| Abstract|| |
India has got a new mental health legislation, the Mental Healthcare Act in 2017 (MHCA). Compared to its predecessor the Mental Health Act of 1987, this act was purported to be more patient centric and rights based. Considering the significant burden of child and adolescent mental health problems in the community, it is essential to understand what this new act means for the mental healthcare of young people. This article presents sections of the act relevant to children and adolescents. We look at the provisions in the context of changes from the earlier act, concordance with other Indian legislations and with mental health legislations in other parts of the world.
Keywords: Adolescent, child, Mental Healthcare, India, legislation
|How to cite this article:|
Sharma E, Kommu JV. Mental Healthcare Act 2017, India: Child and adolescent perspectives. Indian J Psychiatry 2019;61, Suppl S4:756-62
| Introduction|| |
A rights-based approach is the basic premise of the evolution of the MHCA 2017 that came into existence after the assent of the Honorable President of India on 7th April 2017. The act is in concordance with the United Nations Convention on Rights of Persons with Disabilities  that India ratified in 2007 and includes a dedicated chapter on the rights of persons with mental illness. Children and adolescents constitute approximately 40% of the population of India. Recent studies have reported high rates of psychiatric morbidity in this age group., Access to mental health care for children and adolescents is a sensitive indicator of the level of the development of a country. There is a significant gap in addressing the mental health needs of children and adolescents. This article will explore the provisions of MHCA with respect to children and adolescents, in comparison with the Indian Mental Health Act (MHA) 1987; explore its concordance with other existing legislation and policies relevant to child and adolescent mental health; compare it with mental health legislation in other parts of the world; and discuss the strengths and limitations of the act.
| Provisions for Children and Adolescents|| |
[Table 1] lists the provisions in MHCA 2017 that are relevant to children and adolescents. Alongside the provisions, we highlight their practical implications, i.e., the likely consequences for clinical and administrative practices in child and adolescent mental health care. In keeping with the United Nations Convention on the Rights of the Child, MHCA considers all individuals below the age of 18 years as minors, like its predecessor, MHA 1987.
|Table 1: Provisions for children and adolescents in Mental Healthcare Act 2017|
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| Positive Initiatives for Child and Adolescent Mental Healthcare|| |
MHCA improves on its predecessors in terms of greater clarity on a range of issues surrounding the mental health care of children and adolescents. It is more elaborate on inpatient admission procedures and treatments such as the use of electroconvulsive therapy. The act clearly states the role of nominated representative (NR) (typically parents/guardians or state-appointed persons) in all aspects of decision making for mental health care of minors. The NR can also make advance directives for minors. The NR must accompany a minor during an inpatient admission. A novel aspect of the legislation is mandating nonseparation of infant and toddlers from mothers getting treatment for mental illness unless there is any risk posed to the child. This is a welcome move since separation at this young age can interfere with the nutritional, growth, and attachment needs of the child, with long-term consequences on physical and mental development. Another positive move is the decriminalization of suicidal behaviors. This is especially relevant in the case of adolescents who have high rates of self-harm and suicidal behaviors, which indicate the presence of serious psychological distress that requires urgent medical, including psychiatric, intervention. Till recently, the criminal perspective on and legal consequences of such behavior was a barrier to help-seeking.
| MHCA 2017 Versus Mental Health Act 1987|| |
Definition of mental illness
MHCA is conceptually clearer on the definition of “mental illness” [Table 1]. The MHA described a mentally ill person only by the need of treatment by reason of any mental disorder other than mental retardation, without any explicit mention of the nature of mental disorders. Notably, the exclusion of mental retardation from the definition has been maintained in MHCA.
Admission and discharge procedures for minors
The MHA and MHCA both provide for voluntary admission of minors on request made by the guardian (MHA) or NR (MHCA). While the MHA required an evaluation of the minor only by a medical officer-in-charge to determine the need for admission, the MHCA mandates the examination by at least two medical professionals, at least one of who must be an MHP. Discharge of minors, on request made by the guardian (MHA) or NR (MHCA), is consistent across the acts. Provisions slightly differ in the scenario where a minor attains majority during inpatient treatment. The MHA stated that a minor who attains majority would be discharged from inpatient care unless he/she made a specific request for a continuance of inpatient care within a month of being intimated of his/her having attained majority status, by the doctor in charge. Therefore, the MHA did not treat the admission as voluntary once the majority was attained. The MHCA also provides for the discharge of voluntary patients, but only on request made by the now adult patient. However, the provision for default discharge unless requested for continuation of inpatient admission is replaced by the provision of an option for discharge if the patient requests it. MHCA thereby ensures the rights, yet providing for continuation of care.
