mental health care act 2017 and criminals due to mental illness

CHAPTER V RIGHTS OF PERSONS WITH MENTAL ILLNESS 

18. Right to access mental healthcare. 

19. Right to community living. 

20. Right to protection from cruel, inhuman and degrading treatment. 

21. Right to equality and non-discrimination. 

22. Right to information.

 23. Right to confidentiality. 

24. Restriction on release of information in respect of mental illness. 

25. Right to access medical records. 

26. Right to personal contacts and communication. 

27. Right to legal aid. 

28. Right to make complaints about deficiencies in provision of services.

 CHAPTER VI DUTIES OF APPROPRIATE GOVERNMENT 

29. Promotion of mental health and preventive programmes.

CHAPTER XIII RESPONSIBILITIES OF OTHER AGENCIES 

100. Duties of police officers in respect of persons with mental illness. 

101. Report to Magistrate of person with mental illness in private residence who is ill-treated or neglected. 

102. Conveying or admitting person with mental illness to mental health establishment by Magistrate. 

103. Prisoners with mental illness. 

104. Persons in custodial institutions. 

105. Question of mental illness in judicial process

115. Presumption of severe stress in case of attempt to commit suicide.

119. Protection of action taken in good faith.

2. Definitions.—

(1) In this Act, unless the context otherwise requires,— 

(a) “advance directive” means an advance directive made by a person under section 5; 

(b) “appropriate Government” means,— 

(i) in relation to a mental health establishment established, owned or controlled by the Central Government or the Administrator of a Union territory having no legislature, the Central Government; 

(ii) in relation to a mental health establishment, other than an establishment referred to in sub-clause (i), established, owned or controlled within the territory of— 

(A) a State, the State Government; 

(B) a Union territory having legislature, the Government of that Union territory; 

(c) “Authority” means the Central Mental Health Authority or the State Mental Health Authority, as the case may be; 

(d) “Board” means the Mental Health Review Board constituted by the State Authority under sub-section (1) of section 80 in such manner as may be prescribed; 

(e) “care-giver” means a person who resides with a person with mental illness and is responsible for providing care to that person and includes a relative or any other person who performs this function, either free or with remuneration; 

(f) “Central Authority” means the Central Mental Health Authority constituted under section 

(g) “clinical psychologist” means a person— (i) having a recognised qualification in Clinical Psychology from an institution approved and recognised, by the Rehabilitation Council of India, constituted under section 3 of the Rehabilitation Council of India Act, 1992 (34 of 1992); or (ii) having a Post-Graduate degree in Psychology or Clinical Psychology or Applied Psychology and a Master of Philosophy in Clinical Psychology or Medical and Social Psychology obtained after completion of a full time course of two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) and approved and recognised by the Rehabilitation Council of India Act, 1992 (34 of 1992) or such recognised qualifications as may be prescribed; 

(h) “family” means a group of persons related by blood, adoption or marriage; 

(i) “informed consent” means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person; 

(j) “least restrictive alternative” or “least restrictive environment” or “less restrictive option” means offering an option for treatment or a setting for treatment which— (i) meets the person's treatment needs; and (ii) imposes the least restriction on the person's rights; 

(k) “local authority” means a Municipal Corporation or Municipal Council, or Zilla Parishad, or Nagar Panchayat, or Panchayat, by whatever name called, and includes such other authority or body having administrative control over the mental health establishment or empowered under any law for the time being in force, to function as a local authority in any city or town or village; 

(l) “Magistrate” means— (i) in relation to a metropolitan area within the meaning of clause (k) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a Metropolitan Magistrate; (ii) in relation to any other area, the Chief Judicial Magistrate, Sub-divisional Judicial Magistrate or such other Judicial Magistrate of the first class as the State Government may, by notification, empower to perform the functions of a Magistrate under this Act; 

(m) “medical officer in charge” in relation to any mental health establishment means the psychiatrist or medical practitioner who, for the time being, is in charge of that mental health establishment; 

(n) “medical practitioner” means a person who possesses a recognised medical qualification— (i) as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in the State Medical Register, as defined in clause (k) of that section; or (ii) as defined in clause (h) of sub-section (1) of section 2 of the Indian Medicine Central Council Act, 1970 (48 of 1970), and whose name has been entered in a State Register of Indian Medicine, as defined in clause (j) of sub-section (1) of that section; or (iii) as defined in clause (g) of sub-section (1) of section 2 of the Homoeopathy Central Council Act, 1973 (59 of 1973), and whose name has been entered in a State Register of Homoeopathy, as defined in clause (i) of sub-section (1) of that section; 

