Following the partition of Indian Subcontinent in 1947, Pakistan continued to make use of most of the laws it inherited by the British Raj(Crown rule). Instead of being repealed the preexisting legislations were renamed until the nascent country was in a position of engendering legislations on its own.The Lunacy Act of 1912 is one such legislation which remained active for more than 50 years, post partition, governing laws related to the mental health of Pakistanis.
Continued efforts were made to reform the legislative and administrative system of the country until the nation was stable enough to enable the government to propose new laws. Eventually in 2001, the efforts bore fruit and the Mental Health Ordinance was introduced. The bill was shaped by qualified psychiatrists from Pakistan and the United Kingdom. This order was not just set out to amend the law relating to the treatment of lunatics but also to provide proper mental healthcare to the community as a whole.
Moreover, in acute contrast to the previous laws, it provided patients with a right of appeal against coerced admission in mental asylums, establishing the Federal Mental Health Authority to prohibit malpractice by setting up standards of care of patients.
From Lunacy to Mental Health
70 years have passed since the independence of Pakistan and the country has made good efforts to improve the mental health of its people howbeit in these years, the rest of the world has introduced incomparable, pharaonic reforms in the mental healthcare of their own healthcare systems. The question then arises, “There are innumerable improvements in the mental healthcare system of Pakistan, but are they adequate?” From the theoretical to the practical, the education system which gives birth to doctors, to the legislature which makes health related laws and the implementation of it by the executive, there is a wide berth of an implementation gap. The sociopolitical instability, economic uncertainty, religious disparity, violence and disasters have played a significant part in deterioration of mental health of Pakistanis, generating depressive disorders, post-traumatic stress disorder (PTSD) and other anxiety related problems. In this fragile healthcare system, it is the women and children who suffer the most. The rates of perinatal depression in Pakistani women are amongst the highest in the world ranging from 18 to 30% in urban areas and 28 to 36% in rural areas.[1] In addition to this, a number of other disorders such as Bipolar disorder, Hormonal flux, Schizophrenia, Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive-Compulsive Disorder (PTSD) wreck havoc on women’s mental health in Pakistan. The pressing need for a serious review of the mental healthcare system of Pakistan is captured by the following words of Dr. Ayesha Mian:
“Approximately 20 million children or 10% of the population in our country need attention from mental health practitioners. Unfortunately,there are only 400 trained psychiatrists in the country,” (Dr.Ayesha Mian, chairperson of Psychiatry Department at the Aga Khan University(AKU) at the Karachi Press Club on October 9th,2016)
The Mental Health Ordinace 2001
Right to life and property is a fundamental right guaranteed under Articles 4, 9 and 23 of the Constitution of Islamic Republic of Pakistan 1973. In replacing the Lunacy Act 1912, the Mental Health Ordinance (MHO) 2001 manifested the spirit of these guarantees and allowed for a complete transformation of the regulation of practices relevant to mental healthcare in Pakistan. The precise definitions and appropriate terminology of the MHO replaced the archaic, inadequate and often incomplete terms of the Lunacy Act 1912. This piece of legislation adopted a more legal rather a sympathetic approach towards the patients. Its predecessor had no provisions regarding the measures to look after the individuals whereas the MHO 2001 established a Federal Mental Health Authority (FMHA) comprising of 7 eminent psychiatrists and 7 other members, largely bureaucrats to facilitate the mentally ill and set up national standards of treatment for them. As the preamble proclaimed, it brought conspicuous changes in the law: “relating to mentally disordered persons with respect to their care and treatment and management of their property and other related matters.”[2]
Furthermore, it limited the period of detention of alleged lunatics to a maximum of 72 hours . It protected the right of privacy of its subjects as Chapter VII states that no patient shall be coerced to reveal his identity to the public or the media in particular. It penalized those who attempted to defame, denounce or discredit a person by alleging them to be mentally ill. Also, it criminalized the practice of microcephaly and ill treatment and placed a remarkable control on the practice of psychosurgery and the electric shock treatment.
Court of Protection
The court constituted under the Ordinance is defined as Court of Protection under Section 2(d) which states: “Court of Protection” means a District Court having jurisdiction under this ordinance in matters specified herein and designated as such by the Government.”[3]
This court is responsible for protecting the rights of all mentally disordered persons in accordance with law and it is its duty to safeguard the property of every such individual while exercising its discretion in a judicious manner. The case law shows that the Courts in the light of the MHO 2001 in Pakistan exercise stringent control with regards to the protection of the propriety and proprietary rights of mentally disabled individuals.
