(Subcommittee: Correctional Services) DCS on management of state patients in correctional centres; with Deputy Minister

Meeting report

The Chairperson said he had been informed that the Department of Health (DoH) would be joining the meeting.

Dr Evah Mulutsi, Deputy Director: Forensic Psychiatry, DoH, confirmed her attendance on behalf of the Department.

Mr Makgothi Samuel Thobakgale, Acting National Commissioner, Department of Correctional Services (DCS), informed the Committee that Mr Patekile Holomisa, Deputy Minister of Correctional Services, had joined the meeting.

The Chairperson called on the Deputy Minister to make brief comments.

Deputy Minister's opening comments

Deputy Minister Holomisa said there was nothing new to report except the numbers contained in the presentation on the matter of state patients (SPs) in correctional centres. The Department of Justice (DoJ), through the court process, continued to send mentally ill people to correctional centres merely for being charged with committing a crime. It was also through the court process that SPs were being sent for mental observation while in DCS custody as awaiting trial prisoners or remandees.

The DCS reports showed that few SPs were in a position to stand trial. Ideally, a mentally ill person should be taken to a mental hospital for treatment. The only reason SPs were being associated with a correctional centre was that they had been awaiting trial. There was no basis to keep SPs in correctional centres if they were not awaiting trial or being convicted or sentenced. The provision in the Criminal Procedure Act ought to be reconsidered by the DoJ, the DCS and the Portfolio Committee in terms of the reasonableness for taking a mentally ill person to a correctional centre instead of a mental institution.

The DCS was nonetheless engaging with the DoH to ensure the requisite assistance was provided to SPs while in DCS custody. The Department was doing as much as possible to ensure that SPs in DCS centres were getting the treatment they deserved, despite not having a full staff complement of psychiatrists and other medical personnel. A shortage of beds continued to be a problem for the Department.

Department of Correctional Services presentation

Dr Winnie Seaketso, Chief Director: Incarceration and Corrections, DCS, remarked that the biggest concern was the increase in the number of mental health care users in South Africa, and even globally. The situation had been worsened by the Covid-19 pandemic and other communicable diseases such as HIV/AIDS. The impact was observed in relapses in the condition of mental health care users and the types of crimes that were being committed, resulting in mentally ill patients ending up in correctional centres.

The increased number of SPs had an impact on the availability of beds in designated mental health institutions. This negatively affected the Department, which was expected to accommodate SPs in correctional facilities whilst awaiting beds in the designated mental health institutions of the DoH. Like all other mental health care users, SPs had access to a baseline assessment that was being conducted to allow the Department to evaluate all the health care needs of a person. The assessment was done in collaboration with a designated mental health care institution.

The Mental Health Care Act 17 of 2002 stipulates that all SPs should be transferred to a mental health institution within 14 days. In terms of the amendment to the Criminal Procedure Act 4 of 2017, a person declared an SP should temporarily remain in a DCS health facility and be transferred to a psychiatric hospital when a bed becomes available. Statistics showed that most patients remained in DCS facilities beyond 14 days due to the limited number of available beds. The DCS was having continuous engagement with the DoH and designated mental health institutions about the availability of beds and the backlog at DCS facilities.

On 10 May 2021, the Department had reported 123 SPs in DCS facilities across the country and accounted for 119 SPs in its facilities as at 28 February 2022. The Western Cape reported zero SPs in DCS facilities because SPs in this province were sent straight to mental health care institutions. Between May 2021 and February 2022, 158 new admissions and 150 transfers to designated mental health institutions were registered. The unavailability of beds due to the continuous admission of SPs in DCS facilities remained a challenge for the Department. The problems were mostly in Mpumalanga and Gauteng. Mpumalanga did not have a facility and was relying on Gauteng for the admission of SPs. According to the records, a SP from Mpumulanga had been in DCS facilities since 2016.

The Department was relying on the South African Police Service (SAPS) for the transport of SPs to designated mental health institutions for regular consultations. Audio-visual facilities were available at DCS centres to enable interaction between SPs and DoH psychiatrists to ensure continued care. The Department was making concerted efforts to ensure quality health care was provided to all SPs in DCS facilities, despite the impact of Covid-19 and resource challenges.  

The Chairperson called on the Deputy Director of the DoH for her contribution.

Department of Health's contribution

Dr Mulutsi said that South Africa, similar to all other countries, was facing a high prevalence of mental illness cases and an increase in crime levels. The rise in the numbers had been exacerbated by the Covid-19 pandemic, which had had a significant impact on the mental well-being of people and the inter-relationship between mental health and other non-communicable diseases. All these factors had led to high demand for general health services countrywide. The pandemic had overstretched available resources in the health sector. The unavailability of beds was a key contributing factor to SPs having to wait in correctional centres for admission to psychiatric hospitals. There were 14 designated psychiatric hospitals in the country.

The Chairperson asked if he had heard correctly that there were 14 hospitals in the country.