(o) “Mental healthcare” includes analysis and diagnosis of a person's mental condition and treatment as well as care and rehabilitation of such person for his mental illness or suspected mental illness; 

(p) “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, co-operative society, organisation 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, co-operative society, organisation 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; 

(q) “mental health nurse” means a person with a diploma or degree in general nursing or diploma or degree in psychiatric nursing recognised by the Nursing Council of India established under the Nursing Council of India Act, 1947 (38 of 1947) and registered as such with the relevant nursing council in the State; 

(r) “mental health professional” means— (i) a psychiatrist as defined in clause (x); or (ii) a professional registered with the concerned State Authority under section 55; or (iii) a professional having a post-graduate degree (Ayurveda) in Mano Vigyan Avum Manas Roga or a post-graduate degree (Homoeopathy) in Psychiatry or a post-graduate degree (Unani) in Moalijat (Nafasiyatt) or a post-graduate degree (Siddha) in Sirappu Maruthuvam; 

(s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence; (t) “minor” means a person who has not completed the age of eighteen years; (u) “notification” means a notification published in the Official Gazette and the expression “notify” shall be construed accordingly; (v) “prescribed” means prescribed by rules made under this Act; (w) “prisoner with mental illness” means a person with mental illness who is an under-trial or convicted of an offence and detained in a jail or prison; (x) “psychiatric social worker” means a person having a post-graduate degree in Social Work and a Master of Philosophy in Psychiatric Social Work obtained after completion of a full time course of two years which includes supervised clinical training from any University recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956) or such recognised qualifications, as may be prescribed; 

(y) “psychiatrist” means a medical practitioner possessing a post-graduate degree or diploma in psychiatry awarded by an university recognised by the University Grants Commission established under the University Grants Commission Act, 1956 (3 of 1956), or awarded or recognised by the National Board of Examinations and included in the First Schedule to the Indian Medical Council Act, 1956 (102 of 1956), or recognised by the Medical Council of India, constituted under the Indian Medical Council Act, 1956, and includes, in relation to any State, any medical officer who having regard to his knowledge and experience in psychiatry, has been declared by the Government of that State to be a psychiatrist for the purposes of this Act; 

(z) “regulations” means regulations made under this Act; 

(za) “relative” means any person related to the person with mental illness by blood, marriage or adoption; 

(zb) “State Authority” means the State Mental Health Authority established under section 45

CHAPTER II MENTAL ILLNESS AND CAPACITY TO MAKE MENTAL HEALTHCARE AND TREATMENT DECISIONS 3. Determination of mental illness.—(1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government. (2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force. (3) Mental illness of a person shall not be determined on the basis of,— (a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person; (b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community. (4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person's mental illness. (5) The determination of a person's mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court. 

4. Capacity to make mental healthcare and treatment decisions.—

(1) Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental healthcare or treatment if such person has ability to— 

(a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or 

(b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or 

(c) communicate the decision under sub-clause (a) by means of speech, expression, gesture or any other means. 

(2) The information referred to in sub-section (1) shall be given to a person using simple language, which such person understands or in sign language or visual aids or any other means to enable him to understand the information. 

(3) Where a person makes a decision regarding his mental healthcare or treatment which is perceived by others as inappropriate or wrong, that by itself, shall not mean that the person does not have the capacity to make mental healthcare or treatment decision, so long as the person has the capacity to make mental healthcare or treatment decision under sub-section (1).

CHAPTER III ADVANCE DIRECTIVE 

5. Advance directive.—(1) Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely:— (a) the way the person wishes to be cared for and treated for a mental illness; (b) the way the person wishes not to be cared for and treated for a mental illness;

(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under section 14. 

(2) An advance directive under sub-section (1) may be made by a person irrespective of his past mental illness or treatment for the same. 

(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall remain effective until such person regains capacity to make mental healthcare or treatment decisions. 

(4) Any decision made by a person while he has the capacity to make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such person. 

(5) Any advance directive made contrary to any law for the time being in force shall be ab initio void. 

6. Manner of making advance directive.—An advance directive shall be made in the manner as may be specified by the regulations made by the Central Authority.

 The Mental Healthcare Act, 2017, is a law in India that provides for mental healthcare and services while protecting the rights of persons with mental illness. Key provisions include the right to make decisions about treatment, access to medical records, and the establishment of regulatory bodies like the Mental Health Review Boards. It also mandates that a person attempting suicide is presumed to be under severe stress and should not be punished, while outlining specific guidelines for the police and judiciary in dealing with individuals with mental illness.  

