Purohit and Moore v. The Gambia

Complainants P and M were mental health advocates, who brought the complaint on behalf of patients detained at Campama, a psychiatric unit of the Royal Victoria Hospital, and existing and future mental health patients detained under the Mental Health Acts of the Republic of The Gambia. Complainants alleged that legislation governing mental health in The Gambia was outdated. In particular, within the Lunatics Detention Act (LDA), there was no definition of what a ‘lunatic’ is, and there were no provisions or requirements establishing safeguards during the diagnosis, certification and detention of patients. The LDA did not contain any provisions for the review or appeal of a detention order or any remedy for detention made in error or wrong diagnosis or treatment. The LDA also did not lay out any fixed periods of detention which, coupled with the lack of review, could result in indefinite detention. There was overcrowding in the psychiatric unit and no requirement of consent to treatment or subsequent review of continued treatment. There was also no independent examination of administration, management and living conditions within the psychiatric unit itself. Patients within the psychiatric unit were not allowed to vote and there was no provision for legal aid or compensation for violations under the LDA.

On 7 March 2001, the complainants filed a complaint with the Commission alleging that the LDA was in violation of Article 2 (non-discrimination), Article 3 (equal protection), Article 5 (the right of human dignity and recognition of legal status), Article 6 (the right of liberty and security of the person, and prohibition of arbitrary arrest or detention), Article 7(1)(a) and (c) (right to an appeal and defense), Article 13(1) (right for every citizen to participate freely in the government), Articles 16 and 18 (right to health).

[Adapted from INTERIGHTS summary, with permission]

The Commission held that:

(1) by ratifying the African Charter, the state undertook an obligation to bring its domestic laws and practice in conformity with its provisions;

(2) the LDA was enacted in 1917 and the last amendment was effected in 1964, and the LDA should have long been amended to bring it in line with changed circumstances;

(3) Articles 2 and 3 form the non-discrimination and equal protection provision of the African Charter;

(4) the complainants contended that the policy and practice of detaining persons regarded as mentally ill indefinitely and without due process violated Articles 2 and 3;

(5) although the state contended that patients had access to legal redress, the category of persons that would be detained as voluntary or involuntary patients under the LDA were likely to be people picked up from the streets or be from poor backgrounds who could not afford legal counsel and for whom legal aid would not be available  (as legal aid was only available to persons charged with capital offences);

(6) as such, the Government of The Gambia failed to meet the standards of non-discrimination and equal protection of the law as set forth in Articles 2 and 3;

(7) pursuant to Article 5, human dignity was an inherent right which every human being was obliged to respect by all means possible and confers a duty on every human being to respect this right;

(8) in violation of Article 5, the LDA branded persons with mental illness as ‘lunatics’ and ‘idiots’, terms which dehumanise and deny them any form of dignity;

(9) Article 6 guaranteed every individual the right to liberty and security of the person and deprivation of such liberty was only acceptable if it was authorised by law and was compatible with the obligations under the African Charter;

(10) Article 6 also prohibited arbitrary arrest or detention;

(11) the LDA authorized the detention of persons believed to be mentally ill or disabled on the basis of opinions of general medical practitioners;

(12) general medical practitioners may not be actual experts in the field of mental healthcare and as such, there was a possibility that they could make a wrong diagnosis which resulted in a person being institutionalized;

(13) the LDA did not provide for review or appeal procedures, preventing institutionalised persons from challenging a wrong diagnosis;

(14) while this situation falls short of international norms, it was not in violation of Article 6 of the African Charter because Article 6 was not intended to cater for situations where persons in need of medical assistance or help are institutionalised;

(15) Article 7 provided that every individual should have the right to have his cause heard, which included the right to an appeal and a right to defense;

(16) by not providing for an appeal or review against an order of detention, the LDA is in violation of Article 7(1)(a) and (c);

(17) the right to vote provided by Article 13(1) was extended to ‘every citizen’ and denial could only be justified by reason of legal incapacity or lack of citizenship;

(18) not permitting the persons detained at Campama the right to vote without providing any objective basis within the legal system was in violation of Article 13(1);

(19) mental health patients should be accorded special treatment which would enable them not only to attain but sustain their optimum level of independence and performance in accordance with Article 18(4);

(20) the scheme of the LDA was lacking in therapeutic objectives as well as providing matching resources and programmes of treatment, which was in violation of Article 18(4);

and (21) finding the Republic of The Gambia to be in violation of Articles 2, 3, 5, 7(1)(a) and (c), 13(1), 16 and 18(4) of the African Charter, the government was requested to (a) repeal the LDA and replace it with a new legislative regime for mental health compatible with the African Charter and international standards and norms for the protection of mentally ill or disabled persons as soon as possible; (b) create an expert body to review the cases of all persons detained under the LDA and make appropriate recommendations for their treatment or release; and (c) provide adequate medical and material care for persons suffering from mental health problems in The Gambia. The Commission requested that the government report back to the African Commission in the next periodic report in terms of measures taken to comply with this decision.

[Adapted from INTERIGHTS summary, with permission]

"61. The African Commission maintains that mentally disabled persons would like to share the same hopes, dreams and goals and have the same rights to pursue those hopes, dreams and goals just like any other human being. Like any other human being, mentally disabled persons or persons suffering from mental illnesses have a right to enjoy a decent life, as normal and full as possible, a right which lies at the heart of the right to human dignity. This right should be zealously guarded and forcefully protected by all States party to the African Charter in accordance with the well established principle that all human beings are born free and equal in dignity and rights."

"71. It is evident that the LDA does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate Medical Certificates, which constitute the legal basis of their detention. These omissions in the LDA clearly violate Articles 7(1)(a) and (c) of the African Charter."

"81. More so, as a result of their condition and by virtue of their disabilities, mental health patients should be accorded special treatment which would enable them not only attain but also sustain their optimum level of independence and performance in keeping with Article 18(4) of the African Charter and the standards applicable to the treatment of mentally ill persons as defined in the Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care."

"83. In the instant case, it is clear that the scheme of the LDA is lacking in terms of therapeutic objectives as well as provision of matching resources and programmes of treatment of persons with mental disabilities, a situation that the Respondent State does not deny but which never-the-less falls short of satisfying the requirements laid down in Articles 16 and 18(4) of the African Charter."

"84. The African Commission would however like to state that it is aware that millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right. Therefore, having due regard to this depressing but real state of affairs, the African Commission would like to read into Article 16 the obligation on part of States party to the African Charter to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind."