THE MENTAL HEALTH CARE BILL Progress Problems and Ethical Issues

Professor Tuviah Zabow

President : South African Society of Psychiatrists

other significant affiliations :

• Vice-President : World Association of Medical Law

• Chairperson : WPA Section on Psychiatry, Law and Ethics

• Convenor : International Centre of Mental Health Law

• Nominated WHO Consultant to Lesothu Mental Health Review Board

SOUTH AFRICAN LEGISLATION CHANGES:

Circular 28 of 1866 (British Colonial)

Natal Act 1 of 1868

Cape of Good Hope Act 20 of 1879(Dangerous Insane; Dangerous Idiot)

Lunacy Act 35 of 1891

OFS Act 4 of 1893

Transvaal Act 9 of 1894

Valkenberg Act 17 of 1894

Lunacy Act 1 of 1897(voluntary principle)

The Lunacy and Leprosy Laws Amendment Act 1914

Mental Disorders Act 1916

Amendment Act 7 of 1944

Amendment Act 37 of 1957

Mental Health Act 18 of 1973 and amendments ++

MENTAL HEALTH CARE LAW

TEN BASIC PRINCIPLES

1. Promotion of Mental Health and Prevention of Mental Disorders

2. Access to Basic Mental Health Care

3. Mental Health Assessments in Accordance with Internationally Accepted Principles

4. Provision of Least Restrictive Type of Mental Health Care

5. Self-Determination

6. Right to be Assisted in the Exercise of Self-Determination

7. Availability of Review Procedure

8. Automatic Periodical Review Mechanism

9. Qualified Decision-Maker

10. Respect of the Rule of Law WHO 1996

MENTAL HEALTH ACT REVISION PRINCIPLES

Process - psychiatrists vs law drafters (Law Commission)

Adaptation to available resources as applicable (compare to universal law aim)

Terminology user-friendly vs legal applications

Conflict of interests by curator ad litem concept of AG

Decrease in State powers and control

Move from Judicial/administrative controls to clinical review

Utilization of all mental health professionals

New concept of Mental Health Review Board

Care and admin of property of mentally ill

Recognising that the constitution prohibits the unfair discrimination of people withmental or other disabilities

Definitions

Objectives

Objections to present legislation include:

Malpractice in mental institutions nationally and internationally persists.

Both Mental Health Act and patients human rights are allegedly abused.

Allegations that the MHA protects the autonomy of psychiatrists andreinforces the non-transparent functioning of mental institutions.

Institutionalisation and stigmatisation in large psychiatric hospitals.

State's power should be restricted to emergency situations.

No need to legislate to improve the degenerated standards in facilities.

Revision aimed at:

Prolonged institutionalization and related practices.Involuntary hospitalisation.Protection of Human Rights.Control of certain "treatments".The rights of the mentally handicapped, children and patients in ForensicUnits.

OBJECTIVES OF THE MENTAL HEALTH ACT

Regulation of mental health environment

best possible mental health care

in the best interests of the user

correlation of access and provision of services integration of access and provision within general health services

Sets out rights and obligations of mental health users

Regulates access and provision of care and treatment

voluntary, assisted and involuntary users

state patients mentally ill prisoners

Regulates manner in which property of those with mental illness may bedealt with by court of law

Provides for any related matters

MENTAL HEALTH CARE ACT

Name changeAvailability of

suitable legal counselindependent psychiatristsprompt judicial hearingsfrequent reports on patient's condition and status especially in

need for continued hospitalizationEmphasis on

need for treatmentinability to make own decisionsreasonable expectation to benefit from careidentification of special groups of patients

Principles to includeindividual autonomydue process of the lawbeneficencedecreased coercionfamily involvement

Principle of Mental Health Review Board(MHRB)

DEFINITIONS

"Assisted care, treatment and rehabilitation"= the provision of health interventions with people not capable of making

informed decisions

"Assisted health care user"

"Associate"= a person with substantial and material interest in the wellbeing of the user

who is also in substantial contact with the user

"Head of health establishment"

"Health establishment"

"Involuntary mental health care user"

"Mental health care provider" (practitioner)

"Mental Health Care User"

"Mental illness"=a positive diagnosis of mental health related illness

PREAMBLE

Recognising that health is a state of physical, mental andsocial well being and that mental health services should beprovided as part of primary, secondary and tertiary healthservices;

Recognising that the Constitution of the Republic of SouthAfrica, 1996, prohibits the unfair discrimination of peoplewith mental or other disabilities;

Recognising that the person and property of people withmental disorders and intellectual disabilities, may at timesrequire protection and that members of the public and theirproperty may similarly require protection from people withmental disorders and intellectual disabilities; and

