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SOCIAL SERVICES SELECT COMMITTEE
12 March 2002
MENTAL HEALTH CARE BILL: NEGOTIATING MANDATES
Mental Health Care Bill [B69B-2001]
Negotiating mandates of seven provinces
The Department of Justice has proposed changes to the Bill which will delay the completion of processing the Bill by the NCOP until next session. Revised negotiating mandates will have to be produced for the new amendments. The Committee will be briefed on these proposed changes by the Departments of Health and Justice on 20 March.
The Committee went through all 74 clauses of the Bill and where the negotiating mandates of provinces had requested changes, these were discussed.
The Chairperson announced that the Department of Justice had proposed a number of changes, so that the presentation of negotiating mandates by the various provinces would have to be delayed, in order to allow time for these proposals to be discussed in the provinces. For this reason, the Bill would only be passed in the next session.
Dr van Zyl asked if that meant that the meeting on the 20th was likely to change.
Ms Jacobus said that next week would be taken up by a briefing on the proposed amendments, and that the debate which was due to take place next week would only happen when Parliament resumed.
She went on to say that each province (seven of the nine provinces) had its current negotiating mandate which they had brought to discuss in the meeting, and that the meeting should go through the Bill clause by clause, with the provinces bringing up their concerns at each clause.
She briefly presented the Gauteng mandate, saying that she had briefed the provincial committee the previous Friday. That committee had interacted with the Bill on an informal basis, and had also scheduled public hearings on it. The Gauteng mandate accepted the Bill without recommending changes.
Adv Bhoi, the State Law Advisor, noted a change in Clause 1(i). The definition of an administrator was to be extended to include a person "to act in the interests of the mentally ill person," to tie in with what was contained in Clause 47 (4)b.
The Chairperson asked if there were any other points.
The Northern Province representative said that the Bill referred to State Patients and mentally ill prisoners, but that throughout, the term used was mental health care user. It was suggested that terming a State patient a State mental health care user might be more appropriate, and similar consideration be given in the case of mentally ill prisoners. This would avoid confusion.
Prof M Freeman, from the Department's Directorate on Mental Health and Substance Abuse, responded that the comments were appropriate, and that the retention of these titles had been debated. He said that there was confusion over what was meant in the reference to State, because this could be thought of as people using State facilities. However, he pointed out that the term 'State patient' was well known, so it was decided to retain that title, because it referred to someone who was too ill to stand trial. There was a similar objection to changing the title of the mentally ill prisoner.
Ms Ntlabati, (ANC, Free State) said that she disagreed with the professor on this point. She said that the full term was State President's patient, and this was widely understood.
Ms Vilakazi agreed with Ms Ntlabati, saying that changing the title would mean extra care. She said that from an administrative point of view, the change made sense, to keep the terminology the same throughout the Bill, but that in terms of public perception, the professor had a good argument for keeping it the same.
Prof Freeman pointed out that about ten or fifteen years ago, the name had been changed from State President's Detainee (SPD) to State patient, although people still referred to SPDs.
One member of the committee said that she felt that the definition should be clearer at the beginning of the Bill, since there may be confusion over whether it was the person or the service that was being referred to.
Ms Jacobus said that she felt it was clear that it was the person, and not the service that was being referred to.
The member replied that the Bill referred later to a service, and that there was a need to be clear.
The Chairperson asked the department to look at the issue, and added that it could be further debated on presentation of the revised negotiating mandates.
There were no objections.
There were no objections.
Ms Jacobus said that when there were no proposed amendments, that the clauses be accepted as they are, so that votes could be cast only on the proposed amendments, and in this way time could be saved later. She reiterated that the Department of Justice had several proposed amendments, which could only be discussed next week, when representatives from that department were present.
The Eastern Cape representative asked that a general point within Chapter 3 be considered. This was the issue of the rights of the care giver. She said that within the chapter, there should be provision for such issues as the rights to self-respect, dignity and security of the care givers, who were at times exposed to serious issues in these regards. She said that the Bill focussed on the users, ignoring the care givers who were in the same environment.
Prof Freeman responded that there were two areas in which the provider was protected. These were in common law and through the means of other health legislation, such as the new National Health Bill
The North West Province representative pointed out an objection to Clause 9(2). He said that it was felt advisable to increase the period in which a person may be treated without an application from twenty four hours to forty-eight hours. He added that his province had general concerns over the Bill's failure to address the issue of the safety of people in the home, and the point that violent patients should not be allowed to mix with non-violent patients.
In response, Prof Freeman said that the requirement was that an application be made within 24 hours for treatment to continue, and that even this was something which was debatable, because there was reluctance to having people being treated without such an application, as it was open to abuse.
