A Critical Examination of the Rights of Persons with Mental Health Illness in Nigeria

Contributed By Victor O. Atang

INTRODUCTION

According to the World Health Organization, mental health is a basic human right for all people; and as such, everyone, regardless of who they are or where they are, is deserving of a fundamental and inherent right to the highest attainable standard of mental health.^[1] Globally, and even in our immediate environs, individuals with mental health conditions face numerous human rights violations and discrimination,including coercive practices such as involuntary admission and treatment, seclusion/restraint as well as sexual abuse. Nigeria, which has a population of about 180 million, faces a significant mental health crisis, with an estimated 20% of its people suffering from various mental health conditions^[2].

Several media organizations have reported situations where individuals suffering from mental health conditions are locked up in a room for years and left poorly fed^[3]. Reports also indicate thatvictims of mental health conditions are often subjected to sexual abuse during the course of receiving medical treatment.^[4] The principal aim of this paper is to address the rights of persons with mental health condition in light of the relevant regulatory framework and modalities for the enforcement of these rights.

CONCEPTUAL CLARIFICATION.

It is considered imperative to make clarification on the subject under consideration. Mental health and mental illness are however often intertwined, however, there is a difference between the two. Everyone has mental health but not everyone is diagnosed with mental illness. While mental health is a component of behavioural health that includes our emotional, psychological and social well-being, It is a state of well-being that enables us to cope with life’s stresses, realise our abilities, learn and work effectively, as well as contribute to our communities. It is simply the absence of a mental health condition and the presence of well-being and ability to thrive^[5]. On the other hand, mental illness. Mental illness or disorder is characterised by a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour.  It is usually associated with distress or impairment in important areas of functioning. There are many different types of mental disorders.  Mental disorders may also be referred to as mental health conditions. The latter is a broader term covering mental disorders, psychosocial disabilities and other mental states associated with significant distress, impairment in functioning, or risk of self-harm. It is usually caused by a combination of genetics, environment as well as lifestyle factors etc.

RIGHTS OF PERSONS LIVING WITH MENTAL HEALTH CONDITION IN NIGERIA

In recent years, the Nigerian government has realised how important mental health is in the fields of public health and development and this has also prompted the enactment of relevant laws to ensure the protection of rights of those living with mental health illness as well as the establishment of regulatory framework; the Department of Mental Health Serviceswhose principal objective is to propose policies for mental health conditions and facilitate their approval and implementation, promote the rehabilitation and integration of persons with mental health conditions into the community and the adoption of community and family-based care and support systems for persons with mental health conditions as appropriate as well as conduct regular monitoring and evaluation of the implementation of the provisions of National Mental Health Act, among others .^[6] The National Mental Health Act, 2021, which came into force on 5^th January 2023 has several provisions which guarantee that persons with mental health conditions are not subjected to discrimination as it relates to their health rights, property/housing rights, employment right as well as cultural, social and religious rights. These rights will be briefly examined below, to with

Health Rights

The National Mental Health Act, of 2021 provides that a person with mental health conditions has the right to appropriate, affordable and accessible physical and mental health care services, counselling, rehabilitation and after-care support^[7]. In order to ensure that those living with mental health conditions are not discriminated against, the law makes provision for quality and standard treatment for those with mental health conditions to the effect that those with mental health conditions are entitled to the same standard of care as a person with physical health problems and shall be treated on an equitable basis including quality of in-patient food, bedding, sanitation, buildings, levels and qualifications of the staff, medical and related services and access to essential medicines^[8]. Furthermore, the health rights of people with medical illnesses includes the right to confidentiality with regard to information relating to the health status of the person^[9].

In reaction to the prevalent practice where a victim of a mental health condition is locked up for years and malnourished^[10], the National Mental Health Act provides that persons with mental health conditions shall be protected from the use of forced treatment, seclusion and any other method of restraint in facilities, including physical, chemical and mechanical restraints, except in accordance with the provisions of the Act. To this effect, no person shall be subjected to any form of restrain or seclusion unless he has first received adequate care by a medical officer for at least 48 hours and upon the expiration of that time two medical officers examine the person with a mental health condition and certify in writing that it is the only means available to prevent immediate or imminent harm to the person, the head of the facility has authorized the adoption of this measure in writing, he facility has been accredited by the Ministry or the State Ministry where appropriate as having adequate facilities for undertaking such a measure safely.^[11] It is important to note that any person who restrains or secludes a person living with a mental health condition is guilty of an offence and is liable to a fine of at least N2,000,000.00 or imprisonment for a term not more than five years or both.^[12]

Right to Appoint Legal Representative

The National Mental Health Act, 2021, bestows upon those with mental health conditions, where possible, to exercise the right to appoint a person as their legal representative. Such a person is also appointed and has theright to make decisions in respect of the treatment of the person with a mental health condition, where it becomes very obvious that the person lacks the capacity to make decisions.^[13] However, by virtue of Section 39 of the National Mental Health Act, the parent or guardian of a person with a mental health condition shall represent the person in respect of any matter under this Act where the person is a child and shall act in his or her best interest, provided that where an attending healthcare worker is of the opinion that the decisions which are being made by the parent or guardian of the child with a mental health condition are not in the best interest of the child, the attending healthcare worker may apply to the Court for the appointment of an independent legal representative who shall be required to make decisions in the best interest of the child.

