The Mental Health Bill, 2014

SPECIAL ISSUE

Kgnya Gazette Supplement No.6l (Natiorul Assenbly Bills No.22)

REPI.JBLIC OF KENYA

KENYA GAZETTE SITPPLEMENT

NATIONAL ASSEMBLY BILLS, 2014

NAIROBI, 22nll April, 2014

CONTENT,

Bill for Introduction into the National Assembly-

PAGE

The Mental Health BilI,2014 ...............2523

PRINTED AND PUBUSHED BY TTIE GOVERNMENT PRJNTER, NNROBI

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Clause

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THE MENTAL HEALTH BILL,2OI4ARRANGEMENT OF CLAUSBS

PART I_PRELIMINARYI -Short title.

2- Interpretation.

3-Objects and purposes of the Act.

PART II-ACCESS TO MENTAL HEALTH CARE

4-Cost, accessibility, etc. of health services.

5-Quality of health services.

6*Responsibility of national and county governments.

7 -Counselling and aftercare services.

8-Promotion of community mental health care.

9-Mental health interventions in primary care.

l0-Access to medication and psychosocial interventions.

I I -iAccess to medical insurance.

PART III-DETERMINATION OF MENTAL IT,I,NESS

I 2- Determination of mental illness.

l3-Principles for determination of mental illness.

I 4- Determination by medical practitioner.

PART IV;RIGHTS OF PERSONS \ryITTI MENTAL ILLNESSAND DUTIES OF MENTAL HEALTH CARE PROVIDERS

l5-Right to mental health services.

I 6- Protection from discrimination.

17 -Legal capacity.

I 8 -Consent to treatment.

I 9-Access to information.

20- Confi dentiality of information.'2

1 -Disclosure of confidential information.

2?-Conditions at mental health care facilities.

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1i

2524 The Mental Health Bill, 2014

23-Persons not to be subjected to forced labour.

Z|-Protection against abuse and cruel and degrading treatment.

25-Person to be informed of rights.

26-Rights of families and carers of persons with mental illness.

27 -Besl practices.

28 - Ri ght to representation.

29-Right to participate in treatment planning.

PART V_PROVISIONS ON ADMISSION AND TREATMT]NT

30-Vol untary admission.

3l -'lnformed consent.

32- Involuntary admi ssion.

33- Emergency admission and treatment.

34-Considerations for emergency cases.

35 - Duration of emergency treatment.

PART VI_MENTALLY ILI, OFFENDERS

36-Facilities for mentally ill offenders.

PART VII_SECLUSION AND RESTRAINT

37-Seclusion or restraint to be in accordance with the law.

38-Conditions for restraint or seclusion.

P.ART VIII-REVIEW, APPEALS, DISCHARGE AND TRANSFEROF PERSON WITH MENTAL ILLNBSS

39- Review of mental health status.

40-Appeals.

4l -Discharge of person with rnental illness.

42-'f ransfer of person with mental illness.

PART IX-CARE AND ADMINISTRATION OF PROPERTY OFPERSONS WITH MENTAL II,LNESS

43 - Appl ication for admi nistration.

44- Receipt of evidence.

45 - Order for adrni nistration.

46-Duties of a manager.

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The Mental Heahh Bill,20l4 2525

47 -lnventory of property.

48-Penalty.

49-Removal of manager.

PART X-MENTAL HEALTH BOAR,D

50-Establishment of the Board.

5l -Functions of the Board.

52-Membership of the Board.

53-Powers of the Board.

54-Conduct of business and affairs of the Board.

55-Delegation by the Board.

56-Remuneration of members of the Board.

57 -Chief Executive Officer.

58-Staff.59 The gommon seal of the Board.

60- Protection from personal liability.

6l -Liability for damages.

PART XI -FINANCIAL PROVISIONS

62-F-unds of the Board.

63-Financial year.

64-Annual estimates.

65-Accounts and audit.

56- Investrnent of funds.

PART XII -MISCELLANEOUS PROVISIONS

67-General penalty.

68-Repeal.

PANT XIII. PROYISIONS ON DELEGATED POWERS

69-Regutrations.

FIRST SCHEDULE -TRANSITIONAL PROVISIONS

SECOND SCHEDULE_PROVISIONS AS TO THE CONDUCT OFBUSINESS AND AFFAIRS OF THE BOARI)

The Mental Heahh Bill,20l4

THE MENTAL HEALTH BILL,2014 .

A Bitl for

AN ACT of Parliament to provide for theprevention of mental illnesses, care, treatmentand rehabilitation of persons with mental illness;to provide for the procedures for admission,treitment and general management of personswith mental illness; to' provide for theestablishment of the Mental Health Board andfor connected purposes

ENACTED by the Parliament of Kenya, as follows-PART I-PRELIMINARY

l. This Act dray be cited as the Mental Health Act, shortrirre.

20t3.2, In this Act, unless the context otherwise

requires -"Board" mea.ns the Mental Health Board established

under section 50 of this Act;

"Cabinet Secretary",means the Cabinet Secretary forthe time being responsible for matters relating to health;

"care treatment and rehabilitation" includes preventiveand after care services such as counselling psychotherapyand vocational care;

"court" means the magistrate's court;

"health care provider" means a person or institutionduly licensed and accredited under the written law for thetime being in force to provide health care services;

"least restrictiveenvironment involvingsocial restraint duringbased rare;

alternative" means health careminimum emotional, physical andhome, community or institutional-

"medical practitioner" means a personunder the Medical Practitioners and Dentistsmedical practitioner; Cap. 253 .

"mental health care facility" means an

registeredAct as a

institution,

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T-he Mental Healtlt Bill,2014 2527

whether private or public, duly licensed to provide mentalhealth care services;

"mental health" means a state of well-being in whichthe individual realizes his or her own abilities, can copewith the normal stresses of life, can work productively andfruitfully and is able to make a contribution to.his or hercommunity;

"mental illness" means any illness or disorder of themind;

o'person with mental illness" means a persondiagnosed as suffering from a mental illness;

"psychosocial interventions" include counselling,aliercarc services and integration; and

"personal representative" means spouse, next of kin,partner, parent or guardian of the person with mental illnesshaving legal capacity to make decisions on behalf of theperson with mental illness.

3. 'l'hc objects and purposes of this Act are to-

(a) prornotc the mental health and well being of all,including reclucing the incidences of mentalillness;

co-prdinate the prevention of mental illness,access to mental health care. treatment andrchabilitation services to persons with mentalillness;

reduce the impact of rnental illness, including theeffects of stigma on individuals, family and thecommunity;

promote recovery from mental illnesses andenhance rehabilitation and integration of personwith mental illness into the community;

ensure that the rights of a person with mentalillness are protected and safeguarded.

Ob.iects and

purposc-. ol'thc

Act.

(b)

(c)

(d)

(e)

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The Mental Health BiU,2014

PART II-ACCESS TO MENTAL HEALTHSERYICES

4. (l) Mental health services shall be affordable,equitable and accessible to all.

(2) The national and cotrnty governments shall ensurethat there is adequate funding for mental health services tomeet requirements for staffing, facilities, medication,equipment and other interventions to ensure the highestattainable quality in provision of mental health services asrequired under this Act.

5. Mental health services shall be of the highestquality possible and shall be provided in a manner that-

(a) preserves the dignity of the person with mental' illness;

(b) takes into consideration and allows for treatmentoptions which helps a person with mental illnessto cope by himself or herself with the mentalhealth illness affecting him or her;

(c) proVide relevant clinical and non-clinical careaimed at reducing the impact of the mental illnessand improving the quality of life of the personwith mental illness.

