THE MENTAL HEALTH ACT.

DISCUSS, SUMMARISE,
EXPLORE, COMPARE OTHER HEALTH ACTS
(GLOBAL AND AFRICAN). BENEFITS, PITFALLS,
RECOMMENDATIONS AND LIMITATIONS

(TENDAI CHIMUTASHU)

This write up gives an insight into the mental health act of Zimbabwe referred to as
15:12, mainly focusing on the ethical considerations towards the patient stipulated
in the MHA, with focus on matters such as treatment, hospitalisation, reception
orders to name the least. Other mental health acts of countries such as South
Africa, Ireland, Australia, Canada and the United Kingdom will be compared
together, also giving their benefits, limitations and recommendations. The Mental
Health (MHA), is a law governing the compulsory treatment of certain people who
have a mental disorders. It is the main piece of legislation that covers the
assessment, treatment and rights of people with a mental disorder. These includes
conditions such as schizophrenia, depression, bipolar disorder, anxiety disorder,
obsessive compulsive disorder, eating disorders, personality disorders to name the
least (Camden and Islington).

The Mental Health Act of Zimbabwe Chapter 15:12, defines the mentally
disordered or intellectually handicapped people in relation to any person, means
that the person is suffering from mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of
the mind. The Act may be cited as the Mental Health Act Chapter 15:12. The date
of commencement was 1 January 2000. This ACT is to consolidate and amend the
law relating to the care, detention and after-care of persons who are mentally
disordered or intellectually handicapped, whether for the purposes of treatment or
otherwise; to provide for the establishment of various boards and the functions of
such boards; to repeal the Mental Health Act [Chapter 15:06]; and to provide for
matters incidental to or connected with the foregoing.

The MHA 15:12 emphasizes that no person shall be received or detained as

patients except in accordance with this Act, and an application for the Reception
Orders shall be done by a relative or someone 18yrs and older. Additionally, the
magistrate may examine the patient, and obtain medical certificates from two
medical practitioners before issuing a reception order in favor of the applicant.

Furthermore, proceedings of the reception order to be done in Private, unless if a

family member requests it be done publicly. More-so, before issuing a directive,
the magistrate or a person appointed by him, shall satisfy himself through personal
examination that the householder is a fit and proper person to have charge of the
patient and that the dwelling-house, its equipment and its surroundings are suitable
for the reception, treatment and detention of the patient. In cases of urgency where
it is necessary for the welfare of a patient or in the public interest that a patient
should forthwith be placed under care, assessment, treatment or control, the person
in charge of a suitable place may receive and detain the patient on the authority of
an application made in terms of this section.
Moreover, from the above paragraph, an Appeal to the Mental Health Review
Tribunal can be made against the continued detention of a patient who is detained
in an institution or other place by the patient themselves or a relative, spouse. If a
detained prisoner seems to be mentally unstable, the Attorney General can order
the examination of the detainee by two medical practitioners, and if found mentally
unstable by a magistrate, will be moved from a prison, to a mental institution for
treatment. Additionally, periodical reports on detained patients who have
committed crimes shall be done in which a patient is detained, shall submit a report
to the Secretary as to the mental condition of the patient at such intervals as are
specified in subsection (1) of section twenty-two (Mental Health Act Chapter
15:12).

With a comparison perception, South Africa’s new Mental Health Care Act
(MHCA 2002) was passed in 2002 and promulgated on December 15, 2004
(Mental Health Care Act 17 of 2002). In effect, just like the Zimbabwean MHA
15:12, the MCHA 2002 seeks to: (1) shift the system from a past custodial
approach to one encouraging community care; (2) make certain that appropriate
care, treatment and rehabilitation are provided at all levels of the health service;
and (3) highlight that individuals with mental disabilities should not be
discriminated against, stigmatized or abused ( Moosa & Jeenah, 2008). The MHA
2002, is similar to Zimbabwe’s MHA 15:12, as it states that states that in order to
have someone involuntarily committed, “an application must be made to the Head
of a Health Establishment (HHE) by a spouse, next of kin, partner, associate,
parent or guardian”, and then will be examined by two mental health care
practitioners who perform independent assessments of the patient, and must report
their findings and recommendations to the HHE, instead of just sending an
individual to involuntary treatment as done in the past under the derogatory MHA
1973

