Act 26 2020 - MENTAL HEALTH CARE ACT

[21st August 2020] Supplement to Official Gazette 351 MENTAL HEALTH CARE ACT, 2020 (Act 26 of 2020) ARRANGEMENT OF SECTIONS SECTIONS PART I - PRELIMINARY 1. Short title and commencement 2. Interpretation PART II - MENTAL ILLNESS AND CAPACITY TO MAKE MENTAL HEALTH CARE AND TREATMENT DECISIONS 3. Determination of mental illness 4. Capacity to make mental health care and treatment decisions PART III - ADVANCE DIRECTIVE AND NOMINATED REPRESENTATIVE 5. Advance directive 6. Maintenance of online register 7. Advance directive not to apply to emergency treatment 8. Reviewing, altering, modifying or cancelling the advance directive 9. Access to the advance directive 10. Advance directive for minor 11. Liability of mental health professional in relation to advance directive 12. Appointment of nominated representative 13. Nominated representative for minor 14. Duty of nominated representative PART IV - RIGHTS OF PERSONS WITH MENTAL ILLNESS 15. Rights and duties with respect to persons with mental illness 16. Respect human dignity and privacy 17. Respect of right to live in community 18. Non-Discrimination 19. Exploitation and abuse 20. Duty to inform of individual rights 352 Supplement to Official Gazette [21st August 2020] PART V - CARE AND TREATMENT OF PERSONS WITH MENTAL ILLNESS 21. Admission of persons with mental illness 22. Voluntary admission 23. Discharge reports 24. Facilitated admission 25. Treatment on facilitated admission and further steps 26. Admission of minors 27. Person with mental illness at home 28. Person with mental illness wandering on streets 29. Emergency treatment 30. Seclusion and restraints 31. Rights of relatives and care-givers 32. Leave to persons admitted as facilitated admission 33. Absence without leave of persons admitted as facilitated admission 34. Admission of person with mental illness under Court Order 35. Prisoners with mental illness PART VI - MENTAL HEALTH CARE BOARD 36. Establishment of the Mental Health Care Board 37. Functions of the Board 38. Membership of the Mental Health Care Board 39. Secretary to the Mental Health Care Board 40. Meetings of the Board 41. Decision by circulation of papers 42. Members to continue till new members appointed PART VII - MENTAL HEALTH CARE TRIBUNAL 43. Establishment of the Mental Health Care Tribunal 44. Membership of the Tribunal 45. Terms and conditions of members 46. Jurisdiction 47. Appeals 48. Powers of the Tribunal 49. Proceedings before the Tribunal 50. Reasons for decisions 51. Secretary to the Tribunal [21st August 2020] Supplement to Official Gazette 353 PART VIII - OFFENCES AND PENALTIES 52. Offences and penalties PART IX - MISCELLANEOUS 53. Regulations 54. Savings and transitional 55. Repeal [21st August 2020] Supplement to Official Gazette 355 MENTAL HEALTH CARE ACT, 2020 (Act 26 of 2020) I assent Danny Faure President 19th August, 2020 AN ACT to provide mental health care and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto. ENACTED by the President and the National Assembly. PART I - PRELIMINARY 1. This Act may be cited as the Mental Health Care Short title and Act, 2020 and shall come into operation on such date as the commencement Minister may, by notice in the Gazette, appoint. 356 Supplement to Official Gazette [21st August 2020] 2. In this Act, unless the context otherwise requires, — Interpretation “advance directive” means a directive made by a person under section 5; “Board” means the Mental Health Care Board established under section 36; “care-giver” means a person who resides with the person with mental illness and is responsible for providing care to that person and includes a relative or any other person who performs this function; “Consultant-in-charge” means a specialist psychiatrist or physician appointed to be in charge of one or more mental health facilities; “mental health care or mental health treatment” includes biological and psychological treatments, social care for mental illness and curative and rehabilitative services, provided either in a health or mental health facility or in the community; “mental health facility” means a mental health hospital or a part of a hospital or a psycho-geriatric home for mentally ill elderly persons or a clinic or health centre or other place for in-patient or out- patient treatment of individuals with mental illness; “mental health professional” means any health professional trained in mental health care or mental health treatment and registered with the respective regulatory authority or council; “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary [21st August 2020] Supplement to Official Gazette 357 demands of life, including mental conditions associated with alcohol and drugs but does not include solely intellectual disability; “Minister” means the Minister responsible for health and the term “Ministry” shall be construed accordingly; “nominated representative” means a person nominated or appointed under section 12 or 13; “prescribed” means prescribed by regulation made under the Act; and “Tribunal” means the Mental Health Care Tribunal established under section 43; PART II - MENTAL ILLNESS AND CAPACITY TO MAKE MENTAL HEALTH CARE AND TREATMENT DECISIONS 3.(1) Mental illness shall be diagnosed in accordance Determination with nationally or internationally accepted medical standards, of mental illness including the latest edition of the International Classification of Diseases of the World Health Organization, or as may be prescribed. (2) The mental illness of a person shall not be diagnosed or determined on the basis of — (a) the political, economic, social status or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status of the person; or (b) nonconformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community. 