Mental Health Act

The Act may be cited as the Mental Health Act.

This section provides definitions for terms used in the Act, listing meanings for terms such as "Board", "Cabinet Secretary", "Director", "mental health practitioner", "person with mental illness" and others.

Promote the mental health and well-being of all persons, including reducing incidences of mental illness.

Promote and fulfil the right to the highest attainable standard of health as enshrined under Article 43 of the Constitution.

The National Government must provide the necessary resources for mental health care and treatment at National referral health facilities.

County governments must provide a range of mental health services, community programmes, resources and funding and ensure programmes are comprehensive, with a county executive committee member permitted to delegate functions.

Each county has a county mental health council with specified members; members (other than those appointed under subsections (2)(a) and (b)) serve a single three-year term and may not be reappointed.

Persons with mental illness are entitled to fully participate in the affairs of the community in any position suitable and based on their interests and capabilities.

Everyone has a right to the highest attainable standard of mental health services, including physical and mental health care, counselling, rehabilitation and after-care support; priority is given to community and outpatient primary mental health care; mental health practitioners must take into account the mental health condition of the person; treatment should uphold dignity and support participation and quality of life.

Persons with mental illness have the right to choose an appropriate form of treatment; guardians of minors have the right to choose treatment and must give written consent before treatment; a duly appointed supporter must, when giving consent, comply with the person's will and preferences.

Persons with mental illness have the right to participate in formulating their treatment plans; guardians, appointed supporters, and representatives have corresponding participation rights in specified circumstances; appointed supporters must comply with the will and preference of the person with mental illness.

Persons with mental illness have a right to access medical insurance; governments must consider their needs in schemes; insurers must not discriminate; contravening persons or insurers face fines or imprisonment.

People with mental illness have a right to protection from exploitation; witnesses must report abuse; contravening this section is an offence punishable by up to three years' imprisonment or a fine up to one million shillings, or both.

Every person with mental illness has the right to exercise all civil, political, economic, social and cultural rights, subject to limits set by this Act.

Persons with mental illness have the right to access information including mental and other health status, clinical records and related information, and health service providers; certain supporters or representatives may access that information; the Cabinet Secretary must make regulations specifying procedures and timeframes.

Persons with mental illness have confidentiality for all information about their care and treatment, subject to specific exceptions listed in subsection (2).

Persons with mental illness may appoint a supporter and must enter into a supportive decision making agreement when appointing one; representatives may act for treatment if appointment is not possible; entitled persons may get a free interpreter; supporters/representatives may appoint others for complaints or appeals.

A supporter must owe a duty of care and ensure decisions follow the will and preference of the person with mental illness; the supporter must consider the person’s long‑standing beliefs and interpret will and preference in light of constitutional and international rights, must not make decisions creating a conflict of interest, and must ensure decisions last only for the shortest time while encouraging the person to express their will.

A person with mental illness is entitled to recognition before the law and to enjoy legal rights on an equal basis with others in all aspects of life.

Section 4 establishes the Kenya Board of Mental Health, lists membership categories and qualifications, requires the Cabinet Secretary to appoint certain nominated members by Gazette notice, sets a three-year term (with one re-appointment) for specified members, makes the Secretary to the Board the Chief Executive Officer, and gives the Board powers to co-opt persons, establish committees, and regulate its business (subject to the Schedule).

Section 4A: Vacancy in theBoard — states "Section dies;"

Lists grounds for removal of a board member (inability due to physical or mental incapacity; gross misconduct; incompetence or negligence; and any other ground under written law) and provides steps to investigate and recommend removal.

The Board may, by resolution either generally or in any particular case, delegate any of its powers or the performance of any of its functions or duties to a committee of the Board or to any member, officer, employee or agent of the Board.

Section 5 (Functions of the Board) has been deleted by Act No. 27 of 2022, s. 9.

Establishes the office of Director of Mental Health in the Public Service; the Director is to be competitively recruited and appointed by the Public Service Commission; sets qualifications and assigns the Director duties including being chief executive and accounting officer and managing the Secretariat; staff may be appointed to support the Board.

Section 7 is deleted.

Section 8(1) provides that the Board's expenses shall be met out of funds voted by Parliament. Section 8(2) requires the Cabinet Secretary (for health) to determine the Board's remuneration in consultation with the Salaries and Remuneration Commission.