Dr Muluti confirmed the number of 14 was correct. She said the 14 hospitals had been designated to provide services in terms of the Mental Health Care Act. Specific maximum security requirements had to be in place at these mental health facilities, as they also provide services to mentally ill prisoners. Not all psychiatric hospitals had the capacity to provide for the mental health needs and reintegration programmes that were required for mentally ill prisoners.

The challenge in Mpumalanga was that the province did not have a dedicated hospital. Plans to construct a hospital were underway. Alternative measures had been implemented to provide care on an out-patient basis at the same level as other hospitals. The difficult-to-manage patients were referred to Weskoppies in Gauteng for further management.

She confirmed that the demand for beds for SPs was high. There were about 8 000 SPs countrywide on the DoH database. One of the interventions introduced to make beds available was to send some of the patients home for short periods of time for a leave of absence. To demonstrate the high level of demand for SPs beds, she reported that between January to December 2021, 250 new SPs were transferred to DCS facilities. From January to February 2022, 68 new SPs were admitted. The bed occupancy utilisation rate was between 80% to 90%, hence the accumulation of SPs that could not immediately be admitted after a court order was issued. The DoH would have to build a 30-bed ward every month to resolve the problem, which was not an attainable solution.

The DoH was advocating for other options in the Criminal Procedure Act to be considered for accused persons found not criminally responsible. The amendment to the Act provided for other options through involuntary, conditional and unconditional means to avoid declaring people as SPs, but the main option being used was to declare people SPs, which resulted in the system being overloaded. The involuntary declaration would mean that mental health care users could be assisted in the 64 designated psychiatric hospitals for involuntary mental health care users, where there was no waiting list.

Dr Muluti emphasised the impact of slow court processes on the bed backlog. Relatively few patients were discharged or reclassified from state hospitals. Fewer than ten SPs had been discharged in the past 12 months. A person who qualified for a conditional discharge or reclassification, based on a clinical assessment, had to go to court for the application to be considered by a judge. The process took a long time and contributed to the accumulation of the bed backlog because the beds remained occupied most of the time. The SP admission rate was very high compared to the rate of discharge from psychiatric hospitals. She said the doors to hospitals were open, but the output was limited.

Discussion

Mr X Nqola (ANC) enquired about the 14 designated mental health facilities in the country. It had been reported that the Eastern Cape and Gauteng provinces each had two facilities. He sought clarity on the location of the remaining ten facilities. He asked if SPs were engaged in any activities or provided with medication during the gap period between a court order and the actual placement of SPs within DCS facilities.

He proposed that the Committee and Department conduct a study to discuss the incoherence between the Correctional Services Act 11 of 1998, the Criminal Procedure Act 51 of 1977 and the Mental Health Care Act 17 of 2022 in terms of the management of SPs. There appeared to be an incoherence between the court decision and the other legislative instruments. The study would show if there was a need for the enactment of relevant provisions to remedy the current situation. The study should reconsider whether it must be compulsory for SPs to be taken to a DCS facility while waiting for available beds. He referred to the case of ‘Adam’ in the Eastern Cape, who had been in custody at a DCS facility for a number of months in contradiction to the court order, which had directed the person to go home if the bed space was unavailable.

He called for a proper discussion on this matter to prevent people from losing confidence in the justice system. He suggested that the DCS was presenting plans to counter the fact that SPs were spending time in DCS facilities while the DoH was reporting an overwhelming growth in demand for beds for psychiatric patients. The demand involved not only beds but also medical practitioners. He proposed that sending psychiatrists from the DoH to DCS facilities would be an effective solution to the problem.

Mr J Engelbrecht (DA) agreed with the statement of the Deputy Minister that it was unreasonable to take mentally ill patients to DCS centres. Accommodating mentally ill patients was not part of the core functions of the DCS, and fell outside the constitutional mandate of the Department. The initial idea of the amendment of section 77 of the Criminal Procedure Act was to make the stay of SPs in a DCS facility a temporary measure. Instead, the DCS Portfolio Committee was being tasked to discuss a DoH problem. It was a huge risk for the DCS to accommodate mentally ill patients in over-populated facilities. It was being exposed to the risk of claims should something happen while SPs were in custody.

Mr Engelbrecht suggested it was worthwhile to observe and replicate what was happening in the Western Cape, where no SPs were in custody in DCS facilities. He proposed an inter-departmental discussion between the DCS and the DoH about time limits, as section 77 of the Criminal Procedure Act was not clear on time frames. The SP from Mpumalanga who had been in a DCS facility since 2016 served as an example that procedures must be implemented to address the problem of time limits. The Department would have to pay millions of rands if family members of SPs or their lawyers were to submit claims for human rights violations. The situation was unacceptable and unfair.

Ms N Maseko-Jele (ANC) agreed with Mr Nqola that there was a serious problem of incoherence in the legislation. She urged all parties to get involved to assist the Department to resolve the matter. The DoH should take responsibility and must come to the rescue of the DCS. The problem of SPs in DCS facilities was worsening the ratio of inmates to officials and was adding to the pressure on officials. She questioned why there had been no breakthrough on the matter, despite continuous engagements between the Department and the DoH. The DoH needed to have a stronger voice on this matter.

