ONE can neither be put in captivity, nor walk out of it, without a stringent judicial process. Any other sort of detention is illegal. Except, it is widely understood, in the case of persons with some form and degree of a mental impairment, in which case his nearest and dearest, or the enforcers of the law can, under certain conditions, have him involuntarily detained.
So it was, more or less, under the Lunacy Act of 1912. This article concerns current laws. (Nevertheless, even the Lunacy Act required an SHO to produce the suspected ‘lunatic’ before a magistrate within a specified period of time).
It took nearly a century for the country to move on from a situation where extremely vulnerable persons were grossly under-protected, and their rights often deliberately abused for personal, financial, political or other gains. The Lunacy Act was finally replaced during the Musharraf regime by the Mental Health Ordinance 2001.
Yet significant problems remain, so much so that on July 30, it was reported that raids had been carried out upon several ‘rehab’ and psychiatry centres in Islamabad, with two being sealed by an inspection team of the Islamabad Health Regulatory Authority. The IHRA CEO Dr Quaid Saeed said that in most centres, two sufferers were being kept to a bed, drugs were being administered for time-periods that far exceeded the medical advisories, and in one case (and who knows how many more) a man had simply been abandoned, or ‘committed’, at a rehab centre by his son, who then relocated to the UK. “Those centres with iron bars have practically been turned into jails and people are locked up there,” Dr Saeed said.
What if a mental health patient is detained against his will?
There are many aspects to the 2001 ordinance, but I concern myself here with merely one point: under what circumstances/ conditions, may a substance abuser/ mentally impaired person be legally detained against his will?
The 2010 18th Amendment to the Constitution meant the devolution of the subject of health. With this, the provinces came up with their own versions: Sindh in 2013, Punjab in 2014, Khyber Pakhtunkhwa in 2017, and Balochistan in 2019.
However, say senior mental health experts, the provinces had neither the capacity nor perhaps the will to create individualised legislation. Sindh being somewhat of an exception, the others simply tailored the wording of the 2001 laws. Though enacted, these were never implemented in letter and spirit, such as setting aside a budget or establishing secretariats, functional oversight authorities, etc — things looked rosier on paper only. Practically, the 2001 ordinance can still be taken as the base law.
On the subject of arbitrary detention, a publication by the Pakistan Association of Mental Health subsequent to a workshop in October 2001, quotes the organisation’s president Dr Haroon Ahmed as noting that unless admitted formally under the law (of which the patient must be made aware — mental health is judged as a spectrum, so that even a dementia patient can be recognised as being competent of understanding), patients are free to discharge themselves even if ‘leaving against medical advice’.
Chapter 3, Section 8 of the 2001 ordinance says that “Any person who himself seeks or is brought by a relative [...] shall be examined by a psychiatrist or a medical officer nominated by him [...]. Any such person on withdrawal of his consent may be discharged [...].”
Further, in terms of forced detention, Section 10, subsection 3 states: “An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two medical practitioners [...] including in each case a statement [...]” that the conditions for involuntary detention under subsection 2 are met. Section 2, clause (m) specifies that ‘mental disorder’ refers only to mental impairment, severe personality disorder and severe mental impairment.
Point (iv) clarifies that “Nothing in clause (m) [...] shall be construed as implying that a person may be dealt with under this Ordinance [...] by reason of only promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.” The latter are covered by other laws such as the Hudood Ordinances and the Pakistan Penal Code.
So what if a patient who wishes himself discharged is forcibly detained? Section 22 of the 2001 Ordinance states that “Any patient [...] who feels he has recovered from his mental disorder, may make an application to the Magistrate for his discharge [...].” The treating psychiatrist, apparently, does not enjoy magisterial powers.
Yet despite these protections, Pakistan’s realities mean that thousands are illegally detained. I urge professionals to come out with public, in-depth analyses on the subject, so that the already vulnerable and marginalised sections of society are no longer jailed through either ignorance of their rights or lack of access.
The writer is a journalist.
Published in Dawn, August 14th, 2021
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