided by the MHEs, keeping in mind the rights of the persons with mental illness. Simultaneously, steps must be taken so that all necessary precautions are taken to deal with the regulatory bodies as per the MHCA 2017, or in other words, mental health professionals (MHPs) are the keepers of the law in providing care, and if not followed, actions can be taken against them.
Although the MHCA may appear like a revolutionary step taken by India to align its policy with the international standards, there have been controversies regarding the new act since its conception. The MHCA and relevant articles/documents obtained pertaining to MHCA and their evaluation are reviewed here, the major focus being on the role of statutory/regulatory bodies and its relevance to the MHPs during their practice under the new law.
| Need for Regulation/inspection of Mental Healthcare|| |
A key strategy for improving the quality of mental health care is the design and implementation of a mechanism for inspection and auditing. In the West, mental health agencies have been increasingly required by their accrediting bodies to specify and implement plans to continuously monitor and improve the quality of the services they provide which is done by quality assurance and improvement (QA/I) systems. QA/I professionals aim at monitoring and improving (1) service provision, (2) safety, (3) consumer outcomes, (4) consumer perspectives, (5) staff perspectives and issues, (6) community perspectives, and (7) productivity and finances. An objective, comprehensive system for recording and analyzing multidisciplinary clinical auditing in mental health services can identify potential risks and allows for better decision-making.
| Regulation of Standards of Care in Other Countries|| |
In Western countries, there are assigned regulatory bodies for health-care sector so that the best of the recommended standards is met. For example, in England and Wales, the health and social care regulators for mental health are the Care Quality Commission (CQC) and the Healthcare Inspectorate Wales (HIW), respectively. The CQC and HIW register, monitor, and routinely inspect all hospitals, care homes, and home care agencies to make sure they meet national standards of quality and safety. All providers of health and social care are required to be registered with them and its reports on each provider will be made available on its website. Any grievances or complaints against the caregivers will be dealt with by these organizations.
The Australian Council on Healthcare Standards (ACHS) provides assessment services for the National Standards for Mental Health Services (NSMHS) 2010. It provides the health services survey models from which they can choose based on their accreditation requirements survey. The survey team will make a recommendation that the mental health service receives a certificate of recognition if they consider that the NSMHS have been satisfactorily incorporated into everyday service delivery. Many other countries follow a similar procedure for maintaining standards in providing mental health care.
| Role of Statutory Bodies in India as Per MHCA 2017|| |
A statutory body is the one which derives its power by the virtue of an act or law passed by the Parliament or the state assembly. As per the MHCA act, the law bestows authority to the Central Mental Health Authority (CMHA) (under the central government) and the State Mental Health Authority (SMHA) (under the state government), to carry out the necessary proceedings as per the act. The SMHA is also required to constitute the Mental Health Review Board (MHRB) for the purpose of this act. All mental health practitioners (MHPs – clinical psychologists, mental health nurses (MHNs), and psychiatric social workers) and every MHE will have to be registered with this authority. Statutory bodies as per the MHCA 2017 are CMHA, SMHA, MHRB. High Court and Supreme Court.
| Central Mental Health Authority|| |
Central Mental Health (CMH) Authority comprises 20 members (3-year term) who are required to meet every 6 months. CMH comprises Secretary and Joint Secretaries of Department of Health and Family Welfare, Director General of Health Services, Director of Central Institutes of Mental Health, MHP with 15-year experience, psychiatric social worker, clinical psychologist, MHN, two members of person with mental illness (PMI), caregivers, persons of nongovernmental organization (NGO), and persons relevant to mental health.
| State Mental Health Authority|| |
SMHA takes up the important task of protecting the human rights of inmates of all MHEs, or even outside, in its geographic jurisdiction. SMHA shall meet not <4 times a year and comprises principal secretary, joint secretary, head of mental health institute, eminent psychiatrist, MHP, psychiatric social worker, clinical psychologist, MHN, two members of PMI, caregivers, and persons of NGO.
These bodies will (a) register, supervise, and maintain a register of all MHEs; (b) develop quality and service provision norms for such establishments; (c) maintain a register of MHPs; (d) train law enforcement officials and MHPs on the provisions of the act; (e) receive complaints about deficiencies in the provision of services; and (f) advise the government on matters relating to mental health.
| Mental Health Review Boards|| |
MHRB will be set up mostly in every district as per the CMH/SMH recommendation and will be for a term of 5 years. Review board members can be holding office up to the maximum age of 70 years, and members comprise honorable district judge (retired also considered), representative of district collector, psychiatrist, medical practitioner, and two persons can be either persons with mental illness (PMI) or caregivers or persons of NGO.
