In recent times, there has been a significant shift in perspective towards mental health, which has been stigmatized in the past. Mental health issues have gained widespread recognition internationally, with various factors, including work-related stress, contributing to the development or exacerbation of the said issues.
What occurs when an employee faces challenges in performing their duties due to mental health issues? The Supreme Court recently highlighted this concern in Petition No. 10 (E013) of 2022 between Lady Justice Mary Muthoni Gitumbi and the Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice Mary Muthoni Gitumbi. The Supreme Court, through its determination, has thus issued comprehensive guidelines to consider in addressing matters involving mental health conditions, mental incapacity and their impact on an individual’s work performance.
This case emphasizes the increasing importance of addressing mental health concerns within the workplace as they can significantly affect an employee’s ability to effectively carry out their responsibilities. Employers are urged to approach this matter with sensitivity and seriousness, recognizing the impact it can have on both employees and the overall work environment.
BRIEF BACKGROUND OF THE CASE
Hon. Lady Justice Mary Muthoni Gitumbi, the Petitioner in the matter, was nominated as a Judge of the Environment and Land Court in 2012. Prior to her appointment, the Judicial Service Commission (“JSC”) received information suggesting a history of mental illness (“mental health condition”), leading the JSC to conduct a mental assessment to determine her suitability. The mental assessment report affirmed her fitness for office, leading to her appointment as a Judge.
During her tenure, the JSC received complaints about the Petitioner, including concerns about delays in delivering Rulings and Judgments. In response, the JSC conducted an inquiry, requested performance reports and initiated a second medical examination. The subsequent medical examination board’s report indicated below-average performance and raised doubts about her fitness for office.
In accordance with Article 168(1) of the Constitution of Kenya, 2010, the JSC initiated proceedings for the removal of the Petitioner on grounds of mental incapacity and eventually she was removed from her position as a Judge of the Environment and Land Court following a decision by the Tribunal established to investigate her conduct. Dissatisfied with this decision, Hon. Lady Justice Mary Muthoni Gitumbi appealed to the Supreme Court.
KEY ISSUES FOR DETERMINATION
In its review, the Supreme Court reduced the matter into the following key issues:-
- Whether the Tribunal operated within its prescribed jurisdiction in rendering the findings outlined in its report;
- Whether the Petitioner’s mental incapacity was satisfactorily established; and
- Whether the identified mental incapacity rendered the Petitioner unable to effectively discharge the responsibilities associated with the office of a Judge of the Environment and Land Court (“ELC”).
1. Jurisdiction
The Petitioner raised concerns regarding the jurisdiction of the Tribunal tasked with her the investigation of her conduct, contending that it had overstepped its limits when addressing matters related to mental health condition and mental incapacity. The Supreme Court upon examination, ascertained that the Tribunal’s investigation was centered on the Petitioner’s capacity to fulfill her duties considering the presence of mental incapacity. This angle was found to be consistent with the authority vested in the Tribunal under Article 168(1) (a) of the Constitution. The Tribunal’s conclusion that the Petitioner’s mental health condition resulted in mental incapacity and an inability to fulfill her office’s functions was therefore deemed consistent with its mandate, as it solely considered the issues presented in the JSC’s petition.
2. Mental Incapacity
The Petitioner contended that the required standard of proof was not met and the Tribunal made an erroneous conclusion that mental health condition equated to mental incapacity. Conversely, the Investigative Tribunal, the Respondent in the matter, contended that the evidence presented adequately demonstrated the Petitioner’s inability to carry out her responsibilities, thus meeting the standard of proof.
In the present case, it was not disputed that the Petitioner had a mental health condition; however, the fundamental question was whether this illness resulted in her mental incapacity. Upon consideration of factors such as the nature of the illness, its symptoms, the consequences of relapses, the extent of mental impairment caused by the disease and the evidence before the Tribunal, the Supreme Court affirmed the Tribunal’s determination that the Petitioner’s mental health condition indeed led to her mental incapacity. Notably, there was a significant increase in instances of relapses and hospitalizations during her tenure as a Judge, primarily attributed to her non-adherence to prescribed medication which intensified the severity of her mental health condition.
In rendering decisions pertaining to mental incapacity, the Supreme Court, in its determination, has established the following guidelines and jurisprudence for the guidance of Courts:
- Mental incapacity includes but is not limited to a person’s inability to make a decision, understand information about a decision, remember information and use the information to make a decision or communicate a decision.
- Mental incapacity can result from a mental health condition but it does not necessarily follow that mental health condition equates to mental incapacity.
- Mental incapacity must be diagnosed by a qualified professional.
- A Court must assess whether an employer has taken the necessary steps to convene an impartial medical board comprised of qualified professionals tasked to ascertain whether the employee, due to a mental health condition, is incapable of performing the duties associated with the relevant position.
- If an employee’s mental health condition is adversely affecting their ability to perform their duties, in some instances, the employer, following due process, may terminate the employee’s contract of employment or recommend the employee’s removal from office.
- A Court must consider the diagnosis by a qualified professional and medical expert evidence and assess whether, on a balance of probabilities, the employee’s mental health condition affects their work duties.
- Where a person is deemed to lack mental capacity, any interference with his or her fundamental rights and freedoms must be the least restrictive possible.
3. Whether the mental incapacity affected her performance as a Judge
The Petitioner argued that there was insufficient evidence to establish her inability to fulfill her duties as a Judge of the ELC. However, the Supreme Court examined the evidence presented before the tribunal, which indicated that the Petitioner’s performance fell below the expected standard, resulting in a substantial number of pending Judgments and Rulings. Additionally, her mental health condition led to instances of absenteeism, both during hospitalization and when experiencing illness without hospitalization. This led to frequent adjournments of her cases or their allocation to other Judges of the ELC, consequently adversely affecting the Court’s overall performance.
Furthermore, the Presiding Judge and the then Chief Justice had received numerous complaints from Advocates and other Court users regarding the Petitioner’s performance. The Supreme Court also took into account that the medication she was prescribed had an impact on her alertness and concentration. Consequently, the Supreme Court upheld the Tribunal’s determination that the Petitioner’s mental health condition was the underlying cause of her mental incapacity, rendering her unable to carry out her duties as a Judge of the ELC by determining as follows: –
- There must be proof that a person has an illness, condition or injury that affects the manner in which the brain or mind works; and
- That the illness, condition or injury affects the person to the extent that they are unable to perform their duties to the requisite standard.
CONCLUSION
Mental health is a matter of utmost importance that should be treated with care and not taken lightly. It is paramount to raise awareness about mental health and the significance of safeguarding one’s mental well-being. The prevalence of mental health issues in our country has underscored the existing gaps within legislation concerning mental capacity and the criteria for assessing mental capacity, among other related issues.
In accordance with the recommendations put forth by the Supreme Court, it is imperative for Parliament to take proactive measures to harmonize various statutes, including the Employment Act and the Mental Health Act, in order to establish a comprehensive framework that would address mental health considerations.
Finally, Employers play a pivotal role in creating a supportive and empathetic environment for individuals facing mental health challenges, all while ensuring that situations such as those that arose in this matter are handled in accordance with due process and in compliance with legal standards.
If you have any inquiries or seek further insights on the topic please feel free to reach out to our firm. We are here to assist you with any questions or legal concerns you may have.
Author:
Daniel Kariuki
Associate – Dispute Resolution and Adoption
