Article 1 of the Convention on the Rights of Persons with Disabilities (CRPD) defines Persons with disabilities to include, ‘those who have long-term physical, mental, intellectual or sensory impairments’. Article 12 of the Convention further provides that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on equal basis with others’. The legal capacity enunciated in Article 12 is two-fold, to wit, an entitlement to the right of making autonomous decisions and the ability to exercise such a right.
It is instructive to note that Kenya is a signatory to the CRPD and thus, pursuant to Article 2(6) of the Constitution, making it a legally binding document in Kenya. The Kenyan society for a long time has institutionalized discrimination against persons with psychosocial disabilities by perceiving them as incapable of making any decisions, whether or not such decisions affect them. Such persons were therefore perceived as objects of pity as opposed to people with self-respect.
This commentary pursues the following objectives;
- To have an overview assessment of the legal and policy framework in the Kenyan health sector for the persons with psychological disabilities;
- To interrogate judicial and administrative of such obligations in the Kenyan health sector on the treatment of persons with psychological disabilities.
- Legal and Policy framework on legal capacity in the Kenyan health sector for persons living with psychosocial disabilities
Although the Kenyan Constitution under Article 27 recognizes every citizen’s right to equality before the law, such right seems not to extend to persons with psychosocial disabilities. The right to the highest attainable standard of health is also set out in Article 43 (a) of the Constitution. The government is therefore obligated to ensure that healthcare services are available to people with disabilities through affirmative actions. The sad reality is that Kenya still holds onto the medical model which presumes that people’s incapacities are as a result of their mental impairment, as opposed to the social model which imputes the incapacity on the barriers created by society. The Mental Health Act is the main legal framework that governs the treatment of persons with psychosocial disabilities (PWPD) in Kenya. Under the Act, persons suspected of having ‘mental disorder’ can be admitted to a psychiatric hospital involuntarily. This takes away the individual’s right to make autonomous decisions and thus reducing them to objects of pity and charity. Decisions on health by the PWDs are not factored in because society believes that such people are susceptible to making decisions that might harm them and society at large. The language of the Mental Health Act is clothed with excessive and wide inclusionary criteria through which involuntary admission of patients is allowed. A spouse can make an application for admission failure to which, any person can, make the application stating among others, why the spouse has failed to apply for the ‘patient’s admission’, the connection that they have with the ‘patient’ and the circumstances that lead to the application. One can only imagine the tragedy that such a provision has on the PWD’s right to choose freely whether or not they want treatment. This then calls for an interrogation of Article 12 of the CRPD which is read together with the interpretative General Comment No. 1 of Article of the CRPD.
- Judicial and administrative effects of Article 12 obligations in the Kenyan health sector on the treatment of persons with psychosocial disabilities
This commentary through its recommendations, highlights some of the juridical implications of Article 12 on Kenya.
- Enacting legislations and enabling provisions that respect individual autonomy and preference in decision-making
The Mental Health Act, should be amended to ensure that PWDs are not involuntarily detained in mental facilities. Involuntary detention promotes the medical model that is strongly rooted in the belief that PWDs, who are sometimes referred to as mental retards or mad persons, should be given compulsory medical care for their own good.
- Abolish institutionalized substituted decision-making that has a legal backing to a support decision-making model
This is intricately linked with the issue of autonomous decision making but goes on a step further to suggest an enactment of laws that will proscribe any act that is aimed at treating the PWDs as charity cases.
- The language of persons with disabilities should be changed
Language is a powerful tool in shaping societal attitudes. Article 83 (1) (b) of the 2010 Constitution makes reference to persons with psychosocial disabilities are people of unsound mind and mental incapacity. As discussed above, such terminologies are propagating the medical model that equates mental incapacity to legal incapacity. The language should be changed and be aligned with the definition given under Article 1 of the CRPD.
The government should also Initiate trainings to the judicial officers, public servants, psychiatrists and to the public in general, on the need to respect the legal capacity of persons with psychosocial disabilities.
- Conclusion
Article 12 requires member states to adopt laws and policies that promote supported decision-making and get rid of substituted decision-making. Society has often perceived PWDs as persons who can’t make their own decisions where such prejudices have found their way into the Kenyan laws on mental health. Article 12 will then have an immense effect on the Kenyan judicial and administrative framework which calls for a departure from a medical model to a social model, where every person is believed to make their own independent and preferential decision.
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