Mental Treatment Act
- Commenced on 29 July 1948
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
1. Short titleThis Act may be cited as the Mental Treatment Act.
2. InterpretationIn this Act unless the context otherwise requires—“approved institution” means an institution declared by the Minister to be an approved institution under section 29;“Court” means the High Court;“magistrate” means a Resident Magistrate or a magistrate of the first or second grade;“manager” means any person appointed under section 33;“medical practitioner” means any medical practitioner who is registered or licensed as such under any law in force in Malawi governing the registration of medical practitioners;“mental hospital” means any hospital or other place which has been authorized, or may hereafter be authorized by the Minister as a place for the reception, detention and treatment of two or more persons who are suffering from mental disorder or mental defect;“person in charge” means any person appointed or approved by the Minister to be in charge of a mental hospital;“person of unsound mind” means any person who has been so found under Part V or Part VII;“reception order” means an order made under Part V or Part VII;“visiting committee” means a committee of visitors to a mental hospital appointed under section 4.
Part I – Reception of persons in a mental hospital
3. Reception into a mental hospitalSubject to the provisions of the Criminal Procedure and Evidence Code relating to persons found unfit to plead or not guilty by reason of insanity, no person shall be received, or detained for treatment in a mental hospital except under and in accordance with this Act.[Cap. 8:01][30 of 1969]
Part II – Visiting committee
4. Appointment of visiting committeesThe Minister shall appoint for every mental hospital a visiting committee which shall consist of not less than two male visitors and one female visitor, one of whom at least shall be a medical practitioner.
5. Duty of visitors
Part III – Voluntary patients
6. Power to receive voluntary patients
7. Notification of reception or death or departure of voluntary patient to visiting committeeWhere a person is received into a mental hospital as a voluntary patient under section 6, or where a person so received dies in or departs from a mental hospital, information of his reception, death, or departure shall be given by the person in charge to the visiting committee at their next meeting.
8. Voluntary patient not to be detained for more than forty days
Part IV – Temporary treatment without reception order
9. Provision for temporary treatment without certificate of certain persons
10. Minister's powers of dischargeWhen any person has been received into a mental hospital under Part III or this Part the Minister may at any time order that any such person shall be discharged, or otherwise dealt with under this Act.
Part V – Reception orders
11. Application for reception order
12. Application by whom to be presented
13. Procedure upon petition for reception order
14. Detention of person alleged to be of unsound mind pending inquiryUpon the presentation of the petition, the magistrate may make such orders as he may think fit for the suitable custody of the person alleged to be of unsound mind pending the conclusion of the inquiry.
15. Consideration of petitionThe petition shall be considered in private in the presence of the petitioner, the person alleged to be of unsound mind (unless the magistrate in his discretion otherwise directs), any person appointed by the person alleged to be of unsound mind to represent him and such other persons as the magistrate may think fit.
17. Powers and duties of police in respect of wandering or dangerous persons of unsound mind and such persons cruelly treated or not under proper care and control
18. Duty of custodian of person of unsound mindWhere any person, having the care and control of a person apparently of unsound mind, is, for any reason, no longer able properly to control such person or to prevent such person from doing injury to himself or others or from acting in a manner offensive to public decency so as to be a public nuisance, it shall be the duty of such first-mentioned person to make due application to a magistrate under section 11 or to report the circumstances of the case to a police officer or an administrative officer or to a Chief in order that proceedings under this Act may be taken in regard to such person.
19. Power of magistrateWhere a magistrate is satisfied by information on oath or affirmation that any person suspected of being of unsound mind is at large or is dangerous to himself or others or is acting in a manner offensive to public decency so as to be a public nuisance or is not under proper care and control or is cruelly treated or neglected by any relative or other person having the care or charge of him, such magistrate may, by order under his hand, require a person specified in such order to bring before him the person suspected of being of unsound mind.
