Nikhil Borwankar v. State of N.C.T of Delhi and Ors.

1. A compliance report has been filed by the Principal Secretary (Law, Justice & Legislative Affairs), Government of NCT of Delhi dated 18 September 2018 stating that the regulations regarding 'Minimum Standards ofCare for Centres Providing Substance Use Disorder Treatment and Rehabilitation, 2018'('Regulations') have been notified and uploaded on the website ofthe Government ofNCT ofDelhi on 18^^ September2018 itself. The said Regulations provide for minimum standards ofvarious sub- (, categories of Substance Use Disorder Treatment and Rehabilitation Facilities. It has been specified in Regulation No.7 (3) that Psychiatric Nursing Homes/Hospitals licensed under the Mental Healthcare Act 2017 ('MHA 2017') providing detoxification facilities shall also maintain the prescribed minimum standards.

2. The above Regulations have been notified by the State Mental Health Authority(SMHA)in exercise ofthe powers under Section 123 read with Section 65 MHA 2017. The Court further notes that under Section 107 MHA 2017, penalties have been prescribed for establishing or maintaining O mental health establishments in contravention with the provisions ofthe Act. It is, therefore, mandatory for any institution or facility offering detoxification or de-addiction treatment services to strictly comply with the above regulations and failure to do so will attract the penalties specified under the MHA 2017.

3. The DelhiPolice,through the Deputy Commissioner ofPolice,Legal Cell (Police Headquarters), has filed before this Court a separate status report dated 18^'^ September2018 which sets outthe follow-up actions taken by it W.P. (C)8217/2017,2381/2017&5192/2018 Page5of10 2018:DHC:8853-DB pursuant to the reports submitted to this Court by the teams constituted by the Delhi State Legal Services Authority('DSLSA').A total of109 drug deaddiction centres were inspected/re-inspected by the Delhi Police. Ofthese, 66 centres were found closed and 43 open.According to DelhiPolice,atotal number of687imnates were found present and were examined by the police teams. Besides,62 inmates ofthe closed centres were also examined. It is now stated that except two incidents which have been set out in the same status report, no complaints were received from any ofthe inmates which required any police action. Even as regards those instances, it is stated that action has been taken by the police by registration of an FIR. In another instance concerning the two incidents of unnatural death at a facility in Badarpur, the police inquiries were unable to verify the allegation in the report ofthe DSLSA.

4. The status report also draws attention to the fact that while interaction sheets in respect of43 de-addiction centres were,made available to the Delhi Police, no such sheets were made a\'ailable in respect of 53 other centres. According to the Delhi Police, the DSLSA clarified that while some ofthe DSLSA teams that undertook inspections maintained interaction sheets,the others submitted briefreports..

5. This Court clarifies that notwithstanding the above status report of the Delhi Police, if any of the inmates in any of the centres that are still functioning and/or any inmate ofa de-addiction centre that has been closed has any specific grievance about the treatment received, it will be open to such inmate to approach the police with a complaint v/hich willthen be dealt W.P.(C)8217/2917,2381/2017&5192/201S Page6of10 2018:DHC:8853-DB with promptly. To facilitate this exercise, the Court directs that the concerned DSLSA will depute a panel kwyerto visitthe centres functioning in the area of its jurisdiction that are still flinctioning at least once in two weeksto ascertain ifany inmate therein has a specific complaint.Ifhe does, then that should be reduced to writing and taken up with the DelhiPolice by the DLSA panel lawyerthrough the SPIO ofthe concerned Police Station.

6. The status reports on the inspection ofde-addiction centres in the South, North and East DMC areas have been placed on record. These pertain to inspections undertaken in the months ofJuly and August2018,i.e. at a time the aforementioned Regulations had not yetbeen notified.

7. Now that the Regulations have been notified, it becomes imperative for the North, South and East DMCs to undertake a fresh inspection and ascertain whether the centres that are still operational are in strict compliance with the requirements ofthe above Regulations.Ifthey are not, immediate corrective action should be taken after following the due process oflaw.

