The Silent Pandemic: Legislative Reforms to Protect Nigerian Minds During COVID-19
Officials tackling the coronavirus pandemic in Nigeria have recognized the impact of COVID-19 on citizens’ mental health. In June, Nigeria’s Chairman of the Presidential Taskforce on COVID-19, Boss Mustapha, noted that stigmatization and mental health were among the greatest challenges to the national response. The Nigeria Centre for Disease Control (NCDC) Director-General echoed this notion, stating that stigma and its effects on mental well-being were impacting potential contacts of COVID-19 from reporting themselves for tests. This rising stigmatization helps fuel spread of the disease and worsens the mental health of infected and affected populations, as was the case with other outbreaks like the 2003 SARS epidemic. These sentiments are welcome and represent an evolution from the beginning of pandemic preparedness when psychological distress was not elevated as a significant issue confronting epidemiological response.
However, public prioritization has not translated to policy reform that would bolster Nigeria’s mental health infrastructure in the wake of a pandemic that is still raging. On December 12, Nigeria registered 796 new infections, its highest single-day total of COVID-19 cases since the beginning of an outbreak that continues to leave Nigerians psychologically vulnerable as they confront the reality of a second wave. Presently, the mental health field is governed by the Lunacy Act of 1958, legislation that dates back to Nigeria’s colonial era. To date, no democratically elected civilian administration has enacted a law focused on protecting mental health.
The National Assembly is currently reviewing new mental health legislation. This provides a rare opportunity to strengthen the capacity and regulatory environment for those who experience mental health distress in the wake of COVID-19. Late last year, in October, Senator Ibrahim Oloriegbe, Chair of the Senate Committee on Health, introduced the Mental Health and Substance Abuse Bill 2019. November saw the Senate pass it for second reading. Progress continued on the mental health bill this February when the upper chamber held a public hearing on the proposed law.
To ensure the bill guarantees quality care and does not perpetuate stigmatization of mental health, a number of amendments should be made so it adequately supports public health emergencies and persons with disabilities (PWDs). It is also critical the law is reformed to uphold international accords Nigeria has acceded to. In 2018, at the Global Disabilities Summit, the government made a commitment to the world that it would recognize the equal rights of PWDs, which included persons with mental health conditions and psychosocial disabilities. Nigeria also ratified the United Nations Convention on the Rights of People with Disabilities (UN CRPD) in 2007 and its Optional Protocol in 2010, affirming the full inclusion and participation of people with psychosocial and intellectual disabilities.
There are several components of the proposed legislation that fail to meet these ideals and can be improved. For instance:
- Amending the title— which currently reads the Mental Health and Substance Abuse Bill 2019. This designation continues to link mental health with substance abuse, perpetuating stigma, and misinformation that there is an inextricable link between the two. Additionally, that those facing mental health conditions are all alcoholic or inebriated and thus the arbiters of their own condition. Mental health conditions have various causes that depend on the situation and the individual, but 84% of Nigerians believe that the misuse of drugs and other psychoactive substances is the most common source of these conditions. Instead, substance abuse should be a subsection of the bill, removed in any name of institutions established by the regulation, and efforts should be reinforced to address it through other laws and agencies.
- Removing terminology — that is inconsistent with a human rights approach to disability like ‘persons with mental disorder,’ ‘mental ill-health,’ ‘illness,’ ‘disorder,’ ‘mental impairment,’ ‘mentally incapacitated,’ and ‘right to a decent life as normal and full as possible.’ When mental health conditions are discussed as deviance, this cements stigma and discrimination, reinforcing harmful stereotypes that perpetuate a culture of threats, persecution, and dehumanization on that, which is abnormal.
- Depriving rights based on capacity — Part IV, Section 24, Clause 4 of the bill allows for individual restrictions, indicating:
A person with mental and substance use disorder has the right to enjoy a decent life as normal and as full as possible which includes, the right to education, vocational training, leisure, recreational activities, full employment and participation in civil, economic, social, cultural and political activities and any specific limitations on these rights shall be in accordance with an assessment of capacity.
Other areas of the bill limit the right to property, for instance, Part VII, Section 46, Clause 1:
The provisions of this part shall apply in respect of a person, who in the considered opinion of a High Court Judge based on competent medical evidence is incapable by reason of mental disorder of managing and administering his property and affairs; and a person whom the Judge is satisfied to refer to as a patient for purpose of this Part of this Act.
(1) The judge may, with respect to the property and affairs of a patient, door secure the doing of all such things as to him appear necessary or expedient in respect to property:
These stipulations allow for a restriction of human rights on the “basis of assessment of capacity.” Instead, the law should permit PWDs to have ‘supported decision-making’ through formal or informal methods that allow them to make critical decisions related to medical treatment, property, and other areas important to their lives. Article 12 of the UN CRPD instructs State parties to take appropriate measures to provide access to the support PWDs may require in exercising their legal capacity.
- Detention (involuntary admission) — is allowed on the basis of disability, instead of PWDs being treated on an equal basis under the law. This is codified in sections like Part V, Section 29, Clause 1 stating:
(1) A person meets the criteria for involuntary admission if there is reason to
believe the person is suffering from mental disorder and because of such
(a) Has inflicted, or threatened or attempted to inflict, or unless
admitted is likely to inflict physical harm on himself or another; or
(b) Is in need of treatment for mental disorder and by reason of the illness, his judgment has been impaired that the person is incapable of appreciating his need for such treatment and of making any rational decision in regard there to.
