The Mental Health Amendment Act 2022 - as Plain Text by MWakili

NATIONAL COUNCIL FOR LAW REPORTING LIBRARY SPECIAL ISSUE Kenya Gazette Supplement No.

111 (Acts No.

27) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2022 NAIROBI, 27th June, 2022 CONTENT Act PAGE 327 The Mental Health (Amendment) Act, 2022 NATIONAL COUNCIL FOR LAW REPORTING RECEIVED 23 SEP 2(i22 31CO, 443 -)( NAIROBI, KENYA TEL: 2719231 FAX: 2712694 , PRINTED AND PUBLISHED BY THE GOVERNME* PRINTER, NAIROBI 327 THE MENTAL HEALTH (AMENDMENT) ACT No.

27 of 2022 Date of Assent: 21st June, 2022 Date of Commencement: 11th July, 2022 AN ACT of Parliament to amend the M ental H ealth Act; and for connected purposes ENACTED by the Parliament of Kenya, as follows Short title.

1.

This Act may be cited as the Mental Health (Amendment) Act, 2022, Amendment of the 2.

The Mental Health Act, hereinafter referred to as long title in Cap ti tl e and 248.

the principal Act, is amended by deleting the long substituting therefor the following new long title An Act of Parliament to provide for the prevention of mental illness, to provide for the care, treatment and rehabilitation of persons with mental illness; to provide for procedures of admission, treatment and general management of persons with mental illness; and for connected purposes.

Amendment of 3.

The principal Act is amended in section 2 by section 2 of Cap 248.

(a) deleting the following Director means the Director of M edical Services; mental hospital means a mental hospital established under section 9; person in charge, in relation to a mental hospital, means the person for the time being authorized by the Director to be in medical charge of the mental hospital; Person suffering from mental disorder means a thi s person who has been found to be so suff ering under Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol of substance abuse; (b) inserting the following definitions in their proper alphabetical sequence Cabinet Secretary means the Cabinet Secretary for the time being in charge of matters relating to health; 328 No.

27 2022 Mental Health (Amendment) care treatment and rehabilitation includes preventive and after care services such as counselling psychotherapy and vocational care; county executive committee member means the in county executive conmiittee member for the time being charge of matters relating to health; u Director means the Director-General for Health; ii guardian in relation to a minor with mental illness i ncludes- (a) the parents of the minor; (b) a person who has parental responsibility over the minor; (c) a person who has legal custody of the minor; (d) in the absence of a parent, a person who has care and control of the minor; or (e) in the absence of a parent or a person who has care and control of the minor, a person who has actual custody of the minor; health care provider means a person who provides health care services and includes a mental health practitioner; Health Information System means the Health No.

21 of 20 17.

Information System established by the Ministry of Health under section 105 of the Health Act; and mental health facility means a facility registered licensed by the relevant medical regulatory body to provide mental he^th services; mental health practitioner means a qualified and duly registered Cap 253.

(a) psychiatrist under the Medical Practitioners and Dentists Act; (b) medical practitioner under the Medical Practitioners No.

14 of 20 14.

and Dentists Act; (c) psyc|iologist under the Counsellors and Cap 260.

Psychologists Act; (d) clinical officer under the Clinical Officers (Training, Registration andlLicensing) Act; 329 No.

27 Mental Health (Amendment) 2022 and (e) counsellor under the Counsellors Psychologists Act; and (f) psychiatric nurse under the Nurses Act; mental health services means the promotion of of mental wellbeing, prevention, management or alleviation disease, illness, injury and other physical and social determinants affecting mental health in individuals; mental health unit means a place or a section within a health facility designated to provide mental health services; person in charge in relation to a health facility, means the person for the time being authorized by the or the Director, in the case of a National Referral Hospital, County Executive Committee Member, in the case of a the county health facility, to be in medical charge of respective health facility; person with mental i llness means a person to be diagnosed by a qualified mental health practitioner suffering from mental illness, and includes (a) a person diagnosed with alcohol or substance use disorder; and (b) a person with suicidal ideation or behaviour; rehabilitation means the multidisciplinary approach aimed at supporting persons with psychosocial, intellectual towards and cognitive disabilities, access to services geared their treatment and recovery process; representative means - (a) a spouse of that person, or if unable or unwilling; (b) the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling; (c) a parent of that person, or if unable or unwilling; (d) a relative of that person, or if unable or unwilling; or (e) a person under whose care or charge the person with mental illness is; 330 No.

27 2022 Mental Health (Amendment) 31 supporter means a person appointed under section by the person with mental illness to make decisions on to the behalf of the person with mental illness according will and preference of the person with mental illness.

I nsertion of 4.

The principal Act is amended by inserting the Section 2A in Cap following new sections immediately after section 2 248.

Purpose of the 2A.

The purpose of this Act is to Act.

provide a framework to (a) promote the mental health and well-being of all persons, including reducing the incidences of mental illness; (b) co-ordinate the prevention of mental illness, access to mental health care, treatment and rehabilitation services of persons with mental illness; (c) reduce the i mpact of mental illness, including the effects of stigma on individuals, family and the community; (d) promote recovery from mental ill ness and enhance rehabilitation and integration of person with mental illness into the community; (e) ensure that the rights of a person with mental illness is protected and safeguarded; (f) adopt a holistic approach to community-based mental health services; and (g) promote the provision of mental health services in primary health f acilities.

Guiding pri nciples.

2B.

All persons under this Act shall, in the performance of their functions under this Act, be guided by the following principles (a) the promotion and fulfilment of the right to the highest attainable 331 2022 Mental Health (Amendment) No.

27 Standard of health as enshrined under Ar ti cl e43 of t he Constitution; (b) preservation of the freedom and dignity of every human being; (c) the fair and equitable treatment of persons with mental illness; (d) the protection of persons with mental illness from discrimination; (e) accountability of duty bearers and in the transparency implementation of this Act; and (f) co-ordinated public participation inthef orm ulation and implementation of policies and plans related to care and protection of persons with mental illness; and (g) that interventions for the care and protection of persons with mental illness are based on objective i nf orm ation and m ethods and monitoring mechanisms and regular evaluations are established, thus ensuring transparency in the management of facilities and care of persons with mental illness.

Insertion of Part lA in Cap 248.

5.

The principal Act is amended by inserting the following new Part immediately after Part I PART lA- OBLIGATIONS OF THE NATIONAL AND COUNTY GOVERNMENTS Obligations of 2C.

The National Government national shall government.

(a) provide the necessary resources for the provision of mental health care and treatment at N ational referral health facilities; 332 No.

27 2022 Mental Health (Amendment) (b) collaborate with the county governments in (i) the development of the necessary physical and technological i nfrastructure for the care, rehabilitation and provision of health services to persons with mental illness; (ii) expanding and strengthening community and family-based care and support systems for persons with mental illness; (iii)expanding and strengthening community and family-based care and support systems for vulnerable persons; (c) put in place mechanisms to ensure the rights of persons with mental ill ness are realised including mechanisms for outpatient comprehensive cover for mental health care and continued care for mental illness; (d) adopt a comprehensive national strategy and plan of action and policies to promote the realisation of the rights of persons with mental illness under Article 43 of the Constitution and put in place measures designed to improve the general welfare and treatment of persons with mental ill ness; (e) develop standards to be maintained by mental health faciUties including (i) the number of qualified health professionals required to serve a mental he^th unit including the 333 No.

27 Mental Health (Amendment) 2022 number of psychiatrists, clinical psychologists, officers who specialise in psychiatric psychiatry, counsellors, nur se s.

occupational therapists and allied health workers; (ii) the type and quantity of diagnostic and therapeutic equipment required by a mental health unit; and (iii) the medication and methods of care, rehabilitation and treatment to be administered to persons with mental illness; community-based (f) develop programmes for the continued care and rehabilitation of persons with mental illness; (g) promote research, data collection, analysis and the sharing and dissemination of information on the welfare of persons with mental illness in the Republic; sensitization out (h) carry programmes on and promote access to information on the care and management of persons with mental illness; (i) develop and implement strategies and progranmies to curb stigma related to mental health and mental health care and treatment; and (j) implement programmes and strategies to guarantee students access information on mental health, mental health care and tre at ment.

334 No.

27 Mental Health (Amendment) 2022 Obligation of 2D.

(1) The County governments the County shall govern ments.

(a) provide mental health care, treatment and rehabilitation services within the county health facilities, in particular ensure that level 2, 3, 4 and 5 county health facilities set aside dedicated clinics to offer outpatient services for persons with mental illness; care (b) provide community based and treatment for persons with mental illness including initiating and organizing conununity or family based programmes for the care of persons suffering from mental illness; (c) implement the national policy and strategies relating mental illness and mental healthcare; (d) allocate funds necessary for the provision of mental healthcare in the county budgets; (e) provide appropriate resources, facilities, services and personnel capable of dealing with mental illness at the conununity level; (f) formulate rehabilitation programmes suitable for persons with mental illness and provide access to after-care service by persons with mental illness after discharge fr om mental health facilities; (g) formulate and implement county specific programmes to deal with stigma associated with mental illness; (h) ensure mental health interventions at county level 335 2022 Mental Health (Amendment) No.

