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A new law already in need of amending?

Now that the Mental Health Act has passed (Act XXII of 2012), we have yet another champion of rights to add to the list of existing ones. He is the Commissioner for the Promotion of Rights of Persons with Mental Disorders. He is appointed by the Prime Minister, after consulting the Leader of the Opposition.

 

The Prime Minister enjoys full discretion in determining the terms and conditions of appointment of this Commissioner (‘under such terms as he deems appropriate’- art 5(1)).

 

This Commissioner acts on his own judgement, but is accountable to the Minister responsible for Health. His list of duties is extensive:

- promoting and safeguarding the rights of persons suffering from mental disorder and their carers;

- reviewing any policies and making recommendations to any competent authority to safeguard or to enhance the rights of such persons and to facilitate their social inclusion and well being;

- reviewing, granting and extending any Order issued under this Act;

- ensuring that patients  are not held in the licensed facility for longer than necessary;

- monitoring persons certified as lacking mental capacity under curatorship or tutorship;

- authorising or prohibiting special treatments, clinical trials or other medical or scientific research on persons under the provisions of this Act;

- reviewing all patient incident reports and death records received from licensed mental health facilities;

- ensuring that guidelines and protocols for minimising restrictive care are established;

- investigating any complaint alleging breach of patient’s rights and taking any subsequent action or making recommendations that are required;

- investigating any complaint about any aspect of care and treatment provided by a licensed facility or a healthcare professional and taking any decisions or making any recommendations that are required;

- conducting regular inspections at licensed facilities to ascertain that the rights of patients are being upheld;

-reporting any case amounting to a breach of human rights within a licensed facility to the appropriate competent authority, recommending the rectification of such a breach and taking any other proportional action he deems appropriate;

- reporting to the appropriate competent authority any healthcare professional for breach of human rights or for contravening any provision of the Act or taking other proportional action against such healthcare professional;

- reporting annually to the Minister, which report shall be placed on the Table of the House of Representatives and discussed in the Permanent Committee of Social Affairs within two months of receipt;

- any other function which the Minister may prescribe by regulations under this Act.

 

 The drafting leaves much to be desired. One example is the phrase ‘appointed by the Prime Minister after consulting the Leader of the Opposition under such terms as he deems appropriate’. Presumably, the ‘terms deemed appropriate’ refer not to the consultation process, but to the appointment of the Commissioner. In other words this should read ‘appointed by the Prime Minister under such terms as he deems appropriate, after consulting the Leader of the Opposition.’ The Maltese version is just as undesirable.

 

Another example of drafting which in my view could be improved, is 6(c) ‘review, grant and extend any Order... and for this purpose it shall be the duty of any person to appear before the Commissioner when so requested’. Since when are the powers of the institution and the obligations of affected persons included in the list of functions of that institution?

 

Another question I ask concerns the nomenclature: ‘Commissioner for the Promotion of Rights of Persons with Mental Disorders’. Firstly, the title is too long. Secondly, we have too many ‘commissioners’ around, from the Commissioner of Police who heads the Police Force, to Commissioners for Oaths, to the Commissioner for Public Health appointed under the Ombudsman Act – to give but a few examples.

 

I also question the very concept that the Commissioner is appointed by the Prime Minister (after consulting the Leader of the Opposition) under such terms he deems appropriate. This is arbitrary at best. The Prime Minister should not determine the Commissioner’s salary and conditions. These should be laid down in the law, as in the case of the Ombudsman and the Commissioners appointed under the Ombudsman Act. As the law stands, this person maybe given an excellent package, so good that it could nearly leave him indebted to his appointee, or be offered such a poor package that either nobody would accept to take up the post, or if taken up would not be happy in the post and would not put in the required effort to operate effectively. Also noteworthy is the fact that the law is completely silent on crucial issues such as duration of office! Is the Commissioner appointed indefinitely, or can he possibly be dismissed at the whim of the Prime Minister – presuming that the power to appoint includes the power to dismiss. On what basis can he be removed from office? Does the Prime Minister have to consult the Leader of the Opposition to remove this Commissioner from office?

 Crucially, while this Commissioner acts ‘in his own individual judgement’ (art. 5(2)), where are the guarantees of security of tenure and independence of office? Where are the guarantees regarding adequate funding to operate effectively? Where in the law is the oath of office, which such commissioners usually take?

