Optional Grouping: Legal Rights

Persons with mental illness have certain rights((Mental Healthcare Act, 2017 )) so as to safeguard them from discrimination and harm. These rights are:

Right to make an Advance Directive

An advance directive is a legal document. In other words, it specifies healthcare decisions that should be taken for a person in the event they are not capable of making such decisions. Persons with mental illness can take the help of a service provider, NGO or lawyer to make this document.

Right to appoint a Nominated Representative 

A nominated representative is a person who is appointed by a person with mental illness to discharge certain duties. This includes provision of support to the person while making treatment decisions, helping such a person get admitted to a mental health establishment if required, etc.

Right to Access Mental Healthcare

A person with mental illness has the right to access mental health care from government-funded mental healthcare services, such as inpatient and outpatient services, half-way homes, sheltered accommodation etc. They can also get services to support the family of the person with mental illness.

Right to Community Living 

A person with mental illness has the right to community living. They can live with and be a part of society and not be forced to live in isolation, etc. For example, someone with mental illness need not live in an abandoned. They can live in a residential area and be a part of society.

Right to Live with Dignity

Every person with a mental illness has a right to live with dignity. In other words, protection from cruel, inhuman or degrading treatment in any mental health establishment.

Right to Equality and Non-discrimination

Every person with mental illness has a right to equality and non-discrimination. For example, persons with physical illness have the same rights as those with physical illnesses.

Right to Information

A person with mental illness and their  nominated representative have the right to ask for information. For instance, information about the person’s mental illness, treatment plan, any side effects, about the criteria for admission in a mental health establishment, about the law governing provision of care to people with mental illness, etc. 

Right to Confidentiality

A person with mental illness has the right to confidentiality. This includes information on their mental health, mental healthcare and physical healthcare. However, there are certain exceptions to this. 

Right to Legal aid

A person with mental illness has a right to free legal aid. Legal aid means providing free of cost legal services including Representation by a lawyer in legal proceedings, payment of all costs including process fees, expenses of witnesses etc.

Right to Complain

In case of deficiency of care treatment and related services in a mental health establishment, a person with mental illness or their nominated representative have the right to complain. 

Right to Communication

A person with a mental illness who is admitted to a mental health establishment has the right to communicate with their personal contacts. This includes the right to receive or refuse visitors, to send and receive electronic mail, etc. 

The law punishes mental health establishment or any other person who violate these rights. The punishment is  jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108,  the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.

An advance directive is a legal document that specifies the healthcare decisions that should be taken for a person in case they are not capable of making such decisions. It comes into force when someone no longer has the capacity to make healthcare-related decisions. Once the person regains the ability to make mental healthcare decisions, then the advance directive ceases to be operational.

The document has to include((Section 5(1),  the Mental Healthcare Act, 2017 )):

• Directions for treatment
• Name of nominated representative 

Only major persons  (those who have completed 18 years of age) can make this document. Please note that any decision taken by a person (when they have the ability to make such decisions) will override the advance directive((Section 5(4),  the Mental Healthcare Act, 2017 )). However, if a person requires emergency treatment((Section 9,  the Mental Healthcare Act, 2017. )) then the directions in the advance directive need not be followed. For example, the advance directive does not apply in suicide cases.

To make the document, you should approach an NGO which works in this field or a lawyer, who will be able to help you out.

The right to confidentiality of a person with mental illness about their mental health, mental healthcare and physical healthcare((Section 23(1),  the Mental Healthcare Act, 2017 )) means that the mental health professional who is providing care/treatment must keep all such health related information private, and not reveal it without the person’s consent .

This also includes the release of information to the media, such as the release of photographs or any other information without consent((Section 24(1),  the Mental Healthcare Act, 2017 )).

For instance, information is released by the relevant medical professional in the following cases((Section 23(2),  the Mental Healthcare Act, 2017 )):

• To the nominated representative to enable them to fulfil their duties
• To other health professionals to enable them to provide care and treatment
• If it is necessary to protect any person from harm or violence or threat to life
• On an order by an authority, such as the Mental Health Review Board, High Court, Supreme Court, etc.
• In the interests of public safety and security.

The right to confidentiality of the person with mental illness applies to all information stored in electronic or digital format.((Section 24(2),  the Mental Healthcare Act, 2017 )).

Every person with a mental illness has a right to((Section 19(1),  the Mental Healthcare Act, 2017 )) live with and be a part of the society or community. In other words, just because a person with mental illness has no family or is homeless does not mean that they will be institutionalized in a mental health establishment.

Sometimes the family may abandon the person with mental illness. In such situations, it is the duty of the government to provide appropriate support, such as:

• Legal aid
• Community-based establishments, such as half-way homes, group homes, etc.,
• Facilitate them living with their family/in the family home((Section 19(2)(3),  the Mental Healthcare Act, 2017 ))

For example, it is the duty of the government to find accommodation for beggars. The government cannot force them to stay in a mental health establishment.

