Human rights and detention of the mentally ill

Article 1 of the Universal Declaration of Human Rights (UDHR) provides that ''all people are free and equal in rights and dignity''. The UN subsequently drafted two binding international human rights conventions, namely, the International Convention on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. Together with the UDHR and the UN charter, they make up what is known as the International Bill of Human Rights. Bangladesh has acceded to both conventions and has ratified the UN Convention on the Rights of Persons with Disabilities (CRPD). As such, Bangladesh has undertaken to make every effort that its domestic laws conform to the norms and values that these conventions enshrine.

The International Bill of Human Rights together with the CRPD provides a comprehensive charter, among other things, to be adopted by a ratifying state for a modern and non-discriminatory mental health system.

Bangladesh has no mental health legislation. It still relies on the Lunacy Act, 1912 to regulate its mental health system. This piece of legislation was, as the date suggests, the product of a bygone age. It is no wonder that many of the provisions of this Act are in sharp conflict with the fundamental rights provided in the Constitution and international human rights conventions.

It is estimated that 16 percent of the population of Bangladesh suffer from mental disorders. Bangladesh has no mechanism for supervision and protection of the rights of patients with mental disorders. Less than 0.5 percent of the governmental health budget is spent on mental health, one of the lowest allocations in the world. According to the World Health Organization's (WHO) Country Profile 2014, in Bangladesh the number of mental health workers per 100,000 people is 0.5. This is more akin to sub-Saharan Africa than a modern growing economy.

A paper published by WHO in 2015 entitled "Bangladesh Health System Review" states that myths and superstitions about the cause of mental illness are prevalent, and neglect and abuse are common phenomena. While it is clear that the current mental health system in Bangladesh is not fit for the purpose it should serve, the arbitrary detention mechanism of mentally ill patients is an issue that is often ignored.

Bangladesh has just one mental health hospital with 625 beds. The National Institute of Mental Health runs a 150 bed hospital in Dhaka. There are about 5000 beds in various inpatient units and residential facilities. A 2005 study shows that most in-patients suffer from psychosis and are diagnosed with schizophrenia or mood disorder.

A joint study by WHO and the Ministry of Health published in 2007, reveals that 100 percent of those admitted to the mental hospital and 80 percent to psychiatric units are detained (against their will). The study also shows that the average patient spends 137 days detained.

Violating the liberty of a person simply because they have a mental disorder is against the International Bill of Human Rights and CRPD. Such a practice also breaches the fundamental rights under the Constitution.

In compliance with international human rights, the mental health laws of many countries allow for mentally ill patients, who are unwilling to have treatment, to be detained if there is clear evidence that because of the nature or degree of their mental disorder, such detention is necessary for their own health and safety or the protection of others. However, this is the only circumstance where the law allows an innocent person, not accused of any crime, to be deprived of their liberty. Hence the state is under an obligation to be extra vigilant, have proper checks and balances in place, and ensure that such deprivation of liberty is proportionate and no longer than is absolutely necessary.

Ratifying countries are also duty bound to ensure that, where necessary a civil court or tribunal rather than a criminal court, is used in dealing with such patients. Even in relation to mentally ill offenders, the involvement of the criminal justice system is to be kept to a minimum and the focus should be on treatment rather than punishment.

In the US and most European countries a thorough assessment is conducted by three approved psychiatric practitioners to determine the statutory criteria for detention of a patient unwilling to receive treatment. The patient has a right of appeal to an independent tribunal. Even when the patient does not appeal, the hospital must periodically refer the case to the tribunal to review the lawfulness of the detention. The patient's right are read out to him and he can ask for the appointment of an advocate to safeguard his interests. 

The Lunacy Act, 1912, is, to all intents and purposes a criminal rather than civil legislation. The Act talks about allegations of lunacy as if they are allegations of criminal offences. Though the Act has been amended no less than 34 times since 1912, it has not lost its spirit.

The Act allows a police officer to arrest a person just "wandering at large", if the officer believes that he is a "lunatic" (mentally ill). As the definition of lunatic includes, what the Act refers to as, "an idiot" (a person with a learning disability or possibly autism), it is possible for a police officer to detain someone simply because the officer believes the person has a learning disability (wandering at large is not an offence known to law).

It gets worse. Instead of handing such a vulnerable person to their guardian or the nearest mental health unit, the officer is required to take the person to a criminal court. There the magistrate on the vague criterion of thinking that "there are grounds for proceeding further", may order the person's detention for up to 30 days to be examined by a medical officer. 

The Act does not require the medical officer to have any knowledge of psychiatry. On the basis of a medical certificate from such an officer the magistrate can order that the person be indefinitely detained in an "asylum" (mental hospital). The person has no right of appeal against his detention. His only hope of discharge is if the government appoints "visitors" to the hospital, one of whom is a medical officer, or an order in writing to end his detention.

Similarly when a relative of a patient makes a "petition" for his detention on "allegation of lunacy", the magistrate has the last say. He has the power to conduct a hearing to determine the issue, which is not dissimilar to a criminal trial – the only difference is that the person in the dock is not accused of any crime but is vulnerable and helpless.

It appears that the current government is aware of the need for reform of the country's mental health law. At present there are two draft mental health laws floating around. One appears on the Law Commission's website and the other on the Health Ministry's website. As the draft of the Health Ministry appears to be more recent, it is more likely the government is working on this one.

The draft is generally in conformity with the International Bill of Rights including CPRD, and the Constitution. However there are three glaringly obvious omissions: treatment in the community is left out, rights of patients are not clarified, and the need for the establishment of a mental health tribunal is overlooked. One hopes that these omissions would be rectified. But even with these omissions the draft goes a long way in modernising Bangladesh's mental health system.

The government would be well advised to place the draft before the parliament with a sense of immediacy. It must also review its budget allocation on mental health. Meanwhile as things stand, if a country is judged by how it treats its mentally unwell citizens, then as Bangladeshis, we must all hang our heads in shame.

The writer, a British Bangladeshi, is a mental health tribunal judge in England.