One of my uncles was admitted to a mental health facility against his wishes. The family insists he is losing his mind, but I am dubious about this. I don’t want to meddle, but I feel like my uncle is being taken advantage of. How do I get legal help for him?
As we observe September being the month dedicated to conversations that reduce and prevent suicide around the world, our disconnect with mentally ill patients is summed up in the words of Emily Sanders who said,
“there is no cast, no scar, no stitches. No X-ray with evidence of pain. Rarely is there physical evidence of mental illness, but for those suffering from pervasive mental illness the pain and exhaustion are deep and heavy.”
It is the month that this column recognises the immediate past Senate for debating and enacting the Mental Health Amendment Bill (2022), which the former president, His Excellency Uhuru Kenyatta, signed into law before leaving office.
It is further honourable to applaud former nominated Senator Sylvia Kasanga who was instrumental in the realisation of this law. She tirelessly worked and walked amongst diverse Kenyans in seeking inclusion and support. Her contribution to justice and human rights milestones particularly the creation of safe spaces for mental health patients is remarkable.
Your concerns are a red flag with regard to the fundamentals of mental health management. First is the primary right to health and medical care, espoused in Article 43 of the Constitution, and for mental healthcare housed in Section 3A (1) of the Mental Health Amendment Act, directing their access to the highest attainable standard of mental health care.
Further, in Part II, in Section 3 (b), the Act directs that mental health patients have the right to access medical, social and legal services for enhancing the protection of their rights as demanded by the Constitution.
Second, is the subject and right of consent when treatment has been identified, discussed, agreed upon, articulated and likely to be executed. It is the expectation of the law, that mental health patients understand and agree to treatment, save for exceptional circumstances when such illness reduces their capacity to act rationally. This is provided for in Section 3B (1a & b) of the Mental
Health Amendment Act, and demands every healthcare provider to inform the patient directly, seeking their consent and choice of treatment, if they are of the age of majority and above. In Section 3B (2a & b), the Act anticipates the incapacity of the patient to make an informed decision and obligates that the healthcare provider seeks consent from the patient’s supporter or representative (only in the absence of the former), who has been appointed in accordance with the law. It is expected that the consent given by either of these two reflects the true will and preference of the patient.
Third, is the admission of the patient to a mental health facility. Mental health patients have equal rights and latitude to enjoy their rights just like many other people, since sickness doesn’t make them lesser before the law, as desired by Article 27 of the constitution.
Be aware that Section 22 (1) and 22 (1C) of the Mental Health Amendment Act directs health providers to only admit such patients involuntarily, upon application and production of a medical assessment report indicating likely harm to self or others if left unrestrained and untreated. In addition, involuntary admission is also preferred if prescribed treatment requires such confinement for effective delivery.
However, such admission is not blanket, unilateral nor indefinite. Section 22 (1D) of this Act, provides that admission shall be subject only to the period required to stabilise the patient to wilfully attend to access healthcare services.
Therefore: if you are convinced that those who have taken your uncle to a mental health facility are neither his representatives or supporters, and do not have a supportive Decision-Making Agreement, as demanded by the Mental Health Amendment Act, then you have the first ground to challenge their action(s).
If you are sure that your uncle is in a state of acting rationally and making informed decisions, in a frame that indicates coercion on the part of those who have taken him for admission, then another ground is established to pursue a case in court.
If you think that there is a complicity between your uncle’s handlers and personnel of the mental health facility, then you have another ground to petition for admission. Remember the law on evidence is strict and certain, as at Section 107 (1) states, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist: and 107 (2) closes by asserting that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
