Mental health review board under the Mental Health Care Act (2017), India: A critique and learning from review boards of other nations

Abstract

The Mental Healthcare Act, 2017 (MHCA) of India is a landmark and welcome step towards centering persons with mental illness (PwMI) and recognizing their rights concerning their treatment and care decisions and ensuring the availability of mental healthcare services. As mentioned in its preamble, the Act is a step towards aligning India's laws or mental health (MH) policy with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India ratified in 2007. Amidst several positives, the implementation of the Act has been marred by certain practical issues which are partly attributed to the inherent conceptual limitations.

Countries across the globe, both High Income- and Low-and Middle-Income Countries, have enacted legislation to ensure that the rights of treatment and care of PwMI are respected, protected, and fulfilled. They have also provisioned quasi-judicial bodies (Mental Health Review Boards MHRBs/tribunals) for ensuring these rights. However, their structure and function vary.

This paper compares the constitution and functioning of review boards across different countries and intends to provide future directions for the effective implementation and functioning of the MHRB under India's MHCA.

This review found that effective implementation of the MHRB under MHCA is compromised by an ambitious, six-membered, constitution of the MHRB, lack of clarity about the realistic combination of the quorum to adjudicate decisions, inadequate human and financial resources, and an overstretched area of functioning.

Although MHRB has been envisaged as a quasi-judicial authority to ensure the rights of PwMI, it needs to be made more pragmatic. The size and composition of the MHRB currently envisaged is likely to be a barrier in the establishment of the MHRB as well as its functioning. A smaller composition (3–5 membered) involving one psychiatrist, one judicial/legal member, and at least one PwMI or member from civil society having lived experience of working with PwMI or caregiver, could be a more pragmatic approach. The passing of this law also necessitates increasing the overall health budget, especially the mental health budget with funds earmarked specifically for the implementation of the law, which necessarily includes setting up the MHRB. An evaluation of the implementation of the MHRB, including its determinants, would be a useful step in this direction.

This article first appeared in International Journal of Law and Psychiatry and can be accessed here.