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HUMAN RIGHTS PRINCIPLESAPPLICABLE TO SOUTH AFRICAN MENTAL HEALTH LAW

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Chapter 1 – Introduction

In this introductory chapter the thesis statement, background, reasons for the research, research questions, the structure of the thesis, the scope of the study and the methodology are discussed. A brief history of mental health care practice and criminal law and procedure in South Africa is given, along with a discussion of key issues in the interface between law and mental health to contextualise the importance of the study. The original contribution the thesis brings to the literature is articulated against this backdrop.

Human Rights Principles applicable to South African Mental Health

Law This chapter discussesthe human rights guaranteed to mentally disordered persons in the Bill of Rights in to establish their content and scope as a means against which to measure the mental health legislation discussed in the follwoing chapters. International human rights as contained in international customary law, conventions and soft law instruments is analysed in order to determine whether the rights entrenched in the Bill of Rights are sufficient in their content and correct in their interpretation as measured against global and regional standards. Specific rights discussed include the rights to equality; privacy; access to health care; freedom and security of the person; and freedom of religion, belief and culture.

Mental Health Care Practice: Context, Concepts, Classification and

Regulation in South Africa This chapter discusses the conceptual differences between the legal and mental health care professions, with regard to free will and determinism, capacity and competence, legitimacy and purpose, and mental disorder in legal and clinical settings. Further the psychology and psychiatry that underlie legal concepts are explored pertaining to the classification and categories of mental disorders, and the use of clinical assessment and diagnosis in forensic settings. The purpose of this discussion is to ascertain whether current mental health law and policy is rooted in accepted science.The chapter also deals with the influence of culture on the diagnosis and treatment of mental disorder and the Traditional Health Practitioners Act 22 of 2007; the regulation and training of mental health care practitioners in terms of the Health Professions Act 56 of 1974; and mental health care institutions and their administration in terms of the National Health Act 61 of 2003 and the Mental Health Care Act 17 of 2002.

A Critical Discussion of the Mental Health Care Act: Provisions,

Regulations, and Forms In this Chapter the Mental Health Care Act 17 of 2002 and its General Regulations are discussed. Particular focus is placed on the admission and discharge as a voluntary, involuntary and assisted mental health care user in terms of the Act. Issues dealt with include consent to treatment, the role of the South African Police Service, and mechanisms for accountability and transparency such as the Mental Health Review Boards, the judiciary and administrative law. Importantly, an analysis of the MHCA forms used in these processes is conducted. The human rights principles and psychiatric and psychological terminology as discussed in Chapter 2 and Chapter 3 are utilised as a measure against which the suitability and effectiveness of the Act and forms are evaluated and Corrective Services This chapter discusses criminal justice principles and the theories of punishment as backdrop against which the criminal law and procedure affecting the mentally ill offender and prisoner should be viewed. Mental health in criminal law is analysed regarding the different ways in which mental disorder might affect criminal liability (either affecting the voluntariness of conduct, unlawfulness, criminal capacity or fault) or might affect sentencing where diminished criminal capacity is present. Chapter 13 of the Criminal Procedure Act 51 of 1977 is discussed as it pertains to the capacity of the accused to understand proceedings in terms of Section 77, the criminal capacity of the accused in terms of Section 78 of the Act, and the panel for purposes of enquiry and report in terms of Section 79 of the Act. The Mental Health Care Act 17 of 2002 is also discussed in this chapter regarding State Patients and mentally ill prisoners, as well as the MHCA forms utilised. The constitutional validity and internal logical consistency of these provisions are debated.

 The Application of Mental Health Law in Practice

Chapter 6 contains a discussion of the current state of the mental health care system in South Africa and the practical application of mental health legislation. The prevalence of mental disorder and barriers to the effective implementation of existing policies are discussed to highlight the importance of not only legislative reform, but also of the necessary steps te be taken to ensure legislation is translated into the lived experience of mentally ill persons. Issues discussed include human resources and infrastructure, the efficiency of the Mental Health Review Boards, the administrative burden imposed on mental health care practitioners by the MHCA, and human rights abuses perpetrated in the provision of mental health care.
This chapter summarises the findings in the previous chapters of the thesis and makes recommendations for reform of mental health law and legislation. Recommendations are also made regarding the proposed amendment of the MHCA forms and avenues for future research. Recommendations take the form of suggestes issues, arguments and perspectives to be considered by the legislator in conjunction with all relevant stakeholders when composing legislation and policy to reform the current state of affairs.

