MENTAL HEALTH SERVICES AND HUMAN RIGHTS IN JAMAICA – THE CURRENT SITUATION
Posted on March 26, 2009
Filed Under Articles |
1. The Constitution of the World Health Organization adopted in 1946, states: “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Twp years later on
Article 25 (1) of the UDHR laid the foundation for the international legal framework for the right to health. It reads:
“ Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control
2. The UDHR along with the International Covenant on Civil and Political Rights (ICCPR 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR 1966) together make up what is known as the ‘International Bill of Rights.’ Article 1 of the UDHR provides that all people are free and equal in rights and dignity. This people with mental disorders are also entitled to the enjoyment and protection pf their fundamental human rights.
3. Article 12 of the ICESCR provides the cornerstone protection of the right to health in international law and introduces provisions that apply to all individuals in the 146 ratifying States, including
4. In 2007, the United Nations adopted the Convention on the Rights of Persons with Disabilities.
5. One of the fundamental principles of human rights is ‘interdependence.’ The right to health is closely related to the enjoyment of a number of other human rights and fundamental freedoms contained in international, regional and domestic instruments; such as the rights to housing, work education, life, non-discrimination, equality, the prohibition against torture and cruel and inhumane treatment, privacy, participation, access to information and the freedoms of association, assembly and movement. Freedom of expression, for example, will have no meaning if you are denied your right to shelter or food or proper health care.
6. Although a fundamental human right, with the same international legal status as freedom of religion or the right to a fair trial, the right to health is not as widely recognized as these and other civil and political rights.
7. In
8. The proposed Charter of Rights presently does not include the right to health, or non-discrimination on the grounds of health status or disability. The South African Constitution passed in 1996 contains the following provisions in its Bill of Rights:
“ 27 (1) Everyone has the right to have access to
(a) health care services, including reproductive health care,
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves or their dependants, appropriate social assistance.
(2) The State must take reasonable legislative and other measurers within its available resources, to achieve the progressive realization of each of these rights.
(3) No one may be refused emergency medical treatment.”
9. Constitutional protection is paramount, it provides that all ordinary legislation must conform to the guaranteed rights entrenched in the Constitution – if the right is not there the protection is eroded. IJCHR has been campaigning for some time now for the inclusion of the right to health in the Charter along with a strengthened non-discrimination section.
10. A draft bill has been prepared, but not yet tabled in Parliament entitled “ An ACT to promote recognition of the rights of and respect for persons experiencing disabilities, to Establish the [Jamaica Council for persons experiencing a Disability] [Disabilities Council of Jamaica] and for matters incidental thereto or connected therewith”. The Bill provides for –
(a) the establishment of a Council to be primarily responsible for ensuring that a person experiencing a disability is not mistreated by means of discrimination;
(b) a legal definition of the term “discrimination”;
(c) all social, economic and political benefits to be accessible to a person experiencing a disability;
(d) the removal of current stigma against a person experiencing a disability in the areas of education, employment, health, land and housing matters and involvement in political and other public life;
(e) the provision for penalties where breaches of the Act occur.
11. The Bill must be carefully considered by health care professionals as well as human rights advocates to ensure the proper protection of the rights of citizens with disabilities including mental disorders.
12. So far we have looked briefly at the international instruments for the protection of the right to health care and domestic legislation that could, with proper amendments, guarantee the right to health care. Dealing specifically with mental health legislation in
13. The first lunatic asylum was established in 1776 as a part of
14. The Act was amended in 1974 to allow a constable who thought a person was of unsound mind could without a warrant take the person to a government clinic or hospital. The next year a policy decision was taken to close the forensic ward at
15. On
16. Under section 15 (1) of the Act a police constable may without a warrant take a person found in circumstances as to indicate he is mentally disordered to a psychiatric facility. Section 15 (2) states that where an offence is committed and it appears that the person who committed the offense is mentally disordered; the constable may charge the person and detain him. The use of the term may gives the constable a discretion to decide not to charge and detain the person, but instead to take him to a psychiatric facility in accordance with section 15 (1).
