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SOCIAL SERVICES SELECT COMMITTEE
23 April 2002
MENTAL HEALTH CARE BILL: NEGOTIATING MANDATES
Acting Chairperson: Ms J Witbooi (W Cape, NNP)
Documents Handed Out:
Mental Health Care Bill (B69B-2001)
The Committee met for a discussion of the negotiating mandates on the Mental Health Care Bill. The Department of Health responded briefly to the concerns raised by Free State, Mpumalanga and Kwazulu-Natal. Overall, the mandates were in support of the Bill and the Department of Justice amendments.
The provinces presented their negotiating mandates:
The Acting Chair, Ms Witbooi, noted that she had been requested by Gauteng to deliver their mandate even though she had not been at its provincial meeting. She said that the Gauteng committee had considered and adopted all amendments made by the Department of Justice and it did not recommend any other amendments to the Bill, subject to the retrospective application of this Bill not having any constitutional implication.
Ms E Gouws noted that the province accepted the Bill as such.
Mr Nel pointed out that its committee after consulting the Assistant Legal Adviser of the Free State, proposed the following amendments in the negotiating mandate of 22/04/02:
Clause 40, on page 20, in line 25, after the words "obtained from", to delete the words "a mental health practitioner", to insert "any person".
Clause 74, on page 36, line 1, that the word "reception" be retained as it is used to refer to a concept used under repealed law as a transitional arrangement.
Schedule , page 37, third column, the words "The whole except Chapter 8" suggests a retention of Chapter 8 which establishes Hospital Boards. The contradiction is that in the memorandum to the bill, on page 40, paragraph (g), Hospital Boards has been taken out to avoid duplication with the proposals of the Bill.
Free State would vote for the adoption of the Bill with the above amendments.
The representative pointed out that after consideration of the amendments, the Committee supports the Mental Health Care Bill and further recommends the following amendments to be effected to the corresponding paragraphs on the Bill:
Clause 47: on page 24, in line 6, omit 'request the Master of the relevant high Court' to and insert, 'the judge in chambers must'"
Clause 63:page 31, line 45, omit the full paragraph(b) as well as the numbering'(a)' in subsection (5)"
Clause 70: on page 34, in line 49, after 'or' where it appears the first time, insert 'a fine or''
Ms Thusi said it supported the bill but with the following proposals for amendments:
Clause 47(4)(b) (page 24, lines 6&7)
To ensure grammatical correctness subsequent to affecting the Justice amendments, insert the words "the judge must" after the phrase "in which case".
Clauses 60 (14)(b) & 61(5)(b) (page 30, lines 18 & 50)
Clarity is sought as to the reason why the clause 60(14)(b) amendment reads " the master after consultation with" whereas the clause 61(5)(b) amendment reads "the master in consultation with".
Clause 63(5)(b) ( page 31, lines 44 &45)
Although the committee recognised that clause 66(1)(a) covers property and income, it is preferable for a duty such as that stipulated under paragraph (b) to be included in the statutory provisions. The committee asked for clarity as to the reason for the deletion of paragraph (b)
Clause 70(2) (page 34, line 49)
To ensure the correctness of the three alternative penalty options subsequent to effecting the Justice amendments, insert the words " a fine or" before the word "both" and substitute the conjunction "or" with the conjunction "and" prior to the words " such imprisonment".
Schedule (page 37)
The KZN Health Portfolio Committee expressed its concern that Chapter 8 of the Mental Health Act, 18 of 1973, was retained, whilst the remainder of this national legislation is to be repealed. Chapter 8 deals with Hospital Boards and the explanation from the provincial Department of Health was that perhaps the subject matter is to be incorporated in the imminent National Health Bill; if this is the reason for the interim retention of chapter 8, the committee is satisfied. However, if chapter 8 is merely to continue in operation in isolation, it would be preferable to include these provisions in the bill under consideration.
The committee said it would accept any further amendments to the Bill as long as
- the amendment does not alter the essential elements of the bill;
- consensus is reached on the amendment by the Kwazulu-Natal delegates in attendance.
Ms Makoela pointed out that its committee had a briefing meeting with the department on the 16 April and the committee was in support of the proposed amendments. This is except for a suggestion regarding numbering in clause 63 (line 45 on page 31) where it is proposed that paragraph (b) should be omitted. It was felt that the numbering would be incorrect so proposed that (a) be omitted in sub clause (5) to read as follows, "An administrator must, immediately after his or her appointment, pay all monies received on behalf of the person he or she appointed for into the hands of the relevant Master of the High Court, unless.." This would make it possible to have the correct numbering when paragraph (b) is omitted.
The committee also commented that the use of singular and plurals should be consistent. It was noted that the amendment proposed for the heading in line 41 (insertion of "person or persons") differs from the heading of Chapter VIII, line 24 which uses only the singular.
It supported the Department of Justice amendments to the Bill and also made an analysis of the Bill's financial implications and training needs for this province which it requested be considered (For full details, request mandate).
This province held a public hearing on 13 March 2002 with relevant stakeholders and the department. Mr P Moatshe pointed out that they support the Bill. The negotiating mandate mentioned the following concerns that had been raised at the hearing:
Clause 3(d) mentally retarded
Clause 14: should not be entertained at all. The patient should be treated for mental illness and be discharged home.
Clause 20: composition of review board, that no fewer than four and no more than five. Review board must consist of two mental health care practitioners, one of which is a medical practitioner.
Clause 24 : care treatment and rehabilitation of mental health care users is a multi-disciplinary team approach. The mental health care board will interfere with the smooth running of the treatment and rehabilitation. There will be delay in the treatment of mental health care users, particularly with 72 hour assessments, 7 days is recommended
Clause 9(2)(b) Bophelong Hospital admits patients from other hospitals.
- Aftercare services are not catered for and this is an important aspect to mental health users.
- Transportation of patient from home to health facility is also not catered for.
Its Standing Committee on Health supported the amendments to the Bill without any further proposals.
Response by Department of Health
Prof N Freeman, Chief Director: Mental Health Care in the Department of Health, replied to the Free State's proposals. Firstly on Clause 40, he pointed out that the department felt that this could easily be abused if any person was allowed to do this. It would be preferable if a family member, instead of just everyone, calls in an official to assess the person.
On the issue of the retention of hospital boards, he pointed out that as this was a legacy of the past, they felt that these should rather be re-organised according to the new Mental Health Care Act when it gets passed. In the interim period the existing boards would still be serving these hospitals.
On the issue of the composition of the review boards, they noted that the North West had expressed concern about the costs. He pointed out that they concurred with this and they basically felt that three persons would be suitable instead of a board.
On the issue of 72-hour assessments, he pointed out that it is assessment phase together with treatment and not just the former.
Once he had addressed these policy issues, he handed over to the officials from the Department of Justice for two technical amendments. In this regard, Mr Jordaan, a drafter in that department, referred to a technical amendment in clause 60, "determined by the master after consultation with the person conducting the investigation". He also informed the committee that in Clause 63 (5)(a), the (a) should be deleted in view of the removal of (b) which had been moved from 63(5) to 65(83).
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