A CONTEXT-SENSITIVE MODEL OF FORMAL COERCION IN MENTAL HEALTH.

Kenya has come a long way in terms of legislation dealing with mental health, albeit it has further terrain to cover. Under colonial rule, mental health laws were a political tool used to suppress rebellion and detain individuals or groups whom the colonial establishment viewed as a threat to its domain and control. The infamous Elijah Masinde, the founder of Dini ya Msambwa, was a victim of this system, having been declared ‘insane’ between 1945 to 1947 based on his anti-colonialist activism.[1]

The initial legislation was the English Mental Health Act of 1959, which regulated healthcare in Kenya. The Mental Health Department was under the control of the inspector of prisons—a structure that significantly contributed to the stigma and criminalization of individuals with mental health conditions. In 1989, the Mental Health Act was enacted, and subsequently, the Mental Health (Amendment) Act of 2022 was introduced, currently overseeing Kenya’s mental health system.

The Mental Health (Amendment) Act of 2022 represents a notable advancement by integrating the concept of “human rights” into mental health care legislation. This landmark legislation acknowledges various rights, including the entitlement to actively participate in community affairs and access essential medical, social, and legal assistance. However, despite these positive strides, certain provisions within the act are at odds with the human rights principles outlined in the 2010 Constitution. Notably, Section 14 concerning Involuntary Treatment stands out. This section permits the institutionalization of individuals based on applications submitted by supporter or caregiver following a prescribed procedure and recommendation under the Mental Health Act.[2] Detention under this provision can last for up to six months, with an initial period of fourteen days.

Section 14 represents a direct violation of fundamental rights including equality, [3]freedom from discrimination, human dignity, security of the person, and the right to movement. It is also in direct violation of Article 14 of the Convention on the Rights of Persons with Disabilities which Kenya is signatory which provides for an absolute ban on deprivation of liberty on the basis of impairment including non-consensual commitment and treatment. Moreover, it blatantly disregards the outcomes of the Government-initiated Independent Review of the Mental Health Act, which concluded its findings in 2018. The recommendations from this review centered on four pivotal principles: promoting choice and autonomy, minimizing restrictions, ensuring therapeutic benefits, and recognizing the unique individuality of each person. Involuntary treatment starkly contradicts the fundamental principles of promoting choice and autonomy.

There is a need to question the appropriateness of the involuntary detention and treatment of people with a mental disorder if they should present a risk of serious harm, either to themselves or to others.[4] The need for protection seems clear. Indeed, this combination of a diagnosis of a mental disorder and risk to self or others has been the justification for involuntary detention, and usually treatment, for centuries. However, research does not validate the notion that involuntary outpatient treatment surpasses intensive voluntary outpatient care in efficacy; in fact, evidence suggests that coercive treatment methods are detrimental.

People suffering from mental disorders are therefore subject to human rights violations  — as they are singled out as liable to a form of preventive detention, albeit usually in hospital, on the basis of putative risk to others. For the significantly larger population presenting an equivalent (or higher) threat to others, yet lacking a mental illness, detention is only justified following the perpetration of a crime. Equity dictates that if preventive detention is permissible for individuals with a mental disorder solely due to their risk to others, it should likewise apply to all—or to none, including those with a mental disorder. At the core of section 14 it is clear that there is a, deeply rooted negative stereotypes of people suffering from mental disorders — are incompetent to make sound judgments and that they are intrinsically dangerous. What is indeed the rationale of restricting an individual’s freedom to deliver treatment and what is the impact of such restriction on personal autonomy and human dignity?

In a nation like Kenya, where corruption is deeply ingrained, involuntary treatments pose significant risks. Section 14 could potentially be wielded punitively, especially since it lacks provisions for seeking second opinions from an alternative medical practitioner. Additionally, there exists a notable power disparity, particularly evident in the circumstances of involuntarily admitted individuals and their caregivers. Service users lack the autonomy to depart from the ward at their own discretion, placing a heavy reliance on professional discretion which can be abused.

