This document provides an overview of Kenyan law regarding mental health and psychiatric nursing. It summarizes the types of admissions under the Mental Health Act, including involuntary, voluntary, emergency, and those for members of the armed forces or foreigners. The legal documents and processes for admission, duration of stay, and discharge are described for each admission type. Offenses under the Mental Health Act and management of mentally ill offenders under the criminal justice system are also outlined. The role of nurses in assessing fitness to stand trial and criminal responsibility is discussed.

1. 1
Kenyan Law and Mental health & Psychiatric
Nursing
By:
Miriam C. A. Wagoro, RN, PhD
Simon Githui, BScN, MScN

2. CAP 248
CAP 75
CAP 90
2

3. 3
ADMISSIONS UNDER THE METAL
HEALTH ACT
Types of admissions
Involuntary
Voluntary
Emergency
Armed forces
Foreigners

4. 44
Involuntary Admission; PART VI; Sec 14
 A patient suffering from mental disorder may benefit
from treatment but has no insight.
 The patient is unable to express self as willing or
unwilling to receive treatment

5. 5
Legal documents
 An application in duplicate on form med MoH
614 by the spouse or relative or friend stating
reasons for admission
 Recommendation in duplicate on form med
MoH 615 by the medical practitioner after
examining the patient and confirming need for
admission.
 The ground for recommendation must be stated
clearly on the form
 Recommendation form expires 14 days from
date of signing

6. 6
Duration of stay
 Not exceeding 6 months and can be extended for
another 6 months by the in charge as appropriate
Discharge and Transfers
 By an in charge as having recovered upon the
recommendation by the medical officer
 On powers of the Board
 Application by a relative on form MOH 616

7. 7
Voluntary Admission; PART V-Sec 10-13
A person who voluntarily desires to submit
self for treatment.
The person must be able to express self as
willing to receive treatment
Legal Documents
An application form in duplicate on form
MoH 613 for an adult  16 years
An application form in duplicate on form
MoH 637 for an adult < 16 years

8. 8
Duration of stay
 Review within 72 Hours
 Patient who becomes incapable of expressing
self as willing or unwilling to receive treatment
is reviewed within 42 days and retained as
involuntary patient with relevant documents
 Children neglected by guardians are reported to
KBMH/DMHC
Discharge
 Upon 72 Hrs Notice in writing to the incharge.
Release depends on findings of assessment after
receiving the notice.

9. 9
Emergency Admission; PART VII – Sec 16
A person;
Believed to be suffering from a mental
disorder.
Is dangerous to self and /or others
Acting in a manner offensive to public decency

10. 10
Legal documents
Application in duplicate to hospital –in-
charge on med form MOH 638 by Police
Officer  rank of Police Inspector, Officer
in –charge – of police station,
administrative officer, chief or assistant in
whose area the patient resides
The person is taken to hospital within 24
Hours of being taken to custody

11. 11
Duration of stay
 Reassessment within 72 Hours
 Legal forms for involuntary admission are
processed and admission converted to involuntary
as appropriate
Discharge
 As recovered
 Into care of relative/friend upon filling form MOH
616
 Directive for delivery into the care of a relative or
friend through form 616A


12. 12
Members of the armed forces; PART VIII – Sec 17
 Medical Officer of the Armed forces in writing
certifies to hospital in charge that;
 The sick officer was examined in the last 48 Hours
 There are justified reasons for admission and
observation
Duration of Stay
  28 days can be extended before 28 days on
recommendation of two medical officers one of
whom is a psychiatrist following reassessment

13. 13
Discharge
On recommendation by two medical
officers one of whom is a psychiatrist upon
certification of findings within 72 Hours
before issuing the letter
Discharge is to the nearest Armed Forces
Hospital for onward transfer to the Armed
Forces unit

14. 14
Admission of Foreigners; PART IX – Sec
18-20
Legal documents
 A written approval of the Board based on
application by the respective country
Duration of stay
 Examination within 72 Hours and provide
the Board with findings
 Order to extend stay on MOH 641
 Should not be detained for> 2 months
unless on approval by the Board

15. 15
Discharge
Approval by the Board
Removal of involuntary patient to other
countries by warrant MOH 640 from the
Board

16. 16
Offences under the Act; PART XIV – Sec 47-53
 Completing legal forms when not authorized
 Giving false information
 Assisting patients to escape
 Maltreatment of patients
 Trading with patients without permission
 Permitting patient to leave hospital through neglect or
unlawfully
Penalty
 Fine not exceeding 10 thousand
 Imprisonment  12 months
 Both fine and imprisonment

17. 17
MENTALLY ILL OFFENDERS AND THE
CRIMINAL JUSTICE SYSTEM
The criminal procedure code Cap 75 of the laws
of Kenya provides for management of the
mentally ill offenders.
Sec.162: various subsections –Persons on
remand whose mental state is under question
by the court and is in need of investigations or
protection from injury to self and/or others

