Mwewa et al. v Zambia (Attorney General) et al.

[2017] ZMHC 77
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The petitioners, Gordon Maddox Mwewa, Mulima Santa Kasote, and Sylvester Katontoka were involuntarily detained in Chainama Hills Hospital following periods of mental health issues. Out of the three petitioners, Kasote and Katontoka were arrested and detained by police officers according to the Mental Disorders Act. They filed the petition before the High Court of Zambia pursuant to Article 28 which enforces protective provisions, of the Zambian Constitution. The third petitioner Katontoka contended that he was arrested on the grounds that the police deemed him a “mentally disordered danger to society” and “incapable of taking care of himself.” First petitioner Mwewa submitted that he was arrested and detained as a result of the power his family had under the Mental Disorders Act to have him admitted to hospital against his consent. The men described the conditions of Chainama Hills Hospital as “depressing” given the overcrowding and poor sanitation of the wards, insufficient food, the abuse and humiliation patients suffered while in the care of hospital staff, and the lack of proper medical attention or amenities.

The petitioners prayed before the High Court of Zambia to set aside the Mental Disorders Act and declare it unconstitutional. The Mental Disorder Act has failed to comply with Zambia’s international human rights obligations and had been superseded by the Persons with Disabilities Act, No. 6 of 2012. In particular, they contended that the Mental Disorders Act violated their Rights to Dignity (Article 8), Personal Liberty (Article 13), Protection from torture and inhuman or degrading treatment (Article 15), Protection from deprivation of property (Article 16), Constitutional protection of the law (Article 18), and Freedom from discrimination (Articles 23 & 266) under the Constitution of Zambia. In contrast, the petitioners contended that the Persons with Disabilities Act affirmed “a human-rights based approach to disability” that promoted dignity, inclusion, and equality of people with mental health issues. They also sought declaratory relief to protect people with mental disabilities and illness from unlawful detention, to prevent the violation of their rights, and to require informed consent be given to medical treatment and admission to a healthcare facility. Finally, the petitioners argued that the Mental Disorders Act created a system in which there were no mental healthcare services provided at the primary level, forcing persons with mental disabilities to access care in distant facilities which are often inadequate for their treatment.

The Court held that the Mental Disorders Act in its entirety could not be declared unconstitutional; however, the Court could consider individual provisions of the Mental Disorders Act to determine their constitutional validity. The validity of the Mental Disorders Act could only be adjudicated with reference to the Constitution of Zambia and the more recent Persons with Disabilities Act can’t question the validity of the Act since a general law cannot invalidate a specific law.

The Court found that sections 6, 8, 9, 30, and 31 of the Mental Disorders Act constitutionally and lawfully allowed for detention and involuntary admission of people with mental health issues to prisons and medical facilities without contravening the right to liberty and security of the person. While the court observed that there may be instances where a person with a mental illness may be able to make a “sound decision” and consent to his or her care, the issues of when to control, review, admit or detain individuals required a legislative action rather than a judicial action. The Court also observed that the decision to determine the detention or admission of mentally disabled persons to prisons or medical institutions could not be dealt by the Court as it was a medical question and not a legal question. While the Court acknowledged that patients suffering from minor conditions could be allowed to consent to their treatment, the Court also held that the Mental Disorders Act constitutionally and lawfully removed the right of mentally disabled persons to have informed consent in their medical treatment since an affected person might not always be able to appreciate the severity of their illness.

The Court declared Section 5 of the Mental Disorders Act, which used derogatory language in relation to mentally disabled persons, as unconstitutional and violative of Article 23(1) of the Constitution. The Court held that inhumane treatment of patients at the Chainama Hills Hospital would amount to a violation of Article 15 of the Constitution. The Court directed the authorities of mental health institutions to ensure that the patients at the facility are treated in a humane manner.

The Court observed that section 2 of the Mental Disorders Act, generally did not unconstitutionally and unlawfully discriminate against people with mental disabilities with regards to access to healthcare services and rehabilitation given that it was an old piece of legislation which named facilities available at the time of enactment for treatment. The legislation required updating and adaptation to reflect the current times and issues surrounding health care access in Zambia, but this required a “socio-economic approach” rather than a court decision.

“A Court has a duty to test whether a restriction is reasonable by exposing it to the principles of fairness. Sections 6, 8, 9, 30 and 31 of the Mental Disorders Act are regulatory in that they state the procedure on detention of persons suffering from mental disabilities. They also regulate the admission of mental patients into mental health institutions. It appears that in certain circumstances the admission can be quite involuntary because affected persons are detained either at the behest of family members, members of public or law enforcement agencies. While it is rightfully contended by the Petitioners that there could be an infringement of the affected persons rights, I take the view that there is need to consider the principle or proportionality.
By this, I mean to say that there needs to be a balance between the competing considerations on detention and admission to mental health institutions, which appear to be involuntary on one hand and the affected persons rights. In my view, there may be instances, where it is necessary for the family, community or law enforcement agencies to have a mental patient admitted without their consent especially where they suffer from severe disabilities or where it is obvious that an affected person is not capable of making an appropriate decision for their care and treatment. The decision to determine the detention or admission of mental patients to prisons or medical institutions is a medical question, and cannot be determined by this Court.” Pg. J32-J33.
“I find that it is incontrovertible that every person is supposed to be provided with health care services without discrimination. That is to say, persons with disabilities must enjoy the same health range, quality and standard of services and treatment as provided to others. There should be no discrimination whatsoever.”Pg. J45-J46.
“[A]ll persons with mental disabilities should be treated humanely at all health institutions. Any cruel or inhumane treatment inflicted at mental health facilities contravenes Article 15 of the Constitution. I also hold that mental patients should be allowed treatment at the primary health care level wherever possible.” Pg.J48

Articles 8,13, 15, 16, 18, 23, and 266 of the Constitution of Zambia - Right to dignity (Art. 8) - Right to personal liberty (Art. 13) - Right to protection from torture and inhuman or degrading treatment (Art. 15) - Protection from deprivation of property (Art. 16) - Right to constitutional protection of the law (Art. 18) - Right to freedom from discrimination (Arts. 23 & 266) Section 2 of the Persons with Disabilities Act (definition of “disability”) - “a permanent physical, mental, intellectual or sensory impairment that alone, or in combination with social and environmental barriers, hinders the ability of a person to fully or effectively participate in society on an equal basis with others.” Section 4(a) of the Persons with Disabilities Act - “The following principles shall apply to persons with disabilities: Respect for the inherent dignity of the person with disabilities, individual autonomy including the freedom to make one’s own choices and independence of persons.”
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