The Mental Health Act, 1987

An Act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their properly and affairs and for matters connected therewith or incidental thereto.

Statement of Objects and Reasons of Act 14 of 1987 

  • The attitude of the society towards persons afflicted with mental illness has changed considerably and it is now realised that no stigma should be attached to such illness as it is curable, particularly, when diagnosed at an early stage. Thus the mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible.

  • The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has revealed that it has become out-moded. With the rapid advance of medical science and the understanding of the nature of malady, it has become necessary to have fresh legislation with provisions for treatment of mentally ill persons in accordance with the new approach.

  • It is considered necessary - 

      • To regulate admission to psychiatric hospitals or psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis, and to protect the rights of such persons while being detained;
      • To protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others;
      • To protect citizens from being detained in psychiatric hospitals or psychiatric nursing homes without sufficient cause;
      • To regulate responsibility for maintenance charges of mentally ill persons who are admitted to psychiatric hospitals or psychiatric nursing homes;
      • To provide facilities for establishing guardianship or custody of mentally ill persons who are incapable of managing their own affairs;
      • To provide for the establishment of Central Authority and State Authorities for Mental Health Services;
      • To regulate the powers of the Government for establishing, licensing and controlling psychiatric hospitals and psychiatric nursing homes for mentally ill persons;
      • To provide for legal aid to mentally ill persons at State expense in certain cases.

  • The main object of the Bill is to implement the aforesaid proposals. 

COMMENTS - It is well settled that when the language of the statute is clear and admits of no ambiguity, recourse to the Statement of Objects and Reasons for the purpose of construing a statutory provision is not permissible. Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case2.

The law is well settled that though the Statement of objects and Reasons accompanying a legislative bill could not be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy3.

PREAMBLE - It is established law that preamble discloses the primary intention of the statute but does override the express provisions of the statute4. Although a preamble of a statute is a key to interpretation of the provisions of the Act, but the intention of Legislature is not necessarily to be gathered from the preamble taken by itself, but to be gathered from the provisions of the Act. Where the language of the Act is clear, the preamble cannot be a guide, but where the object or meaning of the provisions of the Act is not clear then an aid from the preamble can be taken into consideration for purpose of explaining the provisions of the Act5.

It is now well settled that the preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the preamble in the absence of any ambiguity in the enacted provisions6.

Be it enacted by Parliament in the Thirty-eighth Year of the Republic of India as follows:

Chapter I - Preliminary
Chapter II - Mental Health Authorities
Chapter III - Psychiatric Hospitals and Psychiatric Nursing Homes
Chapter IV - Admission and Detention in Psychiatric Nursing Home
Part I - Admission on Voluntary Basis
Part II - Admission under special circumstances
Part III - Reception Orders
Chapter V - Inspection, Discharge, Leave of Absence and Removal of Mentally ill persons
Part I - Inspection
Part II - Discharge
Part III - Leave of Absence
Part IV - Removal
Chapter VII - Liability to meet cost of maintenance of mentally ill persons detained in psychiatric hospital or psychiatric nursing home
Chapter VIII - Protection of human rights of mentally ill persons
Rules
The State Mental Health Rules, 1990
The Central Mental Health Authority Rules, 1990
Forms
Form I - Application for grant of licence for establishment / maintenance of psychiatric hospital / nursing home
Form II - Application for establishment of psychiatric hospital / nursing home under Sub Section (2) of Sec. 7
Form III - Grant of licence for establishment of psychiatric hospital/nursing home
Form IV - Application for renewal of licence
Form V - Application for appeal
Form VI - Proforma of case record
Form VII - Application for reception order (by medical officer-in charge of a psychiatric hospital)
Form VIII - Application for reception order (by relative or other)
Form IX - Application for leave of absence

Chapter I - Preliminary

SHORT TITLE, EXTENT AND COMMENCEMENT -

  • This Act may be called the Mental Health Act, 1987. 

  • It extends to the whole of India 
  • It shall come into force on such date1 as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act, and any reference in any provision to the commencement of this Act in a State shall be construed as a reference to the coming into force of that provision in that state.

COMMENTS 

The Act repeals the Indian Lunacy Act, 1912 ( 4 of 1912), and the Lunacy Act, 1977 (Jammu and Kashmir Act 25 of 1977). The provisions of the Indian Lunacy Act 1912 and the Amending Act which compendiously called Lunacy Act, 1912-1926 were not absolutely exhaustive.

S.O. 43 (E), DATED 11TH JANUARY, 1993 - In exercise of the powers conferred by sub-section (3) of Sec. 1 of the Mental Health Act, 1987 (14 of 1987), the Central Government hereby appoints the Ist day of April, 1993 as the date on which the said Act shall come into force in all the States and Union Territories.

RULE OF INTERPRETATION.- It is an accepted proposition of law that Acts must be construed as a whole. Guidance with regard to the meaning of a particular word or phrase may be found in other words and phrases in the same section or in other sections although the utility of an extensive consideration of other parts of the same statute will vary from case to case3.

In interpreting the provisions the exercise undertaken by the Court is to make explicit the intention of the Legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to "legislate" have not been conferred on the Court4.

In order to sustain the presumption of constitutionality of a legislative measure, the Court can take into consideration matters of common knowledge, matters of common report, the history of the times and also assume every state of fact which can be conceived existing at the time of the legislation5.

The principle of the interpretation that no word used by the Legislature in a legislation is useless, cannot be fitted into the situation where the question relates to the interpretation of an agreement. An agreement is not to be culled out from ambiguity6.

INTERPRETATION OF STATUTE-DUTY OF THE COURT - It is well settled that the Courts should read different provisions of an Act in a manner that no part thereof is held to be superfluous or surplus and that where language of statute leads to manifest contradictions the Court must construe them on the basis of which the said provisions can survive1.

GENERALIA SPECIALIBUS NON DEROGANT- It is well-known proposition of law that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision (Generalia specialibus non derogant)2.

CONSTRUCTION OF WORK- It is settled view that in determining the meaning or connotation of words and expressions describing an article one should be construed in the sense in which they are understood. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention3.

2. DEFINITIONS 

In this Act, unless the context otherwise requires - 

  • "cost of maintenance". In relation to a mentally ill person admitted in a psychiatric hospital or psychiatric nursing home, shall mean the cost of such items as the State Government may, by general or special order, specify in this behalf;

  • "District Court" means, in any area for which there is a city Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil Court which the State Government may, by notification, specify as the Court competent to deal with all or any of the matters specified in this Act:

  • "Inspecting Officer" means a person authorised by the State Government or by the licensing authority to inspect any psychiatric hospital or psychiatric nursing home;

  • "license" means a licence granted under Sec.8; 

  • "licensee" means the holder of a licence; 

  • "licensed psychiatric hospital" or "licensed psychiatric nursing home" means a psychiatric hospital or psychiatric nursing home, as the case may be, licensed, or deemed to be licensed, under this Act;

  • "licensing authority" means such officer or authority as may be specified by the State Government to be the licensing authority to the purposes of this Act;

  • "Magistrate" means -

    • In relation to a metropolitan area within the meaning of Cl (k) of Sec. 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a Metropolitan Magistrate;
    • 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:

  • "medical officer" means a gazetted medical officer in the service of Government and includes a medical practitioner declared, by a general or special order of the State Government, to be a medical officer for the purposes of this Act;

  • "medical officer in charge" in relation to any psychiatric hospital or psychiatric nursing home, means the medical officer who, for the time being, is in charge of that hospital or nursing home;

  • "medical practitioner" means a person who possesses a recognised medical qualification as defined -

    • In Cl (h) of Sec 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 Cl. (k) of that section;
    • In Cl (h) of sub-section (1) of Sec. 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 cl (j) of sub-section (1) of that section; and
    • In Cl. (g) of sub-section (1) of Sec. 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 Cl. (I) of sub-section 1) of that section;