358 Supplement to Official Gazette [21st August 2020] (3) Past treatment or hospitalisation in a mental health facility shall not by itself justify any present or future diagnosis or determination of a person's mental illness. (4) The mental illness of a person shall be determined by a mental health professional and shall only be diagnosed by a qualified medical practitioner with expertise in mental health. (5) The determination or diagnosis of a mental illness under this Act shall not be taken to mean that the person is of unsound mind unless he or she has been declared to be of unsound mind by a competent Court. 4.(1) Every person, including a person with mental Capacity to make mental illness, is deemed to have capacity to make decisions regarding health care his or her mental health care or treatment unless the person is or treatment decision unable to — (a) understand the information that is relevant to make a decision on the person's treatment, admission or personal assistance; or (b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the person's treatment, admission or personal assistance; or (c) communicate the decision under subsection (a) by means of speech, gesture or any other manner. (2) The information referred to under subsection (1) shall be given to a person using simple language which such person understands or by sign language, visual aids, or any other means to enable the person to understand the information. (3) Where a person makes a decision regarding his or her mental health care or treatment which is perceived by [21st August 2020] Supplement to Official Gazette 359 others as inappropriate or wrong, it shall not automatically follow that the person does not have the capacity to make a mental health care or treatment decision, so long as the person has the capacity to make the mental health care or treatment decision under subsection (1). PART III - ADVANCE DIRECTIVE AND NOMINATED REPRESENTATIVE 5.(1) Every person, who is not a minor, shall have a right to Advance make an advance directive in such manner as may be prescribed, directive specifying any or all of the following — (a) the manner in which the person wishes to be cared for or treated for a future mental illness; (b) the manner in which the person wishes not to be cared for or treated for a future mental illness; (c) the individual or individuals, in order of precedence, the person wants to appoint as his or her nominated representative as provided for under section 12. (2) The person nominated under subsection (1) (c) shall be an adult and shall consent to act as such representative. (3) An advance directive under subsection (1) may be made by a person irrespective of his or her past mental illness or treatment for mental illness. (4) An advance directive made under subsection (1) shall be invoked only when such person ceases to have capacity to make mental health care or treatment decisions and shall remain effective until such person regains the capacity to make mental health care or treatment decisions. (5) Any decisions made by a person while he or she has the capacity to make mental health care decisions shall over- ride any previously written advance directive by such person. 360 Supplement to Official Gazette [21st August 2020] (6) Any advance directive made contrary to any written law shall be ab initio void. (7) A person making an advance directive shall, until it is proved otherwise, be presumed to have the capacity to do so. (8) An advance directive made under subsection (1) may be revoked, amended or cancelled at any time subject to section 8 or in such manner as may be prescribed, by the person who made it. Maintenance of 6. Any advance directives given under section 5 shall online register be registered and maintained by the Board and shall be made available in the form and manner as may be prescribed. Advance directive 7. An advance directive under section 5 shall not not to apply to apply to any emergency treatment given under section 29. emergency treatment Reviewing 8.(1) Where a mental health professional, a relative, or a altering, care-giver of a person desires not to follow an advance modifying or cancelling the directive whilst a person with mental illness is being treated, advance directive such mental health professional, relative or care-giver of the person shall make an application to the Tribunal to review, alter, modify or cancel the advance directive. (2) Upon receipt of the application under subsection (1), the Tribunal shall, after giving an opportunity to be heard to all concerned parties, including the person whose advance directive is in question, either uphold, modify, alter or cancel the advance directive after taking into consideration the following — (a) whether the advance directive was made by the person of his or her own free will and free from force, undue influence or coercion; (b) whether the person intended the advance directive to apply in the circumstances prompting the application; [21st August 2020] Supplement to Official Gazette 361 (c) whether the person was sufficiently well informed to make the advance directive; (d) whether the person had capacity to make decisions relating to his or her mental health care or treatment when such advanced directive was made; and (e) whether the content of the advance directive contravened any written law or any provision of the Constitution. 9. The person making the advance directive and his or Access to her nominated representative shall have a duty to ensure that the advance directive the Consultant-in-charge or a medical practitioner, or a mental health professional, as the case may be, has access to the advance directive when required. 10. The parent or legal guardian shall have the right to Advance make an advance directive in writing in respect of a minor and directive for minor all the provisions relating to advance directive, mutatis mutandis, shall apply to such minor until such time he or she attains the age of majority. 