Functions of the MHRB include – to register and review advance directives (ADs), to appoint nominated representative, to decide objections against MHP and MHE, to decide for nondisclosure of persons with mental illness information, to visit jails, and to protect human rights.
| Requirements of Mental Health Establishments under MHCA 2017|| |
As per the act, “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, cooperative society, organization, 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, cooperative society, organization 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”
This act makes even the multispecialty hospitals and general hospitals under the purview of the act for registration as MHE.
This broad inclusion of a varied mental health setup requires that different standards/regulation are specified for each of these different categories of MHEs which will be done by the mental authority. For the purpose of registration, every MHE (in accordance with regulation of the authority) must fulfill:
- Minimum standards of facilities and services,
- Minimum qualifications for the personnel engaged in such establishments,
- Provisions for maintenance of records and reporting, or
- Any other conditions specified.
MHCA 2017 appears as although it may not be applicable to MHPs practicing at outpatient services, they are mandated to follow other sections of the act pertaining to AD, aspects of confidentiality, rights to access basic medical records by patients, and provisions of treatment procedures such as electroconvulsive therapy (ECT), psychosurgery, seclusion, and emergency treatment.
| Procedure for Registration, Inspection, and Inquiry of Mental Health Establishments|| |
For the purpose of registration, MHE must submit an application (accompanied with a demand draft of 20000) to the CMHA/SMHA in person or by post or online. Every existing MHE (before the act) shall, within a period of 6 months from the date of constitution of the authority, submit an application for its provisional registration to the authority. The authority shall, within a period of 10 days, issue to the MHE a certificate of provisional registration which will be valid for a period of 12 months from the date of its issue and be renewable. Where a certificate is destroyed or lost or mutilated or damaged, the state authority may issue a duplicate certificate on an application made by such establishment along with a fee of rupees 2000.
The MHEs shall, within a period of 6 months from the date of notifying, apply for the particular category (where standards have been specified by State Mental Health Authority (SMA)) and obtain permanent registration. Until standards are published, MHE must renew their provisional registration 30 days prior to the expiry after which the authority shall allow renewal of registration on payment of such fees as prescribed.
The MHE may apply for permanent registration and provide evidence for meeting the standards as put forward by the authority, after which the authority within a period of 30 days gives in public notice and in website for filing any objection against the MHE. The authority shall, within a period of 45 days after the expiry of the period specified, pass an order, either (a) granting permanent certificate of registration or (b) rejecting the application after recording the reasons thereof. In case the authority rejects the application, it shall grant such period not exceeding 6 months, to the MHE for rectification of the deficiencies which have led to the rejection of the application, and such establishment may apply afresh for registration.
| Audit|| |
All registered MHEs will undergo an audit every three years, so as to ensure that such MHEs comply with the requirements of minimum standards for registration as a MHE.
The authority (CMHA/SMHA) may issue a show cause notice to a MHE if it is not satisfactorily aligning with the recommendations and may cancel the registration of a MHE, if even after giving reasonable opportunities, it fails to meet the standards or when recommended by the board to do so.
| Inspection and Inquiry|| |
In addition to the audit, the authority may order an inspection of any MHE suo moto or on a complaint received from any person with respect to nonadherence of minimum standards, and the MHE shall be entitled to be represented at such inspection or inquiry. The inspection can be carried out by (1) psychiatrist in government or private practice; (2) any other MHP; (3) NGO representative; (4) police officer in charge of the police station under whose jurisdiction, the MHE is situated; (5) a representative of the district collector or district commissioner of the district where the MHE is situated. Within 2 days of completing search of the MHE, a written report of the findings of such search shall be submitted to the authority. The authority shall communicate the results of such inspection and order the establishment to make necessary changes within a specified period. If the MHE fails to comply with the order, the authority may cancel the registration of the MHE.
