The National Progressive Primary Health Care Network (NPPHCN) is a national non-government organisation, established in 1987 to promote primary health care (PHC) and to develop a national PHC strategy for South Africa. NPPHCN promotes collaboration, appropriate training, organisational development, participatory research and policy formulation. Essential aspects of our work are to help communities understand, interpret and promote their health and human rights, and to analyse and interpret legislation in terms of the impact it will have on primary health care.

NPPHCN welcomes this opportunity to present its position on the Mental Health Care Bill, 2000. We view the Bill as an important component of the broader agenda for transformation in South Africa.

1. Legislative Framework for Transformation

The principles guiding the Mental Health Care Bill are based on the human rights provisions enshrined in the Bill of Rights and the Constitution. Section 27 of the Bill of Rights binds the State to take measures to progressively realise essential health rights such as access to health care services, sufficient food and water, social security, and emergency medical treatment. NPPHCN views all legislation that promotes these rights as critically important.

NPPHCN sees the objectives of the Mental Health Care Bill as complementing the provisions for mental health found in the National Health Bill (May, 1998). Both documents are grounded within the broader framework for transforming South Africa’s health system. A transformed health system is one that aims to protect, promote, improve and maintain the health of the population. It also aims to integrate health services in the overall socio-economic development plan and budget of the country.

We view the Department of Health’s adoption of a Patients’ Rights Charter as an essential mechanism for advancing the Constitutional right to access to health care services, including mental health care services. The Charter sets out the common standards to which achievement of this right can be measured, as well as the responsibilities of patients or clients towards achieving optimal health. Of special importance to NPPHCN is that adoption of the Charter reflects the efforts of its own "Health Rights Are Human Rights" Campaign. The Campaign, begun in 1995, specifically aims to increase awareness and deepen understanding of health rights and responsibilities, especially amongst poor communities who are often unaware of their rights in regards to health care services. A crucial element of the Campaign will be to popularise the Patients’ Rights Charter in all the provinces, an important component of which involves the rights of users of mental health care services.

NPPHCN therefore supports this Bill. We believe that it will facilitate an awareness in South Africa that mental health is a vital part of general well being. We welcome in particular the promotion of a health rights approach towards mental health issues. The legislation should help to foster a more sensitive and caring environment for mental health care users, who are vulnerable to unfair discrimination due to the stigma attached to their health status. The Bill aims to shift away from the hospital-based model of care found in the 1973 Mental Health Act; to provide appropriate and effective mental health care; and to increase access and availability to mental health services. It also aims to integrate mental health care services into general health care. NPPHCN supports these provisions which we view as particularly important for the many South Africans who struggle to access available and good quality mental health services.

2. Rights and duties relating to mental health

Based on our experience of working with communities around health rights, we believe that the Bill will strengthen mental health care users’ rights, such as those that deal with respect, human dignity, privacy, confidentiality, consent to care and admission, and the factors which determine mental health status. It is important that the Bill provides for protection against exploitation and abuse of mental health care users, and gives users the right to be represented in respect of any of the Bill’s provisions. NPPHCN views the provision that prohibits unfair discrimination on the basis of mental health status as an essential human right, and one that is consistent with the principles of the Promotion of Equality and Prevention of Unfair Discrimination Act. Also essential is that the Bill provides that mental health care users must be informed of their rights before they are given care or treatment.

NPPHCN is supportive of the way the Bill seeks to protect users subject to assisted or involuntary admission. We refer specifically to provisions that provide for:

1. a review of mental health status six months after care begins;
2. a 72-hour assessment period when admitted to determine the mental health status of an involuntary user; and
3. provisions that allow for the right to appeal against decisions made in regards to assisted or involuntary admittance to health establishments.

The Bill is centrally concerned with the provision of care, treatment and rehabilitation. We support this because it is consistent with the primary health care approach. However, we are concerned that the Bill’s provisions mainly focus on the care, treatment and rehabilitation of hospitalised users. How will this impact on other support services, such as at the primary health care level? Further, how does this reflect on the Bill’s aim to provide the right to "mental health care" for all who seek or need it?

The Bill provides for integration of mental health services within the general health services. NPPHCN supports this plan. We are hopeful that one positive spin-off will be a less negative perception amongst the public towards mental health care users. However, an important issue that we are unclear about is what the human resource implications will be. For example, what kind of staff will provide the service, and will there be sufficient staff? Additionally, the Bill does not say what kinds of mental health care will be delivered at primary, secondary and tertiary level. We presume that this will be a core aspect of the National Health Bill. However, we would like to be reassured that a substantial portion of mental health care will be delivered at the primary level of care. This will increase access to communities because it will be free.

