- Elizabeth Kamundia
- Aspects of this chapter are drawn from my LLD thesis titled ‘Supported decision making as a human rights principle in mental healthcare: An international and comparative analysis’ which is under preparation.
- LLD candidate, Centre for Human Rights, University of Pretoria, South Africa
- E Kamundia ‘Regional developments: The right to the highest attainable standard of mental health in selected African countries: A commentary on how selected mental health laws fare against article 25 of the Convention on the Rights of Persons with Disabilities’ (2017) 5 African Disability Rights Yearbook 179-206
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Persons with disabilities have an equal right to access health services, including general health services and disability-related health services. In accessing health care, persons with disabilities encounter many barriers. These include stereotypes about disability on the part of health care providers; a lack of appropriately-trained health care staff; imbalanced power relationships between persons with health needs and medical professionals; inaccessible health care facilities; inaccessible health-related information; and a lack of individualised accommodations.1 These barriers are heightened in the circumstances of persons with psychosocial disabilities who face additional challenges, including legally-sanctioned involuntary commitment; forced treatment; and the use of restraints and solitary confinement in mental health care institutions. In addition, certain categories of persons with psychosocial disabilities require particular attention in health care settings. In this regard, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment in his 2013 report notes that ‘women living with disabilities, with psychiatric labels in particular, are at risk of multiple forms of discrimination and abuse in health-care settings’.2
In recognition of the fact that persons with disabilities continue to experience rights violations, including with regard to the right to the highest attainable standard of health, the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) was adopted on 13 December 2006.3 Forty-seven African states have signed and ratified the CRPD as at 23 April 2017;4 17 states have submitted state reports to the Committee on the Rights of Persons with Disabilities (CRPD Committee) and six states have already received Concluding Observations from the CRPD Committee.5
Article 25 of the CRPD provides for the right to the highest attainable standard of health without discrimination on the basis of disability. The right to the highest attainable standard of health falls under the category of economic, social and cultural rights, comprehensively addressed under the International Covenant on Economic, Social and Cultural Rights (ICESCR).6 The obligations imposed by economic, social and cultural rights work in a number of different ways, including providing freedoms; imposing obligations on a state regarding third parties; and imposing obligations on the state to adopt measures or to achieve a particular result. 7
The right to the highest attainable standard of health care is also recognised in African regional human rights instruments, including the African Charter on Human and Peoples’ Rights (African Charter),8 the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol)9 and the African Charter on the Rights and Welfare of the Child (African Children’s Charter).10 The African Commission on Human and Peoples’ Rights (African Commission) has adopted a Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol). Article 13 of the Protocol deals with the rights of persons with disabilities to the highest attainable standard of health.11 In addition, the African Commission has considered a case that touched on mental health care in The Gambia in Purohit & Another v The Gambia.12 In this communication, the Commission, among other issues, addressed the right to health and the treatment of persons with mental illnesses. The communication was brought on behalf of patients detained at the psychiatric unit of the Royal Victoria Hospital in The Gambia. The communication alleged that the Lunatics Detention Act was inadequate in that it did not prescribe requirements to guarantee the safeguarding of rights during diagnosis and detention of patients.
In its decision, the African Commission emphasised that human dignity was an inherent right, which must be respected at all times irrespective of the mental capability of a person. According to the Commission, persons with mental disabilities must not be denied their right to health care, which is necessary for their survival in society, and they should be accorded special treatment to enable them to attain the highest level of health.13 The Commission stated that the right to health was vital for the enjoyment of all other rights and included the right to access health care facilities and health services without discrimination. The Commission found that the government was in violation of the African Charter and urged it to repeal the Lunatics Detention Act and to provide adequate medical as well as material care for mental health patients. 14
Despite the widespread ratification of the CRPD and African regional human rights instruments, persons with disabilities in Africa continue to experience violations of their rights to health, pointing to an inadequate implementation of existing human rights treaties. This commentary examines the extent to which domestic mental health legislation in three African countries (South Africa, Ghana and Tanzania) complies with the standards set in article 25 of the CRPD. All three countries have ratified the CRPD,15 and legislated on mental health after 2000.16 South Africa follows a dualistic approach to international law other than for international instruments that are ‘self-executing’.17 Hence, any international agreement becomes law in South Africa once it is enacted into law by national legislation.18 Ghana19 and Tanzania,20 similarly, follow a dualist approach to international law.
The commentary is divided into five parts including the introduction and conclusion. The second part briefly explores the meaning of the right to the highest attainable standard of health care in the context of persons with disabilities. The third part examines the legislation governing mental health care in South Africa, Ghana and Tanzania, with a view to assessing the extent to which the legislation complies with the standard set in article 25 of the CRPD. The fourth part is a summarised reflection on the three mental health laws using the CRPD as the standard. In scope, the commentary focuses only on the legislative framework and does not address the relevant policy framework in mental health care in the three countries. The commentary also does not address issues of persons with psychosocial disabilities who are in contact with the criminal justice system, such as prisoners.
2 Meaning of the right to the highest attainable standard of health care in the context of persons with disabilities
According to article 1 of the CRPD, persons with disabilities ‘include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others’.21 This definition encapsulates the social model of disability according to which disability is not an intrinsic aspect of an individual; rather the emphasis is laid on the various barriers that hinder the full and equal participation of persons with disabilities in society. 22
Since the coming into force of the CRPD, persons with mental disabilities, their allies and, indeed, the CRPD Committee,23 to a large extent, have adapted the terminology ‘persons with psychosocial disabilities’.24 Persons with psychosocial disabilities are those ‘who experience mental health issues, and/or who identify as “mental health consumers”, “psychiatric survivors”, or “mad”’.25 In addition, the World Network of Users and Survivors of Psychiatry includes as users of mental health services people who experience mood swings, fear, voices or visions and people experiencing mental health problems or crises as persons with psychosocial disabilities.26 The term ‘psychosocial disability’ is meant to express ‘a social rather than medical model of conditions and experiences labelled as “mental illness”’.27 This commentary uses the terminology ‘persons with psychosocial disabilities’ or ‘mental health care users’.
Article 25 of the CRPD provides for the right to the highest attainable standard of health without discrimination on the basis of disability. Three elements of article 25 that are pertinent to access to health care services by persons with disabilities are equality and non-discrimination; the provision of health services as close as possible to peoples’ own communities; and the provision of health care on the basis of free and informed consent.28 The CRPD Committee is yet to develop a General Comment on article 25 of the CRPD. However, the Committee has issued a number of important Concluding Observations on article 25 that touch on mental health. The Committee has also developed a General Comment on article 12 on equal recognition before the law, which has significant implications for mental health care.29 Hence, it is possible to deduce the core of the right to the highest attainable standard of health care in the context of persons with disabilities.
The CRPD Committee has examined the state reports of various countries, including the following African countries: Ethiopia, Gabon, Kenya, Mauritius, Tunisia and Uganda.30 The Committee has issued Concluding Observations on the right to health to five of the six African countries whose state reports the Committee has examined so far.31 This section summarises the content of Concluding Observations made to African countries on the right to health that relate specifically to mental health.32 Examining these Concluding Observations is important to understand the meaning of the right to the highest attainable standard of mental health.
The CRPD Committee has made several recommendations on article 25 to African states examined so far. These include urging33
the development of a wide range of community-based services that respond to the needs of persons with disabilities and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health.
The Committee also recommended that state parties take the necessary steps to repeal legislation restricting the rights of persons with disabilities to free and informed consent,34 as well as enact laws which explicitly recognise the right of the individual to free and informed consent and prohibits the substitution of consent by a third party.35 The CRPD Committee further recommended the adoption of measures to ensure that all persons with disabilities have access to the highest attainable standard of health on an equal basis with others.36 In addition, the Committee recommended that state parties conduct regular training of hospital and health care personnel on the rights of persons with disabilities, including their right to free and informed consent and reasonable accommodation in all health care settings.37 The Committee also recommended that state parties ensure the availability of essential drugs for persons with mental health conditions in all health centres, especially in rural areas.38
As noted, the General Comment on article 12 on equal recognition before the law has important implications for mental health care. The General Comment states that ‘forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law’,39 among other rights.40 The General Comment asserts that state parties are obliged to provide access to support for decisions regarding psychiatric treatment, and ‘recommends that states parties ensure that decisions relating to a person’s mental integrity can only be taken with the free and informed consent of the person concerned’.41
The General Comment emphasises that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity’.42 According to the General Comment, ‘persons with cognitive or psychosocial disabilities have been, and still are, disproportionately affected by substitute decision-making regimes and denial of legal capacity’.43 Under a substituted decision-making regime, legal capacity is removed from a person and placed in the hands of another person (a substitute decision maker) by someone other than the person concerned. Substitute decision makers base their decisions on a ‘best interests’ standard rather than on the will and preferences of the person concerned.44
Mental health laws that permit forced treatment are identified as falling under substitute decision-making regimes. As such, the CRPD Committee urges state parties to replace substitute decision-making regimes by supported decision making. 45 According to the General Comment, a supported decision-making regime ‘comprises various support options which give primacy to a person’s will and preferences and respect human rights norms’.46
In the African context, it is important to acknowledge upfront that poverty impacts the exercise of the right to the highest attainable standard of health by all persons, including persons with disabilities. In Purohit,47 the African Commission acknowledged that
millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right.48
However, the African Commission emphasised the need for state parties to the African Charter ‘to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind’.49
This section evaluates the extent to which mental health laws in South Africa, Ghana and Tanzania protect and promote the right to the highest attainable standard of mental health for persons with psychosocial disabilities.
