Apart from feeble attempts by health authorities and efforts of charitable organizations, little has been done in Nigeria and a host of underdeveloped and developing economies to tackle the issue of mental health and indeed the law governing that very field of Medicare.

In actual fact, the society more often than the other, turn the proverbial blind eye whenever confronted with the very obvious and not too obvious cases of mental infirmity, disorder and or illness.

A NATIONAL HERO

Rashidi Yekini, National hero, Nigerian Professional Footballer with immense talent had a successful career spanning over 20 years. After displaying his talent for Local Nigerian teams including the defunct Abiola Babes F.C. of Abeokuta, UNTC of Kaduna and my own darling Shooting Stars Football Club of Ibadan (Up Shooting!), he had an eventful career overseas playing mostly in the European continent especially for the Portuguese club, Victoria Setubal, where he scored 93 goals in 122 appearances.

He also played for Olympiakos in Greece, Sporting Gijon in Spain, FC Zurich in Switzerland and Bizerte FC in Tunisia. He returned from Europe to play in Cote D’ Voire for Africa Sports and then the Nigerian League (now Nigerian Premier League) with Julius Berger of Lagos and Gateway FC of Abeokuta. Yekini’s international career saw him play for the Super Eagles of Nigeria 58 times between 1984 and 1998. During his exploits in the national team, he scored 37 goals including Nigeria’s first ever goal at the World Cup Finals. This was indeed a glorious career.

Since his untimely demise at the age of 49, the press has been awash with several controversial headlines including “Was Rashidi Yekini Killed?”, “Untold Story of Rashidi Yekini’s Last Days”, “Ex-Eagles Striker, Rashidi, Dies in Herbal Home” and “How Rashidi Yekini Died of Depression”.

The above point to the fact that the death of ‘Gangling Yekini’, (as he was fondly called), was shrouded in mystery and was probably related to his state of health. We do not know what his state of mind was but what comes to fore is the issue of utmost neglect of special people in need of the attention of the State. Another issue of utmost importance is also the re-examination of the enabling legislation regulating mental health issues.

HISTORICAL PERSPECTIVE

 The history of mental health regulation in Nigeria dates back to the pre-colonial period through the English statutes of 1845 and 1890, applicable to Nigeria as a Statute of General Application. In 1906, the Lunacy Ordinance was passed in the then Southern Province of Nigeria. The Ordinance empowered the Colonial Government to establish a lunatic asylum. Consequently, the first Asylums were built at Yaba in Lagos and at Calabar. Lunatics under the Ordinance include Idiots. Medical supervisors appointed had the power to detain a person suspected to be a lunatic for not more than a month but ultimate authority lay with the District Commissioners who had the power not only to detain but hold hearings and appoint medical supervisors.[1] The established asylums functioned more as a prison than a treatment centre. As such Lunatics that is the inmates were kept without any care and were secluded from the society as if they were Outcasts.

With the growing need for a law that will take care of the affairs, well-being and fundamental rights of Lunatics, Reports were commissioned on mental health in Nigeria.[2] The Reports advocated an expansive approach to the provision of mental services and this led to the enactment of the Lunacy Act 1958. This Act has remained the basic legislative framework on mental health in Nigeria. This legislation made provisions for the detention of Lunatics by Medical Practitioners [3] and the Courts [4] in designated hospitals. It was however grossly blank on salient issues of consent to treatment, appeal against detention and it was grossly inadequate on important issue the management of the affairs and property of the Lunatic.

