The central principles for mental health policy in South Africa are the human rights provisions in the Bill of Rights and the Constitution. Mental health issues are also part of the broader agenda for transformation. The World Health Organisation (WHO) adopted a resolution at the recent Africa Region Meeting that stresses an acute need to make mental health a central focus in the health frameworks of Sub-Saharan countries. In terms of the Resolution, mental health is recognised as a vital part of general well being. Governments have to formulate or review legislation in support of mental health, and the prevention and control of substance abuse.

The Mental Health Care Bill is currently a draft in progress in the Department of Health. The Bill will be tabled and debated in Parliament in the year 2000. This Bill will provide the framework for a coherent mental health policy.

The proposed Mental Health Care Bill moves towards a health rights approach to mental health care. This implies a shift towards mental health policy that is based on non-racial, equitable, local-community orientated principles - a dramatic change from the hospital-based custodial or preventive model of care sanctioned by the Mental Health Act, No. 18 of 1973.

The objectives for mental health in the Mental Health Care Bill are similar to the provisions of the draft National Health Bill (May 1998). Both documents determine that optimal (best) mental health includes the achievement of individual and collective goals consistent with justice and preservation of conditions of fundamental equality.

The provisions for mental health in the National Health Bill are grounded within the broader framework for a transformative health system in South Africa. This vision for a national health system includes:

Important changes in the Mental Health Bill from the existing Act are:

• Provisions for the establishment of a Mental Health Review Board to review assisted or involuntary admissions to health establishments

The important difference between these provisions and existing ones is that there is a shift in emphasis from a legal perspective to one which is based on clinical judgement and skill. The final responsibility for admission orders will continue to rest with the legal/justice system, but the process leading up to these decisions will be based on a clinical point of view.

For mental health care users, the Board will serve to provide a buffer between clinical service providers and the justice system.

• In the new Bill, "medical practitioner" has been replaced by "mental health care practitioner"

This signals a move away from a dominant medical model of mental health care. This change has important implications for decision-making with regard to assisted and involuntary admissions, and for mental health care services generally. A mental health care practitioner is defined as a psychiatrist, clinical psychologist or registered medical practitioner, nurse or social worker (with specialised training).

The objectives of the Mental Health Care Bill, outlined in Chapter 2, are to:

• Provide the best mental health care, treatment and rehabilitation possible within a context of available resources
• Enable equitable access and availability for all to efficient mental health services, and in the best interests of the mental health care user
• Integrate mental health care services into general health care

In addition, the draft Bill states that the government must ensure that every organ of state responsible for or impacting on the provision of health services, determines and co-ordinates the implementation of its policies and measures in a manner that:

• Ensures mental health care, treatment and rehabilitation services are provided at primary, secondary and tertiary levels and at specialised health establishments
• Promotes community-based care, treatment and rehabilitation
• Promotes and advances the mental health status of the population
• Ensures appropriate care, treatment and rehabilitation is provided to any person requiring it - everyone has a right to access to mental health care services

These are set out in Chapter 3, and they constitute a notable shift in concept away from discriminatory practices towards a more rights-oriented approach which have major implications for mental health care users. The provisions, consistent with the Bill of Rights, specify that:

• Respect, Human Dignity, and Privacy: Every mental health care user is entitled to respect for their person, human dignity and privacy.

• Consent: No person is to be subjected to care or treatment, nor be admitted to a health establishment for such care or treatment unless s/he gives consent.

• Unfair Discrimination: Mental health care users may not be unfairly discriminated against on the grounds of their mental health status, and must receive treatment in accordance to standards equal to other health care users. Policies and programmes must be implemented in such a manner that enhances the mental health status of users.

• Exploitation and Abuse: Mental health care providers must ensure that users are protected from exploitation, physical or other abuse, neglect and degrading treatment.

• Mental Health Status: Determination of a person’s mental health status may not be based on socio-political or economic status nor on cultural and religious background or affinity.

• Confidentiality: No person or health establishment may disclose any information which a mental health care user is entitled to have kept confidential.

• Right to Be Represented: A user is entitled to assistance from a legal representative in respect of any provisions set out in the Bill.

• Discharge Reports: On discharge from a health establishment, the user must be issued with a discharge report.

• Full Knowledge of Rights: Users of mental health care services must be informed of their rights prior to care or treatment.

According to the Bill, Provincial Ministers for Health must establish a Mental Health Review Board for health establishments providing mental health care in their provinces. The Review Board must be composed of at least three persons, but no more than five persons, one of which must be a mental health care practitioner and another an attorney or advocate.

The MEC for Health will call for nominations to the Review Board through advertising in the Provincial Gazette, and by any other widely circulated means of communication. All nominations submitted in response to the notice must be considered.