11. A medical practitioner or a mental health Liability of professional shall not be held liable for any unforeseen mental health professional in consequences — relation to advance directive (a) on following a valid advance directive; or (b) not following a valid advance directive if the advance directive is not available to the medical practitioner or mental health professional. 12.(1) Notwithstanding section 5(1) (c) every person who Appointment is not a minor, shall have a right to appoint a nominated of nominated representative representative. 362 Supplement to Official Gazette [21st August 2020] (2) The nomination under subsection (1) shall be made in writing with the person's signature or thumb impression or mark and be witnessed by two persons. (3) The person appointed as the nominated representative shall not be a minor and shall be competent to discharge the duties or perform the functions assigned to him or her under this Act, and give his or her consent in writing to the mental health professional to discharge his or her duties and perform the functions assigned to him or her under this Act. (4) Where no nominated representative is appointed by a person under subsection (1), the following persons for the purposes of this Act in order of precedence shall be deemed to be the nominated representative of a person with mental illness — (a) up to a second degree relative; (b) a care-giver; (c) a suitable person appointed as such by the Tribunal; or (d) if no such person is available to be appointed as a nominated representative, the Tribunal shall appoint the Director of Social Services as the nominated representative of the person with mental illness. (5) A person who has appointed any person as his or his nominated representative under this section may revoke or alter such appointment at any time in the same manner provided under section 12(2). (6) The Tribunal may, if it is of the opinion that it is in the interest of the person with mental illness to do so, revoke an appointment made by it under this section, and appoint a different representative under this section. [21st August 2020] Supplement to Official Gazette 363 (7) The appointment of a nominated representative, or the non appointment of a nominated representative, shall not be construed as the lack of capacity of the person to take decisions about his or her mental health care or treatment. (8) All persons with mental illness shall have capacity to make mental health care or treatment decisions but may require varying levels of support from their nominated representative to make decisions. 13.(1) Notwithstanding section 12, in case of minors, the Nominated parent or person having custody of a minor shall be the minor's representative for minor nominated representative unless the Family Tribunal orders otherwise under subsection (2). (2) Where on an application is made to the Family Tribunal under the Children Act (Cap 28), by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it and the Tribunal is of the opinion that — (a) the parent or guardian or the person having custody of the minor is not acting in the best interests of the minor; or (b) the parent or guardian or the person having custody of the minor is otherwise not fit to act as the nominated representative, the Family Tribunal may appoint, any suitable individual who is willing to act, as the nominated representative of the minor with mental illness and in the case that no such individual is available for appointment as a nominated representative, the Family Tribunal shall appoint the person acting in the capacity or performing the functions of Principal Secretary in the department or ministry responsible for children's affairs as the nominated representative of the minor with mental illness. 364 Supplement to Official Gazette [21st August 2020] 14. A nominated representative shall while fulfilling Duty of nominated his or her duties under this Act — representative (a) consider the current and past wishes, the life history, values, cultural background and the best interests of the person with mental illness; (b) give particular credence to the views of the person with mental illness; (c) provide support to the person with mental illness in making treatment decisions; (d) have the right to seek information on diagnosis and treatment to provide adequate support to the person with mental illness; (e) be involved in discharge planning; (f) apply to the mental health facility for facilitated admission; (g) apply to the Tribunal on behalf of the person with mental illness for discharge; (h) apply to the Tribunal against violation of rights of the person with mental illness. PART IV - RIGHTS OF PERSONS WITH MENTAL ILLNESS Rights and 15.(1) The rights and duties of persons, bodies or duties with institutions set out in this Part are in addition to any rights and respect to duties that they may have under any other written law. persons with mental illness (2) Whosoever is performing the duties set out in this [21st August 2020] Supplement to Official Gazette 365 Part shall have regard to the will and preference of the person with mental illness. 16.(1) The dignity and privacy of every person with Respect mental illness shall be respected. human dignity and privacy (2) The care, treatment and rehabilitation services administered to a person with mental illness shall be based on the principle of the least restrictive alternative. (3) The principle of least restrictive alternative in subsection (2) means offering an option for treatment or the setting of such treatment which — (a) meets the person’s treatment needs; and (b) imposes the least restriction on the person's rights. 17.(1) A person with mental illness has a right to live in, be Respect part of, and not be segregated from the community. of right to live in community (2) Every person with mental illness shall, in so far as practicable, be provided with care, treatment and rehabilitation services and community-based programs that improve the mental capacity of that person to develop to full potential and to facilitate his or her integration into community life. (3) Admission to a mental health facility shall not amount to segregation from the community. 