· Law,Mental Health

What You Need To Know About Kenya's Mental Health Bill 

“Kenya's Mental Health Sector is governed by 1989 legislation; we are operating under a law that was passed before we ratified the CRPD in 2008 and before the new Constitution was promulgated.”- Dr. Elizabeth Kamundia (Asssistant Director,  Kenya National Commission on Human Rights)

Welcome to our new segment where the law meets wellness. It is almost impossible to talk about health without addressing some of the challenges which exist in our legal system. This segment will highlight loopholes, outdated policies, and offer recommendations from experts and insights from those who have been affected by the legal system.

The Mental Health Bill of 2020 is currently in deliberation and with it comes new developments that will place Kenya some steps ahead in actualizing the rights of persons with mental illnesses. Before a bill is enacted into law, the Constitution requires it to undergo rigorous participation by key stakeholders. 

In light of this, a joint review workshop was organized by Validity Foundation under the leadership of the Kenya National Commission on Human Rights (KNCHR) where key civil society organizations including Tizi Talks dissected key parts of the bill. A joint advisory was collated at the end of the function which was submitted to the Senate Standing Committee on Health. The Joint Advisory on the bill can be found on this link. 

The forum was opened by Elizabeth Kamundia the Assistant Director of KNCHR who  highlighted positive elements of the bill. Unlike the current outdated law, the bill now demarcates the roles of national and county governments in mental health. 

The rights of persons with mental illness have been expanded through the recognition of legal capacity and the introduction of supporters who must be appointed with a prescribed form. The bill also heavily emphasizes on community based mental health care and recognizes the importance of after care services. 

Of key importance are four thematic issues that were discussed in detail:- ‘Legal Capacity’ of persons with mental illness, 'Confidentiality', why the use of ‘Seclusion and Restraint’ should be prohibited in the bill and 'Emergency Admission'. Let’s break these down so that we are on the same page.

i) Legal Capacity 

Many of us take for granted that we are autonomous and have the right to make our own choices. We don’t realise that the ability to make those choices is essential to living a full life in a society in which we can exercise our human rights. So what is legal capacity? It refers to what a human being can do within the framework of a legal system. 

In the Mental Health Act of 1989 which is the legal framework that regulates the mental health sector in Kenya, the words ‘legal capacity’ do not exist; which means that our current law  does not explicitly recognize persons with mental illness as equal rights’ holders. This presents a huge problem for anyone deemed to be mentally unfit because it prevents them from being able to equally contribute to society.

The Mental Health Bill has stepped in to cure this issue under Section 3K which states that a person with mental illness has a right to recognition before the law and must enjoy legal rights on an equal basis with other persons in all aspects of life. The denial of legal capacity has been a legal reinforcement of social prejudice. 

As we have seen through either personal experiences or in documentaries that expose mental health facilities, patients with mental illness have for the longest time been treated without dignity where their innate right to make decisions has been substituted by guardians as opposed to being supported.

Whereas it is common to be in a situation where people with mental illnesses might not be able to communicate their decisions, they may sometimes require support from others. ‘Supported Decision Making’ is 100% based on their will and preferences. 

Countries have an obligation under Article 12 of the International Convention for Persons with Disabilities (CRPD)  to provide  persons with mental illness access to support options from people they can trust. The Mental Health Bill advocates for this form of intervention and goes further to place an obligation for a form to be dully filled to officiate the appointment of such a supporter. 

'Substituted Decision Making’ is where patients with mental illness are deprived of their right to make decisions. Instead, decisions are made for them by others based on what they perceive to be the person’s best interest; this is the model under which our current legal system operates. 

The reason why the bill is calling for this form of intervention to be removed is because it prevents patients from fully participating in society and disempowers them from fully taking control of their lives and learning from their mistakes.

Every person with a disability has the right to develop a full human life like everyone else but this cannot happen without the opportunity to exercise their legal capacity.  Being denied legal capacity  means being denied the right to make decisions in many aspects of life which can negatively impact on a whole host of  rights. To deny this opportunity is to legitimize discrimination. 

Kenya’s legal framework operates under what we call a ‘plenary guardianship regime’ where persons with disabilities are stripped of their right to choose and lose the ability to make independent decisions on how they want to live their lives including the form of treatment they prefer to use. 

This limitation has left them fully exposed to abuse and exploitation where their rights to exercise civil, political, economic, social and cultural rights have been negatively affected. Experts refer to this as ‘civil death’. 

The bill introduces the importance of hiring a supporter who can help with decision making and must be accompanied by a ‘Supportive Decision-Making Agreement’ which is a form that is required to be signed to officiate the appointment. Although the the bill has not prescribed this form, KNCHR went ahead to create a template which you can find on the last page of the joint report. 