The authority or any person authorized by it may, if there is any reason to suspect that any person is operating a MHE without registration, enter and search in such manner as may be prescribed, and the MHE shall cooperate with such inspection or inquiry and be entitled to be represented at such inspection or inquiry. Any MHE aggrieved by an order of the authority refusing to grant registration or renewal of registration or cancellation of registration may, within a period of 30 days from such order, prefer an appeal to the High Court in the state.
| Change in Ownership or Category|| |
Every MHE shall display the certificate of registration in a conspicuous place in the MHE in such manner so as to be visible to everyone visiting the MHE. Any change of ownership of the MHE shall be intimated to the authority by the new owner within 1 month from the date of change of ownership. In the event of change of category of the MHE, such establishment shall surrender the certificate of registration to the authority, and the MHE shall apply afresh for grant of the certificate of registration in that category.
| Documentation|| |
A category-wise register in Form D of all registered MHEs shall be maintained by the state authority in digital format in accordance with the provisions of section 71 of MHCA 2017.
| Concerns for Mental Health Professionals under MHCA 2017|| |
All MHPs are obliged under the law to protect the rights of the persons with mental illness. The new law has brought about a series of changes which would warrant an alteration in the psychiatric practice from now on. The main areas of concern for a clinician in MHCA are ADs, nominated representative, mental health authority, the district board, supported admissions, long term stay, and community care.
It is the duty of the medical officer in charge of the MHE and the psychiatrist in charge of a person's treatment to give treatment in accordance to the advance directives. The medical practitioner/MHP will not be held liable: (1) if a copy of a valid AD has not been given prior, (2) under emergency conditions, and (3) due to any unforeseen happenings due to following the AD.
The NR can be a relative or caregiver, a suitable person appointed by the board, or person of organization registered under the Societies Registration Act and may be revoked by the board. In case of wandering mentally ill, the role of NR is taken over by the government (Department of Social Welfare) and the psychiatrist is exempted from taking any unilateral decision regarding admission, discharge, or treatment.
The duration of admission is only for 30 days. The other important component is that the admission has to be reported to the board within 7 days and can be extended if required.
| Role of Mental Health Review Board|| |
The proceedings in the MHRB shall be deemed to be judicial proceedings within the sections of 193 (punishment for false evidence), 219 (public servant corruptly making report), and 228 (intentional insult to public servant in judicial proceedings) which will be held in camera. All civil cases related to PMI will be dealt with the MHRB.
The board shall dispose of an application for (1) nominated representative, (2) challenging admission of a minor, and (3) challenging supported admission within a period of 7 days from the date of receipt of applications. In case of continuation of supported admission, it will be done within 21 days and any other applications other than the above mentioned within 90 days.
During the proceedings, the parties can appear in person and be represented by a counsel or a representative of their choice. As required by the law, at any point, a MHE or MHP should be ready to face the proceedings. Clear guidelines for the proceedings of hearing and necessary measures to be taken have not been clearly mentioned in the act. However, these guidelines may be put forward by the state mental health rules when it is being formed.
In respect of any application concerning a person with mental illness, the board shall hold the hearings and conduct the proceedings at the MHE where such person is admitted. Witnesses can be called for giving their statements during these hearings if deemed appropriate by the board. The parties to a matter shall have the right to inspect any document relied upon by any other party in its submissions to the board and may obtain copies of the same. The board shall, within 5 days of the completion of the hearing, communicate its decision to the parties in writing.
| Experiences during Inspection Conducted in Bengaluru by Karnataka State Mental Health Authority Before the MHCA 2017|| |
The Karnataka SMHA has been instrumental in regulating the standards and inspection of the existing MHEs. Psychiatrists from the government hospitals were appointed as inspectors and they played a vital role in granting or rejecting the license to these establishments. The inspectors were instructed to look into the license requirements, the infrastructural requirements (number of beds, ventilation, hygiene, and approval of local authority), type of category the institution belongs to, details of the qualification of the appointed staffs, and the staff-to-patient ratio and whether minimal facilities as per Karnataka State Mental Health Rules 2012 were met by the institutions. After the inspection, a report was submitted by the inspector to the district collector/KSMHA and decision was taken as to if the license should be granted. Inspection was often conducted for renewal of the licensing which would be informed prior to the visits. The establishments would be inspected without notice in case of court order or complaints of human rights violations. During the inspection, the inspectors were able to find many insufficiencies in many of the establishments in Bengaluru [Table 1].
| What Does the MHCA 2017 Expect from the Mental Health Professional and Mental Health Establishment?|| |
MHCA has put forward a lot of legal obligations. Here are a few hypothetical case scenarios where the MHP and MHEs may have to face and what does the provisions of MHCA say?
Case scenario 1
Dr. X is working in a general clinic which has a bed strength of 20. He has been seeing psychiatric patients on an OP basis for the past few years. However, he feels the necessity to have IP care from now on? What should he do?
