Mental Health Care Bill: briefing

SOCIAL SERVICES SELECT COMMITTEE
26 February 2002
MENTAL HEALTH CARE BILL: BRIEFING

Chairperson: Ms L Jacobus (ANC)

Relevant Documents
Mental Health Care Bill [B69B-2001]

SUMMARY
Director of the Directorate of Mental Health and Substance Abuse briefed the Committee on the status of the Mental Health Care Bill. Further discussion will take place on March 12 2002, after which it will be debated by the provinces.

MINUTES
Ms Jacobus stated that one person had been made available in each province with in-depth knowledge of the bill, to assist in any questions which may arise during the briefing to the provinces which the members were due to deliver.

She explained to Professor Freeman, the Director of the Directorate of Mental Health and Substance Abuse and Advocate Bhoi, the State Law Adviser that the National Assembly had passed the bill just before it rose in 2001, so the NCOP was unable to deal with it then. This year, there had been logistical difficulties due to the individual provinces failing to reconvene on time, which had meant that this briefing had been delayed, and she apologised for this. She had already informed the Director-General who had accepted this.

Mental Health Care Bill [B69B-2001]
Prof Freeman took the committee through the bill chapter by chapter, pausing at the end of each chapter to deal with questions. The bill had been drawn up in consultation with the provinces, and had been debated in the National Assembly, where all parties agreed on it except for the ACDP. He would identify their particular concerns during the course of the briefing.
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Chapter 1 - Introduction
Definitions
Prof Freeman drew attention to the concept of intellectual disability, and in particular the fact that the definition referred to mental deficiency, without a mention of IQ. This was due to the cultural biases present in most IQ tests which made them an unacceptable means of distinguishing mental capacity. He also mentioned the use of the term 'mental health care practitioner,' which extended referred to who could be responsible for certain types of work, a recognition of resource issues as well as the reality that there were highly skilled and competent people, such as psychiatric nurses who until now were prohibited from fulfilling functions that they were able to perform due to occupational definitions. He said the precise definition of the mental health care practitioner would be written into regulations, such as exactly who was qualified.

Mr Nomgula (ANC) asked if the word 'psychiatric' was still in use.

Ms Ntlabati (ANC) asked why the definition of a psychopath seemed to be missing from these definitions.

Prof Freeman replied that they were not against the use of the term 'psychiatric', for example it appeared in the definition of 'psychiatric hospital'. However, there was a preference to refer to people as a whole, which the idea of mental health did, and then divide them into the categories of mental illness and intellectual disability.

In relation to the use of psychopathy, Prof Freeman said that there had been a commission in around 1985, possibly the Booysens Commission, which had decided that those judged to be psychopaths should be dealt with by the criminal justice system rather than the mental health system. In a sense, they were seen as 'bad, not mad'.

Dr Nel raised a question relating to the term 'mental health care user' and why it was followed by a full list of 'care, rehabilitation'.

Prof Freeman stated that this was both an attempt to be in line with the forthcoming Health Bill which refers to 'health care users' and to emphasise a package of care, rather than simply medical treatment.

Chapter 2 - Fundamental Provisions
Prof Freeman said that the aim was to ensure that, wherever there were health services, there should be mental health services as well. However, he recognised that there were different levels of care, with different degrees of specialisation. The bill had been framed aimed to recognise the realities while still offering space for progress. Therefore, the provision was meant to be progressive, rather than requiring immediate compliance, in relation to the provision of mental health services. While there was debate around this issue internationally, the feeling of the department was that there would always be a need for some beds for chronic long-stay patients, but that these should be in the minority.

Ms Ntlabati said that she agreed with this position, particularly since some of the conditions in the home and community made it impossible for certain people to stay there, as this aggravated their conditions.

Prof Freeman replied that it would be the best option if the factors which made it difficult to stay at home, such as the stigma, made it impossible for people to return home, and then address these. It was also necessary to investigate ways of moving funds from hospitals to community care facilities, and that this would have to be done in association with social development, for example.

The chairperson agreed that this also involved the Department of Social Development, and there was a general mood in favour of community-based care.

Chapter 3 - Rights and Duties related to Mental Health
Prof Freeman briefly went through the rights and duties as outlined in the bill. He said that the courts might ultimately have to make rulings regarding, for example how to define something as an occupational therapy intervention or 'forced labour' and the right to information, where a doctor may not want a patient to see their file. He also mentioned the issue of sexual relations as being somewhat problematic, since there were issues of a diminished ability to consent, yet the reality that people with mental illnesses were still engaging in sexual relations. This issue was made more complex in the context of the spread of HIV/AIDS. In relation to the right to legal representation, the Legal Aids Board had said that it fell outside their ambit, but Parliament had debated the issue and decided that Legal Aid should be provided in this instance, to those unable to afford other means.