To read more about what is required for the form to be valid, refer to section 3I (3) of the bill. In a situation where a supporter cannot be appointed, they can appoint a representative to support with any decision making of their treatment and care.

However, the biggest concern with the appointment of a representative is that the bill does not exclusively hold them in the same high regard as supporters. During the workshop, one of the key recommendations was to place them under the same duty of care with the addition that mental health practitioners and guardians should go out their way to encourage persons with mental illness to formally appoint supporters to fully protect their rights.

ii) Confidentiality

On the issue of confidentiality, the current law is silent on the right to privacy for persons with mental illness. The bill makes it mandatory for any information regarding the care and treatment  to be kept confidential. 

It places an obligation on any person in charge or any mental health practitioner to protect and not disclose any confidential information regarding treatment of the patient. It is only under specific circumstances where the law will allow such information to be disclosed. (Refer to section 3H (2) of the bill for more on this)

iii) Seclusion and Restraint 

It was jointly agreed that the use of seclusion and restraint should be removed from the bill. WHO defines seclusion as the involuntary confinement of a person alone in a room or an area from which the person is physically prevented from leaving. Restraint is the use of any manual method, (physical or mechanical device, material, or equipment) that immobilizes or reduces the ability of a person to move his or her arms, legs, body, or head freely. 

Being detained against your wishes is also known as involuntary, forced, coerced admission or admission without informed consent. This form of forceful treatment and admission is prohibited by international law. Keep reading, I’ll explain why.

Under section 14 of the current Mental Health Act of 1989 involuntary treatment is permitted in situations where the person isn’t able to express they need treatment. This form of forced treatment can be made by anyone who is able state why they are taking this approach. This presents a huge problem because banyone who is perceived to be mentally ill will never be fully in control of their lives as their power is taken away from them.

Unfortunately, the proposed bill allows for the same use of involuntary treatment and admission  under section 14. The reason why this presents a huge concern is because prior to Kenya signing the international law protecting Persons with Disabilities in 2008, seclusion and restraint were not considered to be a human rights violation. If the bill becomes law with this provision, Kenya will be infringing on the rights of persons with mental illness under international law.

Under the CRPD, this form of forceful and involuntary intervention is a gross violation  human rights and can also be argued under section 15 of the treaty it amounts to torture. Through various testimonies that were collected by those who have undergone this form of treatment, the conclusive report done by WHO found that they felt disempowered and humiliated.

If you ask anyone who has been forced into a mental health facility for treatment or admission purposes, they will narrate horrific incidents and how much they hate/hated the experience. Most caregivers or caretakers  have found no joy in having their loved ones go through this process and majority would prefer better forms of treatment. This form of intervention continues to be a barrier to true healing because inhumane treatment leaves one feeling less than human.

So why is seclusion and restraint considered to be a gross violation of their human rights? The simple reason is because there is a huge power imbalance and their right to decide is taken away. Most people leave the facility with lost dreams and they constantly feel like they are being supervised by a system they can never escape from. While some may see a psychiatric ward as a place of safety, for most, it is nothing more than a prison.

During the workshop, it was strongly argued for involuntary treatment to be removed from the bill entirely in order for it to be fully compliant with international law and to protect persons with mental illnesses from being abused.  

Coercive practices can be counter-productive but can be avoided through good communication and a supportive relationship. Many countries have in place procedures they use to prevent coercive treatment, a good example if the UK and British Columbia.

iv) Emergency Admission 

In a situation where any person is believed to be a danger to himself or others because they are likely to act in a manner offensive to public decency due to a mental illness, the bill allows for emergency admission. It also permits this if the person with mental illness is not under proper care and control or is being cruelly treated or neglected by their caregiver. 

If the bill passes into law, it will continue to give authority to a police officer, chief, or an assistant chief to forcefully admit anyone with a mental illness they believe requires treatment into a facility. On this issue, most civil society organizations were not against emergency admission but strongly recommended the removal of invasive practices such as the forceful sedation of patients. 

The question therefore remains, how can the bill ensure their rights are not violated because this would still amount to involuntary admission which is forbidden by law. Where should the line be drawn? I believe more research needs to be done into finding better intervention methods from countries that have the best practices. 

Whereas the Mental Health Bill seeks to protect the rights and dignity of persons with mental illness, we still have a long way to go in also ensuring the same is actualized through policies and regulations. Although I am positive that Kenya is on the right path to ensuring it meets its obligations under international law we need to have more conversations not only with experts in this field, but persons with mental illness and their guardians to ensure that the solutions we create are dignified and fully aligned to their will and preferences.

Yours in Wellness- @TiziTalks


Editor: Loise Machira- Advocate of the High Court of Kenya, Disability Rights Advocate

References: Mental Health Act 1989 Cap 248, Mental Health Bill 2020, WHO Quality Rights Tool Kit, Mental Health Europe

Images: Own, Strikingly, Pexels

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