Statues like this perpetuate a misinformed narrative that people with mental health conditions need to be “detained” to protect the community. Other areas of the bill (Part V: Sections 29, Clause 6 & Sections 37, Clause 2) allow for involuntary admission of anywhere from 72 hours to 1 month purely on suspicion of having a mental health condition. Nigeria’s promise to guarantee the rights for PWDs on an equal basis means committing that “the existence of a disability shall in no case justify a deprivation of liberty,” as stated in Article 14 of the UN CPRD. Individuals should only be detained if they engage in behavior that would constitute a legitimate cause for detention for everyone else.
- Treatment without informed consent — is permitted under the bill by medical officers. Part V, Section 27, Clause 3 indicates that non-lifesaving involuntary treatment can be dispensed if a medical officer determines that a “patient has not consented to the treatment for reason of incapacitation or other.” This lack of specification gives medical practitioners wide latitude to order involuntary treatments. As a result, the bill will allow irreversible procedures like sterilization and psychosurgery to adults, though the law prohibits such instances from being “administered to any child” (Part V, Section 27, Clause 7e). The UN CRPD Committee, established to monitor the convention’s implementation, has held that forced treatment is a violation of the right to equal recognition before the law.
- Incorporate community-based care — Part IX, Section 52, Clause 2 discusses the establishment of a Mental Health Fund, specifying:
… moneys of the Fund shall be applied for:
(a) the skills training of persons with mental disorders;
(b) any matter connected with the rescue, rehabilitation and reintegration of persons with mental disorders;
(c) the construction of facilities for persons with mental disorders; and
(d) training, capacity building and research.
The bill does not specify the nature of the facilities or criteria in which they will be constructed. The legislation should be revised to ensure the Fund focuses on the quality of existing institutions, review of curriculum and proper training of practitioners aligned with international standards, and encouraging local municipalities to support the mainstreaming of psychological care in primary health services. Both Uganda and South Africa’s mental health laws promote a community-oriented approach and can be inspirations to draw upon.
Nigeria’s own National Policy on Mental Health Device Delivery 2013 also advances this globally recognized best practice. It emphasizes the development of community-based services for persons with mental health conditions, but the issue has been putting this prescription into practice. A few states in the country have made modest progress in this regard. For example, the HAPPINESS project uses locally adapted World Health Organization (WHO) tools to train primary care workers in rural communities in Imo State, Nigeria, on screening, assessing, and managing the mental health of patients. Initiatives like this can serve as a model for other states integrating psychological care in general hospital settings when this legislation is implemented.
- Independent monitoring and evaluation — as organizations like Human Rights Watch have documented, there are thousands of persons with mental health conditions living in government-approved centers facing severe abuses, including chaining and torture. To deal with such concerns, the bill creates a Mental Health Review Tribunal (Part III, Section 15, Clause 1-2). Its functions are to protect “the interests of patients who are subject to the provisions” of the Act in areas such as involuntary admission and treatment processes, long-term stay, and intrusive and irreversible treatments. (Part III, Section 17, Clause 1-2). The legislation should specify the independence of the stipulated Mental Health Tribunal. Also, that its representatives regularly visit facilities to ensure prevention of torture and ill-treatment, as is articulated in the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which Nigeria ratified in 2009.
- Nothing about us without us — ratifying the UN CRPD requires Nigeria to more closely involve PWDs and those with knowledge and expertise on the rights of those with psychosocial disabilities in the development, implementation, and monitoring of the legislation. The affected group should be at the helm in creating policies and solutions that impact them. Consulting widely with stakeholders is one of the reasons South Africa has had success with its mental health care regulation. The country did not just involve its Ministry of Health but included the Ministry of Finance, family associations, and other major mental health organizations critical to the law’s enforcement.
The National Mental Health Action Committee of Nigeria’s Federal Ministry of Health represents one focal point that engages a diverse set of stakeholders on mental health advocacy. Last year, the Committee, with the support of WHO, reviewed the proposed mental health legislation and revised it to respond to the demographics’ needs better. Their revised version was not used because policymakers did not want to reengage parliamentarians on a different draft of the bill early in the legislative process. If this mental health law is to succeed, then concerns of the constituents that will implement it — like this Committee and the Ministry of Health — must be incorporated.
Integrating these suggestions into the proposed bill will help Nigeria become a leader in protecting those with mental health conditions and aid it in joining the ranks of South Africa (2002) and Ghana (2012), who have recently updated their regulations and have the most progressive legislation in Africa. Since the National Assembly is currently reforming the law as it reviews submissions from the public hearing, now is the perfect time to adopt these recommendations to ensure the law enshrines a rights-based approach to mental health. Passing this legislation is critical — at stake is not just the well-being of our society’s most vulnerable, but also our ability to mitigate the impact of COVID-19.
Chime Asonye is a lawyer and founder of the online community, Nigerian Mental Health. Hauwa Ojeifo is the founder of She Writes Woman, an organization supporting mental health awareness in Nigeria.
By Chime Asonye and Hauwa Ojeifo