By Mandala Mambulasa LL.B (Hons) Mw, LL.M (UP)

1. 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)

2. 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.

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

4. 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

5. 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

6. 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.

7. 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!

8. 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

9. 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)

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

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

17. 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

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

19. 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

20. Thank you • Thank you very much • Merci • Asante sana • Ngiyabonga • Zikomo Kwambiri