Why the Mental Health Act 2001 Could've Been Better: Deficits and Apathy in Modern Malaysian Lawmaking

The Malaysian Mental Health Act 2001 was conceived after realization that the Mental Disorders Ordinance 1952, Mental Health Ordinance (Sarawak) 1961 and the Lunatics Ordinance (Sabah) 1951 were completely outdated and could not serve to regulate administration of mental health treatment, much less protect rights or increase autonomy. What I can say with full certainty is that in a day and age where Malaysia wants first world-developed nation status, Malaysia should have first world laws (instead of just pretty skyscrapers), the Mental Health Act 2001, albeit being an improvement from the previous laws, leaves gaping holes in important places. The voids within the MHA clearly exhibit law written by those who have not compared mental health legislation elsewhere, are not cognizant of possibilities in mental health litigation, and generally have not drawn links between negative effects of particular statutory provisions.

This week I am in Berlin, Germany, presenting a paper on The Role of Law in Electroconvulsive Therapy, and what I have learnt is that Malaysia’s MHA is seriously lacking. As aforesaid, a developed country must have developed country laws. Today’s sessions clearly advanced pertinent questions and issues that are not addressed or are underemphasised in Malaysia, and I think I’ll summarise them in bullet point below:

• Is it necessary to talk to a patient about involuntary treatment that shall be accorded to him even if it is not practical?

• Is the MHA 2001 consistent with the UN Convention on the Rights of Persons with Disabilities? I.e., does it ensure that persons with disabilities enjoy legal capacity on an equal basis with other in all aspects of life?

• Is there a need to protect mental health professionals?

• Where a mental health professional makes an honest act or omission that results in harm, should the action really lie against the doctor? Or should it lie against the state?

• Why are persons with mental illnesses and their families not aware that arbitrary detention may, in fact, be an offence of false imprisonment?

• Why does the MHA 2001 not allow for the establishment of a Mental Health Review Tribunal?

There are many other questions; and the rumours are that the drafters have realized the defects in this Act and are gunning for amendments in five years. Which is all well and good, but the fact remains that several outdated statutes were replaced by one better, but still outdated statute. The MHA 2001 also took nine years to come into force. In that time, if the drafters had relied on recent knowledge and had taken the effort to analyse laws of other nations, we might have had a much more complete Act called the Mental Health Act 2010.