Globally, there are many misconceptions on mental health that lead to persons with psychosocial disabilities not being valued as equal members of society. These misconceptions also exist in Africa, and include beliefs that persons with psychosocial disabilities are cursed,50 violent, dangerous,51 and incapable of making their own decisions.52 As a result of stigma and discrimination engendered by these misconceptions, persons with psychosocial disabilities all over the world, including in South Africa, find it difficult to enjoy their human rights on an equal basis with others.53
This section examines South African domestic legislation, gauging the extent to which the legislation complies with the key elements of article 25 of the CRPD, namely, equality and non-discrimination; the provision of health services as close as possible to peoples’ own communities; and the provision of health care on the basis of free and informed consent.54
3.1.1 Obligation to prohibit discrimination against persons with disabilities in the provision of health services
Section 9 of the Constitution of the Republic of South Africa, 1996 comprises a robust equality and non-discrimination clause that operates both vertically55 and horizontally.5657 Disability is one of the prohibited grounds of unfair discrimination. Hence, persons with disabilities are protected from unfair discrimination across all spheres of life, including access to health care. However, as South Africa’s state report to the CRPD Committee notes, protection in law does not always translate into protection in practice:
So while persons with disabilities are, in principle, able to harness the law to protect and pursue interests on an equal basis with others, a number of obstacles, including persistent harmful traditional beliefs, ingrained stigmatisation and consequent discrimination on the one hand, and the interrelatedness of disability and poverty on the other ... detract from the equality provided for in law.58
Section 27(1)(a) of the South African Constitution provides that everyone has the right to have access to health care services, including reproductive health care. It has been argued that ‘the South African Constitution provides for universal access to health care services and not the right to attain the highest standard of physical and mental health’.59 However, section 27(1)(a) is phrased broadly enough to be interpreted generously as including ‘claims to all services, goods and facilities aimed at securing the greatest attainable standard of physical and mental well-being’.60 In addition, the manner in which the right to health is understood in international law must influence the understanding of this right in the context of the South African Constitution. This is particularly pertinent given that South Africa has ratified the ICESCR.
Other sections of the South African Constitution that touch on health care include sections 24 and 184. Section 24 of the Constitution provides that everyone has the right to an environment that is not harmful to their health or wellbeing. According to section 184(3), each year the South African Human Rights Commission must require relevant organs of the state to provide the Commission with information on measures they have taken towards the realisation of the rights in the Bill of Rights concerning a variety of issues, including health care. In practice, the responsiveness of relevant organs of the state to the Commission’s request for information varies. For example, in its 2012-2013 report, the Commission states:
All of the departments submitted their responses [to questionnaires sent by the Commission] after the initial deadline and some departments, including Social Development and Agriculture; Forestry and Fisheries had to be threatened with legal action before a response was received. The Commission aims to build stronger relationships with these departments to ensure smoother collaboration and compliance in the future. 61
South Africa does not have a specific Act to address issues of persons with disabilities; rather, disability issues are mainstreamed throughout various Acts as necessary.62
A key overarching principle under South Africa’s Mental Health Care Act 17 of 2002 is the integration of mental health care into the general health services.63 It is important to note, however, that mere integration is not enough; persons with disabilities may require support in exercising their health rights. The Special Rapporteur on the Rights of Persons with Disabilities in her 2016 report notes that support is a human rights obligation arising from various rights, including the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.64 In the absence of adequate support, persons with disabilities may not exercise their health rights on an equal basis with others.
With regard to equality and non-discrimination, section 10(1) of the Mental Health Care Act prohibits discrimination against a ‘mental health care user’ on the grounds of his or her mental health status. Section 1 of the Act defines a mental health care user as ‘a person receiving care, treatment and rehabilitation services or using a health service at a health establishment aimed at enhancing the mental health status of a user, state patient and mentally-ill prisoner’.65 In cases where the person concerned is below 18 years of age or considered ‘incapable of taking decisions’, the term ‘mental health care user’ may include the person’s next of kin as well as an administrator appointed under the Act.
The Act further states that ‘[e]very mental health care user must receive care, treatment and rehabilitation services according to standards equivalent to those applicable to any other health care user’.66
In spite of these provisions on equality between mental health care users and other health care users, the Mental Health Care Act discards the principle of free and informed consent with regard to mental health care users, as is discussed in more detail below. To illustrate, general health users are discharged from hospital unconditionally.67 However, often, in mental health care, discharge is conditional, as illustrated by section 34(6) of the Mental Health Care Act:
The head of the health establishment may cancel the discharge and request the user to return to the health establishment on an involuntary inpatient basis, if he or she has reason to believe that the user fails to comply with the terms and conditions of such discharge.
Article 25(c) of the CRPD places an obligation on state parties to provide ‘health services as close as possible to people’s own communities, including in rural areas’. Article 19 of the CRPD is closely related to article 25(c) and provides for the rights of persons with disabilities to live independently in the community and not to be obliged to live in particular living arrangements, as happens in the case of institutionalisation in mental health facilities. In addition, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in his 2013 report recommended that forced treatment and commitment in mental health facilities be replaced by services in the community.68 According to the Special Rapporteur:
Such services must meet needs expressed by persons with disabilities and respect the autonomy, choices, dignity and privacy of the person concerned, with an emphasis on alternatives to the medical model of mental health, including peer support, awareness-raising and training of mental health-care and law enforcement personnel and others. 69
According to the Special Rapporteur on the Rights of Persons with Disabilities, in her 2016 report, ‘[s]tates must establish an immediate moratorium on new admissions to institutions and set up a policy framework to guide deinstitutionalisation processes’.70 The Special Rapporteur clarifies that policy frameworks on deinstitutionalisation should
include the adoption of a plan of action with clear timelines and concrete benchmarks, the redistribution of public funds from institutions to community services and the development of adequate community support for persons with disabilities such as housing assistance, home support, peer support and respite services.
According to the Special Rapporteur, there is evidence to the effect that ‘when adequately planned and resourced, community services are much more cost-effective than institutional care’. 71
In its state report to the CRPD Committee, South Africa identifies that its main policy to mental health is community-based care.72 Recent reports and academic articles have criticised the South African state for embarking on de-institutionalisation measures without first setting up support services for mental health care in the community.73 The 2017 report by the Office of Health Standards Compliance provides information on deinstitutionalisation in Gauteng Province that went tragically wrong, resulting in the deaths of more than 94 persons with psychosocial disabilities.74
South Africa’s Mental Health Care Act has a mixed approach on the provision of care in the community: For persons with ‘serious’ mental health conditions, institutional care is prioritised, whilst community-based care is the main approach for those with ‘less serious’ mental health conditions. Section 1 of the Mental Health Care Act defines ‘health establishment’. From this definition, it is clear that mental health care facilities range from community health and rehabilitation centres and clinics to hospitals and psychiatric hospitals. To further illustrate, section 6(6)(g) provides that psychiatric hospitals may admit, care for, treat and rehabilitate ‘persons admitted for a long period as part of their care, treatment and rehabilitation’.75 The approach under section 6(6)(g) seems to be that there are certain categories of people whose care can only be provided within an institution - this goes against the spirit of articles 19 and 25(c) of the CRPD, which provide for the right of all persons with disabilities to live in the community.
3.1.3 Obligation to provide health care to persons with disabilities on the basis of free and informed consent
Article 25(d) of the CRPD emphasises that persons with disabilities should receive care of the same quality as those without disabilities ‘including on the basis of free and informed consent’. Article 25(d) is closely linked with article 12 of the CRPD on equal recognition before the law. Specifically, article 25(d) is closely related to article 12(2), which states that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. Legal capacity ‘includes the capacity to be both a holder of rights and an actor under the law’.76 As such, legal capacity protects an individual against unwanted interventions such as medical treatment that the person does not wish to receive.77
Under the National Health Act 61 of 2003, health services in South Africa are provided on the basis of free and informed consent.78 However, South Africa’s Mental Health Care Act mandates medical treatment of persons with psychosocial disabilities without their free and informed consent.79 In its state report to the CRPD Committee, South Africa identifies laws with a problematic notion of ‘informed consent’ in light of the CRPD.80 The Mental Health Care Act is not identified as one of these laws, and this may be read as signalling that the state does not intend changing this aspect of the mental health law.
