The Committee noted that only three written submissions on the Mental Health Care Amendment Bill had been received, and one other comment had been made that did not directly address the Bill but would be considered during other deliberations. In essence, the Bill covered two matters. Firstly, it was seeking to amend the Mental Health Care Act of 2002 to permit delegation by the Director Health to other officials in the national Department of Health (NDOH), particularly in relation to periodic reports, to improve service delivery, and to delegate some powers in relation to involuntary mental health care users, and secondly was seeking to repeal Chapter 8 of the 1973 legislation that was now no longer needed since the functions of the Boards covered in that Chapter had been transferred by other legislation to other bodies.
The NDOH summarised the history of the Boards and Chapter 8 of the Mental Health Care Act, No. 18 of 1973, and emphasised the overlapping roles of the Mental Health Review Boards and their quasi-legal status. Significantly, the role and functions of the boards’ in light of Chapter 8 of the Act was considered. He gave an indication of what type of delegation would be required, as well as circumstances in which delegations may be withdrawn, but emphasised that because this Bill was intended to cater for the future, it was necessary to keep the wording as broad as possible to avoid Parliament having to amend the legislation every time a job title might change. The challenges that the Director general experienced were outlined, and the need for reform was explained. It was noted that one of the submissions addressed the Chapter 8 revisions, but was commenting on the wording of the Memorandum on the Objects of the Bill, and not the Bill itself. Other submissions did not deal directly with the issues, but were more giving general comments that would be taken into account when the Department and Committee discussed other mental health issues.
In relation to the delegation power given to the Director General, Members expressed concern about the way in which the discretion to the Director General was worded, but the NDOH assured the Committee that the Director General would be expected always to exercise any delegation and powers within the bounds of reasonableness, and both the Department of Health’s legal advisor and the Office of the Chief State Law Advisor gave a detailed explanation on the protocol and convention used when drafting legislation. It was noted that over 4 500 periodical reports had to be signed, and that a variety of clinical and other input was required. The procedure in respect of voluntary, non-voluntary, imprisoned and state patients was explained in depth. It was emphasised that the human rights of mentally-ill patients were a prime consideration.
Members also expressed their concerns about the instances of misdiagnosis and more particularly non-diagnosis of mental illness, the high ratio of patients to specialists, infrastructure and human resources capacity in some provinces. The final deliberation on the Bill would take place in the following week.
Chairperson’s opening remarks
The Chairperson noted that the Committee would consider the Mental Health Care Amendment Bill (the Bill), focusing on the written submissions and the one oral submission made to the Committee. He noted, as an aside, that there had recently been incidents of unhappiness at poor diagnoses in the country, and urged the Department of Health to pay particular attention to trying to curb this trend.
Mental Health Care Amendment Bill [B39-2012]: Department’s response and deliberations
The Chairperson noted the three submissions on the Bill. None of the responses had yet been included in the Bill as amendments. He summarised that the first submission was submitted, in his personal capacity, by Lieutenant Colonel T Rangaka, a psychiatrist from 1 Military Hospital, which formed part of the larger body of health care services, although it fell directly under the Department of Defence. Another doctor, Dr Chocho, had made some comment on grammatical errors and this was fairly straightforward. The final comment was from Mr Ncinane Ntuku, who had not read the Bill but had nevertheless made comments based on his experience in community health services in the Eastern Cape. A call for external centred psychiatric services, to make the services of specialists in the Eastern Cape available to users nearer to where they lived, was deferred for another discussion on mental health issues.
The Chairperson said that these responses were not substantive presentations on the Bill itself. They needed to be considered in light of what the Bill aimed to achieve. He asked if Members were conversant with the issues and able to deliberate on them now.
Ms B Ngcobo (ANC) said that she had not received copies of the responses.
Ms M Segale-Diswai (ANC) said that they were circulated, and suggested that Members who had read the documents could inform any who had not seen them what was said.
Mr D Kganare (COPE) said that some of the submissions actually did not address the amendments proposed in the Bill, but instead were directed to other mental health issues. He recommended that Members did not need to deliberate fully on these responses, as the amendments set out in the Bill were clear-cut and non-contentious.
Ms C Dudley (ACDP) agreed that many of the submissions were not relevant to the Bill, but those parts that were relevant confirmed that there was no problem with what the Bill was seeking to achieve. She agreed that the proposed insertions into the Mental Health Act (the Act) were not controversial, but that some deliberation was needed on them.