  • "Mentally ill person" means a person who is in need of treatment by person of any mental disorder other than mental retardation;

  • "mentally ill prisoner" means a mentally ill person for whose detention in, or removal to, a psychiatric hospital, psychiatric nursing home, jail or other place of safe custody, an order referred to in Sec. 27 has been made;

  • "minor" means a person who has not completed the age of eighteen years; 

  • "notification means a notification published in the Official Gazette; 

  • "prescribed" means prescribed by rules made under this Act; 

  • "psychiatric hospital" or "psychiatric nursing home" means a hospital, or as the case may be, a nursing home established or maintained by the Government or any other person for the treatment and care of mentally ill persons and includes a convalescent home established or maintained by the Government or any other person for such mentally ill persons; but does not include any general hospital or general nursing home established or maintained by the Government and which provides also for psychiatric services;

  • "psychiatrist" means a medical practitioner possessing a post-graduate degree or diploma in psychiatry, recognised by the Medical Council of India, constituted under Indian Medical Council Act, 1856 (102 of 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;

  • " reception order" means an order made under the provision of this Act for the admission and detention of a mentally ill person in a psychiatric Hospital or psychiatric nursing home;

  • " relative" includes any person related to the mentally ill person by blood, marriage or adoption; 

  • "State Government" in relation to a Union territory, means the Administrator thereof. 

COMMENTS 

This section defines the various expressions occurring in the Act.

INTERPRETATION OF SECOTION - The Court can merely interpret the section; it cannot re-write, recast or redesign the section1.

RELATIVE - MEANING OF -certainly the word "relative" used in Sec. 3 of the Lunacy Act (since repealed by this Act) has to be understood in a legal sense and it has to be understood in the setting where that word is used in the provisions of the statute, particularly, the provision enabling a relative to entertain a petition under Sec. 63 of the Lunacy Act2.

Chapter II - Mental Health Authorities

3. CENTRAL AUTHORITY FOR MENTAL HEALTH SERVICES. 

  • The Central Government shall establish an authority for mental health with such designation as it may deem fit.

  • The Authority established under sub-section (1) shall be subject to the superintendence, direction and control of the Central Government.

  • The authority established under sub-section (1) shall - 

    • Be in charge of regulation, development, direction and co-ordination with respect to Mental Health Services under the Central Government and all other matters which, under this Act, are the concern of the Central Government or any officer or authority subordinate to the Central Government.
    • Supervise the psychiatric hospitals and psychiatric nursing homes and other Mental Health Service Agencies (including places in which mentally ill persons may be kept or detained) under the control of the Central Government.
    • Advise the Central Government on all matters relating to mental health; and 
    • Discharge such other functions with respect to matters relating to mental health as the Central Government may require.

EXPLANATION - For the purposes of this section and Sec.4 "Mental Health Services" include, in addition to psychiatric hospitals and psychiatric nursing homes, observation wards, day-care centres, in patient treatment in general hospitals, ambulatory treatment facilities and other facilities, convalescent homes and half-way-homes for mentally ill persons.

COMMENT 

This section empowers the Central Government to establish Central Authority for Mental Health Services. 

EXPLANATION- It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision1.

4. STATE AUTHORITY FOR MENTAL HEALTH SERVICES - 

  • The State Government shall establish an authority for mental with such designation as it may deem fit.

  • The Authority established under sub - section (1) shall be subject to the superintendence, direction and control of the State Government.

  • The Authority established under sub - section (1) shall - 

    • Be in charge of regulation, development and co-ordination with respect to Mental Health Service under the State Government and all other matters which, under this Act , the concern of the state Government or any officer or authority subordination to the State Government :
    • Supervise the psychiatric hospitals and psychiatric nursing homes and other Mental health Services Agencies (including places in which mentally ill persons may be kept or detained )under the control of the State Government :
    • Advise the State Government on all matters relating to mental health ; and 
    • Discharge such other functions with respect to matters relating to mental health as the State Government may require.

COMMENT 

This section empowers the State Government to established State authority for Mental Health services.

Chapter III - Psychiatric Hospitals and Psychiatric Nursing Homes

5. ESTABLISHED OR MAINTENANCE OF PSYCHIATRIC HOSPITALSAND PSYCHIATRIC NURSING HOMES -

  • The Central Government may, in any part of India, or the state government may, within the limits of its jurisdiction, established or maintain psychiatric hospitals hospitals or psychiatric nursing homes for the admission , and care of mentally ill persons at such places as it thinks fit ; and separate psychiatric hospitals and psychiatric nursing homes may be established or maintained for, -

    • Those who are under the age of sixteen years; 
    • Those who are addicted to alcohol or other drugs which lead to behavioural changes in a persons ;
    • Those who have been convicted of any offence; and 
    • Those belonging to such other or category of persons as may be prescribed . 
    Where a psychiatric hospital or psychiatric nursing home is established or maintained by the Central Government, any reference in this Act to the State Government shall, in relation to such hospital or nursing home, be construed as a reference to the Central Government.

COMMENT 

This section empowers the Central Government or the State Government to established or maintain psychiatric nursing homes.

6. ESTABLISHMENT OR MAINTENANCE OF PSYCHIATRIC HOSPITALS OR PSYCHIATRIC NURSING HOMES ONLY WITH LICENCE.

  • On and after the commencement of this Act, no person shall established or maintain a psychiatric hospital or psychiatric nursing home unless he holds a valid license granted to him under this Act:

    Provided that a psychiatric hospital or psychiatric nursing home (whether called asylum or by any other name) licensed by the central government or any state Government and maintained as such immediately before the commencement of this Act may continue to be maintained, and shall be deemed to be a licensed psychiatric hospital or licensed psychiatric nursing home, as the case may be, under this Act,-

    • For a period of three months from such commencement, 
    • If an application made in accordance with Sec. 7 for a license is pending on the expiry of the period specified in CI. (a) till the disposal of such application.

  • Nothing contained in sub-section (1) shall apply to a psychiatric hospital or psychiatric nursing home established or maintained by a Central Government or State Government.

COMMENT 

This section prohibits establishment or maintenance of any psychiatric hospital or psychiatric nursing home by any person, unless he holds a valid licence granted to him under the Act.

7. APPLICATION FOR LICENCE. - 

  • Every person, who holds, at the commencement of this Act, a valid licence authorizing that person to establish or maintain any psychiatric hospital or psychiatric nursing home, shall, if the said person intends to establish or continue the maintenance of such hospital or nursing home after the expiry of the period referred to in Cl. (a) of the proviso to sub-section (1) of Sec. 6, make at least one month before the expiry of such period, an application to the licensing authority for the grant of a fresh license for the establishment or maintenance of such hospital or nursing home, as the case may be.

  • A person, who intends to establish or maintain, after the commencement of this Act, a psychiatric hospital or psychiatric nursing home, shall, unless the said person already holds a valid license, make an application to the license authority for the grant of a license.

  • Every application under sub-section (1) or sub-section (2) shall be in such form and be accompanied by such fee as may be prescribed.

COMMENT 

This section provides for application for license for establishment or maintenance of psychiatric hospital or psychiatric nursing homes.

8. GRANT OR REFUSAL OF LICENCE - 

On receipt of an application under Sec.7, the licensing authority shall make such inquiries as it may deem fit and where it is satisfied that -

  • The establishment or maintenance of the psychiatric hospital or psychiatric nursing home or the continuance of the maintenance of any such hospital or nursing home established before the commencement of this Act is necessary;

  • The applicant is in a position to provide the minimum facilities prescribed for the admission, treatment and care of mentally ill persons; and

  • The psychiatric hospital or psychiatric nursing home, will be under the charge of medical officer who is a psychiatrist.