In its General Comment on article 12 on equal recognition before the law, the CRPD Committee has identified mental health laws that permit forced treatment as being a key area in which persons with disabilities are denied their rights to legal capacity. The General Comment states:
States parties have an obligation to provide access to support for decisions regarding psychiatric and other medical treatment. Forced treatment is a particular problem for persons with psychosocial, intellectual and other cognitive disabilities. States must abolish policies and legislative provisions that allow or perpetrate forced treatment, as it is an ongoing violation of mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment. The Committee recommends that state parties ensure that decisions relating to a person’s physical or mental integrity can only be taken with the free and informed consent of the person concerned.
South Africa’s Mental Health Care Act allows for mental health care, treatment and rehabilitation of persons with psychosocial disabilities without their informed consent.81 South Africa’s Mental Health Care Act has two categories of care, treatment and rehabilitation without informed consent: ‘assisted care’ and ‘involuntary care’. Assisted care is administered to individuals who are ‘incapable of making informed decisions due to their mental health status and who do not refuse the health interventions’.82 Involuntary care is defined as ‘the provision of health interventions to people incapable of making informed decisions due to their mental health status and who refuse health intervention but require such services for their own protection or for the protection of others’.83 Substitute decision makers under the Act include a spouse; next of kin; a partner; an associate; a parent or guardian of the user;84 the head of the health establishment;85 a health care provider;86 the Review Board;87 and the High Court.88
Section 32 of the Mental Health Care Act involves ‘care, treatment and rehabilitation of mental health care users without consent’. Under this section, several reasons warrant the provision of care, treatment and rehabilitation without the individual’s free and informed consent. The first reason is the existence of a reasonable belief that the mental health care user has a mental illness that may cause him or her to inflict serious harm to himself or herself or others. Second, mental health care, treatment and rehabilitation may be administered without the consent of the individual if such care ‘is necessary for the protection of the financial interests or reputation of the user’.89 Third, such care may be given in cases where ‘at the time of the application the mental health care user is incapable of making an informed decision on the need for the care, treatment and rehabilitation services and is unwilling to receive the care, treatment and rehabilitation required’. 90
Section 26 involves assisted care. Under this provision, assisted care is provided without the individual’s consent to individuals who are ‘suffering from a mental illness or severe or profound mental disability’ in circumstances where the person requires ‘care, treatment and rehabilitation services for his or her health or safety, or for the health and safety of other people’91 and to individuals who are ‘incapable of making an informed decision on the need for the care, treatment and rehabilitation services’92.
Before a person can be treated on an ‘involuntary basis’, two mental health care practitioners must examine the person.93 The mental health care practitioners are required to submit written findings on whether the mental health care user must receive involuntary care, treatment and rehabilitation services.94 If after seven days of the assessment the head of the health establishment is still of the opinion that the mental health care user requires further involuntary care, the head of the health establishment must submit a written request to the Review Board to approve further involuntary care.95 Ultimately, under section 36, the High Court has the ultimate decision on the length of involuntary treatment.
from personal observation or from information obtained from a mental health care practitioner, that a person due to his or her mental illness or severe or profound intellectual disability is likely to inflict serious harm to himself or herself or others. 96
The Act also has provisions on voluntary care, where a person with a psychosocial disability is seen as an adult capable of giving informed consent. 97
Human rights violations do occur in psychiatric hospitals in Ghana, as in many other parts of the world.98 In 2012, Human Rights Watch published a report on abuses against persons with mental disabilities in Ghana.99 The Human Rights Watch report documents prevalent human rights violations in psychiatric facilities and prayer camps in Ghana as including
involuntary admission and arbitrary detention, prolonged detention, overcrowding and poor hygiene, chaining, forced seclusion, lack of shelter, denial of food, denial of adequate health care, involuntary treatment, stigma and its consequences, physical and verbal abuse, electro-convulsive therapy, and violations against children with disabilities. 100
In this report, one respondent who had spent time in Accra Psychiatric Hospital revealed that she had ‘witnessed people being injected with medications against their will, and nurses beating patients who failed to respond to instructions’.101 The respondent highlighted that what she needed ‘was a clinical psychologist to talk to and community-based rehabilitation, but these services are not easy to come by’. 102
In addition to psychiatric hospitals, persons with psychosocial disabilities in Ghana are often held in faith-based facilities, partly because mental disability is seen as having been caused by witchcraft or spiritual attacks.103 There is a lack of policy and regulation concerning the practice of psychiatry by faith-based practitioners,104 and there have been complaints of human rights violations in these facilities.105
3.2.1 Obligation to prohibit discrimination against persons with disabilities in the provision of health services
The Constitution of the Republic of Ghana, 1992 specifically provides for the rights to equality and non-discrimination of persons with disabilities. According to article 29(4) of the Ghanian Constitution, persons with disabilities ‘shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature’.
Several provisions in the Constitution of Ghana address health. Article 34(2) places an obligation on the President to present an annual report to parliament of all the steps taken to ensure the realisation of basic human rights, including the right to good health care. Article 36(10) mandates the state to safeguard the health, safety and welfare of all persons in employment.
The Persons with Disabilities Act 715 of 2006 makes provision for health care for persons with disabilities. Section 31 stipulates that in formulating health policies, the Ministry of Health ‘shall provide for free general and specialist medical care, rehabilitative operation treatment and appropriate assistive devices for persons with total disability’. According to section 32, the study of disability-related issues shall be part of the curricula of training institutions for health professionals. Section 33 also requires the Ministry of Health to include education on disability and disability issues in health care programmes. Incorporating specific education on disability issues in health care programmes could potentially ensure better access to good quality mental health care for persons with disabilities, especially if the curriculum approaches disability from a human rights perspective rather than solely from the medical model of disability.
The Mental Health Act 846 of 2012 comprises provisions on equality and non-discrimination of mental health care users.106 Under section 3(j), the Mental Health Authority is obliged to provide psychiatric in-patient care of an equitable standard to physical in-patient care. The Mental Health Act also provides that ‘[a] person with mental disorder is entitled to the same standard of care as a person with physical health problems and shall be treated on an equitable basis’107 on all matters, including access to essential medicines. The Act prohibits discrimination and imposes a fine of not more than five hundred penalty units or a term of imprisonment of not more than two years or both the fine and imprisonment to any person who subjects a person with mental disorder to discrimination.108 According to section 88(1), mental health care is free.
However, similar to the South African Mental Health Care Act, the Ghanaian Mental Health Act makes it clear that, unlike in physical health care, leaving a psychiatric institution - even for a ‘voluntary patient’ - is at the discretion of the institution. Section 40(5) of the Ghanaian Mental Health Act provides that at the time of admission, a voluntary patient must be alerted that a request for discharge may not be granted if the patient meets the criteria of involuntary admission at the time the request for discharge is made. In the event that a patient leaves the facility without the consent of the psychiatrist or the head of the facility, a report of this fact shall be made to the police, who are mandated to arrest the patient without warrant and return him or her to the hospital.109
In addition, section 68(1) states that a person with a mental disorder who is unable to manage his or her personal affairs because of the mental disorder shall be protected in a broad range of matters, including the right to treatment of choice. In terms of protection, if a court finds that a person is lacking in mental capacity, and is not competent to make decisions on a broad range of issues, including treatment, ‘the court shall appoint a guardian for the personal protection of that person’.110 In taking treatment decisions on behalf of a person with a mental disorder, the guardian is required to ‘consult with the incapacitated person where possible’ and to make treatment decisions ‘on behalf of the incapacitated person using a high standard of substituted judgment’.111 This provision runs contrary to the General Comment on article 12 on equal recognition before the law, which proposes a complete shift from substitute decision making in the context of adults with disabilities.
Section 3.2 highlights that human rights violations often occur in institutional settings,112 and that the human rights of persons with disabilities are best protected when health services are provided as close as possible to people’s own communities. This section examines Ghanaian law on the right of persons with disabilities to live in the community as well as provision of community-based health care services.
