Mental Health Act, 1987 - Inspection, Discharge, Leave of Absence and Removal of Mentally Ill Persons

Chapter V - Inspection, Discharge, Leave of Absence and Removal of Mentally Ill Persons

PART I- INSPECTION

37.Appointment of visitors

     1. 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.

     2. 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.

    3. 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.

38. 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.

39. Inspection of mentally ill prisoners

      1. 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) -

           i. the Inspector-General of Prisons, where such person is detained in a jail ; and

          ii. 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.

     2. 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).

     3. 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.

     4. 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.

PART II - DISCHARGE

40. 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.

     (2)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.

41. 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.

42. Order of discharge on the undertaking of relatives or friends, etc. for due care of mentally ill persons

     1. 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.

     2. 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.

43. Discharge of person on his request

      1. 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.

      2. 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;

      3. 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.

44. 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.

PART III - LEAVE OF ABSENCE

45. Leave of absence

     1. 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, -

        i. 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

       ii. 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.

    2. 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 -

           i.     to take proper care of the mentally ill person,
          ii.    to prevent the mentally ill person from causing injury to himself or to others, and
          iii.   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.

   3. 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.

   4. 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.

   5. Nothing contained in this section shall apply to a voluntary patient referred to in Sec. 15 or Sec. 16 and the provisions of Sec.18 shall apply to him.

46. Grant of leave of absence by Magistrate

      1. 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.

     2. 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.

     3. 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.

PART IV - REMOVAL

47. Removal of mentally ill person from one psychiatric hospital or psychiatric nursing home to any other psychiatric hospital or psychiatric nursing home

     1. Any mentally ill person other than a voluntary patient referred to in Sec. 15 or Sec. 16 may, subject to any general or special order of the State Government, be removed from any psychiatric hospital or psychiatric nursing home to any other psychiatric hospital or psychiatric nursing home within the State, or to any other psychiatric hospital or psychiatric nursing home in any other State with the consent of the Government of that other State:

         Provided that no mentally ill person admitted to a psychiatric hospital or psychiatric nursing home under an order made in pursuance of an application made under the Act shall be so removed unless intimation thereof has been given to the applicant.

    2. The State Government may make such general or special order as it thinks fit directing the removal of any mentally ill prisoner from the place where he is for the time being detained, to any psychiatric hospital, psychiatric nursing home, jail or other place of safe custody in the State or to any psychiatric hospital, psychiatric nursing home, jail or other place of safe custody in any other State with the consent of the Government of that other State.

COMMENT - This section permits removal of any mentally ill person from one psychiatric hospital or psychiatric nursing home to another within the State or even to any other State with the consent of the Government of that other State. The provisions of this section however does not apply to a voluntary patient.

48. Admission, detention and retaking in certain cases

     Every person brought into a psychiatric hospital or psychiatric nursing home under any order made under this Act, may be detained or, as the case may be, admitted as an in-patient therein until he is removed or is discharged under any law, and in case of his escape from such hospital or nursing home he may, by virtue of such order, be retaken by any police officer or by the medical officer-in-charge or any officer or servant of such hospital or nursing home, or by any other person authorised in that behalf by the medical officer-in-charge and conveyed to, and received and detained or, as the case may be , kept as an in-patient in such hospital or nursing home;

    Provided that in the case of a mentally ill person (not being a mentally ill prisoner) the power to retake as aforesaid under this section shall not be exercisable after the expiry of a period of one month from the date of his escape.

COMMENT - This section deals with the matter relating to admission, detention or retaking of certain mentally ill persons. This section does not apply to a mentally ill prisoner.

49. Appeal from orders of Magistrate

     Any person aggrieved by any order of a Magistrate, passed under any of the foregoing provisions may, within sixty days from the date of the order, appeal against that order to the District Court within the local limits of whose jurisdiction the Magistrate exercised the powers, and decision of the District Court on such appeal shall be final.

COMMENT - This section empowers any person aggrieved by any order of a Magistrate to appeal against it to the District Court.