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   Introduction
   Methodology
   Results
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 Table of Contents    
REVIEW ARTICLE  
Year : 2019  |  Volume : 61  |  Issue : 10  |  Page : 827-831
How to make rules and regulations for the states in accordance with the Mental Healthcare Act 2017


Department of Psychiatry, Bangalore Medical College and Research Institute, Bengaluru, Karnataka, India

Click here for correspondence address and email

Date of Web Publication8-Apr-2019
 

   Abstract 


Mental Healthcare Act (MHCA) 2017 was gazetted on April 7, 2017. It repeals the Mental Health Act, 1987, and it can be implemented only after the state rules are formed. The central government has already published three sets of rules. This article was written with an objective to review how to make rules and regulations for the state as per MHCA, 2017. All sections of MHCA 2017 and the mental health rules previously made by different states according to the Mental Health Act 1987 were reviewed. Google and PubMed searches were done to review the implementation of their respective mental health acts by different countries and states in the past. Go through Central/State Mental Health Rules, 2018, framed by the central government. Try to adapt it for the state. A meeting on MHCA 2017 should be conducted, including all stakeholders who will give their suggestions about changes to be made. Frame an initial draft and discuss it with the stakeholders and finalize the draft. Discuss the draft in state mental health authority meetings and submit the draft to the government. The Department of Legislation and Parliamentary Affairs can be consulted. The draft should be sent to the central government's Ministry of Health and Family Welfare for approval. According to MHCA 2017, state rules can be formed in relation to the aspects mentioned under Sections 121 and 123. The state government should make notification of the rules and then implement them.

Keywords: Mental Healthcare Act 2017, regulations, rules

How to cite this article:
Hongally C, Sneha V, Archana G. How to make rules and regulations for the states in accordance with the Mental Healthcare Act 2017. Indian J Psychiatry 2019;61, Suppl S4:827-31

How to cite this URL:
Hongally C, Sneha V, Archana G. How to make rules and regulations for the states in accordance with the Mental Healthcare Act 2017. Indian J Psychiatry [serial online] 2019 [cited 2019 Oct 15];61, Suppl S4:827-31. Available from: http://www.indianjpsychiatry.org/text.asp?2019/61/10/827/255574





   Introduction Top


The practice of psychiatry is influenced by the moral, ethical, legal, and professional duties of the psychiatrists to provide care to their patients; the right of self-determination of the patients to receive or reject care; the ethical codes and practice of professional organizations; and the decisions and directions of courts, regulatory authorities, and legislature.[1]

MHCA 2017, was gazetted on April 7, 2017, and came into force on May 29, 2018, with the objectives of providing mental health care and services for persons with mental illness and to protect, promote, and fulfill the rights of such persons during delivery of services.[2] There have been controversies surrounding this act. Kumar reported that the new act is a deliberate attempt by the state to shirk its responsibilities and shift the burden to families and that it is likely to result in numerous unintended, and mostly negative, consequences. Breaching its own stated principles of equality, the act ends up discriminating against the mentally ill.[3] However, the act has been implemented and has to be mandatorily followed. The act states the role of the central and state governments in framing rules and regulations. The Centre has already made Central Mental Health Rules which had come into force on May 29, 2018. They are named Mental Healthcare (Central Mental Health Authority and Mental Health Review Boards) Rules, 2018, Mental Healthcare (State Mental Health Authority) Rules, 2018, and Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018.[4],[5],[6]

Implementing a mental health legislation is feasible only if multiple stakeholders have participated in the process of publicizing, drafting, and critiquing the law so as to provide “a sense of ownership” for what is eventually enacted. Nevertheless, in many countries in the South-East Asian region, laws are not drafted through the traditional process of building democratic consensus among the public; instead, laws are drafted and approved only within the ministry of health and in cooperation with other government ministries. While government ministries may have the best interests of the public in mind, it is possible that government officials may not identify or address pressing problems that can only be revealed through consultation with a wide group of stakeholders. Furthermore, health professionals, consumers, and other interest groups may resist the new regulations because they will not have participated in their formulation. On the other hand, drafting regulations through a government ministry offers the advantage of ensuring expediency, and the legislation can be closely tied to a ministry's mental health policy. It is unlikely that these benefits outweigh the benefits of the alternative, namely fostering democratic discourse, dialog, and the inclusion of multiple stakeholders.[7]

In this background, this article will be helpful to the states in forming state rules.