27 (i) are comprehensive and include prevention, early treatment.

i ntervention, care and continuing prevention from relapse; (ii) target persons at risk of developing mental i llness including children, women, youth and elderly persons; (iii) target persons affected by catastrophic incidences and emergencies; and education, (iv) include awareness and training on mental health promotion and i nterventions; and (i) provide adequate resources to ensure a person with mental illness l ives a dignified l ife outside the mental health unit by financing efforts towards reintegrating the person into the community.

(2) In ensuring that the county governments meet their obligations under subsection ( 1), the county executive committee member in each county shall (a) advise the Governor on all matters relating to the status of mental health and m ental illness in the county; (b) develop and implement county specific programmes that promote the rights of persons with mental illness in the county; (c) monitor and evaluate the progress by the county in ensuring that Article 43 (1) (a) of the Constitution is realized; (d) initiate and organise community or family based programmes for 336 2022 No.

27 Mental Health (Amendment) the care of persons with mental ill ness; (e) co-ordinate the implementation of programmes relating to persons with mental illness in the county developed by National Government; (f) prepare and pubUsh reports containing statistical or other toi nf orm ation relating programmes and effect of the programmes carried out by the county in relation to persons with mental illness; (g) advise the Board on the implementation of county specific programmes on mental health; (h) collaborate with the Board and such other relevant agencies in ensuring a co-ordinated approach in the delivery of mental health services in the respective county; (i) undertake the collection and dissemination of data on mental health in the respective county; and (j) co-ordinate the activities of all institutions, private sector institutions, non-governmental organisations and community- based organisation involved in the delivery of mental health services in the county.

(3) The county executive committee member may delegate some or all the functions under this section, to a county mental health council or an officer w ithin the county public service.

County mental 2E.

(1) There is established in health councils.

each county government a county mental health council.

337 2022 Mental Health (Amendment) No.

27 (2) The county mental health council shall consist of (a) the county director of health appointed under section 19 of the Health A ct; (b) the chairperson to the county No.

21of 20 17.

education board established under section 17 of the Basic A ct ora Education representative; and No.

14 of 20 13.

(c) five persons nominated by the county executive committee member by notice in the Gazette.

(3) The county executive committee member when making appointments under subsection 2 (c) shall ensure (a) that one person is nominated from each of the following organisations (i) a body representing caregivers of persons with mental illness in the county; and (ii) a body representing the health mental practitioners in the county; and one third gender (b) the principle is observed.

(4) The members of the county mental health council, except the person appointed under subsection (2) (a) and (b) shall serve for a single term of three years and shall not be eligible for reappointment.

(5) A member of the county mental health council shall cease to be member if that person 338 2022 Mental Health (Amendment) No.

27 (a) is absent fro m three consecutive meetings of the council wi thout th e permission of the chairperson; (b) resigns in writing, addressed, to the county executive committee member; (c) is convicted of a criminal offence and sentenced to a term of imprisonment of not l ess than six months; (d) is declared bankrupt; (e) is removed by the county executive committee member for being unable to perform the functions of the office by reason of mental or physic^ infirmity; or (f) dies.

(6) Before the removal of a member under subsection (5)(e), the county executive committee member shall request the Council to (a) investigate the circumstances giving rise to the proposed removal; and (b) make recommendations on whether or not the member should be removed fr om office.

Amendment of 6.

The Principal Act is amended by deleting Part 11 Part II of Cap 248.

and substituting therefor the following new Part 339 2022 Mental Health (Amendment) No.

27 PART n - RIGHTS OF PERSONS WITH MENTAL ILLNESS Rights of persons 3.

Every person with mental illness with mental has the ri ght to ill ness.

(a) fully participate in the affairs of tf ie community in any position suitable and based on the persons interests and capabilities; (b) access medical, social and legal services for the enhancement of the protection of the rights of the person under the Constitution; (c) protection from physical and mental abuse and any form of discrimination and to be free from exploitation; (d) take part in activities that promote the persons social, physical, mental and emotional well-being; and (e) receive reasonable care, assistance and protection from their family and the State.

Right to mental 3A (1) Every person has a right to the health services.

highest attainable standard of mental health services.

(2) A person with mental illness has the right to appropriate, affordable, accessible (a) physical and mental medical health care; (b) counselling; (c) rehabilitation*,, and (d) after-care support.

(3) In the provision of mental health care, pri ority shall be given to community health and outpatient pri mary mental health 340 2022 Mental Health (Amendment) No.

27 care and treatment as opposed to institutionalization of the person with mental illness.

(4) In determining the type of mental health care and treatment suitable under subsection (3), a mental health practitioner shall take in to account the mental health condition of the person with mental illness.

(5) A person in charge shall ensure mental health services are provided in a manner that (a) upholds the dignity of the person with mental illness; (b) takes in to account and allows for treatment options which help a person with mental illness manage the i ll ness and participate in political, social and economic aspects of the persons life; and (c) aims at reducing the impact of mental illness and improving the quality of life of the person with menti illness through the provision of the relevant clinical and non-clinical care.

Consent to 3B.

(1) Every health care provider treatment.

shall, where the person with mentd illness has attained the age of maj ority (a) inform the person with mental illness, of the right of that person to choose an appropriate form of treatment; and (b) obtain the written consent from that person before administering any treatment.

(2) Where the person with mental illness is incapable of making an informed decision on the form of treatment under subsection (1), such consent shall be sought and obtained from 34 1 No.

27 Mental Health (Amendment) 2022 (a) the supporter of the person with mental il lness duly appointed under this Act, who shall, when giving consent, comply with the will and preferences of that person; or (b) the representative of the person with mental illness, where a supporter has not been appointed.

(3) Every health care provider shall, where a person with mental illness is a minor (a) inform the guardian of the minor of the right of the to choose an guardian appropriate form of treatment for the minor; and (b) obtain written consent from the guardian before administering any treatment.

Right to participate 3C.

(1) A person with mental illness intr eatm ent has the right to participate in the planning.

formulation of their treatment plans.

(2) Every mental health practitioner shall, where the person with mental illness (a) has attained the age of majority inform the person, of their right to participate in the f ormulation of their treatment plans; or (b) is a minor, inform the guardian of the minor of the right of the guardian to participate in formulating treatment plans on behalf of the minor.

(3) Where a person with mental illness is incapable of exercising the right under subsection (1) due to the nature of the 342 No.

27 2022 Mental Health (Amendment) illness, the mental health practitioner shall i nf orm the (a) supporter of the person with mental illness duly appointed under this Act, of the supporters right to participate in formulating the treatment plans; or (b) where a person with mental illness has not appointed a supporter, i nf orm the representative of the person with mental il lness, of the representatives right to participate in formulating the treatment plans.

(4) A supporter, while exercising the right to participate in treatment planning under this section, shall comply with the will and preference of the person with mental illness.

Access to medical 3D.

(1) A person with mental illness in surance.

shall have the right of access to medical insurance for the treatment from public or private health insurance providers.

(2) Where the National or county government has in place a medical scheme, the National and county governments shall, in implementing the scheme, take in to account the needs of persons with mental illness and shall ensure that the implementation of the scheme results in the fair treatment of such persons.

(3) An insurance company or person providing health insurance services shall not discriminate against a person with mental illness or subject a person with mental ill ness to unfair treatment in obtaining the necessary insurance cover.

(4) Any person or health insurance company that contravenes the provisions 343 2022 No.

27 Mental Health (Amendment) of this section commits an offence and shall be liable, on conviction, to a fine not exceeding five milUon shillings, or to imprisonment for a term not exceeding three years, or to both.

Protection of 3E.

(1) A person with mental illness persons with has the right to protection from physical, mental illness.

economic, social, sexual and other forms of exploitation.

(2) A person with mental i ll ness shall- (a) not be subjected to forced labour, whether within or outside a health facility; (b) have the right to receive remuneration for any work done, similar to that payable to a person without mental illness.

(3) A person who contravenes the provisions of this section commits an offence and shall be li able, upon conviction, to imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or both.

(4) A person who witnesses any form of abuse against a person with mental illness shall report the incident immediately to the police, the Board or any other competent authority.

Rights to civil, 3F.

(1) Every person with mental political and illness shall have the right to exercise all economic ri ghts.

civil, political, economic, social and cultural rights guaranteed under the Constitution and any other written law in force in Kenya.

(2) The exercise of the rights under subsection (1) shall only be limited to the extent and in the manner provided for under this A ct.

344 No.

27 Mental Health (Amendment) 2022 Right to access to 3G.

(1) A person with mental illness i nformation.

is, pursuant to Article 35 of the Constitution, entitled to i nf orm ation regarding that persons- (a) mental and other health status; (b) clinical records and other related information maintained by a health facilities; and (c) health service providers.

