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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
SHORT TITLE, EXTENT AND COMMENCEMENT
-
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 -
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 -
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 -
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:
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,
-
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.
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