Recognising further that there is a need to promote theprovision of mental health care services in a manner whichpromotes the optimal mental well being of users of mentalhealth care services and the communities in which theyreside;

STATE'S RESPONSIBILITY FOR MENTAL HEALTH

Section 4 :

(a) ensures mental health care, treatment and

rehabilitation services are provided –

(i) at primary, secondary and tertiary levels,

specialised health establishments; and

(ii) in a manner that promotes the provision

community based care, treatment and

rehabilitation

(b)promotes rights and interests of users

(c) promotes and advances

CHAPTER III

RIGHTS AND DUTIES RELATING TO MENTAL HEALTH (PATIENT'S RIGHTS)

Section 8: RESPECT, HUMAN DIGNITY AND PRIVACY

Section 9: REQUIREMENT OF CONSENT FOR CARE, TREATMENT etc

Section 10: UNFAIR DISCRIMINATION

Section 11: EXPLOITATION AND ABUSE

Section 12: DETERMINATIONS CONCERNING MENTAL HEALTH STATUS

Section 13: DISCLOSURE OF INFORMATION (Confidentiality)

Section 14: LIMITATION ON INTIMATE ADULT RELATIONSHIPS

Section 15: RIGHT TO BE REPRESENTED

Section 16: DISCHARGE REPORT TO USER

Section 17: FULL KNOWLEDGE OF RIGHTS

SECT 27 : ASSISTED MENTAL HEALTH CARE USER"Incapable of making informed decision"

APPLICATION

<18 years - must be made by parent or guardian spouse, next of kin,

partner, associate, parent or guardian OR health care provider if

above not available (reason given) seen within 7 days

EXAMINATION AND REPORTS

by 2 mental health care practitioners (one qualified to perform

physical examination)

Head of Establishment if concurs sends copy to applicant

ADMISSION within 5days

REVIEW (MH RB) within 7 days

within 30 days

REPORT TO HEAD OF PROVINCIAL DEPARTMENT

Periodical Reports after 6 months and then annually to MHRB to Head of Establishment to Head of Provincial Department

Appeals; On recovery Voluntary

SECTION 33 : INVOLUNTARY MENTAL HEALTH CARE USERAPPLICATION

<18 years - must be made by parent or guardianspouse,next of kin, partner. Associate, parent or guardianOR Health Care Professional if above not availableMust have been seen in 7 days

EXAMINATION AND REPORTSby 2 mental health care practitioners(one to conduct clinical examination)Head of Establishment if consents informs Applicant in writing

ADMISSION (within 48 hours)72 hours ASSESSMENT ------------------------ inpatient OR outpatient

report to Applicant in 24 hoursREVIEW (MHRB) within 7 days

Reports to Head of Establishment within 30 daysCopies to Applicant and Head of Province Department

Registrar of High Court -> JudgeJUDICIAL REVIEW within 30 daysAppealsPeriodical Reports to Head of Establishment, MHRB and Head of Provinceafter 6 months and then annuallly thereafter

MENTAL HEALTH REVIEW BOARD

(1) At least 3 persons but no more than five persons

(2) Must be composed of at least :

(a) a mental health care practitioner

(b) a magistrate, attorney or advocate

(c) community member

CONSIDER APPEALS

REVIEWS AND REPORTS ON USERS

TRANSFERS TO MAXIMUM SECURITY WARDS

INTERVENTIONS BY SOUTH AFRICAN POLICE SERVICE

• Urgent admissions for 24 hours • abscondances -

transfer in “prescribed manner”• must comply with request• estimated level of dangerousness• may be held in custody “for

such time as may be necessary”

• “may use such constraining measures as may be necessary and proportionate in the circumstances”

JUDICIAL RULINGS may be required in :

decisions that unfairly discriminate

in blanket policies

in decisions not to provide services(resource allocations)

REGULATIONS ? Mental health care professional qualification

Surgical procedures or medical or therapeutic treatmentsdeemed dot be appropriate

Setting of quality standards and norms

Establishment of Maximum Security Hospitals

Seclusion and Mechanical Restraint

Facilities for State Patients and Mentally ill prisoners

Establishment of Child and Adolescent facilities

Rehabilitation and maintenance

Licensing of Health Establishments

RESTRICTION OF LIABILITY

• ? Limitation of professional liability

• ? “act in good faith”

• in present Act and earlier draft Bill

PROVISIONS FOR CERTAIN GROUPS

• Mentally handicapped/ intellectually impaired

• alcohol/drugs/ chemical dependency

• children and adolescents

• old age

CONCLUSION

Legislation must realise the promise of :

Transparency

Improved process of decision-making

Further the public's understanding

Control the widening of the state'spowers

Promote proper discretion in policycreation

Accountability for resource allocation