The Constitution of Ghana provides for the right of persons with disabilities to live in the community. Article 29(1) provides that ‘[d]isabled persons have the right to live with their families or with foster parents and to participate in social, creative or recreational activities’. The same article, however, has a claw-back clause on the right of persons with disabilities to live in the community. Article 29(2) provides that a person with a disability shall not be subjected to different treatment in respect of residence other ‘than that required by his condition or by the improvement which he may derive from the treatment’.113 As a safeguard, the article provides that living in ‘specialised establishments’ for persons with disabilities shall occur in circumstances where such stay is ‘indispensable’ and the environment and living conditions ‘shall be as close as possible to those of the normal life of a person of his age’. 114
The Ghanaian Mental Health Act espouses the principle of care, treatment and rehabilitation in the least restrictive environment.115 The Act defines ‘least restrictive’ as ‘a regime of treating a person with mental disorder in a situation or environment where the freedom of movement, association and choice of the person is minimally constrained’.116 In addition, the Act requires the Mental Health Authority to ‘provide for educational, vocational and leisure opportunities within mental health facilities’. 117
However, the Act mandates in-patient care for persons with psychosocial disabilities.118 In terms of time frames, a person can be institutionalised for a period of up to 12 months under the Ghanaian Mental Health Act once under a ‘prolonged treatment order’.119 Under section 46 of the Act, prolonged treatment in a psychiatric hospital is ordered if the psychiatrist or head of a facility is of the opinion that the severity of the condition warrants this. Section 47 provides that ‘[t]he period of the prolonged treatment order shall not exceed twelve months at a time’.
3.2.3 Obligation to provide health care to persons with disabilities on the basis of free and informed consent
The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment in his 2013 report details abuses in health care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment. The report strongly recommends the abolition of legislation ‘authorising institutionalisation of persons with disabilities for their care and treatment without their free and informed consent’.120 The Special Rapporteur’s 2013 report further states that ‘informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision’.121 According to the Special Rapporteur, ‘guaranteeing informed consent is a fundamental feature of respecting an individual’s autonomy, self-determination and human dignity in an appropriate continuum of voluntary health-care services’.122
The Ghanaian Mental Health Act defines informed consent as ‘an agreement or consent for a procedure given freely without coercion by a person with capacity when the person has been made fully aware of the nature of the procedure, its implications and available alternative’.123 The Act classifies mental health care users into three main categories, namely, voluntary,124 involuntary125 and emergency.126 The Act requires the consent of a voluntary patient to be obtained before treatment is given, and a voluntary patient has the right to refuse treatment under the Act.127 In addition, a voluntary patient can request a discharge from a facility. However, such a request can only be honoured if the person does not meet the conditions for involuntary admission.128
Section 42 of the Ghanaian Mental Health Act addresses involuntary treatment. According to the Act, involuntary admission and treatment is applicable where a person believed to be suffering from a mental disorder is at personal risk or a risk to other people,129 and where ‘there is a substantial risk that the mental disorder will deteriorate seriously’.130 Once the court is satisfied that a person meets these requirements, the court may place a person in a psychiatric hospital for treatment for a period not exceeding one month.131 An individual would then require the consent of a psychiatrist or head of a facility in order to leave the psychiatric hospital.132 The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment in his 2013 report recommended the repeal of provisions
authorising the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness. 133
Emergency treatment is addressed in section 48 of the Act. Under this provision, a police officer, a relative or any other person with or without the assistance of a police officer may take the person to a mental health facility for a certificate of urgency in cases where ‘it is expedient either for the welfare of a person suspected to be suffering from mental disorder or for public safety’.134
The Ghanaian Mental Health Act mandates several categories of substitute decision makers to make treatment decisions on behalf of a person with a psychosocial disability.135 To illustrate, section 29 protects the right to informed consent of the individual seeking mental health care services, in particular with regard to intrusive or irreversible procedures. At the same time, the Act contains a claw-back clause authorising the Mental Health Review Tribunal to approve requests for intrusive or irreversible treatment.136 In addition, the Ghanaian Mental Health Act mandates the appointment of a guardian to protect a ‘person with mental disorder’ in a range of matters including ‘the right to treatment of choice’.137
Tanzania has been said to have ‘an astonishing shortage in mental health care’.138 This section examines mental health care in Tanzania, with a focus on equality and non-discrimination; the provision of health services as close as possible to peoples’ own communities; and the provision of health care on the basis of free and informed consent. 139
3.3.1 Obligation to prohibit discrimination against persons with disabilities in the provision of health services
The Constitution of Tanzania does not contain a provision on the right to health. Article 12 of the Tanzanian Constitution addresses the right to equality and provides that ‘all human beings are born free, and are all equal’. Article 13(4) of the Constitution concerns non-discrimination and provides that ‘[n]o person shall be discriminated against by any person or any authority acting under any law’.
Section 26 of the Tanzanian Persons with Disabilities Act 9 of 2010 provides that ‘[e]very person with a disability shall have the right to enjoy the attainable standard of health care services without any discrimination’. The Act also requires health facilities to ‘[p]rovide persons with disabilities with the same level and standard of health and rehabilitation services as provided to other citizens’.140 Further, the Act requires that health and rehabilitation personnel be equipped with knowledge to respect the ‘rights, dignity and needs of persons with disabilities’.141 In addition, the Minister is mandated to ensure that health services provided to persons with disabilities are provided after the person has given his free and informed consent.142 In line with article 4(3) of the CRPD, the Act requires that persons with disabilities participate in planning, delivering, monitoring and evaluation of health and rehabilitation services.143 It is an offence to deny or discriminate against any person with a disability in relation to access to health care and rehabilitation.144
Tanzania’s Mental Health Act 21 of 2008 does not expressly provide for equality and non-discrimination of persons with psychosocial disabilities. The Act fails to espouse equality between mental health care users and other health care users. To illustrate, the Mental Health Act discards the principle of free and informed consent with regard to mental health care users. According to section 9, a variety of state officials145 are mandated to cause a ‘mentally disordered person’ who is not under ‘proper care and control’ to be brought to a mental health care facility.
Further, according to section 4(3), a mental health care user may only be discharged ‘subject to the procedures available to other patients not suffering from mental disorder’ if he or she is assessed and found to be capable of taking care of himself or herself and is no longer dangerous to himself or herself, the community or property.
The Mental Health Act of Tanzania provides for both institutional care and community-based care. To illustrate, according to Tanzania’s Mental Health Act, health care interventions include ‘institution-based treatment, community-based treatment and social rehabilitation’.146 Further, a mental health care facility is defined as including ‘a forensic psychiatric hospital, rehabilitation centre, boarding houses or community houses providing care for persons with mental disorders’.147.
The Tanzanian Mental Health Act recognises that persons with psychosocial disabilities may require support in living in the community. According to the Act, the district social welfare officer is required to work with available mental health care facilities to improve social support structures for persons with psychosocial disabilities.148 Further, mental health care facilities are required to ensure family and community involvement in the care of persons with psychosocial disabilities in the mental health care facility, and to be involved in establishing strategies for continuity of care.149 Finally, one of the functions of the National Council for Mental Health is to encourage and facilitate community involvement in the promotion of mental health. 150
3.3.3 Obligation to provide health care to persons with disabilities on the basis of free and informed consent
Tanzania’s Mental Health Act provides for three different categories of mental health care users, namely, voluntary, involuntary and temporary. Under the Mental Health Act, care, treatment and rehabilitation can be offered to Tanzanians with psychosocial disabilities without their free and informed consent.
To illustrate, upon the discharge of a voluntary mental health care user, the Act mandates the officer in charge of the mental health care facility to ensure continuity of care on an out-patient basis. The Act gives no consideration to whether or not the individual consents to continuing out-patient care.151 In addition, a person who is received as a voluntary patient in a mental health care institution shall be admitted for treatment and care using involuntary admission procedures if found to be incapable of taking care of himself or herself or a danger to himself or herself, the community or property.152 Additional criteria for involuntary admission and treatment under the Act are where there is a risk of deterioration153 and where the individual is being ‘cruelly treated or neglected by the person having the care or charge of him’. 154
Tanzania’s Mental Health Act provides a category known as ‘temporary patient’, a status quite similar to ‘assisted’ mental health care user under South Africa’s Mental Health Care Act. A ‘temporary patient’ is a ‘person who is suffering from mental disorder or mental defect and is likely to benefit by temporary treatment in a mental hospital but is for the time being incapable of expressing himself as willing or unwilling to receive treatment’.155 Under the Tanzanian Act, where an individual is unable to express himself or herself, the individual is simply deemed as a temporary patient as opposed to being provided with support to make his or her own treatment decisions. Further, Tanzania’s Mental Health Act provides for a guardian, who is defined as ‘any person having charge of a person with mental disorder’.156
Section 11 provides for involuntary care ordered by the court ‘for a period not exceeding thirty days, or as may be necessary to enable the mental health practitioner to assess the nature of the mental disorder and provide treatment and care’. The Act also charges ‘any person taking care of a mentally disordered person’ to ‘ensure that the person does not abscond from treatment and care in that mental health care facilities’. 157
All three mental health laws considered allow for voluntary care, treatment and rehabilitation. However, under all the Acts, voluntary treatment can be converted into involuntary treatment if certain conditions exist. At the same time, all the Acts provide for care, treatment and rehabilitation without the consent of the individual once certain conditions are met. The common condition for involuntary treatment under all the Acts is where the person with a psychosocial disability is a danger to himself or herself or others. Hence, all three Acts limit the exercise of legal capacity by persons with psychosocial disabilities with regard to mental health treatment decision making. In addition, the Acts do not make a distinction between mental capacity and legal capacity. Under all the Acts, once an individual’s mental capacity is questioned, the individual loses the right to exercise legal capacity with regard to health care decision making among other spheres of decision making. It is clear that the Acts operate under a ‘best interests’ model rather than a model premised on the will and preference of the individual with psychosocial disabilities. 158
One of the key guiding principles under the CRPD is that of the full participation of persons with disabilities, often termed ‘nothing about us without us’.159 The three Acts differ in the extent to which persons with disabilities are involved in mental health care systems, with the Ghanaian Mental Health Act legislating for the fullest involvement comparatively. For example, under the Ghanaian Act, the composition of the Mental Health Review Tribunal includes a service user.160 Further, under the Ghanaian Act, the Mental Health Authority should ‘consult persons with experience as service users as well as family members for the formulation, development and implementation of mental health policies’. 161
The three Acts make mention of human rights, but differ substantially in the extent of rights protected. To illustrate, the South African and Ghanaian Acts propose specifically regulating intrusive and irreversible treatments and seclusion or restraint, while the Tanzanian Act is silent on this issue.162 South Africa’s Mental Health Care Act and the Ghanaian Mental Health Act make it mandatory for health care providers to inform mental health care users of their rights prior to treatment.163 The Tanzanian Act is silent on this issue. The Ghanaian Mental Health Act has specific provisions for especially vulnerable persons, such as female mental health care users.164 The South African Act also recognises the special vulnerability of children who use mental health services.165 The Tanzanian Act is silent on this issue. All three Acts impose a penalty for neglecting or abusing a mental health care user.166 Only the Ghanaian Mental Health Act provides for a treatment plan.167 Under this Act, the mental health care user and their caregiver are to be involved in the development of a treatment plan.
