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The purpose of this specific programme is to monitor the services rendered to persons with intellectual or psychiatric disability, to implement appropriate advocacy programmes ensuring the full social integration of persons with intellectual or psychiatric disability into society and to see to the upholding of their constitutional rights.

This is achieved through the following projects:

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INFORMATION MANAGEMENT ON AVAILABLE SERVICES AND RESOURCES

Mental health care users are one of the most vulnerable, invisible and forgotten groups of people in our society. Very often they are not in a position to eloquently state their concerns and grievances. There is still much stigma and discrimination that occurs. Many persons with mental illness face physical, sexual and psychological abuse; unfair denial of employment opportunities and discrimination in access to health care services and other services. There are also few organizations that represent the interests of those who suffer from severe mental illness, psychiatric, neurological or intellectual and or cognitive disabilities, illnesses or conditions. Those organizations that do exist tend to be poorly resourced and do not have the necessary resources to articulate the human rights concerns of this group sufficiently.

• S9 - the right to equality and the right to be equal before the law This right is mirrored in section 10 of the Act, which enshrines the principles of non-discrimination.
• S 10 - the right to inherent dignity and the right to have one’s dignity respected and protected. The right is mirrored in section 8 of the Act that also protects the right to privacy of a person with mental illness.
• S 12 - the right to freedom and security of the person which includes the right not to be deprived arbitrarily or without just cause of one’s liberty. Where a person is deprived of their freedom against their will there is an even greater duty to ensure that there is strict compliance with the legislation that provides for this.
• S 27 - the right of access to health cares services realization of each of these rights. This rights I one of our economic and social rights. The right is subject to progressive realization.
• S32 - the right of access to information This right is given greater effect to through the Promotion of Access to Information Act (2000). The right is also mirrored in part in section 13 of the Act, which deals with disclosure of information.
• S 33 - the right to just administrative action that is lawful, reasonable and procedurally fair The actions of the board are administrative in nature and must therefore comply with these rights and the provisions of the Promotion of Administrative Justice Act (2000) (PAJA)

It must be pointed out that the Act recognizes the careful balancing act that has to be done in terms of rights in order to ensure that persons with mental illness are not discriminated against and that protection is given to their person and property as well as to ensure that members of the public are protected in relevant situations (see Preamble of the Act). International law.

• The 1971 Declaration on the Rights of Mentally Retarded Persons;
• The 1975 UN Declaration of Rights of Disabled Persons;
• The 1982 World Program of Action for Persons with Disabilities;
• The 1991 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare;
• The 1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities
• The 1999 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities;

1. Consider appeals against decisions of the head of a health establishment
2. Make decisions with regard to assisted or involuntary mental health care, treatment and rehabilitation services;
3. Consider reviews and make decisions on assisted or involuntary mental health care users
4. Consider 72-hours assessment made by the of the health establishment and make decisions to provide further involuntary care, treatment and rehabilitation,
5. Consider applications for transfer of mental health care users to maximum security facilities; and
6. Consider periodic reports on the mental health status of mentally ill prisoners

1. Consider appeals against decisions of the head of the a health establishment
   E.g. section 28 of the Act – Appeal against decisions of head of health establishment to approve application for assisted care, treatment and rehabilitation.
   Section 35 is the corresponding clause relating to approval of application of involuntary care and treatment decisions.
   
2. Make decisions with regard to assisted or involuntary mental health care, treatment and rehabilitation services
   
3. Consider reviews and decisions on assisted or involuntary mental health care users
   E.g. Section 30 of the Act deals with Periodic review and annual reports on assisted health care users.
   Section 37 is the corresponding review clause regarding involuntary users.
   
4. Consider 72-hour assessment made by the head of the health establishment and make decisions to provide further involuntary care, treatment and rehabilitation.
   Refers to section 34 of the Act .
   
5. Consider applications for transfer of mental health care users to maximum-security facilities. Refers to Section 39 of the Act f) Consider periodic reports on the mental health care status of mentally ill prisoners.
   Refers to Section 55 of the Act.