We believe that it is vital for the Bill to address the issues of curricula at tertiary level and training of providers of mental health care. Curricula and training should reflect the shift away from the hospital-based model of care. Are there mechanisms put in place to advance this process? A reassessment of the different categories of providers also is essential, especially in terms of a community-based model of care. In this respect, what is government’s position in relation to lay-councilors?

The Bill promotes the provision of community-based care, treatment and rehabilitation in the community. NPPHCN is concerned about what this will mean in practice, especially in terms of the impact on women and on scarce resources. Although unspoken, there are strong indications that in practice "community care" means that the primary caregivers will be women. How will poor and under-resourced communities, and especially women in these communities, deal with the added burden of care? How will government fulfill its obligations and responsibilities towards providing and sustaining the necessary social assistance, support, education, and flow of information to women?

NPPHCN believes that clear mechanisms need to be spelt out in regards to keeping rural communities informed about new policy direction. This is a particular concern in that a number of provinces have identified mental health as a provincial strategic priority over the next five years (e.g., Eastern Cape, Northern Province, North-West). We believe that a concerted effort will be needed to ensure that rural women in particular acquire adequate levels of knowledge and education about mental health care.

Another concern for the NPPHCN is that, while the Bill is correctly resolute in regards to the rights and obligations of users, it only mentions the obligations of health providers. We feel that it would be appropriate for the Bill, in line with the National Health Bill and the Patients’ Rights Charter, to also include a provision to protect the rights of providers.

NPPHCN supports the Bill’s provision to establish provincial Mental Health Review Boards to review all applications for assisted and involuntary admissions; receive reports and make decisions in relation to such admissions; and listen to all appeals for and against such admissions. We believe that the Review Boards are very important in that they represent a shift away from a legal perspective towards one based on clinical judgement and skill. An essential aspect of the establishment of the Boards is that they will provide a buffer between clinical service providers and the justice system for users of services. There can be no doubt that establishment of the Mental Health Review Boards is consistent with the overall policy direction of the Bill - to protect the rights of users.

NPPHCN believes, however, that this goal can only be realised through effective community participation on the Boards. This would include equitable representation of mental health care users on Review Boards. A strategy for increasing and sustaining the capacity of key stakeholders on the Review Boards needs to take place with designated time frames for when capacity levels should be achieved. This is essential in order to ensure that the credibility of the Boards not be undermined. It is also important that the role of NGOs in terms of the Review Boards be spelt out in the Bill. In this respect, what mechanisms are in place to make sure that information flows between government and NGOs?

We would like the Bill to be more clear about how it will prevent abuse on the basis of mental health status. Similarly, we would like clarity on how the Bill proposes to enforce protection of especially vulnerable hospitalised users, such as women and users who are apprehended and returned to health establishments by the police. In this respect, what is the current relationship between the health, correctional services and justice sectors?

Finally, the Bill proposes to conduct periodic reviews and annual reports on assisted and involuntary mental health care users. NPPHCN is unsure whether this will constitute a reasonable undertaking in terms of human capacity and resources needed to realise this goal.

NPPHCN would like to state its support for the Mental Health Care Bill, 2000. We believe that it is necessary to promulgate this legislation in terms of promoting appropriate and effective care, treatment, and rehabilitation within a context of health and human rights for mental health care users.

Footnotes:

1. Section 8, Section 9 and Section 12. Section 12(1) states that: "Any determination concerning the mental health status of any person must be based on factors exclusively relevant to that person’s mental health status and may not be based on the user’s socio-political or economic status nor on that person’s cultural and religious background or affinity."
2. Section 11
3. Section 15
4. Section 10(1)
5. Section 30(1)
6. Section 34(1)
7. Section 29 and Section 35
8. Section 3(a)(iv)
9. Section 4(a)(ii)

We would like to thank the Department of Health for giving NPPHCN an opportunity for presenting our views on the Bill. We hope that our comments will be useful.

For more information, please contact Phyllis Orner 
at (021) 448 8702, or by fax at (021) 447 0624, or by 
email at phyllis@philaw.co.za.

4 April 2000

PHILA

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