    It shall grant a license to the applicant in the prescribed form, and where it is not so satisfied, the licensing authority shall, by order, refuse to grant the license applied for:
     
    Provided that, before making any order refusing to grant a license, the licensing authority shall give to the applicant a reasonable opportunity of being heard and every order of refusal to grant a license shall set out therein the reasons for such refusal and such reasons shall be communicated to the applicant in such manner as may be prescribed.

COMMENT 

This section empowers the licensing authority to grant or refuse license for establishment or maintenance of psychiatric hospital or psychiatric nursing homes.

9. DURATION AND RENEWAL OF LICENCE - 

  • A license shall not be transferable or heritable. 

  • Where a licensee is unable to function as such for any reason or where a licensee dies, the licensee or, as the case may be, the legal representative of such licensee shall forthwith report the matter in the prescribed manner to the licensing authority and notwithstanding anything contained in sub-section (I), the psychiatric hospital or psychiatric nursing home concerned may continue to be maintained and shall be deemed to be a licensed psychiatric hospital or licensed psychiatric nursing home, as the case may be -

    • For a period of three months from the date of such report or in the case of the death of the licensee from the date of his death, or
    • If an application made in accordance with sub-section (3) for a license is pending on the expiry of the period specified in Cl. (a), till the disposal of such application.
    • The legal representative of the licensee referred to in sub-section (2) shall, if he intends to continue the maintenance of the psychiatric hospital or psychiatric nursing home after the expiry of the period referee to in sub-section (2), make, at least one month before the expiry of such period, an application to the licensing authority for the grant of a fresh license for the maintenance of such hospital or nursing home, as the case may be, and the provisions of Sec. 8 shall apply in relation to such application as they apply in relation to an application made under Sec.7
    • Every license shall, unless revoked earlier under Sec. 11, be valid for a period of five years from the date on which it is granted.
    • A license may be renewed from time to time, on an application made in that behalf to the licensing authority, in such form and accompanied by such fee, as may be prescribed, and every such application shall be made not less than one year before the date on which the period of validity of the license is due to expire:

  • Provided that the renewal of a license shall not be refused unless the licensing authority is satisfied that -

    • The licensee is not in a position to provide in a psychiatric hospital or psychiatric nursing home, the minimum facilities prescribed for the admission, treatment and care therein mentally ill persons; or
    • The licensee is not in a position to provide a medical officer which is a psychiatrist to take charge of the psychiatric hospital or psychiatric nursing home, or
    • The licensee has contravened any of the provisions of this Act or any rule made there under.

COMMENT 

This section empowers the licensing authority to grant or refuse licence for establishment or maintenance of the psychiatric hospital or psychiatric nursing home, under certain circumstances.

10. PSYCHIATRIC HOSPITAL AND PSYCHIATRIC NURSING HOME TO BE MAIN TRAINED IN ACCORDANCE WITH PRESCRIBED CONDITIONS -

  • Every psychiatric hospital or psychiatric nursing home shall be maintained in such manner and object to such condition as may be prescribed.

COMMENT 

This section lays down that every psychiatric hospital/nursing home shall be maintained properly according to the prescribed conditions.

11. REVOCATION OF LICENCE - 

  • The licensing authority may, without prejudice to any other penalty that may be imposed on the licensee, by order in writing, revoke the licence if it is satisfied that -

    • The psychiatric hospital or psychiatric nursing home is not being maintained by the licensee in accordance with the provisions of this Act or the rules made there under; or
    • The maintenance of the psychiatric hospital or psychiatric nursing home is being carried on in a manner detrimental to the moral, mental or physical well-being of other in-patients thereof:

  • Provided that no such order shall be made except after giving the licensee a reasonable opportunity of being heard, and every such order shall set out therein the grounds for the revocation of the license and such grounds shall be communicated to the licensee in such manner as may be prescribed.

  • Every order made under sub-section (1) shall contain a direction that the in-patients of the psychiatric hospital or psychiatric nursing home shall be transferred to such other psychiatric hospital or psychiatric nursing home as may be specified in that order and it shall also contain such provisions (including provisions by way of directions) as to the care and custody of such in-patients pending such transfer. Every order made under sub-section (1) shall take effect -

    • Where no appeal has been preferred against such order under Sec. 12, immediately on the expiry of the period prescribed for such appeal; and
    • Where such appeal has been preferred and the same has been dismissed, from the date of the order of such dismissal.

COMMENT 

This section empowers the licensing authority to revoke the license in case the psychiatric hospital or nursing home is not maintained properly or its maintenance is detrimental to the well-being of the in-patients thereof.

12. Appeal - 

  • Any person aggrieved by an order of the licensing authority refusing to grant or renew a license, or revoking a license, may, in such manner and within such period as may be prescribed, prefer an appeal to the State Government:

  • Provided that the State Government may entertain an appeal preferred after the expiry of the prescribed period if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

  • Every appeal under sub-section (1) shall be made in such form and accompanied by such fee as may be prescribed.

COMMENT 

This section makes provision for preferring an appeal to the State Government by any aggrieved person against the order of the licensing authority refusing to grant or renew a licence, or revoking a licence for establishment or maintenance of the psychiatric hospital/nursing home.

13. INSPECTION OF PSYCHIATRIC HOSPITALS AND PSYCHIATRIC NURSING HOME AND VISISTING OF PATIENTS-

  • An Inspecting Officer may, at any time, enter and inspect any psychiatric hospital or psychiatric nursing home and require the production of any records, which are required to be kept in accordance with the rules made in this behalf, for inspection: Provided that any personal records of a patient so inspected shall be kept confidential except for the purposes of sub-section (3).

  • The Inspecting Officer may interview in private any patient receiving treatment and care therein - 

    • For the purpose of inquiring into any complaint made by or on behalf of such patient as to the treatment and care.
    • In any case, where the Inspecting Officer has reason to believe that any in-patient is not receiving proper treatment and care.
    • Where the Inspecting Officer is satisfied that any in-patient in a psychiatric hospital or psychiatric nursing home is not receiving proper treatment and care, he may report the matter to the licensing authority and thereupon the licensing authority may issue such direction as it may deem fit to the medical officer-in-charge of the licensee of the psychiatric hospital, or, as the case may be, the psychiatric nursing home and every such medical officer-in-charge or licensee shall be bound to comply with such directions.

COMMENT 

This section empowers an Inspecting Officer to inspect psychiatric hospitals / nursing homes, records thereof and to visit and interview patients receiving treatment and care therein.

14. TREATMENT OF OUT- PATIENT - 

Provision shall be made in every psychiatric hospital or psychiatric nursing homes for such facilities as may be prescribed for the treatment of every mentally ill - persons, patients or who, for the time being, is not undergoing treatment as in - patients.

COMMENT 

This section makes, provision for the treatment of mentally ill persons in the psychiatric hospital / nursing home, as an out - patients, in case his condition dies not warrant his admission or an in - patient.

Chapter IV - Admission and Detention in Psychiatric Nursing Home

Part I - Admission on Voluntary Basis

15. REQUEST BY MAJOR FOR ADMISION AS VOLUNTARY PATIENTS 

Any persons (not being a minor), who considers himself to be a mentally ill person and desires to be admitted to any psychiatric nursing home for treatment, may request the medical officer in charge for being admitted as a voluntary patient.

COMMENT 

This section makes provision for admission to a psychiatric hospital / nursing home for Treatment as a voluntary patient on request by a major mentally ill person.

16. REQUEST BY GUARDIAN FOR ADMISSION OF A WARD- 

Where the guardian of a minor considers such minor to be a mentally ill person and desires to admit such minor in any psychiatric hospital or psychiatric nursing home for treatment, he may request the medical officer-in-charge for admitting such minor as a voluntary patient.

COMMENT 

This section makes provision for admission of a minor mentally ill person to a psychiatric hospital/nursing home for treatment as a voluntary patient, on request by guardian of such minor.