 

As regards the duties, the list is a very long one. Is it too long? How will the Commissioner fare? Will he be granted sufficient resources to fulfil all these duties effectively? Perhaps, I should ask, how is he faring, since the incumbent was appointed more than a year ago, way before the law was passed, as ‘Commissioner designate’. To make matters more complicated the same Commissioner, the same person is responsible for safeguarding, promoting and defending the rights of the elderly, which makes him even more stretched. Also, from a legalistic point of view, until the law was passed (signed by the President of Malta on 7 December 2012) we had a Commissioner responsible for mental health who was appointed on the strength of a draft law. Thankfully, this legal anomaly has been remedied. Regrettably, we seem to have a Commissioner responsible for the Elderly, when no law has been passed in this regard. We have a Commissioner for the Elderly, with no legal basis, created merely by an administrative decision! This is even worse than having a Commissioner appointed on the strength of a law which could have been better drafted.  Another question I raise is, why link the elderly with mental health? One does not have to be old to have mental health problems; nor do all elderly persons suffer from mental health problems. Unfortunately, appointing the same incumbent as commissioner for mental health and the elderly leads to a risk of implying that old age is some sort of sickness.

 

Also concerning the duties of the Commissioner for Mental Health, one cannot help but comment on article 6(1)(n) ‘...annual report...shall be discussed in the Permanent Committee for Social Affairs within two months of receipt’. It is extremely unusual, if not unique in Maltese law, to include amongst an institution’s list of functions and duties, the placing of an obligation on the House of Representatives, to discuss the annual report within a particular committee and within a particular time frame. In terms of drafting style, I do not believe the drafting of an annual report should be included amongst the functions and duties. Secondly, even if this is only a stylistic detail which one may kindly overlook, I not only question the inclusion of the obligation on the House of Representatives to discuss the report within two months, but furthermore ask what this clause implies. Is this an admission by the House of Representatives itself that it does not and will not consider these reports unless it is forced to do so? Does the House of Representatives consider and discuss the Parliamentary Ombudsman’s report for example? Should we amend the Ombudsman Act to force Parliament to hold a discussion on the Parliamentary Ombudsman’s report? Do our democratically elected members need to be coerced into discussing a report? Should they be obliged at all to discuss a report, any report for that matter? What if there is nothing to discuss? Also, what are the consequences of our Members of Parliament disregarding such an obligation?

 

The list of duties includes not only powers to make recommendations, but also executive powers. Thus for example, while the Commissioner may make suggestions concerning policies which concern mental health – related issues, he receives applications for the continuation of an involuntary admission of a mental patient (art. 10(3)). He is not just a voice of good reason, like the Commissioner for Children, for example. He actually has power to take decisive action, even determining the fate of patients, and carrying out peer reviews of decisions taken by professionals in the field. This once again brings me to the question of independence of this Commissioner, which is even more important since the Commissioner can take binding decisions. This high ranking, powerful official, must not only truly be independent, but must also be perceived as being such. How can this Commissioner be perceived as such, when the law does not even specify the duration of his term of office, method of removal from office, or guaranteed funding? The law in its current form not only does not satisfy the Paris Principles (http://www2.ohchr.org/english/law/parisprinciples.htm ) but just as worryingly does not satisfy article 17 of the United Nations’ resolution on the protection of persons with mental illness (http://www.un.org/documents/ga/res/46/a46r119.htm ):

 

’17 1. The review body shall be a judicial or other independent and impartial body established by domestic law...’

Taken as a whole, the Mental Health Act for the large part satisfies the above-referred UN Resolution. That this does not extend to article 17 (1) is regrettable. It is also ironical that the institution set up to safeguard the rights of mental patients, seems to compromise on the principles of natural justice and potentially on the rights of the same patients it is set up to protect. Thankfully, this is not typical of the Maltese law maker, as is evidence by Chapter 440 of the Laws of Malta, on data protection, to name but one example. In my opinion, this newly born law requires some re-engineering. One possibility is to create two entities: the first is a reviewing body as required by the above referred UN resolution, under the Mental Health Act; the second is the defender of rights of mental patients, who could easily be appointed under article 17A-D of the Ombudsman Act.

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