human rights and legislation who resource book on mental health

• Minors must have access to a personal representative to adequately represent their
interests, especially when admitted to mental health facilities, <strong>and</strong> throughout the course of
such admission.
• Inequities <strong>and</strong> discriminatory practices can both cause <strong>and</strong> exacerbate mental disorders in
women.
• Women should have separate sleeping facilities (single-sex wards), <strong>and</strong> their living facilities
should be of adequate quality <strong>and</strong> comparable to the living facilities provided to men.
• In countries where women are detained in hospitals on social or cultural grounds, it is
necessary that <strong>legislation</strong> explicitly state the illegality of such a practice.
• Legislation may specifically provide protection against discriminatory practices directed
towards minorities. For example, <strong>legislation</strong> could stipulate that the review body must
monitor involuntary admissions <strong>and</strong> involuntary treatment of minorities, <strong>and</strong> the provision
of community-based treatment <strong>and</strong> rehabilitation services to minorities.
• Refugees should be afforded the same mental health treatment as citizens of the host country.
18. Offences <strong>and</strong> penalties
A law is not written with the intention of prosecuting people <strong>who</strong> do not adhere to its provisions,
but rather to guide <strong>and</strong> direct people in terms of what a (hopefully) democratically constituted
legislature, after consultation <strong>and</strong> debate, has deemed necessary <strong>and</strong> appropriate for the
country. When a law is transgressed, however, the criminal justice system of a country has the
power to take actions to prosecute <strong>and</strong> punish offenders. This gives <strong>legislation</strong> a special position
relative to, for example, a country’s policy or strategic plans.
Like other issues that have been covered in this chapter, dealing with offences <strong>and</strong> penalties will
vary from country to country. Nonetheless, in many countries, unless specific guidance is given
in the law regarding the level <strong>and</strong> extent of penalties to be awarded for particular offences, the
courts may be unable to act effectively when the law is transgressed. As a result, the law’s
potential to promote mental health may not be fully realized. The law should therefore specify the
appropriate punishment for different offences, <strong>and</strong> may indicate the severity of penalties to be
h<strong>and</strong>ed out for particular transgressions, taking account of the fact that not all transgressions
are equally serious.
Examples: Offences <strong>and</strong> penalties
The following are illustrations of how different legislative systems provide for offences <strong>and</strong>
penalties within their mental health law. These examples are for illustrative purposes only <strong>and</strong>
it will be up to each individual country to determine the system for offences <strong>and</strong> penalties to be
adopted for their national <strong>legislation</strong>.
Japan
In Japan, the law concerning the Mental Health <strong>and</strong> Welfare of the Mentally Disordered Person
(Law 94, 1995) outlines a range of different penalties for various transgressions. For example:
• A person to which any of the following items are applicable shall be punished with penal
servitude for not more than three (3) years or a fine of not more than one million yen:
(i) a person <strong>who</strong> violates an order of discharge under paragraph 5 of Article 38.5;
(ii) a person <strong>who</strong> violates an order under paragraph 2 of Article 38.7;
(iii) a person <strong>who</strong> violates an order under paragraph 3 of Article 38.7.
• The administrator of a mental hospital, the designated physician, the member of the
psychiatric review board [<strong>and</strong> various other people mentioned] shall be punished with
penal servitude for not more than one year or a fine of not more than five thous<strong>and</strong> yen if
he/she, without due cause, discloses a secret that has come to him/her in the course of
execution of duties under this law.
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