6. (l) The national and county governments shalldetermine and co-ordinate the implementation of theirhealth policies and measures in a manner that-

(a) ensures the provision of mental health care andtreatment at health establishmentg at thecommunity, primary, secondary and tertiarylevels;

(b) promotes the provision of community-based careand treatment;

(c) ensur€s that adequate funding is allocated tomental health care;

Cost,accessibility, etcofhealth care.

No. 14 of2003.

Quality of healthcarE.

Responsibility ofnational andcountygovernments.

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The Mental Health Bill,2014 2529

(d) promotes the rights of persons with mentalillness; and

(e) promotes and improves the mental health statusof the people.

(2) In the provision of mental health care, priorityshall be granted to community health and primary mentalhealth care and treatment as opposed to institutionalizationof the person with mental illness, having regard to themental health condition of the person with mental illness,economic and social status of the community.

(3) Where a person with mental illness has beendischarged from a mental health care facility, efforts shallbe made towards re-integration of the person into thecommunity and specialized and personalized after-careservices required to enable the person with mental illnesslive a decent,ahd dignified life outside the facility.

7. A person with mental illness has the right toappropriate physical and mental medical care andtreatment, as well as counselling, rehabilitation and aftercare support necessary to help the person with mentalillness recovetfrom the illness.

8. (l) The national and county governments shallensure that community mental health is promoted by-

(a) providing appropriate resources, facilities,services, personnel and programmes to allowpersons with mental illness to be attended to atihe community level; and

(b) ensuring that there exists a supportiveenvironment that facilitates access to care andtreatment and other necessary after care and

', supportive services.

(2) Community mental health services shall undertakethe provision of-

(a) outpatient services to persons with mental illnessclinics in health centres and general hospitals;

Counselling andallercare sen,ices

Promotion ofcommuniry'mental healthcare,

2530 The Mental Health Bill,2014

(b) rehabilitation and after-care services for personswith mental illness after discharge from a mentalhealth facility;

(c) supervised home care and support for personswith mental illness; and

(d) services for the promotion of mental health.

9. (l) Mental health interventions in primary careshall-

(a) be comprehensive,'ranging from prevention toearly intervention through treatment and

. continuing care and prevention of relapse;

(b) target the populations that are at different levelsof risk including children, women, youth, elderlypersons, refugees and those affected bycatastrophic incidences and emergencies.

(c) 'include education, awareness and training onmental health promotion and interventions.

(2) The families and carers of persons with mentallness shall be accorded support necessary to promote theirrental well-being.

10. (l) A mental health facility shall have access to'le same level of resources as any other healthstablishment, arid in particular-

(a) qualified medical practitioners, includingpsychiatrists, psychologists, psychiatric nurses,counsellors, psychotherapists and other qualifiedprofessional staff in sufficient numbers, and withadequate space to provide each person withmental illness with privacy and a programme ofappropriate therapy;

(b) diagnostic and therapeutic equipment;

(c) adequate, regular and comprehensive treatmentincluding supplies of medication; and

Mental healthinterventions inprimary care.

Acccss tomedication andpsychosocialinterventions.

The Mental Health Bill, 20 I 4 2531

(d) appropriate professional care.

(3) 'Ihe Board shall liaise with the Cabinet Secretaryresponsible for education to integrate into the syllabusinstructions relating to mental health, including instructionson prevention, treatment, rehabilitation and other generalinformation on mental health and related illnesses.

ll. (l) A person with mental illness shall not bediscriminated against or subject to unfair treatment inobtaining adequate health insurance for the care andtreatment of physical and mental health problems frompublic and private health insurance providers.

(2) Any person or insurance company that contravenesthe provisions of this section commits an offence and shallbd liable, ,on conviction, to a fine not exceeding fivehundred thousand shillings, or to imprisonment for a termnot exceeding three years, or both.

PART III-DETERMINATION OF MENTALILLNESS

12. A determination that a person has a mental illnessshall be made in accordance with the provisions of this Actand the regulations made under the Act.

13. (l) A determination of mental illness shall not bemade on the basis of political, economic or social status ormembership in a cultural, racial or religious group, or forany other reason not directly relevant to the mental healthstatus of a person

(2) A family or professional conflict, or non-qonformity with moral, social, cultural or political values prreligious beliefs prevailing in a person's community, shhllnot be a determining factor in the diagnosis of mentalillness.

(3) A background of past.treatment or hospitalizationas a person with mental illness shall not of itself justify anypresent or future determination of mental illness.

t4. A determination as to whether a person issuffering from mental illness shall be made by at least two

Access to medicalinsurance.

Determination ofmental illness.

Principles fordelermination ofmental illfiess.

Determination bymedicalpractitioner,

2532 't'trc lattut t.!ytr'tt llitj. 2tt ta

accrcclitcd hcalth praatitioncrs with at least thrcc ycarscxperioncc on matters rclatcd to mcntal health.

PAR'I' IV_RIGH'I'S OI.' PI'RSONS WI'I'[I MIIN'I]AI,I I,LNI.]SS AN D DUTII'S O}- MIiNTAI, II HA I,'I'I I.

STTRVICI' PROVII)I'RS

15. (l) I:very pcrson has tire right to the highestattainable stanclard of health.

(2) A pcrson with rnental illncss shall bc trc4tcrl in a

Iturnane ancl clignifliecl manner, and shall havc his or hcrurivacy respcctecl.

(3) A pcrson with mental illness has the right toprotectiotr frorn physical. economic, s<lcial, scxual andother forms ol'exploitation, abusc ancl degrading trcatmcrrt.

16. (l) A person shall not bc cliscrirninatccl against orrthe ground that he or she is sul'lering frorn lncntal illncss asprovidecl for in Articlc 27 of thc Constitulion.

(2) 'Ihc will and preference of a persolr with rncntalillness shall be rcspected and be the prinrary consiclerationas far as is ascertainablc.

(3) Every person with nrental illness shall have theright to excrcise all civil, political, econornic, social andcultural rights accorded to cvery person by the Conslitutionand any other written law in force in Kenya.

17. (l) Persons with mental illness have a right torecognition as persons before the law and shall enjoy legalcapacity on an equal basis with others in all aspects of life.

(2) The Government shall-take appropriate measuresto provide access by persons with mental illness to thesupport they may require in exercising thbir legal capacity.

(3) The court may make a determination, uponapplication, whether a person has legal capacity.

(4) Where a determination is made under subsection(l) that a person lacks legal capacity, the court shallappoint a personal representative to manage his or heraffairs.

I(ight lo rrrcntallreallh eure.

I)r'otccll()D lronld i sc t irrr i nut io rt.

l.cgal cirprcitr

'l'ltc Menral Ilealtlt Bill.2011

ltl. (l) l:vcry hcalth care provider shall. where thepcrson witlr nrcntal illncss is capable of making an

inlirrrncd clccision on thc nced for treatment, inform theperson rvith mcntal illness of his or her right to choose an

appropriatc trc,rtrnent of his <lr her own choice, and obtainwrittcrr conscnt prior to adrninistering any trcatrnent.

(2) Wherc il pcrson with mental illncss is incapablc ofrnaking an inftrrmcd decision on the need for treatment,such conscnt must bc sought and obtained flrom thepcrsonal rcprcscntative as appointed under this Act, unlessthc treatment is provided under section 33.

19. (l) l:r'cry pcrson with rnental illness or theirrcprescntativc is entitlcd to access full informationrcgarcling his or hcr mcntal and other health status, clinicalrecords ancl othcr related inlirrmation maintained by mentalhcalth carc Iacilitics ancl scrvice providers in accordancewirh Articlc .15 ol'the Constitution.

(2) Any rcprcsent-aLions madc by a pers<ln wirh nrcntalillncss or his or hei representative shall, on rcquest. tormpart of that person's records.