Separate inpatient facilities for minors
Section 5 of Chapter III of MHA 1987 proposed the setting up of separate psychiatric hospitals and psychiatric nursing homes, by the Central Government of India, for those who are under the age of 16 years. The MHCA goes a step further to state that separate facilities are needed for all minors, i.e., under 18 years of age rather than 16. It does not specify if these separate facilities could be housed in the same compound as the facilities for adults, but with separate enclosures; or they should be separate hospitals in themselves. MHCA also makes a mention that facilities for young people should suit the developmental needs; however, there is no clear definition of the minimum standards required for such a facility. [Box 1] presents our recommendations for a set of minimum standards required for a 20-bedded inpatient unit for minors. This template can be adapted depending on the age and diagnostic status of the clientele, and the population prevalence of psychiatric problems in children and adolescents. Some inpatient facilities go a step further in having separate setups for older adolescents. The developmental needs of older adolescents are different from those of younger children; besides, the physical size and acting out behaviors in older adolescents can be intimidating for younger children., These facets reiterate the need for mental health legislation in the country to provide specific recommendations for inpatient care settings for children and adolescents.
New mandates in MHCA vis-à -vis Mental Health Act
MHCA introduces several new mandates in comparison to the MHA. These include role of NR in AD for minors, the provision for change of NR if he/she is deemed unfit, the provision for very young children (≤3 years of age) to stay with their mothers getting treatment for mental illnesses, the compulsory requirement of NR to accompany minors during inpatient treatment, the requirement to report to the mental health review board (MHRB) within 72 h about the admission of a minor patient, and the prohibition on electroconvulsive therapy for minors. Children and adolescents are not merely little adults. The MHCA appears cognizant of this and accordingly, is more explicit on the provisions for minors, compared to the MHA.
| Concordance of MHCA With Other Legislative Acts and Policies in India|| |
Rights of Persons with Disabilities Act, 2016
The Rights of Persons with Disabilities Act (RPWD) came into force in 2016, i.e., before the MHCA. RPWD is also deeply driven by the United Nations Convention on the Rights of Persons with Disabilities. In the area of mental disabilities, RPWD is a major advancement over Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 in encompassing a broad range of mental health conditions, including neurodevelopmental disorders, in its ambit. Thereby, mental retardation, autism spectrum disorders, specific learning disabilities, and mental illnesses are all eligible for disability evaluation and certification. This is an area where the MHCA falls short, in that it is unclear what is the stand of the act on neurodevelopmental disorders. Its definition of mental illness excludes mental retardation and is silent about other neurodevelopmental disorders that constitute a substantial proportion of consultations in child and adolescent psychiatric practice. There is also a lack of clarity on the relation between guardianship in the RPWD and NR in the MHCA. Further, while MHCA is quite elaborate in provisions for rights of mentally ill persons with respect to their health care and within MHEs, issues of social rights and discrimination find no mention in the act.
Juvenile Justice (Care and Protection of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015 is the primary provision in India that dictates laws related to children in conflict with the law and children in need of care and protection. Section 15 of this act talks a much-debated transfer of alleged offenders between the age of 16–18 years to the adult justice system in the event of heinous crimes and if so deemed after a preliminary assessment of the adolescent's mental and physical capacity to commit the offence, ability to understand the consequences of the offence, and circumstances in which the alleged offense was committed. The law, therefore, deems it possible that persons aged 16–18 years are capable of “adult-like” decision-making processes, can be held fully accountable for their acts, and can be penalized like adults in similar situations. Contrast this with the MHCA that places all decision-making authority about the treatment and care of minors with their NR. We discuss later, how several countries in the world have moved toward greater participation of minors, especially 16–17-year-old, in health-care decisions. To this extent, the MHCA contradicts its premise of upholding the rights of young people with mental ill health.
National Mental Health Policy, 2014
India adopted the National Mental Health Policy (NMHP) in 2014; this policy is meant to guide all actions to scale up the mental health programs and provisions in the country. The policy lays special emphasis on the mental health needs of vulnerable groups such as orphans with mental illnesses, children of persons with mental illnesses, and children in custodial institutions. Surprisingly, MHCA finds no mention of these vulnerable populations. The generic mental health needs, administrative processes, and manner of addressal cannot be directly extrapolated to these groups. There is a crying need for special consideration by the central mental health legislation in the country in this context.
