Mental Healthcare Act 2017, India: Child and adolescent perspectives.

India has got a new mental health legislation, the Mental Healthcare Act in 2017 (MHCA). Compared to its predecessor the Mental Health Act of 1987, this act was purported to be more patient centric and rights based. Considering the significant burden of child and adolescent mental health problems in the community, it is essential to understand what this new act means for the mental healthcare of young people. This article presents sections of the act relevant to children and adolescents. We look at the provisions in the context of changes from the earlier act, concordance with other Indian legislations and with mental health legislations in other parts of the world.

INTRODUCTION

A rights-based approach is the basic premise of the evolution of the MHCA 2017 that came into existence after the assent of the Honorable President of India on 7th April 2017. The act is in concordance with the United Nations Convention on Rights of Persons with Disabilities[1] that India ratified in 2007 and includes a dedicated chapter on the rights of persons with mental illness. Children and adolescents constitute approximately 40% of the population of India. Recent studies have reported high rates of psychiatric morbidity in this age group.[23] Access to mental health care for children and adolescents is a sensitive indicator of the level of the development of a country.[4] There is a significant gap in addressing the mental health needs of children and adolescents.[5] This article will explore the provisions of MHCA with respect to children and adolescents, in comparison with the Indian Mental Health Act (MHA) 1987; explore its concordance with other existing legislation and policies relevant to child and adolescent mental health; compare it with mental health legislation in other parts of the world; and discuss the strengths and limitations of the act.

PROVISIONS FOR CHILDREN AND ADOLESCENTS

Table 1 lists the provisions in MHCA 2017 that are relevant to children and adolescents. Alongside the provisions, we highlight their practical implications, i.e., the likely consequences for clinical and administrative practices in child and adolescent mental health care. In keeping with the United Nations Convention on the Rights of the Child,[6] MHCA considers all individuals below the age of 18 years as minors, like its predecessor, MHA 1987.