18.(1) A person with mental illness shall not be subject to Non - discrimination on the grounds of his or her mental health status. Discrimination (2) Every person with mental illness shall receive care, treatment and rehabilitation services according to standards equivalent to those applicable to any other health care user. 366 Supplement to Official Gazette [21st August 2020] Exploitation 19. Every person, body, organisation or health facility and abuse providing care, treatment and rehabilitation services to a person with mental illness shall take steps to ensure that — (a) the person is protected from exploitation, abuse or any degrading treatment; (b) the person is not subjected to forced labour; and (c) care, treatment and rehabilitation services are not used as punishment or for the convenience of other people. 20.(1) Subject to subsection (2), every health care Duty to inform of provider shall, before initiating or administering any care, individual treatment or rehabilitation services, inform the person with rights mental illness in an appropriate manner of his or her rights. (2) Where a person has been admitted under circumstances referred to in section 24 or 29, the nominated representative shall be given the information immediately and the person shall be given the information when the person has recovered mental capacity. PART V - CARE AND TREATMENT OF PERSONS WITH MENTAL ILLNESS Admission 21.(1) A person with mental illness may be treated, as far of persons as possible, at their home or near to their home without with mental requiring care and treatment in a mental health facility. illness (2) Where a person with mental illness requires treatment in a mental health facility, it shall be provided on a basis of voluntary admission: Provided that in the circumstances stated in subsection (3) such person may be cared for and treated on facilitated admission. [21st August 2020] Supplement to Official Gazette 367 (3) Where a person lacks capacity to make decisions for the person's mental health care, he or she may be provided care and treatment at a mental health facility. 22.(1) All admissions in the mental health facility shall, as Voluntary far as possible, be voluntary admissions except where admission conditions for a facilitated admission exist. (2) Any person, who is not a minor and who considers himself or herself to have mental illness and desires to be admitted in any mental health facility for care and treatment may make a request to the Consultant-in-charge for admission. (3) Where an application is received under subsection (2), the medical officer or a psychiatrist shall examine the person and make a report to the Consultant-in-charge. (4) The Consultant-in-charge shall admit the person to the mental health facility if he or she is satisfied that — (a) the person has a mental illness of a severity requiring admission to a mental health facility; (b) the person is likely to benefit from admission and treatment to the mental health facility; and (c) the person has understood the nature and purpose of admission to and treatment in the mental health facility and has made the request for admission of his or her own free will, without any duress or undue influence and has the capacity to make mental health care and treatment decisions without support or requires minimal support from others in making such decisions. 368 Supplement to Official Gazette [21st August 2020] (5) If a person is unable to understand the purpose, nature or likely effects of the proposed treatment and of the probable result of not accepting the treatment or requires a very high level of support in making decisions, he or she shall be deemed unable to understand the purpose of the admission and therefore shall not be admitted under this section. (6) A person who is voluntarily admitted under this section shall not be treated without his or her informed consent. (7) A person voluntarily admitted under this section has a right to discharge himself or herself from the mental health facility: Provided that if the Consultant-in-charge of the mental health facility or his or her designated representative is of the opinion that the person meets the criteria for a facilitated admission under section 24, the Consultant-in-charge may prevent self-discharge for a period not exceeding 24 hours to allow for assessment as required under section 24. 23. The Consultant-in-charge of a mental health facility Discharge reports shall, in a prescribed form, issue a discharge report to the person with mental illness who was admitted for the purpose of receiving care, treatment and rehabilitation services. 24.(1) In cases where a person with mental illness lacks Facilitated admission capacity to make mental health care decisions, that person may be admitted to a mental health facility as a facilitated admission. (2) An application for a facilitated admission shall be made by a nominated representative. (3) The Consultant-in-charge of the mental health facility shall admit the person with mental illness upon application under subsection (2) if — [21st August 2020] Supplement to Official Gazette 369 (a) the person has been independently examined on the day of admission or in the preceding seven days, by two professionals, of which one is a psychiatrist or medical practitioner with mental health expertise and the other being any mental health professional, and both independently conclude, based on the examination and, if appropriate, on the information provided by others, that the person has a mental illness of such severity that the person — (i) has recently threatened or attempted or is attempting to cause bodily harm to himself or herself; (ii) has recently behaved or is behaving violently toward