17. The Criminal Justice (Administration) Act in section 25 dictated how mentally ill persons charged with offences were dealt with. Those found “unfit to plead” by a judge were incarcerated in a Correctional Centre for diagnosis and treatment. Those found by a jury as guilty but insane the court shall order to be incarcerated until the Governor-General’s Pleasure is known.
18. Under the regime of both Acts and in both situations, the legal system makes the mentally ill person a criminal and condemns him, in many cases without a hearing, to incarceration. “Treatment by incarceration” in a prison has as its primary purpose control: by separation and isolation. Psychiatric care is secondary to this primary objective. A prison is not a therapeutic environment: in fact, by its very nature, it is counter-therapeutic.
19. The need for reform of the law and the method of dealing with mentally ill persons in the criminal justice system has been highlighted from 2000 by several dramatic cases of mentally ill detainees “lost” in the system such as Ivan Burrows and Gilbert Legister, to name only two. Ivan’s case resulted in a Practice Note from the Chief Justice directing judges to receive a monthly report on anyone send to prison as “unfit to plead” – an obvious endeavour to make certain no one got lost again. It failed however to deal with the problem of “treatment by incarceration”
20. In March, 2004, a multidisciplinary Task Force of the Section of Psychiatry of the Department of Community Health and Psychiatry, University of the West Indies made a submission to the Cabinet on the development of a community forensic psychiatric service in
21. In July, 2004, the London-based Judicial Committee of the Privy Council,
22. A vital component of the sentencing hearings that now must take place after every conviction for murder is a psychiatric evaluation and report on the convict’s mental status. Psychiatry has become a necessary element of the legal process.
23. In March, 2006 amendments to the Criminal Justice (Administration) Act, section 25 were passed by Parliament and these amendments were brought into force on
24. The Memorandum of Objects and Reasons attached to the Bill to amend section 25 of the Act states that a decision was taken to seek the amendments in order to –
§ clarify the procedure for the trial of the issue of the fitness of a defendant to stand trial;
§ provide for the regular review of cases of accused persons remanded in custody after having been found unfit to stand trial;
§ widen the range of orders that may be made by a court where an accused person is found unfit to stand trail or in the case of a special verdict that a defendant was guilty of the act or omission charged against him but was suffering from a mental disorder at the time of commission of the offence;
§ extend the provision for legal aid to an accused person in respect of whom a court makes a direction that the issue of fitness to stand trial be determined; and
§ update the terminology used in the Act by substituting for the words “criminal lunatic” the words “forensic psychiatric inmate”.
25. The amendments to the section 25 of the Act in effect repeal section 25 and replace it with a new section 25 and subsequent sections 25A – 25E, as well as repealing sections 26, 27, and 28 which dealt with the discharge of criminal lunatics by a warrant issued by the Minister and the establishment of an Advisory Board to advise the Minister in the performance of his duties with respect to the issuance of a warrant. These sections and the right to discharge a criminal lunatic are no longer necessary as the courts are now given the authority to administer a wider range of orders with respect to persons with mental disorders and to review these orders periodically.
27. The new section 25 allows for a trail of the issue of ‘fitness to stand trial’ to take place at any stage of the criminal proceedings in court. The issue may be raised on the motion of the court or on the application of the defense or the prosecutor. It also allows for the postponement of the determination of the issue. This latter provision is important with respect to a defendant for whom there may not be sufficient evidence to convict. Also where there is a reasonable chance of the evidence adduced by the prosecutor being successfully challenged so that the defendant will not be called on to answer the charge.
28. Section 25 (3) (b) allows for the postponement of the directions as to the trial of the issue of fitness until –
a time not later than the opening of the case for the defense; or on the motion of the defendant, any time later.
29. This would afford a person the opportunity to ask the court to rule that there is no case for him to answer; the Crown has not proved that he committed any offence, and therefore the issue of his mental capacity is not an issue. In the past many persons were incarcerated for long periods of time for minor offences which could not be proved. Section 25)4)(b) therefore of the amendments states that the issue of fitness shall not be tried in relation to a defendant where he is discharged or acquitted, before the issue is tried.