In relation to the issue of security, Prof Freeman said that security should not be placed at risk, and if it was, the law was not being applied correctly. With regard to the other concern, Prof Freeman said that even if violent people were placed with violent people, if someone killed anyone else, it was still murder. He added that this highlighted the need to make correct clinical decisions in order to make people not violent.
The North West representative said that, under clause 11(2), care should be taken not to open the floodgates to reporting, if anyone can report on the issues. It was suggested that the manner of reporting be made clearer.
Ms Jacobus said that her understanding of the Bill was that, if someone with a mental illness walked past her house, and was assaulted by her neighbour, she could report on it.
Prof Freeman added that the idea was to include special protection for those not able to protect themselves. He also said that there was a similar provision, for example, in the Child Protection Act.
The North West province suggested that clause 14 should not be entertained at all. It dealt with the issue of sexuality. The representative said that the institution had a duty to care, and not to deal with issues of sexuality. He added that women and minors were being abused, irrespective of their mental health status. He also said that care givers might also abuse those in their care.
Prof Freeman said that he could only reiterate what he had said in the previous meeting - that some people spent their whole lives in institutions, and had sexual drives. He added that without such a clause, it was not possible to put condoms into institutions, and one would have to pretend that people were not having sex. He went on to say that there were clauses which protected the person with a mental illness from abuse, and that anyone abusing a patient should be dealt with by the law.
The North West Province's representative suggested that the rights of the patient should be communicated in the appropriate language, but he felt that this was likely to be the case anyway.
The Chairperson said that she felt this was a generally accepted principle.
The KwaZulu Natal representative said that she had a technical correction. She said it should refer to 19 (1) a, b, c etc. At present, there was no 19 (1).
The North West Province proposed that the number of people on the Review Board be increased to no fewer than four and no more than six people. The reason for this was to allow a psychiatrist, a mental health care practitioner, a legal person and a community member to be on the board.
Prof Freeman said that the idea was a good one. He pointed out however, that the North West Province only had one psychiatrist in the State's employ, and consequently his time was likely to be taken up by sitting on Review Board meetings, rather than working with patients. He also said that the health department had already objected to the additional cost which such boards would mandate, and increasing the number would simply increase the cost of the boards.
The Eastern Cape representative asked that there be clarity over the issue of a community member, since the review board was trying to prepare the person for return to the community. For example, was it envisioned that the community member should be from the individual's community? She also asked whether it would not be possible to include a social worker in the review board.
In response, Prof Freeman said that the MEC would ask for nominations for people to serve on the review board. It was unlikely that there would be a community member from each community, since there may in certain instances be only one board for a whole province. He replied to the issue of a social worker on the boards. He said that there was a need for people in oversight roles on the board, but there was also a need for people on the ground to facilitate the return of people to their communities, and it was in this capacity that social workers were most needed. Prof Freeman did however point out that social workers were included under the definition of mental health care practitioners, and as such could be included on the review board.
A concern was raised in Clause 21(d) over the fact that the Bill stated that a person who ceased to be a South African citizen could not serve on the board, yet nowhere did it explicitly state that the board members had to be South African citizens.
Prof Freeman said that he felt that by implication, the person would have to be a South African citizen, but he asked the legal representatives for advice.
Adv Bhoi said that this was an oversight, and that it should be included in Clause 20. Ms Jacobus asked that this be noted when the members returned to report to their provinces.
There were no objections.
The KwaZulu Natal representative pointed out that 23.2 referred to (a), when it should refer to (1). Adv Bhoi agreed, saying that it should in fact read "subsection 1" and not "paragraph a"
There were no objections
Dr van Zyl said that, on behalf of the Western Cape, she would like to express general concerns about Chapter 5, in particular the involuntary community commitments, and the involvement of the SAPS, dealt with in Clauses 33 - 40.
Prof Freeman said that the idea of involuntary community commitment was new to South Africa, but was well established internationally. He added that there would need to be a trial period, with close monitoring etc. He added that provision for this was made in the Bill, but that it would only be undertaken in instances where the resources permitted it.
The KZN representative indicated that the provincial legal adviser had suggested that where the Bill specified a "reasonable belief" it should be stated whose reasonable belief i.e. the belief of the applicant.
The State Legal Adviser said that it flowed from the above, adding that this was merely a different drafting style.
The KZN representative asked if it changed anything.
The response was that it did not change anything, it was merely a matter of style.
KwaZulu Natal expressed the same concern
There were no objections
Ms Ntlabati said that line 25 limited who could make a recommendation that a person be committed, excluding everyone except for a mental health care practitioner. She sugggested that the words "from a mental health care practitioner" be removed.
