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

Meeting report

Mental Health Care Amendment Bill [B39-2012]: Department of Health (DoH) briefing
The Chairperson remarked that this meeting was a continuation of a previously dissolved meeting, and that the presenters were still required to reply to questions that had been directed to them previously.

Dr Precious Matsoso, Director-General (DG), apologised for the faults that had led to the dissolution of the previous week’s meeting on the same matter. The legal opinion on the Bill had been addressed, and it had been confirmed that the Bill was now in accordance with the Constitution and legally classified as a Section 76 Bill (a Bill affecting provinces).

Dr Matsoso set out the background to 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 the admittance and treatment of mentally ill people, as well as the pragmatic issues surrounding this. The Bill aimed to provide for the delegation of powers by the Director-General (DG), to improve service delivery in dealing with mentally ill prisoners.  It further sought to repeal Chapter 8 of the Mental Health Act (No. 18 of 1973), which dealt with Hospital Boards, as the nature of the boards was already dealt with in Chapter 6 of the current National Health Act (No. 61 of 2003).

Dr Matsoso commented that the DoH had a substantive presentation, dealing with various elements of mental health services. These would be presented separately in order to clarify many misunderstandings.

Mr Sifiso Phakathi, Director: Mental Health and Substance Abuse, outlined the categories of mental health care users. The first were voluntary patients, who consented to treatment. The second were ‘Assisted’ patients, who may not have consented, but were not refusing treatment. The third were ‘Involuntary’ patients, who may not have been able to make the decision themselves, but were accepted as a danger to themselves or to others. The fourth were ‘State patients’, who were admitted to facilities by the court. The fifth were mentally ill prisoners, who had developed mental illnesses while incarcerated.

The Bill dealt specifically with the fourth category, of ‘State Patients’. The DoH had approximately 6 000 registered patients in this category, with the addition of between 150 and 200 patients yearly. Once admitted, bi-annual reports were produced in the first year, and thereafter annual reports, on which decisions were made for transfers or releases. These had to be handled by the DG personally.

Mr Phakathi addressed the previous meeting’s concern over whether provincial departments had a role of responsibility. Although patients were kept in provincial institutions, they remained a national competence, following due legal process.

Dr Matsoso addressed the previously raised concern over who she would delegate powers to. There were two categories: ‘Administrative’ and ‘Technical’.  Administrative functions would be administered by senior officials, at a level no lower than Director. Technical functions would be administered by qualified experts -- carrying qualifications such as Psychology or Psychiatry Doctorates.

Discussion
Ms M Bopade, Chairperson for Health, Gauteng Legislature, raised the question of an individual who might have been deemed mentally unstable, but had not been incarcerated. How did the Department handle such people? Was there a possibility of setting up a specific unit for dealing with ‘State Patients’?

Ms M Boroto (ANC, Mpumalanga) asked whether the ‘presentation’ the DG had mentioned should not have come before the current Bill deliberations. How did the courts come into play with ‘State Patients’?  What were the criteria for the selection of ‘competent individuals’ to whom functions would be delegated? Criteria should be included in Bill.

Ms B Mncube (ANC, Gauteng) asked who decided patients were a danger.  The lack of an explanation and specific written descriptions of who would be delegated to, was a serious omission.  This emphasised Ms Boroto’s point.

Ms D Rantho (ANC, Eastern Cape) asked whether the persons delegated to, would not also come under the same cumbersome workload that the Bill was trying to relieve.  Should provincial departments not be involved to ‘lighten’ the workload?   The previous meeting had caused expenses for the budgets of provinces, not just a delay for the Committee.

Mr W Faber (DA, Northern Cape) called for an amendment to the wording in the Bill of “delegation to any person”. These persons should be clearly defined -- if not by title, then by qualifications.

Ms M Govender (Kwa-Zulu Natal) agreed with her colleagues. Was there a process to establish a database of expert professionals and assisting persons?

Dr Matsoso said there were provisions in the Mental Health Act dealing with transfers of mentally ill prisoners, and these rules would probably apply to the current situation.  Magistrates were given advice by experts.  International laws also applied.

Dr Matsoso recognised the concern for clarity in the Bill over the delegation of functions.

Regarding a specific function or unit, Dr Matsoso noted that the Mental Health Act dealt with the responsibilities of health establishments and review boards.  Heads of prisons were also responsible. Court orders were essentially a magisterial concern, which she had had to deal with unnecessarily.

Ms Bopade asked if the government had any way of addressing the issue of mentally ill persons on the street.

Mr S Plaatjie (ANC, North West) questioned the implications of specific delegation. How would variances be dealt with when the DG was not available to delegate, or when those delegated to were not available?  The Bill was still tagged as a Section 75 bill, though it claimed to use parts of Section 76 provisions. What was the legal implication of this approach?

Dr Matsoso outlined that there were provisions for members of the community (including non-consensual persons) in the National Health Act. Those that refused treatment were in contravention of the law. These issues were addressed substantively in their proposed presentation. She suggested that an opportunity be given for a presentation to be made to provinces individually, so that these issues could be outlined in more detail.
 
The matter of the Bill being tagged as either Section 75 or 76 was raised.  Ms Xoliswa Mdludlu, the Principal State Law Adviser, reported that the classification before the Committee was merely a proposal of tagging. The final tagging would be dealt with by the Joint Tagging Mechanism (JTM).

Ms Ulinda Kritzinger, Director: National DoH, remarked that the initial introduction of the Bill had been as a Section 75.  This had subsequently been overturned by the JTM, so the meeting should proceed on the grounds of it being a Section 76.

Mr Lufuno Makhoshi, Acting Director: Legal Services, DoH, dealt with Mr Plaatjies’ question regarding specific delegation.   Once delegation was specified too minutely, one eliminated any other competent parties. The criteria might not be ‘perfect’ at present, but allowed for movement.

Ms Ranto remarked that the Bill should still not outline ‘anyone’ for delegation, but should at least address specific qualifications as a basis.

Ms Boroto acknowledged that specific provinces would be dealt with by the DoH, after which they could propose amendments.

The Chairperson thanked all Members and requested they give dates and time slots to the DoH for the presentation of information. The next step for the Committee was to deal with public hearings on the issue.

The Chairperson adjourned the meeting.