2ll. (l) All information obtained in the context ofcarc and trcatment of a person with mental illncss isconl'idcntial.

(2) A person or a mental health care facility rnay notdisclosc arly confidentia[ information, except undercircumstances enumerated under section 2l .

21. n pcrson or mental health care {acility maydisc:losc conf-idential information relating to a person withrncntal illncss where such discl<)surc-

(a) is required by law or ordered by a court;

(b) is in the public interest;

(c) is ncccssary to prevent the likelihood of seriousharm to the person with mcntal illness or toothers;

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(:onsqnt to

trcatnlcnl.

Acccss toinlbnnation

('onlidcntiality ofin lirrrnation.

I)isclosure ofconl'identialinfirnrration.

2534 The Merrtal Healtlt Bill,2()14

(d) is necessary for purposes of treating the personwith mental illness and in the best interest of theperson with mental illness.

22. (l) The environment and living conditions at a

mental health care facility shall be as close as possible tothose of the normal life of persons of similar age as thosehoused in the facility and in particular shall include-

(a) facilities for recreation and leisure activities;

(b) facilities for education and religious practice;

(c) facilities for comniunication;

(d) facilities suited to the social and culturalbackground of a person with mental illness, andfor appropriate vocational rehabilitation measuresto promote reintegration of the person in thecommunity, including vocational guidance,counselling and placement;

(e) facilities necessary to ensure that the privacy anddignity of a person with 'mental illness isprotected as required by this Act.

(2) Every mental health care facility shall be inspectedby the Board at least once every six months to ensure thatthe conditions, treatment and care of persons with mentalillness comply with the provisions of this Act and any otherrelevant written law.

23. (l) A person with mental illness shall not be

subjected to forced labour, whether within or outside a

mental health care facility.(2) Every person with mental illness in a mental health

care facility has the right to receive remuneration for anywork done, similar to that payable to a person withoutmental illness.

Conditions at

mcntal health carcIacilitres.

[)crsons not to bcsubjcctcd tofbrccd labour.

24, (l) Every person, body, organization or mental Prorectionagainst

health .ur. fu.ltityiroviding care andireatment to a person :::T#"dr:l,T'with mental illness shall take steps to ensure that- treatment.

7-1rc Mental Ilectlth Bill,2014 2535

(a) persons with mental illness are protected fromexploitation, abuse, or any cruel and degradingtreatment;

(b) persons with mental illness are not subjected toany forced labour; and

(c) care and treatment services are not used as

punishment or for the convenience of otherpeople.

(2) A person who witnesses any form of abuse againsta person with mental illness shall report the incidentimmediately to the police, the Board or any othercompetent authority.

(3) A person who commits an offence under thissection is liable, upon conviction, to imprisonment for aterm not exceeding three years or a fine not exceeding threehundred thousand shillings; or both.

25. (l) A person with mental illness shall beinformed of his or her rights under the law by the healthservice provider attending to him or;her, in a form andlanguage which the person understands, which informationshall include an explanation of those rights and how toexercise them.

(2) Where the person with mental illne-ss does notunderstand such infbrmation or does not liave mentalcapacity for such unde.rstanding, the rights shall becommunicated to the representative of that person.

26. (l) tn making . a decision under this Actconcerning the care or treatment of a person with mentalillness, including a decision to make an admission order inrelatlon to a person, the will and preference of that personshall be the principal consideration with due regard beinggiven to the interests of other persons who may be at risk ofserious harm.

(2) Where it is proposed to make a recommendation oran admission order in respect of a person with mentalillness, or to administer treatment to such persqn under thisAct, t[re person shall, so far as is reasonably practicable, berotified of .1 the proposal and be entitled to make

Person to be

informed ofrights.

Best practices.

2536 The Mental Heahh Bill,2014

representations in relat'ion to it, either in person or througha representative, and before deciding the matter, dueconsideration shall be given to any representations dulyfnade under this subsection:

(3) In making a decision under this Act concerning thecare or treatment of a person with mental illness, includinga decision to make an admission order, due regard shall begiven to the need to respect the right of the person todignity, integrityund privacy.

27. (1) A person with mental illness is entitled tochoose and appoint a representative of his or her ownchoice.

(2) A person with mental illness is entitled to, wherenecessary, the services of a support person who shall bemade available free of charge.

' (3) A person with mental illness or his or herrepresentative has the right to produce at any hearingindependent medical reports or any other oral or writtenreports or any other evidence that is relevant to his or hermental health status.

(4) A person with mental illness or his or her personalrepresentative has the right to attend, participate and beheard in any hearing.

28. (l) A person with menta[ illness has a right toparticipate in the formulation of his.oi'her treatment plans.

(2) Where a person with mental i,flness is incapable ofexercising the right under subsection (t) due to his or hermental illness a personal representative may participate inthe formulation of treatment plans.

PART V-PROYISIONS ON ADMISSION ANDTRBATMENT

Right torepresentation.

Right toparticipate intreatmehtplanning.

29. A person who presents himself or herself voluntary

voluntarily to. a mental healtir care facility for treatment or admission'

admission shall be entitled to receive appropriate care andtreatment or to be referred to an appropriate mental healthcare facility.


30. ( I ) No mental health care, treatment or admission lnrbrmcd consent

shall be accorded to a person with mental illness withoutthe persbn's informed consent or that of his or herrepresentative.

(2) ln order for consent to be valid under this section,it shall satisfy the following conditions-

(a) the person with mental illness or his or herrepresentative shall be competent to give theconsent;

(b) consent shall be given freely without threats orimproper inducements;

(c) there shall be appropriate and adequate disclosureof all relevant information relating to treatment,including information on the kind, purpose, likelyduration, effects and expected benefits of thetreatment;

(d) choices, where available, rtrutt Ue given to theperson with mental illness;

(e) consent shall be documented in the person'srecords.

31. (l) A person may be admitted involuntarily to amental health care facility as a person with mental illness,or, having been admitted voluntarily as a person witlrmental illness, be retained involuntarily cs a person withmental illness in the mental health' care facility, if twoaccredited health practitioners determine.. in accordancewith this Act, that the person has a mental illness ordisorder and considers that-

(a) because of mental illness or disorder, there is aserious likelihood of immediate or imminentharm to that person or to other persons; or

(b) any restrictions must be based on the person'sneeds, be genuinely justified and be the result ofrights-based procedures and combined witheffective safeguards

Involuntaryadmission.

2538 The Mental Health Bill,2014

(2) A rqgntal health care facility may receive aninvoluntarily admitted person with mental illness, only ifthe facility has been designated to do so by law and onlyfor the duration necessary to stabilize the' person withmental illness, and provide mental health care services tohim or*rer.

(3) The following factors shall be considered in casesof involuntary admission-

(a) there is evidence of a mental illness of a specifiedseverity;

(b) there is likelihood of immediate or imminentharm to the person with mental illness or others,and a deterioration of the person's condition iftreatment or admission or both are not given;

(c) the treatment can only be given by way ofadmission to the health facility.

(d) Inquire on the maximum time that a person canbe involuntary admitted

32. An emergency admission or treatment of a personwith mental illness shall be administered where there isimmediate and imminent danger to the health and safety ofthe person with mental illness or other people, and thenature of such immediate and imminent danger is such thatthere need to be urgent care and treatment to stabilize theperson with mental illness.

33. (l) For any case to be considered an emergency,there shall first be shown that the time required to complywith substairtive procedures would cause delay and lead toharm to the person with mental illness or to other people.

(2) Where the requirements in subsection (1) havebeen satisfied, the person with mental illness may beadpitted to the health facility or be given treatment basedon'the' assessment carried out by a qualified medicalpractitioner or other accredited mental health practitioney.