The Acts contain a variety of safeguards around care, treatment and rehabilitation without informed consent. These include the right of appeal,168 limiting the amount of time during which one can be held under involuntary care169 and limiting the use of intrusive and irreversible treatments during emergency care.170 An additional safeguard found only in the Ghanaian Act allows a person to lay complaints about management.171
Given the prevalence of human rights violations in alternative places of mental health treatment in the African context, it would be essential for mental health care laws to address this issue. Only the Ghanaian Mental Health Act addresses human rights violations in alternative places of mental health treatment. The Act requires the Minister to ‘make regulations to provide for the welfare of patients and minimal conditions of environmental hygiene in mental health facilities including spiritual mental health facilities’. 172
Persons with psychosocial disabilities can benefit significantly from community support services. Peer support, for example, is an effective tool to support people experiencing severe emotional distress and to prevent coercion in mental health services.173 However, none of the Acts entrenches peer support in legislation.
The mental health laws of South Africa, Ghana and Tanzania all fall below the standard set in articles 12 and 25 of the CRPD. In legalising the non-consensual psychiatric treatment of persons with psychosocial disabilities, the mental health laws of the three countries also violate the rights of persons with disabilities to equality and non-discrimination. Article 4(b) of the CRPD calls upon state parties ‘to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’. Hence, it is clear that the reform of the mental health laws of the three countries is urgently required, given that the three countries have ratified the CRPD.
There are many challenges in Africa in implementing the right to the highest attainable standard of mental health, namely, limited resources;174 corruption;175 weak monitoring systems;176 and limited expertise on providing health care to persons with disabilities.177 It is conceded that health budgets in Africa have many demands, including HIV/AIDS, malaria and other diseases. However, mental health should also be considered a priority issue, including in resource allocation. Resource allocation should cover all the important elements of mental health care, including support for decision making; the provision of care in the community; monitoring the quality of health care services; and adequate funding for the various bodies set up under the Mental Health Acts.
In implementing the right to the highest attainable standard of health care, collaboration and partnerships between public authorities and civil society organisations, including representative organisations of persons with disabilities, is important, especially in the area of provision of support.178
3. United Nations Division for Social Policy and Development Disability ‘Convention on the Rights of Persons with Disabilities’ https://www.un.org/development/desa/disa bilities/convention-on-the-rights-of-persons-with-disabilities.html (accessed 26 April 2017).
4. Disabled World ‘CRPD List of Countries: Convention, Optional Protocol Signatures, Ratifications’ https://www.disabled-world.com/disability/discrimination/crpd-milestone.php (accessed 26 April 2017).
5. United Nations Office of the High Commissioner for Human Rights http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5 (accessed 8 May 2017).
7. International Commission of Jurists ‘Courts and the legal enforcement of economic, social and cultural rights: Comparative experiences of justiciability’ http://www.humanrights.ch/upload/pdf/080819_justiziabilitt_esc.pdf (accessed 26 April 2017).
8. Art 16 provides for the right to enjoy the best attainable state of physical and mental health. The following articles of the African Charter also have a bearing on the right to the highest attainable standard of health: art 2 (prohibition of discrimination); art 5 (right to dignity, prohibition of torture and slavery); and art 24 (right to a satisfactory environment).
11. Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, adopted at the 19th extraordinary session of the African Commission on Human and Peoples’ Rights, held 16-25 February 2016 in The Gambia, http://www.achpr.org/files/news/2016/04/d216/disability_protocol.pdf (accessed 26 April 2017).
15. United Nations Treaty Collection ‘Convention on the Rights of Persons with Disabilities’ https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4&lang=en (accessed 26 April 2017).
19. Constitution of the Republic of Ghana (1992) sec 75(2): ‘A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by an Act of Parliament.’
22. C Ngwena ‘Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa: A case study of contradictions in inclusive education’ (2013) 1 African Disability Rights Yearbook 145.
24. It is important to note that legislation in the three countries (South Africa, Ghana and Tanzania) uses different terminology. Eg, Tanzania’s Mental Health Act uses ‘person with mental disorder’ and ‘patient’. Sec 2 of the Act defines ‘mental disorder’ to mean ‘a significant occurrence of a mental or behavioural disorder classified in the International Classification of Diseases published by the World Health Organisation’. Sec 2 of Tanzania’s Mental Health Act defines ‘patient’ as ‘a person suffering or deemed to be suffering from mental disorder’. Sec 1 of the South African Mental Health Care Act defines ‘mental health care user’ to mean ‘a person receiving care, treatment and rehabilitation services or using a health service at a health establishment aimed at enhancing the mental health status of a user’. Ghana’s Mental Health Act uses ‘patient’ and ‘person with mental disorder’. According to sec 97, ‘patient’ means a person with mental disorder receiving mental health care.
26. World Network of Users and Survivors of Psychiatry ‘Psychosocial disability’ https://www.google.com/search?q=persons+with+psychosocial+disabilities&ie=utf-8&oe= utf-8&client=firefox-b-ab# (accessed 7 March 2017).
30. United Nations Office of the High Commissioner ‘State reports’ http://tbinternet. ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&Doc TypeID=29 (accessed 26 April 2017).
31. Concluding Observations on art 25 of the CRPD on the right to health have been issued to Ethiopia, Kenya, Gabon, Uganda and Mauritius. Only Tunisia did not receive Concluding Observations on this article.
37. As above; United Nations Office of the High Commissioner for Human Rights ‘Concluding Observations on the initial state report of Uganda’ CRPD/C/UGA/CO/1 para 51(a); CRPD ‘Concluding Observations on the initial report of Ethiopia’ CRPD/C/ETH/CO/1 para 56.
40. In addition to being a violation of the right to equal recognition before the law, the CRPD Committee identifies that forced treatment by psychiatric and other health and medical professionals is an infringement of the rights to personal integrity (art 7); freedom from torture (art 15); freedom from violence, exploitation and abuse (art 16); and health care based on free and informed consent (art 25).
51. M Dako-Gyeke & E Sowah Asumang ‘Stigmatisation and discrimination experiences of persons with mental illness: Insights from a qualitative study in Southern Ghana’ (2013) 11 Social Work and Society International Online Journal.
52. Mental Health America ‘Position statement 22: Involuntary mental health treatment’ http://www.mentalhealthamerica.net/positions/involuntary-treatment (accessed 7 March 2017); S Kleintjes et al ‘Barriers to the participation of people with psychosocial disability in mental health policy development in South Africa: A qualitative study of perspectives of policy makers, professionals, religious leaders and academics’ (2013) 13 BioMed Central International Health and Human Rights.
53. M Swanepoel ‘Human rights that influence the mentally-ill patient in South African medical law: A discussion of sections 9; 27; 30 and 31 of the Constitution’ (2011) 14 Potchefstroom Electronic Law Journal; CO Egbe et al ‘Psychiatric stigma and discrimination in South Africa: Perspectives from key stakeholders’ (2014) 14 Bio Med Central Psychiatry.
58. Office of the High Commissioner for Human Rights ‘Initial report of South Africa submitted in accordance to Article 35 of the Convention’ para 51 http://tbinternet. ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&Doc TypeID=29 (accessed 7 March 2017).