(2) Any representations made by a person with mental illness shall, on the request of the person with mental illness, form part of the records of that person.

(3) Where a person with mental illness is unable to exercise their rights under this section, the following persons shall be entitled to access the information on that persons behalf (a) a duly appointed supporter of the person with mental illness; (b) in the absence of a supporter, the representative of the person with mental illness; or (c) in the case where the person with mental illness is a minor, the guardian of that minor.

(4) The Access to Information Act shall apply to the access of information by a person with mental illness under this A ct.

(5) The Cabinet Secretary shall, in consultation with the Cabinet Secretary to responsible for matters relating information and communication technology and the Commission on Administrative Justice, make regulations on access to information under this section.

(6) Without prej udice to the such generality of subsection (5), regulations may provide for 345 2022 Mental Health (Amendment) No.

27 (a) the procedure for making an application f or access to information under this section; (b) the procedure for the processing of an application and availing the information applied for; and (c) the duration within which the information requested under this section shall be made available.

Right to 3H (1) All information regarding the confidentiality.

care and treatment of a person with mental illn ess is confidential.

(2) A person in charge or a mental health practitioner shall not disclose any confidential i nformation, except where such disclosure (a) is required by law; (b) ordered by a court; (c) is in the public interest; (d) is necessary to prevent the lik eli hood of seri ous harm to the person with mental illness or to others; (e) is necessary for purposes of treating the person with mental ill ness; (f) is authorised by the person with mental ill ness under a duly executed supportive decision making agreement; or (g) is in the best interest of the person with mental illness.

Right to appoint a 31.

(1) A person with mental illness support er.

may appoint a person to act as that persons supporter for the purposes of this Act.

(2) A person with mental illness shall in appointing a supporter, enter in to a 346 2022 Mental Health (Amendment) No.

27 supportive decision making agreement with the proposed supporter.

(3) A supportive decision-making agreement shall be in writing and shall only be valid if (a) at the time of making of the agreement, the person with mental illness w as aw are of their actions; (b) the person with mental illness has signed or affixed their mark to the agreement; (c) the signature or mark of the person with mental illness, is so placed that it shall appear that it was intended to give effect to the writing as a supportive decision making agreement; (d) the agreement is attested by two or more competent witnesses, one of w hom shall be the doctor of the person with mental illness; (e) the person with mental illness signs or affixes their mark to the agreement in the presence of the witnesses; and (f) each of the witnesses signs the agreement in the presence of the person with mental illness.

(4) A person is eligible for appointment as a supporter if that person (a) has attained the age of majority; or (b) is a Public Trustee appointed Cap 168.

under the Public Trustee A ct.

(5) Where a person with mental illness is unable to appoint a supporter under subsection (1), the representative of the person may represent the person with 347 No.

27 Mental Health (Amendment) 2022 mental illness for the purpose of treatment and care under this A ct.

(6) A supporter or representative of a person with mental illness, as the case may be, may appoint another person to represent the person with mental illness in any complaint procedure or appeal.

(7) A person with mental illness, the supporter or representative of a person with mental illness or a person appointed under subsection (5) is entitled, where necessary, to the services of an interpreter who shall be made available free of charge.

(8) A person with mental illness, the supporter or the representative of the person with mental illness, or a person appointed under subsection (5) has the right to (a) produce at any hearing, independent medical reports and such other reports or evidence that are relevant to the status of the person with mental illness; and (b) attend, participate and be heard in any hearing under this Act.

Decisions by the 3J.

(1) A supporter owes a duty of support er.

care to the person with mental illness and shall ensure that any decision made by the supporter is in accordance to the will and preference of the person with mental illn ess.

(2) In determining whether a decision conforms to the will and preference of the person with mental illness the supporter shall (a) consider whether the decision conforms to the longer lasting general beliefs, values and desires that the person with mental illness subscribes to; and 348 No.

27 Mental Health (Amendment) 2022 (b) interpret the will and preference of the person with mental illness taking in to account the rights conferred on such person under the Constitution and international human rights law.

a (3) In exercising the power to make decision in accordance with the will and preference of a person with mental illness, the supporter shall (a) not make a decision that will result in a conflict of interest; and (b) ensure that the decision applies for the shortest time possible and the supporter shall make continuous efforts to have the person with mental ill ness express their own will and preference.

Legal capacity.

3K.

A person with mental illness has a right to recognition before the law and shall enjoy legal rights on an equal basis with other persons in all aspects of life.

Amendment of 7.

Section 4 of the principal Act is amended section 4 Cap 248.

(a) by deleting subsection (2) and substituting therefor the following new subsections (2) The Board shall consist of (a) a chairperson appointed by the President who shall (i) hold a Masters degree in psychiatry or its equivalent from a university recognised in Kenya; and (ii) have at l east ten years' experience, five of which shall be in a managerial position; (b) the Principal Secretary in the ministry for the time being responsible for matters relating to health or a representative appointed in writing; 349 2022 Mental Health (Amendment) No.

27 (c) the Pri ncipal Secretary in the ministry f or the time being responsible for matters relating to finance or a representative appointed in wri ting; (d) four persons, not being public officers, appointed by the Cabinet Secretary by virtue of gender, disability and regional balance, with knowledge and experi ence in mental health care of whom (i) one shall be a psychiatri st nominated by the Medical Practitioners and D entists Board; (ii) one shall be a counsellor or psychologist nominated by the Counsellors and Psychologists Board; (iii) one shall be a nurse nominated by the Nursing Council of Kenya; and (iv) one shall be a clinical officer nominated by the Clinical Officers Council; (e) one person nominated by the Kenya National C ommission on H uman Rights with knowledge and experience in matters related to mental health; (f) two persons, not being Governors, and having knowledge and experience in matters related to mental health, nominated by the Council of County Governors; (g) one county director of health nominated from amongst the forty- seven county directors of health by the Council of Governors; 350 No.

27 Mental Health (Amendment) 2022 (h) the Director of Mental Health, who shall be the secretary to the Board and an ex offi cio member of the Board.

(2A) The Cabinet Secretary shall appoint the members of the Board nominated under subsection (2) (b), (c), (d), and (e) by notice in the Gazette.

(2B) A member of the Board under subsection (2) (b), (c), (d) and (e), shaU hold office for a period of three years and shall be eligible for re-appointment for one further t er m.

(2C) A person is not eligible for appointment as a member of the Board if such person (a) has been convicted of an offence by a court of competent j urisdiction and sentenced to imprisonment for a term of six months or more; (b) is adj udged bankrupt or has entered i nto a composition, scheme or arrangement with the persons creditors; (c) has been removed from office for contravening the Constitution or any other law; or (d) has not met any statutory obligations in the conduct of their affairs; or (e) is disqualified from being appointed under the provisions of any other written law.

(2D) While making the appointments under subsection (2A), the Cabinet Secretary shall take in to consideration (a) the one third gender rule; and (b).

diversity of qualifications of the persons being appointed.

351 No.

27 Mental Health (Amendment) 2022 (2E) The Secretary to the Board shall be the Chief executive officer of the Board.

(2F) The procedure for the conduct of business and affairs of the Board shall be as set out in the schedule, (a) by deleting subsection (3); (b) in subsection (5) by deleting the words for any purpose or function appearing immediately after the words The Board may; and (c) by deleting subsection (6) and substituting therefor the following new subsection (6) Subject to the Schedule, the Board may regulate the conduct of its business and affairs.

I nsertion of new 8.

The principal Act is amended by inserting the sections af ter section 4 in Cap 248 following new sections immediately after section 4 Vacancy in the 4A.

The office of a member of the Board.

Board shall become vacant if the holder (a) dies; (b) resigns from office by notice in writing addressed to the Cabinet Secretary; (c) is adj udged bankrupt or enters into a composition scheme or arrangement with the persons creditors; (d) is convicted of a cri minal offence and sentenced to impri sonment for a term exceeding six months; or (e) is removed from office under any of the circumstances specified in section 4B.

Removal of 4B.

(1) A member of the Board may member of Board be removed from office for fr om Office.

(a) inability to perform the functions of the office arising out of physical or mental incapacity; 352 No.

27 Mental Health (Amendment) 2022 (b) gross misconduct; (c) incompetence or negligence of duty; or (d) any other ground that would j ustify removal from office under any written law.

(2) Before the removal of a member of the Board under subsection (l)(a), the Cabinet Secretary shall request the Board to (a) i nvestigate the circumstances giving rise to the proposed removal; and (b) make recommendations on whether or not the member should be removed from office.

Delegation by the 4C.

The Board may, by resolution Board.

either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of its functions or duties under this Act or under any other written law.

Amendment of 9.

Section 5 of the principal Act is amended section 5 of Cap 248.

(a) by deleting the introductory clause of the section and substituting therefor 5.

The function of the Board shall be (b) by deleting paragraph (a); (c) by deleting paragraph (b) and substituting therefor the following new paragraph (b) advise the National government and county governments on the levels of access to mental health care services in Kenya and the most appropriate strategies and programmes for the care of persons with mental illness and the care effective delivery of mental health services at the national and county levels of government; 353 2022 Mental Health (Amendment) No.