Mst. Shazia Naheed v. Public at Large is a case illustrating this, which has left a commendable trail for the future judgments in which the court dismissed the appeal in limine declaring the court as the guardian of the property of mentally disordered girl.
“Learned counsel submits that mentally disable girl will inherit her share from the assets left by her deceased father, being one of his legal heirs and the matter is pending before Civil Court, Lahore. Further submits that all the legal heirs have decided to settle their dispute amicable and have entered into a compromise, by dint of which the share of mentally disable girl comes to Rs.2,75,00,000/- two crores and seventy five lacs). Learned counsel prays that amount of surety may be reduced to the extent of share of mentally retarded girl.”[4]
Gender Inequality and Mental Health Laws
Violence against women, gender inequality, male dominance and the societal attitudes of our patriarchal society have played a pivotal role in deterioration of women’s mental health. The cultural practices (Karo Kari, Watta Satta,Walwar, dowry ,stove-burning etc) that demand female subservience have further contributed to suicidal attempts and psychological disorders in women. A four year survey of psychiatric outpatients at a private clinic in Karachi found that two thirds of the patients were females and 60% of these females had a mood disorder, 70% of them were victims of domestic violence and 80% had marital conflicts.[5]
While the MHO 2001 was a revolutionary legislation for the Pakistani mental healthcare system, it was not capable of prioritising identified problems and needs of the mental healthcare system of the country. One major flaw was that it did not provide a gender based approach to mental healthcare and institute relevant protections. Lack of implementation added to this. Calls for reform against the legislation were made by many which led to the repeal and replacement of the ordinance in 2014 by the Punjab Mental Health Act.
This was a mere amendment of the former ordinance. The 18th amendment in the constitution of Pakistan declared health, a provincial subject rather a federal one hoping that the government would take instant measures to deal with the current scenario. Despite these enactments concerns for the implementation of laws protecting mental health of women, lunatics and children are still alive. There are 342 registered psychiatrists with the Pakistan Medical and Dental Council out of which only about 150-200 have proper training. The lack of adequate facilities and the weak administration of the mental health laws makes these groups vulnerable to human rights abuses.
It is said that in order to judge how civilized a society is all you have to do is to see how it treats its vulnerable members. We do not even have explicit provisions regarding the health of underprivileged genders of our country; mainly women and transgenders. It is astonishing to see where we stand as a community.
The transgender community in Pakistan suffers the most out of all other genders with regards to the protection of their rights, security and the healthcare in the country. They are often the targets of discrimination and harassment which can lead to negative health outcomes. They come across great difficulties in accessing public health facilities as they barely have access to hospital services, the perilous nature of which manifests itself in instances like Alisha’s Case at the Lady Reading Hospital where the transvestite activist was continuously shifted from the male ward to the female ward and was finally forced to settle in a private room. The entire process was met with the negligence of the hospital staff and eventually caused Alisha to succumb to her wounds. Although this instance was not a case relevant to mental healthcare, it has insights for the very same. Transgenders face similar problems due to lack of accommodation, when trying to access help for mental health. There are no specialized doctors, trained medical staff, or specific facilities dedicated to the mental health of transgenders.
It was not until June 2017 that the transgender community got recognized as a distinct gender with the issuance of Computerized National Identity Cards (CNICs). As per the 6th Population and Housing Census of Pakistan 2017, there are 10,418 transgenders in the country. The protection of their rights and the providence of proper mental health care services is a duty of the state. Unfortunately, the MHO 2001 does not address the transgenders as an underprivileged community nor does it provide any specific health law regarding their special needs. It mentions no law in relation to a mentally disordered transgender providing such persons with maintenance, medical treatment and the means to rehabilitate them. Furthermore, the transgenders have a unique set of health needs which are dissimilar to other genders but there are no provisions encompassing protections for them.
Laws Regarding Mental Disabilities
Neither the ordinance is clear in terms of the paper work nor does it provides explicit rulings with regards to women or transgenders in Pakistan. There is a disparity existing between the stated policy and the practices in place to implement it. One of such examples is the absence of any provision addressing criminal liability of the mentally ill which is why a number of them continue to suffer within the criminal justice system.