Objectives

The objective of this study was to review how to make rules and regulations for the states as per MHCA, 2017.


   Methodology Top


All sections of MHCA 2017 were reviewed. We particularly reviewed its Sections 121, 122, and 123. We also reviewed mental health rules previously made by different states in accordance with Mental Health Act 1987. Google and PubMed searches were done to review the implementation of their mental health acts by different countries in the past. We also went through statistics, especially the Mental Health Survey conducted by the National Institute of Mental Health and Neurosciences.


   Results Top


According to Section 121 of MHCA 2017, the state government may, with the previous approval of the central government, by notification, make rules for carrying out the provisions of this act, provided that the first rules shall be made by the central government, by notification. In particular, and without prejudice to the generality of the foregoing power, rules made under Sub-section (1) may provide for all or any of the following matters, namely:

  1. Qualifications relating to the clinical psychologist – The number of qualified psychologists maybe less in number due to the lesser number of institutions offering the required course. In order to cater to the need, the government needs to discuss and decide to relax the criteria of minimum qualifications for a clinical psychologist
  2. Qualifications relating to the psychiatric social worker – Government needs to discuss and relax the criteria of qualifications in view of the lesser number of qualified psychiatric social workers available in the state
  3. The manner of the nomination of members of the central authority – Refer to Chapter 2 of Central Mental Health Rules, 2018
  4. The salaries and allowances payable to, and the other terms and conditions of service of, the chairperson and other members of the central authority should be decided after going through the State Government pay scales, Minimum Wages Act, Labor Act, etc.
  5. The procedure for registration (including the fees to be levied for such registration) of the mental health establishments – Refer to Section 12 of Chapter 3 of Central Mental Health Rules, 2018
  6. The manner of the nomination of members of the state authority – An invitation for applications should be done on the state page of one local and one English newspaper, Health and Family Welfare website, and Mental Health Authority website to get representatives of all districts in the state. Sufficient time should be given for the applications. Refer to Chapter 2 of the Central Mental Health Rules, 2018. Make changes appropriate to the state government depending on professional workforce present and relaxing qualification criteria when needed
  7. The salaries and allowances payable to, and the other terms and conditions of service of, the chairperson and other members of the state authority should be decided after going through the State Government pay scales, Minimum Wages Act, Labor Act
  8. The procedure for registration (including the fees to be levied for such registration) of the mental health establishments – Refer to Chapter 3 of Central Mental Health Rules, 2018
  9. The form of accounts and other relevant records and annual statement of accounts – Refer to Chapter 6 of Central Mental Health Rules, 2018
  10. The form in, and the time within which, an annual report shall be prepared under section 60 – Refer to Chapter 6 of Central Mental Health Rules, 2018
  11. The form of accounts and other relevant records and annual statement of accounts – Refer to Chapter 6 of Central Mental Health Rules, 2018
  12. The form in, and the time within which, an annual report shall be prepared under section 64 – Refer to Chapter 6 of Central Mental Health Rules, 2018
  13. The manner of constitution of the board by the state authority for a district or groups of districts in a state – based on finances and infrastructures available. If less finance is available, the board can work from a medical college of district health officer's office. If there is lesser number of registered hospitals, there can be one board for around three districts. If a greater number of registered hospitals are present in a district, then three boards per district need to be there
  14. Other disqualifications of the chairperson or members of the board – when the members die or become mentally ill or resign. When a case is booked against the member, he/she will be suspended, and if proved guilty, he/she will be disqualified
  15. Any other matter which is required to be, or may be, specified by rules or in respect for which provision is to be made by rules.