MHCA section – Admitting of psychiatric patients would qualify the clinic to be fulfilling the criteria for MHE under the act. Every MHE has to be registered under a statutory body (CMHA/SMHA). So Dr. X will have to register as a MHE to start his IP care. Failing to do so, he will be penalized under section 107 and 108.
Case scenario 2
Miss D is a known case of psychotic illness. For the past 3 months, she had refused to take her medications as she was convinced that she was completely cured. Since 1 week, she has started being suspicious toward her family and has been exhibiting aggressive behavior. When the family members convince her to take medicines, she becomes aggressive and one of her family members was injured in the process. She is brought by the family for admission; however, Miss D denies that she is ill and refuses to get admitted. What to do?
MHCA sections 4, 89, and 94 – If the MHP is convinced that Miss D does not have the capacity to make decision for herself, she should consider her advance directive if any, and if there is no advance directive, her nominated representative can give consent for her admission for a period not extending 30 days. She will be considered as a case of supported admission.
Case scenario 3
Mr. Y is having complaints of hearing of voices and he fears that his father is trying to harm him. He has an AD and states that he wants to be admitted in a private institution in the city. Nominated representative (father) reports that he is not able to afford the expenses and wishes to admit him to a more affordable setup and has sort the MHPs help. What is to be done?
MHCA 11 (1) and (2) – in case where Mr. Y's advance directive cannot be followed the NR, the MHP can request to the MHRB to review, alter, modify, or cancel the AD, and admission can be proceeded with based on the decision of MHRB.
From the above-said case scenarios, it becomes clear that the MHPs/MHEs have to be vigilant in every aspect of their practice. They are accountable to the regulatory bodies for their actions and decisions. In the purview of MHCA, it becomes mandatory for the MHPs to be prepared to have a phenomenal change in their psychiatric practice when compared to before.
| Discussion|| |
There have been conflicting views of the MHCA from the beginning. MHCA has been praised for its effort to align itself with the international standards; however, there have been concerns regarding many clauses put forward by the act and many of which may be unrealistic expectations.
Narayanan et al. (2014, 2015) stated that the bill has many positive features. If properly and genuinely implemented, it could revolutionize the mental health care services in our country., He detailed the positive aspects of the Mental Health Care Bill (MHCB) as availability of ensuring good services to patients, defined government duties in sensitizing mental health issues, addressing human resource requirements, protecting the rights of the persons with mental illness, decriminalization of suicide, and provisions for emergency treatment. The negative aspects included general hospital psychiatry unit as MHE, banning unmodified ECT and restriction of ECT in minor, marginalization of family of mentally ill, mental health care in hands of nonexperts, and the increased paper works in psychiatric practice. Kala (2013) had praised many of the objectives in the bill but felt that families who are the major caregivers were sidelined in the act. Subhodhi (2015) had praised the bill by stating that it would restore the long-lost dignity of the mentally ill. Although some sections of this bill are being criticized, he still felt that this bill seemed more humane and appropriate in the current situation.
James (2014) considered that act should be disastrous as it basically imported ideas from the West without a proper study of ground realities. Kumar is of the opinion that numerous unintended and mostly negative consequences would crop up with new act and would end up discriminating against the mentally ill, contrary to its objectives. Gupta and Basu explicitly stated that the mental health bill was quite “exotic” (of foreign origin) but perhaps also “quixotic” (with fantastic but unrealistic plans). In this context, he suggested the four-pronged approach – need of code of practice, need for skill development to be prepared for the act, negotiation with government for budgeting for the implementation of the bill, and chances of legal recourses which may need modification of the bill. However, at this juncture, after the passing of the act, issues related to the act will only be known only after the act gets fully implemented.
| Conclusion|| |
The law may seem like an over-ambitious turn of events in the field of mental health in India; however, the MHPs are obliged to follow the law and be prepared to face the law and the designated regulatory bodies. With the experience of inspection at Bangalore, there appears to be many deficiencies in the current practice which the MHEs/MHPs will have to change under the purview of MHCA 2017. The positive or negative implications of the act will be clear only once the entire mental health act comes into full force. However, it is still possible to negotiate with government at this stage of preparing mental health rules to make the scenario more realistic and helpful to all the stakeholders.
We would like to thank Karnataka SMHA for sharing their experiences on inspection conducted in various MHEs.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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Dr. Chandrashekar Hongally
Department of Psychiatry, Bangalore Medical College and Research Institute, Bengaluru, Karnataka
Source of Support: None, Conflict of Interest: None