34. (1) Emergency admission or treatment shall notbe prolonged for duration longer than necessary to stabilizethe person with mental illness and in any case, shall not be

Emergencyadmission andtreatment.

Considerations foremergency cases.

Duration ofemergencytreatment.


prolonged beyond a period of seventy-two hours, and shallbe allowed only to the extent that it is necessary to treat theperson with mental illness.

(2) Emergency treatment shall not include-

(a) depotneuroleptics;(b) electroconvulsive therapy;(c) sterilization;(d) psychosurgery or other irreversible treatment.

(3) Procedures for emergency treatment or admissionor both may be initiated immediately by a spouse, next ofkin, partner, parent or guardian and authorized by aqualified medical practitioner if it is assessed that theperson with mental illness is likely to require care beyondthe stipulated time limit for emergency treatment.

(4) The family of the person with mental illness ortheir representative shall be immediately informed of theemergency procedures undertaken.

(5) A person with mental illness, his or her family orrepresentrtive have the right to appeal against emergencyadmission or treatment to the Board.

(6) The Cabinet Secretary may, on therecommendations of the Board, make regulations onemergency treatment and admission.

PART VI_MENTALLY ILL OFFENDERS

35. (l) Whenever a medical practitioner is of theopinion that a prisoner or a remandee is mentally ill, thepractitioner may, by order under his or her hand in the formprescribed, direct that such prisoner be removed to a mentalhealth facility within the prison or outside the prison and be

treated while under detention.

(2) Where a prisoner or remandee transferred to a

mental health facility pursuant to subsection (l) is, in theopinion of the person in charge of such mental healthfacility, no longer mentally ill, the person in charge of themental health facility shall inform the officer in charge ofthe prison from which the prisoner was removed, and the

Facilities lbtmentally illoffenders.

25-t0 l'he Mettul llealth Bill. 2014

prisoner shall then be delivered into the custody of theofficer of that prison if still liable to be confined in prison, '

and if not so liable, shall be'released.

(3) The period during which the prisoner has beendetained in the mental health facility under this sectionshall be recorded as part of the prisoner's' term ofimprisonment.-

(4) An accusbd person with mental illness shatl beentitled to have their criminal cases expedited and givenpriority over other cases.

(5) The Director of Public Prosecutions and other stateof{icers shall expedite the process of granting mentally illoffenders within the cfiminal justice system the necessaryauthorizations'and examinations and at no cost.

(6) Mentally ill offenders shall be provided mentalhealth care and treatment by the governmerlt.

(7) There shall be special cells for mentally iUprisoners within which they shall be held separately fromthe rest of the prisoners or other persons with mentalillness, and receive mental health care and treatment of thesame quality and with the same frequency.as other personwith mental illness.

: (8) Mentally ill prisoners with severe mental illnessmay be transferred to a mental health care facility wherethey can receive appropriate treatment and care.

PART VII-SECLUSION AND RESTRAINT

36. (1) A person withi mental illness shall not bephysically restrained or secluped except.in accordance withthe law and the set procedurds.

(2) Physical restraint or seclusion shall only be usedwhere it is the only means available to prevent immediateor imminent harm to the person with mental illness or otherpeople.

(3) ^Physical restraint or seclusion shall not be

prolonged beyond the period which is strictly necessary to

Seclusion orrestraint to be inaccordance withthe law.


administer treatment to the person with mental illnessnecessary to allow him or her to co-habit peacefully withother users within the facility, his or her family or withmembers of the comrnunity.

(4) All instances of physical restraint or seclusion,their reasons, nature and extent shall be recorded in theperson's medical records.

(5) A person with mental illness who is restrained orsecluded shall be kept under humane conditions and shallbe under the care and regular supervision of a qualifiedmental health care practitioner within the facility.

(6) A representative of the person with mental illnessshall be given prompt notice of tire restraint or seclu'sion oithe person with mental illness.

(7) The review of the mental health status of a personWith mental illness under seclusion or restraint shall bedone in accordance with Part VIII of this Act.

' 37. (1) Where a person with mental illness is 9::!l'l:l:to'physically iestrained or secluded, a health care practitioner ::'"tTJ:l:'shall-

(a) ensure the mental health care facility hasadequate facilities to safeguard the safety of thatperson;

(b) ensure the restraint or seclusion i3 not used as apunishment to the person with mental illness orfor the convenience of the staff of the henlthfacility.

(2) Restraint and seclusion shall be used as a lastresort and the necessary treatment shall be availed.

PART VIII-REVIEW, APPEALS, DISCHARGEAND TRANSFER OF PBRSON WITH MENTAL

ILLNESS

38. (l) The mental health status of a person with Rsview.ormental

mental illness shall be reviewed periodically by a mental healthstatus'

2542 l'he Mentul Healtlt Bill,2014

health care practitioner, and such review shall include a

review of-

(a) the nature of the illness;

(b) the need for care and treatmcnt;

(c) the type of care and treatnynt provided;

(d) the need for referral, transfdr or discharge; and

(e) any other matters related to the mental healthstatus of the person with mental illness.

(2)'l.he review of the mental health status of a personwith mental illness may be initiated by-

(a) the person with mental illness;

(b) the mental health care practitioner in charge ofmanaging the person with mental illness;

(c) a personal representative of the person withmental illness;

(d) the mental health care practitioner in charge ofthe facility;

(e) any other person upon proof of the nature of theirinterest; or

(f) the Board.

(3) The procedure for review shall be as prescribedunder the Regulations to this Act.

39. (l) Any decision made under review shall be Appeals'

subject to appeal in the first instance to the healthpractitioner in charge of the facility, and further to theBoard.

,(2) A person with mental illness or his or herrrepresentative who is not satisfied with the decision of theBoard on appeal may appeal furtlei to the High Court.

The Manral Health BiLl,20l4 2543

40.where-

(a)

41. (l) Where a mental health care practitioner is ofthe opinion that it would be for the benefit of a person withmental illness admitted in a mental health care facility, orthat it is necessary for the purpose of obtaining specialtreatment for such person, the person may be transferred toanother mental health care facility after obtaining consentfrom-

(a) the person with mental illness; or

(b) the representative of the person with mentalillness; or'

(c) the other mental health care facility where theperson with mental illness is being transferred to.

Q) A person with mental illness in a health facilityother than a mental health care facility may be transferredfrom the health facility to a mental health care facility.

PART IX-CARE AND ADMINISTRATION OFPROPERTY OF PERSONS WITH MENTAL

ILLNESS

4f, (l) An application for an order for themanagement and administration of the estate of a personwith mental illness may be made to the court by a parent,spouse or child who has attained the age of eighteen years,friend, rqlative or any interested person under whose careor charge the person with mental illness is.

(b)

A person with mental illness shall be discharged ll:|1'::l:."- ["fiili['l:,,

the mental health care practitioner in charge ofrnanaging the person makes a decision todischarge the person as a result of a review;

the person can no longer receive any other orfurther treatment from a mental health carefacility and appropriate efforts are being madetowards re-integration of the person into thecommunity, and for specialized and personalizedalter-care service.

'f ransl'e r ol'pcrsonwith nrentalill ness.

Application foradministration.

The Mental Health Bill,20l4

(2) An application under subsection (l) shail beaccompanied by an affidavit setting out the grounds uponwhich it is made and shall give full particulars as to theproperty and relatives of the person to whom it relates.

(3) Where the application relates to a person dulyadmitted as a person with mental illness, the applicationshall be accompanied by a certified true copy of theappropriate admission or treatment and particulars inrespect of that person.

(4) The notice of the application shall, unless the courtconsiders its service impracticable, inexpedient or would beineffectual, be served upon the person in respect of whomthe application is made in such rRanner as the court maydirect.