STATE OF FACILITIES

Nigeria, unlike most countries of the European Union, is yet to have an effective legal framework to regulate, cater for, or provide for the management of mentally ill persons and their affairs. The state of the law is rather insufficient to meet the challenges of proper regulation of mental health. Just about 3.3% of government’s annual expenditure on health is earmarked for mental health in a country where the proportion of budget on health to the Gross Domestic Product (GDP) is about 3.4%. Most resources on mental health in Nigeria are provided by government. The total per capital expenditure on health is US$31 and out of this, US$7 represents government expenditure. Out of the proposed health budget and that granted to the mental health department, 90% of this has been put into recurrent maintenance of mental hospitals only. The infinitesimal amount dedicated to mental health cannot be enough to embark on any new capital infrastructural on mental health; rather, it has been used to maintain the ones already existing.  It is noteworthy to state that our mental hospitals are in deplorable condition. In Nigeria today, there are seven (7) mental health facilities, six (6) of which are owned by the Federal Government.  The hospitals are poorly equipped with a total of 1092 beds. Even other developing African countries have better equipped hospitals with a better ratio of medical personnel to patients and patients to beds. The Nigerian government owned mental health facilities are inadequately funded and underdeveloped but they can boast of about 95% of trained Psychiatrists while the remaining 5% work for Non-Governmental Organizations, for profit and private practice. As such there is a pool of expertise in government owned institutions that are not being maximized as they should be to boost the mental health sector.

LEGAL FRAMEWORK

The legal framework for regulation of mental health and their patients are moribund as even subsisting laws are inadequate. The operative law in Nigeria is the Lunacy Act of 1958. New efforts aimed at formulating a new law to include current trends and advances in relation to laws of other countries have not been successful.  Nigeria formulated mental health policies in 1991 with objectives to advocate, promote, prevent, treat and rehabilitate mentally ill patients. Most of these objectives have not been implemented effectively.

Nigeria’s legal framework regulating the affairs of mentally ill persons as aforesaid is largely based on the repealed Mental Health Act 1959 of the United Kingdom. This Law has been replaced with the Mental Health Act 1983 (United Kingdom) and the current law now in the United Kingdom is the Mental Health Act 2007 with accompanying amendments.

Mental disorder was defined in the United Kingdom 1983 Mental Health Act as any disorder or disability of the mind excluding those of severe mental impairment and psychopathic disorder which were included in the lunacy laws in force in Nigeria as a result of the 1959 Act which was copiously enacted. This definition has further widened the term and persons that fall under the definition of mentally disordered persons as this category is now not limited to just persons suffering from the now omitted ailments but also other persons that were not or might not have been envisaged under the 1959 Act with exceptions to learning disability or alcohol dependence. A lunatic, as stated in the Public Trustee Law for the purpose of the management of his property and affairs is described as ‘a person found lawfully adjudged to be a lunatic by the magistrate court and includes:

–         Persons suicidal or dangerous to himself; or

–         Persons not dangerous to himself but dangerous to others;

–         Persons incapable of managing himself; or

–         Persons capable of managing himself and not dangerous either to himself or   others, but incapable of managing his own affairs

–         A criminal lunatic while insane or under confinement

–         Any person not detained and not found to be a lunatic, but whom through mental infirmity arising from either disease or age, is not capable of managing his affairs.”

MANAGEMENT OF PROPERTY AND AFFAIRS OF THE MENTALLY DISORDERED

The properties of mentally disordered persons properly so called are issues of private law over which the state has no power over save certain instances known to law. However, mentally disordered persons are subject to state protection and therefore there is a state responsibility to handle their affairs. As such, in the United Kingdom, the Mental Health Act 1983 provides that the affairs of the mentally disordered persons (including their properties and belongings) are to be handled by the state through Lord Chancellor who has the power to nominate Judges of the Supreme Court to manage such properties and affairs. The Supreme Court has created a Court called the Court of Protection to be in charge of this. The Court has a head called the Master of the Court of Protection. The existence and the powers of the Court of Protection are entirely statutory by virtue of the Mental Health Act 1983. Section 17 of the High Court law of Lagos State states as follows:

“…the High Court shall have the powers and authorities of the Lord Chancellor of Great Britain in relation to the appointment and control of guardians of infants and their estate, and also keepers of the persons and estates of idiots, lunatics and such as being of unsound mind are unable to govern themselves and their estates”

By the above, the High Court of Lagos possesses the power of the Lord Chancellor to the extent that it can appoint guardians for infants and to manage and control the affairs and estate of lunatics who are unable to govern such themselves. Before such management can be embarked on, it must be shown that the subject is incapable of managing his property and affairs by himself through medical evidence given by a registered medical practitioner.