Table 1

Provisions for children and adolescents in Mental Healthcare Act 2017

Chapter	Provision	Practical implications
Chapter I: Preliminary	Section 1 (2) t: Definition of “minors”: a person who has not completed 18 years of age	All persons aged <18 years to be treated as minors
Chapter III: ADs	Section 11: (4) The legal guardian shall have right to make an AD in writing in respect of a minor and all the provisions relating to AD, “mutatis mutandis,” shall apply to such minor till such time he attains majority	Only NR (parents/legal guardians) authorized to make ADs for mental healthcare of minors; no role for the minor
Chapter IV: NR	Section 15. (1) Notwithstanding anything contained in section 14, in case of minors, the legal guardian shall be their NR, unless the concerned Board orders otherwise under sub-section (2)	By default, parents/legal guardians are NR for minors Concerned MHRB can appoint another individual as NR if the parent/legal guardian is found unsuitable. The concerned mental health authority, treating MHP, or any other person acting in the child’s best interest must bring this to the notice of the MHRB
	(2) Where on an application made to the concerned Board, by a MHP or any other person acting in the best interest of the minor, and on the evidence presented before it, the concerned Board is of the opinion that --
	(a) the legal guardian is not acting in the best interests of the minor, or
	(b) the legal guardian is otherwise not fit to act as the NR of the minor, it may appoint, any suitable individual who is willing to act as such, the NR of the minor with mental illness: Provided that in case no individual is available for appointment as a NR, the Board shall appoint the Director in the Department of Social Welfare of the State in which such Board is located, or his nominee, as the NR of the minor with mental illness
Chapter V: Rights of persons with mental illness	Section 21 (2) A child under the age of 3 years of a woman receiving care, treatment or rehabilitation at a MHE shall ordinarily not be separated from her during her stay in such establishment: Provided that where the treating Psychiatrist, based on his examination of the woman, and if appropriate, on information provided by others, is of the opinion that there is a risk of harm to the child from the woman due to her mental illness or it is in the interest and safety of the child, the child shall be temporarily separated from the woman during her stay at the MHE: Provided further that the woman shall continue to have access to the child under such supervision of the staff of the establishment or her family, as may be appropriate, during the period of separation	Children under the age of 3 years cannot be separated from their mother while getting treatment in a mental healthcare institution unless there is any risk to the baby from the mother’s ill health. Even if the baby has to be separated, the mother will have supervised access. The decision to separate the baby has to be reviewed every 15 days, and the baby should be reunited with the mother at the earliest possible. If a baby has to be separated for>30 days, the concerned mental health authority must be informed
	(3) The decision to separate the woman from her child shall be reviewed every 15 days during the woman’s stay in the MHE and separation shall be terminated as soon as conditions which required the separation no longer exist: Provided that any separation permitted as per the assessment of a MHP, if it exceeds 30 days at a stretch, shall be required to be approved by the respective Authority
Chapter XII: Admission, discharge, and treatment	Section 87: (1) A minor may be admitted to a MHE only after following the procedure laid down in this section	Inpatient treatment for minors requires the recommendation of two MHPs or one MHP and one medical professional. Consent only of the NR is needed. The minor has no role in this decision Separate, developmentally appropriate facilities are to be set up for inpatient treatment of minors
	(2) The NR of the minor shall apply to the medical officer in charge of a MHE for admission of the minor to the establishment
		Minors are to be admitted along with NR. Only a female attendant must accompany minor girls
	(3) Upon receipt of such an application, the medical officer or MHP in charge of the MHE may admit such a minor to the establishment, if two psychiatrists, or one psychiatrist and one MHP or one psychiatrist and one medical practitioner, have independently examined the minor on the day of admission or in the preceding 7 days and both independently conclude based on the examination and, if appropriate, on information provided by others, that, (a) the minor has a mental illness of a severity requiring admission to a MHE; (b) admission shall be in the best interests of the minor, with regard to his health, well-being or safety, taking into account the wishes of the minor if ascertainable and the reasons for reaching this decision; (c) the mental healthcare needs of the minor cannot be fulfilled unless he is admitted; and (d) all community based alternatives to admission have been shown to have failed or are demonstrably unsuitable for the needs of the minor
		Treatment and discharge require consent only from the NR
		Admissions extending beyond 30 days to be reviewed by the MHRB
	(4) A minor so admitted shall be accommodated separately from adults, in an environment that takes into account his age and developmental needs and is at least of the same quality as is provided to other minors admitted to hospitals for other medical treatments
	(5) The NR or an attendant appointed by the NR shall under all circumstances stay with the minor in the MHE for the entire duration of the admission of the minor to the MHE
	(6) In the case of minor girls, where the NR is male, a female attendant shall be appointed by the NR and under all circumstances shall stay with the minor girl in the MHE for the entire duration of her admission
	(7) A minor shall be given treatment with the informed consent of his NR
	(8) If the NR no longer supports admission of the minor under this section or requests discharge of the minor from the MHE, the minor shall be discharged by the MHE
	(9) Any admission of a minor to a MHE shall be informed by the medical officer or MHP in charge of the MHE to the concerned Board within 72 h
	(10) The concerned Board shall have the right to visit and interview the minor or review the medical records if the Board desires to do so
	(11) Any admission of a minor which continues for 30 days shall be immediately informed to the concerned Board
	(12) The concerned Board shall carry out a mandatory review within 7 days of being informed, of all admissions of minors continuing beyond 30 days and every subsequent 30 days
	(13) The concerned Board shall at the minimum, review the clinical records of the minor and may interview the minor if necessary
	Section 88. Discharge of independent patients: (2) Where a minor has been admitted to a MHE under section 87 and attains the age of 18 years during his stay in the MHE, the medical officer in charge of the MHE shall classify him as an independent patient under section 86 and all provisions of this Act as applicable to independent patient who is not minor, shall apply to such person	If a minor turns 18 during the course of admission, all provisions under the MHCA 2017 for voluntary inpatients are applicable thereafter
	Section 89: Admission and treatment of persons with mental illness, with high support needs, in MHE, up to 30 days (supported admission)	All admissions of minors have to be reported to the concerned MHRB within 3 days
	(9) The medical officer or MHP in charge of the MHE shall report the concerned Board, (a) within 3 days the admissions of a woman or a minor; (b) within 7 days the admission of any person not being a woman or minor
	Section 95. (1) Notwithstanding anything contained in this Act, the following treatments shall not be performed on any person with mental illness (a) ECT without the use of muscle relaxants and anesthesia; (b) ECT for minors; (c) sterilization of men or women, when such sterilization is intended as a treatment for mental illness; (d) chained in any manner or form whatsoever	ECT can be used in minors only with prior permission of the MHRB and with the consent of the NR
	(2) Notwithstanding anything contained in sub-section (1), if, in the opinion of the psychiatrist in charge of a minor’s treatment, ECT is required, then, such treatment shall be done with the informed consent of the guardian and prior permission of the concerned Board

