In the 21st century we are still dealing with stigma of mental illness in both the developing and developed worlds. Challenges in daily practice are different in the South Asian region from those in the developed countries.
Involuntary admission or treatment for the management of mental illness is a relatively common practice worldwide. The World Health Organization (WHO) regards such legislation as a key component of good health governance.
Such legislation in Pakistan has faced challenges when reforming or implementing mental-health law. Barriers include legal safeguards, human-rights protections, funding, resources, absence of a robust wider health system or political support, and sub-optimal mental-health literacy.
Evolution of mental health law
The basis of modern mental-health law originates from English statutes during the reign of King Edward I in the late 13th century. The entwinement of the doctrine of parens patriae and the police powers of the state were important features of early mental-health laws.
Since the late 1970s, mental-health law has become increasingly influenced by international human-rights law. In 1991, with the adoption of the Principles for the Protection of Persons with Mental Illness (MI Principles), the journey of ensuring least restrictive care began. The United Nations Convention on the Rights of Persons with Disabilities (UN-CRPD) adopted in 2006 is a potent platform for protection and has been ratified by 177 countries thus far.
In the past five years, several countries in the South Asian region have undertaken legal reform. This was partly in response to the WHO’s comprehensive mental-health action plans and the global mental-health movement.
Pakistan, which adopted the Lunacy Act 1912 from British India when it became independent in 1947, replaced it with the Mental Health Ordinance 2001 (MHO 2001).
MHO 2001 dealt with access to mental-health care, voluntary and involuntary treatment, competency, capacity and guardianship issues. The ordinance also addressed human-rights issues and informed consent.
There had been concerns that those held in custody under blasphemy laws did not have any rights under this legislation. However, this is now included as “A person who attempts suicide including an accused of blasphemy shall be assessed by an approved psychiatrist and if found to be suffering from a mental disorder shall be treated appropriately under the provisions of this Act.”
Under this ordinance, a Federal Mental Health Authority (FMHA) was founded in 2001 to develop national standards of care. However, health is now governed at the provincial level, and the FMHA was dissolved in 2010. The ordinance was replaced by the Mental Health Act. Sindh province enacted the law in 2013, followed by Punjab in 2014 and Khyber Pakhtunkhwa in 2017, and the Islamabad Mental Health Act ICT 2020 is in its draft stages.
Comparisons between various countries’ mental-health laws can be problematic, as each is formed within a particular social, legal, political and economic context. The situation and challenges are significantly different in developing countries compared with developed countries. Pakistan is facing serious problems regarding the practical aspects of implementing its legislation.
These need consideration while developing or reforming a new law, for example, poorly developed mental-health services, poor mental-health literacy and lack of adequate resources. It is worth noting that 18 years after the enactment of the Mental Health Ordinance 2001, only three Pakistani provinces have mental-health rules in place, and it is possible that many stakeholders are completely unaware of these rules.
In addition to this, delays in approval or enactment sometimes occur because of lack of agreement among all stakeholders. Therefore, people with mental illness continue to be potentially vulnerable to various type of abuse and violation of their rights. Reform of legislation would need to go hand in hand with resource issues and service improvement.
It is clear that account needs to be taken of the context and everyday realities before drafting and formalizing mental-health laws. However, despite the legal heritage, how each government reforms its laws is influenced by the individual socio-political scenario. They also have to acknowledge shortages of specialists and resources in rural areas. This could lead to further unsuccessful attempts to implement mental-health law successfully.
Despite the existing regulations in Pakistan, implementation is still somewhat toothless. There are three main challenges.
First, the existing regulations do not allow the use of the principles upon which Mental Health Act rules are based. There is a lack of information on the purpose of limitations and how to process them.
Second are the institutional challenges. There is no single institution or agency that regulates or is in charge of clinical governance. Complaints, breaches and misuse are spread across various government institutions.
The third challenge is cultural. There is an urgent need to increase awareness around the importance of mental-health law.
To complement the existing legal framework, governments must provide clear guidelines. Since the Pakistani government is not actively engaged with stakeholders, a regulatory sandbox model could be implemented to examine and provide solutions to the enforcement of the regulations, while maintaining the Mental Health Act in motion.
On the positive side, it can be seen that Pakistan is gradually addressing health and justice issues for the adequate provision of mental-health care. Appropriate governance, which includes necessary policy and legislative frameworks to promote and protect the mental health of a population, can overcome barriers to effective integration of mental-health law, treatment and care.