  • TABLE OF CONTENTS
  • ACKNOWLEDGEMENTS
  • DECLARATION OF ORIGINALITY
  • ABSTRACT
  • KEYWORDS
  • EXPLANATORY NOTE ON SOURCE REFERENCING AND BIBLIOGRAPHY
  • TABLE OF FIGURES
  • CHAPTER 1: INTRODUCTION
    • 1.1. Introduction
    • 1.2. A brief history of mental health care practice and regulation in South Africa
    • 1.3. A brief history of criminal law and procedure regarding mental health in South Africa
    • 1.4. The current legislative framework for mental health law
    • 1.5. Factors considered in the interface between law and the mental health profession
    • 1.6. Thesis Statement, Hypotheses and Research Objectives
    • 1.6.1 General Statement of the Thesis
    • 1.6.2 Hypotheses
    • 1.6.3 Research Objectives
    • 1.7. Research Methodology
    • 1.8. Overview and Structure of Chapters
    • 1.7.1 Chapter 1 – Introduction
    • 1.7.2 Chapter 2 – Human Rights Principles applicable to South African Mental Health Law
    • 1.7.3 Chapter 3 – Mental Health Care Practice: Context, Concepts, Classification and Regulation in South Africa
    • 1.7.4 Chapter 4 – A Critical Discussion of the Mental Health Care Act: Provisions, Regulations, and Forms
    • 1.7.5 Chapter 5 – Mentally Disordered Persons in Criminal Law, Criminal Procedure and Corrective Services
    • 1.7.6 Chapter 6 – The Application of Mental Health Law in Practice
    • 1.7.7 Chapter 7 – Recommendations and Conclusion
    • 1.9. Value Contribution and Motivation of Thesis
    • 1.10. Note on terminology used in the thesis
    • 1.11. Conclusion
  • CHAPTER 2: HUMAN RIGHTS PRINCIPLESAPPLICABLE TO SOUTH AFRICAN MENTAL HEALTH LAW
    • 2.1 Introduction
    • 2.2 International human rights law
    • 2.2.1 Introduction
    • 2.2.2 International Customary Law
    • 2.2.1.1 The Universal Declaration of Human Rights (UDHR)
    • 2.2.3 International instruments
    • 2.2.3.1 The United Nations Charter (UN Charter)
    • 2.2.3.2 The International Covenants on Human Rights
    • 2.2.3.3 United Nations Convention on the Rights of Persons with Disabilities (CRPD)
    • 2.2.3.4 Optional Protocol to UN Convention on the Rights of Persons with Disabilities,
    • 2.2.3.5 Convention on the Rights of the Child,
    • 2.2.3.6 Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment,
    • 2.2.3.7 Convention on the Elimination of all Forms of Discrimination against Women,
    • 2.2.3.8 International Convention on the Elimination of all Forms of Racial Discrimination,
    • 2.2.4 Regional instruments
    • 2.2.5 Soft law
    • 2.3 South African legislation protecting the rights of mentally disordered persons
    • 2.3.1 The Mental Health Care Act 17 of 2002, Chapter III – Rights and Duties Relating to Mental Health Care Users
    • 2.3.2 The National Health Act
    • 2.4 The constitution of South Africa and the Bill of Rights
    • 2.4.1 Introduction
    • 2.4.2 The limitation clause
    • 2.4.2.1 International law considerations
    • 2.4.3 The right to equality
    • 2.4.3.1 Stigma
    • 2.4.3.2 International law considerations
    • 2.4.4 The right to dignity
    • 2.4.4.1 International law considerations
    • 2.4.5 The right to life
    • 2.4.5.1 Euthanasia and the right to die
    • 2.4.5.2 International considerations
    • 2.4.6 The right to freedom and security of the person
    • 2.4.6.1 Autonomy
    • 2.4.6.2 Competency
    • 2.4.6.3 Informed consent
    • 2.4.6.4 Medical research and experimentation
    • 2.4.6.5 Decisions concerning reproduction (section 12(2)(a))
    • 2.4.6.6 International law considerations
    • 2.4.6.6.1 Inhuman and degrading treatment
    • 2.4.7 The right to privacy
    • 2.4.7.1 Confidentiality
    • 2.4.7.2 International law considerations
    • 2.4.8 Religion, belief and culture
    • 2.4.8.1 The right to freedom of religion, thought, belief and opinion
    • 2.4.8.2 The rights of cultural, religious and linguistic communities
    • 2.4.8.3 International law considerations
    • 2.4.9 The right to an environment that is not harmful to health and well-being
    • 2.4.9.1 International law considerations
    • 2.4.10 The right to access to healthcare services
    • 2.4.10.1 International law considerations
    • 2.4.11 The Rights of Children
    • 2.4.11.1 International law considerations
    • 2.4.12 Right to Just Administrative Action