She was interested to learn why the Western Cape had zero SPs in DCS centres. The number of foreign national SPs who committed crimes in South Africa and needed to be deported to their home countries was not reported. She asked how the Committee could assist the Department on this matter. The construction of the hospital in Mpumalanga would ease the pressure in Gauteng. She asked for the time frames of the construction plans.

The Chairperson called on Dr Muluti to respond to the request for a breakdown of the remaining ten facilities and to elaborate on the capacity of the 14 designated mental health institutions to help the Committee understand the challenges of the Department. He asked what the Western Cape was doing differently that enabled them to be in a different situation than the other provinces.

Dr Muluti replied that the report on the number of designated mental health institutions would be tabled at a later stage.

The Chairperson asked why the report had not been sent to the Committee since she had been aware of the meeting.

Dr Muluti said she had been informed via the invitation that a presentation was not required -- she was only expected to respond to issues emanating from the discussion.

She proceeded to provide the following breakdown of the bed capacity at the 14 facilities per province:

North West (130),
Limpopo (47+ 84),
Free State (144),
Eastern Cape (150 + 184),
Northern Cape (18),
Western Cape (147 + 150),
KwaZulu-Natal (378 + 60 + 46)
Gauteng (249 + 365).

She said the DoH was working in close collaboration with the Department on the placement of SPs within DCS facilities. In a pilot project in the Eastern Cape, DoH psychiatrists were reviewing and initiating the supply of medication to all mental health care users, including SPs. In addition to being a human right, the medication helped to stabilise patients, which reduced a lot of the undesired reporting which emanated from uncontrolled SPs.

She agreed that a review of legislation was needed to map all the processes and unblock the bottlenecks in the system. The DoH had submitted proposals to the DoJ to be considered in the review of the Criminal Procedure Act. The process starts with the mental observation of an apprehended person. There should be a process of preliminary screening to avoid subjecting everybody to the process of being declared an SP. Some cases could be diverted to the health system to prevent a blockage in the system due to the unavailability of beds. The DoH had submitted proposals to the DCS on what could be reviewed and revised to remedy the situation.

Many other human resource interventions had been introduced, including the training of DCS officials on basic mental clinical health skills to enable them to care for SPs while waiting in DCS facilities. It was recommended that SPs be kept in the DCS health facilities where there were professional nurses. Another intervention was the contracting of private sector practitioners to augment state resources to increase the capacity of psychiatrists, psychologists and registered councillors. An advertisement was placed annually to attract private practitioners interested in providing services to the DoH. The latest advertisement was dated 24 February 2022. A list of private practitioners who signed up was presented to the DoJ for use by the courts as and when their services were required.

Dr Muluti agreed with Mr Engelbrecht that the provision of section 77 of the Criminal Procedure Act was meant to be a temporary measure. The waiting period varied, depending on the challenges per province. Mpumalanga was experiencing the biggest challenge, as they were dependent on Gauteng for SP accommodation. The waiting period in most other provinces had been reduced to six months. The DoH was having inter-departmental discussions with all of its counterparts, including the SAPS and legal services, in an attempt to improve the service to the courts.

She said the Western Cape was not the only province without a waiting list. The Eastern Cape, which previously experienced the largest concentration, reported no backlog as at the end of February. The largest concentration of SPs was in the Free State (46), Gauteng (27), Mpumalanga (17) and the Northern Cape (12). The DoH was progressively improving processes to avert the challenges, but the problem would remain unresolved because of limited output. Only ten SPs had been discharged through the court process in the past year.

In reviewing the legislation, the unblocking of the bottleneck relating to the discharging of SPs should be prioritised. Responses to court applications were very limited and very slow. A system was needed for persons who regained their mental capacity and the ability to consent, to return to court and continue with the trial. Current legislation did not provide for persons declared an SP, even for a short period of time or who regained mental capacity, to return to the court for a re-trial, hence the accumulation of SPs which was overwhelming the health system. The DoH was trying to accommodate all new referrals but found itself in this difficult situation.

The Committee was told that the DCS was not in a position to present a breakdown of foreign nationals in DCS centres, but would provide a report to the Committee in the future.

Ms Maseko-Jele said a response to her question about time frames for the construction of the facility in Mpumalanga was outstanding.

Dr Muluti replied that she did not have actual dates of the construction plans for the Mpumalanga hospital. She undertook to contact the province and report back to the Committee about the timelines.

The Chairperson acknowledged the undertaking and thanked both the DCS and DoH teams for the presentations.

Closing remarks

The Chairperson asked the Committee Secretary to note the items that the Committee was going to need as follow-ups -- the DoH written report, the list of foreign national SPs from the DCS, and timelines for the construction of the Mpumalanga facility. He asked the Committee Secretary to present the set minutes of previous meetings for approval.

The Committee Secretary apologised for not having the minutes ready. He would do a thorough check-up and report back to the Committee on the matter.

The Chairperson agreed to have the minutes approved at the next meeting.

The meeting was adjourned.