Section 14 provides that involuntary treatments are necessary when the individual poses a danger to themselves and to others. However, it must be kept in mind that one of the central objectives of the shift towards human rights-oriented mental health care has been to find a middle ground between societal interests and safeguarding individual rights and liberties. [5] This underscores the interconnectedness of individuals within society, necessitating a delicate balance to be struck. This article advocates for the amendment of Section 14 to pave the way for an elaborate assisted decision-making process and provisions for second opinions. 

The elaborate Assisted Decision-Making framework entails respecting the autonomy and agency of the patient and them being involved in the decision-making processes. At its core, this framework emphasizes the importance of acknowledging and valuing individuals’ past and present will, preferences, beliefs, and values. It advocates for a presumption that individuals have decision-making capacity, affirming their inherent right to self-determination. This support can take various forms, including the involvement of a co-decision-maker or the assisted decision-maker, depending on the individual’s needs and circumstances.

By prioritizing supported decision-making, the framework aims to empower individuals to exercise their rights and make choices that reflect their own values and aspirations. It recognizes that everyone has unique perspectives and experiences that shape their decision-making process and that these should be honored and respected to the greatest extent possible.

The inclusion of a provision mandating second opinions serves as a cornerstone in ensuring the thoroughness and fairness of decisions regarding involuntary treatment. By stipulating that the decision must undergo independent scrutiny by two practitioners, this safeguard introduces a multi-layered evaluation process aimed at enhancing the comprehensiveness and objectivity of assessments.

This requirement not only acts as a safeguard against impulsive or arbitrary decisions but also creates a robust framework for safeguarding patient rights and autonomy. It underscores the importance of a meticulous examination of the patient’s condition, considering alternative interventions, and weighing the potential risks and benefits of involuntary treatment options.

Moreover, the insistence on multiple practitioners’ involvement establishes a culture of accountability and transparency within the healthcare system. It instills confidence that decisions regarding involuntary treatment are made with due diligence and in the best interest of the patient, rather than being motivated by punitive measures or external pressures.

The primary rationale behind permitting the commitment of solely the mentally disordered stems from their pronounced incapacity, rendering them incapable of making rational determinations regarding their own well-being.[6] The notion of incompetency is complex, yet it distinctly pertains to the incapability to make rational decisions or to handle one’s life, rather than merely making decisions that may seem irrational or based on seemingly irrational motives. There is scant evidence to support the notion that individuals with mental disorders, as opposed to those without, lack the capacity to manage their behavior. Simply relying on the belief that those with mental disorders lack control should not be adequate grounds for depriving them of their freedom. Therefore, implementing a system of involuntary commitment solely for individuals with disorders cannot be justified solely on the premise of their supposed rational capabilities being impaired.

While the Mental Health (Amendment) Act of 2022 may employ human rights terminology, its failure to sufficiently safeguard these rights, particularly with regard to involuntary treatment provisions, remains a significant concern. To truly align mental health legislation with a human rights-centered approach, it is imperative to address these shortcomings. This necessitates a critical review and amendment of Section 14 to incorporate robust provisions for elaborate assisted decision-making and second opinions. By embracing these principles, we can pave the way for a more compassionate, dignified, and rights-respecting framework that truly prioritizes the autonomy and well-being of individuals within the mental health system.

By Wanjiru Kahura, Managing Partner

[1] Kamundia Elizabeth (2023) Kenya troubled 60-year mental health journey, Daily Nation.

[2] Sec 14 of the Mental Health (Amendment) Act 2022

[3] Article 27, Constitution of Kenya,2010

[4] S. Bunn, Howard R,(2023) Reforming the Mental Health Act-Approaches to improve Patient Choice, UK Parliament Post

[5] H.Christin,B.Esther,G.Jakov,S.Matthe (2023)When treatment becomes coercive; A context-sensitive model of informal coercion in mental healthcare, Taylor & Francis

[6] Stephen J, Morse (1982) , ‘A preference for liberty: The Case Against Involuntary Commitment of the Mentally Disordered, University of Pennsylvania Carey Law School