another person or has caused or is causing another person to fear bodily harm from him or her; or (iii) has recently shown or is showing an inability to care for himself or herself to a degree that places the individual at risk of harm to himself or herself; (b) the psychiatrist or the mental health professional or medical practitioner, as the case may be, certify, after taking into account the advance directive, if any, that admission to the mental health facility is the least restrictive care option possible; and (c) the person is not eligible to receive care and treatment as a voluntarily admitted person under section 22. (4) The psychiatrist or the mental health professional or medical practitioner as the case may be, shall not be related by 370 Supplement to Official Gazette [21st August 2020] blood (first degree relative) or marriage to or in a common law relationship with, the person who is being assessed for facilitated admission. Treatment on 25.(1) A facilitated admission of a person to a mental facilitated health facility under section 24 is limited to a period of 14 days. admission and further steps (2) Any person admitted under section 24 shall receive treatment as prescribed by the mental health professional with the consent of the nominated representative or on advance directive, if any. (3) Where the Consultant-in-charge is of the opinion, on the expiry of the 14 days referred to in subsection (1) or earlier, that the person admitted under section 24 no longer meets the criteria for admission under that section, he or she may discharge the person or may continue the admission under section 22. (4) If, on the expiry of 14 days specified in subsection (1), the Consultant-in-charge is of the opinion that the criteria for facilitated admission continues, the Consultant-in-charge shall apply to the Tribunal for the continuance of the person in the mental health facility under section 24. (5) Where an application under subsection (4) is made, the Tribunal shall — (a) hold a hearing; (b) ensure that the person himself or herself and his or her representative attend the hearing; (c) hear evidence from the mental health professionals; and (d) make an order either to discharge the person or extend the facilitated admission. [21st August 2020] Supplement to Official Gazette 371 (6) The order of the Tribunal for extension of the facilitated admission shall be for a period of 90 days for the first time and any subsequent extension, on application may be up to 120 days at a time. (7) The Consultant-in-charge shall discharge the person, if he or she is of the opinion that during the extended period, the person with mental illness no longer meets the criteria for facilitated admission and inform the Tribunal of the same. 26.(1) Admission of a minor with mental illness shall be Admission of made on application of the parent or guardian or the person minor having custody of the minor. (2) The procedure for facilitated admission under section 24 shall mutatis mutandis apply to admission of minors. (3) Minors admitted to the mental health facility shall be accommodated separately from adults. (4) The parent or guardian or the person having custody of the minor or a person appointed by the parent or legal guardian shall stay with the minor in the mental health facility for the period of their treatment in the mental health facility. (5) Minors shall be treated only with the consent of the parent or guardian or the person having custody of the minor. 27.(1) Where a person at home is suffering from mental Person with illness of such a degree that in the opinion of the nominated mental illness at representative warrants care and treatment and that person is home not willing to go to a mental health facility for that purpose, the nominated representative may make a request to the nearest health facility for an assessment at home. (2) Where a request is received under subsection (1), a health professional from the health facility shall visit the person with mental illness and make an assessment. 372 Supplement to Official Gazette [21st August 2020] (3) If the mental health professional on assessment is of the opinion that the person is suffering from mental illness and is neglecting himself or herself to an extent which puts their own lives or the safety of others at risk, the mental health professional may request a police officer for assistance in moving the person to the nearest mental health facility. (4) A police officer to whom a request is made under subsection (3), shall give all the necessary assistance to the health professional for moving the person to the nearest mental health facility. Person with 28. A police officer shall, on being informed by a mental illness member of the public or on seeing a person suspected of having wandering on streets mental illness wandering in a public place, convey such person to the nearest mental health facility for assessment. Emergency 29.(1) Notwithstanding other provisions of this Act, any treatment treatment for mental illness may be provided by any registered medical practitioner to a person with mental illness either at a mental health facility or in the community with or without the consent of the person with mental illness if it is immediately necessary to prevent — (a) death or irreversible harm to the health of the person; or (b) the person from inflicting serious harm to self or others. (2) Emergency treatment under subsection (1) includes transportation of the person with mental illness to the nearest mental health facility for assessment. (3) Any emergency treatment under this section shall be limited to 24 hours. 30.