Every person has the right to access mental health care from government-funded mental healthcare services. These services include((Section 18(4),  the Mental Healthcare Act, 2017 )):

• Acute mental healthcare services like outpatient and inpatient services
• Half-way homes, sheltered accommodation, supported accommodation
• Mental health services to support the family of a person with mental illness or home-based rehabilitation
• Hospital, community-based rehabilitation establishments and services
• Child mental health services and old age mental health services.

Cost of Mental Health Services 

The government must make the medicines, as mentioned on the Essential Drug List, free of charge for all persons with mental illness at mental health establishments run/funded by the government((Section 18(10),  the Mental Healthcare Act, 2017 )). Persons with mental illness who are destitute, homeless, or living below poverty line, are entitled to free mental healthcare services. They can approach mental health establishments run/funded by the government((Section 18(7),  the Mental Healthcare Act, 2017. ))

Every person with mental illness has a right to equality and non-discrimination including((Section 21(1),  the Mental Healthcare Act, 2017 )):

• No discrimination against a person with mental illness on any basis. This includes reasons such as gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability
• Emergency facilities and services  of good quality, and  of the same quality and availability as those provided to persons with physical illness
• Ambulance services  of the same manner, extent and quality as provided to persons with physical illness
• Good living conditions in health establishments , of the same manner, extent and quality as provided to persons with physical illness
• Any other health services provided to persons with physical illness, of the same manner, extent and quality as provided to persons with physical illness

The law punishes mental health establishment or any other person who violate these rights. The punishment is jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108,  the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.

Every person with a mental illness has a right to live with dignity.((Section 20(1), the Mental Healthcare Act, 2017 )). In other words, persons are protected from cruel, inhuman or degrading treatment in any mental health establishment.

This includes the following rights like((Section 20(1),  the Mental Healthcare Act, 2017 )):

• Living in a safe and hygienic environment
• Sanitary conditions and provisions for sanitation, space and articles of personal hygiene.  For instance, women should be provided with items required during menstruation.
• Facilities for leisure, recreation and education. This includes practising one’s own religion
• Privacy
• Proper clothing
• Not doing any forced work in a mental health establishment
• Receiving payment for whatever work  has been done
• Provision for preparing for living in the community
• Adequate and wholesome food
•  Preventing the compulsory shaving of head hair. In other words, the right to stop any cruel, inhuman or degrading treatment, and to live with dignity
• Wearing one’s own personal clothes, according to one’s wishes. In other words, not wearing the uniforms provided by the mental health establishment
• Protection from all forms of physical, verbal, emotional and sexual abuse.

The law punishes mental health establishment or any other person who violate these rights. The punishment is jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108,  the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.

Every person with mental illness has a right to free legal aid with respect to their rights((Section 27(1), the Mental Healthcare Act, 2017 )). Free legal aid means providing legal services, free of cost, to certain sections of the society, and it means that one has a right to ask for any of the legal services given below:

• Representation by a lawyer in legal proceedings.
• Payment of all costs including process fees, expenses of witnesses, etc.
• Preparation of memo of appeal, paper book including printing and translation of documents in legal proceedings.
• Drafting of legal documents, a special leave petition, etc.
• Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceedings.

However, to get legal aid, you have to be eligible by fulfilling certain criteria. It is the duty of the following to inform the person with mental illness that they are entitled to free legal aid  and to provide the details of the availability of services((Section 27(2), the Mental Healthcare Act, 2017 )):

• Magistrate
• Police officer
• Medical officer or mental health professional in charge of a mental health establishment

If legal aid is not provided, the law punishes mental health establishment or any other person who violate these rights. The punishment is jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108, the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.

Every person with mental illness and their nominated representative have the right to information from the mental health professional. This includes the following information((Section 22(1), the Mental Healthcare Act, 2017. )):

• Law on persons with mental illness under which the person has been admitted
• Criteria for admission in a mental health establishment
• Right to make an application to the Mental Health Review Board for a review of their admission
• Information related to the person’s mental illness and the treatment plan as well as the side effects and to receive the information in a comprehensible language and manner
• Right to apply to the professional((Section 6(2), the Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018 )) to access medical records((Section 25(1),  the Mental Healthcare Act, 2017, Section 6(1), the Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018 )). The records are supposed to be provided to the person within 15 days((Section 6(3), the Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018 )). However, specific information in the records are not provided to the person with mental illness if it will result in serious harm to him or to anyone else((Section 25(2), the Mental Healthcare Act, 2017 )). To get such information, the person has to apply to the Mental Health Review Board for release of the information((Section 25(3),  the Mental Healthcare Act, 2017 )).

Giving Complete Information

It is the duty of the professional to give complete information. This information is provided during admission or at the start of the treatment.((Section 22(2),  the Mental Healthcare Act, 2017 )):

• Ensure that full information is provided promptly to the person when they are in a position to receive it
• To give the information to the nominated representative immediately

The law punishes mental health establishment or any other person who violate these rights. The punishment is jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108,  the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.