A member asked if there was coverage for sterilisation, relating a story of a woman who had a daughter with Down's syndrome who struggled with the injections and wanted her daughter to be sterilised.

Prof Freeman said that the Sterilisation Act had been passed in 1998, which dealt with this. Unless she was eighteen and there were serious health risks, she could not be given a hysterectomy.

The member asked if Downs syndrome formed part of the definition of intellectual disability.

Prof Freeman replied that it did, falling within all the ranges of intellectual disability, depending on the functioning of the individual. For this reason, it could not be assumed that someone with Down's Syndrome could make their own decisions.

Ms Ntlabati said that clause 14 'limitation on intimate adult relationships' was phrased very mildly. She said that a man could take advantage of a woman who was mentally ill, even though she may at the time give her consent. She said that she felt there was a large potential for abuse. She also mentioned, in relation to the idea of rehabilitation, that black women, including Coloured and Indian women, had been forced to clean the wards of white women, as rehabilitation in the past.

Prof Freeman said that this was the reason for section 11 ' exploitation and abuse', which he read. (It deals with the right not to do forced labour). In relation to the previous issue, he said that the current act said simply that no-one was allowed to have sex with someone with a mental disability. But it still happened. It was likely to be unprotected. He said that the intention was to ensure recognition for the decision-making abilities, particularly in the less severe stages of mental illness. He added that the phrasing represented something of a middle ground, a compromise position after much negotiation.

Chapter 4 - Mental Health Review Boards
Prof Freeman said that these were not a new innovation internationally, but new to South Africa. He outlined some of the procedures and functions of review boards. Their purpose is to ensure that people are assessed regularly, in order that they might be discharged from the facilities in as short a time as necessary.

Dr Saloojee said that on a visit to Sterkfontein, the staff had expressed concern that clinical decisions might shift from the hospital to these review boards, and asked for the professor's comments.

Prof Freeman said that this was true to an extent. He said that the intention was to prevent the situation in the past where hospitals made bad decisions in some cases, because there was little in the way of oversight facilities. The main hope was that this would force clinicians to make more careful decisions. Boards were free to consult widely with other practitioners. It was not envisaged that the community members or the legal representatives would be making clinical decisions.

Dr Saloojee asked if it was then possible that the board would be biased towards the decision of the mental health practitioner on the board.

Prof Freeman reiterated that they could call other practitioners to give opinions, to avoid this.

Dr Saloojee asked if this was in the regulations

Prof Freeman said that no, it was in the legislation. Clause 19.2.

Dr Saloojee asked if the hospital had the right to call an independent person to make representations in their interests.

Prof Freeman said that he imagined that the hospital was covered under “body with expertise�. He emphasised the point that he hoped the existence of the board would foster better clinical decisions.

Chapter 5 - Voluntary, Assisted and Involuntary Care
Prof Freeman drew attention to section 32 'care, treatment and rehabilitation services' which dealt with 72 hour assessment, saying that this was a new development. Many people recovered within 72 hours, and this 72 hour assessment period had as one of its main aims the reduction of admissions, which would also prevent some people from suffering the stigma of being admitted for treatment over a longer period that is certified. In terms of the review procedure, Prof Freeman added that the first review would be done after six months, and would be conducted by a medical practitioner. Thereafter, reviews were to be every twelve months, and would alternate between a medical practitioner and a mental health care practitioner, in order to cut down on the time medical practitioners spend doing reviews.

He indicated that the SAPS were not happy about section 40.5, despite lengthy negotiation, and he added that they might make further objections known at a later stage in the drafting process. Despite these objections, the state law advisers had said that they were happy with the wording of the clause. Prof Freeman said that the portfolio committee had said that there should be a stipulation in the regulations on the maximum amount of time that someone with a mental illness should spend in a police cell, and that the time period of 24 hours had been decided on. He added that this was to be included in the regulations rather than the legislation, to assess whether it was a practical time frame, as this was somewhat unknown at this stage.

The chairperson asked for examples of when a person could recover within seventy-two hours. She also said that the police's objection to clause 40.5 might have been due to personnel issues. What had they said were their objections?

Ms Ntlabati asked, in relation to section 40.7, how it was possible to ensure that someone with a mental illness would not be kept in a cell with other criminals, who might abuse them.

Dr Nel asked why clause 33 'application to obtain involuntary care, treatment and rehabilitation' provided for applications to be made by family etc but not the care user, when clause 35 'appeal against decision of head of health on involuntary care, treatment and rehabilitation' made provision for the care user to appeal against the care. Why had the time frame of thirty days been stipulated.

In relation to the chairperson's first question, Prof Freeman said that most people with mental illnesses went through acute and less acute phases, and that the duration of the acute phase depended more on the individual case than the diagnosis. In relation to clause 40.5 'the South African Police Service must comply with the request' he said that there was frustration on the part of the health services because police did not come when they were required. The police had cited personnel issues as their main concern. However, Prof Freeman pointed out that they were not required to drop their chase of a murder suspect to transport a mentally ill person.