(1) A person with mental illness shall not be subjected Seclusion and to seclusion. restraints [21st August 2020] Supplement to Official Gazette 373 (2) A person with mental illness shall not be subjected to physical restraint unless it is the only means available to prevent immediate or imminent harm to the person concerned or to others. (3) Physical restraint — (a) shall be done in an accredited mental health facility; (b) shall be authorised by a psychiatrist or medical practitioner with expertise in mental health; (c) shall not be used as a means of punishment or for the convenience of the staff; and (d) reasons and duration of each shall be recorded in a data base and made available to the Board on a regular basis; (4) Physical restraint in each instance shall be restricted to a maximum period of three hours. (5) The family members, care giver or nominated representatives shall immediately be informed, when the person with mental illness is physically restrained. 31.(1) Nominated representatives, relatives and care- Rights of givers of a person with mental illness shall have the right — relatives and care givers (a) to visit the person with mental illness in the mental health facility; (b) to provide feedback to the mental health facility including complaints about any deficiency in services; 374 Supplement to Official Gazette [21st August 2020] (c) to support from mental health services to enable them to effectively perform their care- giving role; and (d) to social assistance on an equal basis as provided to care-givers of persons with physical illness. (2) Nominated representatives, relatives and care- givers as the case may be, shall be involved in setting treatment goals, planning for treatment, discharge, care and treatment after discharge from the mental health facility. (3) The involvement of nominated representatives, relatives and care-givers under subsection (2) in the case of voluntarily admitted person, shall be done with the consent of the person with mental illness and in the case of persons under facilitated admission with the consent of the person making application under section 24 (2). Leave to 32.(1) The Consultant-in-charge of the mental health persons facility may grant leave to a person admitted as a facilitated admitted as admission in a mental health facility for a period not exceeding facilitated admission seven days at a time. (2) The Consultant-in-charge of the mental health facility may, at any time revoke the leave if he or she is satisfied that it is necessary for the improvement of, or to prevent deterioration of the mental health of the person. (3) Where a person with mental illness who has been granted leave under subsection (1) refuses on revocation of the leave or on the expiry of the leave to come back to the mental health facility, the Consultant-in-charge may follow the procedures specified in section 33 for his or her return to the mental health facility. Absence without 33.(1) Where a person with mental illness admitted as a leave of persons facilitated admission is missing from the mental health facility admitted as without being granted leave, the Consultant-in-charge of the facilitated admission [21st August 2020] Supplement to Official Gazette 375 mental health facility shall inform the police and the person who had made the application for admission of that person. (2) The police shall have the responsibility to convey the person back to the mental health facility. 34.(1) An order under section 136 or section 138 or section Admission of 275 of the Criminal Procedure Code, made by the appropriate person with mental illness Court directing the admission of a person with mental illness into under Court any suitable mental health facility, shall be sufficient authority for order the admission of such person in such facility to which such person may be lawfully transferred for care and treatment. (2) The admission of a person referred to in subsection (1) to a mental health facility will be regarded as if it is a facilitated admission and the Director of Social Services or his or her representative will be the person's nominated representative. (3) The consultant-in-charge of a mental health facility wherein any person referred to in subsection (1) is detained, shall at a frequency decided by the appropriate Court but not less than once in every six months, make a report regarding the mental and physical condition of such person to the Tribunal. (4) On receipt of a report referred to in subsection (3), the Tribunal shall hold a hearing and ensure that the person and his or her legal representative attend the hearing and hear evidence from the mental health professionals concerned. (5) Following the hearing referred to in subsection (4), the Tribunal shall make recommendations to the appropriate court or the President as the case may be for further treatment or further detention or release from the mental health facility of the person, from the mental health facility. (6) The person referred to under subsection (1) may not 376 Supplement to Official Gazette [21st August 2020] be discharged from the mental health facility except as ordered by the appropriate Court or the President as the case may be. Prisoners 35.(1) Where an officer in charge of a prison is of the with mental opinion that a prisoner is suffering from mental illness, the illness officer shall make an application to the Consultant-in-charge of a mental health facility for transfer of the prisoner to the mental health facility for assessment by a psychiatrist. (2) On the directions of the Consultant-in-charge of the mental health facility, the psychiatrist shall assess the person and may recommend — (a) outpatient treatment and send the prisoner back to prison; or (b) admission to the mental health facility either as a voluntary admission or a facilitated admission, as the case may be. (3) Where a prisoner is admitted to the mental health facility under subsection (2), the time spent by the prisoner at the mental health facility shall be treated as time spent in prison. (4) When a prisoner is discharged after treatment in the mental health facility, he or she shall be sent back to prison for continuation of his or her sentence