Disposed

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

Delhi HC19 Sept 2018W.P.(C)/8217/2017

Case brief

AI extract

What is this about?

The Supreme Court directed the CMHA to constitute an Expert Committee within four weeks to finalize guidance on informed consent for de-addiction centres. It ordered fresh inspections of operational centres by North, South, and East DMCs for compliance with new regulations and mandated honorarium payments to panel lawyers.

What did the court decide?

CMHA to constitute an Expert Committee within four weeks; DMCs to undertake fresh inspections of operational de-addiction centres; honorarium of Rs. 50,000 paid to panel lawyers.

Nikhil Borwankar Vs State of N.C.T of Delhi and Ors. — Service and Employment | Delhi HC (2018)

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Signature Not Verified W.P.(C) 8217/2017, 2381/2017 & 5192/2018 Digitally Signed By:AM UL YA

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Mr. Shankar Bergla, Advocate for Pram Sewa Rehabilitation Centre

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Ms. Mini Pushkama, Standing counsel for SDMC & Ms. Swagata, Ms. Shiva Pandey & Ms. Neha Goal, Advocates

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Mr. Anchit Shaima, Ankur Mishra & Mr. Satamita Advocates for Delhi Cantonment Board

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Mr. Sumer Sethi & Ms. Dolly Sharma, Advocates for DSLSA Ms. Rajul Jain, Advocate for UOI Mr. Ripu Daman Bhardwaj, CGSC for Respondents No. 12, 13 & 14 Mr. Prashant Manchanda, Advocate for Shafa Home, Sector-22, Rohini.

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W.P.(CRL) 2381/2017 & Crl.M.A.No. 13572/2017

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RAKESH KUMAR Petitioner

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Through Mr. Ramesh Kumar Mishra, Amicus Curiae versus

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STATE OF NCT DELHI & ORS Respondents Through Mr. Rahul Mehra, Standing Counsel (Crl.) with Mr. Chaitanya Gosain & Mr. Tushar Sannu & Mr. Jamal Akhtar, Advocates for State with SI Sandeep Kumar, Licensing/DP & SI Sushil Malik, P.S.Naraina Mr. Shankar Thakur, Advocate for Ujala Foundation Mr. Anchit Shamia, Ankur Mishra & hfr. Satamita Advocates for Delhi Cantonment Board Mr. Simar Pal Singh, ASC with Mr. Rajender Yadav, ASC for NDMC Mr. Ajay Aroraa &Mr. Kapil Dutta,

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W.P.(C) 8217/2017,2381/2017 & 5192/2018

Page 2 of 10

Advocates for NDMC

Ms. Rajni Singh, Advocate representing for Door of Hope and Shantiratn Foundation and for applicant in CM Appl.No. 24565/2018

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Mr. Mukesh Gupta with Ms. Shashi Gupta, Advocates for EDMC

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Mr. Shankar Bergla, Advocate for Prem Sewa Rehabilitation Centre

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Ms. Mini Pushkama, Standing counsel for SDMC & Ms. Swagata, Ms. Shiva Pandey & Ms. Neha Goel, Advocates

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Mr. Ankur Mislira, Advocate for Delhi Cantonment Board

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Mr. Sumer Sethi & Ms. Dolly Sharma, Advocates for DSLSA Ms.Rajul Jain, Advocate for UOI Mr. Ripu Daman Bhardwaj, CGSC for Respondents No. 12, 13 & 14 Mr. Prashant Manchanda, Advocate for Shafa Home, Sector-22, Rohini.

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W.P.(C) 5192/2018 SHRI SALEK CHAND JAE4 Petitioner Through Mr. J.K.Gupta, Advocate Mr. Ramesh Kumar Mishra, Amicus Curiae

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versus

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GOVT. OF N.C.T OF DELHI AND ORS. Respondents Through Mr. Sanjay Ghose, ASC for GNCTD Mr. Rahul Mehra, Standing Counsel (Crl.) with Mr. Chaitanya Gosain & Mr. Tushar Sannu & Mr. Jamal Akhtar, Advocates for State with SI

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W.P.(C) 8217/2017, 2381/2017 & 5192/2018

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Page3 of 10

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Sandeep Kumar, Licensing/DP & SI Sushil Malik, P.S.Naraina

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Mr. Shankar Thakur, Advocate for Ujala Foundation

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Mr. Anchit Sharma, Ankur Mishra & Mr. Satamita Advocates for Delhi Cantonment Board

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Mr. Simar Pal Singh, ASC with Mr. Rajender Yadav, ASC for NDMC Mr. Ajay Aroraa &Mr. Kapil Dutta, Advocates for NDMC

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Ms. Rajni Singh, Advocate representing for Door of Hope and Shantiratn Foundation and for applicant in CM Appl.No. 24565/2018

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Mr. Mukesh Gupta with Ms. Shashi Gupta, Advocates for EDMC

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Mr. Shankar Bergla, Advocate for Prem Sewa Rehabilitation Centre Ms. Mini Pushkama, Standing counsel for SDMC & Ms. Swagata, Ms. Shiva Pandey & Ms. Neha Goel, Advocates

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Mr. Ankur Mishi-a, Advocate for Delhi Cantonment Board Mr. Sumer Sethi & Ms. Dolly Sharma, Advocates for DSLSA Ms.Rajul Jain, Advocate for UOI Mr. Ripu Daman Bhardwaj, CGSC for Respondents No. 12, 13 & 14

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Mr. Prashant Manchanda, Advocate for Shafa Home, Sector-22, Rohini.

