Concordance of the Indian Mental Healthcare Act 2017 with the World Health Organization’s Checklist on Mental Health Legislation

Abstract

BackgroundIndia is revising its mental health legislation with the Indian Mental Healthcare Act 2017 (IMHA). When implemented, this legislation will apply to over 1.25 billion people. In 2005, the World Health Organization (WHO) published a Resource Book (WHO-RB) on mental health, human rights and legislation, including a checklist of 175 specific items to be addressed in mental health legislation or policy in individual countries. Even following the publication of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2006), the WHO-RB remains the most comprehensive checklist for mental health legislation available, rooted in UN and WHO documents and providing the most systematic, detailed framework for human rights analysis of mental health legislation. We sought to determine the extent to which the IMHA will bring Indian legislation in line with the WHO-RB.MethodsThe IMHA and other relevant pieces of Indian legislation are compared to each of the items in the WHO-RB. We classify each item in a binary manner, as either concordant or not, and provide more nuanced detail in the text.ResultsThe IMHA addresses 96/175 (55.4%) of the WHO-RB standards examined. When other relevant Indian legislation is taken into account, 118/175 (68.0%) of the standards are addressed in Indian law. Important areas of low concordance include the rights of families and carers, competence and guardianship, non-protesting patients and involuntary community treatment. The important legal constructs of advance directives, supported decision-making and nominated representatives are articulated in the Indian legislation and explored in this paper.ConclusionsIn theory, the IMHA is a highly progressive piece of legislation, especially when compared to legislation in other jurisdictions subject to similar analysis. Along with the Indian Rights of Persons with Disabilities Act 2016, it will bring Indian law closely in line with the WHO-RB. Vague, opaque language is however, used in certain contentious areas; this may represent arrangement-focused rather than realisation-focused legislation, and lead to inadvertent limitation of certain rights. Finally, the WHO-RB checklist is an extremely useful tool for this kind of analysis; we recommend it is updated to reflect the CRPD and other relevant developments.

A structured review of psychiatric rehabilitation for individuals living with severe mental illness within three regions of the Asia‐Pacific: Implications for practice and policy

“…In theory, the IMHA is a highly progressive piece of legislation. Along with the Indian Rights of Persons with Disabilities Act 2016, Duffy and Kelly () believe it will bring Indian law closely in line with the UNCRPD. But they do worry that vague and opaque language used in certain contentious areas may represent arrangement‐focused, rather than realization‐focused legislation, and lead to inadvertent limitation of the Act in addressing human rights.…”

“…The pair argue that good legislation that is poorly implemented may be more damaging to consumers than poor legislation that is implemented well. Put simply, “practice trumps theory every time” (Duffy & Kelly, ).…”

“…Put simply, "practice trumps theory every time" (Duffy & Kelly, 2017). Likewise, most rehabilitation and recovery services in Australia are separate from mental health treatment .…”

How right is right-based mental health law?

“…[456] The Mental Healthcare Act 2017 (MHCA 2017)[7] has emphasized on rights of PMI in keeping with the UNCRPD, compared to the previous Mental Health Act 1987. [8] MHCA 2017 fulfills an important requirement of the UNCRPD, by guaranteeing to all persons the right to access to mental healthcare, including a range of services for persons with mental illness such as shelter homes, supported accommodation, community-based rehabilitation; the right to community living; the right to live with dignity; protection against cruel, degrading, and inhuman treatment; the right to equality and nondiscrimination; the right to information, confidentiality, and access to medical records; the right to personal communication and legal aid; and the right to make complaints about deficiencies in provision of services, in addition to other similar legal remedies.…”

Letter to the Editor

“…Duffy suggests looking to the new Indian MHA as a 'role model' for the revision of Irish mental health law. However a recent analysis of the Indian MHA in a paper by Duffy and Kelly (2017) noted a number of weaknesses. Firstly, there is the absence of time-bound reviews protected in legislation for involuntary admissions or coercive practices such as seclusion that already exist in the Irish MHA, for example.…”