27 (d) by deleting paragraph (c) and substituting therefor the following new paragraphs (c) set standards for the establishment of mental health units; (ca) approve the establishment of mental health units w ithin a national referral hospital; (e) by deleting paragraph (d) and substituting therefor the following new paragraph (d) inspect mental health units and mental health facilities to ensure that they meet the prescribed standards; (f) by deleting paragraph (e); (g) by deleting paragraph (f); (h) by deleting paragraph (g); (i) by deleting paragraph (h) and substituting therefor the following new paragraphs (h) to develop guidelines on emergency treatment of persons with mental illness the procedures to be adhered to during emergency treatment; (ha) to collaborate with the Cabinet Secretary responsible for education in developing and integrating in the education syllabus instructions relating to mental health, i ncluding i nstructions on prevention, treatment, rehabilitation and general i nformation on mental health related illness; and (hb) to prepare reports on prevalence of mental illness in the country and in particular to articulate in the reports an analysis of the specific types of mental illness recorded in every county.

354 No.

27 Mental Health (Amendment) 2022 Amendment of 10.

Section 6 of the pri ncipal Act is amended section 6 Cap 248 (a) by deleting subsection (1) and substituting therefor the following new subsections (1) There is established the office of the Director of Mental Health which shall be an office in the Public Service.

(lA) The Director of Mental Health shall be competitively recruited and appointed by the Public Service Commission.

(IB) A person shall be eligible for appointment as the Director of M ental Health if that person (a) holds a masters of medicine degree in Psychiatry from a university recognised in Kenya; (b) is registered by the Medical Practitioners and Dentists Board as a psychiatri st; (c) has at least ten years experi ence in the practice of medicine, five of which shall be experi ence at senior management level; and (d) meets the requirements of Chapter Six of the Constitution.

(1C) The Director shall (a) be the chief executive and accounting officer of the Board; and (b) be responsible to the Board for the day to day administration of the affairs of the Secretari at and implementation of the decisions ari sing from the Board; (ID) Without prejudice to the generality of the provisions of subsection (1C), the Director shall be responsible for (a) the implementation of decisions of the Board; 355 No.

27 Mental Health (Amendment) 2022 (b) directing and supervising the acts of staff of the Board appointed under subsection (2); (c) the organization, control and Boards management of the secretariat; (d) maintaining accurate records on fin ancial m atters and resource use of the Board; (e) ensuring the preparation and approval of the budget for the required funding of the operational expenses of the Board and the Secretariat to the Board; and (f) performing any other duties as may be assigned by the Board.

A mendment of 11.

The principal Act is amended by deleting section section? of Cap 7.

248.

Amendment of 12.

Section 8 of the principal Act is amended- section 8 of Cap 248.

(a) in subsection (1) by deleting the words and the 9 ? district mental health councils appearing immediately after the words of the Board; (b) by deleting subsection (2) and substituting therefor the following new subsection (2) The remuneration of the Board shall be determined by Cabinet Secretary in consultation with the Salaries and Remuneration Commission.

Amendment of 13.

The principal Act is amended by deleting the heading to Pan rv of Cap 248.

heading to Part IV and substituting therefor the following new heading PART IV-MANAGEMENT OF MENTAL HEALTH UNITS AND FACILITIES, ADMISSION AND TREATMENT OF PERSONS WITH MENTAL 99ILLN ESS Amendment of 14.

Section 9 of the Principal Act is amended section 9 of Cap.

248.

(a) by deleting the word hospitals appearing in the marginal note and substituting therefor the words a health units ; (b) by deleting subsection (2) and substituting therefor the following new subsections 356 No.

27 Mental Health (Amendment) 2022 (2) The Board may, by notice in the Gazette, designate such places within a national referral hospital or any other national government f acility as the Board may consider necessary as a mental health unit.

(2A) A county executive committee member may, by notice in the Gazette, designate such a place within a county health facility in the respective county as the as committee member may consider necessary a mental health unit, (c) in subsection (3) by deleting the words during their term of remand or imprisonment of remand prisoners and convicted criminal prisoners who are persons suffering from mental disorder appearing immediately after the words reception and treatment at the end of that section and substituting therefor the words of prisoners, either remanded or convicted, suffering from mental illness; (d) by deleting subsection (5) and substituting therefor the following new subsection (5) The Cabinet Secretary, in consultation with the Board and the Council of County Governors, shall make rules for the proper management of mental health units, (e) by subsection (6) and substituting therefor the following new subsections (6) A level 3, 4, 5 and 6 health facility which has a mental health unit designated under this section shall provide within it, in-patient and out patient treatment of persons with mental illness.

(6A) Every pri vate mental health facility estabhshed under subsection (9A) (b) shall have facilities for inpatient and out-patient treatment of persons sufferi ng from mental illness, (f) by deleting subsection (7).

I nsen ion of new 15.

The Pri ncipal Act is amended by inserting the sections after following new sections immediately after section 9 section 9 in Cap 248.

357 No.

27 Mental Health (Amendment) 2022 Establishment of 9A.

There may be established mental health f ac ili ti es.

(a) a mental health unit operated and managed by the national government or a county government as the case may be; and (b) a private mental health facility.

Establishment of a 9B.

(1) A person who intends to private mental establish a private mental health facility health facility.

shall submit an application to the relevant medical regulatory body in the prescribed form together with the prescribed fee.

(2) A person in medical charge of a private mental health facility shall be a mental health practitioner who is qualified and duly registered as a (a) psychiatrist; (b) psychologist; (c) clinical officer who specialises in w<- psychiatry; or (d) psychiatric nurse.

r (3) Where an approval is given under subsection (1), the applicant shall notify the county mental health council of the approval in the prescribed form.

(4) The county mental health council shall (a) maintain a register of all private mental health facilities operating in the county; (b) submit a list of all private mental health facilities operating in the county to the Board annually; and (c) inspect private mental health facilities within the respective county and report its findings to the Board for remedial action.

358 No.

27 Mental Health (Amendment) 2022 (5) A private mental health facihty shall be subject to the standards and regulations affecting mental health units under this Act.

(6) The Cabinet Secretary in consultation with executive county committee members and the Board shall (a) develop a template for reports to be submitted to the Board under subsection (4); and (b) prescribe any other standards and regulations that a private mental health facility should adhere to.

Penalty for 9C.

(1) Where a person, procures or fraudulently procurement of attempts to procure registration under registration of section 9B by making, causing to be made, private mental health facility.

producing or causing to be produced any or false or fraudulent representation declaration either orally or in writing, that person commits an offence and shall be liable, upon conviction, if the person is a1 (a) natural person, to a fine not or exceeding four million shilhngs to imprisonment for a term not 1 exceeding ten years, or to both; or (b) body corporate, to a fine not exceeding ten million shillings.

(2) In addition to the penalty imposed under subsection (1), the Board may lodge a complaint with the relevant professional body, to which that person is a member, for the institution of disciplinary proceedings against that person.

Report s by mental health facilities and 9D.

A person in charge of a mental units.

health facility or unit shall submit a monthly report to the Board and the county executive committee member on or (a) the number of voluntary involuntary patients the mental health facility or unit has received; 1 359 No.

27 Mental Health (Amendment) 2022 (b) the number of voluntary or involuntary patients the mental health f acility or unit has discharged; (c) the number of voluntary patients or involuntary patients still under the care of the mental health facility or unit; (d) the number of voluntary or involuntary patients who have died int he course of treatment in the mental health facility or unit; (e) the number of patients who have undergone emergency mental health care treatment; (f) the number of mental health patients admitted on an emergency basis that the mental health facility or unit has discharged, are still under its care or have died in the course of treatment; and (g) the number of patients who have been subjected to restraint and seclusion and the number of times restraint and seclusion has been used as an additional parameter during the course of their tr eatm ent.

(2) The subcounty health records officer shall enter the data submitted under subsection (1) in to the Health Information System within fourteen days of receipt.

Seclusion and 9E.

(1) A person with mental illness r estraint.

shall not be physically restrained or secluded except in accordance with the provisions of this Act, the prescribed procedures and upon authorization by a mental health practitioner.

(2) Physical restraint or seclusion shall only be used where it is the only means 360 No.

27 Mental Health (Amendment) 2022 available to prevent immediate or imminent harm to the person with mental illness or other people.

(3) Physical restraint or seclusion under subsection (2) shall not be prolonged beyond the period which is strictly necessary to (a) administer treatment to the person with mental illness; (b) allow the person with mental illness to co-habit peacefully with other users within the mental health facility or unit as the case may be or the persons family, or with members of the community.

(4) The mental health facility or unit as the case may be shall ensure that all instances of physical restraint or seclusion, their reasons, nature and extent are recorded in the medical records of the person with the mental illness.

(5) A person with mental illness who is restrained or secluded shall be kept under humane conditions and shall be under the care and regular supervision of a mental health practitioner within the facility or unit as the case may be.