Employment Rights

The National Mental Health Act 2021, also guarantees employment rights of persons with mental healthconditions to the effect enjoy equal access to work and employment opportunities. They shall have the right to receive renumeration for work done, similar to that of persons without mental health conditions.

In addition to this, the law prohibits an employer from terminating the employment of a worker or otherwise depriving them of any benefits inured to him on grounds of present or past health condition. The law mandates employers to assist the worker to seek medical treatment where the employer has reasonable cause to believe that the worker is suffering from a mental health condition.^[14]

Sexual Relationships with Patients Having Mental Health Conditions

It has become a reccurring practice where patients of mental health conditions receiving medical attention are reported to be sexually abused by health workers or visitors/family members^[15]. ^[16]In response to this, the National Mental Health Act prohibits staff members or employee or a health worker attending to a person receiving care for a mental health condition or a mental health practitioner at a facility from having a sexual relationship with any person who is for the time being, receiving treatment for a mental health condition in the treatment facility, or at the time being receiving treatment as an out-patient and any person such offence is liable,upon conviction, to life imprisonment with no option of fine.

Interestingly, the law does not make provision for consent with regards to sexual intercourse with persons having mental health conditions. To this effect, consent shall not serve as a defence, as in law, express mention of one thing excludes others as often expressed in the legal maxim; expressio unius est exclusion ^[17]

ENFORCEMENT OF RIGHTS OF THOSE WITH MENTAL HEALTH CONDITION

It is trite that where there is a right, there is a remedy, as is often expressed by the Latin maxim, ubi jus ibi remedium. This principle obliges the Court to provide remedy whenever the Plaintiff has established a legally recognized right as the Court cannot rule otherwise.^[18] Thus, having established from the fore-going, the rights of persons living with mental illness, our jurisprudence ensures that if the right of persons living with mental illness is violated, the Court readily becomes the appropriate place to enforce such right. Furthermore, these rights may be enforced against both private and corporate entity as well as public bodies such as the Federal Ministry of Health which is a relevant stakeholder. However, it is pertinent to note that in instituting an action against the Federal Ministry of health for the enforcement of the right of a victim of mental illness, due regard must be given to Section 56 of the Mental Health Act which makes provision for a pre-action notice to be served on the Ministry.

CONCLUSION

A new paradigm for safeguarding people with mental illnesses is established under the National Mental Health Act. It has become imperative that everyone, including private persons, corporate entities, as well as public bodies, carefully consider their exposure to liabilities given the harsh penalties imposed for any breach of the rights of people with mental health illness as it has been demonstrated in the body of this work. Employers must reassess how they treat employees with cognitive impairments, and healthcare providers must review their treatment protocols. The Court must be stringent in giving effect to the letters of the National Mental Health Act when it has become a matter of necessity consequent upon an action for enforcement.

REFERENCE

1. Mental Health: Promoting and Protecting Human Rights> available at https://www.who.int/news-room/questions-and-answers/item/mental-health-promoting-and-protecting-human-rights accessed 24th January, 2024 ↑
2. Cheluchi Onyemelukwe: Stigma and Health in Nigeria: Some Suggestions for Law Reform- Journal of Law, Policy and Globalization Vol. 55, 2016 at Page 6. ↑
3. Punch News: Police Rescue Another Kano Man, 35, held captive for 15 years> available at https://punchng.com/police-rescue-another-kano-man-35-held-captive-for-15-years/#google_vignette ↑
4. National Library of Medicine: Prevalence and pattern of Sexual Assault in Usmanu Danfodiyo University Teaching Hospital, Sokoto, Nigeria> available at https://pmc.ncbi.nlm.nih.gov/articles/PMC5267856/ > accessed 25^th January, 2025 ↑
5. Center for Disease Control and Prevention: ↑
6. Nigeria Health Watch: From the Lunacy Act to the First Mental Health Act in Nigeria: Five Takeaways: available at https://articles.nigeriahealthwatch.com/from-the-lunacy-act-to-the-first-mental-health-act-in-nigeria-five-takeaways/ > accessed 25^th January, 2025. See also, Section 2 of the National Mental Act, 2021 ↑
7. Section 15, National Mental Health Act ↑
8. Section 16, National Mental Health Act, 2021 ↑
9. Section 21, National Mental Health Act ↑
10. Supra ↑
11. Section 34, Mental Health Act ↑
12. Ibid ↑
13. Section 17, National Mental Health Act ↑
14. Section 13, National Menta Health Act ↑
15. Supra ↑
16. Section 55, National Mental Health Act ↑
17. See KYARI V FRN & ORS (2024) LPERL – 62768 (CA) ↑
18. BELLO & ORS V AG OYO STATE (1986) LPELR – 764 (SC) ↑