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Mental illness is not well understood, it frightens people and all too often it carries a stigma.

Many persons fall prey to mental health illness and are subjected to be thrown in jail even though innocent when committing the illegal act. According to WHO figures, in developing countries like Pakistan, one percent of the population suffers from severe and 10% from mild mental disorders. According to the Global Burden of Disease (GBD) the mental illnesses constitute 10.5% of GBD, which may rise up to 15% in the year 2020. 0.4% of health care expenditures by the government health department are devoted to mental health. The dignity of a human is inviolable under the Constitution of Pakistan. However, there is no redress to legal aid and care for the mentally ill in Pakistan within or outside prisons. Today there are innumerable mental diseases such as anxiety, schizophrenia, bi-polar, psychosis, manic depressive disorders, eating disorders.

Moreover, many illnesses are the cause of inhumane treatment, on a mentally disordered person which including trepanning, branding, scalding, beating, exorcising, chaining to a tree etc. Causing a child to the cultural practices of making him mentally retarded, by inducing microcephaly, or causing a child/ person to physical, emotional or sexual abuse. Physical, sexual and psychological abuse is an everyday experience for many with mental disorders.

Today many people in Pakistan suffer from stigma of being mentally unwell. Mental health illness is a dogma not illustrated much in the world of the common man. When the rural lay man falls prey to mental illness it is condoned that he is either a victim of the devil or evil spirits. Whereas if one falls prey to a mental illness in the urban area he is said to be mentally ill and lieu of a therapist or psychiatrist. Awareness about mental illness is still poor in Pakistan. Such illness is generally attributed to supernatural causes—it is considered to be a curse, a spell, or a test from God. This dichotomy needs awareness/recognition of the actual reality.

Mental health problems can result from the range of adverse factors associated with social exclusion and can also be a cause of social exclusion. For example: unemployed people are twice as likely to have depression as people in work, children in the poorest households are three times more likely to have mental health problems than children in well off households, half of all women and a quarter of all men will be affected by depression at some period during their lives, people who have been abused or been victims of domestic violence have higher rates of mental health problems, between a quarter and a half of people using night shelters or sleeping rough may have a serious mental disorder, and up to half may be alcohol dependent , minority ethnic groups are diagnosed as having higher rates of mental disorder than the general population; refugees are especially vulnerable, there is a high rate of mental disorder in the prison population, people with drug and alcohol problems have higher rates of other mental health pro b l e m s, people with physical illnesses have higher rates of mental health problems

Admitting adults to hospital for psychiatric treatment without their consent remains a controversial issue and challenges the very basis of modern day clinical practice—that of informed consent. However, since it is generally recognized that such action may sometimes be necessary, a legal framework is required to define, and constrain, the circumstances under which this may take place. There is a balance to be achieved between, on the one hand, having the means to respond to the needs of, and/or risks posed by, a person considered to have a “mental disorder” who is not consenting to the proposed intervention, and, on the other, the risk that the use of such legislation poses with respect to a person's rights to autonomy.

The requirement for informed consent is an expression of an important principle in moral philosophy, namely “respect autonomy”. Autonomy has been defined in many different ways (Dworkin, 1988) but fundamentally it means having the freedom to be self-governing.

In contrast, the justifications for limiting autonomy rights include the prevention of harm to the person him or herself (paternalism) or of harm to others. Many authors have argued that paternalism is only justifiable if decision-making capacity is significantly impaired such that the choice being overridden is essentially non-voluntary (McMillan, 2007). Interference to prevent harm to others is justified because interference with an assailant's autonomy preserves both the autonomy and the physical integrity of any potential victims (Feinberg, 1984; Mill, 1998 [1869]

Clearly the mental health Act of Pakistan 2001, has set defined exceptions to the rule informed consent. Section 14 clearly sets out that informed consent is vital to be given by the patient unless the following situation arises. Section 14 states.

Emergency powers:

“where in the case of an emergency of a medical practitioner is unable to obtain informed consent in writing, he may administer treatment, notwithstanding the provisions of section 51, that in his professional opinion, is necessary for; -

  1. Saving the patient’s life’ or,
  2. Preventing serious deterioration of his condition; or
  3. Alleviating serious suffering by the patient; or
  4. Preventing the patient from behaving violently or being danger to himself or others

The above shows the delineation of the rule of informed consent. The Pakistan Mental Health Act 2001 reflects the debate where a self-governing individual cannot give consent and thereby the Medical practioner role as a taking responsibility of a doctor and a spiritual healer at the time of a bleakness for the patient. Wherein, the patient is incapacitated to give informed consent. Although the question remains that in some areas these exceptions may be abused leaves it desirous that the patient could be lucid. Which unfortunately is not the case. This question may also revolves as the same of euthanasia. Whether the Doctor can play God in these circumstances is a question between the liberalist conservatives or religious.