Mr Kganare read out the written comments, dated 25 February 2013, from Dr Chocho of the University of Fort Hare. They centred on the proposal to amend the Act by inserting a new section providing for delegation of powers by the Head of the National Department of Health (NDoH) to other officials. He also read out the other amendments from the Bill.
Ms Dudley requested the legal advisors who had drafted the Bill to tell Members what the legal implications of the amendment were.
Mr P Khumalo, Chief Director, Legal Services, National Department of Health, firstly outlined why the numbering of the new section was given as “72A”, stating that when insertions were made, instead of changing all the numbers of sections, it was drafting convention to use the last number, with a capital letter such as A, B and so forth, rather than completely new section numbers that would necessitate a renumbering of the rest of the Act. Any new amendments that the Committee approved, from the written comments, would similarly be inserted where appropriate.
Mr Khumalo also said that the drafting style was not quite the same as grammatical speech, but had its own conventions.
The Chairperson asked what the words “to delete “sub-delegation”” would mean. He asked also about the more contentious issue of the repeal of Chapter 8 of the Act.
Mr Khumalo responded that the issues raised were explained in the Memorandum on Objects of the Bill. The principal Act gave the Director-General certain powers, and Parliament had correctly given her powers to delegate further. The notion of “sub-delegation” in the written comments was therefore correct.
Mr Khumalo also noted that the Mental Health Act No 8 of 1973 was repealed by the coming-into-operation of the Mental Health Act No.17 of 2002, in December 2004. As part of the transitional provisions, the hospital boards were to be retained. The National Health Act had since made provision for these boards and so it was no longer necessary to retain a reference to them in the Mental Health Act, which was the reason why the whole of Chapter 8 (dealing with the Boards) was repealed.
Ms Dudley made the point that clearer and simpler wording on Chapter 8 could have been included in the Memorandum on the Objects of the Bill.
Prof Melvyn Freeman, Chief Director: Non-Communicable Diseases, National Department of Health, conceded that the Memorandum on the Objects of the Bill should have set out clearly that the functions of the board mentioned in Chapter 8 were taken over by the review boards and other boards.
The Chairperson said many Bills in the country failed to pass beyond the NCOP because those working of the Bill were both players and arbiters, and he stressed the importance of Parliament having its own legal advisors to enhance trust in the legislation. However, he commented that Dr Chocho was, at the end of the day, looking only at the explanatory notes and had confined her comment to that, so that her comment actually did not impact on the amendments effected by the Bill.
Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Adviser, noted that normally, when an Act was repealed, there would be a “sunset clause” built in to ensure that there would be no gaps in the operation of laws between repeal and replacement. In this case, it was necessary to ensure that the functions of the Board that had been mentioned in the 1973 Act would continue, and at the time there was no date for this to continue. Subsequently, however, the functions of that Board were taken over by other bodies. That being the case, it was now possible, through this Bill, now to repeal Chapter 8 provisions in relation to the Board, as they were no longer needed.
Ms Ngcobo asked for further clarification if the Act was being repealed.
Ms Mdludlu further clarified the issue, and said that this process was referring only to the repeal of Chapter 8 of the old Mental Health Act, No.8 of 1973, which was the only chapter still in existence. It was now possible to do this because Chapter 6 of the National Health Act of 2003 now dealt fully with the content of Chapter 8 of Act 8 of 1973.
The Chairperson also reiterated that the drafters at that time had wanted to ensure that the boards continued until another piece of legislation catered for them. The intention was not to repeal the boards themselves, but only the section of the old Act that dealt with them.
Members sought further clarification on the sub delegation of powers of the Director-General to another person.
Mr Kganare asked, in particular, for clarity on the section 2A delegation. The words “at any time” did not offer any certainty or set out any conditions for delegation, and he was worried about the unilateral powers conferred.
Mr Khumalo responded by giving examples of when that power could be withdrawn. The withdrawal of the delegation of powers would, for instance, come into effect if the unit to whom the Director-General had delegated no longer existed, or if the people to whom the delegation was given were not competent. In all cases a test of reasonableness would apply, so the Director-General could not act arbitrarily or irrationally. The drafters did not want to list every scenario, as this could constrain the Director-General from proper service delivery. In any event, the withdrawal of the delegation was the counter-balance to the delegation as a person who could delegate should similarly be able to undo that delegation.
The Chairperson added that this could also avoid any abuse of power. This legislation was intended to cater for the future, and whoever was the Director-General then would be expected to be fair, just and accountable. Regulations would be drawn to deal with the delegated powers, and in this way Parliament could always correct any situation of power without accountability, should it occur. The Director-General was, in any event, still held accountable in terms of other sections of the Act.
