• A major overhaul of the law — of all the laws that have an impact on persons with mental illness — is needed.
• This calls for joint effort between mental health professionals, human rights experts, and legal drafters perhaps through the Kenyan Law Reform Commission.
The Task Force on Mental Illness has been collecting public views, including on the legal framework for mental illness. This article is a reduced version of a submission I wrote to the task force.
FLAW IN THE CONSTITUTION
The Constitution says, a person “declared to be of unsound mind” cannot register to vote, or be elected an MP, or an MCA. Many countries have moved away from barring people from voting on the ground of mental illness.
The Oxford English Dictionary says unsound means morally corrupt, wicked, evil, unwholesome, unhealthy as well as insane. There is a tendency, even among educated people, to assume that someone with mental illness is “mad” or “insane” — end of story.
Yet about 20 per cent of people will at some time in their lives be affected by mental illness, most often depression. However, most of them are able most of the time to function in society. And the types and extents of mental illness are very varied.
The Constitution insists that everyone be treated equally, their dignity be recognised and that persons with disability must not be referred to in a demeaning manner. It is ironic that the Constitution itself does just that.
We cannot remove this word from the Constitution easily. But ordinary law should make it clear that “unsound mind” means truly being incapable of understanding the act of voting.
Various other laws talk about “lunatics”, as well as “unsound mind”. “Idiots” and “imbeciles” are used for mental capacity issues.
“Lunatic” takes a single characteristic of a person and applies it to the whole person. It is completely devoid of any sympathy and is commonly used as an insult. Like “unsound mind”, it is an over-simplification, which assumes that a person is either sane or insane.
Labelling people reinforces exclusion, here implying “they are mad, but we are sane.” It makes it harder for people who suffer from mental ill-health, and those around them, to recognise their conditions, and to get help.
This language goes against the Constitution and these various laws must be changed to remove these derogatory phrases.
LOSS OF LIBERTY
In certain situations, Kenyan law allows the compulsory detention of a person with mental illness.
Under the Mental Health Act, a child under 16 may be detained without his or her consent on the wish of a parent or guardian. It is not clear that safeguards against a child being confined unjustifiably are adequate. Although the receiving institution may apparently refuse to accept the patient, it seems there is a serious risk of a child with autism, or attention deficit and hyperactivity disorder, for example, being admitted. The Act does not require any supporting recommendation from a doctor.
In Ireland, principles under the law say that when involuntary admission of a child is considered, the least restrictive form of care should be used at first. Admission and treatment should be for the minimum period consistent with the best interests of the child. And the child’s views should be considered — depending on the child’s age and maturity.
Under the Kenyan Act, an adult suffering from a mental disorder, who cannot express a wish to receive treatment, may be admitted into a mental hospital as an involuntary patient. The application must be made by a relative and be supported, ideally, by the patient’s usual medical practitioner.
A senior police officer or chief may take into custody any person whom he or she believes to be suffering from a mental disorder. The person must be delivered to a mental hospital within 24 hours or “a reasonable time”.
Not all relatives are well inclined, and a letter from a single medical practitioner may not be a sufficient safeguard against efforts to have an inconvenient spouse, or parent with dementia, put away.
There seems no guarantee of a voice for the patient. Some countries have publicly funded representation for the patient. But here we do not have any effective legal aid scheme.
Perhaps the signature of more than one doctor should be required — allowing a single doctor to sign does seem to create risks of abuse.
CRIMINAL JUSTICE AND MENTAL ILLNESS
Under the Penal Code, if a court decides that a person did an act that is a crime, but was suffering from mental illness at the time — so they did not have what lawyers call a guilty mind — it will hold the accused “guilty but was insane”. This is illogical.
The Penal Code says such a person “is not criminally responsible”. There is a risk that a person found Guilty but Insane will be treated as having been convicted of a crime that he was not responsible for. Kenyan law should revert to "Not Guilty on the Ground of Insanity."
Insanity is a defence to a charge of crime only if it made the person incapable either of understanding what he or she is doing, or of knowing that they ought not to do it. But if the person knows but is unable — as the result of the illness — to control their actions, there is no defence. Kenyan law should be changed — as in other countries — so that genuine inability to control one’s actions is a defence.
The law says the person found to be 'Guilty but Insane' may be detained for as long as the President wishes. The same is true of a person who is not capable of understanding a criminal trial as a result of mental illness.
The High Court has rightly decided that keeping a mentally ill person in prison for an indeterminate period of time is cruel, inhuman and degrading treatment — and unconstitutional. Alternatives need to be developed to the “during the pleasure of the President” provisions.
CONTROL OF PROPERTY WITH MENTAL ISSUES
Under the Mental Health Act, a court may make an order for the management of the property of a person suffering from mental illness or for a guardian to be appointed for them.
There are very few safeguards written into the law for the welfare and property of the person in question. In a recent case, Justice Joel Ngugi said, “The …welfare and best interests of the Subject must be the overall guiding principle. I am not satisfied that the application has been brought in the best interests of the Subject or that the Subject’s property will be used in her best interests. Indeed, I have it on record … that [the Applicant] plans to convey the Subject’s property to her grandchildren and only leave a small portion to the Subject.”
This shows suitable caution on the part of the Judge, but it is not clear that all judges would take a similar approach, and the Act does not really ensure it. Who really speaks for the “subject”?
These provisions need to be reviewed to ensure abuses and human rights violations are prevented.
CRIMINALISATION OF SUICIDE
Attempted suicide is a crime in Kenya. The obvious risk is that someone who has attempted suicide and needs medical attention might be reluctant to seek it for fear of being prosecuted. That aside, the injustice of making a criminal of a person who is so desperate that they have tried to kill themselves is obvious. Indeed, it might well be held unconstitutional — as “cruel, inhuman or degrading”— but there seems to have been no challenge to the law so far.
Attempting suicide should cease to be a crime.
A major overhaul of the law — of all the laws that have an impact on persons with mental illness — is needed. There are plenty of useful examples around the world, as well as international standards, though some may not fit Kenyan’s circumstances or its budget.
What is needed is a joint effort between mental health professionals, human rights experts, and legal drafters perhaps through the Kenyan Law Reform Commission.
Mental illness must be treated with the same concern as other medical issues — the Constitution demands it.