If the HHE determines that the patient does not require further treatment, care or
rehabilitation, under the MHA 2002, the patient must be discharged immediately,
unless the patient gives consent to further care. This gives more rights to the
patient, and dismisses past use of indefinite detention of parents in mental
institutions. Another important precaution and procedural protection of the patient,
is the establishment of the Mental Health Review Boards, which are to be
constituted in every province (The National Law Review, 2022). The primary aim
of the Boards is to ensure that the rights of the prospective patients are not
violated.

Yet just like the Zimbabwean MHA 15:12, despite all the ethical advantages of the
MHA:2002, According to Moosa, South Africa has a limited amount of specialized
psychiatric hospitals, and those that are available are ill equipped to properly abide
by the 72-hour provision. Additionally, many South African psychiatric hospitals
do not separate the patients by age groups; and there is a significant lack of beds.
Other problematic areas that undermine the Acts successful implementation are
lack of proper training, inadequate skills; and a lack of proper understanding of the
Act (Burns, 2008)

Moreover, looking at the European Mental Health Acts in countries such as

Canada, Scotland, United Kingdom, and Australia, there is definitely a much more
progressed outlook on a patient’s rights, autonomy. Across the above five
mentioned countries examined, largely similar procedures for admission, detention
and treatment of involuntary patients are employed, thus reflecting adherence with
international standards and incorporation of human rights based principles. In all
five countries above, along with Zimbabwe and South Africa, the patient may be
detained if they have a mental disorder that significantly impairs judgement.
Although the definitions of mental disorders varies across jurisdictions, for
example in Ontorio Canada, the MHA describes mental health simply as äny
disease or disability of the mind”, whereas in Scotland and Victoria (Australia), a
person is not considered to have mental illness if a person expresses , refuses or
fails to express a particular political, religious or philosophical opinion or belief
(Irish Journal of Psychological Medicine, 2017)

Furthermore, in England, Scotland and Australia, personality disorders are

specifically included in the definition of a mental disorder, whilst it is explicitly
excluded in Ireland. Just like Zimbabwe and South Africa’s MHAs, the above five
countries exclude psycho-active substance abuse or dependence as mental
disorders England, Scotland and Victoria (Australia), have separate assessment and
treatment orders that may be used, whilst in Canada, Zimbabwe, South Africa and
Ireland, one Order is utelised to admit and detain a patient. Moreover, whilst a need
for treatment is an option, it is not mandatory for a patient’s involuntary admission
in Canada and Ireland. Yet in Australia, Zimbabwe and South Africa, a need for
treatment is a condition of an assessment order, but treatment may not be given
without consent from the patient, guardian, spouse, unless urgently required

Impaired decision making is a criterion for involuntary admission under mental

health legislation in Scotland, Australia, but only Canada explicitly states that a
patient must lack complete capacity (Irish Journal of Psychological Medicine,
2017). The MHA 2001 in Ireland, does not include provisions for supported
decision making such as advance statements and nominated persons whose
opinions must be taken into account by the treating consultant psychiatrist and has
been described as ‘a shortcoming’ of the MHA 2001 (Ramsay et al. 2013).
Potential changes to the MHA 2001 to include ‘advanced healthcare directives
(AHDs)’ as a means to achieve patient autonomy have been recommended by the
Expert Group for the review of the MHA 2001.

Additionally, the incorporation of a human rights-based model of mental illness is

not without its challenges. For example, the CRPD states that ‘the existence of a
disability shall in no case justify a deprivation of liberty’ (Art. 14 (1)(b)). In this
regard, current mental health legislation could potentially be deemed
discriminatory as mental illness is considered a disability under the CRPD
(Szmukler et al. 2014). Current mental health legislation relies largely on a
criterion (disability) and risk, to detain a patient without any requirement to
consider a patient’s functional ability to make a decision and as a result, is
potentially incompatible with the CRPD (Davidson et al. 2016).