NR – Nominated representative; AD – Advance directive; MHP – Mental health professional; MHRB – Mental Health Review Board; MHE – Mental health establishment; ECT – Electroconvulsive therapy

POSITIVE INITIATIVES FOR CHILD AND ADOLESCENT MENTAL HEALTHCARE

MHCA improves on its predecessors in terms of greater clarity on a range of issues surrounding the mental health care of children and adolescents. It is more elaborate on inpatient admission procedures and treatments such as the use of electroconvulsive therapy. The act clearly states the role of nominated representative (NR) (typically parents/guardians or state-appointed persons) in all aspects of decision making for mental health care of minors. The NR can also make advance directives for minors. The NR must accompany a minor during an inpatient admission. A novel aspect of the legislation is mandating nonseparation of infant and toddlers from mothers getting treatment for mental illness unless there is any risk posed to the child. This is a welcome move since separation at this young age can interfere with the nutritional, growth, and attachment needs of the child, with long-term consequences on physical and mental development. Another positive move is the decriminalization of suicidal behaviors. This is especially relevant in the case of adolescents who have high rates of self-harm and suicidal behaviors, which indicate the presence of serious psychological distress that requires urgent medical, including psychiatric, intervention. Till recently, the criminal perspective on and legal consequences of such behavior was a barrier to help-seeking.

MHCA 2017 VERSUS MENTAL HEALTH ACT 1987

Definition of mental illness

MHCA is conceptually clearer on the definition of “mental illness” [Table 1]. The MHA described a mentally ill person only by the need of treatment by reason of any mental disorder other than mental retardation, without any explicit mention of the nature of mental disorders. Notably, the exclusion of mental retardation from the definition has been maintained in MHCA.

Admission and discharge procedures for minors

The MHA and MHCA both provide for voluntary admission of minors on request made by the guardian (MHA) or NR (MHCA). While the MHA required an evaluation of the minor only by a medical officer-in-charge to determine the need for admission, the MHCA mandates the examination by at least two medical professionals, at least one of who must be an MHP. Discharge of minors, on request made by the guardian (MHA) or NR (MHCA), is consistent across the acts. Provisions slightly differ in the scenario where a minor attains majority during inpatient treatment. The MHA stated that a minor who attains majority would be discharged from inpatient care unless he/she made a specific request for a continuance of inpatient care within a month of being intimated of his/her having attained majority status, by the doctor in charge. Therefore, the MHA did not treat the admission as voluntary once the majority was attained. The MHCA also provides for the discharge of voluntary patients, but only on request made by the now adult patient. However, the provision for default discharge unless requested for continuation of inpatient admission is replaced by the provision of an option for discharge if the patient requests it. MHCA thereby ensures the rights, yet providing for continuation of care.

Separate inpatient facilities for minors

Section 5 of Chapter III of MHA 1987 proposed the setting up of separate psychiatric hospitals and psychiatric nursing homes, by the Central Government of India, for those who are under the age of 16 years. The MHCA goes a step further to state that separate facilities are needed for all minors, i.e., under 18 years of age rather than 16. It does not specify if these separate facilities could be housed in the same compound as the facilities for adults, but with separate enclosures; or they should be separate hospitals in themselves. MHCA also makes a mention that facilities for young people should suit the developmental needs; however, there is no clear definition of the minimum standards required for such a facility. Box 1 presents our recommendations for a set of minimum standards required for a 20-bedded inpatient unit for minors. This template can be adapted depending on the age and diagnostic status of the clientele, and the population prevalence of psychiatric problems in children and adolescents. Some inpatient facilities go a step further in having separate setups for older adolescents.[7] The developmental needs of older adolescents are different from those of younger children; besides, the physical size and acting out behaviors in older adolescents can be intimidating for younger children.[89] These facets reiterate the need for mental health legislation in the country to provide specific recommendations for inpatient care settings for children and adolescents.

Box 1

Recommendations on minimum standards for a 20-bedded inpatient facility for minors

Workforce

A psychiatrist with an MD/DPM/DNB - 1 per 20 patients

Clinical psychologist with M.Phil. (clinical psychology) - 1

PSW with M.Phil. (PSW) qualification - 1

Nursing staff - 1 per 10 patients

Support staff - 2 (1 male and one female)

Infrastructure

Minimum two beds for high-intensity nursing care for suicidality, catatonia, etc.

