SPECIAL ARTICLE Indian Journal of Psychiatry, 2004, 46(2)104-114 A New Mental Health Act for India: An Ethics based Approach Jaydip Sarkar* ABSTRACT The paper makes the case for a new mental health act for India in view of the deficiencies of the current act. It argues that any new mental health act must be grounded in sound ethical principles, value basic human rights, provide powers to those who treat mental disorders and reflect the values and trends of the modern world. It favours a quasi-legal system with opportunities for independent scrutiny, allows treatment consistent with ethical and legal principles, one that makes way for a more transparent and accountable system. Such a system, the paper asserts, will be legally, ethically and clinically relevant, responsive, accessible and available at the time of need and therefore user-friendly. It recommends the linkage of the act with existing mental health policies of the government, thereby making the act powerful and interwoven in the tapestry of health care delivery initiatives of the government. Introduction The Indian Psychiatric Society (IPS) has decided to draft a new Mental Health Act (MHA) for the country and has constituted a task force for this purpose (Kallivayalil 2004). It is hoped that the draft would reflect the sometimes competing needs of various parties to a MHA, such as patients, doctors and the judiciary. In a country like India with its tradition of family support and help, there must be consideration of the views and wishes of the family too. It is to be hoped that any new MHA would reflect the realities of the 21st century, most particularly in the principles that are enshrined in it and the balance it draws upon the conflicting needs of protecting patients and public as well as safeguarding the human rights of the patients. One of the primary reasons for the potential demise of the Indian MHA of 1987 is the relative paucity in it of some of the key features noted above. Difficulties with Mental Health Act, 1987 The MHA ‘87 is an advancement on its predecessors, the Indian Lunacy Act 1912 , The Lunacy (supreme court) Act, 1853 (Act 34 of 1858), The lunacy (District Courts) Act, 1858 (Act 35 of 1858), The Indian Lunatic Asylums Act (Act 360 of 1858), The Military Lunatics Act 1877 (Act 11 of 1877), The Indian Lunatic Asylums (Amendment) Act, 1886 (Act 18 of 1886), and The Indian Lunatic Asylums (Amendment) Act 1889 (Act 20 of 1889). In a nutshell, it has been suggested that the progressive features of MHA ‘87 include, relative to its predecessors (a) an incorporation of modern concepts of mental illness and treatment, (b) primacy of the role of medical officers (c) simplification of the rules of admission and discharge (d) protection of human rights of the patients (e) providing for supervision of the standard of care in psychiatric hospitals (by creating the Mental Health Authority) (f) provision of penalties in case of breach of laws in connection with welfare of the patients and (g) care is the ultimate aim and not the custody alone (Banerjee) However, the MHA 87 has had a troubled life ever since it came into pragmatic being in 1993. There have been substantial critiques of the act, which has been labelled as being i) overly legal in its scope, process and outcome, stressing upon custody with little regard for therapeutic aspects of psychiatric care, ii) establishing similar legal controls upon both voluntary and non-voluntary classes of patients, and iii) being discriminatory towards non- governmental institutions of psychiatric care (Trivedi, 2002). Another reason for the act’s unpopularity is its relative silence on the more practical aspects of patient care that psychiatrists face on a daily basis. It is also true that many patients in India are regularly admitted against their wishes by psychiatrists on the basis of proxy consent provided by friends and relatives and treated against their wishes without recourse to a legally justifiable means of doing so. Whilst doing so obviously saves the patient, his/her family and the relevant hospital administrative systems the onerous task of navigating through the legal requirements that admitting them using the MHA ’87 would require, such practices nonetheless tacitly encourages the blatant flouting of some sensible recommendations that the MHA ’87 contains. Disregard for the norms and regulations of the act is thought to have led to the horrific incidence of Erawady where over a score of patients were burned to death after they were left overnight, chained to their horrible fates. Erawady awakened the judiciary who thereafter insisted, following directives issued by the Supreme Court, that the MHA ’87 *Consultant Forensic Psychiatrist, Shaftesbury Clinic, Springfield University Hospital, London SW17 7DJ e-mail: amdeep176@aol.com 104