20. Reception order in case of wandering and dangerous personsWhere any person is brought before a magistrate under section 17 or section 19, the magistrate shall examine such person, and if he thinks that there are grounds for proceeding further, shall cause the person concerned to be examined by a medical practitioner and may make such other inquiries as he may think fit; and, if the magistrate is satisfied by examination and inquiries and by a medical certificate issued under section 22, that such person is a person of unsound mind and a proper person to be placed under care and treatment, he may adjudge such person to be of unsound mind or may make a reception order in the form prescribed for the admission of such person into a mental hospital:Provided that, instead of making a reception order, the magistrate may, if he thinks fit, make such person over to the care of any relative or friend upon such relative or friend entering into a bond, with or without sureties, for such sum of money as the magistrate may think fit, that such person shall be properly taken care of and prevented from doing injury to himself or others or from becoming a public nuisance.
21. Detention of person alleged to be of unsound mind pending report by medical practitionerWhere any person is brought before a magistrate under section 17 or section 19, the magistrate may, by order in writing, authorize the detention of such person in a mental hospital, or in any place which the magistrate deems suitable for the purpose, for such time not exceeding thirty days as may, in his opinion, be necessary to enable a medical practitioner to determine whether or not such person is a person in respect of whom a medical certificate of unsound mind may properly be given:Provided that no person shall be detained in any police station or prison if any other suitable accommodation is available.
22. Issue of medical certificates
23. Detention of person alleged to be of unsound mind pending removal to mental hospitalWhen any reception order has been made under this Part, the magistrate may, for reasons to be recorded in writing, direct that the person, pending his removal to a mental hospital, be detained in suitable custody in such place and for such time as the magistrate may think fit:Provided that no person shall be detained in any police station or prison if any other suitable accommodation is available.
24. Power to summon custodian of person suffering from mental disorder
25. Time and manner of medical examination of personA reception order shall not be made unless it appears from the medical certificate upon which such order is to be founded that the medical practitioner who signed the certificate personally examined the person to whom the certificate relates not more than seven clear days before the date of the order.
26. Authority for reception
27. Power to order detention outside jurisdictionA magistrate may make a reception order for the detention, care and treatment of a person, adjudged to be of unsound mind, in a mental hospital which is situated in a place outside the ordinary limits of such magistrate's jurisdiction and a reception order shall authorize the detention, care and treatment of the patient at such mental hospital within Malawi at which it appears to the magistrate that sufficient accommodation is available, and where suitable treatment can be given, having regard to the circumstances of the particular case.
Part VI – Discharge of patients from, and transfers to, mental hospitals
28. Order of discharge from mental hospitalThe Minister or any three of the visitors of any mental hospital, of whom one at least shall be a medical practitioner, may, by order in writing, direct the discharge of any person detained in such mental hospital and such person shall thereupon be discharged:Provided that no order shall be made under this section in the case of a patient detained under the Criminal Procedure and Evidence Code.[Cap. 8:01]
29. Order of discharge to an approved institution
30. Appointment and report of medical inspectorThe Minister may appoint a medical inspector to visit any approved institution and to report upon the condition of any person who has been discharged into the care of the person in charge of such institution under section 29. Upon receiving the report of any such inspector, the Minister may, should he think fit—
31. Order of discharge and undertaking of relative for due care of the person of unsound mindWhere any relative or friend of a person detained in any mental hospital under a reception order made under this Act desires that such person shall be delivered over to his care and custody, he may for that purpose make an application to the person in charge, and, if the Minister or any three of the visitors, of whom one at least shall be a medical practitioner, consider that such application should be granted, he or they may order that the person be discharged into the care of such relative or friend upon such terms and conditions, as to entering into a bond or otherwise, as the Minister or such visitors may in his or their discretion direct.
32. Transfer of patientsAny person detained in a mental hospital under this Act may be transferred by order of the Minister from one mental hospital to another. When a person is transferred under this section the person responsible for conveying him shall produce to the person in charge of the mental hospital to which transfer is made a certified copy of the order of the Minister.
Part VII – Judicial power over persons and estates of persons of unsound mind or in a mental hospital
33. Safe-keeping and management of estates of persons in mental hospitals
34. Power of manager in respect of estate
35. Power to make order concerning any matter connected with the personThe Court may, upon application made to it by petition concerning any matter whatsoever connected with a person of unsound mind or a person undergoing treatment in a mental hospital or with his estate, make such order, subject to this Part, respecting the application as in the circumstances of the case the Court may think fit.