The Northern Province representative said that their concern was similar, but that it was requested that there rather be inserted after the words "from a mental health care practitioner" the words "spouse, parent guardian" etc.
Prof Freeman said that there was a need to protect the rights of South African citizens against being picked up by the police because someone felt that they were mentally ill. There was no reason why someone in that situation could not approach a mentalhealth care practitioner, and ask for their opinion, or for the person concerned to follow the procedure and make an application.
Another speaker said that the reason for the insertion advocated by the Northern Province was the need to empower people who were living with people who have mental illnesses.
Prof Freeman pointed out that anyone could make an application, in which case the person would have to be examined. But he cautioned against stretching this to oblige the police to pick up people with no examination. He added that the police were already upset about having to transport people with mental illnesses, and this ran the risk of wasting police time on frivolous complaints.
Clause 41 - 46
The state law adviser, Adv Bhoi, brought up the Department of Justice's concern over the reference to a High Court. The concern was that the court roll was likely to be taxed by this, and therefore it might cause delays which would delay the objective of the clause. It was rather recommended that it be changed so that the judge in chambers could make a ruling, rather than having to sit in open court. It was felt that this would speed up the process.
Dr van Zyl asked for copies of the Department of Justice's submission, which the chairperson indicated would be distributed.
Ms Jacobus asked if the reference to the court roll related to all applications, or just to State Patients on the roll.
Adv Bhoi replied that there was a high court roll in general, and this would add to it.
The question was asked if the change applied just to subsection 47(1).
Adv Bhoi said that it applied everywhere in clause 47.
The Free State representative said that in subsection 47(4), the reference to subsection 3 should actually be to subsection 3.
Adv Bhoi replied that it was dealing with the twelve month period outlined above, and thus referred correctly to subsection 3.
Clauses 50 - 57
There were no objections
Professor Freeman said that the whole of Chapter 8, until clause 65 was problematic for the Department of Justice. However, he said that he was in the process of considering their objections, and had only received a copy of the submission the previous day. For this reason, he asked if it would be possible to introduce these issues the following week.
Ms Ntlabati asked if it would be possible to see their objections, and take them to the provinces.
Dr van Zyl also pointed out a practical issue, that all the information should go to the provinces together, to speed up the process.
Ms Jacobus said that it should be possible to distribute the comments, but it would not be necessary to resolve on the isues until discussion with both departments had been finalised. It was agreed to hold discussion of Chapter 8 the following week.
It was pointed out that "of" should be deleted before the words "this act"
Clause 68 and 69
The KZN representative indicated that their state law adviser had recommended the deletion of the words "not exceeding R5000".
The State Law Adviser said that this could be done, or increased if members felt that this was necessary.
Ms Jacobus asked if it would be possible to have the Department of Justice's view on the matter
Adv Bhoi said that the department could limit it, but the Adjustment of Fines Act mad provision for R50 000 or six months in jail. It was necessary to examine what, if any, reasons there were for the limit.
It was decided to leave the matter until clarity had been obtained.
Clause 71 - 73
There were no objections
Prof Freeman pointed out that clause 74(6) a should refer to a "detention order" and not a "reception order" as it did.
Ms Johnson asked why only Chapter 8 of the current act was retained, suggesting that it might be due to the forthcoming National Health Bill.
Prof Freeman said that the exclusion of Chapter 8 of the repealed laws was done because provision for hospital boards was contained in the National Health Bill and there was a need to retain Chapter 8 until this was enacted.
One of the committee members said that, in the previous briefing, a hypothetical case had been identified of a person who was not harmful, but suffering from a mental illness and living on the streets. This issue had not been addressed. She also said, in relation to clause 70, that in light of the rand's fall, the sum proposed did not seem very high, and she asked that it be increased.
Prof Freeman said that, possibly he should leave this issue, but he wouldn't. It related to the concern raised by the member. He said that the institutions were not very nice places, and for some people, it was preferable to be on the streets than be in the institution, with other "quite mad" people. He made reference to the newspaper story about the mentally ill boy who had been chained to a tree. He said that the letters from people who had been in institutions suggested that, while this was unacceptable, there was a need to explore each and every alternative in order to keep people in the community.
Ms Jacobus indicated to the members that she would be in a position later in the week to inform them in writing on when they could take these issues to the provinces. She added that next week would be a meeting between the committee, and the Departments of Health and Justice. She reiterated that these matters would not be debated in the current session and there was agreement from the Minister that it would be dealt with when Parliament resumed. She thanked the members and the departmental represeantatives.
The meeting was adjourned.
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