Ms Mdludlu added when the Director-General was sub delegating, that person was not actually relieved of responsibilities because she or he still had to account to the Minister. The opportunity for any abuse of power was considerably curtailed.
Prof Freeman reminded Members that the category of people that the Bill covered were state patients, those who had infringed the law but had, for reasons of mental incapacity, been found not guilty. There were over 200 new cases a year. Currently, there were over 3 000 such patients and if the task was not delegated, the Director-General herself would be obliged to sign over 4 500 complex periodical reports, which were required for every case. This would clearly be far too onerous, in view of the many other functions cast on the Director-General has to sign periodical reports for each case, an onerous task given other functions the Director-General. He reiterated that she would have to apply her mind appropriately whenever delegating.
He also told Members that all voluntary and involuntary users of provincial mental health services fell within provincial health systems. State patients were those served by the national system. Not every province had facilities for mental health services.
The Chairperson commented that the statistics presented by Prof Freeman were interesting, but they may not be a true reflection of what was happening on the ground. There could be many more psychopaths in the country, but because of poor diagnoses, they may not be listed. This made it even more difficult for the Director-General to carry out her functions effectively without delegation. He noted that the Bill did not clearly state that the Director-General may not delegate to personnel in provincial hospitals, and he asked to whom the delegation would happen, and, if there were psychiatrists in the province, why they should not be able to get delegated powers.
Prof Freeman responded that the reports were done at the provincial hospitals, by psychiatrists, and then sent to a central point. It was the Director-General’s responsibility to counter-check on the reports and decide on which reports would go back.
Mr Sifiso Phakathi, Director: Mental Health, National Department of Health, tabled an example of “ from Periodicals (reports)”. He noted that the reports were extensive, and covered the history of state patients from admission to a health establishment, outlined their present mental status, present medical conditions, treatments, psycho social rehabilitation programme or treatments in place. The Director-General was required to comment and make remarks on further catchment and readiness of the patient to be discharged for reintegration into the community. However, the Director-General was also required to consider clinical information and other reports. This meant that she would need to rely upon a multi disciplinary team to advise her on whether the treatment the patient is undergoing was correct, or to make further suggestions, and this was quite an intense process. The proposal was essentially that the Director-General should be able to delegate to a suitably skilled, capable and experienced team, rather than undertaking all that work herself to evaluate whether the patient was suitable for release. The same applied to transfers, where the Director-General should not, herself, have to recall complex and varied information on every patient.
Mr Phakathi referred to the question of the review boards constituted by Chapter 8 of the 1973 Act. They had been established in every province under the 2002 Act, with authority to oversee regular inspections in mental health facilities, review involuntary admission and discharge procedures and review the complaints investigation processes. These Review Boards had the authority to impose sanctions, such as withdrawing accreditation, imposing penalties, or even closing facilities that persistently violated human rights. The Mental Health Review Boards constituted under later legislation carried out these functions.
He stressed that an essential part of the Act was to promote awareness of the human rights of mental healthcare users, and to ensure that the physical spaces and structures of facilities for mental healthcare were in line with the needs and functionality of a range of mental healthcare users, including forensic psychiatric care users. It was also essential to protect public sector mental healthcare practitioners from assault and injury whilst they were performing their clinical duties. This could be done by, firstly, ensuring that adequate security procedures were implemented, suitable to the level of care required, and, secondly, by ensuring that security staff members were suitably trained and sufficiently equipped.
In the human rights environment the Review Boards were also meant to oversee the medical intervention, and a key function was to admit a person involuntarily. There were procedural protections and precautions to ensure that patients’ rights were fully protected. One notable example was the requirements that a patient directed by the Head of Health Establishment (HHE) must be examined by a qualified mental health practitioner. The other was procedural protection. Mental Health Review Boards (MHRB) were now constituted in every province. They must be constituted of one magistrate, one attorney, and one mental health practitioner.
He further explained that provision had been made that mental health care givers had the right to legal representation and to appeal to the MHRB about decisions of the HHE, where involuntary treatment was concerned. Due process must be followed, the patients must be assessed as a danger to themselves and others, within 72 hours, and only the High Court could approve their detention. After that, a patient should receive further involuntary care, treatment and rehabilitation, and the HHE must also submit a report within a seven-day period to the MHRB. The MHRB must give further approval of involuntary care.
