human rights and legislation who resource book on mental health

• The process of building a consensus for mental health <strong>legislation</strong> should begin as early as
possible so that different views can be incorporated <strong>and</strong> subsequent implementation
facilitated.
3. Drafting mental health <strong>legislation</strong>
3.1 The drafting process
The process of drafting new <strong>legislation</strong> varies in different countries depending on the particular
legislative, administrative <strong>and</strong> political structures. This Resource Book does not seek to interfere
with these well-established mechanisms that are locally developed <strong>and</strong> accepted. A number of
factors determine how often new <strong>legislation</strong> is drafted <strong>and</strong> by <strong>who</strong>m. It has been suggested that
<strong>legislation</strong> should probably be reviewed every 5 to 10 years, but if there are problems with the
content or implementation of the current law, then it should be reviewed as soon as possible. In
some countries the law includes a “power to remove difficulties” that allows certain changes to
be made – which are not fundamental in structure <strong>and</strong> effect, but which may be necessary to
enable the <strong>legislation</strong> to better serve the purpose for which it was passed – without having to
wait for the legislative process. The mental health law in India for example, states, “If any difficulty
arises in giving effect to the provisions of this Act in any State, the State Government may, by
order, do anything not inconsistent with such provisions which appears to it to be necessary or
expedient for the purpose of removing the difficulty.” (Article 97 of the Indian Mental Health Act,
1987).
In some countries, a specially constituted drafting committee is appointed by the legislature, or
the relevant ministry is given the task of drafting the law; other countries have a law commission
or a similar body that conducts this function (see section 2 above). In countries that lack well
defined structures for drafting new <strong>legislation</strong>, the mental health section in the ministry can play
an important facilitative role.
Example: The drafting process in Portugal <strong>and</strong> South Africa
In Portugal, following a National Conference of major stakeholders where a set of
recommendations for new <strong>legislation</strong> was approved, the Ministries of Health <strong>and</strong> Justice
nominated two working groups <strong>and</strong> charged them with writing the draft of new mental health
<strong>legislation</strong>. One group worked on aspects related to mental health policy <strong>and</strong> patient <strong>rights</strong>,
while the other group dealt with the regulation of compulsory treatment. This process took
more than two years <strong>and</strong> involved extensive consultation with many different groups.
(Personal communication, Dr JM Caldas de Almeida, Regional Adviser for WHO Region of the
Americas, 2003.)
In South Africa the need for new <strong>legislation</strong> was identified by the Department of Health, in part
because a number of clauses of the existing <strong>legislation</strong> were seen as unconstitutional following
the political change from apartheid to democracy. The Directorate responsible for Mental
Health was m<strong>and</strong>ated with coordinating a consultative <strong>and</strong> drafting process. The process, from
conception to passage by Parliament, took approximately five years.
(Personal communication, Prof. M Freeman, Department of Health, South Africa, 2003)
The crucial point is not which body drafts the <strong>legislation</strong>, but rather, that there is significant <strong>and</strong>
sufficient expertise contributing to the process to ensure that the bill produced is thorough,
comprehensive, reflects a balance of competing (though reasonable) ideologies, has adequately
considered all the available relevant information, <strong>and</strong> is able to produce a substantive draft
appropriate to the local circumstances. Some countries may choose to appoint a committee
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