30. Section 25 (5) states that where a court makes a direction for the trial of the issue of fitness and the defendant is not represented by Counsel, the court may grant a legal aid certificate. While this is commendable, two other factors should be considered by a judge:
· The need for legal representation before the defendant’s fitness for trial becomes an issue – if the provisions for postponement of the trial of the issue are to be effectively implemented, the defendant will need legal advise long before the making of a direction for trial;
· The entitlement to legal aid generally if the defendant is charged with an offence not exempted from legal aid and can not afford a private attorney.
31. With the Duty Counsel scheme and the Legal Aid system in the courts, a defendant should be able to be represented before the direction for the trial of the issue of his fitness to plead. The judges, particularly the Resident Magistrates, should be concerned if a person appears before them unrepresented.
32. The actual trial of the issue of fitness will take place either before a judge alone in the Resident Magistrates’ Courts or before a judge and jury in the Circuit Courts. Section 25A deals with these two situations.
33. When the defendant is before a court composed of a judge and jury two further situations arise:
∞ Before the defendant is given in charge to the jury, a jury is sworn to consider the issue of fitness for trial and if the defendant consents this same jury can continue to be the trial jury;
∞ If the direction for a trial is given after the defendant has been given in charge to the jury, that jury will try both the issue of fitness and the issue of his guilt or innocence.
34. There are concerns with the second situation as if the issue of fitness is determined by one jury; with a verdict of ‘fit to stand trial’ that jury should not continue to also try the issues in the indictment. Their knowledge that there was an issue of his fitness may prejudice the defendant. To make certain that does not happen, a new jury should be sworn to try the issues in the indictment. The new jury should not be told of the previous determination and the criminal proceedings can then continue as if the issue had never arisen.
35. Where the defendants before a court composed of a judge alone as well as in any other criminal proceedings at any stage other than those referred to in the two situations above, the court shall try the issue and render a verdict.
36. Whether it is the court alone or a jury that determines the issue, it must be done on the evidence of tow or more medical practitioners, one of which must be an approved medical practitioner as defined by section 25(1) as having special experience in diagnosis and treatment of mental disorder.
37. The determination of fitness to stand trial is to be decided on well established legal principles. If he contention that the defendant is unfit is put forward by the defense, the onus of proof is on the defense and is discharged on a balance of probabilities, but if the Crown makes the allegation, the onus is on the Crown and the standard of proof is beyond a reasonable doubt.
38. It had been suggested, in a submission from IJCHR, before the bill was tabled in Parliament, that this section should clearly state the test to be applied as that set out in R. v. Pritchard (1836) 7 Car&P303, which deals with whether the defendant has sufficient intellect to instruct his counsel, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence.
39. If the verdict after a trial of the issue of fitness to stand trial is that the defendant is fit to stand trial the criminal proceedings continue as though this issue never arose. Section 25B deals with this situation and goes on to give the court powers to grant bail, to order the defendant detained in a psychiatric facility or such other place as the court thinks fit, where the defendant is likely to become unfit if released, and to make such other order as the court thinks appropriate.
40. This section clearly supports the submission above that a different jury should be impaneled to hear determine the guilt or innocence of the defendant where he is found fit to plead. How else can the criminal proceedings continue as if the issue never arose?
41. The defendant is to be detained in a psychiatric facility or other place if the court has reasonable grounds to believe that the defendant is likely to become unfit to stand trial is released. It is hoped that this belief will be based on evidence from a duly qualified medical practitioner with experience in the diagnosis and treatment of persons with mental disorders.
42. Section 25C deals with the situation where the defendant is found unfit to stand trail after a hearing on the issue of fitness. Any plea made by the defendant is set aside, whether it was ‘guilty’ or ‘not guilty’ and the jury if any discharged.
43. Subsection 2 widens the range of orders that the court may make where a defendant is found unfit to stand trial. These orders are:
∞ Remand, in custody at the court’s pleasure;
∞ Admission to a psychiatric facility, at the court’s pleasure;
∞ A supervision and treatment order;
∞ A guardianship order.