Therefore, the equivalent of the Court of Protection is to be found in the powers of the High Court to appoint a ‘committee in lunacy’ entrusted with the management of the estate of the patient. Where it is believed that such a person is incapable of managing and administering his property and affairs. Powers conferred on the High Court can be exercised after considering medical evidence proffered by the medical expert that such a person is incapable of managing and administering his property and affairs.

While the practice and procedure of the Court of Protection in England has significantly developed over the years, same cannot be said of the Nigerian practice even though there are relevant but insufficient provisions in the High Court laws of Lagos State and indeed other states of the federation. See for example, Section 11 of the High Court law of Oyo State 2000.

 In the United Kingdom, there are settled principles with regards to the powers of the Court of Protection. By section 16(1) of the Mental Capacity Act 2005, such power (which by section 20(1) includes the power of the deputy acting with the Court’s authority) becomes exercisable only when the Patient lacks mental capacity in relation to his or her personal welfare, property and affairs. Other powers of the Court includes, the power to make declarations concerning capacity which is a new power of the Court of protection granted under section 15 of the Mental Capacity Act 2005, statutory power of the Court under section 49 of the Mental Capacity Act 2005 to call for a Report from a publicguardian, a Court of protection visitor, a local authority or an NHS (National

Health Service) body, power in relation to the Patient’s welfare, property and affairs under sections 17 and 18 of the Mental Capacity Act 2005 which include choice of patient’s residence, contact persons of the patient, consent to treatment, choice of medical practitioner for the patient, power in relation to enduring and lasting powers of attorney as well as Independent Mental Capacity Advocates who are service officials to advice, assist and safeguard persons that lack the capacity to make a specified decision at a particular time, are facing a decision on a long term move or serious medical treatment or have nobody else to be able to represent them as stated in sections 35-41 of the Mental Capacity Act 2005. The practice has also settled principles relating to proceeding parties thereto and the manner of notices to be issued. Furthermore practice rules are established governing hearings, taking of standings, evidence, enforcement of decisions and appeals. With regard to appointed Deputies, principles governing the mode of application, the structure, duties and power of the Deputy and the termination of the Deputy’s tenure are also firmly established.

THE NEED FOR URGENT ACTION

 One of the most common situations in Mental Health situations in most jurisdictions is the presence of Lunatics on the streets without care or any attempt to take them in and treat them. In the Nigerian Jurisdiction, there are no provisions for taking such Lunatics in or detaining them. As such they sleep on the streets and in public properties causing danger to themselves and innocent passersby. In the United Kingdom under the Mental Health Act 1983, Section 136 provides for a Lunatic to be removed from places where the public have access to by a Constable for the protection of the Lunatic and the public. Such Lunatic will be removed to a ‘Place of Safety’. Section 135 defines a Place of Safety as a residential accommodation provided by a local social service authority under part III of the National Assistance Act 1948 and under paragraph 2 of the National Health Service Act 1977, a hospital as defined by the act, a police station, mental nursing home, residential home for the mentally disordered persons or any other suitable place where the occupier willfully receives the patient.

It is indeed a sad commentary that the Nigerian legal system has not developed a proper and efficient legal framework to protect the most vulnerable of its citizens and it is about time, legislation is encouraged in this field. We have not developed our legal framework while social distaste and ostracization remains the unfortunate order of the day in Nigeria with regards to the mentally ill.

This article is dedicated to all the victims of abuse who have been let down by the system and who are still waiting for justice. However these people may still be better off than the likes of Rashidi Yekini who unfortunately may have been let down by the nation he served with his all.

SGD:        CHIEF BOLAJI AYORINDE SAN

        CHAIRMAN LEGAL AID COUNCIL OF NIGERIA

FORMER PRO-CHANCELLOR AND CHAIRMAN, GOVERNING COUNCIL, LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY OGBOMOSHO.

[1] Medical Supervisors were persons required to certify persons as lunatics

[2] Insanity in Nigeria, Care and Treatment of the mentally ill in British west African colonies, On the Psychiatric services of Nigeria

[3] In civil matters

[4] In criminal matters

SOURCE

thelearnedfriends.com

04 May, 2018

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