62. Acts that mainstream disability issues include the Broad-Based Black Economic Empowerment Act 53 of 2003; the Child Justice Act 75 of 2008; the Children’s Act 53 of 2003; the Co-Operatives Act 14 of 2005; the Employment Equity Act 55 of 1998; the National Building Regulations and Building Standards Act 103 of 1977; the National Health Act 61 of 2003; the Sterilisation Act 44 of 1998; the National Land and Transport Act 5 of 2009; the Preferential Procurement Policy Framework Act 5 of 2000; the Social Assistance Act 13 of 2004; and the South African Library for the Blind Act 91 of 1998. See Grobbelaar-Du Plessis (n 17 above) 315.
72. Office of the High Commissioner for Human Rights ‘Initial report of South Africa submitted in accordance to Article 35 of the Convention’ para 276(3) http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=29 (accessed 7 March 2017). See also sec 8(2) of the Mental Health Care Act, which states that mental health care services should ‘improve the mental capacity of the user to develop to full potential and to facilitate his or her integration into community life’.
73. South African Human Rights Commission Public inquiry: Access to health care services (2009) 50; UA Botha et al ‘Assessing the efficacy of a modified assertive community-based treatment programme in a developing country’ (2010) 10 BMC Psychiatry 2; Ubuntu Centre South Africa ‘Esidimeni campaign 2016’ https://ubuntucentre.wordpress.com/esidimeni-campaign-2016/ (accessed 27 January 2017); Office of Health Standards Compliance ‘Final report into the circumstances surrounding the deaths of mentally-ill patients: Gauteng Province’ (2017) http://www.ohsc.org.za/index.php/news/media-releases/129-report-into-deaths-of-mentally-ill-patients-gauteng-province-3 (accessed 15 February 2017).
75. See also secs 34(4) and 37. Sec 34(4) mandates transfer for in-patient care in psychiatric hospitals, while sec 37 illustrates that a person can spend more than 12 months as an ‘involuntary mental health care user’ in a psychiatric hospital.
80. These include the Choice on Termination of Pregnancy Act, 1996; the Sterilisation Act, 1998; the National Health Act, 2003; and the Children’s Act, 2005. See Office of the High Commissioner for Human Rights ‘Initial report of South Africa submitted in accordance to Article 35 of the Convention’ para 125 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=29 (accessed 7 March 2017).
84. See sec 27(1)(a) on application for assisted care, treatment and rehabilitation services; 29(1)(a) on appeal against decision of head of health establishment to approve application for assisted care, treatment and rehabilitation; 33(1)(a) on application to obtain involuntary care, treatment and rehabilitation; and 35 on appeal against decision of head of health establishment on involuntary care, treatment and rehabilitation.
85. These include sec 14 of the Mental Health Care Act on limitation on intimate adult relationships; sec 26(a) on care, treatment and rehabilitation services for mental health care users incapable of making informed decisions; and 27(5) on application for assisted care, treatment and rehabilitation services.
97. Sec 1(xi) defines voluntary care, treatment and rehabilitation as ‘the provision of health interventions to a person who gives consent to such interventions’. Other sections on persons with psychosocial disabilities giving consent include secs 9, 26, 29(3), 30(5)(a)(ii), 34(3)(a), 35(3)(b) and 38(2).
98. M Roberts et al ‘An overview of Ghana’s mental health system: Results from an assessment using the World Health Organisation’s assessment instrument for mental health systems (WHO-AIMS)’ (2014) 8 BioMed Central International Health and Human Rights; A Ofori-Atta et al ‘A situation analysis of mental health services and legislation in Ghana: Challenges for transformation’ (2010) 13 Africa Journal of Psychiatry 99-108.
135. Eg, the court under sec 43(3); the Mental Health Review Tribunal under secs 26(3) & 71(5); the psychiatrist or head of facility under secs 46(1) & 50; a police officer under sec 48(1); a relative under sec 48(1); the personal representative under sec 62(2); and a guardian under sec 68(1).
138. In2mentalhealth ‘Challenges in mental health care Tanzania: What can eLearning add?’ https://in2mentalhealth.com/2011/06/07/challenges-in-mental-health-care-tanzania-what-can-elearning-add/ (accessed 9 May 2017).
158. Eg, sec 7(2) of the South African Act explicitly states that ‘[i]n exercising the rights and in performing the duties set out in this Chapter, regard must be had for what is in the best interests of the mental health care user’. For more on ‘best interests’ versus ‘will and preference’, see General Comment 1 (n 23 above) para 21; E Flynn & A Arstein-Kerslake ‘Legislating personhood: Realising the right to support when exercising legal capacity’ (2014) 10 International Journal of Law in Context 96.
171. Sec 59 Ghana Mental Health Act; the Tanzania Mental Health Act has a similar provision, but the provision is not specific about complaints regarding the management. Under the Tanzanian Act, one of the functions of the Patient Welfare Board is to receive complaints from individual patients, their relatives or any concerned third party relating to the affairs of patients.
176. World Health Organisation Regional Office for Africa, Brazzaville, Congo ‘Leveraging eHealth to improve national health systems in the African region’ https://www.aho.afro.who.int/sites/default/files/ahm/reports/47/ahm-issue-14-leveraging-ehealth.pdf (accessed 9 May 2017).
- Damalie Naggita-Musoke
- Doctor of Juridical Science (SJD) (Wisconsin-Madison)
- D Naggita-Musoke ‘Regional developments: Disability rights developments in the East African Community post-2012’ (2017) 5 African Disability Rights Yearbook 207-217
- Download article in PDF
The development of disability rights saw a spate of growth in the period preceding 2013 both internationally and in the East African region. During this period, most East African Community (EAC) partner states ratified the UN Convention on the Rights of Persons with Disabilities (CRPD)1 as well as took steps to enact or review domestic legislation in the area of disability. At the East African regional level, several instruments were concluded for the empowerment of persons with disabilities as well as the advancement of their rights. However, there appears to have been a slowing down of this initial momentum, as will be shown below2.
As an organising bloc, the EAC has various mandates. Although the Community is premised on the economic co-operation of partner states parties, a number of areas of co-operation are spelt out in both its Establishing Treaty and the Protocol.3 For example, under the Protocol, while partner states have the broad mandate to harmonise social policies, they are specifically obligated to, among others, harmonise their social policies relating to good governance, the rule of law and social justice; promotion and protection of human and peoples’ rights; promotion of equal opportunities and gender equality; promotion and protection of the rights of marginalised and vulnerable groups.4
In addition, partner states must implement programmes which expand and improve social protection; promote the rights of persons with disabilities; and prevent and manage epidemics and other diseases to improve hygiene and health and eliminate ignorance, diseases and poverty.5 The implementation of all these aspects is within the spirit and broad mandate of the East African Community Treaty in terms of which partner states must adopt a common approach towards marginalised groups, and ensure equality and equity with the ultimate goal of ensuring empowerment for all.6 Thus, while the documents establishing the Community do not specifically spell out disability as a key area for co-operation, the aforesaid provisions as well as the activities of the EAC clearly show that disability has been taken up as a key area for co-operation and intervention.
A potentially significant development during this period has been the judgment of the Appellate Division of the East African Court of Justice in the case of Democratic Party v The Secretary-General of the EAC,7 which has opened up the possibility of the Court assuming jurisdiction in human rights matters. 8
In respect of law and policy development, the Community, for example, has developed the EAC Policy on Persons with Disabilities as well as the EAC Persons with Disability Bill. The Community also adopted the Strategic Plan for Gender, Youth, Persons with Disabilities, Social Protection and Community Development 2012-2016. This commentary seeks to analyse these legal developments, and assess how far they have been effective in protecting and promoting the rights of persons with disabilities in the region.