| Comparison of MHCA With Mental Health Legislation in Other Countries|| |
Participation of minors in healthcare decisions
MHCA 2017 places almost the entire responsibility for health-care decisions for minors on the NR, i.e., the parent/legal guardian unless otherwise specified. This implies that even older adolescents, ≥15 years of age, cannot take an active part in healthcare decisions. However, the day they turn 18, they get all privileges available to a voluntary adult patient. This seems quite at odds with the understanding of adolescent development and the capacity of adolescents to appreciate their healthcare needs and take responsible decisions. The Indian law stands in contrast to western legislations that give young people substantial rights. In the United Kingdom (MHA 2007), 16- and 17-year-old have legal rights to consent to or refuse treatment and/or inpatient admission; parents/legal guardians cannot override their rights. Similar laws exist in the USA, Australia, Canada, New Zealand and other parts of the world. Further, statutes such as Gillick competence  and the mature minor doctrine  also make room for children younger than 16 years of age to make health-care decisions, provided that their capacity to consent has been ascertained. Gillick competence and mature minor doctrine are legal provisions in the UK and USA, respectively, whereby minors can make health-care decisions about their own medical treatment, without the need for parental permission or knowledge. These provisions arose out of cases before the law in the 1960s–1980s. Gillick competence, for instance, arose from a decision by the House of Lords about the prescription of contraception to minors without the need for parental consent. It has subsequently extended to decisions minors can take about their other healthcare needs as well. The UK Department of Health has published guidelines for young people to be aware of their rights to take an active part in health-care decisions.
Mental health practitioners have to always act in the best interest of the child. Even as the legislation mentioned above recognize child rights, they also permit practitioners to act discretionarily in the context of emergencies or when it is deemed essential to disclose information or discuss treatment options with parents, for example, when there are aggressive behavior and imminent risk to the minor or others. This breach of confidentiality with the minor is guided by the Caldicott Guardian principles in the UK that outline circumstances and responsibilities in every context where personal confidential data are shared.
The WHO Checklist on Mental Health Legislation
The WHO Checklist on Mental Health Legislation  provides a framework for designing country-specific laws. Regarding the items on this checklist that are relevant for child and adolescent mental health, MHCA is up to the mark on the following accounts:
- It limits the involuntary placement of minors in mental health facilities to instances where all feasible community alternatives have been tried
- It stipulates that if minors are placed in mental health facilities, they should have a separate living area from adults
- It stipulates that if minors are placed in mental health facilities, the environment should be age appropriate and should take into consideration the developmental needs of minors
- It ensures that all minors have an adult to represent them in all matters affecting them, including consenting to treatment.
However, MHCA falls short of the WHO Checklist on the following accounts:
- Definition of mental illness does not explicitly mention the act's stand on the spectrum of neurodevelopmental disorders
- Minimal conditions to be maintained in mental health facilities for a safe, therapeutic, and hygienic environment are not specified
- Levels of professional skills required to determine a mental disorder are not specified
- Categories of professionals who may assess a person to determine the existence of a mental disorder do not find a mention
- The need to consider the opinions of minors on all issues affecting them (including consent to treatment), depending on their age and maturity, has been neglected completely.
| A Few More Considerations|| |
In the above text, we have at several places indicated the shortfalls in the MHCA. We want to raise a few more considerations here.
Information and permissions from the MHRB
The admission of a minor to an inpatient facility requires two professionals to independently opine on the need for admission. This is likely to be practically challenging, especially in small centers across India where there is a dearth of trained MHPs. This may also lead to an unwarranted delay in assistance to the distressed young person. The new act mandates prior permission of the MHRB for using ECT in minors. While this is a welcome move to regulate and monitor the use of ECT, there is a flip side in that delays in approvals may impede treatment of serious conditions such as suicidal risk and catatonia. The act does not give any discretionary powers to the mental health practitioners in this regard.
Care of children of parents with mental illness
MHCA has come up with a novel provision for infants and toddlers to not be separated from their mothers unless there is any risk to the child. Keeping such a young child along with the mother in a hospital setting is challenging, and especially so in psychiatric inpatient set-ups. Other disturbed patients could pose a risk to the child. In this regard, MHCA does not provide any recommendations for mother-baby units in psychiatric inpatient facilities. Mother-baby units have been started in India  and have addressed risks, infant health, breastfeeding disruption, mother-infant bonding, ongoing domestic violence, among other challenges that come up in caring, especially for postpartum mothers. Older children and adolescents may also have mental health needs when either parent has a mental illness. Depending on their developmental level and health, they may need specific psychological aid. Unfortunately, MHCA has not touched this aspect.
| Conclusion|| |
This article presents child and adolescent related provisions in MHCA 2017 and discusses the strengths and limitations of its provisions, in comparison with the older MHA 1987 and mental health legislation in other parts of the world. MHCA is more cognizant of the special needs of young people than its predecessors. However, it is limited in its scope of consideration about the rights of the child/adolescent to be an active participant in his/her mental health care. The elaboration on provisions for admissions and treatments are likely to increase regulatory control. We will learn about the clinical and practical implications and utility of these provisions only once the act is fully implemented.
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Conflicts of interest
There are no conflicts of interest.
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Dr. John Vijay Sagar Kommu
Department of Child and Adolescent Psychiatry, National Institute of Mental Health and Neurosciences (NIMHANS), Bengaluru, Karnataka
Source of Support: None, Conflict of Interest: None