Following the partition of Indian subcontinent in 1947, Pakistan continued to make use of most of the laws it inherited from the British rule. The Lunacy Act of 1912 is one such legislation. It remained free for more than 50 years post-partition, governing laws related to the mental health in Pakistan.
The text of this law had no specifics relating to consent and confidentiality of patients, nor were doctors required to inform patients or their guardians about the nature, effects, risks, costs or alternatives of treatment. Under the Lunacy Act, those deemed to be ‘lunatics’ were legally allowed to be detained for up to 30 days if permitted by the presiding magistrate, a clause which was frequently misused.
In 2001, Pakistan introduced the Mental Health Ordinance (MHO) which made substantial changes to the text of the laws, including the terms mental health, disability of the mind, and replacing ‘criminal lunatic’ with ‘mentally disordered prisoner’. It restricted the powers of the police to detain mentally ill individuals, added a clause specifying informed consent, required standards of confidentiality of individuals and introduced punishments for health care professionals engaging in malpractice and maltreatment.
A Federal Mental Health Authority was also established under the MHO, to develop national standards of care for patients, and to work towards a code of practice for mental health care providers. However, the Authority lapsed in 2010 without achieving significant progress. In the same year, the Sindh High Court instructed a lawyer to refer his client to a ‘psychiatrist under the Lunacy Act’, indicating that even those within the justice system were unaware of the MHO’s existence nine years after it was passed.
All over the world, countries have national legislation that provides a legal framework in pursuit of these objectives. The status of mental health legislation, however, is not a national (or provincial) priority. After the 18th Amendment, health became a provincial subject in Pakistan. Sindh passed its Mental Health Act in 2013 and formed a mental health authority only recently. No definitive action has been taken since. The Punjab passed its Act in 2014 but is yet to take steps to implement it.
Last year, the KP government announced the passage of a Mental Health Act on its website. Where Balochistan, Azad Kashmir and Gilgit-Baltistan are concerned, mental health is nowhere on the radar. The three provincial Acts that have been nominally passed have made no effort to incorporate province-specific articles within legislation, nor has any provincial government made a strong or effective case for mainstreaming mental healthcare.
In 2013, the World Health Organisation introduced a comprehensive 7-year mental health action plan (2013-2022) which was adopted by the 66th World Health Assembly and signed by 194 states, including Pakistan. Rooted in the principle of human rights, the four major objectives of the action plan were to “1) strengthen effective leadership and governance for mental health; 2) to provide comprehensive, integrated and responsive mental health and social care services in community-based settings; 3) to implement strategies for promotion and prevention in mental health; and 4) to strengthen information systems, evidence and research for mental health”. Disappointingly, Pakistan has yet to make plans to achieve these objectives. For example, despite a bill passed by the Senate to de-criminalise attempted suicide, Section 325 of the Pakistan Penal Code still affirms that self-harm is a criminal act.
With increasing awareness about mental health, there has been an increase in the demand for mental health practitioners, but there is a dearth of state-regulated, licensed practitioners in Pakistan. This gap between demand and supply has provided an opportunity for profit-making institutions to position themselves in this field, with little regard for the ethical and professional standards that are essential to operate in this space.
While Pakistan’s Medical and Dental Council regulates medical professionals, there is no equivalent licensing body for therapists and counsellors. There have been a number of reports on social media relating to breaches of confidentiality, ethical violations and misconduct in the therapy space in Pakistan. Most such cases went unreported (or misreported) as there is no regulatory authority, or mechanism for redressal when it comes to psychotherapy. Concerns include feeling demoralised, ashamed and judged for their life choices. In some cases, individuals were made to feel guilty for not being ‘good practicing Muslims.’ In other cases, they have heard their conversations with therapists ‘in confidence’ being repeated in social settings.
There are also many practicing mental health professionals, including psychiatrists who are unable to remove their personal beliefs and biases from their practice, which is a far more difficult concern to tackle. For example, there have been cases of LGBT clients who have been told that their mental health struggles are invalid, as their ‘problem’ stems purely from a disconnect between them and religion.
In the criminal justice system, mental disorders include intellectual disability, mental illnesses and insanity. The first is defined as having ‘significant limitations’ in day-to-day social, practical and behavourial skills, mental illnesses are defined as medical conditions which disrupt a person’s thinking, feeling and moods; including diagnosis of schizophrenia, depression and bipolar disorder. Insanity refers to a severe form of mental illness in which individuals are unable to comprehend their punishment or the purpose of it. Under the latter, in theory, a defendant can plead for not guilty for reasons of insanity. Chapter 34 of the Criminal Procedure Code of Pakistan provides for special provisions relating to inquiry, if there is reason to believe that the accused is of unsound mind.
However, a lack of mental health training in the criminal justice systems means that individuals either never get diagnosed, or are told that their diagnosis is invalid. For example, in 2016, in the case of Imdad Ali (a prisoner on death row) Supreme Court ruled that schizophrenia is “not a permanent mental disorder, rather imbalance increasing or decreasing depending on levels of stress. It is a recoverable disease which does not fall within the definition of mental disorder as defined in the Mental Health Ordinance.” It is also important to mention that the judge referred to the Mental Health Ordinance as the overarching law governing mental health in Pakistan, despite the fact that the ordinance had been replaced by provincial laws several years earlier. The only explanation for this ruling is the lack of knowledge and understanding of mental health in addition to outdated precedents (legal and otherwise).
Research has shown that prisoners are two to four times more likely to suffer from mental health illnesses in comparison to the general public. By international standards, health personnel charged with the medical care of prisoners have a duty to provide them with protection of their physical and mental health, as well as treatment of the same quality and standards as is afforded to those who are not imprisoned or detained. However, Pakistan’s legal framework for prisons and prisoners is still strongly grounded on the colonial era legislation. Rule 433 of Pakistan’s Prison Rules and Jail Manual, for example, still refers to ‘mental patients’ as ‘idiots’ and requires their segregation from others inside the prison, making it appear as though the system is more focused on protecting others from those with mental illnesses rather than safeguarding their own rights.
There is a need to recognise mental health as a fundamental human right and consequently integrate mental healthcare into primary care, which would allow (and require) the same level of ethics, regulation and quality standards of care to be extended to mental health, as it is to physical health.