44. The detention at the Court’s Pleasure replaces detention at the Governor-General’s Pleasure and is a direct result of the decisions of our Court of Appeal in Mollison v. R. and the Privy Council in The Director of Public Prosecutions v. Mollison which ruled that the decision on the measure of punishment/detention of a detainee should be entrusted to the judiciary and not the executive.
45. This section concludes with a subsection that states that a verdict of unfit to stand trial shall not prevent the defendant from being tried later if he becomes fit. Presumable, this determination will be made under the same provisions for a trial of the issue discussed and set out above.
46. Section 25E deals with where in any indictment or information any act or omission is charged against the defendant as an offence and evidence is given that the defendant is suffering from a mental disorder so as not to be responsible according to law for his actions at the time the act or omission was made, the judge or judge and jury shall return a verdict of guilty but suffering from a mental disorder – a special verdict. A special verdict of this nature cannot be returned except upon the written or oral evidence of two or more medical practitioners, at least one of whom is an approved medical practitioner.
47. Where a special verdict is returned the court shall-
∞ Order the defendant kept in custody at the court’s pleasure, as a forensic psychiatric inmate;
∞ Make a supervision and treatment order; or
∞ Make a guardianship order.
48. The amending Act goes on to make provision for a ‘responsible officer’ to report on the condition of the defendant at least once in every six months for the duration of the order. The responsible office in this respect is the Commissioner of Corrections if the defendant is in custody, the supervising officer if a supervision and treatment order is made and the person named as the guardian if a guardianship order is made.
49. The court is to consider the report and hear any submissions or representations by the DPP and the defendant and can confirm the order, made another order or revoke the order and discharge the defendant.
50. The order for admission to a psychiatric facility is referred to in the Fifth Schedule of the Amending Act as an Admission Order and deals with the conveyance of the defendant to the facility as well as the ‘remission of the defendant’ to the court for trial. The wording of paragraph 4 in the Schedule raises some concerns. It reads:
“(4) While a defendant is detained in pursuance of an admission order –
(a) The Director of Public Prosecutions, if he is satisfied that the defendant can properly be tried; or
(b) The defendant,
May apply to the Court that made the order for the defendant to be remitted for trial to - the court of trial; or
A remand centre or correctional facility.”
51. The Schedule does not set out the basis on which the DPP shall be satisfied; it should as well be on the evidence of two medical practitioners as the original determination of the issues of fitness.
52. The supervision and treatment order and the guardianship order are welcome additions to the powers of the court when dealing with the mentally ill before the court.
53. The details of a Supervision and Treatment Order are dealt with in the Sixth Schedule of the Act. The defendant is referred to as the ‘supervised person’ and is to submit to treatment under the direction of an approved medical practitioner and supervised by a supervising officer, who is a probation or aftercare officer appointed under the Corrections Act. The court before making an order under these provisions must be satisfied that this order is the most suitable means of dealing with the person, having received the oral or written evidence of two or more medical practitioners that it is required by the person and the person is susceptible to treatment. The court must also be satisfied that the supervising officer is willing to undertake the supervision and the arrangements have been made for the treatment.
54. The nature of the treatment is to be kept confidential, but the order will specify the treatment in general terms as set out in the Schedule as follows:
-
- Treatment as a resident patient in a psychiatric facility specified in the order;
- Treatment as a non-resident patient in a psychiatric facility specified in the order;
- Treatment under the direction of an approve medical practitioner specified in the order
- Treatment as a resident patient in a psychiatric facility specified in the order;
55. If the person is not in a residential facility, he or she may reside anywhere the court orders including at home. Various paragraphs of the Schedule allow for variation, amendment, cancellation and revocation of the order; thus allowing much flexibility. This order therefore recognizes the treatment of the illness instead of the criminalization of the person.
