Mental Health Care Amendment Bill [B39 – 2012]: Department of Health (DoH) briefing; National Health Amendment Bill [B24D-2011]: DoH update

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29 January 2013
Chairperson: Mr B Goqwana (ANC)
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Meeting Summary

The Department of Health (DoH) stated that the main aim of the Mental Health Care Amendment Bill [B39-2012] was to amend the Mental Health Act 2002 to provide for delegation of powers by the Director-General (DG) regarding State patients and mentally ill prisoners. Currently the duties linked to the above powers were cumbersome and required the DG’s personal attention. The Bill sought also to repeal Chapter 8 of the Mental Health Act 1973, as this Chapter, on Hospital Boards, was no longer necessary as Chapter 6 of the National Health Act 2003 now dealt with this subject.

Members were supportive of delegation. It could lead to empowerment at levels below the DG, reduce delays, and save money and time. Members were interested in criteria for selecting those entrusted with delegated powers. There was concern about security measures related to State patients and mentally ill prisoners, and the safety of caregivers. There were many remarks and questions about the general state of mental health services. The DoH had to remind Members that amendments in the Bill related exclusively to State patients and mentally ill prisoners. Availability and quality of mental health services, and public awareness about mental health, caused concern among Members. The lack of mental health facilities at prisons was referred to. There was interest in the position of the intellectually disabled, and how poverty and social insecurity could produce symptoms that resembled mental illness. The Chairperson remarked on the role of cultural and professional psychiatric perceptions of mental illness. The DoH provided an extensive response about current procedures with regard to State patients, and how those were related to the need for a delegation of powers.

The DoH stated that the National Health Amendment Bill had been adopted by the Portfolio Committee on Health in August 2012. It had been referred to the Select Committee on Social Services of the National Council of Provinces (NCOP). The NCOP had held briefings of provincial legislatures, and public hearings in the provinces. The NCOP had adopted the Bill (with amendments) [as B24D-2011] in December 2012. Amendments were mostly to Clause 5.

Members were not invited to discuss the Bill. After assessing the current situation, the Chairperson decided that the Bill could not be adopted yet. Advice from the House Chairperson had to be awaited.

Meeting report

 Mental Health Care Amendment Bill [B39 – 2012]: Department of Health (DoH) briefing

Dr Precious Matsoso, Director-General (DG), set out the background to the Bill. The aim of the Bill was to amend the Mental Health Care Act (No. 17 of 2002) so as to provide for the delegation of powers by the DG to improve service delivery in the area of State patients and mentally ill prisoners.

The Bill also sought to repeal Chapter 8 of the Mental Health Act (No. 18 of 1973). which dealt with Hospital Boards, currently dealt with by Chapter 6 of the National Health Act (No. 61 of 2003).

Powers to be delegated included power to transfer State Patients from prisons to health care establishments pursuant to court orders; to transfer State Patients between health establishments upon a Review Board order; and to review the status of State patients after six months and every 12 months thereafter.

Dr Matsoso explained the benefits of delegation. Currently the duties linked to the above powers were cumbersome and required the DG’s personal attention. Consideration of reports before making a decision was time consuming and required very careful consideration of all relevant information supplied.  In 2012 the DG was required to authorise the transfer of 173 new State patients. Delegation of powers was in the interest of effective administration and expeditious health care service delivery. There were also over 3 000 State patients for whom periodic reports had to be reviewed by the DG: delegation would improve on turnaround time for the transfer of these patients following the court order.

The Bill had been published for comment on 20 July 2012, with no substantial comments received. The Bill was submitted to Cabinet for approval for introduction into Parliament. The Chief State Law Adviser had tagged the Bill as a Section 75 Bill, and certified on 2 November 2012 that the Bill was consistent with the Constitution and properly drafted.

(See presentation document.)

Mr G Lekgetho (ANC) agreed with the proposals about delegation, as delegation was important. It was important that the transfer of mentally ill people to institutions not be delayed. It was also an opportunity for empowerment on a different level. It would not do to groom people to be dependent. People had to be qualified to help. He agreed with the replacement of Chapter 8 by Chapter 6. Resources had to be used effectively.

Professor Melvyn Freeman, DoH Chief Director of Non-Communicable Diseases, said that the aim of delegation was not so much to create a respite for The Director-General, as to create a better service.