(5) The court may direct that a copy of such notice beserved upon any reiative of the person with a mental illnessor upon any other person to whom in the opinion of thecourt notice of the application should be given.

. (6) The court may require the person in relation towhom an application is made to attend at a place and timeas it may appoint for the purpose of being personallyexamined by the court, or by a registered medicalpractitioner or any other person as the court may desire inorder to have a report of the mental capacity and conditionofsuch person.

43. (l) The court shall receive evidence on affidavitor otherwise and consider any report submitted to it underthe provisions of this Act as to the mental capacity of theperson to whom the application relates as may be producedbefore it.

(2) The court may, in any proceedings under this Act,make inquiries into the properties belonging to a personalleged to be suffering from a mental illness.

M. (l) The court may make such order as it findsnecessary for the administration and management of theestate of any person with mental illness, for the purpose ofmaking provision for the person's rnaintenance and that of

Receipt ofevidence.

Order foradministration.


members of his immediate family who are dependent uponhim or her, and for the payment of his or her debts.

(2) 'l'he courl may appoint a fit and proper person tobe the manager of the estate of a person with mental illnessfor the purposes of safeguarding the property of thatperson.

(3) l'he court shall, by notice in the Gazette, informthe public of the appointment of a person as the manager ofthe estate of a pers<ln who is suffering from mental illnessand may allow any pcrson to lodge an objection to theappointment.

(4) A manager appointed under subsection (3) shall actin accordance with the directions of the court, and shallexercise powers for the management of the estate as may beexpressly conferred upon him or her, either specifically orgencrally, by any order or direction of the court or anyothcr relevant written law.

(5) A manager shall not, without express permissionof the court, mortgage, charge, or transfer any immovableproperty or lease that property for a term exceeding threeyears.

45. ( l) Where a manager is appointed under this Part,the court may order that th; manager shall have suchgeneral or special powers for the management of the estateas the court considers necessary, and proper regard beinghad to the nature of the property whether movable orimmovable of which the estate rnay consist.

(2) Notwithstanding subsection (l), a manager shallrr<lt, without special permission of the court-

(a) mortgage, charge or transfer by sale, gift,surrender or exchange any immovable propertyof which the estate may consist;

(b) lease any such property for a term exceeding fiveyears; or.

(c) invest in any securities other than thoseauthorized under the Trustee Act.

Dutios of a

manager.

Cap. 167.

2546 The Mental Health Bill.2014

(3) A manager shall not invest any funds or property Cap 167

belonging to the estate of which he or she is a manager, inany company or undertaking in which he or she has aninterest, nor on the purchase of immovable property underthe authority of section 4(l) (d) of the Trustee Act withoutprior consent of the court.

(4) A manager shall perform his or her dutiesresponsibly taking into account the will and preference ofthe estate of the person who is suffering from mentalillness.

(5) Every conveyance or other instrument made inpursuant to an order of the court shall be valid and haveeffect as if it were made by the person, being of soundmind and in respect of whose estate the order is made.

46. (l) Every person appointed to be a manager ofthe estate of a person with mental illness. under this Partshall, within six months of the date of his or herappointment, deliver to the court and to the Public Trusteean inventory of the property belonging to the person inrespect of whose estate he or she has been appointedmanager and all sums of money, goods and effects as he orshe receives on account of the estate, together with a

statement of debts owed by or due to such person, in theprescribed forrrt.

(2) The representative or any person having capacityto act as the representative of a person with mental illnessmay, upon payment of such fee as may be prescribed,inspect and obtain a copy of any inventory, statement oraccount delivered to the court and to the Public Trusteepursuant to subsection ( l).

(3) An interested person who does not fall in thecategory of persons mentioned in subsection (2) abovemay, on payment of such fee as may be prescribed, makean application to the court to inspect and obtain a copy ofany such inventory, stat'ement or account delivered to thecourt and to the Public Trustee pursuant to subsection (l).

(4) The Public Trustee shall report annually to theCabinet Secretary and the Board on all accounts deliveredto him or her under subsection (l).

lnvcntory ofproperty.

{1

I

I

The.Mental Health BiLl, 20 1 4 2547

(5) Where any person, by petition to the court,impugns the accuracy of any inventory or statement or ofany annual account made under this section, the court maysummon the manager and inquire summarily into thematter, and make such order as it considers proper, or mayrefer the petition to a magistrate having jurisdiction in theplace where the property belonging to the estate concernedis situated, for inquiry and report, and upon receipt of themagistrate's report, the court may make such order as itconsiders necessary.

47. (l) A manager who contravenes the provisions of Penaltv'

this Part shall be liable, upon conviction, to imprisonmentfor a term not exceeding three years or a fine not exceedingfive hundred thousand Kenya shillings, or to both.

(2)Any property of a person who is mentally which islost due to maladministration of his or her estate shall be acivil debt recoverable summarily.

48. The court may, on its own motion or uponapplication, for any sufficient cause, remove any manageror guardian appointed by it under this Part, and mayappoint any other fit person in his or her place, and maymake such order as it considers'necessary to ensure that theperson removed transfers the property under his or her care,and of which he or she war manager, to his or he1successor, and accounts to the successor for all moneyreceived or disbursed by him or her in connection with theproperty.

PART X-MENTAL HEALTH BOARD

49. (l) There is established a board to be known as

the Mental Health Board.

Removal ofmanager.

Establishment ofthe Board.

(2) The Board is a bodysuccession and a common sealname, be capable of-

(a) suing and being sued;

(b) taking, purchasingholding, charging orimmovable property;

corporate with perpetualand shall, in its corporate

or otherwise acquiring,disposing of movable and

2548 The Mertal Health Bill,2014

. (c) borrowing money or making investments;

(d) entering into contracts; and

(e) doing or performing all other acts or things forthe proper performance of its functions undor thisAct which may lawfully be done or performed bya body corporate.

(3) The Board 'shall be the successor to the Boardknown as the Kenya Board of Mental Heath existingimmediately before the commencement of this Act, andsubject to this Act, all rights, obligations, assets andliabilities of that Board existing at the commencement ofthis Act shall be automatically and fully transferred to theBoard and any reference to the Kenya Board of MentalHeath in any contract or document shall, for all purposes,be deemed to be a reference to the Board established undersubsection (1).

(4) The provisions of the First Schedule shall applyupon the commencement of this Act.

50. The functions of the Board shall be to-(a) advise and make recommendations to the national

and county governments on the state of mentalhealth and mental health care facilities;

(b) approve the establishment of mental healthfacilities;

(c) inspect mental health facilities to ensure that theymebt the prescribed standards;

(d) receive and investigate any matter referred to itby a person with mental illness or relative or anyr6presentative of a person with mental illnessconcerning the treatment of the person withmental illness at a mental health facility andwhere necessary to take, or recommend to theCabinet Secretary, any remedial action;

(e) initiate and organize community or family-basedprogrammes aimed at promoting mental health

. and prevent incidences of mental illness;

Functions oftheBoard.

The Mental Heahh Bill,20l4

(f) perform such other functions as may be conferred' upon it this Act or any other written law or maybe necessary in the carrying out of the Board'sfunctioni.

51. (l) The Board shall consist of- ffiffiiror(a) the Director of Mental Health or his or her

appoi nted representati ves ;

(b) the Director of Medical Services or his or herappointed representatives;

(c) four representatives with specialization andexperience on mental health nominated by eachof the following bodies and appointed by theCabinet Secretary-

(i) representative body of psychiatrists;

(ii) representative body of psychologists;

(iii) representative body of counsellors;

(iv) representative body of nurses

(d) one person nofirinated by a user organizationrepresenting persqns who are mentally ill;

(e) one person nominated by Kenya NationalCommission on Human Rights and appointed bythe Cabinet Secretary;

(0 the Chief Executive Officer.

