• Legal reform of laws that affect forensic patients is urgently needed 
• Existing laws a hindrance to developing forensic mental health services 
• Forensic patients cannot be given a trial of community-based activities prior to their release

Forensic psychiatric services in Sri Lanka are very much underdeveloped and underfunded. Hence, reform in current laws that affect forensic patients is urgently needed as existing laws have become a hindrance to developing forensic mental health services in the country.

These concerns were raised in a Chapter (Number Six) on 'Forensic Psychiatry and Prison Mental Health in Sri Lanka' which was authored by C Abhayanayaka, L A P de Alwis and T S S Mendis , and published in South Asian Perspectives in Mental Health and Psychology' Forensic Psychiatry and Prison Mental Health in South Asia, in 2025.

Prison mental health services in SL

All prison mental health services in Sri Lanka are in-reach services funded and run by the health staff of the Health Ministry. Many regional generalist psychiatrists conduct clinics in their local prisons. In addition to in-reach prison services, there are non-specialist medical officers (MOs) appointed by the Ministry, working within the different prisons, who assess and follow up with patients with mental illness as part of their role in providing healthcare within prisons. There are often close liaisons between these MOs and the prison in-reach service staff. There are no legal provisions allowing for the involuntary treatment of prisoners in custody.

The Prisons Ordinance, No. 16 of 1877 (as amended) authorises the Prisons Commissioner General (CG) to transfer any prisoner to a Government hospital for assessment or the treatment of any medical illness. These provisions are used to transfer prisoners to the Forensic Inpatient Services in Colombo, Kandy, and Galle. Only the Forensic Inpatient Service at the National Institute of Mental Health (NIMH) can accept and take over the custody of prisoners. In other places, prisoners are accompanied by correctional officers, and physical restraints are employed to prevent escape. Due to the high level of manpower necessary, the duration of stay for prisoners in general psychiatry inpatient units (even when admitted to specified forensic beds in Kandy and Galle) is short.

The Colombo group of prisons, housing more than 60 per cent of the total prison population, which includes the Welikada Prison (the largest maximum-security Prison), the Colombo Remand Prison, the Magazine Prison, and the Welikada Female Prison, provides in-reach services through the Forensic Psychiatry Service of the NIMH. The Kandy Forensic Psychiatry Service provides services to the New Bogambara Prison in Pallekele, which is the second-largest maximum-security Prison. The Galle Forensic Psychiatry Service supports the Galle and Boossa Prisons. Prisoners are referred to these in-reach clinics by courts, judicial medical officers (JMOs), and MOs.

Both the Welikada Prison and the New Bogambara Prison have Hospitals built within the Prison compounds. Both Hospitals have psychiatric wards where prisoners with serious mental illnesses deemed unmanageable in the general prison population are transferred. Despite the psychiatry unit inside the Welikada Prison Hospital having a bed capacity of about 50 beds, the ward houses between 100 and 120 mentally-ill prisoners. The majority of the patients do not have access to a bed and sleep on the floor. This ward is very much overcrowded and understaffed. It is serviced by one MO (an MO of Mental Health [MH]) with the help of other prisoners who are part of a work party. There is no dedicated nursing staff, but, general nurses from the main Welikada Hospital would assist when needed. Like the Welikada Prison Hospital, the New Bogambara Prison Hospital has a 30-bed psychiatry ward. There are only three doctors for the whole of the New Bogambara Prison Hospital, and only one has had training in managing mental illness. The psychiatry ward in the New Bogambara Prison is often overcrowded. From both Prison psychiatry units, those prisoners requiring more intensive care or further observation and assessment are transferred to the Forensic Inpatient Service in Colombo or the Kandy Hospital Psychiatry Unit.

Treatment in forensic psychiatry

At present, forensic psychiatric services mostly concentrate on the treatment of acute exacerbations of serious mental illness among mentally-ill offenders and on providing court reports. Forensic rehabilitation services are very much in their infancy. Overcrowding, the high turnover, and the limited availability of trained allied health staff make having a bio-psycho-social approach challenging. Even in the Colombo Forensic Inpatient Service with a dedicated Forensic Rehabilitation Unit, many of the activities that take place are not tailored to the individual but focused on groups. The activities are not addressed to fulfilling criminogenic or vocational needs; rather, they are to keep detainees entertained and occupied. The beds in the Forensic Inpatient Service in Colombo are the only beds that can be considered specialised forensic beds. For a population of 22 million people, this number of forensic beds is grossly inadequate. Treatment disruptions are common at the point of transfer between the inpatient units and the prison, with a significant number relapsing while awaiting their judicial inquiry in custody. The level of overcrowding in prisons means that monitoring and supervising the treatment of a prisoner with mental illness becomes a challenging task.

Legislative framework

Mental Diseases Ordinance, No. 27 of 1956

The Mental Diseases Ordinance, No. 27 of 1956 (as amended) regulates involuntary detention and the treatment of those with serious mental illness. The Ordinance allows for people with serious mental illness to be committed to a mental hospital through courts or to be temporarily detained for treatment by two doctors. It does not contain provisions for an independent, external review of these detentions but allows for “Visitors” appointed by the Government to supervise the mental hospital and inquire into the welfare of those detained. At present, only the NIMH would be considered a mental Hospital. However, all large hospitals in the different Provinces have psychiatry inpatient units, where people with serious mental illnesses are treated involuntarily. The Ordinance does not allow for involuntary treatment in the community. 

