Law making: Mental Health Legislation in Pakistan
There is a need to initiate a meaningful discussion on the need for mental health legislation in Pakistan, with special reference to the Sindh Mental Health Bill of 2012, currently being considered by the government of Sindh.
My main interest is with the mentally disordered patient, commonly referred to as ‘madman’, ‘pagal’, or ‘charya’. I have used these immensely distasteful and stigmatising colloquial expressions to emphasise the social ostracism and the desperate plight of this extremely vulnerable group of our compatriots. There is an urgent need to enact legislation for this group of citizens, who deserve both protection from others, and treatment for the mental disorder they suffer from, which renders them unable to seek medical treatment for themselves.
The horrendous status quo
In the absence of meaningful mental health legislation in Pakistan, the current situation is that a person suffering from some mental disorder is almost completely at the mercy of his family, if they have one.
In the majority of cases, it is the family that brings these patients for treatment to the doctor, or whoever graces that professional role, i.e. the spiritualist, the holy man, the mulla or the quack. Where involuntary admission to a psychiatric institution is required, the patient is coerced first into admission and then psychiatric treatment, by the family as well as institutional staff.
There are currently no legal checks, protections or safeguards for the mentally disordered patient in any of these settings — at home, the errant husband can keep his mentally disordered wife locked up in the cellar for a long time, and in an institution, the doctor can allow his wealthy mentally disordered patient to remain admitted in hospital for as long as he wants. Where there isn’t a family, the mentally disordered patient is at the mercy of state institutions, primarily the criminal justice agencies — the police and the prisons. They are arrested, abused and, in some instances, killed as scapegoats. There has been a spate of recent cases where blasphemy offences are alleged against such mentally disordered patients, and the state institutions have failed to protect them from vigilante mobs imposing lethal instant retribution upon them.
Constitutional justification for mental health legislation
The constitution of Pakistan guarantees basic rights and liberties to all citizens of the state. These rights derive from fundamental principles of justice in accordance with which the State of Pakistan assumes the sole monopoly of power over its citizens. But this arrangement, in order to remain just, assumes that the citizens have the necessary mental abilities to utilise their basic rights and liberties. In the presence of mental disorder, for example, such rights and liberties are hollow rights and liberties and mean nothing. As parens patriae, the parent of last resort, the state must ensure that its citizens receive treatment and protection in case they become mentally disordered. There is also an over-arching prima facie law of humanity which obliges us to show compassion to the ill among us, and to provide succour and treatment for them, in a manner which doesn’t do them harm. Mental health legislation is essentially an expression of this humanity which enriches our association with each other for the art of living.
History of mental health legislation and Pakistan
Historically it was the reported abuse and neglect of mentally disordered patients in society which created the impetus and the political will for mental health legislation in the western world.
In the 18th century England, private madhouses had proliferated and there were a few notorious scandals reported where husbands had paid large amounts of money to unscrupulous, non-medical ‘madhouse’ keepers to detain their first wives, so that they could marry again. There were parliamentary enquires which revealed that this practice was not uncommon amongst Georgian gentlemen, and that along with illegally detaining non-mentally disordered patients in institutions for the mentally disordered, the care for those who were in fact mentally disordered was also scandalously poor. In both the cases the madhouse keepers were simply interested in making financial gain from the practice, rather than delivering any form of care and treatment for those they detained in their facilities.
There arose an urgent political and social need to introduce legal protections and the first mental health legislation, the Madhouse Act of 1774 was passed, both to ensure that those who were not mentally disordered were not subjected to abuse of any kind, and also to provide some safeguards for those found to be suffering from mental disorders and in need of involuntary admission and treatment.
Pakistan inherited the Lunacy Act of 1912 which was largely ceremonial in its impact upon psychiatric care in the country. There was little progress on this front until 2001 when the first Pakistan Mental Health Act of 2001 was passed.
There was again very slow progress, and it took many years for the federal government to set up the federal structural framework which would allow this Act to work.
However, after the 18th constitutional amendment was passed in April 2010, the provision of psychiatric healthcare was devolved from the federation to the provinces in Pakistan. This constitutional amendment in effect abrogated the 2001 Mental Health Act which had been premised on federal (and not provincial) psychiatric regulatory institutions. At present, in practice there is no law which protects mentally disordered patients in Pakistan.
Sindh Mental Health Bill 2012
Over the winter of 2011, the Pakistan Association for Mental Health canvassed opinion amongst a whole range of stake holders in the field of mental health care in Sindh.
Lawyers, patients, relatives, human rights activists, intellectuals, doctors and foreign mental health legislation experts were consulted to produce a consensus Sindh Mental Health Bill which was submitted to the provincial law ministry for whetting in January 2012.
The core function of the Sindh Mental Health Bill is to ensure that a fair balance is struck between the constitutional rights of every citizen to liberty and physical integrity, and society’s entitlement to impose treatment without consent, for those who are found to require it and who will benefit from it.
There are clauses for setting up the framework of the Provincial (Sindh) Mental Health Authority and the Board of Visitors — the key government bodies responsible for licensing, regulating, monitoring and supervising the psychiatric care and treatment in the province, across public and private healthcare settings. There are further provisions for the psychiatric care in the prisons and criminal justice agencies such as police stations. There are clear penalties and criminal punishments prescribed for any abuse or neglect of mentally disordered patients across these facilities.
The involuntary admission of all mentally disordered patients in hospital can only take place if the criteria for detention under the Bill are met, i.e. that the patient is suffering from a mental disorder which warrants treatment, and that the admission is necessary in the interest of the patient’s own health or safety or the safety of others. Only appropriately licensed medical doctors can make such recommendations for involuntary admission.
The duration of the involuntary admission can vary under different clauses in accordance with the aims of medical treatment planned for the period of involuntary admission. All patients have a prescribed right of appeal against their involuntary admission which is heard by the local magistrate. All patients can also be discharged to the care of their relatives at any stage of their treatment once they have recovered sufficiently for this to happen. The patient’s relatives have protected rights to get their patient discharged too, in defined circumstances.
The interface of the psychiatric care system with the criminal justice system is given special consideration in the Bill. If the police become aware of a mentally disordered citizen in their area, they are required to convey the person to the appropriate facility, where medical treatment and care is provided.
All blasphemy defendants arrested by the police are required to have a psychiatric assessment to determine whether they meet the criteria for involuntary admission under the Bill. This clause has been inserted due to recent reports of mentally disordered defendants being excessively and disproportionately victimised under the blasphemy laws. This clause serves to carve out some protections for the mentally disordered being prosecuted under these laws.
Furthermore there are provisions in the Bill to give special recognition to the psychiatric care and treatment provided to prisoners within the ‘lunatic wings’ of the main prisons in the province.
In cases where there is clear medical evidence that some trivial criminal offending is due to an underlying mental disorder in a defendant, and that treatment of the mental disorder will mitigate future risk of offending, the Bill allows the court judge to impose a hospital order for the patient to be handed over to a psychiatrist for treatment, instead of being punished in prison.
This allows better rehabilitation for those offenders who could benefit with psychiatric treatment.
A copy of the Sindh Mental Health Bill 2012 can be accessed from the Pakistan Association for Mental Health website (www.pamh.cyber.net.pk).
Dr Muzaffar Husain is a consultant forensic psychiatrist based in England.