The Mental Health Act 2001 ordinance dealt with access to mental healthcare and voluntary and involuntary treatment. Sections of the ordinance dealt with competency, capacity and guardianship issues for people with mental illness. Under this ordinance, the Federal Mental Health Authority was established with the aim of developing national standards of care of patients, as well as setting a code of practice to be followed by all those involved with the care of patients under this ordinance Beginning with the Universal Declaration of Human Rights (United Nations, 1948) efforts have been made to codify such moral rights. The UDHR has since been operationalised in the form of enforceable instruments such as the European Convention on Human Rights (Council of Europe, 1950) the American Convention on Human Rights (Organization of American States, 1978) and the African (Banjul) Charter on Human and Peoples' Rights (Organization of African Unity, 1982).

People in prison Health and local authorities should also be involved in assessing the mental health needs of prisoners during their time in custody instead of being brutally abused. Many a coerced confession out of abuse leaves innocent people in jails without any legal aid redress and in turn they fall prey of mental illnesses and psychosis. May in turn are thrown in jail on the pretext of being ill and abusive but rather have thrown in jail for other reasons such as rape and murder committed against them. Sadly, there is yet to be any law which prescribes for mentally ill prisoner’s safety from abuse of their condition. A system for mentally ill prisoners to be administered with psychotherapy intervention and psychotropic drugs should be readily available. The Mental Health Act 2001 is unfortunately amiss on this subject.

Cases like Imdad Ali should be taken for reference when relating to the disparity or the weak reasoning in the Judiciary. On October 21, 2016, the Supreme Court of Pakistan turned down plea to delay the hanging of Imdad Ali, a 50-year-old schizophrenic man convicted in 2002 for murdering a cleric.

Therefore, where the caveat of mental disorder falls under section 84 (XLV of 1860) the rule of the insanity plea is attracted. When referring to Imdad Ali case we can surmise that section 84 applies in his case. The same insanity plea which the high court was not allowing on the principle that schizophrenia was a curable disease. Question comes into play is that whether when defendant committed the criminal act was he suffering from schizophrenia and if so, therefore falls under section 84. The contention by the judiciary however, is that there no evidence substantiating that the defendant was a schizophrenic or not while committing the act of murder. If this actually is the case the judiciary should surmise that in absence of evidence against him for him is evidently lacking the principle of maxim the person is innocent before proven guilty comes into play. Decision is still pending in the Supreme Court of Pakistan. As said it’s better to let 12 guilty person walk than hang one innocent. Pakistan has executed many persons suffering from mental illness and/or intellectual disabilities in violation of Article 6 and Article 7 of the Government of Pakistan’s Initial Report under the International Covenant on Civil and Political Rights (ICCPR) Under paragraph 8 of its responses to the List of Issues, the Government of Pakistan has incorrectly stated that “no mentally ill prisoner has been executed so far”. However, the 100th person has been executed in Pakistan, following the lifting of the moratorium on the death penalty. This is a gross miscarriage of Justice.

Hence the need to eliminate the taboo and stigma of mental health illness juxtaposed to lunacy needs to be eliminated and new growth of understanding on the subject needs to be understood by the common man from rural to urban areas. Science and medicine has come a long way to take care of the needs of the mental health. Nowadays mental health is as common as an issue of diabetes or heart disease. It is not to be associated as some lunatic running wild on the streets but rather someone whose mental distress needs to be alleviated, harnessed or to be pointed in the right direction. Sometimes the psychosis is so deep that intervention of therapy or psychotropic drugs are needed. Mental distress is a health issue. An issue which need to be taken cognizance by the world at large.

In the interim Pakistan should adopt anti-torture legislation that is in full compliance with the ICCPR and the Convention against Torture and that particularly defines and criminalizes torture, provides an independent complaint mechanism and provides redress and remedies to victims. Furthermore, reinstate the moratorium on the death penalty. Following the reinstatement, the Government of Pakistan should initiate an independent and impartial investigation into all cases on death row where there is even the slightest indication of a human rights violation including juvenility at the time of the commission of the offence, mental illness, torture, and abuse

Under the Constitution of Pakistan 1973 the dignity, security and health are inviolable for the rights protection for the mentally or physically ill citizens. Policy and legislation are two complementary approaches for improving mental health care and services; but unless there is also political will, adequate resources, appropriately functioning institutions, community support services and well trained personnel, the best policy and legislation will be of little significance.

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Aishah Tanwir Ahmad

Aishah Tanwir Ahmad is lahore based lawyer and LLM from George Washington University, USA