• Review all applications for assisted and involuntary admissions
• Receive reports and make decisions in relation to such admissions (which are forwarded to the high court)
• Listen to all appeals for and against such admissions

Chapter 5 of the Mental Health Care Bill deals specifically with the provisions which govern admissions categorised as Voluntary Admissions, Assisted Admissions, and Involuntary Admissions. Chapter 6 covers State Patients, and Chapter 7 deals with Prisoners Who Are Mentally Ill.

• Voluntary Admissions: Mental health care users who voluntarily present themselves at a health establishment for care, treatment and rehabilitative services.

• Assisted Admissions: A written application submitted by a spouse, next of kin, partner or associate, parent or guardian, or mental health care practitioner to admit to a health establishment a person considered incapable of making an informed decision on the need for mental health care services.

• Involuntary Admissions: A written application submitted by a spouse, next of kin, partner or associate, parent or guardian, or mental health care practitioner to admit to a health establishment a person who has not given their consent, but who is considered incapable of making an informed decision on the need for care and treatment, or is unwilling to receive the care or treatment required.

As mentioned above, decisions regarding assisted admissions and involuntary admissions will be based substantially on the recommendations of a Mental Health Review Board.

• Effective community participation on hospital boards is essential to the realisation of progressive primary health care. Therefore, we are concerned that the Bill does not provide clear-cut guidelines of the steps to be taken to ensure that communities will be equitably represented on the proposed Mental Health Review Boards.

• The provisions in the draft Bill which advance a move towards a community-based approach to mental health care raise important questions about gender and resources. For example, what will the "promotion of community-based care" mean in practice? Research indicates that when the meaning of "community" is revealed in relation to care, the underlying but not stated assumption is that women will be the primary caregivers. In South Africa, where the vast majority of mental health problems are found in poor and under-resourced communities, this will place an added burden on especially women.

• The draft Bill lacks a section dealing with interpreters or translators for people who have to interface with health care providers who do not speak their language. Neglect of attention to this issue has implications for the health care rights of users, such as informed consent to treatment and/or admission to a health establishment.

• The draft Bill does not address issues relating to "cultural" perceptions of what constitutes mental illness. Nor does it deal satisfactorily with the concepts of "temporary" and "permanent" illness. In practice, this lack strengthens the existing stigma ("shame") which exists in society towards people who are or who have been mental health care users.

• There is no clear indication of the ways in which the Bill will impact on the important issues of appropriate training of mental health care providers, and on the appropriate orientation of mental health services within a South African context of great differences in needs and resources. The draft Bill does not consider the need for organisational and institutional reform to enable mental health care workers to adjust to the new paradigm for mental health care service delivery.

• There is a disturbing and unexplained shift in use of terms to describe users of mental health services. For example, the term "mental health care user" is used throughout the Bill except for the sections that deal with "State Patients" and "mentally ill prisoners". Use of these terms is discriminatory, and is not appropriate in legislation that tries to advance human dignity.

• Prior to the Mental Health Care Bill becoming an Act, we feel that the ways in which it relates to provisions in other policy which appear to contradict it be clarified. For example, in the Draft National Health Bill (May 1998) there is a provision that prohibits the use of "tissue, blood or gametes of a person who is mentally ill" [107(3)(I)]. Similarly, the South African Law Commission recommends that the Sexual Offences Act enact "specific provisions to deal with sexual offences against mentally impaired persons." It is not clear whether these provisions are meant to protect against possible exploitation or abuse of mental health care users, or whether they are discriminatory.

• The draft Bill contains a section which prohibits exploitation and abuse of mental health care users, including physical and other abuse [3(11)(1); 3(11)(2)(c)]. However, it is not clear what this means in practice, especially in terms of gender. In what ways are women users to be protected against abuse, such as rape, perpetrated not only by other users, but also by mental health care providers? The draft Bill does not provide clear-cut solutions to deal with forms of abuse such as inequality and discrimination on the basis of mental health status.

• The draft Bill recommends periodic reviews and annual reports on assisted and involuntary mental health care users. Does this constitute a reasonable undertaking in terms of human capacity and resources needed to realise this goal?

Footnotes:

1. Sub-Saharan Africa Agrees to Prioritise Mental Illness, SAPA, 1/9/99

2. H Subedar, Mental Health Programme, PAWC, 18/5/99
3. A "health establishment" is defined as institutions, facilities, buildings or places where persons receive care, treatment, rehabilitative assistance, diagnostic or therapeutic interventions or other health services and includes facilities such as clinics, mobile clinics, community health and rehabilitation centres, hospitals

4. H Subedar, Mental Health Programme, PAWC, 18/5/99

5. P Quinn (1996) ‘Identifying gendered outcomes of gender-neutral policies’, AFFILIA, 11(2):195-206
6. PHILA Summary Brief: White Paper for the Transformation of the Health System in South Africa, 6/97

For further information on the Draft Mental Health Care Bill, please contact Phyllis Orner at Tel: 021 448 8702; Fax: 021 447 0624; Email: phyllis@philaw.co.za 

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