or shall be discharged by the prison service if the sentence has been served. PART VI - MENTAL HEALTH CARE BOARD Establishment 36. There is established a Board to be known as the of the Mental Mental Health Care Board. Health Care Board Functions of 37. The functions of the Board are — the Board (a) to oversee the planning and management of [21st August 2020] Supplement to Official Gazette 377 mental health care and treatment in the Seychelles; (b) to promote standards of best practice and efficiency of mental health care services; (c) to set standards for accreditation of mental health care facilities; (d) to set criteria and standards for specific mental health care services, interventions, and treatments as necessary; (e) to inspect with sufficient frequency every mental health care facility to ensure that the conditions, treatment and care of patients comply with the provisions of this Act; (f) to review the use of restraints in mental health care facilities; and (g) to advise and assist the Government on other matters related to mental health care and treatment in the Seychelles. 38.(1) The Board shall consist of the following members — Membership of the Mental Health Care (a) the Principal Secretary, Ministry responsible Board for Health (ex-officio); (b) the Chief Medical Officer, Ministry responsible for Health (ex-officio); (c) the Consultant-in-charge of Mental Health Services, Ministry responsible for Health (ex- officio); (d) the Director of Social Services, Ministry responsible for Social Affairs (ex-officio); 378 Supplement to Official Gazette [21st August 2020] (e) the Chairperson, National Council for the Disabled (ex-officio); (f) the Chief Nursing Officer (ex-officio); (g) the Chief Allied Health Officer (ex-officio); (h) a user of mental health services; (i) a family member or care-giver of a person with mental illness; and (j) two representatives from civil society with an interest and knowledge of mental health issues. (2) The Minister shall appoint the members of the Board on such terms and conditions and such allowances and remuneration as may be prescribed. (3) The Minister shall appoint one of the members of the Board as Chairperson of the Board. (4) The appointment of the Chairperson and members of the Board shall be published by notice in the Gazette. (5) The members of the Board who are not ex-officio members shall hold office for three years and are eligible for reappointment for a maximum of two consecutive terms. (6) A member, except an ex-officio member, may resign from office by letter addressed to the Minister for Health. (7) Where a person is appointed to replace another person under subsection (6) on the person so appointed shall serve as a member for the remaining period of office of the person replaced. [21st August 2020] Supplement to Official Gazette 379 39.(1) There shall be a Secretary appointed by the Board. Secretary to the Mental Health Care (2) The Secretary shall be responsible for the Board convening of all meetings of the Board, maintaining records of the Board, implementing the decisions of the Board, and do all such things as the Board or the Chairperson may lawfully require the Secretary to do. 40.(1) The Board shall meet at least six times a year but Meeting of otherwise — the Board (a) as the Chairperson may direct; or (b) as may be requested in writing to the Chairperson by not less than six members of the Board. (2) The time and place of a meeting of the Board shall be determined by the Chairperson. (3) Seven members of the Board shall constitute a quorum for a meeting. (4) A meeting of the Board shall be presided over by the Chairperson but in the absence of the Chairperson the members present at the meeting shall elect a member to preside over the meeting and that member shall have all the powers of the Chairperson at the meeting. (5) All matters for determination by the Board at a meeting shall be decided by a simple majority of votes of the members present and voting thereon. (6) Each member has one vote and in the event of an equality of votes the member presiding at the meeting shall have a casting vote. (7) A member who has a direct interest in a matter that falls to be decided at a meeting of the Board shall notify the of 380 Supplement to Official Gazette [21st August 2020] Chairperson or, if the member is the Chairperson, the Secretary, of the interest and shall not be present or vote at the meeting where the matter is considered or decided unless the Board authorises otherwise. (8) The Board shall, through the Chairperson, submit an annual report of its activities to the Minister and the Minister shall cause a report to be tabled before the National Assembly. Decision by 41. Where a matter requires a decision of the Board and circulation it is not convenient or possible for the Board to meet to of paper determine the matter, the Secretary shall, on the instructions of the Chairperson, circulate papers regarding the matter to all members for consideration and decision or approval and if the members unanimously approve a decision or resolution by signing it, the decision or resolution shall have the same effect as a decision or resolution passed at a meeting of the Board. Members to 42. Notwithstanding section 38(5) where at the end of continue till the period specified in that section, all the members of the new members appointed Board vacate office and the new members of the Board have not been appointed, the persons vacating as members shall continue until the appointment of the new members of the Board or for a further period of three months, whichever occurs first. PART VII - MENTAL HEALTH CARE TRIBUNAL Establishment 43. There is hereby established a Tribunal to be of the Mental known the Mental Health Care Tribunal. Health Care Tribunal Membership 44.