17. ADMISSION OF, AND REGULATION WITH RESPECT TO,VOLUNTARY PATIENTS- 

  • On receipt of a request under Sec.15 or Sec.16, the medical officer-in-charge shall make such inquiry as he may deem fit within a period not exceeding twenty- four hours and if satisfied that the applicant or, as the case may be, the minor requires treatment as an in - patients in the psychiatric hospital or psychiatric nursing home, he may admit therein such application or, as the case may be, minor as a voluntary patient.

  • Every voluntary patient admitted to a psychiatric hospital or psychiatric nursing home shall be bound to abide by such regulations as may be made by the medical officer - in - charge or the licensee of the psychiatric hospital or psychiatric nursing home.

This section deals with the matter relating to admission of, and regulation with respect to voluntary patients.

18. DISCHARGE OF VOLUNTARY PATIENTS - 

  • The medical officer-in-charge of a psychiatric hospital or psychiatric nursing home shall, on a request made in that behalf -

    • By any voluntary patient; and 
    • By the guardian of the patient, if he is a minor voluntary patient, discharge, subject to the provisions of sub-section (3) and within twenty-four hours of the receipt of such request, the patient from the psychiatric hospital or psychiatric nursing home.

  • Where a minor voluntary patient who is admitted as an in-patient in any psychiatric hospital or psychiatric nursing home attains majority, the medical officer-in-charge of such hospital or nursing home, shall, as soon as may be, intimate the patient that he has attained majority and that unless a request for his continuance as an in-patient is made by him within a period of one month of such intimation, he shall be discharged, and if, before the expiry of the said period, no request is made to the medical officer-in-charge for his continuance as an in-patient, he shall, subject to the provisions of sub-section (3), be discharged on the expiry of the said period.

  • Notwithstanding anything contained in sub-section (1) or sub-section (2) where the medical officer-incharge of a psychiatric hospital or psychiatric nursing home is satisfied that the discharge of a voluntary patient under sub-section (1) or sub-section (2) will not be in the interest of such voluntary patient, he shall, within seventy-two hours of the receipt of a request under sub-section (1), or, if no request under sub-section (2) has been made by the voluntary patient before the expiry of the period mentioned in that sub-section within seventy-two hours of such expiry constitute a Board consisting of two medical officers and seek its opinion as to whether such voluntary patient needs further treatment and if the Board is of the opinion that such voluntary patient needs further treatment in the psychiatric hospital or psychiatric nursing home the medical officer shall not discharge the voluntary patient, but continue his treatment for a period not exceeding ninety days at a time.

COMMENT 

This section lays down the procedure for discharge of voluntary patient from the psychiatric hospital or psychiatric nursing home.

Chapter IV - Admission and Detention in Psychiatric Nursing Home

Part II - Admission under Special Circumstances

19. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN SPECIAL CIRCUMTANCES- 

Any mentally ill persons who does not, or is unable to, express his willingness for admission as a voluntary patient, may be admitted and kept as an in-patient in a psychiatric nursing hospital or psychiatric nursing home on an application made in that behalf by a relative or a friend of the mentally ill persons if the medical officers-in-charge is satisfied that in the interest of the mentally ill persons it is necessary so to do:

COMMENT 

This section deals with the matters relating to admission of, and regulation with respect to voluntary patients.

20. DISCHARGE OF VOLUNTARY PATIENTS- 

  • The medical officers-in-charge of a psychiatric hospital or psychiatric nursing home shall, on a request made in that behalf

    • By any voluntary patients; and 
    • By the guardian of the patient, if he is a minor voluntary patients, discharge, subject to the provisions of sub-section (3) and within twenty-four hours of the receipt of such request, patients from the psychiatric hospitals or psychiatric nursing home.

  • Where a minor voluntary patients who is admitted as an in-patient in any psychiatric hospital or psychiatric nursing home attains majority, the medical officer-in- charge of such hospital or nursing home shall, as soon as may be, intimate the patient that he has attained majority and that unless a request for his continuance as an in-patient is made by him within a period of one month of such intimation, he shall be discharged, and if, before the expiry of the said period, no request is made to the medical officer-in-charge for his continuance as an in-patients, he shall, subject to the provisions of sub-section (3), be discharged on the expiry of the said period.

  • Notwithstanding anything contained in sub-section (1) or sub-section (2), where the medical officers-in-charge of a psychiatric hospital or psychiatric nursing home is satisfied that the discharge of a voluntary patients under sub-section (1) or sub-section (2) will not be in the interest of such voluntary patient, he shall, within seventy-two hours of the receipt of a request under sub-section (1) or, if no request under sub-section (2) has been made by the voluntary patient before the expiry of the period mentioned in that sub-section within seventy-two hours of such expiry constitute a Board consisting of two medical officers and seek its opinion as to whether such voluntary patient needs further treatment and if the Board is of the opinion that such voluntary patient needs further treatment in the psychiatric hospital or psychiatric nursing home the medical officer shall not discharge the voluntary patient, but continue his treatment for a period not exceeding ninety days at a time.

COMMENT 

This section lays down the procedure for discharge of voluntary patient from the psychiatric hospital or psychiatric nursing home.

21. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN SPECIAL CIRCUMSTANCES- 

  • Any mentally ill person who does not, or is unable to, express his willingness for admission as a voluntary patient, may be admitted and kept as an in-patient in a psychiatric hospital or psychiatric nursing home on an application made in that behalf by a relative or a friend of the mentally ill person if the medical officer-in-charge is satisfied that in the interests of the mentally ill person it is necessary so to do;

    Provided that no person so admitted as an in-patient shall be kept in the psychiatric hospital or psychiatric nursing home as an in-patient for a period exceeding ninety days except in accordance with the other provisions of the Act.

    • Every application under sub-section (1) shall be in the prescribed form and be accompanied by two medical certificates, from two medical practitioners of whom one shall be a medical practitioner in the service of Government, to the effect that the condition of such mentally ill person is such that he should be kept under observation and treatment as an in-patient in a psychiatric hospital or psychiatric nursing home;

      Provided that the medical officer, in charge of the psychiatric hospital or psychiatric nursing home concerned may, if satisfied that it is proper so to do, cause a mentally ill person to be examined by two medical practitioners working in the hospital or in the nursing home instead of requiring such certificates.

    • Any mentally ill person admitted under sub-section (1) or his relative or friend may apply to the Magistrate for his discharge and the Magistrate may, after giving notice to the person at whose instance he was admitted to the psychiatric hospital or psychiatric nursing home and after making such inquiry as he may deem fit either allow or dismiss the application.

    • The provisions of the foregoing sub-section shall be without prejudice to the powers exercisable by a Magistrate before whom the case of a mentally ill person is brought, whether under this section or under any other provision of this Act, to pass a reception order, if he is satisfied that it is necessary so to do in accordance with the relevant provision of this Act.

COMMENT 

This section makes provision for admission of mentally ill persons to a psychiatric hospital/nursing home, under special circumstances. No person shall however be kept there as in-patient for a period exceeding ninety days, except in accordance with the other provisions of this Act.

Chapter IV - Admission and Detention in Psychiatric Nursing Home

Part III - Reception Orders

22. APPLICATION FOR RECEPTION ORDER 

  • An application for a reception order may be made by - 

    • The medical officer-in-charge of a psychiatric hospital or psychiatric nursing home, or 
    • By the husband, wife or any other relative of the mentally ill person. 

