Mental health and mental illness have long been taboo subjects in India, with significant stigma attached to those who suffer from it. This stigma has led to mistreatment, abuse, and isolation of individuals with mental illness, especially in traditional parts of the country where they are often labelled as “possessed” or “lunatics.” Prior to the introduction of the Mental Healthcare Act, 2017 (MHA), there were no legally protected rights for persons with mental illness in India. The previous Mental Health Act of 1987 was outdated and did not provide for adequate protection or curative treatment for individuals with mental illness. Most of the mental hospitals in India were until very recently, designed for detention and safe custody without regard for curative treatment. The concept of confinement, including the use of chains and other extreme measures, was seen as a way to protect society from persons with mental illness rather than providing them with proper care. With India’s ratification of the United Nations Convention on the Rights of Persons with Disabilities in 2007, the process of overhauling the outdated Mental Health Act of 1987 began, leading to the introduction of the MHA.

Informed Consent

The MHA recognizes the need for community-based care and support and provides a framework to ensure the autonomy of persons with mental illness in their treatment decisions. It introduces the concepts of ‘informed consent’ and supported decision making, allowing individuals with mental illness to make their own decisions regarding their treatment and health, independently where they have the capacity to do so, or with minimal support from a nominated representative (NR) where the capacity to make such decisions is not 100% but can be supplemented with minimal support. Informed consent, as defined under the MHA, requires consent to be given for a specific intervention without any force, undue influence, fraud, threat, mistake, or misrepresentation. It must be obtained after disclosing adequate information, including risks, benefits, and alternatives, in a language and manner understood by the persons with mental illness.

Appointment & Role of NR

A NR can be appointed by a person suffering from mental illness themselves if they have the capacity to do so or by a medical officer or mental health professional. The NR must however, act in the best interest of the person, taking into consideration their current and past wishes, life history, values, and cultural background. The MHA also provides a hierarchy for decision making, with the NR taking priority over family members and others. If no NR is appointed, a relative, caregiver, or suitable person appointed by the concerned Mental Health Review Board (MHRB) may be deemed as the NR. Ordinarily, a NR can be appointed by the person with mental illness by recording the same in writing on a plain paper with signature or thumb impression or by way of providing for the same in an advance directives (AD). In case no NR is appointed, in order of precedence, a relative (i.e., any person related by blood, marriage, or adoption), caregiver, or suitable person appointed by the concerned Board may be deemed as the NR.

Advance Directives

To address cases where a person with mental illness is incapacitated to make informed decisions, the MHA also recognise the concept of advance directives (AD), where persons with mental illness can provide pre-written instructions about their treatment preferences in case they lose the capacity to make decisions. The AD must be in writing, signed by the patient, attested by two witnesses, and registered with the Mental Health Review Board (MHRB). The directions under AD apply during any interaction with mental health professionals, with precedence over decisions made by the NR, except in emergency situations. The Act enables persons with mental illness to alter or withdraw AD whenever they have the capacity to do so.

Conclusion

Despite the prescription of the above constructs in the MHA’s forward-looking framework prioritising autonomy and rights of the persons with mental illness, its implementation remains a challenge. MHA is still in its early stages of development and accordingly suffers many vacuums. The establishment of MHRBs by the states in India has been poor, making it impossible to register ADs and undermining their validity. Strict guidelines are needed for capacity assessment and review processes by MHRBs, along with a defined time-bound decision-making process. The MHA also does not account for some other stipulations, such as those concerning the management of day-to-day affairs, including financial affairs, of individuals with mental illness.

The mental healthcare regime in India shows promise in promoting patient autonomy, but sustained efforts and resource allocation are required for its proper implementation. The government should allocate adequate resources and funds for mental health care provisions. Collaboration among mental healthcare professionals, civil society organizations, and all stakeholders is essential. We are just at the beginning of our journey to truly acknowledge the rights of individuals with mental illness and this journey will require us to reorient our thinking at each step with a careful and critical assessment of its impact.