56. The Orders for Guardianship to be made under 25C(2)(d) or 25E(3)(c) are explained in the Seventh Schedule of the Act. The defendant is referred o in these provisions as the ‘patient’ and the guardian is to be given the power, to the exclusion of any other person, to require –
- The patient to reside at a place specified by the guardian;
- The patient to attend at places and times specified by the guardian for medical treatment;
- Access to the patient to be given to any approved medical practitioner, probation officer or aftercare officer or other person
57. Once again, the Court must be satisfied that this is the most suitable means of dealing with the defendant; and
- That on the evidence of two or more duly qualified medical practitioners, the defendant is suffering from a mental disorder being mental illness, severe mental impairment, psychopathic disorder or mental impairment, or a nature or degree which warrants his reception into guardianship under the Act; and
- It is necessary in the interests of the welfare of the patient or for the protection of other persons that the defendant should be so received.
58. This Schedule at paragraph 2 places great reliance on regulations to be made by the Minister. It is unfortunate that these regulations have not yet been drafted as the exercise of the guardian’s powers and duties are to be set out in the regulations
59. The submission was made, but not adopted, that each of these orders should be for a specific time period and reviewable on expiration
60. Where an order is made for the defendant to be remanded in custody at the court’s pleasure section 25D requires the Commissioner of Corrections to submit to the court, at least once every calendar month, a report on the condition of the defendant, which is to be reviewed by a judge of the Supreme Court or a Resident Magistrate. The Judge must, having reviewed the report, give directions as he thinks fit having regards to the contents of the report. There are no provisions for the court to hear representations from either the DPP or the defendant.
61. Both the Supreme Court and the Resident Magistrate Courts are to keep a register with the name of each person determined to be unfit to plead, the type of order made and a summary of each report received.
62. The amendments to the Act while commendable do not deal with the need for a Community Forensic Service which would reduce the burden of the criminal justice system, the mental health system and make a socio-economic impact on the wider society. The goals of such a service would include “providing a comprehensive range of services offering different levels of care to persons living with mental illness who have found their way into the criminal justice system with emphasis on rehabilitation and reintegration within the community, working in a multidisciplinary manner with caregivers (across sectors and disciplines) with the clients, their families and the wider society”. (The Task Force Report)
63. In my opinion, these amendments adequately deal with the treatment of the mentally ill in the criminal justice system at the trial stage. The treatment of offenders at the sentencing stage (post-trial) is dealt with through the various orders that can be made under the amendments and is also addressed as it concerns convicted murderers in the requirement for psychiatric reports for the sentencing judge to consider.
64. Some concerns have already come to light with respect to these orders. The requirement of two or more qualified medical practitioners reporting on the defendant as raised a difficulty in one parish with the magistrate asking if one of the ‘reports’ could be given by a nurse. Another query was whether the use of the medical certificate used by the police and the courts was sufficient.
65. A major concern is the unavailability of facilities for placement or housing of persons without family support or other resources. In a recent survey, IJCHR was able to identify 12 places/organizations that could assist, but even some of these did not provide residential accommodation. The most frequently used facilities are the infirmaries operated by the Parish Councils. The lack of appropriate facilities affects the efforts to keep mentally ill persons out of prisons and the proper use of the various orders set out in the amendments. These difficulties need to be addressed by both the justice system and the mental health unit of the Ministry of Health.
66. In closing, I would like to reiterate the words in the World Health Organization: “…mental health legislation can and should provide a framework for treatment and support rather than punishment. Such a framework should also allow persons with mental disorders to be transferred from the criminal justice system to the mental health system at any stage. By implementing protections in the criminal justice system for people with mental disorders, and only incarcerating them under very rare circumstances, legislation can help to protect public safety and simultaneously provide for humane treatment of offenders with mental disorders, allowing them to receive appropriate care and rehabilitation.”
67. The recent amendments to the Criminal Justice (Administration) Act are a good start for
Thank you.
NANCY ANDERSON
MARCH 18, 2008
Comments
2 Responses to “MENTAL HEALTH SERVICES AND HUMAN RIGHTS IN JAMAICA – THE CURRENT SITUATION”
Leave a Reply
You made some good points on this topic.
in third world countries, mental health is never a priority.”:;