(2) In appointing the members of the Boardunder subsection (l)(c), (d) and (e), the Cabinet Se.cretaryshall take into consideration gender balance and diversity inqualifications of persons being appointed.

(3) The *116.r, of the Board shall, at their firstmeeting, elect a chairperson from amongst the members ofthe Board appointed under subsection (lXc), (d) and (e).I

i

I

2550 The MentaL Health BilL,20l4

(3) A person shall not be appointed as a memberof the Board if such person-

(a) has been convicted of an offence by a court ofcompetent jurisdiction and sentenced toimprisonment for a term of six months or more;

(b) is adjudged bankrupt or has entered into acomposition, scheme or arrangement with his orher creditors;

(c) is disqualified under the provisions of any otherwritten law from appointment as such.

(5) A member of the Board other than an ex-fficiomember shall hold office for a period of three years, butshall be eligible for re-appointment for a further and finalterm of three years.

(6) A member of the Board, other than an ex fficiomember, may-

(a) at any time resign from office by notice inwriting to the chairperson;

(b) be removed from office if the member-

(i) has been absent from three consecutivemeetings of the Board without thepermission of the chairperson;

(ii) is adjudged bankrupt or enters into acomposition scheme or arrangement with hisor her creditors;

(iii) is convicted of an offence involvingdishonesty or fraud;

(iv) is convicted of a criminal offence andsentenced to imprisonment for a termexceeding six months or to a fine exceedingten thousand shillings;

(v) is incapable of performing his or her duties

Tlrc Mentul Heulth Bill,20l4 25st

52. 'l'hc Board shall have all powers necessary for the P.rvcrsorthc

propcr ped'ormance of its functions under this Act and in lloard

particular, but without prejudice to the generality of theforcgoing, the Board shall have power to-

(a) enter into contracts;

(b) manage, control and administer its assets in suchmanner and for such purposes as best promote thepurpose for which it is established;

(c) determine the provisions to be made for capital andrecurrent expenditure and for the reserves of theBoard;

(d) receive any grants, gifts, donations or endowmentsand make legitimate disbursements therefrom;

(e) enter into association with such other bodies ororganizations within or outside Kenya as it mayconsider desirable or appropriate and infurtherance of the purposes for which it is

established;

(f) open such banking accounts for its funds as maybe necessary;

(g) inves. any of its funds not immediately required forits purposes;

(h) undertake any activity necessary for the fulfilmentof any of its functions.

53. (l) The conduct and regulation of the business and !'-11'l:.f,affairs of the Board shall be a"s provided in the Second }iil:'jtil:Schedule. Board'

(2) Except as provided in the Second Schedule, theBoard may regulate its own procedure.

54. 'Tde Board may, by resolution either generally or in Delegation bv the

any particular case, deiegale to any commitfee or to any Board'

member, officer, employee or agent of the Board, theexercise of any of the powers or the performancb of any of itsfunctions or duties under this Act or under any other writtenlaw.

t5.52 I lrt Matryol lleolrlt Bill. 2() l1

55. 'l'hc rcrnuncration payableIJo:trcl shall bc clctcrrnined byItcmuncration (l<lmmissiorr.

tO nfCmbCfS O{' thC Ii.e.tlutt,:ratiott r-rl'

thc Salarics anrl lll::lll"" "''"''

Ol tlte Il6afd L ltitl I:rrt uttr e

( )l l iccr.c0mpctrtrve

56" ( l) 'l'herc shall bc a Chief [xccutivcrvho shall bc appointed by the Iloard through a

procrcss.

(2)'l'hc Chief'[]xecutive Of'f iccr shall hold officc {<lr atcnn of' l'ive ycars, on such terrns and conditinns ofcrnpl<lymcnt as thc lloard may detcrminc, and shall becl i giblc l'or rc-appointmcnt.

(3) 'l'l : Chiel' Executive Officer shall bc an e.r-ofJicionrornbcr of thc Iloard but shall have no right to vote at anynrce ting ol' thc lloarcl .

(4) 'l'he (lhief lixecutivc Ol'ficer shall-

(a) subject to the direction of the Iloard, bcrcsponsible for the day to day rnanagemcnt of'theIloard;

(h) in consultation with the lJoard, be responsible forthe direction o[ the aflairs and transactions of theIJoard, thc excrcise, dischargc antl pcr{ilrmanceol' its objcctives, firnctions ancl tluties, ancl 1he

gcncral aclministration of thc Iloarcl;

(c) bc tlre sccrctilry ol'thc IJoarcl.

57. 'l'hc IJoarcl rnay appoint such ol'l'iccrs. agcnts ancl,'tlrcr stal'l' as arc ncccssary lilr the propcr alrcl clf icicnttlisclrargc ol' its lirnctions uncler this Act, upon such tcnnsirrrtl coutlitiorrs tll'scrvicc as thc [J<lard rnay clcterlniuc.

stt. ( l) 'l'he cornrnon scal o[ thc lJoarcl shall bc kcptin tlrc custocly of thc Chief Iixccutivc Oll'iccr or ol'sucholhcl person as thc lloard may c'lirect, ancl shall not bc uscdcrce pt upon the order o[ the l]oard.

(2)'l'hc comlnon seal o{'tlre l]oard. when alf ixed to atkrctrrrrent and duly authenticated, shall bc judicially and

Stirll

'I'lrc cornrnon scalol rhe []oard.

'['|rc Mantal llculth Rill,2011

o{f icially noticcd, and unlcss the contrary is proved, anlnccessary order of authorisation by thc Iloard under tltisscction shall be presumed to havc bccn duly givcn.

(3) 'l'hg common seal ol' the Iloard shall bcauthcnticatcd by the signature ol' the chairperson of thcIloard and the Chic{-l]xecutive Officer.

(4) 'l'he Iloard shall, in the absence of eithcr thcchairpcrson or the Chicl' [:xccutive Officer, in anyparticular mattcr, nominate onc member of the Board toau(hcnticnte the seal of thc Iloard on bchalf o1' cithcr thechairpcrson or the Clricf Iixecutivc OIficer.

59. ( l) No nrattcr or thing donc by a member of theIloartl ur by any olf iccr, rnembcr o['staff, or agent o{'theIloirrrl slrall, i{'thc rnatter or thing is done bona Jide forexccuting thc functit)ns, powers or duties of the Boardtundcr this Act, rcndcr the member, officer, employee oragent or any person acting on their directiorts personallyliablc to any action, claim or demand whatsoever.

(2) Any cxpenses incurred by any person in any suit orprosccution brought against him or her in any cout't, inrcspect ol'any act which is done or purported to be done byhinr or her under the direction of the lloard, shall, if thecourt holds that such act was done bona {'ide, be paid out ol'the general I'unds of the lJoard, unless such expenses arerecovercd by him in such suit or prosecution.

60. 'l'he provisions of section 60 shall not relieve theBoard of the liability to pay compensation or damages toany person for any injury to him or her, his or her propertyor any of his or her interests caused by the exercise o1'anypower conf'erred by this Act or any other writtelt law or bythc failure. wholly or partially, of any works.

PART XI _IIINANCIAI, PROVISIONS

61. ( I ) The funds of the Board shall consist of-

(a) donations. grants, loans or gifts made to theBoard and approved by the Cabinet Secretary andthe Cabinet Secretary for the time beinqresponsible for matters relating to finance; and

l-iabilil)'lbrdanragcs.

l;unds ol'tlrcIloard.