(6) The person in charge of a mental health facility or unit as the case may be, shall, within twenty-four hours, give notice of the restraint or seclusion of the person with mental illness to the (a) duly appointed supporter of the person with mental illness; (b) in the case where the person with mental illness has not appointed a supporter, to the representative of the person with mental illness; or (c) in the case of a minor with mental illness, to the guardian of that minor.

361 Mental Health (Amendment) 2022 No.

27 (7) The review of the mental health status of a person with mental illness under seclusion or restraint shall be carried out in accordance with Part X of this A ct.

Inform ed co nsent.

9F.

(1) A mental health practitioner shall not administer mental health care, treatment or admit a person to a mental health facility or unit under this Part without the informed consent of (a) the person with mental illness; (b) the supporter of that person, where the person with mental illness is unable at the particular time to give consent; (c) the representative of that person, where the person with mental illness has not appointed a supporter; or (d) the guardian of the person with mental illness, where the person with mental illness is a minor.

(2) Consent under subsection (1) shall be valid if (a) given freely without threats or improper inducement; (b) there is appropriate and adequate disclosure of al lr el ev ant information relating to the treatment, including i nformation on the type, purpose, li kely duration, side effects and expected benefits of the treatment; (c) choices are given to the persons under subsection ( 1), in accordance with prescribed clinical practice; (d) where consent is sought from a person under paragraph (b), (c) (d), the person is competent to give the consent; and 362 No.

27 2022 Mental Health (Amendment) (e) consent is wri tten and recorded in the records of the person with mental illness.

A mendment of 16.

The pri ncipal Act is amended by deleting the Part V Cap 248.

heading Part V- Vol unt ar y Pat ient s.

Amendment of 17.

The pri ncipal Act is amended by deleting section section 10 Cap 10 and substituting therefor the following new section 248.

Voluntary 10.

(1) A person who presents admission of a patient.

themselves voluntari ly to a mental health faeility or unit for treatment or admission shall be entitled to (a) receive appropri ate care and treatment; or (b) referral where necessary to an appropri ate mental health facility or unit.

(2) Where a minor requires admission to a mental health facility or unit, for treatment under subsection ( 1), the guardian of that person shall submit a wri tten application, in the preseri bed form, to the person in charge of a mental health facility or unit as the case may be, for the admission of the minor.

(3) Upon receiving a person under this seetion, the person in charge of the mental health facility or unit, as the case may be shall, within seventy-two hours, review or cause the condition of the person to be r ev i ew ed.

(4) The Cabinet Secretary shall in consultation with the Board and the Council of County Governors formulate guidelines on (a) the conditions for admitting and retaining a voluntary patient, beyond forty-two days, after the patient becomes incapable of expressing themselves; 363 No.

27 Mental Health (Amendment) 2022 (b) the procedure to be followed by the mental health facility or unit in dealing with a patient admitted under subsection (2), where the guardian of the person with mental ill ness (i) dies; (ii) becomes i ncapable of supporting or representing the person with mental illness as the case may be; or (iii) refuses or neglects to perform their duties under the Act; (c) the conditions and procedure for discharging a patient under this section; and (d) prescribe the form to be filled before voluntary admission.

Amendment of 18.

The principal Act is amended by deleting section section 11 Cap 11.

248.

i Amendment of 19.

The principal Act is amended by deleting section section 12 Cap 12.

248.

Amendment of 20.

The principal Act is amended by deleting section section 13 Cap 13.

248.

Amendment of 21.

The principal Act is amended by deleting the Part VI Cap 248.

heading Part VI-Invol untary PATffi NTS.

Amendment of 22.

Section 14 of the principal Act is amended section 14 of Cap 248.

(a) by deleting the marginal note and substituting therefor the words Involuntary admission; (b) by deleting subsection (1) and substituting therefor the following new subsections (1) A person in charge may, upon application, admit a person with mental illness involuntarily or detain involuntarily a person, having been admitted 364 No.

27 Mental Health (Amendment) 2022 voluntari ly, if a qualified mental health practitioner determines, in accordance with this Act, that the person has a mental illness and (a) because of the mental illness, there is a seri ous lik el i hood of i mmediate or imminent harm to that person or to other persons; or (b) in the case a person whose mental illness is severe and whose judgment is impaired, failure to admit or retain the person is likely to (i) lead to a seri ous deteri oration in the condition of that person; or (ii) hinder the provision of appropri ate treatment that can only be given by or admission to a mental health facility unit in accordance with the pri nciple of the least restri ctive alternative.

(lA) An application under subsection (1) shall be made in the prescri bed form to the person m charge of the mental health facility or unit, as the case may be, by the following persons i (a) a duly appointed support er of the person with mental illness in accordance to the will and preference of the person with mental illness; (b) in the absence of a duly appointed support er, a representative of the person with mental illness; (c) in case of a minor with mental illness, by the guardian of the minor; or or (d) where the person in paragraphs (a), (b) (c) are not available or willing to make the application, by any other person who is carer or relative of that person.

(IB) A person who makes an application under subsection (lA) (d) shall submit together with the application, information regarding (a) the reason why it is not made as provided under subsection (lA) (a), (b) or (c); 365 Mental Health (Amendment) No.

27 2022 (b) the connection of the apphcant with the person to whom the application relates; and (c) the circumstances in which the application is made.

(1C) In the case of involuntary admission under this section, the person in charge shall determine or cause to be determined (a) whether the person admitted suffers from mental illness and the severity of the i ll ness; (b) whether there isal ikelihood of i mmediate or immi nent harm tot he person with mental i ll ness or other persons, and the effect on the health of the person if such person is not admitted or treated; and (c) whether the treatment requires admission or whether it can be administered to the person as an out-patient.

(ID) The person in charge under subsection (1) shall only detain the person for the duration necessary to stabilize the person with mental illness and provide mental health care services to the person, (c) by deleting subsection (2); (d) by deleting subsection (5) and substituting therefor the following new subseetion (5) A determination under subsection (1) shall cease to have effect on the expiration of fourteen days from the last date on which the person to whom the determination relates was examined by a mental health practitioner, (e) by deleting subsection (6) and substituting therefor the following new subsections (6) A person in charge shall not admit an involuntary patient for a period exceeding six months unless the person in charge has (a) carried out or caused to be carried out a review of the status of mental health of the patient; and 366 No.

27 Mental Health (Amendment) 2022 (b) sought or retained the recommendation of the medical health practitioner for the extended admission of the patient.

(6A) Before extending the period of admission under subsection (6) the person in charge shall seek the consent of (a) the supporter of that person, where the person with mental illness is unable at the particular time to give consent; (b) the representative of that person, where the person with mental illness has not appointed a supporter; or (c) the guardian of the person with mental illness, where the person with mental illness is a minor, (f) by deleting subsection (7).

Amendment of 23.

The principal Act is amended by deleting section section 15 Cap 15.

248.

Amendment of 24.

The principal Act is amended by deleting the Part Vn Cap 248.

heading Part VII-Emergency Admission I nsertion of 25.

The principal Act is amended by inserting the section 15A in following new section immediately after section 15 Cap 248.

Conditions for 15A.

(1) An emergency admission or emergency treatment of a person with mental illness admission and tr eatm ent.

shall be administered on a person where (a) there is immediate and imminent danger to the health and safety of the person with mental illness or other people; (b) the nature of danger under paragraph (a) is such that there needs to be urgent care and treatment to stabilize the person with mental illness; and (c) the time required to comply with substantive procedures would cause delay and lead to harm to the person with mental illness or to other people.

367 No.

27 Mental Health (Amendment) 2022 (2) Where the requirements in subsection (1) have been satisfied, the person with mental illness may be (a) admitted to the health facility; or (b) given the necessary treatment based on the assessment carried out by a qualified medical practitioner or other accredited mental health practitioner.

(3) Where emergency treatment is administered and a person is admitted under this section, the person in charge shall, within twenty- f our hours of admission, inform the next kin of the person with mental illness.

(4) Emergency admission or treatment under this section shall not be prolonged for a duration longer than (a) necessary to stabilize and treat the person with mental illness; or (b) in any case for a period longer than seventy-two hours.

(5) Where a mental health practitioner determines that the person with mental illness requires care beyond the period under subsection (4), the mental health practitioner shall obtain written consent f rom (a) a duly appointed supporter of the person with mental illness; (b) a representative of the person with mental illness, where the person with mental ill ness has not appointed a supporter; or (c) the guardian of the person with mental illness, where the person with mental illness is a minor.

Amendment of 26.

Section 16 of the principal Act is amended section 16 of Cap 248.

(a) in subsection (1) 368 No.

27 Mental Health (Amendment) 2022 (i) by deleting the word disorder appearing immediately after the words suffering from mental in paragraph (a) and substimting therefor the word illness; (ii) by deleting the word disorder appearing immediately after the words because of the mental in paragraph (b) and substituting therefor the word illness; (iii) by deleting the word disorder appearing immediately after the words suffering from mental in paragraph (c) and substituting therefor the word illness; (b) by deleting subsection (2) and substituting therefor the following new subsection (2) A pohce officer shall deliver the person m the officers custody under subsection (1), to a health facility within twenty-four hours.