The provisions for the insanity defense or for those who are unfit for trial are contained within the Penal Code (Ordinance No. 2 of 1883) (as amended) and the Criminal Procedure Code (CPC) [Code of Criminal Procedure Act, No. 15 of 1979 {as amended}]. The Ordinance allows for mentally ill prisoners to be transferred to a mental hospital for involuntary treatment.

Insanity defense

Provisions for the insanity defense are found in Section 77 of the Penal Code. Section 77 states that “Nothing is an offence which is done by a person who, at the time of doing it, because of unsoundness of mind, is incapable of knowing the nature of the act, or that he/she is doing what is either wrong or contrary to the law.” This allows for complete exoneration from any crime if a defendant is found to be unsound at the time of the offence. The defense is based on an intellectual understanding of the offence. Thus, if a defendant was unaware of the nature of their actions or the wrongfulness due to mental illness, they would be considered to have been unsound at the time of the offence and would be exonerated from punishment.

Once found unsound, the subsequent management of this person is directed by provisions within the CPC. Section 381 of the CPC, reflecting an older Victorian tradition, states that a person who is of unsound mind would be detained in a safe place of custody until the (Justice) Minister’s wishes are known. The safe place of custody may be a mental hospital, prison, or other “suitable place” of custody. The Mental Hospital referred to in this Section is the NIMH. The person detained would be periodically reviewed by the Visitor’s Board to decide if they have sufficiently recovered to be handed over to a family member or a friend or be released back into the community.

Unfitness for trial

Sections 374 and 375 of the CPC specify that any person unable to make a defense (unfit to plead and stand trial) as a result of mental illness will have their trial or inquest postponed until recovery. However, nowhere in the CPC is the legal test for this determination defined. Instead, this is defined in case law. When a defendant is found to be unfit for trial, they may be given bail until they have recovered sufficiently to resume the trial. If unsuitable for bail, they would be detained in custody and periodically reviewed until they have recovered from their mental illness adequately to be able to make their defense. The Sri Lankan law does not contain specific legal provisions on how to dispose of those who are permanently unfit for trial. This has resulted in defendants who are permanently unfit for trial languishing in detention indefinitely if they are unable to secure bail. This has been identified as a contravention of human rights against this vulnerable population.

Burden and the quantum of proof

The burden of proof for the insanity defense rests with the defense and needs to be proved on a balance of probabilities (A. De Alwis and N. Fernando's "The insanity defense and the assessment of criminal responsibility in Sri Lanka"). The issue of unfitness may be raised by the defense, the prosecution, or the presiding judicial official during any stage of a criminal inquiry. The burden lies upon the party that raises the issue and is decided on a balance of probabilities.

Disposal of those found not guilty by reason of insanity and unfit for trial

Sri Lanka does not have any legal provisions specifically establishing forensic mental health orders or supervision orders for those found not guilty by reason of insanity or unfit for trial. Instead, the limited disposal options include release from custody with friends or family or detention until the Justice Minister’s wishes are known. The Minister’s decision is influenced by recommendations made by the Visitor’s Board, who review detainees every three months. The Visitor’s Board consists of an independent psychiatrist, a representative from the Justice Ministry, and a high-ranking prison official representing the Prisons CG. They would review those detained under Sections 376 and 381 of the CPC in prison as well as in the Forensic Inpatient Service in Colombo and make recommendations that would be sent to the Minister. It is a process with long bureaucratic delays and inefficiencies. When decisions are made, they are made at a judicial or administrative level without much clinical input. Once released, there are no legal mechanisms to monitor the ex-detainees. Sri Lankan law, including the Mental Health Ordinance (as amended), lacks provisions for compulsory and supervised outpatient treatment. Patients may only be treated involuntarily in a hospital setting. Thus, forensic patients cannot be given graduated leave or a trial of community-based activities before release.

Conclusion

Forensic psychiatric services are very much underdeveloped and underfunded. The overcrowding in forensic units, the high volume of work (under time pressure from courts), and the prospects of having to potentially testify in courts make jobs in forensic psychiatry less desirable. This is further compounded by the brain drain of the psychiatry resource pool due to better prospects in other countries.

Sri Lanka would benefit from making forensic services less centralised. Developing services around the major cities is a viable option as more trained staff become available. Having a purpose-built forensic inpatient service with multiple units to house acute, sub-acute, and long-term detainees, with a higher bed strength, will ease the pressure for beds in the existing units. Changes to bail laws and sentencing options are necessary before overcrowding in prisons can be addressed.

Sri Lanka’s legal framework is lagging behind that of its neighbours, many of whom have modernised their mental health Acts to better address contemporary challenges. Reform in current laws that affect forensic patients is urgently needed, as existing laws have become a hindrance to developing forensic mental health services in the country.