How courts are failing the mentally ill

Jun 22, 2018

The judiciary as protectors of the rule of law must be held to a higher standard.

By Primah Kwagala
KAMPALA - Uganda's mental health referral hospital, Butabika, admitted a patient with bipolar disorder in November 2010.
Instead of receiving treatment, the man alleges that he was sedated, stripped naked and put in a seclusion room for more than 24 hours.
The institution I work for brought his case to Uganda's High Court in 2015, seeking reparations for his ill treatment.
Instead of dispensing justice, the court reinforced stereotypes about mental illness.
The judge refused to accept the testimony of the applicant, saying it was not believable that the man could remember his treatment. The justice even argued that practices such as sedation and seclusion "promoted rather than abused" the applicant's right to health.
By relying on deeply discriminatory views regarding people with mental health issues, the decision gives carte blanche to mental health professionals to subject people to cruel injustices including stripping, forced treatment and isolation.
It sets a dangerous precedent allowing practices which breach the human rights of people with mental disabilities, including those under the United Nations Convention on the Rights of Persons with Disabilities which Uganda ratified in 2008.
The judgment raises concerns that some judicial officers hold deeply misguided notions regarding people with mental health issues, which deprives them of access to justice.
Such attitudes are not restricted to judicial practitioners. Indeed, discrimination is deeply rooted around the country and results in serious abuses nationwide. The judiciary as protectors of the rule of law must be held to a higher standard.
In 2014, Mental Health Uganda and Validity (formerly the Mental Disability Advocacy Centre - MDAC) published research uncovering widespread abuse, ill-treatment and appalling conditions in Uganda's regional mental health facilities as well as Butabika. The research also investigated the experiences of people in their communities.
The report found that most people with mental health issues experience high levels of violence and neglect at the hands of community members and public officials.
The lack of local community mental health and psychosocial support services meant that many found themselves pushed towards unregulated traditional and faith-based healers.
Many people recounted having endured unspeakably cruel practices including chaining, cutting the skin, being tied to trees, beatings and daily, casual prejudice.
Many of these practices are meted out in the name of treatment, in exactly the same way that Hon. Justice Stephen Musota sees seclusion as "part and parcel of treatment process".
They flow from fundamentally oppressive attitudes which dehumanize people with mental health issues and leave people vulnerable to serious abuse.
These negative attitudes are learned, and they can be unlearned. When I was a school-girl in the far Eastern, there was an incident where a student attempted to beat up a male teacher.
We later learned that she had bipolar disorder. The headmistress pardoned her.
As a young girl, the lesson I learned from this was to use mental illness as a handy excuse to escape punishment for wrongdoing.
It wasn't until later that I learned the seriousness of mental illness, and that it can be treated. It is an illness, not a character flaw. Our justice system must treat it that way.
 Abuse can never be treatment. Indeed, even the United Nation's anti-torture expert has clearly said that solitary confinement of people with mental health issues has no therapeutic justification and, if prolonged, amounts to torture.
Freedom from torture is one of the most important rights of all people and can never be justified under any circumstances.
 Earlier this year, a mental health Bill was presented in the Parliament of Uganda. It falls far short of what we need to ensure justice for those with mental illness.
The proposed draft allows for forced hospitalisation, restraint, isolation and electroconvulsive therapy. It will still deny people with mental health issues the right to decide about their treatment.
It is based on the same prejudicial attitudes as before, and it will continue to legitimise abuse if enacted.
Crucially, the mental health Bill does nothing to ensure that dignified mental health and psychosocial support services are provided at the primary health care level, nor does it require that medical practitioners gain informed consent.
And make no mistake, this is legislation that affects all Ugandans; according to World Health Organisation statistics, one in four of us will experience a mental health crisis during our lives.
This proposed legislation must be redrafted to ensure that people with mental health issues receive dignified care and treatment.
The law needs to ensure people can access consensual mental health treatment in the community, with the aim of supporting independence and social inclusion. 
Rather than allowing medical practitioners to abuse people with psychosocial disabilities, law and policy must require services to be provided on the basis of their free and informed consent.
It should never allow seclusion, restraints or forced treatment and ensure strong sanctions are in place to prevent them from happening.
Under no circumstances should the law or judges continue to allow torture, mistreatment or violence under the guise of helping people with mental illness.
The writer manages strategic litigation at the Centre for Health, Human Rights and Development in Uganda. She is a 2018 Aspen New Voices Fellow.

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