(2A) The police officer shall bear the burden of proof that the person was delivered to a health facility as required under subsection (2).

(c) by deleting subsection (3) and substituting therefor the following new subsection (3) Upon delivery of a person to a health facility under subsection (2), the person in charge of the health facility shall, within seventy-hours (a) examine or cause the person to be examined to determine whether the person should be admitted asan involuntary patient under section 14 or handed over to the care of (i) a duly appointed supporter of the person with mental illness; (ii) in the absence of a supporter duly a appointed under this Act, representative of the person with mental illness; or (iii) in the case where the person with mental illness is a minor, the guardian of the minor; and 369 2022 Mental Health (Amendment) No.

27 (b) make the necessary arrangements for the persons treatment and care.

(d) by deleting subsection (4).

Amendment of 27.

The principal Act is amended in the heading of Part Vm of Cap 248.

Part VIII by deleting the words Armed Forces and substituting therefor the words Kenya Defence Forces.

Amendment of 28.

The principal Act is amended by deleting section section 17 of Cap 248.

17 and substituting therefor the following new section Admission of a 17.

(1) Notwithstanding anything to the member of the contrary in this Act, any member of the Kenya Defence Forces for Kenya Defence Forces may be admitted in observation and to a mental health unit for observation if a tr eatm ent.

medical officer of the Kenya Defence Forces certifies to the person in charge th at- (a) the medical officer has examined the member of the Kenya Defence Forces within a period of forty- eight hours of the admission; and (b) for the reasons recorded in the certificate, the member of the Kenya Defence Forces requires admission to a mental health unit f or observation and treatment.

(2) A member of the Kenya Defence Forces may, subject to subsection (3), be admitted to a mental health unit under subsection (1) for an initial period not exceeding fourteen days from the date of admission.

(3) A person in charge may extend the period of admission after (a) carrying out or causing to be carried out a review of the status of mental health of the member of the Kenya Defence Forces; and (b) seeking the recommendation of two medical practitioners, one of whom shall be a psychiatrist, and the medical officer of the Kenya Defence Forces for the extended 370\.

No.

27 Mental Health (Amendment) 2022 admission of the patient.

(4) A member of the Kenya Defence Forces admitted to a mental health unit under subsection (1) may be discharged from that hospital if two medical practitioners, one of whom shall be psychiatrist, by a letter to the person in charge certifies that (a) they have examined the member of the Kenya Defence Forces within a period of seventy-two hours before issuing the letter; and (b) for the reasons recorded in the letter itis desirable that the member of the Kenya Defence Forces be discharged from the mental health unit and where the mental health unit is not within a Kenya Defence Forces hospital the member of the Kenya Defence Forces shall be discharged to the nearest Kenya Defence Forces health unit which shall arrange to transport the patient to the Kenya Defence Forces Unit the patient belongs to.

(5) Where any member of the Kenya Defence Forces suffers from mental illness while away from the members Kenya Defence Forces unit, and is in any circumstances admitted in to a mental health unit, the person in charge shall inform the nearest Kenya Defence Forces unit directly or through an administrative offieer or gazetted police officer.

(6) If a member of the Kenya Defence Forces admitted to a mental health unit under this section ceases to be a member of the Kenya Defence Forces while admitted, the relevant authority in the Kenya Defence Forces shall inform the person in charge of that fact and the patient shall be deemed to be an involuntary patient under Part VI 371 No.

27 Mental Health (Amendment) 2022 admitted from the date the information is received.

Amendment of 29.

Section 19 of the principal Act is amended section 19 of Cap 248.

(a) by deleting subsection (1) and substituting therefor the following new subsections (1) Where it is necessary to admit a person suffering from mental illness from any foreign country into any mental health facility in Kenya for observation or treatment, the Foreign Government or other relevant authority in that country shall apply in writing seeking the Boards approval to admit the person.

(lA) A mental health facility shall not receive a person suffering from mental illness from a foreign country without (a) the Boards written approval; and (b) a warrant and other documents duly authorising the persons detention in and removal from the foreign country, (b) by deleting subsection (2) and substituting therefor the following new subsection (2) The application under subsection (1) shall indicate that the person to who it relates (a) has been legally detained under the laws of the foreign country relating to the detention and treatment of persons suffering from mental illness; (b) has been detained f or a period not exceeding two months; and (c) that the admission in to a mental health facility in Kenya has been found to be necessary , (c) by deleting subsection (3) and substituting therefor the following new subsections (3) Before admitting a person under this section, the person in charge of a mental health facility shall ensure that the requirements under subsection (1A) have been satisfied.

372 No.

27 Mental Health (Amendment) 2022 (3A) The requirements under subsection (lA) shall be sufficient authority for the conveyance to, admission and treatment of a person under this section, (d) in subsection (4) by deleting thi (i) words hospital under this section, not being a person transferred to the mental hospital under section 23, appearing immediately after the words under this section, in the introductory clause and substituting therefor the words health facihty; (ii) word disorder appearing immediately after the words extent of mental in paragraph (a) and substituting therefor the word illness; (iii) words his report on the findings appearing immediately after the words to the Board in paragraph (b) and substituting therefor the report on the examination under paragraph (a).

Amendment of 30.

Section 20 of the principal Act is amended section 20 of Cap 248.

(a) by deleting subsection (1) and substituting therefor the following new subsection (1) The Cabinet Secretary may, upon consultation with the Cabinet Secretary responsible for finance, by notice in the Gazette, prescribe the fees payable for the admission of persons with mental illness in a mental health unit established in a National Referral Hospitals, (b) by inserting the following new subsection immediately after subsection (1) (lA) The county executive committee member may, by notice in the Gazette, prescribe the fees payable for admission of persons with mental illness in a county mental health unit, (c) by deleting subsection (2) and substituting therefor the following new subsection (2) A private mental health facility admitting a person under this Part may charge such fees and in such manner 373 2022 Mental Health (Amendment) No.

27 f or as the Cabinet Secretary for the time being responsible finance in consultation with the Council of County Governors, may from time to time approve in writing.

Amendment of 31.

The principal Act is amended in the heading to Part X of Cap.

of 248.

Part X by deleting the words Discharge and Transfer Patients and substituting therefor the words Review, Discharge and Transfer of Persons with Mental Illness I nsertion of 32.

The principal Act is amended by inserting the section 20A in Cap 248.

following new section immediately after section 20 Review of mental 20A.

(1) The mental health status of a health status.

person with mental ill ness shall be reviewed periodically by a mental health practitioner and such review shall include ar ev i ew of (a) the nature of the illness; (b) the need for care and treatment; (c) the type of care and treatment provided; (d) the need for referral, transfer or discharge; and (e) any other matters related to the mental health status of the person w ith m ental illness.

(2) The review of the mental health status of a person with mental illness may be initiated by (a) the person with mental illness; (b) the mental health care practitioner in charge of managing the person with mental illness; (c) a supporter of the person with mental illness; (d) a representative of the person with mental illness; (e) the person in charge of the facility; (f) any other person upon proof of the nature of their interest; or (g) the Board.

374 No.

27 2022 Mental Health (Amendment) (3) The Cabinet Secretary in consultation with the Board and the Council of County Governors, shall prescribe in regulation the procedure for review under this A ct.

Amendment of 33.

The principal Act is amended by deleting section section 21 of Cap 21 and substituting with the following new section 248.

Discharge.

21.

(1) A person in charge may, by order in writing and upon the recommendation of the medical practitioner and mental health practitioner in charge of the persons treatment, order the discharge of a person with mental illness from the health facility and that person shall thereupon be discharged as having recovered from mental illness.

(2) A person with mental illness shall be discharged from the health facility under subsection ( 1) where the medical practitioner and the mental health practitioner in charge of managing the person make a decision that the person can no longer receive any other or further treatment from a health facility and appropriate efforts are being made towards re-integration of the person into the community, and f or specialized and personalized after-care service.

Amendment of 34.

The principal Act is amended by deleting section section 22 of 22 and substituting therefor the following new section Cap 248.

In ter im 22.(1) A person in charge may, discharge.

upon consultation with the mental health practitioner in charge of the treatment of a person with illness, discharge the person with mental illness into the custody and care of (a) the supporter of the person with mental il lness; 375 No.

27 Mental Health (Amendment) 2022 (b) the representative of the person with mental i ll ness; or (c) where the person with mental illness is a minor, the guardian of the minor.

(2) Any person listed under subsection (1) (a), (b) and (c) who intends to take the person with mental illness into their care and custody under subsection (1) shall apply to the person in charge for the custody and care of the person with mental ill ness in the prescribed form.

(3) The person in charge shall consider an application under subsection (2) and may release the person with mental illness in to the custody and care of the apphcant upon such conditions as the person in charge may impose.