18.  If the court opinion is that the pt is of unsound mind;
postpone further proceedings in the case
 Bail may be given; but on sufficient security to prevent
harm to self or others
 If the case is one in which bail may not be taken, or if
sufficient security is not given, the court shall order
that the accused be detained in safe custody in such
place and manner as it may think fit, and shall transmit
the court record or a certified copy thereof to the
Minister for consideration by the President.
18

19.  Upon consideration of the record the President may by
order under his hand addressed to the court direct that
the accused be detained in a mental hospital or other
suitable place of custody, and the court shall issue a
warrant in accordance with that order; and the warrant
shall be sufficient authority for the detention of the
accused until the President makes a further order in the
matter or until the court which found him incapable of
making his defence orders him to be brought before it
again
19

20.  Section 163;
 If MO finds a remand pt in his/her facility fit to stand
trial he/she will write to the DPP
 DPP then writes to inform court of the possibility to
CT with trial
20

21. 21
Sec: 166: Various sub sections –admission of
special categories. Accused persons found
guilty but insane
President
 President - commits pt to mental hospital or other
custody
 In 3yrs, a review is made, report given to the
president or 2yrs after the previous report for
consideration

22. Prisons Act CAP 90
Prisons Act; Sec 38:
 Convicted prisoners
 Prison medical Officer gives authority on P.F.23
 Discharge is upon recovery either back to prison,
to civil side or home
 This is after review of the in-charge of the mental
hospital that the pt no longer of unsound mind –
informs the in-charge of the prison the pt was
committed to
22

23.  If the sentence convicted expires while in a mental
hospital, the mental health act is applied
NB: The period that the prisoner has been
detained in a mental hospital shall be counted
as prisonment term served
23

24. The Nurse and the Criminal Justice System
Giving advice in relation to the following issues:
 Fitness to plead (Fitness to stand trial)
-Does the person understand the nature of
the charge
-Understand the difference between pleading
guilty and not guilty, instruct a counsel,
challenge assessors; note the confounders...
deafness, dump, mental retardation
24

25.  Mental state at the time of offence, before and during
trial and during imprisonment.
-whether:
actus reus; carried out an unlawful act
mens rea; had a certain guilty state of mind at
the time of crime
M’Naghten test; does the person understand
the nature and the quality of his actions? If so,
does he know the actions were wrong?
Does the person appreciate the wrongfulness of
his behavior?
The Durham test; Is the persons criminal
behavior the “product” of the Mental illness
25

26. Categories of Mens rea
 Intent: This is the explicit and conscious desire
to commit a dangerous or illegal act.
 Knowledge: This term applies if a person is
aware that his or her actions will have certain
results, but does not seem to care.
 Recklessness: the is the decision to commit a
certain action despite knowing about associated
risks.
 Negligence: When a person commits
negligence when she fails to meet a reasonable
standard of behavior for her circumstances.
 Blameless inadvertence: one reasonably fails
to foresee the consequence of his actions
26

27. NB: When faced with an offense, a mentally ill
pts;…
 May still be fit to stand.
 May be not guilty by reason of insanity
 Diminished criminal responsibility eg manslaughter
 Incapacity to form an intent secondary to automation
Plea for not guilty could be awarded in the
following situations;-emotional immaturity
-Mental instability
-Psychopathic personality
-reactive depressed state
etc….find other situations
27

28. How to achieve this???
 Patient hx; PPHx, SBST use hx, Family Hx,
Personality Hx: Marital, education,
employment……
 MSE
WHY???
 Identify mental state of the patient at the time of
interview and the time of alleged offence
 Competence to attend court and make a defence
 Criminal responsibility
 Dangerousness
28

29. Fitness to stand trial
the court can order that a patient be observed, treated
and an opinion regarding his fitness to stand trial be
given.
Determine;
 orientation to place, person and time.
Understanding of questions asked.
Understanding of the nature of the charge.
Understanding the difference between guilty and not
guilty.
ability to instruct his/her advocate.
Ability to follow the evidence presented in court

30. Areas for Further Reading
 Model Penal Code Test
 The Durham Rule
 The Irresistible Impulse Test
 The M'Naghten Rule
30

31. References
 Halter, M. J. (2014). Varcarolis’ Foundations of Psychiatric Mental Health
Nursing: A Clinical Approach. 7th Ed. St. Louis: Elsevier. Retrieved from
https://arit.kpru.ac.th/ap/e-med//contents/catalog/M2019-
006/Varcarolis_Foundations_of_Psychiatric_Mental_Health_Nursing_A_Cli
nical_Approach.pdf
 LAWS OF KENYA: MENTAL HEALTH ACT; CHAPTER 248. Retrieved from
http://guidelines.health.go.ke:8000/media/MentalHealthAct10of1989.pdf
 Laws of Kenya: The Prisons Act; CHAPTER 90. Retrieved from
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/PrisonsActCap90.pdf
 Laws of Kenya: CRIMINAL PROCEDURE CODE; Chapter 90. Retrieved
from http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2075
31