Key provisions of the Act

Right to care and treatment: 
Guarantees the right of persons with mental illness to receive mental healthcare and services in accordance with their rights. 
Decision-making and autonomy: 
Every person is presumed to have the capacity to make decisions regarding their mental healthcare unless proven otherwise. A person can also make a "Advance Directive" to state how they want to be treated in case they lose the capacity to make decisions in the future. 
Access to information: 
Persons with mental illness are entitled to receive documented information about their diagnosis, assessment, and treatment. They can request a copy of their basic medical records. 
Regulatory bodies: 
Establishes Central and State Mental Health Authorities to set minimum standards and regulate mental health establishments. It also creates Mental Health Review Boards to protect rights and address complaints. 
Specific restrictions: 
Prohibits the use of Electroconvulsive Therapy (ECT) for minors and allows it for adults only in emergency cases and with muscle relaxants and anesthesia. 
Reduced stigma: 
Aims to reduce the stigma associated with mental illness. 
Police and judicial duties: 
Delineates the duties of police and magistrates when dealing with individuals with mental illness. 
Suicide attempt provision: 
Assumes a person who attempts suicide is under severe stress and should not be punished. 

Important considerations for implementation

The Act requires a significant amount of resources to be fully implemented. 
Some psychiatrists have voiced ideological concerns, suggesting the Act's provisions may not be a perfect fit for the collective values of Indian society, according to this article from PMC. 


The duties of police and magistrates when dealing with individuals with mental illness are delineated in Chapter XIII (Sections 100-106) of the Mental Healthcare Act, 2017 (MHCA 2017), in India. These sections outline specific responsibilities aimed at ensuring the care and protection of such individuals while safeguarding their rights. 
Police Duties (Section 100, MHCA 2017) 
Police officers have specific duties when encountering persons with mental illness (PMI). They may take into protection those wandering and seemingly incapable of self-care, and must take in those believed to be dangerous due to mental illness. The person or their representative must be informed of the reasons for this action. The person must be taken for a medical assessment at a public mental health establishment within 24 hours and cannot be held in a police lock-up or prison. For homeless individuals, police must file a missing person report and try to locate their family. Police must also report suspected ill-treatment or neglect of a person with mental illness in a private setting to the local Magistrate. 
Magistrate's Duties (Sections 101, 102, 105, MHCA 2017)
Magistrates supervise and can issue orders regarding the care and admission of individuals with mental illness. Upon receiving reports of ill-treatment or neglect, a Magistrate can order the responsible party to provide proper care. If this order is not followed, or if there is no responsible person, the Magistrate can order the person with mental illness to be taken to a public mental health establishment. If mental illness is questioned during a judicial process, the court must refer the individual to the Mental Health Review Board for an opinion. Magistrates must also inform individuals with mental illness in the judicial process of their right to free legal aid. 
These provisions prioritize care, treatment, and rehabilitation over custody or criminalization. 


Section 115 of the Indian Mental Healthcare Act (MHCA), 2017, effectively decriminalizes attempted suicide by stating that any person who attempts to commit suicide shall be presumed to be under severe stress and shall not be tried or punished under the Indian Penal Code (IPC). 
Key Provisions of Section 115
• Presumption of Severe Stress: The Act introduces a statutory presumption that an individual attempting suicide is experiencing severe mental stress, rather than acting with criminal intent. This shifts the perspective from a criminal act to a mental health issue.
• Exemption from Prosecution: The person is explicitly excluded from prosecution or punishment under Section 309 of the IPC (which previously criminalized attempted suicide), "unless proved otherwise". The legal burden of proof is on the prosecution to demonstrate the absence of severe stress, which courts have noted is difficult to do.
• Duty of Care and Rehabilitation: Section 115(2) mandates that the appropriate government has a duty to provide care, treatment, and rehabilitation services to a person who has attempted suicide to reduce the risk of recurrence.
• Overriding Effect: Section 120 of the MHCA reinforces that its provisions have an overriding effect on any other inconsistent laws, including the IPC, in matters related to mental healthcare. 
Practical Implications
• Focus on Healthcare: The law aims to ensure that individuals in distress receive compassionate care and medical help (including mandatory psychiatric referral in hospital settings) instead of facing the trauma of legal proceedings and imprisonment.
• Role of Medical Professionals and Police: Healthcare providers are required to follow specific procedures, including stabilizing the patient and ensuring a mandatory psychiatric assessment. Police involvement is generally limited to medicolegal formalities and investigating potential abetment of suicide (which remains a crime under Section 306 IPC).
• Stigma Reduction: The overall goal is to reduce the stigma associated with suicide attempts and mental illness, encouraging people to seek professional help without fear of legal repercussions. 
This provision marks a significant shift in India's legal approach, moving from a punitive to a public health and human rights-based model for addressing suicide attempts.