Whilst the law and the applicable human rights may be understood, it is important to try to understand how this affects the functioning of the Board and what it is that Boards can do to ensure that operate in a human rights framework. The composition of the BoardsSection 20 of the Act sets out the composition of the Board as consisting of no fewer than 3 persons and no more than 5 persons and must consist of at least:

• A mental Health Care practitioner
• A magistrate, attorney or advocate
• A member of the community

From a human rights perspective the representivity of the boards is welcomed. This recognizes that decisions are not solely medical decisions but that decisions are of a quasi-judicial nature that protects rights based on medical facts. Medical experts contribute and guide the factual basis upon which legal decisions are taken. The legal person is not present to merely rubber stamp the decisions of the medical expert but rather to apply that knowledge and evaluate whether the rights involved are being adequately protected.The community persons brings an important social context and understanding to the decision making process. Therefore, all three role-players represented on the Board are key to ensuring that a correct decision is made that adequately protects the rights of mental health care users.

Human rights awareness and training for board members
It is important that all Board members are equipped with knowledge about human rights, mental illness and the communities from which the mental health care users come from. Whilst it may be obvious that education is needed on the different types of mental illness and their manifestations it is not always as obvious that there is also a need for an understanding of the rights involved and how these apply to the legal powers that have been given to the Board.It is important that all Board members have a solid grasp of the Mental Health Care Act, broad human rights knowledge, and knowledge of PAJA and PAIA. This would assist them in their tasks at hand?

Bureaucratizing rights?
Mental Health Review Boards are an important mechanism of ensuring that the rights of mental health care users are protected. The Boards take the place of a court having to be constituted and court procedures followed in order to have a person receive care, treatment and rehabilitation detained against their will due to mental illness. These Boards and panels are used in a number of different settings within our constitutional democracy and are part of a growing number of statutorily created bodies that seek to protect rights. Other examples may include, Sterilization panels established in terms of the Sterilization Act 44/98 (as amended by 3/2005) a panel is established in terms of section 3 of the Act to determine whether the sterilization of a person incapable of consenting due to severe mental disability should occur, the Refugee Appeal Boards (established in terms of section 12 of the Refugee Act 130/98) and the Parole Boards created in terms of the Corrections Services Act (Act 111/98). These Boards and panels are tasked with important decision-making powers that impact on human rights. In a developing country such as ours they are attractive, as they are relatively cost efficient. They can also be set up in an accessible manner. Given the enormous challenges that we face in South Africa in providing access to justice the Boards ensure greater access to mental health care usage for those in need of care. They also ensure that a broad area of oversight is exercised in order to ensure that persons who are vulnerable are protected.

Independence
Within the context of limited resources where care and treatment is not ideal or sufficient, what is the role of the Board? It is well known that patients are discharged early, that there is a lack (in some cases non-existent) care in the community and high readmission rates. At the same time the right to mental health care is part of the right to access to health care. It is a socio economic right and is subject to progressive realization. Our constitutional court does not follow the notion of a core minimum content of the right but rather that the right is to be progressively realized. This in simplest terms means that government must have a plan. So what does the Board do in such a situation? When does it speak out? Or not approve a treatment plan? How are progressive realization and the right to dignity and care and treatment reconciled? This is the Boards greatest human rights challenge. A further challenge is the recognition of great disparities in access to health care. The SAHRC is concerned about what we call the ‘COM modification’ of rights. In many areas the ability to access and enjoy rights depends on the economic status of the individual. We saw this recently in our RBE Public Hearing in which it was starkly highlighted that quality education is dependent on whether a child attends a rural or township school, or a former model c school in a suburb. This trend must also impact in the area of access to mental health care. How and what dos the Board do and contribute to resolving these disparities and ensuring that mental health care users are treated with dignity? In addition what is the role of the Board in relation to those members of our communities who are so poor that they fall through the cracks due to an inability to even access mental health care? Such failures constitute a violation of the right to receive treatment and flies in the face of the notion of accessibility and that accessibility promotes autonomy of the individual to be in a position to take decisions about his or her mental health care. The independence of the Board is key to ensuring that it acts impartially and protects the rights of the mental health care user. It is thus surprising that this is not state explicitly anywhere in the Act as this is the most important defining feature of the Review Board. The Board is entitled to determine its own procedures for conducting business. However, whilst this provides some measure of independences this does not state that there is independence. This allows some independence for how it will go about doing this business. The administrative function is to be provided by the provincial government (section 18 (3)). This may well raise issues in terms of the Public Finance Management Act (PFMA) and corporate governance. The requirements of the PFMA may conflict with the carrying out of duties of the Board. AN analogy can be drawn with the arguments that were raised both locally and international to the suggestion by government that the administration of our courts be placed in the control of the Minster of justice and the department of justice. In order to guarantee rights it is necessary that the review boards operate independently of the mental health establishment.