Where the Mental Health Ordinance,2001 has replaced the former Lunacy Act,1912 uplifting the quality of law by providing a good number of protections, it fails to match with the ideal standards of legislation across the globe, or even for the particular needs of Pakistan. Where countries like United States are on the verge of discovering a permanent end to Schizophrenia, unequivocally a biological disease of the brain, Pakistan on the other hand does not even recognize it as a mental disorder. The Supreme Court ruled in Mst. Safia Bano w/o Imdad Ali v. Home Department Government of Punjab that schizophrenia does not come within the definition of “Mental Disorder” provided in Section 2(m) of Mental Health Ordinance 2001 which states:
“Mental disorder means mental illness,including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and ‘mentally disordered’ shall be construed accordingly and as explained hereunder” in sub-clause (1), (2) and (3) [6]
It declared that: “the rules relating to mental sickness are not subjugated to delay the execution of death sentence.” [7]
The judges concluded that it was not a permanent mental disorder and hence did not offer sufficient grounds to allow for the defence of insanity[8] under the Pakistan Penal Code. The appellate court ruled out the possibility of quashing his sentence as Imdad Ali remains on death row. This has occurred despite the legislative framework of the country recognizing mental incapacity as a defense based on the maxim “Furiosus solo furore punitur” which means an insane person is punished by his insanity alone. But it is silent on the exclusion of those with mental disability from the imposition of the death penalty. This is not just a drawback of the Mental Health Ordinance but also the country’s domestic legal system in toto. International law condemns the imposition of death penalty against mentally disabled persons even on the onset of mental disorders after their being sentenced to death.[9]
This is not a position reflected by the legal system of Pakistan. Not only is this in violation of the fundamentals of right to life carried in the constitution of Pakistan but is also in derogation of the right to health, a fundamental human right, recognised by international human rights law, a body of law which Pakistan subscribes to and aspires to uphold the standards of, in implementing its own legislation. This highlights the need for efforts to ensure that this gap in these protections is covered by a durable, sensible and need based approach for the solution of problems of access to public mental health facilities for women and transgenders.
For this trained medical staff and adequate medical facilities, in hospitals set up by the government are a primary necessity. In addition to this, leniences in criminal penalties by the introduction of defences for individuals known to suffer from poor mental health, with added protections for women and transgenders, in context of the particular situation and the type of mental disability of each case, need to be introduced. There must be some institutionalized mechanism to ensure effective coordination between those who provide preventive services and those who treat the patients. The government must develop and establish new standards for care and treatment of patients at provincial level as well. All the people of Pakistan regardless of their caste, color or race are worthy of enjoying the necessities of life and of having a healthful environment. Since, the prospects for care are excessively bleak, instant steps must be taken by the government to enable the patients to seek treatment rather than being subject to being shunned by society. In order to regulate the law regarding the mental health of the people, a code of practice for medical professionals must be implemented to deal with mental health issues.
Moreover,respect for human rights would add to the inherent value of law on mental health where legislative work would not just concern one or two genders but rather all genders of the society. Reformation of the Pakistani system of mental healthcare can be done through policy level changes and by their due implementation which can be judged by the performance over the course of coming years.
[1] (Klainin and Arthur 2009) Karmaliani et al. 2009; Husain et al. 2006
[2] Government of Pakistan. Mental Health Ordinance,2001. Accessed 11 August 2005.
[3] Section 2 : Clause d , Mental Health Ordinance ,2001
[4] Mst Shazia Naheed v. Public at Large etc 2014; FAO No. 587-2014, Lahore High Court. Dated : 25.7.2014
[5] Niaz U.Contemporary issues of Pakistani women: a psychosocial perspective. Journal of Pakistan Association Women’s Studies 1997;6: 29-50.
[6] Section 2 ; Clause m of The Mental Health Ordinance, 2001 (VIII of 2001)
[7] Civil Petition No.2990 of 2016, Mst Safia Bano w/o Imdad Ali v. Home Department Government of Punjab and Others, 27 September 2016, para 4.
[8] Section 84 of the Penal Code, 1860.
[9] Article 6(5) of the ICCPR and Paragraph 3 of the UN Death Penalty Safeguards; UN Human Rights Commission resolution 2005/59 on the question of the death penalty.