Mental Health Care Amendment Bill [B39-2012]: Department of Health briefing

NCOP Health and Social Services

04 June 2013
Chairperson: Ms RN Rasmeni (ANC, North West)
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Meeting Summary

The Department of Health highlighted the main aim of the Mental Healthcare Amendment Bill [B39-2012] as amending the Mental Health Act of 2002 to provide for delegation of powers by the Director-General pertaining to State patients. The Bill further sought to repeal Chapter 8 of the Mental Health Act 1973 as the issue of Hospital Boards was dealt with in Chapter 6 of the National Health Act 2003.

The primary concerns of Members hinged on two issues. Firstly, what would the nature of delegation be and who would take responsibility for delegation and secondly, why was the current Bill being presented to the National council of Provinces (NCOP) as a Section 75 Bill when it entailed issues directed at the Provinces and should, therefore, be presented as a Section 76 Bill.

The Department could not continue its briefing beyond the nature of the Bill being tagged as a Section 75 or 76 Bill as the Committee called for the premature adjournment of the meeting because of this mis-tagging.

Meeting report

Department of Health (DoH) Mental Health Care Amendment Bill Briefing
Dr Anban Pillay, DoH Deputy Director-General (DDG): Health Regulation and Compliance Management, set out the background of the Bill. Its aim was to amend the Mental Health Care Act (No. 17 of 2002). The 2002 Act was noted as a complex one, detailing admittance and treatment of mentally ill persons as well as the pragmatic issues surrounding this. The Bill aimed to provide delegation of powers by the Director-General (DG) to improve service delivery in dealing with mentally ill prisoners.

The Bill further sought to repeal Chapter 8 of the Mental Health Act (No. 18 of 1973), which dealt with Hospital Boards, as the nature thereof was dealt with in Chapter 6 of the current National Health Act (No. 61 of 2003).

Before delivering the brief it was clarified that the Bill applied to ‘State Patients’, a specific category of persons, who came before a court of law and were unable to stand trial or were found not to be responsible for their actions at the time of committing the crime. This was noted as an important subsection of mentally ill patients in South Africa. Regular reports were required on these persons based on their states of mental health. Each case needed to be reported to the DG personally, as there was no delegation process.

Prof Melvyn Freeman, DoH Chief Director: Non-Communicable Diseases continued to note that the lack of delegation made for a cumbersome workload. The request had been made to decentralise this process and allow for delegation. He said that the repealing of Chapter 8 of the Mental Health Act 1973 was informed by sections of the old legislation that sought to prevent duplication of Hospital Board duties in multiple acts. What the old legislation sought to prevent had now occurred.

Powers to be delegated included power to transfer State patients from prisons to health care institutions 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.

Prof Freeman explained the benefits of delegation. As administration became time consuming, effective attention became problematic, with around 4 000 considerations per year – delegation would improve turnaround times. In 2012 the DG authorised the transfer of 173 new State Patients, with over 3 000 State Patients for whom personal attention from the DG was required. The end result was that administrative responsibilities slowed down delivery.

The Bill was approved for publication in July 2012 with no substantial comments received regarding the amendments. The Chief State Law Adviser tagged the Bill as a Section 75 Bill and certified on 2 November that the Bill was consistent with the Constitution. The Portfolio Committee on Health deliberated extensively on the Bill and adopted it on 13 March. (See presentation document)

The Chairperson asked for clarification between persons in state institutions and mentally ill persons in society at large and enquired what mechanisms were in place to keep such persons in facilities. What role did provincial departments play?

Mr W Faber (DA, Northern Cape) asked for clarity on who the officials would be to whom the DG would delegate. Would they be qualified within certain criteria and would they be notarised on an attainable list?

Mr M de Villiers (DA, Western Cape) enquired what criteria the Head of Department would use to support decisions. Would there be specific criteria used in aiding decisions of transfers? Was there a support system in place for the DG’s decisions and how long did one have to repeal said decisions? He queries the information as adjudged by the Portfolio Committee as the current Committee did not have this information or minutes to make an informed decision on its actions. He questioned why the Bill was presented as a section 75 Bill when it would affect the Provinces – should it not be a Section 76 Bill?

A Member of the Gauteng provincial legislature also called for clarity on tagging. What was the procedure when accused was not charged but was still institutionalised without being labelled as a ‘State patient’, as in the Devani case? Was there no way to introduce a ‘directorate’ solely responsible for the aforementioned delegations? Was this an opportunity to address the needs of mentally ill patients “on the street” as well?

Ms B Mncube (ANC, Gauteng) highlighted the issue of ‘non-recorded’ patients as dangerous. She also highlighted the issue of whether the Bill should be classified as Section 75 or Section 76. What level of accountability was there once delegation has occurred? There was nothing in Bill regarding time-lapse of processes. The Bill identified a problem, but it did not solve the problem.

A Member reiterated the nature of ‘to whom’ there would be delegation as being vague. Would the ‘director level’ be at provincial or national level?

A Member of the KwaZulu-Natal provincial legislature asked about the level of competence of those delegated to. Would the process in fact be accelerated? How would delegation occur?

Ms M Boroto (ANC, Mpumalanga) noted that in the Committee’s previous encounter with the Bill it was a Section 76 Bill, but was now presented as Section 75 - what had happened?

Dr Pillay began his reply by highlighting that delegation occurred across many functions and that the clear-cut and ‘easy’ decisions would be immediately delegated and others accordingly.

Prof Freeman introduced the aspect of a Section 75/6 Bill and introduced the Chief State Law Adviser to address the issue. She claimed that the Bill should have read 76 and was meant to say ‘Agreed’, not ‘Proposed’.

At this point the Chairperson was disappointed by the misleading nature of the proceedings with regard to the Section 75/6 Bill and, with Ms Mncube and Ms D Rantho (ANC, Eastern Cape) calling for the meeting to be adjourned on the basis that they were deliberating illegally based on false information, the Chairperson called for a vote whether the meeting should be discontinued. Members De Villiers, Faber, Mr S Plaatjie (North West, COPE), Mncube, Rantho and finally Boroto all agreed, with substantiation, that meeting should be discontinued.

Mr Peter Maloka (Member of the Free State Legislature) asked how this deferral would affect mandates and impact on provinces, highlighting the costs incurred with such a decision if the Committee discontinued the meeting. Ms Rantho noted that it was unfortunate but the Committee was simply not at liberty to continue.

The Chairperson concluded that this section of the meeting was adjourned and dismissed all persons except the Committee Members, as minutes needed to be discussed.

Committee Minutes: adoption
The Committee adopted its outstanding minutes.

The Chairperson adjourned the meeting.


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