Understanding South Africa’s Mental Health Act

The Mental Health Care act no 17 of 2002, which replaced the Mental Health Act of 1973, has brought with it a new set of regulations and new focus. In particular, the Act has a stronger human rights orientation than the previous act, which means that it is more patient-centric with greater respect for the civil liberties of patients. The downside is more checks and balances, which means more paperwork and administration, which, in turn, translates to longer waits for government healthcare services.

According to the new Act, the State has a duty to ensure the provision of mental healthcare services and it must protect the rights and interests of patients. Patients have, amongst others, the following rights:

  • Only tertiary health establishments or psychiatric hospitals may provide tertiary level (intensive) mental health care to patients.
  • Treatment can only be given to patients if they have agreed to it if it has been authorised by the Mental Health Review Board (MHRB), or if a delay in treating a patient may result in their death or injury or the injury of others.
  • Patient’s information may not be revealed to anybody, unless it would be harmful to the patient or other people to withhold it. In this case only the head of the health establishment would be able to disclose the information.
  • Patients may not be unfairly discriminated against because of their mental health status.
  • All mental health patients must be informed of their rights before they are given treatment, unless a delay could result in either death or injury to the patient or death or injury to another person.
  • Healthcare establishments have to provide the appropriate level of care and they may not give psychiatric medication to a patient for more than six months, unless it has been authorised by a registered mental health care practitioner.

The Act requires that mental health care users be treated in the least restrictive manner possible with the least discomfort and inconvenience, and are treated as close to home as possible. However, in practice this is not always the case, treatment is dependent on the beds that are available, which in return is dependent on resources and funding.

Notably, the Act has also introduced a 72-hour assessment period, which takes place at a general hospital prior to further involuntary treatment and the Act has also provided for the establishment of Mental Health Review Boards (MHRB), which is primarily to protect the rights of people with mental illness.  Under the old legislation, South African Police Service (SAPS) members would take a mentally ill person who needed involuntary admission to a magistrate; this is no longer the case. Instead, if a mentally ill person is apprehended by a SAPS member, they must be taken to a health establishment that has assessment facilities for an assessment by a mental health care practitioner. 

In the guidelines, the Act stresses that use of seclusion and physical restraint, should only be used as a matter of last resort.  It also notes that violent patients should only be physically restrained for short periods, while medicine to control the violence is being administered. It also stresses that physical restraint should not be used to punish patients. 

In particular, the Act regulates access to services for categories of mental health care patients: voluntary, assisted, involuntary and emergency.  How they are treated will depend on their status.

Procedures for patients

The procedures are as follows:

Voluntary patients:  the person is competent to make an informed choice and may give consent. This is the preferred admission procedure for all concerned. The person may be admitted to a private or State facility that is registered as a hospital, where they are entitled to appropriate care. They may not receive sleep therapy.

Assisted patients are persons with a mental illness, not capable of consenting to voluntary treatment as a result of their illness, but who do not refuse treatment.

  • In this case, a relative or person close to the patient or mental health practitioner applies in writing for admission and treatment on behalf of the person.  They must have seen the person within the previous seven days of making the application.
  • The person may be admitted to a private or State hospital that is licensed to give electroconvulsive treatment and to admit patients who aren’t able to give consent. Any treatment must be approved by the head of department.
  • The person must be examined by two medical care health practitioners and a physical examination must be conducted. If the practitioner’s findings don’t concur then a third medical practitioner must examine the person.
  • The application will only be approved if the person is believed to be suffering from mental illness or profound disability and they are thought to be incapable of making their own decision about care or treatment.
  • If assisted care is necessary, the person must be admitted within five days.
  • The relevant review board will look into the case within 30 days and decide whether the person should continue treatment at the hospital or be discharged. The patient can appeal within this 30 day period.

An involuntary patient may be admitted without consent. The patient must pose a danger to him or herself and to others or care and treatment rehabilitation is necessary for the financial interests or reputation of the patient.

  • Involuntary treatment may only be considered if a person is suffering from a mental illness in line with accepted psychiatric diagnostic criteria. 
  • An application for involuntary admission must be made to the head of a health establishment by a spouse, next of kin, partner, associate, parent or guardian; they must have substantial contact with the person and have seen them in last seven days. If none of the people are available or willing to make and application. It can be made by a medical professional. Application forms can be obtained at clinics, hospital admission rooms and police stations.
  • A patient can only be admitted to an institution for a period of 24 hours. A mental health care user may be treated involuntarily at a health establishment on an inpatient basis under very specific regulations that serve to protect the users’ rights as much as possible. 
  • If the head of the health establishment approves the application then two mental health care practitioners (MHCP) must do independent assessments of the patients. If their findings don’t correlate then a third MHCP must do an assessment.
  • If involuntary admission is recommended and approved by the head of a health establishment then, within 48 hours the mental health care user must be admitted to a health establishment.
  • The Act then provides for a 72 hour assessment to take place before further involuntary care can take place. The 72 hour period is the maximum that a person can be admitted on an involuntary basis for the purpose of psychiatric examination. Once a person has an involuntary examination and the 72-hour period expires, they cannot undergo a further consecutive 72 hour assessment.
  • If it is decided that the person does need inpatient treatment, a written report must be submitted to the Review Board.
  • If the Review Board grants the request then they submit documents to the High Court.
  • The patient, their spouses, next of kin, parents, associates, partners or guardians, may lodge an appeal within the first 30 days. The Review Board will investigate.
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