2.5.5-+ The Mentetl Health Bill. 2014

(b) such fees, monies or assets as may accrue to or vestin the Board in the course of the exercise of itspowers or the performance of its functions underthis Act or under any written law.

(2) There shall be paid out of the funds of the Boardany expenditure incurred by the Board in the exercise of itspowers or the performance of its functions under this Act.

62. The financial year of the Board shall be the Irinancialvear

period of twelve months ending on the thirtieth June ineach year.

63. ( l) At least threecommencement of each financialcause to be prepared estimatesexpenditure for that year.

mOnthS befOre the Annual estimales.

year, the Board shallof its revenue and

(2) The annual estimates shall make provision for allestimated expenditure of the Board for the financial yearand in particular, the. estimates shall provide for the-

(a) payment. of the salaries, allowances and othercharges in respect of members and st4ff of theBoard;

(b) payment of pensions, gratuities and othercharges in respect of members and staff of theBoard;

(c) proper maintenance of the buildings and groundsof the Board;

(d) maintenance, repair and replacement of theequipment and other property of the Board; and

(e) creation of such reserve funds to meet future orcontingent Iiabilities in rerpect of retirement

. benefits, insurance.or replacement of buildings orequipment, or in respect of such other maffer as

the Board may deem appropriate.

(3) The annual estimates shall be approvedBoard before the commencement of the financial

by theyear to

The Metrtal Heulth Bill, 2014 2555

which they relate and, once approved, the sum provided inthe estimates shall be submitted to the Cabinet Secretaryfor approval.

(4) No expenditure shall be incurred for the purposesof the Board except in accordance with the annualestimates approved under subsection (3), or in pursuance ofan authorisation of the Board given with prior writtenapproval of the Cabinet Secretary.

64. (l) The Board shall cause to be kept proper booksand records of accounts of its income, expenditure andassets.

(2) Within a period of three months after the end ofeach financial year, the Board shall submit to the Auditor-General,, its accounts together with-

(a) a statement of the income and expenditure of theBoard during that year; and

(b) a balance sheet of the Board on the last day ofthat year.

(3) The accounts of the Board shall be audited andreported upon in accordance with the provisions of thePublic Audit Act,2003.

65. (l) The Board may invest any of its funds insecurities in which for the time being trustees may by lawinvest trust funds, or in any other securities or banks whichthe Treasury may, from time to time, approve for thatpurpose.

(2) The Board may place on deposit, with such bankor banks as it may determine, any moneys not immediatelyrequired for its purposes, as it may determine.

PART XII -MISCELLANEOUS PROVISIONS

66. A person who commits an offence under this Actfor which no penalty is prescribed shall be liable, onconviction, to imprisonment for a term not exceeding fiveyears or a fine not exceeding five hundred thousandshillings, or both.

Accounts andaudit-

No.l2 ol'2003

lnvcstment ofl'unds.

General penalty

The Mental Health BiU,20l4

67. The Mental Health Act is repealed.

PART XIII. PROVISIONS ON DELEGATEDPOWERS

68. (l) The Cabinet Secretary may, on the Regulations'

recommendation of the Board, make regulations generallyfor the better carying into effect the provisions of this Actin compliance with the principles and standards set underthis Act.

(2) Without prejudice to the generality of theforegoing, regulations made under subsection (1) may*-

(a) prescribe anything required by this Act to beprescribed;

(b) provide for the setting of quality standards andnorrns for care, treatment and rehabilitation ofperson with mental illness;

(c) provide for matters related to the rights and. responsibilities of person with mental illness inmental health facilities;

:(d) prescribe the forms to be used under this Act;

(e) prescribe the forms and procedures to be used inthe authorization and licensing of mental healthinstitutions and the conditions to be attachedunder such authorization or licence;

(O provide.. for accreditation of mental healthpractitioners as well as mental health facilities.

FIRST SCTTEDULE

TRANSITIONAL PROVISIONS

l.In this Schedule- Interpretation.

"appointed day" means the day on which this Actcomes into force;

Repeal.Cap.248

'l'ltr .llttrttrl I latthlt Bill. :0 l.l

"assets" include all. property movable or immovableand all estates, easements and rights whether equitable orlegal in, over or out of property, choses-in-action, money orgoodwill of the former institutions whether situated inKenya or elsewhere;

"former Board" means the Board known as theKenya Board of Mental Heath existing immediately beforethe commencement of this Act.;

"liabilities" means liabilities, debts, charges, dutiesand obligations of every description, whether present orfuture, actual or contingent, and whether to be observed orperformed in Kenya or elsewhere; and

"rights" means all rights, powers, privileges andimmunities whether actual, contingent or prospective,whether observed or performed in Kenya or elsewhere.

2. (l) On the pppointed day, all the funds, assets ahdother property, both movable and irnmovable, whichimmediately before such day were vested in the formerBoard shall, by virtue of this paragraph, vest in the Board.

(2) On the appointed .day, all rights, powers andliabilities, which immediately before such day were vestedin, imposed on or enforceable against the former Board,shall, by virtue of this paragraph, be vested in, imposed onor enforceable against the Board.

(3) If, on the appointed duy, any suit, appeal,arbitration or other proceedings of whatever nature andwheresoever instituted in relation to the business of theformer Board which is, by virtue of this paragraph,transferred to the Board, shall not abate, be discontinued orbe in any way prejudicially affected by reason of suchtransfer of"the business of the former Board or of anythingcontained in this Act, and any suit, appeal arbitratiori orother proceedings shall be continued, and_enforced by oragginst the Board.

(4) In the case of assets and liabilities arising underany loans which vest in the Board on the appointed day, theBoard may enter into such arrangements or agreements

l_5 57

Assets andliabilities.

2.5.58 'l'|rc Mcrttul Ileulth Ilill,20ll

over such rights and liabilities with the Govcrnment or anyothcr third party.

3. Any rel'erence in any written law or in anydocument or instrument to the former Board shall, on alrdafter the appointcd day, be construed to bc a refcrence tothe l]oard.

4. Any proceedings pending immediately belore theappointed day to which the former lloard was a party shallbe continucd as i{'the lloard was a party thereto in licu ofthe former lJoard.

5. Every agreement, deed, bortd or <lther ittstrumentto which the former Board was a party or which affecteclthe former Board and whether or not of such a rtature thatthe rights, liabilities and obligations thereuttder could be

assigned, shall have effect as if the Board were a partythereto or affected thereby instead of the former Board andas if for evcry refcrence (whether express or implied)therein to the former Board there were substituted inrespect of anything to be done on or after the appointedday.

6. 'l'he administrative decisions made by the formerBoard or by the Cabinet Secretary'which are in lorceimmediately before the appointed day shall, on or aliersuch day, have force as if they were directions made by thcBoard or the Cabinet Secretary under this Act.

7. (l) Any pefson who, at the commencement ofthis Act, is a member of staff of the former Board shall, onthe appointed day, become a member of stpff of the Boardon the same or improved terms and conditions of service as

may be specified by the Cabinet Secretary.

(2) Notwithstanding subparagraph (l), a member ofstaff of the former Board may retire on the basis ofabolition of office in accordance with the existingregulations.

8. (l) Where on the appointed day-

(a) any disciplinary proceedings against any member

Ilcltrcncc toli)rnlcr [irxlrd

I'rt,cccrl ings

Agrecnlcnts.dcctls- ctc.

r\d rn i n i slral ir ctlccisions.

Disciplinaryproceedings

Stull.