(4) Where a person who takes the custody and care of a person ill ness under mental with subsection (3) is subsequently unable or unwilling to continue with the care of the person with mental illness such person shall report the matter to the person in charge of the health facility.

(5) The person in charge of the hedth facility shall admit the person with mental illness back to the mental health unit under the terms and conditions that the with mental illness had person been admitted before delivery to the applicant under subsection (3).

Amendment of 35.

Section 23 of the principal Act is amended section 23 Cap 248.

(a) by deleting subsection (1) and substituting therefor the following new subsections 376 No.

27 Mental Health (Amendment) 2022 (1) A person may, with the approval of the person in charge, be transferred from one national referral hospital mental health unit to another national referral hospital mental health unit or from one county health facility mental health unit to another county health facility mental health unit as the case may be.

(lA), The person in charge shall, before making the order to transfer a person with mental illness under subsection (1), determine whether the transfer (a) is for the benefit of the person with mental illness; or (b) is necessary for the purpose of obtaining specialized treatment for such person.

(IB) Before transferring a person under subsection (1), the person in charge, shall obtain consent from (a) the person with mental illness; or (b) where the person with mental illness (i) is unable to give consent, consent shall be obtained from the supporter of the person; (ii) has not appointed a supporter, consent shall be obtained fr om the representative of the person; or (iii) is a minor, consent shall be obtained from the guardian of the minor, (b) in subsection (2) by deleting the words mental hospital to which the transfer is made a certified copy of the order of the Director appearing immediately after the words charge of the mental and substituting therefor the words hedth facility to which the transfer is made a certified copy of the order of the Director or the relevant county executive committee member as the case may be.

Amendment of 36.

The Principal Act is amended by deleting section section 24 of Cap 24 and substituting therefor the following new section 248.

Treatment of a person 24 (1) A person with mental with mental ill ness abroad.

a illness may be transferred from 377 No.

27 Mental Health (Amendment) 2022 mental health unit in Kenya to a mental health unit in a foreign country for subsequent treatment and care with the approval of the Board.

(2) An application f or transfe r under subsection ( 1) may be made to the Board by (a) the person with mental i llness; (b) in the case where a person with mental illn ess (i) is unable to the make application, by the supporter of the person with mental illness; not (ii) has a appointed supporter, by a representative of the person with mental i ll ness; or (iii) is a minor, by the guardian of the minor.

(3) The Board shall inquire into the case of the person to whom the application under subsection (1) relates in such manner as it considers fi t, and if satisfied that the removal is likely to be for the benefit of the and that proper person, arrangements have been made for the proper removal and subsequent treatment and care, the Board may by warrant in the 378 No.

27 Mental Health (Amendment) 2022 prescri bed form and subject to subsection (4), direct that the person be delivered to the person named in the warrant for the purpose of being removed to the foreign country specified in the w arrant.

(4) A warrant for the removal of a person with nnental illness to a foreign country shall not be issued by the Board under subsection (3) unless a prior consent to receive the person has been obtained from the proper authori ties in the foreign country.

Amendment of 37.

The pri ncipal Act is amended by deleting PART Part Xn of Cap XII and substituting therefor the following new part 248.

PART Xn - CARE AND ADMINISTRATION OF PROPERTY OF PERSONS WITH MENTAL ILL NESS Application for 26.

(1) An application for an order for administration.

the management and administration of the estate of a person with mental illness may be made to the court, in the following order of pri ori ty, by (a) a supporter of the person with mental illness; or (b) the representative of the person where the person with mental illness has not appointed a supporter.

(2) An application under subsection an (1) shall be submitted together with affidavit setting out (a) the grounds upon which the application is made; (b) the full particulars as to the property and relatives of the person to whom it relates; and X 379 No.

27 Mental Health (Amendment) 2022 (c) a cert ified true copy of the admission or treatment and part iculars in respect of person duly admitted as a person with mental illness.

(3) A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the (a) person in respect of whom the application is made; or (b) where an application is made by a support er to the representative of the person with mental illness.

(4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of Ae court , notice of the application should be given.

(5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be i neffectual.

(6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the (a) court to examine the person; or (b) person to be examined by a qualified registered mental health practitioner.

Orders of the Court.

21.

(1) The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including (a) an order making provision for the maintenance of the person; 380 No.

27 2022 Mental Health (Amendment) (b) an order making provision for the maintenance of members of the persons immediate family who are dependent upon the person; and (c) an order making provision for the payment of the persons debts.

(2) The court may appoint a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.

(3) The court may for the purposes of section (1), appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection (2).

(4) The court shall, by notice in the Gazette, i nform the pubhc of the appointment of a person as the manager of the estate of a person who is suffering from mental illness.

(5) Within fourteen days of the Gazette Notice under subsection (4), any person may lodge an objection to the person appointed as manager.

Duties of a manager.

28.

(1) Where a manager is appointed under this Part, the court may, upon considering the nature of the property whether movable or immovable, and subject to subsection (2), make such orders as die court may consider necessary for the management of the estate by the manager.

(2) The manager shall not, without the approval of the court (a) mortgage, charge or transfer by sale, gift, surrender or exchange any immovable property of which the estate may consist; (b) lease any such property for a term exceeding five years; or 381 2022 Mental Health (Amendment) No.

27 (c) invest in any securities other than Cap.

167.

those authorized under the Trustee A ct.

(3) A manager shall not invest any funds or property belonging to the estate managed under this section (a) in any company or undertaking in which the manager has an interest; or (b) in the purchase of i mmovable property under the authority of section 4 (1) (d) of the Trustee Act without prior consent of the court.

(4) A manager shall perform the managers duty under this Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.

(5) Every conveyance or other instrument made pursuant to an order of the court under this Part shall be valid.

Inventory of 29.

(1) A person appointed to be a property.

manager of the estate of a person with mental illness under this Part shall, in the prescribed form, within six months of the date of appointment, deliver to the court and to the Public Trustee an inventory of (a) the property belonging to the person in respect of whose estate the manager has been appointed; (b) all sums of money, goods and effects the manager receives on account of the estate; and (c) a statement of debts owed by or due to such person with mental illne ss.

(2) Upon payment of such fee as may be prescribed, the supporter, the representative of a person with mental illness or any interested person may inspect and obtain a copy of any inventory, statement or account delivered to the court 382 No.

27 2022 Mental Health (Amendment) and to the Public Trustee pursuant to subsection (1).

(3) The Public Trustee shall report annually to the Cabinet Secretary and the Board on all accounts under subsection (1).

(4) Where a person, by petition to the court, disputes the accuracy of any inventory or statement of any annual account made under this section, the court may summon the manager, i nquire summarily into the matter and make such orders as it considers appropriate.

Penalty.

30.

(1) A manager who contravenes the provisions of this Part commits an offence and shall be liable.

upon conviction, to imprisonment for a term not exceeding three years or a fi ne not exceeding two million shillings, or to both.

(2) Where the court makes a determination that any property of a person who is mentally ill has been lost due to mismanagement of the estate of the person by the manager, the l oss shall be recoverable summarily as a civil debt from the managers estate.

Removal of 31.

(1) The court may, on its own manager.

motion or upon application, for sufficient cause (a) remove any manager appointed under this Part; and (b) may appoint any other person as manager.

(2) In exercising its power under subsection (1), the court may make such order as it considers necessary to ensure that the person removed as manager (a) transfers the property under the persons care, and of which the person was a manager, to the new manager; and (b) accounts to the new manager for all money received or disbursed by the person in connection with the property.

r 383 2022 Mental Health (Amendment) No.

27 Amendment of 38.

Section 40 of the pri ncipal Act is amended by section 40 of deleting Cap 248.

(a) subsection ( 1) and substituting therefor the following new subsection (1) The person in charge or a mental health practitioner in charge of any patient shall enable communication by the patient through letters, telephone calls and emails to the recipients where practicable, (b) subsection (2); (c) subsection (3).

Am endm ent of 39.

Section 41 of the pri ncipal Act is deleted and section 41 of substituted with the following new section Cap 248.

Power to ref use 41.

(1) A person in charge reception into mental may refuse to admit a person hospital with mental illn ess i nto t he mental facility or unit, if the accommodation w ithin the facility or unit is insufficient or unsuitable.

(2) Where the person in charge refuses to admit the person under subsection (1), the person in charge in consultation with t he mental health practitioner in the health facility, shall prescri be and administer an outpatient treatment plan while alternative accomm odation is being sought.

Am endment of 40.

Section 42 of the pri ncipal Act is amended by section 42 of deleting subsection (5) and substituting therefor the Cap 248.

following new subsection (5) The Director of Public Prosecution shall be No.

2 of 20 13.

notified, within thirty days, of instituting cri minal proceedings under this Act in accordance with the provisions of the Offi ce of the Director of Public Prosecution A ct.

1 384 No.

27 2022 Mental Health (Amendment) Amendment of 38.

Section 40 of the pri ncipal Act is amended by section 40 of deleting Cap 248.