The limitations of the Mental Health Acts, for example in Zimbabwe, Mental
Health Facilities exist. Policies are relatively progressive. Research is extensive.
The workforce is motivated. Yet, missing pieces in the mental health system
prevent the vast majority of Zimbabwe from accessing proper mental health care.
The main missing pieces are funding and resources, creating a host of issues such
as the inability to implement most of the Mental Health Act, poor staffing, drug
shortages, and overcrowded hospitals and prisons (Liang, et al. 2016). For
instance, a majority of nurses and occupational therapists who specialize and train
in mental health are either: 1) diverted to other careers, or 2) were driven to
practice outside of Zimbabwe because of drastically low salaries, leaving only five
clinical psychologists and 15 of 150 registered occupational therapists practicing
mental health in Zimbabwe’s public sector as of the year 2016.

Moreover, the Mental Health Tribunal in Zimbabwe, which decides a patient’s

legal rights and release date, meets infrequently, leading to some patients being
stuck in under-resourced facilities for years past the official 21day review period.
Zimbabwe needs to prioritize the recruitment and retention of mental health
workers. Because most mental health patients do not need specialist care, we must
also build up the non-specialist, non-professional workforce, with a focus on lay
health workers and supervisory support structures.Medications for mental disorders
in the public sector are “free” but unavailable. Alternatively, patients are given
unaffordable prescriptions to source at their own cost in the private sector. Mental
health care facilities lack: ✦ Food and water ✦ Bedding ✦ Medicine, (Liang et al.
2016)

As in the case of South Africa, despite the fact that MHCA 2002 represents a
major milestone in South Africa’s history, According to (Moosa, 2008), South
Africa has a limited amount of specialized psychiatric hospitals, and those that are
available are ill equipped to properly abide by the 72-hour provision. Additionally,
many South African psychiatric hospitals do not separate the patients by age
groups; and there is a significant lack of beds (Burns, 2008). Other problematic
areas that undermine the Acts successful implementation are lack of proper
training, inadequate skills; and a lack of proper understanding of the Act.

Conclusively, culturally similar jurisdictions in Europe which have recently

updated their mental health legislation have dealt with balancing the demands of
providing care with respecting patient autonomy and adhering to human rights
standards in relation to patients with severe mental illness detained in acute
psychiatric inpatient units. The third goal of the Sustainable Development Goals
adopted by all the world’s governments in 2016 also includes commitments to
improve mental health and prevent and treat substance use disorders.Governments
in Africa especially, need to build up their financial muscle , so as to support their
Mental Health Acts.
REFERENCES

Burns, JK. (2008). Implementation of the Mental Health Care Act (2002) at district
hospitals in South Africa: Translating principles into practice.

Davidson G, Brophy L, Campbell J, Susan FJ, Gooding P, O’Brien AM (2016). An

international comparison of legal frameworks for supported substitute decision-
making in mental health services. International Journal of Law and Psychiatry 44,
30–40.

Irish Journal of Psychological Medicine, (2017). P134, 261-269

Liang,M. et al. 2016. Mental Health in Zimbabwe. Harare, Zimbabwe: Kushinga.

Mental Health Act Chapter 15:12

Moosa, MYH. and Jeenah, FY. (2008). Involuntary treatment of psychiatric

patients in South Africa, 11(2)Afr Journal of Psychiatry.

Ramsay H, Roche E, O’Donoghue B (2013). Five years after implementation: a

review of the Irish Mental Health Act 2001. International Journal of Law and
Psychiatry 36, 83–91
Szmukler G, Daw R, Callard F (2014). Mental Health Law and the UN Convention
on the Rights of Persons with Disabilities. International Journal of Law and
Psychiatry 37, 245–252.

World Health Organization (WHO), (1996). Mental Health Care Law : Ten Basic
Principles. WHO : Geneva