In particular, and without prejudice to the generality of the foregoing power, rules made may provide for all or any of the following matters:

  1. The manner of proof of mental health care and treatment
  2. Provision of half-way homes, sheltered accommodation, and supported accommodation
  3. Hospitals and community-based rehabilitation establishment and services
  4. Basic medical records of which access is to be given to a person with mental illness
  5. Custodial institutions
  6. The form of application to be submitted by the mental health establishment with the undertaking that the mental health establishment fulfills the minimum standards, if any, specified by the authority
  7. The form of the certificate of registration
  8. The form of application, the details, and the fees to be accompanied with it
  9. The form of the certificate of provisional registration containing particulars and information
  10. The fees for renewal of registration
  11. The person or persons (including representatives of the local community) to conduct an audit of the registered mental health establishments and fees to be charged by the authority for conducting such audit
  12. The person or persons to conduct an inspection or inquiry of the mental health establishments
  13. The manner to enter and search of a mental health establishment operating without registration
  14. The fees for issuing a duplicate certificate
  15. The form and manner in which the authority shall maintain in digital format a register of mental health establishments and the particulars of the certificate of registration so granted in a separate register to be maintained
  16. Constitution of the boards
  17. The honorarium and other allowances payable to, and the other terms and conditions of service of, the chairperson and members of the board
  18. Methods, modalities, and procedures for transfer of prisoners
  19. The standard and procedure to which the central or state health authority shall confirm
  20. The form for furnishing periodical information
  21. Any other matter which is required to be, or may be, specified by rules or in respect for which provision is to be made by rules.


According to Section 123 of MHCA 2017, state authority may, by notification, make regulations, consistent with the provision of this act and the rules made thereunder, to carry out the provisions of this act. Regulations may be provided for all or any of the following matters:

  1. The minimum quality standards of mental health services
  2. The salaries and allowances payable to and the other terms and conditions of service (including the qualifications, experience, and manner of appointment) of the chief executive officer and other officers and employees of the state authority
  3. The manner in which the state authority shall publish the list of registered mental health professionals
  4. The time and places of meetings of the state authority and rules of procedure with regard to the transaction of business at its meetings (including quorum at such meetings)
  5. The form of application to be made by the mental health establishment and the fees to be accompanied
  6. The manner of filing objections
  7. Any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations.


Regarding the above-mentioned matters, regulations have already been formed, and it needs to be implemented.[4],[5],[6]

The WHO recommends involving multiple groups in the drafting and consultation process, including government agencies (ministries of health, finance, law, education, employment, social welfare, justice, police, and correctional services); academic institutions and professional bodies representing health-care professionals, user group representatives and representatives of families, nongovernmental organizations (NGOs), profit and not-for-profit agencies providing care services, politicians, legislators, and opinion makers; law enforcement agencies; judicial authorities; religious authorities; and organizations representing minorities and vulnerable groups and other relevant community groups, such as civil rights groups, employee unions, employer groups, and welfare associations.[7]

Rules should be formed based on the state resources, state statistics, and workforce available. Consistent with the previous studies from India, the findings from the National Mental Health Survey reported an overall treatment gap of 83% for any mental health problem. The treatment gap reported for common mental disorders (85.0%) was higher when compared to those for severe mental disorders (73.6%). Among the common mental disorders, major depressive disorders and anxiety disorder had a treatment gap of 85.2% and 84.0%, respectively. Among the severe disorders, the treatment gap for nonaffective psychoses (75.5%) was a little higher when compared to that of bipolar affective disorder (70.4%). Various barriers are attributed to the wide treatment gap. The key demand-side barriers that contribute to the treatment gap include low perceived need due to limited awareness, sociocultural beliefs, values, and stigma, whereas the supply-side barriers include insufficient, inequitably distributed, and inefficiently used resources.[8] Studies from India have reported that primary health-care professionals are often inadequately trained and reluctant or unable to detect, diagnose, or manage common mental disorders.[9],[10]

The state can make or modify the rules in relation to those aspects mentioned in Sections 121 and 123 of MHCA 2017. The rules framed should be in the legal language. Moreover, the rules formed needs to be approved by the central authority before they are implemented.

Review of how state mental health rules were formed according to the Mental Health Act, 1987