The Mental Health BiU,20l4 2559

of staff of the former Board are in the course ofbeing heard or instituted, or have been heard orinvestigated by the former Board but no order ordecision has been made thereon;

(b) any such member of staff is interdicted orsuspended,

the Board shall-

(i) in the case of paragraph (a), carry on andcomplete the hearing or investigation and

. make an order or render a decision, as thecase may be; and

(ii) in the case of paragraph (b), deal with suchmember of staff in such manner as it deemsappropriate having regard to the offencecommitted by him or her, including thecompletion of disciplinary proceedings thathave been commenced against that,member

- of staff.

(2) Where on the appointed day, any penalty, otherthan dismissal, has'been imposed on any member of staff ofthe former Board pursuant to disciplinary proceedingsagainst him.or her and the penalty has not been, or remainsto be, serviced by such member of staff, he or she shall, onhis or her transfer to the Board, serve or continue to servesuch penalty to its full as if it had been imposed by theBoard.

(l) A member of staff of the former Board whobecomes a member of staff of the Board shall continue tobe governed by the existing Government pension scheme.

(2) Where any person whose services are transferredto the Board is, on the appointed day, a member of anystatutory voluntary pension scheme or provident fund, theperson shall for the purpose of this Act, continue to begoverned by the same regulations under those schemes orfunds, as if he or she had not been so transferred, and forpurposes of the regulations governing those schemes orfunds, service with the Board shall be deemed to be servicein the former Board.

The Mental Health Bill.20l4

SECOND SCHEDULE

PROVISIONS AS TO THE CONDUCT OF BUSINESSAND AFFAIRS OF THE BOARD

1. (l) The Board shall meet not less than four times Meetings

in every financial year and not more than four months shallelapse between the date of one meeting and the date of thenext meeting.

(2) Notwithstanding the provisions of subparagraph(l), the chairperson may, and upon requisition in writing byat least five members shall, convene a special meeting ofthe Board at any time for the transaction of the business ofthe Bc ard.

(3) Unless three quarters of the total members of theBoard r'therwise agree, at least fourteen days' wriffen noticeof every meeting of the Board shall be given to everymember of the Board.

(4) The quorum for the conduct of the business of theBoard shall be five members including the chairperson orthe person presiding.

(5) The chairperson shall preside at every meeting ofthe Board at which he is present but, in his absence, themembers present shall elect one of their numbers topreside, who shall, with respect to that meeting and thebusiness transacted thereat, have all the powers of thechairperson

(6) Unless a unanimous decision is reached, adecision on any matter before the Board shall be by amajority of votes of the members present and votingand, in the case of an equality of votes, the chairpersonor the person presiding shall have a casting vote.

(7) Subjbct to subparagraph (4), no proceedings of the,Board shall be invalid by reason only of a vacancy amongthe membens thereof.

2. (l) If a member is directly or indirectly interestedin any contract, ppposed contract or other matter before

Disclosure ofinterest by Boardmembers.

The Mental Health Bill,20l4 2561

the Board and is present at a meeting of the Board at whichthe contract, proposed contract or other matter is the subjectof considerafion, that member shall, at the meeting and as

soon as practicable after thg commencement thereof,disclose the fact and shall not take part in the considerationor discr,rssion of, or vote on, any questions with respect tothe contract or other matter, or be counted in the quorum ofthe meeting during consideration of the matter.

(2) Notwithstanding subparagraph (l), if the majorityof members of the Board present.in a meeting are of theopinion that the experience or expertise of a memberreferred to in subparagraph (l) is vital to the deliberationsof the meeting, the Board may permit the member toparticipate in the deliberations subject to such restrictionsas it may impose but such member shall not have the rightto vote on the matter in question.

(3) A disclosure of interest made under this paragraphshall be recorded in the minutes of the meeting at which itis made.

(4) A member of the Board who contravenessubparagraph ( l) commits an offence and is liable toimprisonment for a term not exceeding six months, or to afine not exceeding one hundred thousand shillings, or both.

3. Any contract or instrument which, if entered intoor exeouted by a person not being a body corporate, wouldnot require to be under seal, may be entered into orexecuted on behalf of the Board by any person generally orspecially authorized by the Board for that purpose.

4. The Board shall cause minutes of all resolutionsand proceedings of meetings of the Board to be entered inbooks kept for that purpose.

l'lxecution ol'instrurncnts.

Minutes

The Mental Health Bill,20l4

MEMORANDUM OF OBJECTS AND REASONS

'fhe objective of this Bill is to provide a legal framework for the care,treatment and rehabilitation of persons with mental illness. It seeks toestablish procedures for admission, treatment and overall management ofpersons with mental illness.

Part I contains preliminary provisions.

Part II contains provisions relating to access to mental health care. Itamong other things require that such care be affordable, equitable andaccessible to all. Similarly, it spells out the responsibilities of the nationaland county governments regarding provision of mental health care.

Part III contains provisions on the determination of mental illness,and lays down the principles to be followbd in making that determination.

Part IV contains provisions relating to the rights of persons withmental illness, and the duties of mental health care provides. The objectiveof this Part is to ensure that persons with mental illness are treated withdignity and respect due to them as human beings, and that mental healthcare providers carry out their duties in a manner consistent with theobjectives sought to be achieved by this Bill.

Part V contains provisions relating to the admission and treatment ofpersons with mental illness.

PART VI provides for mentally ill offenders and stipulates how theyshodld be dealt with under the criminal justice system.

PART VII contains provisions on the seclusion and restraint ofpersons with mental illness.

PART VIII provides for the review, appeal, discharge and transfer ofpersons with mental illness.,

PART IX provides for the care and administration of the property ofpersons with mental illness. This is intended to ensure that such propertydoes not go to waste on account of the illness of such person.

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II

The Mental Health Bill,20l1 2-i6.1

PART X contaihs provisions on the establishment. porvers andfunctions of the Mental Health Board as the body responsible for the co-ordination of mental health care activities in Kenya.

PART XI contains financial provisions relating to the Board.

PART XII contains miscellaneous provisions.

PART XIII Provisions on Delegated Powers

'['his Bill once enacted will contbr on a nunrbr.'r of hodir's ancl personsauthority to make provisions having thc lirrcc of lau in Kenl'a in tcrms olArticlc 94 (6) of the Constitution of Ken1,'a. 2010.

'l'hc Cabirret Sccretan' lirr tlic timc being rcsponsihlc tirr rnattcrsrclating to health tor instancc is given authoritl.' hy scction (r9 of this .\ctto make rcgulations on the rccontmc'ndation ol'thc l]oitrcl. 1'hc purposc attd

objectivcs ol'making thcse rcgulations incluclc thc lirllon ing:

(a) provide lbr thc scttirlg ol'clualitv stanclarcls ancl norrllslbr care. treatmcnt ancl lchahilitation of pr'rson rrithmcntal illness:

(b) provide tbr lnattcrs relatecl to tlre rights andresponsibilities of person rvith mental illness in mentalhealth t-acilities;

(c) prescribe the forms to be used under this Act:

(d) prescribe the forms and procedures to be used in theauthorization and licensing of n"lental health institutionsand the conditions to be attached under suchauthorization or licence;

(e) provide for accreditation of mental health practitionersas well as mental health facilities.

Limits of the Delegated Authority

(0 The regulations mads under this Act by the Cabinet Secretarywill be limited to bringing into effect provisions of this Act andwill therefore affect the quality standards and norms for care,

r treatrnent rehabilitation and rights and responsibilities of persons\\

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2561 The Mental Health Bill,20l4

with mental illness including accreditation of mental health Ipractitioners as well as mental health facilities.

This Bill is a Bill conceming county gove.mments.

The enactment of this Bill shall occasion additional expenditure ofpublic funds

Du,:d the 26th November,z}l3.

JOSEPH LEKU'TON,Mem,her of the Nutionul Assembly.

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The Mental Health Bill, 2014

Documents

Transcript of The Mental Health Bill, 2014