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)
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.
Quotable quotes...continued

“When the beat of the drum changes so must
the step of the dance.” An African proverb
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
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
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.
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
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
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)
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
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
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
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
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
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
Duties of a mental health user

To sign a discharge certificate if he or she refuses
a recommended treatment
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
Consultation with mental health
users

Lack of consultation could be fatal in some
cases
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
Thank you

Thank you very much

Merci

Asante sana

Ngiyabonga

Zikomo Kwambiri