  • Where a medical officer-in-charge of a psychiatric hospital or psychiatric nursing home in which a mentally ill- person is undergoing treatment under a temporary treatment order is satisfied that -

    • The mentally ill person is suffering from mental disorder of such a nature and degree that his treatment in the psychiatric hospital or as the case may be, psychiatric nursing home is required to be continued for more than six months, or
    • It is necessary in the interests of the health and personal safety of the mentally ill person or for the protection of others that such person shall be detained in a psychiatric hospital or psychiatric nursing home.
    • He may make an application to the Magistrate within the local limits of whose jurisdiction the psychiatric hospital or, as the case may be, psychiatric nursing home is situated, for the detention of such mentally ill-person under a reception order in such psychiatric hospital or psychiatric nursing home, as the case may be.
    • Subject to the provisions of sub-section (5), the husband or wife of a person who is alleged to be mentally ill or, where there is no husband or wife, or where the husband or wife is prevented by reason of any illness or absence from India or otherwise from making the application, any other relative of such person may make an application to the Magistrate within the local limits of whose jurisdiction the said person ordinarily resides, for the detention of the alleged mentally ill-person under a reception order in a psychiatric hospital or psychiatric nursing home.
    • Where the husband or wife of the alleged mentally ill person is not the applicant, the application shall contain the reasons for the application not being made by the husband or wife and shall indicate the relationship of the applicant with the alleged mentally ill person and the circumstances under which the application is being made.
    • No person - 
      • Who is a minor, or 
      • Who , within fourteen days before the date of the application, has not seen the alleged mentally ill person, shall make an application under this section.

  • Every application under sub-section (3) shall be made in the prescribed form and shall be signed and verified in the prescribed manner and shall state whether any previous application had been made for inquiry into the mental condition of the alleged mentally ill person and shall be accompanied by two medical certificates from two medical practitioners of whom one shall be a medical practitioner in the service of Government.

COMMENT 

This section details the procedure for disposal of application for reception order.

23. FORM AND CONTENTS OF MEDICAL CERTIFICATES - 

  • Every medical certificate referred to in sub-section (6) of Sec. 20 shall contain a statement - 

    • That each of the medical practitioner referred to in that sub-section has independently examined the alleged mentally ill person and has formed his opinion on the basis of his own observations and from the particulars communicated to him;
    • That in the opinion of each such medical practitioner the alleged mentally ill person is suffering from mental disorder of such a nature and degree as to warrant the detention of such person in a psychiatric hospital or psychiatric nursing home and that such detention is necessary in the interests of the health and personal safety of that person or for the protection of others.

COMMENTS 

The section prescribes form and contents of medical certificates. 

24. PROCEDURE UPON APPLICATION FOR RECEPTION ORDER 

  • On receipt of an application under sub-section (2) of Sec. 20, the Magistrate may make a reception order, if he is satisfied that -

    • The mentally ill person is suffering from mental disorder of such a nature and degree that it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment; or
    • It is necessary in the interests of the mental and personal safety of the mentally ill person or for the protection of others that he should be so detained, and a temporary treatment order would not be adequate in the circumstances of the case and it is necessary to make a reception order.

  • On receipt of an application under sub-section 

  • Of Section.20, the Magistrate shall consider the statements made in the application and the evidence of mental illness as disclosed by the medical certificates.

  • If the Magistrate considers that there are sufficient grounds for proceeding further, he shall personally examine the alleged mentally ill person unless, for reasons to be recorded in writing, he thinks that it is not necessary or expedient to do so.

  • If the Magistrate is satisfied that a reception order may properly be made forthwith, he may make such order, and if the Magistrate is not so satisfied, he shall fix a date for further consideration of the application and may make such inquiries concerning the alleged mentally ill-person as he thinks fit.

  • The notice of the date fixed under sub-section (4) shall be given to the applicant and to any other person to whom, in the opinion of the Magistrate such notice shall be given.

  • If the Magistrate fixes a date under sub-section (4) for further consideration of the application, he may make such order as he thinks fit, for the proper care and custody of the alleged mentally ill person pending disposal of the application.

  • On the date fixed under sub-section (4), or on such further date as may be fixed by the Magistrate, he shall proceed to consider the application in camera, in the presence of -

    • The applicant: 
    • The alleged mentally ill person (unless the Magistrate in his discretion otherwise directs); 
    • The person who may be appointed by the alleged mentally ill person to represent him; and 
    • Such other person as the Magistrate thinks fit.

      and if the magistrate is satisfied that the alleged mentally ill person, in relation to whom the application is made, is so mentally ill that in the interests of the health and personal safety of that person or for the protection of others it is necessary to detail him in a psychiatric hospital or psychiatric nursing home for treatment, he may pass a reception order for that purpose and if he is not so satisfied, he shall dismiss the application and any such order may provide for the payment of the costs of the inquiry by the applicant personally or from out of the estate of the mentally ill person, as the Magistrate may deem appropriate.

  • If any application is dismissed under sub-section(7), the Magistrate shall record the reasons for such dismissal and a copy of the order shall be furnished to the applicant.

COMMENT 

This section lays down the procedure for disposal of application for a reception order.

B- Reception orders on production of mentally ill Persons before Magistrate

25. POWERS AND DUTIES OF POLICE OFFICERS IN RESPECT OF CERTAIN MENTALLY ILL PERSONS -

  • Every officer in charge of a police station - 

    • May take or cause to be taken into protection any person found wandering at large within the limits of his station whom he has reason to believe to be so mentally ill as to be incapable of taking care of himself, and
    • Shall take or cause to be taken into protection any person within the limits of his station whom he has reason to believe to be dangerous by reason of mental illness.

  • No person taken into protection under sub-section (1) shall be detained by the police without being informed, as soon as may be, of the grounds for taking him into such protection, or where, in the opinion of the officer taking the person into protection, such person is not capable of understanding those grounds, without his relatives or friends, if any, being informed of such grounds.

  • Every person who is taken into protection and detained under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of taking him into such protection excluding the time necessary for the journey from the place where he was taken into such protection of the Court of the Magistrate and shall not be detained beyond the said period without the authority of the Magistrate.

COMMENT 

This section empowers the police officer in charge of a police station to take action in respect of certain mentally ill persons.

26. PROCEDURE ON PRODUCTION OF MENTALLY ILL PERSON- 

  • If a person is produced before the Magistrate under sub-section (3) of Sec.23, and if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall -

    • Examaine the person to assess his capacity to understand. 
    • Cause him to be examined by a medical officer, and 
    • Make such inquiries in relation to such person as he may deem necessary. 

  • After the completion of the proceeding under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said person as an in-patient in a psychiatric hospital or psychiatric nursing home -

    • If the medical officer certifies such person to be a mentally ill person, and 
    • If the Magistrate is satisfied that the said person is a mentally ill person and that in the interest of the health and personal safety of that person or for the protection of others, it is necessary to pass such order.

      Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or licensed psychiatric nursing home for treatment therein and undertakes in writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the Magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein;
       
      Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend.

COMMENT 

This section lays down procedure on production of mentally ill person before a Magistrate.

27. ORDER IN CASE OF MENTALLY ILL PERSON CRUELLY TREATED OR NOT UNDER PROPER CARE AND CONTROL -

  • Very officer in charge of a police station is mentally ill and is not under proper care and control, or is mentally ill person, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the mentally ill person resides.

  • Any private person who has reason to believe that any person is mentally ill and is not under proper care and control,, or is ill-treated or neglected by any relative or other person having charge of such mentally ill person, may report the fact to the Magistrate within the local limits of whose jurisdiction the mentally ill person resides.

  • If it appears to the Magistrate, on the report of a police officer or on the report or information derived from any other person, or otherwise that any mentally ill person within the local limits of his jurisdiction is not under proper care and control, or is ill-treated or neglected by any relative or other person having the charge of such mentally ill person, the Magistrate may cause the mentally ill person to be produced before him, and summon such relative or other person who is, or who ought to be in charge of, such mentally ill person.

  • If such relative or any other person is legally bound to maintain the mentally ill person, the Magistrate may, by order, require the relative or the other person to take proper care of such mentally ill person and where such relative or other person willfully neglects to comply with the said order, he shall be punishable with fine which may extend to two thousand rupees.

