By Mandala Mambulasa LL.B (Hons) Mw, LL.M (UP) MENTAL HEALTH AND HUMAN RIGHTS: a call for review of the malawi mental treatment act & the mental health policy with emphasis on the rights of mental health professionals and users By Mandala Mambulasa LL.B (Hons) Mw, LL.M (UP)

Quotable quotes “All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person... There shall be no discrimination on the grounds of mental illness...” UN Principles for the Protection of Persons with Mental illness, GA Resolution 46/119 of 17 December 1991.

Quotable quotes...continued “When the beat of the drum changes so must the step of the dance.” An African proverb

Overview of Presentation Brief Background Some brief salient features of legislation in South Africa & proposed Bill in Ghana Human rights and limitation of rights Rights of mental health professionals/carers Rights of mental health users Duties of mental health users Conclusion

Brief Background A consensus has emerged to redefine public health to include mental health needs Traditionally, there is antagonism between the disciplines of public health and human rights Old laws and policies still reflect this antagonism In the African regional context, the beat of the drum has been changing since the 1990s

Brief Background...continued There is now recognition of complementary between the two disciplines in achieving health and well-being of individuals and populations South Africa led the way in 2002. It totally reformed its 1973 law, the Mental Health Care Act, 2002 It took effect in 2005 Ghana followed in 2007 with a progressive Bill as well.

Brief Background...continued Don’t ask me how old the Malawi Mental Treatment Act is! For avoidance of doubt, it is a 1948 piece of legislation South Africa and Ghana reviewed their 1973 and 1972 pieces of legislation respectively How much more ours? Shall we continue to lag behind? I submit, it is time to change the step of the dance!

Some salient features of legislation in South African & proposed Bill in Ghana Protection of human rights of persons with mental disorders and mental health professionals Promotion of mental health care in primary health care settings Introduction of safeguards against arbitrary and unjustified involuntary admission and treatment Clarification of obligations of mental health care providers

Human rights and limitation of rights Human rights are entitlements to be enjoyed by all human beings by virtue of being human Some rights are absolute, non-derogable Other rights are limitable The limitation follows a prescribed standard provided for in the law The limitation must use the least restrictive alternative (reasonableness)

Rights of mental health professionals/carers Right to health and its essential elements Availability Accessibility Appropriateness Acceptability Non- discrimination and equality by health establishment To work in safe environment To be provided with minimum core equipment, resources and supplies necessary for patient care

Rights of mental health professionals/carers Right to continuing education Right to access prompt treatment for infections or injuries acquired while discharging their duties These rights are in addition to all other rights that mental health professionals have as human beings under the Constitution and other laws

Rights of mental health users Right to health (Access to treatment and care) The right not to be discriminated against or stigmatized Refusal to treat Excessive delays in treatment Inappropriate treatment Early discharge Security of the person Protection against arbitrary and unjustified involuntary admission and treatment

Rights of mental health users...continued To be informed of their rights by the professionals before receiving treatment, care and rehabilitation services- To an effective remedy (right to justice) Right to dignity, privacy and confidentiality Right to rational healthcare (proportionality to mental health status) Right to terminal care

Rights of mental health user...continued Informed consent Founded in the right to autonomy and bodily integrity Medical treatment and surgical procedures involve interference with the body Could be general or specific Proxy consent - mentally incapacitated persons or minors Exceptions- emergency cases (Doctrine of necessity) & unconscious patients (Necessity to save life) Is required when using ECT Access to medical records or data (Access to information) Right to representation

Duties of a mental health user To provide healthcare providers with accurate and relevant information subject to the user’s right to confidentiality and privacy To comply with the prescribed health care treatment To take care of healthcare records in his or her possession To respect the rights of healthcare professionals by treating them with respect and dignity

Duties of a mental health user To sign a discharge certificate if he or she refuses a recommended treatment

Consultation with mental health users The general rule: persons to be affected by any decision, legislation or policy must be consulted It ensures support and ownership of the process It is also a democratic principle Persons with mental disorders are no exception Mental disorders are of varying degrees Those that have capacity must surely be consulted and engaged throughout the review

Consultation with mental health users Lack of consultation could be fatal in some cases

Conclusion Mental Treatment Act is long overdue for reform The National Mental Health Policy is also due for review The reform/review should ensure protection of human rights of both the users and the professionals Mental health users should be among the people to be consulted on the reforms/reviews

Thank you Thank you very much Merci Asante sana Ngiyabonga Zikomo Kwambiri