Advocate Bhoi added that it was a matter of interpretation of the act. If they had written 'may' then the police 'may not'. The phrasing was intended to force the police to act when they were required to do so.

With regard to clause 40.7 'a person apprehended in terms of subsection (4) may be held in custody at a police station for such period as prescribed to effect the return or the transfer in the prescribed manner', Prof Freeman said that there were instances when this might happen, but there were times when it was necessary to keep someone with a mental illness in a police cell especially in rural areas. Thus, it was an issue of a lack of capacity in many cases. The purpose behind introducing the time frame was to try and assist the patient as soon as possible. The committee had advised the use of the twenty-four hour time frame.

In relation to Dr Nel's question, Prof Freeman pointed out that clause 33 dealt with involuntary care and for this reason, the service user would not be the one making the application. However, the service user could appeal the decision to admit her or him, as could other members of the family. He added that the appeal process was different to the review process, where the individual concerned was not always allowed to make a representation. The time frame was meant to ensure that appeals would fall within the review process, which had to happen every thirty days. Drafting had been framed in a manner which intended to avoid some of the problems which the judicial commission was now facing.

A member of the committee asked who admits people who are living on the streets, and have no-one to admit them involuntarily, such as family.

Prof Freeman said that he felt that it was not right to deprive people of their freedom, if they were not disturbing others.

The member replied that the person refused to go for treatment because he was sick. He was not a danger to anyone, but he needed help.

Prof Freeman said that mental health human rights activists internationally feel that the government does not have the right to intervene.

Chapter 6 - State Patients
Prof Freeman said that, in the case of State patients, the community should be informed when someone was due to be released. This they had revised to saying that those directly affected by the crime should be informed. The portfolio committee had rejected this due to the burden of stigma that it would create. The State patients are people who were found not guilty, therefore when they are not ill, they should be treated like anybody else.

Ms Ntlabati asked, in relation to the issue of absconding, if any leeway was to be granted, where the legislation said that someone would be designated to have absconded if they do not return on the correct day (Clause 45.4 'if the State patient fails to return to the health establishment on the return date, he or she will be deemed to have absconded).

Prof Freeman said that the purpose of the leave of absence was to test a person's discipline and ability to perform in the community. He added that they had been placed there by the courts and there was a lot of sensitivity over whether they should be given leave of absence at all. He did not feel they should be flexible on this, although in individual cases, it may happen that the hospital is able to reach an agreement.

Chapter 7 - Mentally ill prisoners
Prof Freeman said that all efforts were to be made to ensure that mentally ill prisoners were treated in prison, and only in certain circumstances would it be permissible to treat a mentally ill prisoner in a psychiatric hospital. The major difference between this bill and the current act, which was that the prisoner's sentence would not continue to be served while they were being treated. In the current act, the sentence is thought to stop on admittance and recommence once they were discharged. If a prisoner's sentence ends while they are still being treated, they should be transferred to the care of the psychiatric hospital.

Chapter 8 - Care and Administration of Property of Mentally ill
The chairperson asked if the family or next-of-kin did not have a role to play in the administration of property.

Prof Freeman replied that they may be set up as the administrator of the property, but there was a need to ensure that the interests of the patient were being met, particularly as there had been abuse of this by families in the past.

Chapter 9 - Regulations.
Prof Freeman indicated that he did not anticipate regulations to be drafted on all of the issues immediately, but that there were some which were more important and would be dealt with right away. Several already had draft regulations ready for the passing of the bill. Some would need to be drafted in co-operation with other departments, such as Education and Social Development.

Dr Nel asked why, in clause 57 referring to 'mentally ill prisoners who abscond, the police were required to be informed immediately once a patient absconded, but the magistrate and prison were only informed within fourteen days.

Prof Freeman said that informing the magistrate and the prison was more of a matter of courtesy, since they were not directly involved at that stage. Therefore, there was no need to inform them immediately.

Ms Nomgula asked which stakeholders were involved in the drafting of the regulations.

Prof Freeman said that there had been considerable negotiation and consultation throughout the drafting of the legislation. Drafting of the regulations was not widely consulted but that there would be a three month period for comments. He was not sure that everything could be regulated, as much depended on at what stages the provinces found themselves in terms of capacity. These issues would instead be addressed through the shaping of policy.

The chairperson said that the provinces would have about a week to deal with this, and since it fell under section 76, there might be public hearings. It would be debated on the March 19, the day before the house rose. She asked that the State Law adviser to be present at the subsequent meetings. Ms Jacobus reinforced that the health department had made people available to assist in briefing each of the provinces. The meeting on March 12, 2002 would deal with the registration of mandates.

The meeting was adjourned.