  • If there is no person legally bound to maintain the mentally ill person, or if the person legally bound to maintain the mentally ill person refuses or neglects to maintain such person, or if, for any other reason, the Magistrate thinks fit so to do, he may cause the mentally ill person to be produced before him and, without prejudice to any action that may be taken under sub -section (4) , proceed in the manner provided in Sec.24 as if such person had been produced before him under sub-section (3) of Sec. 23.

COMMENT 

In case the Magistrate, within the local limits of whose jurisdiction the mentally ill person resides, comes to know that the said mentally ill person is being ill treated, neglected or cruelly treated, he is empowered under this section, to pass orders requiring the relative or other person to take care of such mentally ill person. This section also makes provision for punishment in case of non-compliance of the aforesaid orders.

C - Further provisions regarding admission and detention of certain mentally ill persons.

28. ADMISSION AS IN-PATIENT AFTER INQUISITION - 

If any District Court holding an inquisition under Chapter VI regarding any person who is found to be mentally ill is of opinion that it is necessary so to do in the interests of such person, it may ,by order, direct that such person shall be admitted and kept as an in-patient in a psychiatric hospital or psychiatric nursing home and every such order may be varied from time to time or revoked by the District court.

COMMENT 

This section provides for admission of mentally ill person as in-patient in a psychiatric hospital or psychiatric nursing home.

29. ADMISSION AND DETENTION OF MENTALLY ILL PPRISONER - 

An order under Sec. 30 of the Prisoners Act, 1900 (3 of 1900) or under Sec. 144 of the Air Force Act, 111950 (45 of 1950), or under Sec. 145 of the Army Act 1950 (46 of 1950), or under Sec. 143 or Sec. 144 of the Navy Act, 1957 (62 of 1957), or under Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 ( 2 of 1974), directing the reception of a mentally il prisoner into any psychiatric hospital or psychiatric nursing home, shall be sufficient authority for the admission of such person in such hospital or, as the case may be, such nursing home or any other psychiatric hospital or psychiatric nursing home to which such person may be lawfully transferred for detention therein.

COMMENT 

This section provides for admission of mentally ill prisoner into any psychiatric hospital or psychiatric nursing home.

30. DETENTION OF ALLEGED MENTALLY ILL PERSON PENDING REPORT BY MEDICAL OFFICER - 

  • When any person alleged to be a mentally ill person appears or is brought before a Magistrate under Sec. 23 or Sec. 25, the Magistrate may, by order in writing, authorise the detention of the alleged mentally ill person under proper medical custody in an observation ward of a general hospital or general nursing home or psychiatric hospital of psychiatric nursing home or in any other suitable place for such period not exceeding ten days as the Magistrate may consider necessary for enabling any medical officer to determine whether a medical certificate in respect of that alleged mentally ill person may properly be given under Cl. (a) of sub-section (2) of Sec.24.

  • The Magistrate may, from time to time, for the purpose mentioned in sub-section (1), by order in writing, authorise such further detention of the alleged mentally ill person for periods not exceeding 10 day at a time as he may deem necessary:

    Provided that no person shall be authorised to be detained under this sub-section for a continuous period exceeding thirty days in the aggregate.

COMMENTS 

This section provides for detention of the alleged mentally ill person under proper medical custody pending receipt of medical report. The period of such detention should not exceed a period of ten days at a time and thirty days in the aggregate.

SCOPE OF THE SECTION - The provision which the Magistrate could probably have thought of to justify his action is Sec. 16 of the Lunacy Act (since repealed by this Act). No other provision gives him the power of detention before adjudging a person as lunatic. Section 16(1) confers jurisdiction on a Magistrate to deal with a person who is alleged to be lunatic when he is brought before the Magistrate under the provisions of Sec. 13 of Sec.15. Such a person can be detained by an order of the Magistrate, "for such time not exceeding 10 days as may be, in his opinion necessary to enable the medical officer to determine whether such alleged lunatic is a person in respect of whom a medical certificate may be properly given". The proviso to sub-section (2) imposes a ban on the Magistrate against extension of the period of detention beyond a total period of 30 days1.

31. DETENTION OF MENTALLY ILL PERSON PENDING HIS REMOVAL TO PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME -

Whenever any reception order is made by a Magistrate under Sec. 22, Sec. 234 or Sec. 25, he may by reasons to be recorded in writing, direct that he mentally ill person in respect of whom the order is made may be detained for such period not exceeding thirty days in such place as he may deem appropriate. Pending the removal of such person to a psychiatric hospital or psychiatric nursing home.

COMMENT 

This section empowers a Magistrate to issue directions for detention of mentally ill person for a period not exceeding thirty days in an appropriate place, pending this removal to psychiatric hospital or psychiatric nursing home;

D - Miscellaneous provision in relation to orders under this chapter.

32. TIME AND MANNER OF MEDICAL EXAMINATION OF MENTALLY ILL PATIENT - 

  • Where any other order under this Chapter is required to be made on the basis of a medical certificate, such order shall not be made unless the person who has signed the medical certificate, or where such order is required to be made on the basis of two medical certificates, the signatory of the respective certificates, has certified that he has personally examined the alleged mentally ill person -

    • In the case of an order made on an application, not earlier than ten clear days immediately before the date on which such application is made; and
    • In any other case, not earlier than ten clear days immediately before the date of such order;

Provided that where a reception order is required to be made on the basis of two medical certificates such order shall not be made unless the certificates show that the signatory of each certificate examined the alleged mentally ill person independently of the signatory of the other certificate.

COMMENT 

This section prescribes the time and manner of medical examination of mentally ill person.

33. AUTHORITY FOR RECEPTION ORDER - 

  • A reception order made under this Chapter shall be sufficient authority - 

    • For the applicant or any person authorised by him, or 
    • In the case of a reception order made otherwise than on an application, for the person authorised so to do by the authority making this order.

To take the mentally ill person to the place mentioned in such order or for his admission and treatment as an in-patient in the psychiatric hospital or psychiatric nursing home specified in the order or, as the case may be, for his admission and detention, therein or in any psychiatric hospital or psychiatric nursing home to which he may be removed in accordance with the provisions of this Act, and the medical officer-in-charge shall be bound to comply with such order:

Provided that in any case where the medical officer-in-charge finds accommodation in the psychiatric hospital or psychiatric nursing home inadequate,, he shall, after according admission, intimate that fact to the Magistrate or the District Court which passed the order and thereupon the Magistrate or the District Court, as the case may be, shall pass such order as he or it may deem fit:

  • Provided further that every reception order shall cease to have effect -

    • On the expiry of thirty days from the date on which it was made, unless within that period, the mentally ill person has been admitted to the place mentioned therein, and
    • On the discharge, in accordance with the provisions of this Act, of the mentally ill person, 

COMMENT 

This section makes provision for sufficient authority for a reception order. It shall however cease to have effect on the expiry of thirty days from the date of the order or on the discharge of the mentally ill person.

34. COPY OF RECEPTION ORDER TO BE SENT TO MEDICAL OFFICER-IN-CHARGE - 

Every Magistrate or District Court making a reception order shall forthwith send a certified copy thereof together with copies of the requisite medical certificates and the statement of particulars to the medical officer in charge of the psychiatric hospital or psychiatric nursing home to which the mentally ill person is to be admitted.

COMMENT 

This section makes provision for supply of certified copy of reception order to medical officer in charge of psychiatric hospital or psychiatric nursing home.

