4th Johore Mental Health Convention 23 - 24 August 2002 Hyatt Regency Hotel Johor Bahru JOHOR MENTAL HEALTH CONVENTION  “MENTAL HEALTH SERVICES, PAST, PRESENT AND FUTURE”  Human Rights of the Mentally Ill in Malaysia  Tan Sri Harun Mahmud Hashim* International Human Riqhts Protection of the Mentally Ill  The beginnings of the contemporary notion and understanding of human rights can be traced to the Universal Declaration of Human Rights 1948. Nevertheless, the ideas represented in the Declaration are far older than the Declaration itself. Notions concerning the protection of human life and dignity can be found in most, if not all the religions and belief systems throughout the world. However, the Declaration stands as an important reflection of a universal consensus by a potpourri of nations expressing different beliefs, cultures and traditions. Furthermore, the Declaration has since been a major catalyst for the birth of many other human rights instruments, including the 25 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.1  This instrument was adopted by the United Nations General Assembly on 17 December 1991, 2 and stands as the primary international tool for protecting the human interests of persons suffering from mental illness. This landmark document covers a wide spectrum of issues, ranging from the protection of human rights of mental patients, to stipulations concerning the treatment given to such patients. Out of the 25 Principles, at least 5 Principles are directly connected to human rights which have been enumerated in the Universal Declaration of Human Rights 1948. In fact, Principle I stipulates respect for the fundamental freedoms and basic civil, political, economic, social and cultural rights of the mentally ill as enshrined in the major human rights instruments including the Universal Declaration of Human Rights 1948, thereby showing the impact of the Declaration on all other subsequent human rights documents. In addition, Principle 3 guarantees the right for mental patients to live and work in the community, while principles 6 and 19 relate to the right of patients to have control over information pertaining to them. Principle 13 describes the necessary rights and conditions in mental health facilities, with particular reference to full respect for the right of mental patients to be recognized everywhere as persons before the law, to have freedom of communication, and freedom of religion and belief. Principle 13 also imposes an absolute prohibition on forced labour and exploitation of patients in mental health facilities. As a whole, the UN Principles are an indispensable guideline for persons and institutions entrusted with the care of patients suffering from mental illness.  Vice President of the Human Rights Commission of Malaysia (SUHAKAM). 1Please refer to Appendix 1 for the text of the 25 Principles. 2 United Nations General Assembly Resolution Number 46/119 of 17 December 1991. Hereinafter referred to as the UN Principles.  The adoption of these principles by the United Nations appears to reflect a growing trend for greater international recognition of the human rights of mentally ill persons. Other evidence of such recognition can be seen lrom some judgments which have been delivered by courts in relation to the plight of the mentally ill. These cases have stressed that due diligence must be adopted to ensure that such rights as the right to life, the right to liberty and security, and protection against cruel and unusual treatment or punishment, are adequately safeguarded for the mentally ill. For instance, in the case of Paul and Audrey Edwards v. the United Kingdom,3 the European Court of Human Rights in Strasbourg found the UK gQvernment guilty of violating the right to life of a mentally ill man, who was kicked and stamped to death by his schizophrenic cellmate. The Court held that the UK government had a positive obligation to protect the right to life of the mentally ill detainee, and that such a positive obligation extended to all instances where the authorities knew, or ought to have known of the existence of a real and immediate risk to life from the criminal acts of a third party. The existence of a positive obligation also depended on whether the authorities failed to act within the scope of their powers in a way which might make the risk avoidable. In this case, it was found that the authorities should have known of the risk involved in detaining the two persons together without a functioning and proper system of surveillance to ensure the safety of both detainees. Accordingly the government was seen as having taken inadequate steps to safeguard the right to life of the mentally ill victim.  In addition to the right to life of mental patients, the European Court in Strasbourg has also affirmed the importance of the right to liberty and security of mental patients. The European Court has adopted a rather broad interpretation  3 Decision of 14 March 2002. Application no. 46477/99  to this right, to the extent that even detention which on face value may appear to be necessary and legitimate, may still run foul of the right to liberty. For example, in the case of Johnson v. UK,4 the European Court held that the continued detention of mental patients upon expiration of a medical need for such detention, would constitute a violation of the right to liberty and security, notwithstanding the fact that such continued detention may be practically justified by such reasons as a lack of alternative accommodation for the patient involved. The domestic courts of the United Kingdom have also seen several decisions affirming the right of mental patients to liberty, particularly since the enactment of the Human Rights Act 1998, which effectively incorporates the European Convention of Human Rights into the domestic law of the UK. In a case decided by the UK Court of Appeal in March 200 i,~ it was found that legislation which placed the burden of proof on mental patients to prove that they were fit for release from detention was contrary to the right to liberty under the European Convention of Human Rights. The effect of the ruling is to enable the release of mental patients involuntarily detained without sufficiently strong evidence to justify their continued detention.  