36. Power to apply property for maintenance of person of unsound mind without appointing manager in certain cases
37. Powers of Court in regard to property of person where no manager is appointedIn cases where no manager is appointed the Court may if it appears to be just or for the benefit of the person of unsound mind or of the person suffering from mental disorder or mental defect, order that any property, whether movable or immovable, of such person and whether in possession, reversion, remainder, or contingency, be sold, charged, mortgaged, dealt with or otherwise disposed of as may seem most expedient for the purpose of raising or securing or repaying with or without interest money to be applied, or which has been applied to all or any of the following purposes—
38. Power to order transfer of property of person of unsound mind residing out of MalawiWhere any movable or immovable property is standing in the name of or vested in, any person residing out of Malawi, the Court, upon being satisfied that such person has been declared to be of unsound mind, and that a manager has been appointed for his estate according to the law of the place where he is residing, may order some fit person to pay, deliver or transfer the property, or any part thereof, to the name of the person so appointed, as the Court may think fit.
39. Execution of conveyances and powers by manager under order of CourtThe manager, or such other person as the Court may appoint for the purpose, shall, in the name and on behalf of the person of unsound mind or of the person suffering from mental disorder or mental defect, execute all such conveyances and instruments of transfer relative to any sale, mortgage or other disposition of such person's estate as the Court may order, and any conveyance or other instrument executed by the manager, or any other person appointed by the Court as aforesaid, with the sanction of the Court shall be as valid and effectual in all respects as if it had been executed by the person of unsound mind while he was of sound mind or, in the case of a person suffering from mental disorder or mental defect, before he was so suffering.
40. Carrying on business of person of unsound mind
41. Managers to furnish inventory and annual accounts
42. Termination of appointment of manager
43. Proceedings to cease or to be set aside if Court finds that the unsoundness of mind has ceased
44. Examination of femalesWomen, alleged to be of unsound mind, who, according to the customs and manners of their community ought not to be compelled to appear in public, shall be exempt from personal appearance in Court under this Act, but may be examined by such persons and in such manner as the Court may direct.
45. Court procedureWherever possible the Court or a magistrate when hearing applications under this Act where a person alleged to be of unsound mind is before the Court or magistrate, as the case may be, shall sit in camera.
Part VIII – Special provisions relating to maintenance
46. Application of property in the possession of a person of unsound mind found wanderingAny money in the possession of a person of unsound mind found wandering at large may be applied by the magistrate towards the payment of the cost of maintenance of such person or of any other expenses incurred on his behalf, and any movable property found on the person of unsound mind may be sold by the magistrate, and the proceeds thereof similarly applied.
47. Application to civil court for order for the payment of cost of maintenance out of the estate of the person of unsound mind
48. Certain maintenance costs to be met from public fundsIf and so far as the costs, or any portion thereof, of the maintenance of a person detained in a mental hospital under a reception order made under this Act are not provided for by an order under this Act, such costs, or portion thereof, shall be paid out of moneys provided by Parliament.
49. Saving of liability of relatives to maintain person of unsound mindThe liability of any relative or person to maintain any person who is suffering from mental disorder or mental defect shall not be taken away or affected by any provision contained in this Act.
50. Pension of person of unsound mind payable by GovernmentWhen any sum is payable in respect of salary, pension, gratuity or other similar allowance to any person by the Government and the Secretary for Health certifies that the person to whom the sum is payable is in a mental hospital and no proceedings for the appointing of a manager of his estate have been instituted under Part VII, the Government officer under whose authority such sum would be payable if the payee were not in a mental hospital may pay so much of the said sum as he thinks fit to the person having charge of such person, and may pay the surplus, if any, or such part thereof as he thinks fit for the maintenance of such members of the family of such person as are dependent upon him for maintenance.
Part IX – General
51. Inquests on patientsThe person in charge of any mental hospital shall give immediate notice of the death of any patient therein, to the coroner having jurisdiction in the District in which the mental hospital is situated, and thereupon the coroner shall hold an inquest upon the body of such patient in the manner provided by the Inquests Act.[Cap. 4:02]
52. Death of person discharged to approved institution or breach of a condition by such person to be reportedThe person in charge of any approved institution shall report, as soon as may be, the death of any person discharged into his care, under section 29, to the Secretary for Health and shall also report to the Secretary for Health the breach by any such person of any of the terms and conditions made by the Secretary for Health relating to his discharge.