Chapter 8 decisions would be made when these patients were discharged. This function was shifted to head of the health establishment from the boards. As part of rehabilitation, the High Court could recommend a programme of treatment and conditions. When the clinicians made recommendations for removal, the Act gave certain powers to the health establishment, and no serious problems had been apparent.
In the past, the hospital boards and the MHRB had overlapping functions. Both institutions had to be funded, and their services paid for, because they were still carrying out their functions under Chapter 8, but it was always intended that Chapter 8 should only subsist until the Act was revised to shift the functions there to the HHEs and provincial level.
The Chairperson said the amendments needed to be cross referenced with what was going on at the time, to avoid uncertainty.
Mr Kganare asked if was acceptable to replace “the reasons given for delegation” with the words “on reasonable grounds”.
Mr G Lekgetho (ANC) did not like the phrase “any person” in the Bill.
Ms Mdludlu responded that the use of the words “at any time” was consistent with other sections and legislation, and stressed that when drafting amendments, words consistent with the main Act would always be used. “At any time” already appeared in the principle Act.
Mr Khumalo responded to the question of delegation and said that “any person” was used to cater for a situation where job titles or Departmental structures may change. He reminded Members that legislation was drafted to cater for the future. The ability of the person to whom power was delegated was always critical. If a more specific phrase was used, there was a danger that the legislation would have to be brought back time and again for amendments, whenever anything changed. He reiterated that the delegation of power was aimed at ensuring service delivery, to make sure that functions were fulfilled.
Ms Mdludlu added that since the Director-General would be delegating a wide range of functions, it was important that she have discretion in delegation of such powers. The committee should have confidence in the structure that had already been given to the Director-General.
Mr Kganare hastened to say that there was no doubt about the present Director-Generals’ ability. However, he suggested that perhaps there was an omission between “any” and “person” and suggested that, to avoid doubt, the Bill be written in clear and plain language easily understood by its target audience of the public.
Ms Segale-Diswai explained that Members understood the notion of delegated powers to the Director-General, but she was concerned whether Members had the power to change the word “any”, and whether any regulations covered the interpretation of that word.
The Chairperson asked Members what they thought should be inserted between “any” and “person”.
Ms Ngcobo thought the word “clinical” should be added, Ms D Robinson (DA) suggested that “suitably qualified” be inserted.
Ms L Makhubele-Mashele (ANC) disagreed, saying that the Director-General had to exercise functions sensibly, and “any person” was sufficient”.
The Director-General referred to Members’ comments on “any person” and would agree that the words “suitably qualified” could be inserted, as this would be appropriate and acceptable.
The Chairperson said that for every doctor there were 4 000 patients, and the ratio was even worse when it came to specialists. There was a need for specialist psychiatrists to ensure effective service delivery.
Ms Dub asked a question about involuntary state patients and prisoners.
Mr Khumalo said the Act provided for a wide scope of people, including state patients and mentally ill prisoners, those who were so ill that they were unable to make decisions for themselves, and those who, because of a mental illness, were a danger to themselves. Due process, to obtain the approvals for committal, were an integral part of the chain. He added that a “prisoner” was defined in the Correctional Services Act. If a prisoner became ill, section 52 of that Act provided that they could be moved, and in this case the Head of the Correctional Service Centre would cause an assessment to be done, under the supervision of a magistrate, following which a psychiatrist would be assigned and a place of treatment be designated within the suitable hospitals.
He further explained that “State patients” were patients who, although accused of having committed a crime, had no mental capacity and therefore could not be held responsible for their actions or omissions. The Court would make a decision on mental capacity, then make an order to the Director-General to designate a suitable and secure mental health facility as a detention centre. It was necessary, in these cases, to expedite the matter, and to observe patients and immediately place them where suitable, rather than tying up the facilities.
Ms Precious Matsoso, Director-General, Department of Health, added that it was necessary to have a Memorandum of Understanding (MOU) between the Departments of Correctional Services and Health, to expedite discharge of patients. The patient numbers were increasing, the transfers were not as rapid because facilities were full, and sometimes patients were not discharged on time. The inter-governmental process should be speeded up by a better monitoring and evaluation process.
The Chairperson repeated that often there was not sufficient insight into most psychiatrist problems, and it might be a person such as a teacher who would bring in a person for treatment. The main concern that he had was that in South Africa, psychopaths were often only diagnosed once they had been imprisoned. Some patients were not psychotic, but might be undiagnosed epileptics who could commit crimes during epileptic episodes.
The Chairperson noted that the Bill would be finalised in the following week.
The meeting was adjourned.
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