Section 9 sets out how mental health units are established and managed: the Board and county executive committee members may designate places as mental health units; the Board may authorize prison places for treatment; the Cabinet Secretary must make rules; designated public and specified private facilities must provide inpatient and outpatient mental health treatment.

Establishes a mental health unit operated and managed by the national government or a county government.

People intending to establish private mental health facilities must apply to the relevant medical regulatory body in the prescribed form and pay the prescribed fee; applicants granted approval must notify the county mental health council; private mental health facilities are subject to the Act's mental health unit standards and regulations.

Creates penalties for fraudulently procuring registration of a private mental health facility: natural persons face a fine up to four million shillings or imprisonment up to ten years, or both; bodies corporate face a fine up to ten million shillings. The Kenya Board of Mental Health may also lodge a complaint with a relevant professional body for disciplinary proceedings.

The sub county health records officer must enter data submitted under subsection (1) into the Health Information System within fourteen days of receipt.

The mental health facility or unit must record every instance of physical restraint or seclusion, including reasons, nature and extent, in the medical records of the person with mental illness.

Who may give informed consent for treatment: the person with mental illness, or if they cannot, their supporter, representative (if no supporter), or guardian for minors; consent must be given freely, with adequate disclosure, choice, competence and recorded in writing.

Persons with mental disorders may not be admitted into Kenyan mental hospitals from outside Kenya except under the rules in this Part; the Part does not apply to persons ordinarily resident in Kenya.

Foreign governments or relevant authorities must apply in writing to the Kenya Board of Mental Health for approval before admitting a person with mental illness from a foreign country into a Kenyan mental health facility; the person in charge of the facility must ensure subsection (1A) requirements are met, examine the person, and forward a report and accompanying warrant to the Board.

The Cabinet Secretary may prescribe admission fees for persons with mental illness in national referral mental health units (after consulting the Cabinet Secretary responsible for finance) by Gazette notice; the county executive committee member may prescribe fees for county mental health units by Gazette notice; private mental health facilities may charge fees subject to approval in writing by the Cabinet Secretary responsible for finance in consultation with the Council of County Governors.

The guardian of a minor must submit a written application in the prescribed form to the person in charge of a mental health facility or unit for the minor's admission; the person in charge must review the person's condition within seventy-two hours of receiving them.

Section 11 is deleted.

Section 12 has been deleted.

Section 13 deleted.

Involuntary admission is permitted when a person with mental illness poses immediate harm, faces serious deterioration, or requires in-patient treatment that cannot be provided as an outpatient; applications may be made by a supporter, representative, guardian or carer/relative; medical practitioners who recommend admission must examine the person and record dates and grounds; detention by the person in charge is limited to the duration necessary to stabilise and provide care; determinations lapse 14 days after the last examination by a mental health practitioner.

Section 15 has been deleted.

If a person with mental illness is admitted in an emergency, the person in charge must inform the person's next kin within twenty-four hours of admission.

Police officers who take a person into custody under subsection (1) must deliver that person to a health facility within twenty-four hours, and the police officer bears the burden of proving delivery.

Medical officers must examine admitted members within forty-eight hours; members may be admitted to a mental health unit for up to fourteen days subject to review; the person in charge must inform the nearest Kenya Defence Forces unit if a member is admitted while away from their unit.

The Cabinet Secretary must, in consultation with the Kenya Board of Mental Health and the Council of County Governors, prescribe by regulation the procedure for review under this Act.

A person in charge may, by written order and upon recommendation from the treating medical practitioner and mental health practitioner, order the discharge of a person with mental illness; that person shall be discharged as having recovered, and shall also be discharged where treating practitioners decide no further treatment is possible and reintegration and after‑care efforts are being made.

Persons listed (supporter, representative, or guardian) who intend to take custody must apply; the person in charge may release the person with mental illness into the applicant's custody on conditions; if the applicant later cannot continue care they must report it; the person in charge must readmit the person under prior terms.

A person may be transferred between specified mental health units with approval of the person in charge; consent for transfer must be obtained from a supporter, representative, or guardian in defined situations.