Previously, by invoking the provision under Sub-Section (2) of Section 94 of the Mental Health Act, 1987 (14 of 1987), the Government of India had framed the State Mental Health Rules, 1990 that was applicable to all states. Sub-Section (2) of the said section empowered the state government, with the previous approval of the central government, by notification, to make rules for carrying out the provision of the act. The Karnataka State Government had decided to frame separate rules to suit the needs of the state. Difficulties were faced mainly with respect to the minimum facilities required as specified in Rule 22 of State Mental Health Rules 1990. This was discussed at various levels such as Karnataka State Mental Health Authority (KSMHA) and Indian Psychiatric Society. It was felt that there is an urgent need to amend the rules. A background meeting was convened on August 3, 2002 under the chairmanship of the Commissioner, Health and Family Welfare Services, and included prominent NGOs, Senior Officials from Government, Senior Faculty of Department of Psychiatry, National Institute of Mental Health and Neurosciences, and user groups. A group was constituted to prepare the draft regarding different categories of facilities and minimum facilities. After the meetings, the group formed and circulated the first draft for discussion aiming towards the development of final guidelines. The draft was sent to all the members who attended the meeting, for review, revisions, and suggestions. The suggestions from the members were incorporated into the draft and again circulated. Final guidelines were discussed in a meeting organized on October 29, 2002. The final draft suitably incorporated the opinions expressed and suggestions made by all members. The draft was circulated to the members of the KSMHA and was discussed in three meetings. It was re-drafted in legal language and forwarded to Ministry of Health and Family Welfare in 2005. Meeting of the sub-committee was conducted in New Delhi in October2007, and some changes were suggested which were then incorporated. Some more modifications were made by KSMHA.

Steps in framing state mental health rules for a state are provided in [Box 1].



Every rule made by the state government and every regulation made by the state authority under this act shall be laid, maybe at the earliest possible, before each House of the State Legislature where it consists of two houses, or where such legislature consists of one house, before that house.


   Conclusion Top


According to MHCA 2017, state rules can be formed in relation to the aspects as mentioned under Sections 121 and 123. Rules framed needs to be discussed with all stakeholders, the State Mental Health Authority, and approval need to be taken from the central government. The state government should make notification of the rules. This version needs to be laid before State Assembly and finalization as per Section 124 of MHCA 2017.

This rule will be ready for implementation by the state.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
   References Top

1.
Trivedi JK. The mental health legislation: An ongoing debate. Indian J Psychiatry 2002;44:95-6.  Back to cited text no. 1
[PUBMED]  [Full text]  
2.
Mental Healthcare Act; 2017. Available from: https://www.prsindia.org. [Last accessed on 2019 Mar 10].  Back to cited text no. 2
    
3.
Kumar MT. Mental Healthcare Act 2017: Liberal in principles, let down in provisions. Indian J Psychol Med 2018;40:101-7.  Back to cited text no. 3
[PUBMED]  [Full text]  
4.
Central Mental Health Rules. Ministry of Health and Family Welfare. New Delhi: Central Mental Health Rules; 2018.  Back to cited text no. 4
    
5.
Mental Healthcare (State Mental Health Authority) Rules. The Government of India. New Delhi: Ministry of Health and Family Welfare (Department of Health and Family Welfare); 2018.  Back to cited text no. 5
    
6.
Mental Healthcare (Rights of Persons with Mental Illness) Rules. Ministry of Health and Family Welfare (Department of Health and Family Welfare). New Delhi: Mental Healthcare (Rights of Persons with Mental Illness) Rules; 2018.  Back to cited text no. 6
    
7.
Gururaj G, Varghese M, Benegal V, Rao GN, Pathak K, Singh LK, et al. National Mental Health Survey of India, 2015-16: Prevalence, Patterns and Outcomes. NIMHANS Publication No. 129. Bengaluru: National Institute of Mental Health and Neuro Sciences; 2016.  Back to cited text no. 7
    
8.
Gururaj G, Varghese M, Benegal V, Rao GN, Pathak K, Singh LK, et al. National Mental Health Survey of India, 2015-16: Prevalence, Patterns, and Outcomes. Bengaluru: National Institute of Mental Health and Neurosciences; 2016.  Back to cited text no. 8
    
9.
Iyer RS, Rekha M, Kumar TS, Sarma PS, Radhakrishnan K. Primary care doctors' management behavior with respect to epilepsy in Kerala, Southern India. Epilepsy Behav 2011;21:137-42.  Back to cited text no. 9
    
10.
Cowan J, Raja S, Naik A, Armstrong G. Knowledge and attitudes of doctors regarding the provision of mental health care in Doddaballapur Taluk, Bangalore rural district, Karnataka. Int J Ment Health Syst 2012;6:21.  Back to cited text no. 10
    

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Correspondence Address:
Dr. Chandrashekar Hongally
Department of Psychiatry, Bangalore Medical College and Research Institute, Bengaluru - 560 002, Karnataka
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/psychiatry.IndianJPsychiatry_156_19

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