Mental Health Care Amendment Bill [B39-2012]: Negotiating Mandates & Department of Health responses

NCOP Health and Social Services

20 August 2013
Chairperson: Ms R Rasmeni(ANC, North West)
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Meeting Summary

The Department of Health met with the Select Committee on Social Services to discuss the provinces’ Negotiating Mandates on the Mental Health Care Amendment Bill [B39-2012]. All of the provinces supported the Bill. Comments and recommendations were read out by the Members representing each province. The main issues were to amend delegation of power to ‘any person’ to delegation of power to a ‘designated person’ in the employ of the national Department; the delays in the judicial system; to provide for the head of the relevant provincial department to have powers currently under the national head of Department to assist the national Department to effectively implement the Act at the level of the province as opposed to being concentrated in national Department; and definition of the role of traditional healers in the bill.

The Director-General said that the Department agreed with delegation of power to a ‘designated person’, although whether this would be ‘in a prescribed manner’ or not would involve regulations and would be further discussed with the legal team. Addressing a Member’s concern, she said that Traditional healers had their own Council and laws governing their functions and would not be included in the Mental Health Care Bill. However, the Mental Health Care Review Boards could include traditional healers on the board. Shortage of psychiatrists, capacity and disparity between provinces with regard to number of state hospitals would need to be addressed.

Meeting report

The Chairperson said that the Minister had sent apologies for not attending the meeting as he was still recuperating after surgery at the Steve Biko Academic Hospital in Pretoria. All the provinces’ recommendations and comments had been forwarded to the Department of Health (DoH).

Negotiating Mandates: Mental Health Care Amendment Bill [B39-2012]
Members then read out the provincial legislatures’ Negotiating Mandates on the Mental Health Care Amendment Bill [B39-2012]. The Negotiating Mandate of each province could be found in the attached documents.

Eastern Cape Provincial Legislature
In the absence of a Committee Member from the Eastern Cape, Ms B Mncube (ANC, Gauteng) read out the Negotiating Mandate of the Eastern Cape legislature’s Portfolio Committee on Health. The Bill was deliberated on the 8 August 2013 and the province voted in favour of the Bill and mandated the Eastern Cape delegate to the National Council of Provinces (NCOP) to negotiate in favour of the Bill.

Free State Provincial Legislature
Ms M Moshodi (ANC, Free State) read the Negotiating Mandate of the Free State Portfolio Committee on Health & Social Development. Deliberation was on 19 August 2013 and the province voted in favour of the Bill, with amendments.

Gauteng Provincial Legislature
Ms Mncube read the Negotiating Mandate of the Portfolio Committee on Health of the Gauteng Provincial Legislature. Date of deliberation was on 19 July 2013 and the Gauteng Provincial Legislature voted in favour of the Bill, with proposed amendments.

Kwa-Zulu Natal Provincial Legislature
Ms Maggie Govender, Chairperson of the Health Portfolio Committee (ANC, KwaZulu-Natal) said that the Health Portfolio Committee had met on 6 August 2013 and agreed to mandate the KwaZulu-Natal delegation to the NCOP to support the Bill, with proposed amendments to 72A(1).

Limpopo Provincial Legislature
Mr T Makunyane, (Limpopo) stated that the Limpopo Legislature had agreed that the provincial NCOP delegates negotiate in favour of the Bill, taking into consideration the inputs mentioned in the report.

Northern Cape Provincial Legislature
Mr W Faber (DA, Northern Cape) said that after due deliberation on the Bill, on 15 August 2013, and taking note of public input, the Portfolio Committee on Health and Social Development supported the Bill and recommended to the House to mandate the permanent delegates to support the Bill.

Mpumalanaga Provincial Legislature
Ms M Boroto (ANC, Mpumalanga) read the Negotiating Mandate of the Mpumalanga legislature Portfolio Committee on Health and Social Development, which had deliberated on 14 August 2013. The Committee had agreed to confer the permanent delegate representing the Mpumalanga Provincial Legislature in the NCOP to negotiate in favour of the Bill.

North West Provincial Legislature
Ms M Makgate (ANC, North West) said that the date of deliberation was 26 July 2013. The Portfolio Committee on Health and Social Development, Women, Children and People with Disability voted in favour of the Bill noting the concerns raised by the communities.

Western Cape Provincial Legislature
Mr M de Villiers (DA, Western Cape) said that the date of deliberation on the Bill by the Standing Committee on Community Development was 26 July 2013. The Committee reported that it conferred on the Western Cape’s delegation in the NCOP the authority to support the Bill.