The right to protection from cruel and unusual treatment and punishment is also of relevance to the issue of compulsory treatment and care of mental patients. The common law principle of autonomy, appears to have set the tone for the  4 [1997] 4 EHRR 188  Interpretation of this right by the European Court. In particular, any i~iterferend~e with the private autonomy of mental patients requires precise Justification In order to prevent a violation of the patienf rights. Thus, real effort .must be made by medical practitioners to obtain the consent of the patients for enforced medical treatment, Including ECT and artificial feeding, In order to avoid potential violation of the rights of the patient. Accordingly, enforced medical treatment would only be justified on medical therapeutic grounds. In order to pscertaln the Justifiability of enforced medical treatment, the Strasbourg Court looks to see whether prevailing psychiatric principles support such treatment. It may be of interest to note that the Court has held that the use of physical force as a therapeutic necessity may not be a violation of the patient’s rights if medicaloplnion Indicates that lt is necessary to do so. Another right of mental patients which must be protected Is their right to privacy. Nevertheless, this right may be witheld from a human rights perspective If the disclosure of Information pertinent to the patient will prevent disorder, crime or protect the rights and freedoms of others. Thus, In the case of TV v. Finland’, the European Court regarded as justified the disclosure of a detainee’s HIV status to prison staff.  5R(H) v. Mental Health Review Tribunal, North & East London Region and Secretary of State for Health. March 2001 CA 6 Herczegflavy v. Austria (1992] 15 EHRR 437 7Case No. 21780/93 76 APR 140  The Malaysian Position  In Malaysia, recognition of the rights of the mentally ill has not quite reached the extent of recognition as seen in the West. not to mention the fact that the ASEAN region does not as yet have a regional mechanism for the enforcement of human rights. Nevertheless, some human rights are protected domestically by Part II of the Federal Constitution. Part II enshrines human rights including the right to life end liberty under Article 5, the right to equality under Article 8 and the right to freedom of movement under Article 9. However, persons suffering from mental illness continue to have many of their rights denied in this country.  Legislative impediments are one of the main reasons for the denial of the rights of the mentally ill, In particular, mental health continues to be regulated by the outdated Mental Disorders Ordinance 1952, which concerns the proceedings for the admission and detention of mentally ill persons. This legacy of Malaysia’s pre-independence period can no longer sufficiently ensure the needs of mental patients, in view of the numerous changes which have occurred since the enactment of the Ordinance. This Ordinance will be repealed by the entry into force of the Mental Health Act 2001. Nevertheless, at this time, the Act has yet to come into force notwithstanding the fact that it received Royal Ascent on 6 Septemebr 2001, and was published in the Gazette on 27 September 2001. It is hoped that the 2001 Act will come into force soon, as several positive changes are expected to take place upon repeal of the 1952 Ordinance.  The principle flaw of the 1952 Ordinance is the fact that it reflects an outmoded and constrictive understanding of mental health, which is .oriented primarily around the management of the mentally disordered, without any acknowledgement of external factors contributing towards mental health. This is seen from the preamble to the ~inance, which proclaims the purpose of the Ordinance. Under the preamble, the Ordinance is designed to “consolidate the law, to regulate proceedings in cases of mental disorder, and to provide for the reception and detention of persons of unsound mind in mental hospitals.” Thus, emphasis is placed on the reception and detention of mental patients, rather than treatment and care for the improvement of the wellbeing of such patients.  Inevitably, the Ordinance also fails to address recent trends in the psychiatric field, which have stressed the importance of external factors such as socio­economic conditions, and the influence of family and other relationships, in maintaining optimum levels of mental health. The restrictive approach to mental health care under the 1952 Ordinance does not provide due regard to the importance of community based care, which has been acknowledged by the World Health Organization (WHO) as being of primary importance in improving health care for the mentally ill. The WHO makes the following recommendation in its 2001 report:  Community care results in better treatment outcomes and quality of life for individuals with chronic disorders. Shifting patients from mental hospitals to community care can be cost effective, help to ensure respect for human rights, limit the stigma of recehtng treatment and lead to early treatment.”8  The Mental Health Act 2001 on the other hand adopts a wider understanding of mental health, as seen from the preamble to the Act. The Preamble states that the 2001 Act is designed to “consolidate the laws relating to mental disorders and to provide for the admission, detention, lodging, care, rehabilitation, control and protection of persons who are mentally disordered and for related matters.” Furthermore, the 2001 Act provides a direct affirmation of the importance of community based care, as seen from the Part VI of the Act. In particular, section 37(2) states that “any community mental health centre may provide community care treatment to voluntary and involuntary patients,” thereby broadening the avenue of treatment and care available for mental patients in Malaysia.  