8. Ms.Rajni Singh,learned counsel appearing forsome ofthe centres,drav/s attention to the need for clarity on the issue of'consent',as according to her, that would become a contentious issue while detennining whether the particular inmate is being kept at any of the centres v/ithout his or her consent. She further raises an issue as to v/hether consent in this context would be consent of the individual exercising agency or as the situation might warrant,consent with the assistance ofthe family,close relatives, or W.P.(C)8217/2017,2381/2017& 5192/2018 Page 7of10 2018:DHC:8853-DB friends ofsuch person.

9. It is noticed that under Section 81 MHA 2017, the Central Authority, which is defined under Section 2(1)(c)ofthe MRA.2017to mean either the Central Mental Health Authority ('CMHA') is required to appoint an 'Expert Committee' to prepare a guidance document for medical practitioners and mental health professionals, containing procedures for assessing, when necessary, the capacity of a person to take mental health care or treatment decisions. The Court further notes that Note D[2] under the heading 'Other common minimum standards' in the Annexure to the newly notified Regulations, notes that "the critical issued of 'infonned written consent' for admission will be as per the provisions ofMHA,2017 and the Rules thereof.It is further stated that the patients should be given adequate information about the patient's rights, ser\dces, rules, charges, grievance redressal systems,etc. at the time ofadmission and the relevant information in this regard be prominently displayed at the location ofthe registration of the iiimate. The Court is informed thatthe CMHA has been constituted but it is yet to appointthe Expert Committee to prepare the guidance document as required underthe MHA 2017.

10. Now that the Regulations have been notified, there is a need to ha\'e clarity for its effective operation in terms ofthe provisions otHhe MHA

2017. Therefore, the Court directs the CMHA to constitute an Expert Committee for the purposes of preparing guidance documents in tenns of Section 81 (1) MHA 2017 as well as Note D 2 of the Annexure to the Regulations,notlaterthan four weeksfrom today. W.P.(C)8217/2017,2381/2017&5192/2018 Page8of10 2018:DHC:8853-DB

11. The Court is informed that the Institute ofHuman Behaviour and Allied Sciences(THBAS'),Delhi has already prepared a guidance document which could be of use to the Expert Committee to be constituted by the CMHA. The CMHA will examine how far the said Guidance Note of IHBAS is useful in finalising and notifying the guidance document under Section 81 (1)MHCA.A copy thereof will be made available by the Director,IHBAS to the CMHA forthwith; It will be open to the Expert Committee to invite suggestions before finalizing the Guidance Document.

12. The Court,while appreciating the work done by the panel lawyers ofthe various District Legal Services Authorities/Committees who have helped in preparing comprehensive reports for this Court, directs that each panel lawyer who formed part of such team be paid a lump sum honorarium of Rs.50,000/- each within four weeks from today. The Government of the NCT of Delhi will make available the funds for this disbursement to the DSLSA. This payment will be coordinated by the Principal Secretary (Health),GovernmentofNCT ofDelhi and the Secretary ofthe DSLSA.

13. The honorarium to be paid to the panel lawyers of the DLSAs who undertake visits hereafter to the de-addiciton centres in terms of the directions in para 5 ofthis order,will on the same basis as paymentfor visits to prisons and other custodial institutions.

14. The Regulations, the Guidance notes of the CMHA/SMHA when readied,and the legal requirements in terms ofthe relevant provisions ofthe MHA 2017 should be displayed at every de-addiction centre at a prominent W.P.(C)8217/2017,2381/2017&5192/2018 Page9of10 2018:DHC:8853-DB p place/These should also be given wide publicity by the GovernmentofNCT ofDelhi,the CMHA,and other SIvfHAs as have been constituted.If there is any specific grievance about the implementation ofany ofthe directions, it will be open to the partiesto apply to this Court.