(a) subsection (1) and substituting therefor the following new subsection (1) The person in charge or a mental health practitioner in charge of any patient shall enable communication by the patient through letters, telephone calls and emails to the recipients where practicable, (b) subsection (2); (c) subsection (3).

Amendment of 39.

Section 41 of the pri ncipal Act is deleted and section 41of substituted with the following new section Cap 248.

Power to refuse 41.

(1) A person in charge reception into mental hospital may refuse to admit a person with mental il lness i nto the mental facility or unit, if the accommodation within the facility or unit is insufficient or unsuitable.

(2) Where the person in charge refuses to admit the person under subsection (1), the person in charge in consultation with the mental health practitioner in the health facility, shall prescri be and administer an outpatient treatment plan while alternative accommodation is being sought.

Amendment of 40.

Section 42 of the pri ncipal Act is amended by section 42 of deleting subsection (5) and substituting therefor the Cap 248.

following new subsection (5) The Director of Public Prosecution shall be No.

2 of 20 13.

notified, within thirty days, of instituting cri minal proceedings under this Act in accordance with the provisions of the Office of the Director of Public Prosecution A ct.

r 385 2022 Mental Health (Amendment) No.

27 Amendment of 41.

The pri ncipal Act is amended by deleting section section 43 of 43 and substituting therefor the following new section Cap 248.

I ssuance of 43.

No medical reconunendation for meZ^certTficat^ admission of a person to a mental health facility and no medical certificate for the purposes of sections 10, 14 and 15 shall be signed by any person owning a financial interest in such mental health facility unless the person in respect of whom the recommendation or certificate is signed, is at the time of signing, admitted to the mental health f acility or isl awfully detained in some other suitable place for observation as to his mental condition, by the person who signs the certificate.

Amendment of 42.

The pri ncipal Act is amended by deleting section section 44 of Cap 248.

44 and substituting therefor the following new section Correction of 44.

Where, upon a person being admission admitted into a mental health facility or procedure.

unit as the case may be, the person in charge discovers a defect in the admission procedure or the medical recommendation upon which the person was admitted, the person in charge may require the defect to be corrected at any time within fourteen days after the person is admitted into the mental health facility or unit as the case may be.

Amendment of 43.

The pri ncipal Act is amended by deleting section section 45 of Cap 248.

45 and substituting therefor the following new section Escape from mental 45.

(1) Every person admitted into a health facility.

mental health facility or unit as the case may be under this Act shall remain admitted until the person leaves, is removed or discharged in accordance w ith this A ct.

(2) Where a person who is admitted into a mental health faciUty or unit, escapes, a police officer, a person employed in such 386 No.

27 2022 Mental Health (Amendment) mental health facility or unit, or any other person authorized by the person in charge of the mental health facility or unit may, upon finding such person, convey that person into the mental health facility or unit.

Amendment of 44.

The principal Act is amended by deleting section section 46 of Cap 46 and substituting therefor the following new section 248.

Complaints.

46.

(1) A person with mental illness shall have the right to lodge a complaint against any health professional with the Kenya Health Professions Oversight Authority established under section 45 No.

21 of of the Health Act, for the manner in 20 17.

which the person was treated by the health professional while in the custody, care and control of the health professional.

(2) Where the person with mental illness is incapable of lodging the complaint, the following persons may lodge the compliant of behalf of that person (a) a duly appointed supporter of that person; (b) where the person with mental illness has not appointed a supporter, the representative of the person with mental illness; (c) where the person with mental illness is a minor, the guardian of the minor.

(3) Where the persons specified or under subsection (2) are unable on unwilling to lodge a complaint behalf of the person with mental illness, any other person may lodge the complaint on behalf of the person with mental illness.

(4) The Authority shall hear and determine the complaint lodged under subsection (1) or (2) within six months r 387 2022 Mental Health (Amendment) No.

27 and report i ts fi ndings to the complainant.

(5) Where the complainant is dissatisfied wi th t he decision of the Authority under this section, the complainant may appeal to the High Court.

Amendment of 45.

The principal Act is amended by deleting section section 49 of Cap 49 and substituting therefor the following new section 248.

of'^Mfo*luffeX<> ^ Person who wilfully assists the fr omTentannnesl scape of any person with mental illness being conveyed to or from, or while under care and treatment in, a mental health facility or unit as the case may be, or who harbours any person suffering from mental illness whom the person knows has escaped from a mental health facility or unit as the case may be, commits an offence.

A mendment of 46.

The principal Act is amended by deleting section section 50 of 50 and substituting therefor the following new section Cap 248.

Permitting patient to 50.

A person in charge, or any person or unit r iii^"uni'aS uy.

employed at a mental health facility as the case may be, who through wilful neglect or connivance permits any patient in the mental health facility or unit as the case may be, to leave such mental health facility or unit other than under this Act or any other law for the time being in force commits an offence.

Amendment of 47.

Section 51 of the principal Act is amended by section 51 of Cap deleting section 51 and substituting therefor the following 248.

new section Ill-treatment of 51.

A person in charge of, or any person in mental , , , , , , r.

.

facility health facility or pcrson employed at, a mental health unit.

or unit as the case may be, who strikes, ill- treats, abuses or wilfully neglects any patient in the mental health facility or unit as the case may be, commits an offence.

1 388 2022 Mental Health (Amendment) No.

27 Amendment of 48.

Section 52 of the pri ncipal Act is amended by section 52 of the deleting the words hospital, whether inside or outside Cap 248.

grounds of the mental hospital appeari ng immediately after the words patient in a mental and substituting therefor the words health facility or unit as the case may be, whether inside or outside the grounds of the mental 5.

health facihty or unit as the case may be Amendment of 49.

Section 53 of the pri ncipal Act is amended by section 53 of deleting the words ten thousand shillings appeari ng Cap 248.

immediately after the words fi ne not exceeding and substituting therefor five hundred thousand shilUngs.

Amendment of 50.

The Pri ncipal Act is amended by deleting section section 54 of 54 and substituting therefor the following new section Cap 248.

Regulations.

54.

The Cabinet Secretary shall, in consultation w ith t he B oard and t he Council of County Governors, make regulations (a) prescri bing the form of the supportive decision-making agreement; (b) generally regulating the equipping, administration.

control and management of mental health units; (c) f or the care, treatment and rehabilitation of a person with mental illness; (d) prescri bing the procedure of admission of out-patient patients; and (e) f or the better carrying out of the provisions of this Act.

Transition.

51.(1) Any licences or orders made by the Board to pri or to commencement of this Act, shall be deemed have been issued under this Act.

(2) A mental hospital by the Board pri or to the commencement of this Act shall deemed to have been established under this A ct.

r 389 2022 Mental Health (Amendment) No.

27 Amendment to 52.

Section 19 of t he H ealth A ct is amended in Act No.

21 of 2017.

subsection (5) paragraph (c) by inserting the words the including mentd health services inunediately after words all health services.

.

1 390 No.

27 2022 Mental Health (Amendment) SCHEDULE (s4) CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD Meetings of the 1.

(1) The Board shall meet at least once in every Board.

month to conduct the business of the Board.

(2) The Chairperson shall convene the ordinary meetings of the Board at the premises of the Board.

(3) Despite the provisions of sub-paragraph (1), the five Chairperson shall, upon a written request by at least the members of the Board, convene a special meeting of the Board at any time where he considers it expedient for transaction of the business of the Board.

(4) Unless three quarters of the total number of the members of the Board otherwise agree, at least fourteen be days written notice of every meeting of the Board shall given to every member of the Board by the Secretary.

(5) The quorum for the conduct of the business of the Board shall be five members.

of (6) The Chairperson shall preside at every meeting the the Board at which the Chairperson is present and in the absence of the Chairperson absence, the members of to Board present shall elect one person fr om their number have preside over the meeting of the Board and he shall all the powers of the Chairperson.

(7) Unless a unanimous decision is reached, aa decision on any matter before the Board shall be by majority of the votes of the members present and voting or and in the case of an equality of votes, the Chairperson person presiding over the meeting shall have a casting vote.

(8) The proceedings of the Board shall not be invalidated by reason of a vacancy within its membership.

(9) Subject to provisions of this Schedule, the Board may determine its own procedure and the procedure for any committee of the Board and for the attendance of other persons at its meetings thereof.

(10) The Board shall determine the procedure for the other county mental health councils and for attendance of persons at the councils meeting.

391 No.

27 Mental Health (Amendment) 2022 Disclosure of 2.

(1) If a member is directly or indirectly interested inl er e st.

before in any contract, proposed contract or other matter at the Board and is present at a meeting of the Board is which the contract, proposed contract or other matter and the subject of consideration, he shall, at the meeting as soon as reasonably practicable after the commencement not thereof, disclose his interest in the matter and shall m atter.

take part in the deliberations over, or vote on, the (2) A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at w hich it is m ade.

(3) Any contract or instrument which if entered into would or executed by a person not being a body corporate, or not be required to be under seal may be entered into executed on behalf of the Authority by any person generally or specially authorized by Ae Board for that purpose.

t.