35. RESTRICTION AS TO PSYCHIATRIC HOSPITALS AND PSYCHIATRIC NURSING HOMES INTO WHICH RECEPTION ORDER MAY DIRECT ADMISSION

No Magistrate or District Court shall pass a reception order for the admission as an in-patient to, or for the detention of any mentally ill person, as an in-patient to, or for the detention of any mentally ill person, in any psychiatric hospital or psychiatric nursing home outside the State in which the Magistrate or the District Court exercises jurisdiction:

Provided that an order for admission or detention into or in a psychiatric hospital or psychiatric nursing home situated in any other State may be passed if the State Government has by general or special order and after obtaining the consent of the Government of such other State, authorised the Magistrate or the District Court in that behalf.

COMMENT 

This section imposes restriction to the passage of reception order for admission or detention of any mentally ill person, as an in-patient in any psychiatric hospital or psychiatric nursing home outside the State, unless the State Government has by general or special order authorised for the same.

36. AMMENDMENT OF ORDER OR DOCUMENT 

If, after the admission of any mentally ill person to any psychiatric hospital or psychiatric nursing home under a reception order, it appears that the order under which he was admitted or detained or any of the documents on the basis of which such order was made defective or incorrect, the same may, at any time thereafter be amended with the permission of the Magistrate or the District Court, by the person or persons who signed the same and upon such amendment being made, the order shall have effect and shall be deemed always to have had effect as if it had been originally made as so amended, or, as the case be, the documents upon which it was made had been originally furnished, also amended.

COMMENT 

This section makes provision for amendment of order or document in case it is detected that any of the documents on the basis of which such order was made is defective or incorrect.

37. POWER TO APPOINT SUBSTITUTE FOR PERSON UPON WHOSE APPLICATION RECEPTION ORDER HAS BEEN MADE -

  • Subject to the provisions of this section the Magistrate may, by order in writing (hereinafter referred to the orders of substitution), transfer the duties and responsibilities under this Act, of the person on whose application a reception order was made, to any other person who is willing to undertake the same and such other person shall thereupon be deemed for the purposes of this Act to be the person on whose application the reception order was made and all references in this Act to the latter person shall be construed accordingly:

    Provided that no such order of substitution shall absolve the person upon whose application the reception order was made or, if he is dead, his legal representatives, from any liability incurred before the date of the order of substitution.

  • Before making any order of substitution, the Magistrate shall send a notice to the person on whose application the reception order was made if he is alive, and to any relative of the mentally ill person who, in the opinion of the Magistrate, shall have notice.

  • The notice under sub-section (2) shall specify the name of the person in whose favour it is proposed to make the order of substitution and the date (which shall be not less than twenty days from the date of issue of the notice) on which objections, if any, to the making of such order shall be considered.

  • On the date specified under sub-section (3), or on any subsequent date to which the proceedings may be adjourned, the Magistrate shall consider any objection made by any person to whom notice was sent or by any other relative of the mentally ill person, and shall receive all such evidence as may be produced by or on behalf of any such person or relative and after making such inquiry as the Magistrate may deem fit make or refrain from making the order of substitution:

    Provided that, if the person on whose application the reception order was made is dead and any other person is willing and is, in the opinion of the Magistrate, fit to undertake the duties and responsibilities under this Act of the former person, the Magistrate shall, subject to the provisions contained in the proviso to sub-section (1), make an order to that effect.

  • In making any substitution order under this section, the Magistrate shall give preference to the person who is the nearest relative of the mentally ill person, unless, for reasons to be recorded in writing the Magistrate considers that giving such preference will not be in the interests of the mentally ill person.

  • The Magistrate may make such order for the payment of the costs of an inquiry under this section by any person or from out of the estate of the mentally ill person as he thinks fit.

  • Any notice under sub-section (2) may be sent by post to the last known address of the person for whom it is intended.

COMMENTS 

This section empowers Magistrate to appoint substitute for a person upon whose application reception order has been made.

Proviso - A proviso to a section is not independent of the section calling for independent of the section calling for independent consideration or construction detached from the construction to be placed on the main section as it is merely subsidiary to the main section and is to be construed in the light of the section itself1.

It is settled that a proviso cannot expand or limit the clear meaning of the main provision2.

38. OFFICERS COMPETENT TO EXERCISE POWERAS AND DISCHARGE FUNCTIONS OF MAGISTRATE UNDER CERTAIN SECTIONS -

In any area where a Commissioner of Police has been appointed, all the powers and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner of Police and all the functions of an officer-in-charge of a police station under this Act may be discharged by any police officer not below the rank of an Inspector.

COMMENTS 

Under the provisions of this section all the powers and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner of Police in the area where the said office is appointed.

COMMISSIONER, IF INCLUDES "DEPUTY" OR "ASSISTANT" - It is clear that in the present case the Deputy Commissioner who acted in the matter had no power under Sec.17 of the Lunacy Act (since repealed by this Act). In any case, no such power could be conferred upon him even by the State Government. Because Lunacy Act, (since repealed by this Act) has not reognized conferment of such power upon any Deputy or Assistant to the Commissioner1.

Chapter V - Inspection, Discharge, Leave of Absence and Removal of Mentally ill persons

Part I - Inspection

39. APPOINTMENT OF VISITORS - 

The State Government or the Central Government, as the case may be, shall appoint for every psychiatric hospital and every psychiatric nursing home, not less than five visitors, of whom at least one shall be a medical officer, preferably a psychiatrist and two social workers.

  • The head of the Medical Services of the State or his nominee preferably a psychiatrist be an ex officio visitor of all the psychiatrist hospital and psychiatric nursing homes in the State.

  • The qualifications of persons to be appointed as visitors under sub-section (1) and the terms and conditions of their appointment shall be such as may be prescribed.

COMMENT 

This section makes provision for appointment of visitors for every psychiatric hospital/nursing home. The number of visitors should not be less than five, of whom at least one should be a psychiatrist or at least a medical officer and two social workers.

40. MONTHLY INSPECTION BY VISITORS - 

Not less than three visitors shall at least once in every month, make a joint inspection of every part of the psychiatric hospital or psychiatric nursing home in respect of which they have been appointed and examine every minor admitted as a voluntary patient under Sec 17 and, as far as circumstances will permit, every other mentally ill person admitted therein and the order for the admission of and subsequent to the joint inspection immediately preceding, and shall enter in a book kept for that purpose such remarks as they deem appropriate in regard to the management and condition of such hospital or nursing home and of the in-patient thereof:

Provided that the visitors shall not be entitled to inspect any personal records of an in-patient which in the opinion of the medical officer-in-charge are confidential in nature:

Provided further that if any of the visitors does not participate in the joint inspection of the psychiatric hospital or psychiatric nursing home in respect of which he was appointed a visitor for three consecutive months, he shall cease to hold office as such visitor.

COMMENT 

This section provides for monthly joint inspection by not less than three visitors of the psychiatric hospital/nursing home, for which they have been appointed, and for recording their remarks in respect of the management and condition of such hospital or nursing home and of the in-patients thereof visitors are not empowered to inspect personal records of in-patients.

41. INSPECTION OF MENTALLY ILL PRISONERS - 

  • Notwithstanding anything contained in Sec. 38, where any person is detained under the provisions of Sec. 144 of the Air Force Act, 1950 (45 of 19150), or Sec. 145 of the Army Act, 1950 (46 of 1950), or Sec. 143 or Sec. 144 of the Navy Act 1957 (62 of 19957) or Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 ( 2 of 1974) -

    • The Inspector-General of Prisons, where such person is detained in a jail ; and 
    • All or any three of the visitors including at least one social worker appointed under sub-section (1) of Sec. 37, where such person is detained, in a psychiatric hospital or psychiatric nursing home.

  • Shall, once in every three months visit such person at the place where he is detained, in order to assess the state of mind of such person and make a report thereon to the authority under whose order such person is so detained.

  • The State Government may empower any of its officers to discharge all or any of the functions of the Inspector-General of Prisons under Sub-section (1).

