The Health Department is appealing a High Court ruling that two sections of the country’s Mental Health Act (MHA) are inconsistent with the Constitution and therefore invalid.
“The sections (33 and 34) do not provide for an automatic independent review prior to or immediately following the initial detention of a person involuntarily detained under the Act,” the Gauteng High Court (Pretoria) found.
However, Department of Health spokesperson Foster Mohale said: “This Act was passed in 2002. We believe if this legislation is not upholding the rights of people with mental health problems, especially those involuntarily admitted into mental health facilities, the chapter institutions like the Human Rights Commission would have raised this issue a very long time ago.”
Health-E News reports that the judgment stems from a court case initiated by the Makana Peoples Centre, which argued that the two sections were unconstitutional.
Mikateko Mafuyeka, a public health lawyer and researcher at the South African Medical Research Centre (SAMRC) for Health Economics and Decision Science, explained the outcome for mental health care patients.
“The current sections permit the holding and the detention of someone without their consent,” said Mafuyeka. “The procedure stipulates the number of days in that period in which a person involuntarily held can challenge the appropriateness of their detention.
“Unfortunately, for those particularly prolonged periods, the person is in the custody of the mental health care providers while they are questioning or appealing the appropriateness of the detention.”
Mafuyeka said a partial basis for the court’s findings was that despite the procedure providing mechanisms for mental health care patients to approach the court and question their detention, “they usually have to explore these avenues while being detained”.
The Act permits someone to be detained against their will for up to 10 days or more, while the review board decides whether or not the detention is appropriate. The Review Board then has another 30 days to consider the appropriateness of the detention.
“All this is happening while the patient remains in confinement against their will, or they may lack the mental capacity to question or challenge this themselves.”
Section 21 of the Constitution states that no person should be deprived of their liberties or freedom of movement without just cause.
“Right now, under the Mental Health Act, we are looking at between 60 and 270 days where a person is detained, while those provisions set out in those particular sections are being followed. This is an infringement of the rights of the involuntarily detained person to movement or not to be detained without just cause,” she said.
The MHA, previously housed under the Criminal Procedure Act, has evolved to shift the emphasis to treatment and care, she added.
“The focus currently, under the new constitutional democracy, has moved (to) providing treatment, care, rehabilitation and assistance to mental health care patients rather than to punish them.”
Mafuyeka said she does not believe people should be concerned about the ruling at this point. If the Constitutional Court rules on the invalidity of the sections, the department will have to find ways to treat mental health patients without prolonged detention.
“This would still, to some extent, benefit the patients, meaning they may avoid landing up in situations being detained for prolonged periods while waiting for the final decision regarding the appropriateness of the detention.”
She said the legislation would have to be changed to ensure patients’ rights, like the right to dignity, are protected. “The sad reality is that sometimes, due to limitations, whether it’s staff or infrastructure, the implementation might not fully promote the vision of the legislation.”
The ruling of the invalidity of the sections has not yet been confirmed: only the Constitutional Court can declare an act of Parliament to be unconstitutional before it becomes law.
See more from MedicalBrief archives:
Sections of Mental Health Act ruled unconstitutional by High Court
SA performs below par in Global Mental Health Price Index 2022
Wellcome Data Prize to help understand young South Africans’ mental health crisis