Mental health, the law, and commerce


May is the month of mental health awareness. During the month, there are several campaigns to champion the rights of mental health patients.

In Kenya, mental health rights awareness is becoming common with increased sensitisation programmes. Gone are the days when mental health and patients were a stigma.

There is a close relationship between mental health rights and the law.

The law considers a mentally unsound person to be unfit or incapable of performing certain tasks. The principle of incapacity is that a person is deemed unable to do certain things legally.

For example, according to the law, they are not able to enter contracts in their own name, they are not able to hold directorship positions and they are not able to run for political office.

The law is such that once a person is considered to be mentally unfit, he is assumed to lack capacity to undertake any of the above transactions. It is clearly stipulated in many laws.

In certain commercial agreements, the incapacity clause is such that the agreement automatically terminates upon a person is declared mentally unfit. For example, in articles of association, it is stated that a director ceases to hold office upon being declared mentally unfit.

The law, therefore, places a lot of legal limitations on a person that is mentally unfit.

However, the law also protects the affairs of mental health patients. In the Mental Health Act, under Section 26, the court can make orders to protect the estate and the affairs of a mentally unfit person.

Section 26 allows the court to make orders for the estate's management and allows for guardianship.

What these two provisions mean is that the estate of a mentally unfit person can be managed by a court-appointed manager in the best interest of the patient.

Guardians are appointed from close relatives or family members.

The guardian protects the affairs of the mentally ill patient, for example, by making decisions on his behalf such as medical treatment and others.

This is an important clause for persons of close proximity to the one who is or becomes mentally unsound.

Family members or colleagues can still protect the interests and affairs of a mentally unsound person by invoking any of the provisions under Section 26 of the Act.

The limitations

The manager and guardian appointed by court have been given a mandate to act in the best interest of the patient.

However, they cannot do certain acts without the court’s authority. For example, they cannot mortgage, charge, sell or transfer any of the patient’s assets without authority of the court.

They are also barred from making any investments without court authority. In the event the manager or guardian appointed seeks to be remunerated, he is paid out of the patient’s estate.

In some cases, a mentally unfit person does not have any close relatives or anybody seeking to act as a trustee for him. In such a case, the court can appoint the public trustee as the guardian.

The guardians and trustees have authority to do binding acts such as executing documents on their behalf in commercial transactions.