    • 2.4.13 Right of Access to Information
    • 2.4.14 The rights of arrested, detained and accused persons
    • 2.4.14.1 International law considerations
    • 2.5 Concluding remarks
  • CHAPTER 3: MENTAL HEALTH CARE PRACTICE: CONTEXT, CONCEPTS,CLASSIFICATION AND REGULATION IN SOUTH AFRICA
    • 3.1 Introduction
    • 3.2 Conceptual differences between the legal and mental health care professions
    • 3.2.1 Free will and determinism
    • 3.2.2 Capacity and competence
    • 3.2.3 Legitimacy and purpose
    • 3.2.4 Conceptualising mental disorder in clinical and legal settings
    • 3.3 Conceptual Differences Between The Mental Health Care Professions: Psychiatry and Psychology
    • 3.4 The Psychology and Psychiatry underlying legal concepts
    • 3.4.1 Classification of mental disorders
    • 3.4.2 Using clinical assessment and diagnosis in forensic settings
    • 3.4.3 Categories of mental disorders
    • 3.4.4 Ethics in medical decision-making
    • 3.5 The role of the Psychologist and Psychiatrist in court
    • 3.5.1 The forensic expert witness
    • 3.5.2 The liability of the expert witness
    • 3.6 The influence of culture on the diagnosis and treatment of mental disorder
    • 3.6.1 South Africa
    • 3.6.2 The Traditional Health Practitioners Act 22 of
    • 3.6.2.1 Definitions
    • 3.6.2.2 Traditional Health Practitioners Council
    • 3.6.2.3 Registration of Traditional Health Care Practitioners
    • 3.6.2.4 The DSM and its uses in culturally diverse environments
    • 3.6.2.5 Concluding remarks
    • 3.7 The regulation of mental health care practitioners
    • 3.7.1 The definition of “mental health care practitioner”
    • 3.7.2 The Health Professions Act 56 of
    • 3.7.3 The Health Professions Council of South Africa (The HPCSA)
    • 3.7.3.1 The establishment, objectives and powers of professional boards
    • 3.7.4 Education, training and registration of mental health care practitioners
    • 3.7.5 Continuing Professional Development
    • 3.7.6 Regulations to the Health Professions Act 56 of
    • 3.7.7 Offences by unregistered persons under the Health Professions Act
    • 3.7.8 Unprofessional conduct
    • 3.7.9 The disciplinary powers of professional boards
    • 3.7.10 Psychiatry
    • 3.7.11 Psychology
    • 3.7.12 Forensic mental health experts
    • 3.8 Mental health care institutions and their administration
    • 3.8.1 Introduction
    • 3.8.2 Levels of health establishments
    • 3.8.3 The National Health Act 61 of
    • 3.8.3.1 Eligibility for free health services
    • 3.8.3.2 National health
    • 3.8.3.3 Provincial health
    • 3.8.3.4 District health system
    • 3.8.3.5 Health establishments
    • 3.8.3.6 Evaluating services of health establishments
    • 3.8.3.7 Forum of Statutory Health Professional Councils
    • 3.8.4 The Mental Health Care Act 17 of
    • 3.8.4.1 Provision of mental health care, treatment and rehabilitation services at health establishments
    • 3.8.4.2 Community care
    • 3.8.4.3 Authorization and licensing of private hospital providing mental health services
    • 3.8.4.4 Licensing of community facilities
    • 3.8.4.5 Co-ordination and implementation of mental health services
    • 3.8.4.6 Decision by Head of health establishment
    • 3.8.4.7 Home visits
    • 3.8.4.8 Subsidies or transfers to non-government organisations or volunteer organisations
    • 3.9 Concluding remarks
  • CHAPTER 4: A CRITICAL DISCUSSION OF THE MENTAL HEALTH CARE ACT:PROVISIONS, REGULATIONS, AND FORMS
    • 4.1 Introduction
    • 4.2 The Mental Health Care Act 17 of
    • 4.2.1 Introduction and fundamental provisions
    • 4.2.1.1 Interpretation of the Act
    • 4.2.1.2 Objects of the Act
    • 4.2.1.3 Implementation of policies and measures by the State
    • 4.3 General comments on the MHCA forms and their completion
    • 4.4 Mechanisms of accountability and transparency
    • 4.4.1 The Judiciary
    • 4.4.2 Administrative law
    • 4.4.3 Mental Health Review Boards
    • 4.4.3.1 Establishment
    • 4.4.3.2 Powers and functions of the Review Board
    • 4.4.3.3 Composition of Review Board
    • 4.4.3.4 Removal
    • 4.4.3.5 Procedures of Review Board
    • 4.4.3.6 Legal nature of Review Board
    • 4.5 Voluntary users
    • 4.6 Assisted mental health care users