A person with mental illness may be transferred from a Kenyan mental health unit to a mental health unit in a foreign country for treatment and care with the Board's approval, subject to inquiry by the Board and prior consent from the foreign authorities.

The costs of removing a person under this Part, their maintenance after removal, return, and sending them elsewhere after discharge must be paid as arranged between the Government and the appropriate authorities of the other country.

Section 26 sets out who may apply for administration (a supporter or, if no supporter appointed, the person's representative), requires particular information to be included with an application, and gives the High Court powers to order service, waive service, and to have the person examined or examined by a qualified registered mental health practitioner.

The High Court may appoint a manager of the estate of a person with mental illness and shall notify the public in the Gazette of such appointments; any person may object within fourteen days of that Gazette notice.

A manager (any person appointed under Part XII) must perform their duties responsibly, taking into account the best interests of the estate of the person suffering from mental illness.

Section 29 requires an inventory and annual accounts of property and money relating to a person with mental illness; after payment of a prescribed fee supporters, representatives or any interested person may inspect and copy those records; the Public Trustee must report annually to the Cabinet Secretary and the Board; the High Court may summon the manager and make orders if the inventory or accounts are disputed.

A manager appointed under Part XII who contravenes this Part commits an offence and may be punished by up to three years' imprisonment or a fine up to two million shillings, or both; loss from mismanagement can be recovered as a civil debt from the manager's estate if the High Court so determines.

Section 31 provides for removal of a manager, appointment of another manager, transfer of property to the new manager, and accounting to the new manager for money received or disbursed.

The person in charge or a mental health practitioner must allow a patient to communicate by letters, telephone calls and emails to recipients where practicable.

The person in charge may refuse to admit a person with mental illness into the facility if accommodation is insufficient or unsuitable; if they refuse, the person in charge, in consultation with the mental health practitioner, must prescribe and administer an outpatient treatment plan while alternative accommodation is sought.

Persons acting in pursuance of the Act are exempt from civil or criminal liability if a court finds they acted in good faith and with reasonable care; courts may stay proceedings and award costs when proceedings are without reasonable ground; proceedings are time-barred after six months in most cases; persons retain any defence; the Director of Public Prosecutions must be notified within thirty days of instituting criminal proceedings.

People who own a financial interest in a mental health facility must not sign medical recommendations for admission or medical certificates for sections 10, 14 and 15 unless the person concerned is admitted to the facility or lawfully detained for observation by the signer at the time of signing.

If the person in charge discovers a defect in an admission procedure or medical recommendation after someone is admitted to a mental health facility or unit, the person in charge may require the defect to be corrected within fourteen days of admission.

People admitted to a mental health facility must remain admitted until they leave, are removed, or are discharged under the Act; if an admitted person escapes, police, facility staff, or others authorized by the person in charge may, upon finding them, convey them back into the facility.

Persons with mental illness have a right to lodge complaints about how they were treated by health professionals; supporters, representatives, guardians or other persons may lodge complaints on their behalf; the Authority must decide and report within six months; dissatisfied complainants may appeal to the High Court.

Anyone who is not a medical practitioner or authorised person and knowingly signs a medical certificate for purposes of this Act commits an offence.

Medical practitioners who knowingly, wilfully or recklessly certify anything in a certificate under this Act that they know to be untrue commit an offence.

It is an offence for any person to wilfully assist the escape of a person with mental illness being conveyed to or from, or under treatment in, a mental health facility or to harbour a person with mental illness known to have escaped from such a facility.

Persons in charge or employed at a mental health facility must not, through wilful neglect or connivance, permit a patient to leave the facility except under this Act or any other law.

People in charge of, or employed at, a mental health facility or unit must not strike, ill‑treat, abuse or wilfully neglect any patient; doing so is an offence.

Anyone who, without the consent of the person in charge, gives, sells or barters any articles or commodities to a patient in a mental health facility (inside or outside the facility grounds) commits an offence.

Anyone guilty of an offence under this Act, or who contravenes any provision of this Act or its regulations, is liable on conviction to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both.

Regulations prescribing the form of the supportive decision-making agreement.

The Chief Justice may make rules about court procedure under this Act.

The Mental Treatment Act (Cap. 248) is repealed.

Licences or orders and mental hospitals created by the Board before this Act commenced are treated as if issued or established under this Act.