53. Letters of patients
54. Power to refuse accommodation at mental hospitalNotwithstanding anything in this Act contained, the person in charge of a mental hospital may lawfully refuse to receive any person into such hospital on the ground that there is not sufficient accommodation available therein.
55. No liability in respect of act done in good faith in pursuance of this Act
56. Who may not give certificatesNo medical recommendation for admission to a mental hospital and no medical certificate for the purpose of Part V or Part VII shall be signed by any person in charge of, or by any person employed at the mental hospital where the patient is received, unless the person in respect of whom the recommendation or certificate is sought is at the time an inmate of the said mental hospital, or by any person owning a financial interest in the mental hospital.
57. Amendment of order or certificationIf, after the reception of any person into any mental hospital, it appears to the person in charge that the order under which he was received or the medical certificate upon which such order was founded or the medical recommendation upon which he was admitted is or are defective or incorrect, the order, certificate or recommendation, as the case may be, may, at any time within forty days after such reception, be amended by the person or persons signing the same, failing which the person in respect of whom the order, certificate or recommendation was made shall be discharged from the mental hospital.
58. Person received into mental hospital to be detained until dischargedEvery person received into a mental hospital under this Act shall be detained therein until he leaves, is removed, or discharged, in accordance with this Act; and if any person detained in a mental hospital under a reception order made under this Act escapes therefrom he may be retaken by any police officer, or by any person employed in such mental hospital or by any other person authorized in that behalf by the person in charge of any such mental hospital, and conveyed to and again received into such mental hospital.
Part X – Offences
59. Persons other than medical practitioner signing certificateAny person who, not being a medical practitioner, knowingly and wilfully signs a medical certificate prescribed under this Act shall be guilty of an offence against this Act.
60. False certificatesAny medical practitioner who knowingly or wilfully or recklessly in any certificate prescribed under this Act certifies anything untrue shall be guilty of an offence against this Act.
61. Escape of person of unsound mindAny person who wilfully assists the escape of any person of unsound mind being conveyed to, or from or while under care and treatment in a mental hospital, or who hides any person of unsound mind who has escaped from a mental hospital shall be guilty of an offence against the Act.
62. Permitting patient to quit mental hospital unlawfullyAny person in charge, or any servant, of a mental hospital who through wilful neglect or connivance permits any patient in the mental hospital to quit such hospital other than in accordance with this Act, or of any other law for the time being in force, shall be guilty of an offence against this Act.
63. Ill-treatment of persons in mental hospitalAny person in charge of, or employed at, a mental hospital who strikes, ill-treats, abuses or wilfully neglects any patient in such mental hospital shall be guilty of an offence against this Act.
64. Dealings with patientsAny person, who, without the consent of the person in charge of a mental hospital, gives, sells or barters any article or commodity of any kind to any patient in a mental hospital, whether inside or outside the grounds of the mental hospital, shall be guilty of an offence against this Act.
65. Prohibition on publishing names of partiesAny person who when publishing in any newspaper any matter referring to any proceedings under this Act mentions by name any of the parties thereto shall be guilty of an offence against this Act.
66. General penaltyAny person who is guilty of an offence against this Act or who contravenes or fails to comply with any of the provisions of this Act, or of any Rules made thereunder, shall, where no other penalty is expressly prescribed, be liable to a penalty of £50 and to imprisonment for six months.
Part XI – Rule making powers
67. RulesThe Minister may make Rules—
Part XII – Saving
68. SavingAll Rules, orders, proclamations, notices, appointments and undertakings made or given under the Lunacy Ordinance, 1928 (now repealed) or the Asylums Ordinance, 1928 (now repealed) shall have the same force and effect as if they had been made or given under this Act and by or to the authority empowered thereby in such behalf until replaced by Rules, orders, proclamations, notices, appointments and undertakings made or given under this Act.[17 of 1928][18 of 1928]
History of this document
31 December 2014 this version
29 July 1948