The Chairperson asked that the DG give an account of problem areas. Psychosis was seen as a medical problem. He asked about the position of diseases like epilepsy.

Ms D Robinson (DA) agreed that delegation could speed up matters. Delays led to the loss of time and money, and impacted on the condition of patients. She asked about mentally ill people who were moved from a prison to a hospital. In prisons they were protected, and others were protected from them. Some mental patients were violent. She asked if doctors and nurses were vulnerable.

Dr Matsoso replied that the Bill contained specific amendments pertaining to those classified by the courts as State patients. These were people who were to be incarcerated, but first had to be subjected to psychiatric assessment. A magistrate would issue a court order for such assessment. It was a confined function. The DoH had to respond to the magistrate’s order. The DoH had to take note of what the Review Board had said. There was no option but to respond to the order from the magistrate. Evaluation reports for every state patient had to be looked at. The DoH did not interfere with mental health services. There had to be consultation with provinces to see if they could accommodate state patients. Review Boards were established by the provincial MECs.

Prof Freeman added that mental health legislation covered a broad spectrum. The Bill was primarily concerned with a small group of people classified as State patients. That meant that they were not considered to be mens rae and they were therefore unfit to stand trial. People who developed mental illness in prison were also included in the classification. But generally those deemed unfit to stand trial were not sent to jail. There were about three to four thousand people classified as State patients. Once committed to a mental institution, it had to be decided whether a State patient had to remain there. The psychiatric facility had to send a review to the DoH, which the DG currently had to attend to personally.

Prof Freeman continued that the matter of voluntary and involuntary patients would be brought up to national level. Not all provinces had specialised facilities. Specialised staff had to be distributed. State patients had to be assessed for a period of 30 days. A 72-day prior assessment period had been introduced. In the case of a dangerous person, underlying medical conditions had to be picked up. Hospitals were being encouraged to have a psychiatric wing.

Mr Sifiso Phakathi Director: Mental Health and Substance Abuse, added that with regard to prisoners and mental illness, due process took place in court. Decisions had to be reached between prison and a mental institution. There had to be a look at the kind of professionals required. State patients could be dangerous. The Act was being evaluated in court. Section 5 of the Act provided for hospitals to have a psychiatric wing. State patients were accompanied by a police officer for the 30-day assessment. There were 14 units for specialised care that also had security capacity.

Ms Robinson asked if there was a difference in treatment for the mentally ill and disabled.

Prof Freeman replied that the DoH wanted to discuss whether intellectual disabilities had to be treated in the same facilities as mental health disorders.

Mr Phakathi added that programmes for the intellectually disabled who offended had to be looked into. Programmes had to take care of psychosocial rehabilitation.

Ms Robinson asked about services to the families of the mentally ill. Parents might be concerned about what would happen to a mentally ill child when they were gone.

Mr Phakathi responded that it was currently the responsibility of the DG to state whether the family was involved.

Ms Robinson asked about mental patients who were treated in between spells in prison. She asked if conditions for them were the same as in psychiatric hospitals.

Ms Robinson said that there had been no comment on the Bill when it was published for comment in July 2012. There were many depressed people who were unaware of their condition. She asked what was being done to create public awareness.

Ms Robinson asked if Chapter 6 fully covered what had been covered by Chapter 8, especially with regard to the rights of patients and caregivers.

Prof Freeman replied that Chapter 8 had been part of the 1973 legislation. With the new legislation of 2002, the Chapter was superseded. That should have been stated in 2002 already, but it was never done. The Chapter dealt with administrative issues like Review Boards, which had been set up like hospital boards under the old legislation.

Ms B Ngcobo (ANC) asked the Director-General if she could cope with what was on her table.

Ms Ngcobo asked if prisoners taken to mental institutions went there under guard.

Ms Ngcobo remarked that mental institutions were housed in nice buildings, but in terms of functioning they were dilapidated. She asked what was being done about care.

Mr Phakathi responded that facilities for psychosocial treatment had come a long way between 1994 and 2004. The mentally ill had formerly been cared for in special facilities, but currently they were being treated in ordinary hospitals. There were no longer transfers to Level 3 psychiatric facilities. Things were being dealt with at Level 2.

The Chairperson remarked that culture impacted on who was considered mentally ill. What was seen to be mental illness in one culture, would not be taken to be that in another.