In line with such improvements, the 2001 Act is also expected to increase avenues of choice for patients by its abolition of the prohibition on private mental hospitals under the 1952 Ordinance. Under section 29 of the 1952 Ordinance, only the Minister is empowered to “establish or maintain any hospital or place used partly or wholly for the reception and detention of mentally disordered persons.” Any persons guilty of violating the provisions of this section will be liable to a fine of up to five hundred dollars, imprisonment for up to two years or to both a fine and imprisonment. At present, only 4 psychiatric hospitals and 14 psychiatric wards in General Hospitals exist as the primary providers of mental health care for a catchment area encompassing the whole of Malaysia. Inevitably, the result of the prohibition on the establishment of private mental hospitals is to grossly contribute towards the problem of overcrowding of mental hospitals. Such conditions will undoubtedly have an adverse effect on the quality of mental health care in Malaysia, and will inadvertently jeopardize the human rights of the patients in question.  8 World Health Report 2001, Mental Health: New Understanding, New Hope.  The 2001 Act is expected to usher in other considerable improvements relating to the human rights of mental patients. In particular, the Act indirectly provides protection for at number of human rights. Under section 77 of the Mental Health Act 2001, treatment involving surgery, ECT or clinical trials will require the informed consent of the mental patient, unless the patient is incapable of giving informed consent, is a minor, or is in situations of emergency. The requirement for informed consent marks the influence of Principle 11 of the UN Principles for the Protection of Persons with Mental Illness on this piece of legislation. Furthermore, this requirement is also in line with established interpretations of the prohibition against cruel and unusual treatment.  Additional compliance with the requirement of protection against cruel and unusual treatment is also seen from other sections of the 2001 Act, concerning the ill-treatment of mental patients. Although the 1952 Ordinance does provide some protection against ill-treatment of patients, the 2001 Act increases the level of protection by expanding the ambit of liability and increasing the penalty for persons who ill-treat patients. The 2001 Act extends protection to cover ill-treatment by medical practitioners and professional care workers in all institutions and facilities designed for the care of the mentally ill, as well as ill-treatment by any person with care or custody of the patient. Furthermore, the Act increases the penalty for ill-treatment to a fine of up to RMIO,000 or to imprisonment for up to two years, or both. The 1952 Ordinance on the other hand only provides for one months imprisonment and/or a fine of up to $500.  Another example of increased human rights protection under the 2001 Act is found in section 78. Under this section, the Medical Director of psychiatric hospitals are required to ensure that the patient and a relative understands the legal circumstances allowing for the detention of the patient, and the rights available to the patient to apply for his or her discharge. This section effectively give Gives  life to UN Protection Principle 12 which requires a notice of rights to be givenn to the patient.  Thus, it is clear that the advent of the Mental Health Act 2001 will significantly improve the protection of human rights for the mentally ill in Malaysia. Nevertheless, legislative improvement is only part of the solution for the problems plaguing the mentally ill in Malaysia. Other causes for deprivation of the rights of the mentally ill locally are the prevalence of misunderstanding regarding the causes and nature of mental illness in society, and it is imperative that steps are taken to address such misinformation in the public. Mental illness is said to affect approximately 12 percent of Malaysian adults and up to 15”~percent of children in Malaysia. Such mental illness often takes the form of illnesses such as depression and schizophrenia. Worryingly, only approximately 10% of Malaysians suffering from mental illnesses are estimated to seek medical treatment due to fear of stigmatization from society. In particular, prevailing cultural practices and taboos have been responsible for the• persistence of negative stereotypes of the mentally ill. According to Associate Professor Dr Osman Che Bakar, consultant psychiatrist for Hospital University Kebangsaan Malaysia, “victims who may show signs of aggression or severe depression, are accused of manipulating their behaviour to seek attention, making it difficult for people to understand that they need help.” Dr. Osman also estimated that 9 out of 10 Malaysians still have a negative perception of victims and believe that mental illnesses are attributed to the influence of spirits and supernatural events. This is why many Malaysian mental patients, particularly those dwelling in rural areas often resort to the use of bomohs and dukuns to alleviate their symptoms.9  This is also why many recovered mental patients are still abandoned by their families. A recent visit by the Human Rights Commission of Malaysia to Hospital Perrnai drew the attention of the Commission to the fact that some patients have been forced to remain in the hospital notwithstanding recovery on their part, due to the unwillingness of their families to accept them. It should be noted that the continued detention of mental patients without valid medical justification cannot be viewed legitimately from the lenses of human rights. In light of this fact, steps must be taken by all relevant parties to provide further protection for recovered mental patients to enable them to effectively reintegrate into society. Families have a crucial role to play in accepting their responsibility towards recovered patients, as do welfare authorities. Finally, education to eliminate ignorance concerning mental illness must be made available to the public. Only in this way can a permanent and holistic solution be found to ensure the human rights of the mentally ill in society.                  9 Mental disorders can be treated.’ The Star, August 10, 2002.