(1) The Chairperson of the Tribunal shall be a of the Magistrate nominated by the Chief Justice. Tribunal (2) The Minister shall appoint four other members who shall serve on the Tribunal, which shall consist of the following — (a) a consultant psychiatrist or a medical [21st August 2020] Supplement to Official Gazette 381 practitioner with training and experience in mental health of at least ten years; (b) a representative from the Attorney General's Chambers; (c) a representative from the Ministry of Health; (d) a civil society representative with an interest or special expertise in mental health care and treatment. (3) The name of the Chairperson and members shall be published in the Gazette. (4) A member shall hold office for a term of three years and may be reappointed for one further term. (5) A member of the Tribunal shall not take part in any hearing in relation to a matter in which the member has a direct interest. (6) A member of the Tribunal or any other person acting under the direction of the Tribunal shall not be under any civil or criminal liability in respect of anything done or purported to be done in good faith in pursuance of this Act. 45. Members shall be appointed on such terms and Terms and conditions and such allowances and remuneration as may be conditions of members prescribed by regulations. 46.(1) The Tribunal shall have exclusive jurisdiction to Jurisdiction hear and determine mental health matters. (2) Without prejudice to the generality of the foregoing, the Tribunal shall hear and determine — (a) appeals by persons with mental illness against facilitated admission; 382 Supplement to Official Gazette [21st August 2020] (b) appeals on renewal or extension of facilitated admission; (c) complaints regarding violation of rights of persons with mental illness in mental health care facilities. Appeals 47. Any person aggrieved by a decision of the Tribunal may appeal to the Supreme Court subject to the same conditions as appeals from a decision of the Magistrates' Court. Powers of 48. The Tribunal shall have powers to — the Tribunal (a) summon any person to appear before it; (b) examine on oath, affirmation or otherwise a witness or any person appearing before it; and (c) require any person to produce any document which the Tribunal considers relevant. Proceedings 49.(1) The Tribunal shall sit as and when there is a matter before the for the Tribunal to adjudicate upon and laws relating to Tribunal evidence shall be applicable to witnesses or persons appearing before the Tribunal. (2) Three members of the Tribunal, of whom one shall be the Chairperson, shall constitute the quorum. (3) Each member of the Tribunal shall have an equal vote and decisions shall be reached by a majority vote and in the event of equality of votes the Chairperson shall have a casting vote. (4) A decision of the Tribunal shall have the same force and shall be executed in the same manner as a judgment or order of the Supreme Court under the Seychelles Code of Civil Procedure Act. [21st August 2020] Supplement to Official Gazette 383 (5) A party before the Tribunal may be represented by an attorney-at-law or by a representative of the party or any other person as the case may be. (6) The Tribunal shall, before making a decision — (a) afford the parties the opportunity to be heard; and (b) observe the rules of natural justice. (7) Notwithstanding the foregoing, the Tribunal shall have power to conduct proceedings in whatever manner it considers most appropriate. 50. At the conclusion of the proceedings, the Tribunal Reasons for shall prepare and deliver its decision together with the reasons decisions for such decision. 51. The Minister shall appoint a Secretary to the Secretary to Tribunal who shall be responsible for — the Tribunal (a) ensuring the overall smooth running of the Tribunal; (b) convening the sittings of the Tribunal after consultation with the Chairperson and members; (c) the issuing of summonses and notices on behalf of the Tribunal; (d) the implementation of decisions made by the Tribunal; (e) taking appropriate steps to enable the Tribunal to enforce its orders; and (f) ensuring that orders or directions given by the Tribunal are complied with. 384 Supplement to Official Gazette [21st August 2020] PART VIII - OFFENCES AND PENALTIES Offences and 52.(1) Any person who willfully falsifies an advance penalties directive or falsifies an appointment of an appointed representative shall be guilty of an offence and liable on conviction to imprisonment for a term of 5 years or a fine not exceeding SCR50,000 or with both such imprisonment and fine. (2) Any person who commits any act of cruelty to, or abuse or willful neglect of any patient with mental illness shall be guilty of an offence and liable on conviction to imprisonment for a term of 15 years or a fine not exceeding SCR50,000 or with both such imprisonment and fine. PART IX - MISCELLANEOUS Regulations 53.(1) The Minister may make regulations for carrying out the purposes of this Act. (2) Without prejudice to the generality of the provision of subsection (1), regulations may provide for — (a) standards for determination of illness; (b) manner of making an advance directive; (c) manner of revoking, amending, or cancelling an advance directive; and (d) form of discharge report under section 23. (3) Regulations made under this section may provide for offences punishable with a fine not exceeding SCR50,000 and imprisonment not exceeding 2 years or with both such fine or imprisonment. Savings and 54. All acts done under the Mental Health Act (Cap transitional 127), decisions taken prior to the date of commencement of [21st August 2020] Supplement to Official Gazette 385 this Act, shall continue to have effect until it is amended, annulled or withdrawn in accordance with the provisions of this Act. 55.

The Mental Health Act, 2006 (Cap 127), is hereby Repeal repealed. I certify that this is a correct copy of the Bill which was passed by the National Assembly on 22nd July, 2020. Mrs. Tania Isaac Clerk to the National Assembly