Mental Health I - Legal and policy framework

Introduction

Persons afflicted by mental ailments are among the most vulnerable in society. This vulnerability has been recognised and has resulted in legal and policy interventions, detailed in this brief.

Domestic legislation

The Constitution of the Republic of South Africa[i] (“Constitution”) is the law against which all actions and omissions, be they legislative or a product of human design, are measured against. According to the Constitution the environment itself must not be harmful to a person’s health or well-being.[ii]

Section 27 of the Constitution dealing with socioeconomic rights, including the cornerstone right to health care, provides that everyone has the right to access healthcare services[iii] and that the state must ensure the progressive realisation of this right.[iv] The Constitution also makes specific reference to a child’s right to access to healthcare.[v]

Section 152(1)(d) of the Constitution affirms that one of the objects of local government is “to promote a safe and healthy environment”. Section 184 places a duty on the South African Human Rights Commission to obtain information from relevant government organs annually with regard to their activities in realising rights in the Bill of Rights.[vi]

Schedule 4A of the Constitution specifies that health services are a concurrent responsibility of national and provincial government. Schedule 4B specifies that oversight and regulation of municipal health services are a concurrent responsibility of national and provincial government.

The National Health Act[vii] (“NHA”) regulates national health and provides uniformity in respect of the equitable distribution of health services across the nation through public and private providers.[viii] The NHA notes that its purpose is to protect and promote the rights of vulnerable groups such as persons with disabilities,[ix] a responsibility which rests with the Minister of Health[x] and includes the promotion and adherence to norms and standards as well as the provision of mental health services[xi].

The Mental Health Care Act[xii] (“MHA”) regulates mental health care in a manner that makes the best possible mental health care available[xiii] through the coordination of access[xiv] and integration of mental health services into the general health services[xv].

It also regulates access to treatment and rehabilitation services[xvi], clarifying the rights of users with regard to the obligations of providers[xvii] and court involvement when it comes to persons with severe or profound intellectual disabilities[xviii]. It is thus clear that the state has a duty to ensure the provision and promotion of mental healthcare.[xix]

In order to give effect to the above duties health establishments in the form of psychiatric hospitals or care and rehabilitation centres need to be designated[xx] and have to serve the public accordingly.[xxi] The services to be provided by health establishments are contained in section 6 of the MHA, and include providing access to mental health care services[xxii] and subsequent referrals to entities capable of providing the appropriate level of treatment[xxiii].

These health establishments are tasked with the admission, care, treatment and rehabilitation of voluntary or involuntary mental healthcare users[xxiv] in a manner that facilitates community care of mental health care users[xxv].

International legislation

The right to healthcare is articulated in article 25 of the Universal Declaration of Human Rights[xxvi]:

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

This foundation was reinforced by the International Covenant on Economic, Social and Cultural Rights[xxvii] which states, in terms of Article 12(1), that the various states party thereto recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

The African Charter on Human and Peoples’ Rights[xxviii] and in particular Article 16(1) where “[e]very individual shall have the right to enjoy the best attainable state of physical and mental health”. It should be noted that the Southern African Development Countries (“SADC”) produced its own protocol on health[xxix], which deals with mental health at Article 22.

Domestic policy

At the National Mental Health Summit held on 12 and 13 April 2012 the participants adopted the Ekurhuleni Declaration on Mental Health (“Summit”).[xxx]

The Summit resulted in the creation of the National Mental Health Policy Framework and Strategic Plan 2013-2020[xxxi] (“NMHPF”). The NMHPF identified the following as concerns that required attention in the following seven years[xxxii]:

• The enormous inequity between provinces in the distribution of mental health services and resources;
• The lack of public awareness of mental health and widespread stigma against those who suffer from mental illness;
• The lack of accurate routinely collected data regarding mental health service provision;
• Mental health services which continue to labour under the legacy of colonial mental health systems, with heavy reliance on psychiatric hospitals.

When considering the cost of mental illness, the NMHPF highlighted that the costs of not treating mental illness far exceed those of dealing with the consequences of this failure.[xxxiii]

International policy

The international policy space is overseen by the World Health Organisation (“WHO”) which was formed on 7 April 1948,[xxxiv] since which the WHO has become the forerunner on matters of health.[xxxv]

The WHO monitors global mental health as well as contributing toward treatment and assistance.[xxxvi] and produces policies such as the Comprehensive Mental Health Action plan 2013–2020.[xxxvii] This policy was used in the creation of the NMHPF.

The WHO’s policy has at its core four major objectives: to strengthen effective leadership and governance for mental health; to provide comprehensive, integrated and responsive mental health and social care services in community-based settings; to implement strategies for promotion and prevention in mental health; and to strengthen information systems, evidence and research for mental health.

Political will

In response to a written question to parliament in November 2019 regarding the percentage of persons living with mental health conditions, the Minister of Health reported that according to 2016/2017 statistics 25.2% of participants with a mental disorder had sought treatment. When asked how many of those people had obtained the mental health services that they required, the Minister of Health responded that a mere 5.7% received the appropriate mental health care.[xxxviii] Only 11 public hospitals in South Africa have qualified child psychiatrists.[xxxix]

When confronted with the increasing, under-diagnosed and under-treated instances of mental health for the 2019-20 financial year the Minister of Health referred to the continued implementation of the NMHPF[xl] as being the remedy for continued failings of the healthcare system. It was stated that shortages regarding the facilities themselves would be addressed through the conditional grants system, which would hopefully see the development of facilities as well as the required staffing compliments.

As a result of the absence of crucial facilities, such as designated health establishments and NGO provision, in certain provinces mental health patients cannot be accommodated and are neglected.[xli] Furthermore, government assistance to NGO facilities can be as little as R50 per day per health care user. This is in contrast to the R350 per day it costs to house potentially incorrectly diagnosed prisoners[xlii], or the R260 per day to employ a nurse to care for patients, or the R4,928 per day to employ the Deputy Minister of Health, or even the R6,023 per day to employ the Minister of Health.[xliii]

All of this was before the Presidential address of 23 March 2020 in which South Africa became all to aware of the Covid-19 pandemic. The same address that began a lockdown that was to end after 21 days but has been extended by an additional 14 days and may yet be further extended depending on daily infection rates. Since the address society has shown pleas for further assistance as well as ingenuity[xliv] that all involved hope will help them endure through the global pandemic.

Conclusion

When considering the inclusive and progressive strides made in terms of legal and policy interventions, it appears that there is at least a desire to ensure that mental health care users receive the appropriate services. But implementation and monitoring are in dire need of attention.

Chris Pieters
Legal Researcher
chris@hsf.org.za

[i] Act 96 of 1998