This policy was adopted in March 2012 with the broad objective of serving as a mechanism for promoting and ensuring the full and equal enjoyment of human rights and fundamental freedoms by persons with disabilities as well as respect for their inherent dignity.9 It was the culmination of a series of meetings, dialogues and consultations with various stakeholders as well as experts on issues of disability. The first EAC Conference on persons with disabilities also played an important role in the conclusion of this instrument.10 The policy was seen as a tool for the promotion of equality and equity and would be used as a yardstick to inform other policies, programmes and sectoral plans among EAC partner states.11 It was intended to promote a framework for enhancing the recognition of the roles, contributions and potential of persons with disabilities in the development process; strengthening and developing the informal and formal community-based support systems and actions for persons with disabilities; recognising that disability is not inability; providing special safety nets for persons with disabilities; ensuring and improving access to rehabilitation, education, training and community sports; guiding, co-ordinating and harmonising interventions for persons with disabilities by stakeholders; promoting and protecting disability rights as human rights; promoting research on disability issues; and promoting the self-representation of persons with disabilities in all public decision-making structures.12
The policy was developed after a comprehensive analysis of national legislation, policies and reports on the status of implementation of the CRPD. Several gaps and challenges affecting persons with disabilities were identified during the consultations with partner states. This prompted the need for a policy that would provide an enabling environment by partner states for the empowerment of persons with disabilities through facilitating effective participation in development initiatives.13 Although the CRPD envisages a limited role for regional integration organisations such as the EAC in its implementation, the EAC Treaty does not bestow on the Community a mandate to ratify treaties.14 Thus, there is the need for an EAC framework for co-operation in the area of disability rights. Accordingly, the policy has very elaborate provisions on equitable access, social protection and capacity building at all levels.15
The policy made a number of recommendations for partner states’ attention and action, some of which have been implemented. For example, Burundi ratified the CRPD on 22 May 2014 as had been recommended,16 and there has been increased state spending in Kenya.17
Perhaps deserving more detailed mention is South Sudan, the latest entrant to the EAC.18 One year after joining the Community, it still has not ratified the CRPD or its Optional Protocol19 as required by the EAC Disability Policy. On a positive note, it has in place the National Disability and Inclusion Policy 2013,20 the purpose of which is to provide a sound direction to all stakeholders on how to overcome multiple barriers at policy, service, community and governance levels towards an inclusive South Sudan where all men and women and boys and girls with different disabilities can contribute to the further development and reconstruction of the country.21 The Policy recognises that discrimination against and the exclusion of persons with disabilities are among the major threats to the realisation of the human rights of persons with disabilities, undermining their ability to benefit from the development process.22 The Policy also acknowledges the fact that South Sudan has not ratified a number of International legal instruments, including the CRPD, but asserts that the Policy was developed in conformity with principles enshrined, among others, in the CRPD.23 The Policy is guided by the principles of non-discrimination and a human rights-based approach, affirmative action, diversity and inclusiveness, participation and disability mainstreaming.24 Finally, one of the priority intervention areas of the Policy is ’support of ratification, awareness and capacity building of the UN Convention on the Rights of Persons with Disabilities and other related international and regional instruments’.25 Apart from this policy, South Sudan has no specific Disability Act, neither does it expressly protect the rights of persons with disabilities in its Constitution, although it refers to (but does not define) ‘persons with special needs’.26
It should be noted, however, that five years after the inception of the EAC Policy, there is not much to be written regarding its implementation. State parties continue to adhere to the national implementation of laws and policies as opposed to implementation of the regional policy. The policy provides for review every five years.27 Although the said five years elapsed in March 2017, the policy has not yet been reviewed, neither has there been a comprehensive review of the performance of partner states towards implementing the policy objectives and provisions. It is hoped that this review will still take place and that it will address the issue of ensuring the effective implementation of the policy. This is very important as the implementation framework in the policy provides for the EAC Secretariat as the lead implementation agency, but leaves the responsibility for effective implementation to each partner state. Funding for the policy, meanwhile, is provided for in a vague way that confers the role of resource mobilisation on national disability councils.28 The contradiction here is that these councils depend on national governments for their own funding, and would thus not be in a position to raise adequate funding for the effective implementation of the policy. The additional provision of financing the policy within the existing funding mechanism of the EAC also may not amount to much in the absence of a clear undertaking to commit funds for the implementation of the policy.
One of the landmark outcomes of the 2010 EAC Disability Conference was the decision to institutionalise the EAC Disability Conference and to hold it every two years.29 The Conference did not take place in 2012 and no explanation has been put forward for this lapse. The second Conference took place in 2014.30 During the 2014 Conference on disability, a call was made for the development of a regional law on disability. This was viewed as an opportunity to integrate the standards of the CRPD into EAC law and to provide a comprehensive legal framework for the protection of the rights of persons with disabilities in the EAC through the enactment of a ‘regional special needs Act’.31 The EAC Persons with Disability Bill was subsequently presented to the East African Legislative Assembly (EALA) in July 2015.
The broad objective of this Bill is for partner states inter alia to take appropriate and effective measures, including policy, legislative, administrative and budgetary steps, to ensure and protect the rights and dignity of persons with disabilities. In promoting and protecting the rights of persons with disabilities, apart from the general obligations, the Bill is organised around a number of core areas. These are equality and non-discrimination; life and security of persons with disabilities; living in the community; accessibility, mobility and social protection; employment; education; health; and women, children and older persons with disabilities.
The Bill recognises the fact that persons with disabilities are prone to multiple discrimination on account of various factors, including birth, age, gender, sex, economic and/or social status, and enjoins partner states to ensure their protection through policy, legislative, administrative and other measures.32 It emphasises accessibility to goods, services and information and recognises the right to independent living.33 The Bill provides for the right to decent and productive work as well as favourable conditions of employment for persons with disabilities, and enjoins partner states to ensure that they are accorded reasonable accommodation at the workplace.34 The rights to education (including inclusive education), health and social protection are guaranteed by the Bill, with partner states under a duty to take effective and appropriate measures to ensure and facilitate the enjoyment of these rights.35 The Bill recognises the multiple vulnerabilities of women, children and older persons with disabilities and makes express provision for their special protection.36 In particular, the Bill recognises and obliges partner states to take into account age-related aspects of disability in their programming and resourcing, and devotes a whole article to areas of intervention partner states must include in addressing disability and ageing.37 The recognition of the link between ageing and disability is a welcome development that should help to address a section of the population which is at increasing risk due to urbanisation and the breakdown of traditional ways of life, where social support is no longer guaranteed in the family setting as was the case in the past. In addition to the above, the Bill provides for political participation of persons with disabilities.38
Part XIII of the Bill is devoted to institutional arrangements, with the establishment of the EAC Commission for Persons with Disabilities as the monitoring and implementing agency for the law, with powers to establish technical committees for the better execution of its functions.39 The Bill also provides for the establishment of the East African Community Persons with Disability Fund for purposes of providing support to persons with disabilities. This funding, among others, is to be contributed by partner states.40
Another provision worth noting in this Bill, for example, is the recognition that persons with disabilities are not only rights holders but also duty bearers.41 In this respect, persons with disabilities have the duty to respect and give consideration to others without discrimination on any ground and to promote and reinforce mutual respect and tolerance. Persons with disabilities must also fully participate in all spheres of life within their families, communities and states, and raise awareness and educate others on issues of disability. Finally, these persons have the duty to preserve and strengthen positive African cultural values in society and contribute to its moral well-being. In this respect, it is in consonance with the draft African Disability Rights Protocol42 adopted in 2016 by the African Commission on Human and Peoples’ Rights. Guided by the African Charter on Human and Peoples’ Rights (African Charter),43 this Protocol recognises persons with disabilities as duty bearers by providing:
- State parties shall recognise that persons with disabilities have duties on an equal basis with others as elaborated by the African Charter.
- State parties shall ensure that persons with disabilities are rendered the forms of assistance and support, including reasonable accommodations, which they may require in performance of such duties. 44
In addition to the above, there is the provision that the EAC Persons with Disability Act shall take precedence over other laws in partner states to which its provisions relate.45 This provision makes good sense when viewed from the perspective of the EAC Treaty, and especially the Protocol to the Treaty, which provides for harmonisation of social policies. By expressly making national legislation subject to this law, it avoids situations of partner states invoking supremacy of their domestic laws, including their constitutions in case of a conflict of provisions. However, as novel as this provision may be, perhaps it has created the very situation where the Bill has failed to move to the status of an Act which would bind all partner states since it would have had the effect of imposing on the sovereignty of partner states. While the Bill does not impose sanctions on states for infringing its provisions, no state would like to be found wanting since in many respects the proposed Bill imposes mandatory obligations. Some of these obligations would require states to commit huge sums of money from their budgets towards their implementation.46 This could be one of the reasons why, after exhaustive debate and after seemingly having been well received, there is no instrument formally pronouncing this Bill as law, despite media reports to this effect.47
The status and progress of this proposed legislation thus remains unclear with some claims that it has already been passed into law by the EALA.48 Since 1 June 2016, the date of the latest recorded activity by the EALA concerning this Bill, there appears to have been no progress in either formalising the legislative process for the Bill to pass into law, or taking up the implementation of its provisions, assuming it has been enacted into law. From the EAC Secretariat, there appears to be no evidence of further discussions, dialogues or debates that have taken place regarding this Bill. There is also no evidence that the biennial third EAC Conference on Disability took place in 2016. What should be noted, though, is that according to the EAC Treaty, the heads of state may assent to or withhold assent to a Bill of the Assembly, but if a Bill does not receive assent within three months from the date on which it was passed by the Assembly, it shall be referred back to the Assembly, giving reasons, and with a request that the Bill or a particular provision thereof be reconsidered by the Assembly.49 If the Assembly discusses and approves the Bill, the Bill shall be resubmitted to the heads of state for assent, but if a head of state withholds assent to a resubmitted Bill, the Bill shall lapse.50 At the time of writing, it has been more than three months since the Bill was passed by the EALA and, for now, it is more likely than not that for it to pass into law, it will have to go through the above procedure as provided for in article 63. What is of great concern, though, is the possibility of one or more of the EAC heads of state refusing to assent to it after resubmission. This would be a huge blow to development and the harmonisation of laws, policies and practice in the area of disability in the region since, according to the EAC Treaty, in such a case the proposed law lapses.51
It should be pointed out that in the meantime, some partner states have embarked on processes to amend their national disability legislation.52 While noting that the content of these Bills may change along the way, it is still pertinent to point out some areas of importance. For example, Uganda’s Bill in its current form tends to make government shirk its responsibilities of providing for persons with disabilities.53 While according to the current Act government is under an obligation to promote the educational development of persons with disabilities,54 according to the 2014 Bill there is no similar obligation on government but, instead,
only a prohibition of discrimination by schools or institutions of higher learning.55 Likewise, in the area of health services, the current law enjoins government to promote special health services required by persons with disabilities, including by
(c) encouraging population-based public health programmes relevant to persons with disabilities.56
However, there is no similar provision in the proposed 2014 Bill, which instead is totally silent about this area of the lives of persons with disabilities. The same applies to employment, with the Bill narrowing down or completely removing the express obligation of government to act, promote, protect and ensure the equal enjoyment of all rights by persons with disabilities. Ultimately, the Bill adopts mostly passive language in place of the mandatory obligations that the current Act places on government as a key actor in the implementation and realisation of the provisions of the proposed law.
