Barry Streek
A new mental health policy, which strongly protects the rights of “mental health care users” to fair treatment, has been spelled out in proposed legislation that is due to come before Parliament later this year.
The Mental Health Care Bill, which has been published in the Government Gazette, states, in line with the Constitution, that mental health care users “may not be unfairly discriminated against on the grounds of their mental health status”.
While it does not make any direct provisions for the treatment of mental health care users, with methods such as electric shock treatment, it does say they “must receive care, treatment and rehabilitation services in accordance with standards applicable to any other health care user”.
It will also be a criminal offence to “exploit, physically or otherwise, abuse, neglect or degradingly treat a mental health care user or permit a user to be treated in this manner”.
The power to define treatment and conditions will be left to the Minister of Health – currently Manto Tshabalala-Msimang – who in consultation with the relevant members of the provincial executive councils, will be able to issue regulations on “the observation, detention, care, treatment and rehabilitation of mental health care users”.
Comments or representations on the proposed 77-clause Bill have to be submitted to the director general of health, at Private Bag 828, Pretoria, 0001 (for the attention of Professor Freeman), by April 4.
In the preamble, the Bill says mental health services should be provided as part of primary, secondary and tertiary health services and that, while the Constitution prohibits the unfair discrimination of people with mental or other disabilities, it should be recognised that “the person and property of people with mental disorders and intellectual disabilities may at times require protection and that members of the public and their property may similarly require protection from people with mental disorders and intellectual disabilities”.
Chapter 8 of the Bill, titled “Respect, Human Dignity and Privacy”, says: “Every mental health care user is entitled to respect for their person, human dignity, and privacy.
“Every mental health care user must be provided with care, treatment and rehabilitative services that enhances the user’s capacity to develop to their full human potential and to ensure their integration into the mainstream of community life.
“The care, treatment and rehabilitation service administered to mental health care users must be proportionate to their mental health status and may intrude only as little as is reasonably possible to give effect to the appropriate care, treatment and rehabilitation.”
A person can only be admitted to a mental health establishment if the user has consented to treatment or to admission; or if a law, court order or a mental health review board has authorised the treatment or admittance; or in other circumstances, the delay in providing treatment or admission might result in “the death or irreversible harm to the health of the user, the user inflicting serious harm to him/herself or others, or the user causing serious damage to or loss of property belonging to him/her or to others”.
The Bill is explicitly against the exploitation and abuse of mental care users, stating that every person, body, organisation or health establishment providing care and treatment to them “must take all reasonable steps to ensure that the user is protected from exploitation, physical or other abuse, neglect and degrading treatment” and take all reasonable steps to ensure they are not subject to forced labour, that their care, treatment and rehabilitation is “administered for diagnostic and therapeutic purposes and not as punishment for the convenience of others”, and that they are “not physically or otherwise abused by any other person”.
It adds that “any determination concerning the mental health status of any person must be based on factors exclusively relevant to that person’s mental health status and may not be based on that user’s socio-political or economic status nor on that person’s cultural and religious background or affinity”.
Mental health review boards will be established in all nine provinces and appeals can be made within one month against decisions by the head of health establishments about the treatment and admission of mental health care users. Appeals can be made by the user, his or her spouse, next of kind, partner, associate, parent or guardian.
If the board upholds the appeal, all treatment and rehabilitation must be stopped immediately. If the appeal is not upheld, it must be reviewed within one month by the high court.
Within six months after treatment and rehabilitation services are commenced on an involuntary mental health care user, and every 12 months after that, the head of the health establishment must review the mental health status of the user.
With the emphasis on the rights of users, the prevention of abuse and open levels of appeals, mental health care users will by law have greater protection and greater opportunity to exercise the right to fair treatment than ever before.