Separate wards for male and female patients

Extra cots for patient attendants

Adequate space, lighting, and ventilation

Clean drinking water and washroom facilities for children and caregivers

Indoor and outdoor play areas

Play observation cum-therapy rooms

Stimulation room - for early intervention inputs

Study room and library with storage cupboards for books

Quiet/time-out room

Therapy rooms for psychotherapy sessions with child/adolescent and family

PSW – Psychiatric social worker

New mandates in MHCA vis-à -vis Mental Health Act

MHCA introduces several new mandates in comparison to the MHA. These include role of NR in AD for minors, the provision for change of NR if he/she is deemed unfit, the provision for very young children (≤3 years of age) to stay with their mothers getting treatment for mental illnesses, the compulsory requirement of NR to accompany minors during inpatient treatment, the requirement to report to the mental health review board (MHRB) within 72 h about the admission of a minor patient, and the prohibition on electroconvulsive therapy for minors. Children and adolescents are not merely little adults. The MHCA appears cognizant of this and accordingly, is more explicit on the provisions for minors, compared to the MHA.

CONCORDANCE OF MHCA WITH OTHER LEGISLATIVE ACTS AND POLICIES IN INDIA

Rights of Persons with Disabilities Act, 2016

The Rights of Persons with Disabilities Act (RPWD) came into force in 2016, i.e., before the MHCA. RPWD is also deeply driven by the United Nations Convention on the Rights of Persons with Disabilities.[1] In the area of mental disabilities, RPWD is a major advancement over Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 in encompassing a broad range of mental health conditions, including neurodevelopmental disorders, in its ambit. Thereby, mental retardation, autism spectrum disorders, specific learning disabilities, and mental illnesses are all eligible for disability evaluation and certification. This is an area where the MHCA falls short, in that it is unclear what is the stand of the act on neurodevelopmental disorders. Its definition of mental illness excludes mental retardation and is silent about other neurodevelopmental disorders that constitute a substantial proportion of consultations in child and adolescent psychiatric practice. There is also a lack of clarity on the relation between guardianship in the RPWD and NR in the MHCA. Further, while MHCA is quite elaborate in provisions for rights of mentally ill persons with respect to their health care and within MHEs, issues of social rights and discrimination find no mention in the act.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 is the primary provision in India that dictates laws related to children in conflict with the law and children in need of care and protection. Section 15 of this act talks a much-debated transfer of alleged offenders between the age of 16–18 years to the adult justice system in the event of heinous crimes and if so deemed after a preliminary assessment of the adolescent's mental and physical capacity to commit the offence, ability to understand the consequences of the offence, and circumstances in which the alleged offense was committed. The law, therefore, deems it possible that persons aged 16–18 years are capable of “adult-like” decision-making processes, can be held fully accountable for their acts, and can be penalized like adults in similar situations. Contrast this with the MHCA that places all decision-making authority about the treatment and care of minors with their NR. We discuss later, how several countries in the world have moved toward greater participation of minors, especially 16–17-year-old, in health-care decisions. To this extent, the MHCA contradicts its premise of upholding the rights of young people with mental ill health.

National Mental Health Policy, 2014

India adopted the National Mental Health Policy (NMHP) in 2014; this policy is meant to guide all actions to scale up the mental health programs and provisions in the country. The policy lays special emphasis on the mental health needs of vulnerable groups such as orphans with mental illnesses, children of persons with mental illnesses, and children in custodial institutions. Surprisingly, MHCA finds no mention of these vulnerable populations. The generic mental health needs, administrative processes, and manner of addressal cannot be directly extrapolated to these groups. There is a crying need for special consideration by the central mental health legislation in the country in this context.