  • The medical officer in charge of a psychiatric hospital or psychiatric nursing home wherein any person referred to in sub-section (1) is detained, shall once in every six months, make a special report regarding the mental and physical condition of such person to the authority under whose order such person is detained.

  • Every person who is detained in jail under the provisions of various Acts referred to in sub-section (1) shall be visited at least once in every three months by a psychiatrist, or where a psychiatrist is not available, by a medical officer empowered by the state Government in this behalf and such psychiatrist or, as the case may be, such medical officer shall make a special report regarding the mental and physical condition of such person to the authority under whose order such person is detained.

COMMENT 

This section makes provision for inspection of mentally ill prisoners.

Chapter V - Inspection, Discharge, Leave of Absence and Removal of Mentally ill persons

Part II - Discharge

42. ORDER OF DISCHARGE BY MEDICAL OFFICER-IN-CHARGE - 

  • Notwithstanding anything contained in Chapter IV., the medical officer-in-charge of a psychiatric hospital or psychiatric nursing home may, on the recommendation of two medical practitioners one of whom shall preferably be a psychiatrist, by order in writing, direct the discharge of any person other than a voluntary patient detained or undergoing treatment therein as an in-patient, and such person shall thereupon be discharged from the psychiatric hospital or psychiatric nursing home:

    Provided that no order under this sub-section shall be made in respect of a mentally ill prisoner otherwise than as provided in Sec.30 of the Prisoner Act, 1900 (3 of 1900),or in any other relevant law.

  • Where any order of discharge is made under sub-section (1)in respect of a person who had been detained or is undergoing treatment as in-patient in pursuance of an order off any authority , a copy of such hospital/nursing home.

43. DISCHARGE OF MENTALLY ILL PERSONS ON APPLICATION - 

Any person detained in a psychiatric hospital or psychiatric nursing home under an order and in pursuance of an application made under this Act, shall be discharged on an application made in that behalf to the medical officer in charge by the person on whose application the order was made;

Provided that no person shall be discharged under this section if the medical officer in charge certifies in writing that the person is dangerous and unfit to be at large.

COMMENT 

This section lays down that mentally ill persons be discharged on application, from a psychiatric hospital/nursing home and that no person be discharged unless the medical officer certifies for the same.

44. ORDER OF DISCHARGE ON THE UNDERTAKING OF RELATIVES OR FRIENDS ETC., FOR DUE CARE OF MENTALLY ILL PERSON

  • Where any relative of friend of a mentally ill person detained in a psychiatric hospital or psychiatric nursing home under Sec. 22, Sec. 24 or Sec. 25 desires that such person shall be delivered over to his care and custody, he may make an application to the medical officer-in-charge who shall forward it together with his remarks thereon to the authority under whose orders the mentally ill person is detained.

  • Where an application is received under sub-section (1), the authority shall, on such relative or friend furnishing a bond, with or without sureties, for such amounts as such authority may specify in this behalf, undertaking to take proper care of such mentally ill person, and ensuring that the mentally ill person shall be prevented from causing injury to himself or to others, make an order of discharge and thereupon the mentally ill person shall be discharged.

COMMENT 

The section makes provision for discharge of mentally ill person from the psychiatric hospital or psychiatric nursing home on the undertaking of relatives or friends for due care of such mentally ill person.

45. DISCHARGE OF PERSON ON HIS REQUEST - 

  • Any person (not being a mentally ill prisoner) detained in pursuance of an order made under this Act who feels that he has recovered from his mental illness, may make an application to the Magistrate, where necessary under the provisions of this Act, for his discharge from the psychiatric hospital or psychiatric nursing home.

  • An application made under sub-section (1) shall be supported by a certificate either from the medical officer incharge of the psychiatric hospital or psychiatric nursing home where the applicant is undergoing treatment or from a psychiatrist;

  • The Magistrate may, after making such inquiry as he may deem fit, pass an order discharging the person or dismissing the application.

COMMENT 

This section makes provision for the discharge of mentally ill person from psychiatric hospital or psychiatric nursing home, on his request. This section does not apply to a mentally ill prisoner.

46. DISCHARGE OF PERSON SUBSEQUENTLY FOUND ON INQUISITION TO BE OF SOUND MIND - 

If any person detained in a psychiatric hospital or psychiatric nursing home in pursuance of a reception order made under this Act is subsequently found, on an inquisition held in accordance with the provisions of Chapter VI, to be of sound mind or capable of taking care of himself and managing his affairs, the medical officer-in-charge shall forthwith, on the production of a copy of such finding duly certified by the District Court, discharge such person from such hospital or nursing home.

COMMENT 

This section deals with the matter relating to discharge of person, detained in a psychiatric hospital or psychiatric nursing home, subsequently found to be of sound mind

Chapter V - Inspection, Discharge, Leave of Absence and Removal of Mentally ill persons

Part III - Leave of Absence

47. LEAVE OF ABSENCE 

  • An application for leave of absence on behalf of any mentally ill person (not being a mentally ill prisoner) undergoing treatment as an in-patient in any psychiatric hospital or psychiatric nursing home may be made to the medical officer-inc-charge,

    • In the case of a person who was admitted on the application of the husband or wife, by the husband or wife of such mentally ill person, or where by reason of mental or physical illness, absence from India or otherwise, the husband or wife is not in a position to make such application, by any other relative of the mentally ill person duly authorised by the husband or wife, or
    • In the case of any other person, by the person on whose application the mentally ill person was admitted.

      Provided that no application under this sub-section shall be made by a person who has not attained the age of majority.

  • Every application under sub-section (1) shall be accompanied by a bond, with or without sureties for such amount as the medical officer-in-charge may specify, undertaking -

    • To take proper care of the mentally ill person, 
    • To prevent the mentally ill person from causing injury to himself or to others, and 
    • To bring back the mentally ill person to the psychiatric hospital, or , as the case may be, psychiatric nursing home, on the expiry of the period of leave.

  • On receipt of an application under sub -section (1), the medical officers-in-charge may grant leave of absence to the mentally ill persons for such period as the medical officers-in-charge may deem necessary and subject to such condition as may, in the interests of the protection of others, be specified in the order :

    Provided that the total number of days for which leave of absence may be granted to a patient under this sub-section shall not exceed sixty days.

  • Where the mentally ill persons is not brought back to the psychiatric hospital or psychiatric nursing home on the expiry of the leave granted to him under this section the medical officer-in-charge shall forthwith report that fact to the Magistrate within the local limits of whose jurisdiction such hospital or nursing home is situate and the Magistrate may, after making such inquiry as he may deem fit, make an order directing him to be brought back to the psychiatric hospital or psychiatric nursing home, as the case may be,

48. GRANT OF LEAVE OF ABSENCE BY MAGISTRATE - 

  • Where the medical officer-in-charge refuses to grant leave of absence to a mentally ill person under Sec. 45, the applicant may apply to the Magistrate within the local limits of whose jurisdiction the psychiatric hospital or psychiatric nursing home wherein the mentally ill person is detained is situate, for the grant of leave of absence to the mentally ill person and the Magistrate may if he is satisfied that it is necessary so to do, and on the applicant entering into a bond in accordance with the provisions of sub-section (2), by order grant leave of absence to the mentally ill person for such period and subject to such conditions as may be specified in the order.

  • Every bond referred to in sub-section (1) shall be with or without sureties and for such amount as the Magistrate may decide and shall contain the undertaking referred to in sub-section (2) of sect.45.

  • The Magistrate shall forward a copy of the order to the medical officer-in-charge and on receipt of such order the medical officer-in-charge shall entrust the mentally ill person to the person on whose application the leave of absence was granted under this section.

COMMENT

Sections 45 and 46 deal with the matter relating to grant of leave of absence.Under Sec.. 45 the medical officer is empowered to grant leave of absence. In case he refuses to grant leave of absence to a mentally ill person, Magistrate is empowered under Sec. 46 to grant leave of absence.