Ms M Segale-Diswai (ANC) remarked that it was clearly an important Bill. But there had not been sufficient time to study it and understand where it came from. The management of mental illness all the way from primary health care was a tedious business.

Ms Segale-Diswai asked how persons to whom functions would be delegated would be identified. She asked from what level they would be drawn, and what the selection criteria would be. She asked if there would be a mechanism to appeal decisions by those delegated.

Ms Robinson remarked that there was not enough money and staff to deal with primary health care. There had to be people who could identify symptoms and problems to be able to act preventatively.

Ms Robinson asked about ratios of staff to patients, and whether there were enough qualified members of staff to deal with prisoners. Prisons did not have their own hospitals, only sick bays. Regulations had to be looked at.

Ms R Motsepe (ANC) asked if people who lived on the streets or in open shacks were covered in terms of mental health care.

Ms Motsepe asked for detail about functions to be delegated.

The Chairperson remarked that it was easy to diagnose mental illness. Yet it was possible that people were acting in ways that made them appear mentally ill because of poverty or living on the streets.

Mr Lekgetho asked about references to the provision of care and administration of property. He asked about the extent of administration, and what property was referred to.

Ms Ngcobo asked how many people actually knew about health care. She asked how people were being made aware, through the use of brochures, for instance. She asked about programmes for Mental Health Day.

The Chairperson thanked the Department for making things clear and specific. Members had asked a wide range of questions because they were concerned about the general state of mental health services. He said that psychiatrists were specialists and would inevitably come up with a psychiatric explanation. It was like an orthopaedist who fixed the bones of a corpse without noticing that the person was already dead. He suggested that more attention be paid to causes other than the functional.

Ms Ngcobo suggested that the Principal Act be brought to the table.

Dr Matsoso remarked that the DoH was sharing in international developments. She had recently been to a conference in Geneva, and it was clear that there was a revolution in mental health approaches. Amendments to key areas like murder and rape were happening on a daily basis.

The Chairperson concluded that he was looking forward to a broader discussion of State patients. There were problems related to the identification of mental illness. He related an incident where a man went to visit his mother at Chris Hani Baragwanath Hospital, Johannesburg. The man arrived near the end of visiting hours, but, because the hospital was so large, he arrived at her ward only at the end of visiting hours, and he was refused admission. He wanted to push his way past a security guard, who tried to restrain him. A doctor, who did not speak the man’s language, thought that the man was acting that way because he was mentally disturbed, and had him admitted to the psychiatric section. The man remained there for two weeks in a sedated condition before the situation was cleared up.

National Health Amendment Bill [B24D-2011]: Department of Health briefing
Dr Carol Marshall, DoH Cluster Manager: Office of. Standards Compliance, noted that the Bill had been adopted by the Portfolio Committee on Health in August 2012. The Bill was then referred to the Select Committee on Social Services of the National Council of Provinces (NCOP). The NCOP had held a number of briefings of the Provincial Legislatures and public hearings in the provinces. The DoH had provided the NCOP with technical support during these briefings and the public hearings. The negotiating mandates were finalised and the NCOP had then adopted the Bill (with amendments) in December 2012.


Amendments agreed to by the Select Committee mostly concerned Clause 5, in which:

Subsection 2 of Section 79A was amended to make the Board the Accounting Authority of the Office. It had now become Subsection 3.

Subsection 5 of Section 79H was amended to ensure that the Board in consultation with the Minister may designate another employee to act in the position of the CEO in the event of the CEO being unable to fulfil functions.

The additional Subsection 4 of Section 79I compelled the CEO to take action to ensure the implementation of findings and recommendations of the Ombud, while the additional Subsection 5 allowed the CEO to seek intervention of the Minister, MEC, or member of the Municipal Council responsible for health.

Subsection 3 of Section 81 was amended by the insertion of paragraph (d), which made the Ombud report and account to the Minister.

Subsection 5 was inserted into Section 83 to allow only the health officers registered as environmental health practitioners to carry out the functions of that Section.

In Clause 6, Subsection 1A (original Subsection 3 of Section 79) was inserted into Section 90 to empower the Minister to prescribe different norms and standards after consultation with the relevant regulatory authorities.

(See presentation document for full details.)

Members were not called on to discuss the Bill. The Chairperson concluded that the Bill could not yet be adopted. Advice from the House Chairperson had to be awaited.

The Chairperson adjourned the meeting. 


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