Department of Health responses
Dr Malebona Matsoso, DoH Director-General, said that it was important to stress that the amendments concerned patients in the state hospitals and affected how they were reviewed by the Mental Health Care Review Board and court orders. Therefore, traditional healers were not explicitly referred to in this regard. There was, however, a provision for establishment of the Traditional Healers Council. Once that council was operational the DoH could set up a process on how traditional leaders would be integrated into health services and how they would be regulated. The DoH would like to have the opportunity to present to the Committee on the specific laws relating to Traditional Healers and the Traditional Healers Council.

The Free State province’s comment related to substantive amendments to move the powers of the national Head of Department to the provincial Head of Department. Historically the Mental Health Act was a function of the President of the country. It was later amended and delegated to the Minister. The responsibility now given to the Director-General was huge. Judgement had to be made on rape cases and murders and whether these patients should be kept in the state facilities. This was after reports were submitted, objective assessments had been made, and the Review Board had met and made recommendations.

There were a total of 15 state hospitals for state mental healthcare patients in the country: two in the Western Cape, three in the Eastern Cape, three in KwaZulu-Natal, one in Free State, one in Northern Cape, one in North West, two in Gauteng, two in Limpopo and none in Mpumalanga. There were provincial disparities and this posed a problem. A Head of Department in North West, where there was lack of capacity, could not make a decision as to whether a patient should be kept at a facility in another province. She suggested that Members consider looking at this inequality in capacity and hospitals per province. Availability of psychiatrists was also concern. There were 742 registered psychiatrists in the country, of which only about half were available for public service and serving on the Review Board. While all provinces had Review Boards, they did not function at the same level. The question was how to draw resources to provide support and have all hospitals function at the same level. This background should be considered by Members when taking amendments into account.

Prof Melvyn Freeman, DoH Chief Director: Non-Communicable Diseases, added that the DoH employed social workers who played an important role, particularly for forensic patients, in evaluating circumstances under which discharge was granted. There were not enough of these social workers to do all the work of the Departments of Social Development and Health and government was taking steps to redress the issue. Where the DoH did not have sufficient social workers, it drew on social workers from the Department of Social Development to follow up in the communities. There was a good relationship with the Department of Social Development in this regard.

Dr Matsoso added that in answer to one of the issues raised by provinces relating to delays in the justice system, the Chief Justice had established a committee aimed at bringing about efficiencies in the system. Relevant government departments serving on that committee were expected to report to the Chief Justice on how they dealt with backlogs and delays.

Regarding the issue raised by Eastern Cape on regulations, DoH thought it was premature to publish the draft regulations while the legislative process was still under consideration. The draft regulations were, however, completed and ready.

DoH welcomed and agreed with the concerns by Gauteng and KwaZulu-Natal regarding delegating power to a ‘designated person’ as opposed to ‘any person’. The legal team would assist DoH with deciding on whether power would be delegated to that person in a ‘prescribed manner’ or not. DoH was willing to discuss such an option, although prescribing regulations to fit a designated person would be quite ‘intense’.

Ms Govender clarified that the proposal from KwaZulu-Natal regarding delegating power to the designated person in a ‘prescribed manner’ related to the person, i.e., who they were, what their qualifications were, etc.

Ms Xoliswa Mdludlu, Principal State Law Adviser, Office of the State Law Adviser, clarified that first there had to be an enabling Act which had an enabling provision to empower a person to delegate power before that empowered person could delegate to the ‘designated person’.

Ms Mncube was concerned that there would be no relationship between the Traditional Healer and State Mental Hospital doctor if the Traditional Healer Council was not defined in the Bill.

The DG replied that indeed there was already law for Traditional Healers and it would be restrictive to confine Traditional Healers to the Mental Health Bill when their functions were much broader than mental health. The Mental Health Care Review Boards had the option of including traditional healers on their boards.

Dr Matsoso thanked the Committee for its input on the Bill and for its hard work on the two pieces of legislation, the Medicines Amendment Bill and the International Health Regulations Bill, which were in the pipeline for proclamation.

On behalf of the Committee, Ms Mncube wished the Minister a speedy recovery

Committee minutes adoption
Mr Faber moved for adoption of the draft minutes of the meeting of 4 June 2013 and was seconded by Ms Moshodi.

Ms Boroto moved for adoption of the draft minutes of the meeting of 11 June 2013 and was seconded by Mr De Villiers.

Ms Mcube moved for adoption of the draft minutes of the meeting of 30 July 2013 and was seconded by Mr De Villiers.

The minutes were adopted.

The meeting was adjourned.

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