    • 4.6.1 Care, treatment and rehabilitation services for mental health care users incapable of making informed decisions
    • 4.6.2 Application for assisted care, treatment and rehabilitation services
    • 4.6.3 Recovery of capacity of assisted mental health care users to make informed decisions
    • 4.6.4 MHCA forms pertaining to assisted users
    • 4.7 Involuntary mental health care users
    • 4.7.1 Care, treatment and rehabilitation of mental health care users without consent
    • 4.7.2 Application to obtain involuntary care, treatment and rehabilitation
    • 4.7.3 72-Hour assessment and subsequent provision of further involuntary care,treatment and rehabilitation
    • 4.7.4 Involuntary outpatient mental health care user
  • CHAPTER 5: MENTALLY DISORDERED PERSONS IN CRIMINAL LAW, CRIMINAL PROCEDURE AND CORRECTIVE SERVICES
    • 5.1 Introduction
    • 5.2 Criminal justice principles
    • 5.3 The theories of punishment
    • 5.4 Mental health in criminal law
    • 5.4.1 Voluntary conduct
    • 5.4.2 Unlawfulness
    • 5.4.3 Criminal capacity
    • 5.4.3.1 Pathological and non-pathological criminal incapacity
    • 5.4.3.2 Criminal incapacity versus automatism
    • 5.4.3.3 Criminal capacity: A legal or medical term?
    • 5.4.3.4 Mental disorders and crime
    • 5.4.3.5 Personality disorders and criminal incapacity
    • 5.4.4 Fault
    • 5.4.5 Diminished criminal capacity
    • 5.5 The Criminal Procedure Act 51 of
    • 5.5.1 Capacity of accused to understand proceedings (triability)
    • 5.5.1.1 Constitutional validity of Section 77(6)(a)(i) and (ii)
    • 5.5.2 Mental illness or mental defect and criminal responsibility
    • 5.5.2.1 Onus on proving lack of criminal capacity
    • 5.5.3 Panel for purposes of enquiry and report under Sections 77 and
    • 5.6 The Mental Health Care Act 17 of
    • 5.6.1 State Patients
    • 5.6.2 Leave of absence of State Patients
    • 5.6.2.1 MHCA forms pertaining to the leave of absence of State Patients
    • 5.6.2.1.1 MHCA 27 – Leave of absence to State Patients in terms of Section 45 of the MHCA; or assisted or involuntary mental health care users in terms of Section 66(1)(j) of the MHCA
    • 5.6.2.1.2 MHCA 28 – Cancellation of leave of absence – a State Patient in terms of Section 45 of the MHCA; or an assisted or involuntary mental health care user in terms of Section66(1)(j) of the MHCA
    • 5.6.3 State Patients who abscond
    • 5.6.4 Discharge of State Patients
    • 5.6.4.1 Application for discharge of State Patients
    • 5.6.4.2 Judicial consideration of the report
    • 5.6.4.3 Orders to be made on application for discharge
    • 5.6.4.4 Conditional discharge of State Patients, amendments to conditions or revocation of conditional discharge
    • 5.6.5 MHCA forms pertaining to discharge of State Patients
  • CHAPTER 6: THE APPLICATION OF MENTAL HEALTH LAW IN PRACTICE
    • 6.1 Introduction
    • 6.2 The prevalence and effect of mental disorder in South Africa
    • 6.3 Barriers to the effective implementation of mental health legislation in practice
    • 6.3.1 Mental health care resources
    • 6.3.1.1 Human resources
    • 6.3.1.2 Children
    • 6.3.1.3 Mental health resources and socio-economic rights jurisprudence
    • 6.3.2 The cost of mental illness
    • 6.3.3 Service provision
    • 6.3.4 National Mental Health Policy
    • 6.3.5 Mental health and stigma
    • 6.4 Involuntary mental health care users
    • 6.5 Human rights abuses perpetrated in the provision of mental health care
    • 6.6 Mental health review boards
    • 6.7 Community care: Diagnosis and treatment of mental disorder
    • 6.8 The administrative burden of the MHCA: MHCA forms
    • 6.9 Mental health in the criminal justice system
    • 6.9.1 Human resources and training
    • 6.9.2 Risk assessment
    • 6.10 Suggested solutions
    • 6.11 Conclusion
  • CHAPTER 7: RECOMMENDATIONS AND CONCLUSION
    • 7.1 Scope and purpose of the study
    • 7.2 Synopsis
    • 7.2.1 Chapter
    • 7.2.2 Chapter
    • 7.2.3 Chapter
    • 7.2.4 Chapter
    • 7.2.5 Chapter
    • 7.2.6 Chapter
    • 7.3 Recommendations
    • 7.4 Recommendations regarding MHCA forms
    • 7.5 Future research
    • 7.6 Concluding remarks
    • BIBLIOGRAPHY
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