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CORAM:

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JUSTICE S. MURALIDHAR JUSTICE VINOD GOEL

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O RDER 19.09.2018

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W.P.(C) 8217/2017, 2381/2017 & 5192/2018

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( ,

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 of Care for Centres Providing Substance Use Disorder Treatment and Rehabilitation, 2018' ('Regulations') have been notified and uploaded on the website of the Government of NCT of Delhi on 18^^ September 2018 itself. The said Regulations provide for minimum standards of various subcategories 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.

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The above Regulations have been notified by the State Mental Health Authority (SMHA) in exercise of the 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 mental health establishments in contravention with the provisions of the 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.

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The Delhi Police, through the Deputy Commissioner of Police, Legal Cell (Police Headquarters), has filed before this Court a separate status report dated 18^'^ September 2018 which sets out the follow-up actions taken by it

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W.P. (C) 8217/2017,2381/2017 & 5192/2018

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Page 5 of 10

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pursuant to the reports submitted to this Court by the teams constituted by the Delhi State Legal Services Authority ('DSLSA'). A total of 109 drug deaddiction centres were inspected/re-inspected by the Delhi Police. Of these, 66 centres were found closed and 43 open. According to Delhi Police, a total number of 687 imnates were found present and were examined by the police teams. Besides, 62 inmates of the 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 of the 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 of the DSLSA.

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The status report also draws attention to the fact that while interaction sheets in respect of 43 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 of the DSLSA teams that undertook inspections maintained interaction sheets, the others submitted brief report s. .

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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 of a 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 will then be dealt

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W.P.(C) 8217/2917, 2381/2017 & 5192/201S

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Page 6 of10

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with promptly. To facilitate this exercise, the Court directs that the concerned DSLSA will depute a panel kwyer to visit the centres functioning in the area of its jurisdiction that are still flinctioning at least once in two weeks to ascertain if any inmate therein has a specific complaint. If he does, then that should be reduced to writing and taken up with the Delhi Police by the DLSA panel lawyer through the SPIO of the concerned Police Station.

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The status reports on the inspection of de-addiction centres in the South, North and East DMC areas have been placed on record. These pertain to inspections undertaken in the months of July and August 2018, i.e. at a time the aforementioned Regulations had not yet been notified.

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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 of the above Regulations. If they are not, immediate corrective action should be taken after following the due process of law.

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Ms. Rajni Singh, learned counsel appearing for some of the 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 of the family, close relatives, or

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W.P.(C) 8217/2017,2381/2017& 5192/2018

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Page 7of10

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friends of such person.

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It is noticed that under Section 81 MHA 2017, the Central Authority, which is defined under Section 2 (1) (c) of the MRA. 2017 to 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 D2 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 of MHA, 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 of admission and the relevant information in this regard be prominently displayed at the location of the registration of the iiimate. The Court is informed that the CMHA has been constituted but it is yet to appoint the Expert Committee to prepare the guidance document as required under the MHA 2017.

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Now that the Regulations have been notified, there is a need to ha'e clarity for its effective operation in terms of the 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, not later than four weeks from today.

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W.P.(C) 8217/2017, 2381/2017 & 5192/2018

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The Court is informed that the Institute of Human 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.

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The Court, while appreciating the work done by the panel lawyers of the 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), Government of NCT of Delhi and the Secretary of the DSLSA.

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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 of this order, will on the same basis as payment for visits to prisons and other custodial institutions.

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The Regulations, the Guidance notes of the CMHA/SMHA when readied, and the legal requirements in terms of the relevant provisions of the MHA 2017 should be displayed at every de-addiction centre at a prominent

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W.P.(C) 8217/2017,2381/2017 & 5192/2018

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place/These should also be given wide publicity by the Government of NCT of Delhi, the CMHA, and other SIvfHAs as have been constituted. If there is any specific grievance about the implementation of any of the directions, it will be open to the parties to apply to this Court.

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The petitions and the pending applications are disposed of in the above terms.

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Ceitified copies of this order be delivered through a Special Messenger forthwith to the Secretary, CMHA, the Principal Secretaiy (Health), GNCTD and the Member Secretary DSLSA for compliance.

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S. MURALIDHAR, J.
VINOD GOEL, J.

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SEPTEMBER 19,2018

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inw

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W.P. (C) 8217/2017, 2381/2017 & 5192/2018

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

What the court decided

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