As far as Kenya is concerned, on the whole, Kenya’s Bill contains a tightening of the obligations and duties of the Kenyan government towards empowerment and the realisation of the rights of persons with disabilities. For example, in the area of education, government has the duty to facilitate participation of persons with disabilities in accessible and adaptable continuing adult education programmes on an equal basis, as well as to ensure that persons with disabilities have access to inclusive education, without discrimination and on an equal basis at all levels.57 This imposes an obligation on government to act, as opposed to the corresponding provision of the Act58 which prohibits discrimination in education and imposes duties to act on 'learning institutions' without any direction obligation on government.59 The Bill also guarantees education, health and employment as rights, which is not the case with the Act.60 However, it remains for the courts to determine how justiciable these will be if or when the Kenyan Bill is passed into law.
It is not yet clear what the import of these developments is, especially as far as co-operation in the area of disability rights is concerned, and if such ongoing legislative processes may not undermine achievements so far made. It is also not clear whether these law reform processes may not be precipitated by the lack of progress and/or inability to enact a uniform legal instrument for disability rights and concerns for the region. In the case of Uganda, it is not certain why it would opt for a watered-down version of the current law in light of its obligations under the CRPD as well as the provisions of the East African Community Disability Bill. Owing to criticism of the 2014 proposed Bill, Uganda is in the process of redrafting an improved version intended to address the concerns raised by disabled people's organisations (DPOs) as well as other activists in the area.61 However, this 2016 version is yet to be presented to parliament for debate.
4 EAC Strategic Plan for Gender, Youth, Persons with Disabilities, Social Protection and Community Development (2012-2016)
This Plan was intended to promote the inclusion of diversity of the people in the region in development, and seeks to eliminate disparities in service provision. It is also intended to ensure that services are available to all citizens with disabilities, older persons and those disadvantaged and vulnerable due to a lack of social security for everyday socio-economic needs.62 The Strategic Plan recognised disability as a development issue, noting that disability may increase the risk of poverty and vice versa, with adverse impacts on education, employment and earning ability and increased expenditure related to disability. The Plan also makes the fundamental link between disability and ageing.63 According to the Strategic Plan,
[s]ocial protection has multiple beneficial impacts and is essential to build human capital, break the intergenerational poverty cycle and reduce the growing inequalities that constrain ... economic and social development.64
The Plan thus came up with various objectives for the thematic area of persons with disabilities, the main objective being promoting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities for improved livelihoods.65 It is worth noting that most of the activities envisaged for the realisation of the main goal, as well as the immediate objectives of the Plan for the thematic area, mainly hinge around the development of a harmonised regional policy and legal framework on disability issues.66 As already noted, the relevant policy is in place but with some shortcomings, as observed above. At the same time, the relevant law has not yet been enacted although it had been envisaged to be in place by 2014.67 At the time of writing, about a year after the life span of the Plan, the EAC has not carried out any review process to assess the implementation and performance of this Plan by partner states. There is also no follow-up Strategic Plan for the post-2016 period in place.
It is evident that the EAC has taken some steps towards adopting and harmonising regional law and policy for promoting and ensuring the protection of the rights of persons with disabilities.68 The Community must thus be commended for the steps so far taken, since the creation and harmonisation of standards would go a long way towards ameliorating the plight of persons with disabilities in the region. Co-operation in this area is thus a positive step which can provide a platform for partner states to plan and share information and to learn from and assist each other in matters concerning disability. However, it should be remembered that the key issue is the need for effective implementation of laws, policies, programmes and plans as agreed upon. Law reform and legislation may not in themselves be solutions if these are not backed by clear implementation programmes as well as budgeting for intended activities and interventions. Partner states thus need to fully commit, not only by signing legal and policy instruments but, in addition, by taking active steps to ensure the implementation of these instruments. A key aspect of this, apart from political will, is the need to identify and allocate adequate funding for essential activities, especially since many of the necessary practical interventions in the area of disability require substantial funding. This is what will indicate the level of seriousness of the EAC as opposed to paying lip service to disability rights. To a great extent, this is what will determine the success or failure of the EAC in its endeavours to secure the protection and enjoyment of human rights and fundamental freedoms to persons with disabilities. In this respect, the EAC has slowed down, gravely impacting its initial momentum in the protection of the rights of persons with disabilities.
2. Murungi also reported limited developments in disability rights in the East African sub-region in the period 2013-2014. See LN Murungi ‘Disability rights in the sub-regional economic communities during 2013’ (2014) 2 African Disability Rights Yearbook 323.
8. See eg A Possi ‘It’s official: The East African Court of Justice can now adjudicate human rights cases’ 1 February 2016 https://africlaw.com/2016/02/01/its-official-the-east-african-court-of-justice-can-now-adjudicate-human-rights-cases/ (accessed 21 September 2017); see also Murungi (n 2 above) 325.
13. http://www.eac.int/sectors/gender-community-development-and-civil-society/pwds (accessed 15 May 2017).
17. Government provides sun cream to persons living with albinism. The budget towards the disability fund has increased and grants are offered to organisations to establish peer support groups for persons with disabilities.
18. South Sudan joined the EAC in April 2016; http://www.eac.int/republic-south-sudan (accessed 20 September 2017).
20. http://mgcswss.org/wp-content/uploads/South-Sudan-National-Disability-and-Inclusion-Policy.pdf (accessed 20 September 2017) (South Sudan Policy).
26. South Sudan Universal Periodic Review - National Report UN Doc A/HRC/WG.6/26/SSD/1 3 https://uprdoc.ohchr.org/uprweb/downloadfile.aspx ? (accessed 20 Septem-ber 2017).
47. See ‘EALA passes Bill on PWDs, wants dignified, humane treatment for all’ http://www.eac.int/news-and-media/press-releases/20160601/eala-passes-bill-pwds-wants-dignified-humane-treatment-all (accessed 28 July 2017); ‘East Africa: EALA passes Bill on Persons with Disability’ http://allafrica.com/stories/201606070902.html (accessed 28 July 2017).
52. Uganda has drafted and presented for input and debate the Persons with Disabilities Bill 2014; Kenya is also in the process of amending its current law on disability (Persons with Disabilities Act 14 of 2003).
53. V Kange 'The Persons With Disabilities Bill 2014: A poor attempt at reinventing the wheel’ https://www.scribd.com/document/288873582/PWD-BILL-2014-A-Poor-Attempt-at-Re-inventing-the-Wheel-Final (accessed 22 August 2017).
61. Persons with Disabilities Bill 2016 (Uganda) taking into account concerns of DPOs to include affirmative action which was omitted in the 2014 version (see Part II); and provides for health and education as rights of persons with disabilities which is not in the 2014 version. At the time of writing, the 2016 version is yet to be tabled before cabinet.
68. As part of its efforts towards the harmonisation of laws and policies, the EAC has also adopted the EAC Child Policy with the purpose, among others, of providing a framework for harmonisation, prioritisation and implementation of children’s rights at the national level, as well as promoting joint planning, monitoring and evaluation of emerging children’s rights concerns. On the whole, the policy provides for children generally with no specific emphasis on children with disabilities, except in a few areas such as the promotion of child participation in line with age, disability and maturity of the child; http://ovcsupport.org/wp-content/uploads/2017/04/FinalEACChild RightsPolicy2016.pdf (accessed 19 September 2017).