COMPARISON OF MHCA WITH MENTAL HEALTH LEGISLATION IN OTHER COUNTRIES

Participation of minors in healthcare decisions

MHCA 2017 places almost the entire responsibility for health-care decisions for minors on the NR, i.e., the parent/legal guardian unless otherwise specified. This implies that even older adolescents, ≥15 years of age, cannot take an active part in healthcare decisions. However, the day they turn 18, they get all privileges available to a voluntary adult patient. This seems quite at odds with the understanding of adolescent development and the capacity of adolescents to appreciate their healthcare needs and take responsible decisions. The Indian law stands in contrast to western legislations that give young people substantial rights. In the United Kingdom (MHA 2007), 16- and 17-year-old have legal rights to consent to or refuse treatment and/or inpatient admission; parents/legal guardians cannot override their rights.[10] Similar laws exist in the USA, Australia, Canada, New Zealand and other parts of the world. Further, statutes such as Gillick competence[11] and the mature minor doctrine[12] also make room for children younger than 16 years of age to make health-care decisions, provided that their capacity to consent has been ascertained. Gillick competence and mature minor doctrine are legal provisions in the UK and USA, respectively, whereby minors can make health-care decisions about their own medical treatment, without the need for parental permission or knowledge. These provisions arose out of cases before the law in the 1960s–1980s. Gillick competence, for instance, arose from a decision by the House of Lords about the prescription of contraception to minors without the need for parental consent. It has subsequently extended to decisions minors can take about their other healthcare needs as well. The UK Department of Health has published guidelines for young people to be aware of their rights to take an active part in health-care decisions.[13]

Mental health practitioners have to always act in the best interest of the child. Even as the legislation mentioned above recognize child rights, they also permit practitioners to act discretionarily in the context of emergencies or when it is deemed essential to disclose information or discuss treatment options with parents, for example, when there are aggressive behavior and imminent risk to the minor or others. This breach of confidentiality with the minor is guided by the Caldicott Guardian principles in the UK that outline circumstances and responsibilities in every context where personal confidential data are shared.[14]

The WHO Checklist on Mental Health Legislation

The WHO Checklist on Mental Health Legislation[15] provides a framework for designing country-specific laws. Regarding the items on this checklist that are relevant for child and adolescent mental health, MHCA is up to the mark on the following accounts:

It limits the involuntary placement of minors in mental health facilities to instances where all feasible community alternatives have been tried

It stipulates that if minors are placed in mental health facilities, they should have a separate living area from adults

It stipulates that if minors are placed in mental health facilities, the environment should be age appropriate and should take into consideration the developmental needs of minors

It ensures that all minors have an adult to represent them in all matters affecting them, including consenting to treatment.

However, MHCA falls short of the WHO Checklist on the following accounts:

Definition of mental illness does not explicitly mention the act's stand on the spectrum of neurodevelopmental disorders

Minimal conditions to be maintained in mental health facilities for a safe, therapeutic, and hygienic environment are not specified

Levels of professional skills required to determine a mental disorder are not specified

Categories of professionals who may assess a person to determine the existence of a mental disorder do not find a mention

The need to consider the opinions of minors on all issues affecting them (including consent to treatment), depending on their age and maturity, has been neglected completely.

A FEW MORE CONSIDERATIONS

In the above text, we have at several places indicated the shortfalls in the MHCA. We want to raise a few more considerations here.

Information and permissions from the MHRB

The admission of a minor to an inpatient facility requires two professionals to independently opine on the need for admission. This is likely to be practically challenging, especially in small centers across India where there is a dearth of trained MHPs. This may also lead to an unwarranted delay in assistance to the distressed young person. The new act mandates prior permission of the MHRB for using ECT in minors. While this is a welcome move to regulate and monitor the use of ECT, there is a flip side in that delays in approvals may impede treatment of serious conditions such as suicidal risk and catatonia. The act does not give any discretionary powers to the mental health practitioners in this regard.

Care of children of parents with mental illness

MHCA has come up with a novel provision for infants and toddlers to not be separated from their mothers unless there is any risk to the child. Keeping such a young child along with the mother in a hospital setting is challenging, and especially so in psychiatric inpatient set-ups. Other disturbed patients could pose a risk to the child. In this regard, MHCA does not provide any recommendations for mother-baby units in psychiatric inpatient facilities. Mother-baby units have been started in India[16] and have addressed risks, infant health, breastfeeding disruption, mother-infant bonding, ongoing domestic violence, among other challenges that come up in caring, especially for postpartum mothers. Older children and adolescents may also have mental health needs when either parent has a mental illness. Depending on their developmental level and health, they may need specific psychological aid. Unfortunately, MHCA has not touched this aspect.

CONCLUSION

This article presents child and adolescent related provisions in MHCA 2017 and discusses the strengths and limitations of its provisions, in comparison with the older MHA 1987 and mental health legislation in other parts of the world. MHCA is more cognizant of the special needs of young people than its predecessors. However, it is limited in its scope of consideration about the rights of the child/adolescent to be an active participant in his/her mental health care. The elaboration on provisions for admissions and treatments are likely to increase regulatory control. We will learn about the clinical and practical implications and utility of these provisions only once the act is fully implemented.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.