The right to just administrative action
The Board falls clearly within the domain of the Promotion of Administrative Justice Act 3/2000 and must therefore comply with the provisions of this act in terms of procedural fairness.“Administrative action’ means any decisions taken or nay failure to take a decision, or nay failure to take a decision, by-

….an organ of state, when-

(ii) Exercising a public power or performing a public function in terms of any legislation; which adversely affects the rights of any person and which has a direct, external legal affect.” Three points can be made:

i) Judicial Review
It must also be remembered that the decisions of the Board are subject to judicial review in terms of the PAJA

.ii) Representation
In terms of procedural fairness the person ought to be given a reasonable opportunity to make representations. This may necessitate the person being provided with assistance to do this. The high rates of illiteracy and low levels of education in our country further compound this.Section 15 of the Act confirms that a mental health care user is entitled to a representative, including a legal representative when submitting an application, lodging an appeal or appearing before a Review Board. Section 15(@) states that an indigent person is entitled to legal aid. It can be assumed that many persons with severe mental illness do not have the means to support themselves and would be indigent. It is thus incumbent on the Board to ensure that the provision is used when necessary. It may even be necessary to have discussion with the Legal Aid Board and work out the practical arrangements of how this legal representation will be provided. Many of the procedures in terms of the Act operate on an urgent basis and the LAB would have to be responsive to this.

iii) Holding of hearings and calling of witnesses
The Boards are encouraged to use these provisions of the Act (s19 (2)), as they will promote transparency and greater accountability in terms of the decisions that are reached. It will provide an opportunity to ask questions rather than merely rubber-stamping the decisions of head of the establishment.

Additional activities
In order to carry out its functions effectively it could be argued that it is necessary for the Board to embark on the following activities albeit that direct and specific power is not given.

• Conducting regular inspections of mental health facilities, without prior notice, ensuring unrestricted access to all parts of the establishment and personally interview patients
• Review incident reports and death records
• Look at institutional practices
• Assist with the drafting of guidelines (E.g. Use of electro convulsive treatment, and other intrusive treatments; use of seclusion and restraint)
• Maintain statistics e.g. the percentage of patients admitted voluntarily and involuntarily, duration of involuntary admission, use of intrusive treatments, irreversible treatments, seclusion and restraints, physical comorbidiites, suicide and natural or accidental deaths

Liaison with other relevant structures
Review boards and hospital boards established in terms of the National Health Act need to have relationship, as there may be areas of overlapping duties and functions.

Awareness raising
It is important that the Boards publicize their activities. In this manner, awareness of their existence and functions will be raised. It would also contribute towards eradicating social stigma about mental illness.

The Board has limited powers
Compared to some Boards around the world, the SA Board has limited powers. Some boards and tribunals have the following powers:

• Close down facilities which persistently violate human rights
• Impose administrative and financial penalties for violations of legislative norms and duties
• Withdraw accreditation of facilities and professionals for non compliance with legislation
• Discharge a patient if the Board is of the view that the user is incorrectly held.

Mental Health Review Boards are there to protect individuals’ rights and ensure that the least infringement of rights possible and those users are treated with dignity. The Boards are also there to ensure that there is accessible, equitable, adequate, and appropriate mental health care being provided to all citizens of this country and that the inequalities of the past addressed. Mental Health Review boards provide an important mechanism to ensure that adequate and appropriate care and treatment, and the protection of human rights of those with mental illness are guaranteed. For more information on how to access Mental Health Review Boards in your area, please click here.

MENTAL HEALTH, HUMAN RIGHTS AND LEGISLATION

WHO provides support to countries in developing and implementing progressive mental health laws that promote and protect the rights of people with mental disorders. Through direct technical assistance to countries, regional and national training workshops, and distance learning programmes, WHO provides technical information and training on international human rights standards related to the rights of people with mental disorders, as well as practical guidance on steps required to assess, develop and implement progressive mental health law. A number of materials and tools have been developed to provide a clear framework for technical assistance and training in this area, including the WHO Resource Book on Mental Health, Human Rights and Legislation and the WHO Checklist on Mental Health Legislation. To download the articles please click here; (Articles attached as well)

1. WHO Resource Book on Mental Health
2. Mental Health and Human Rights
3. UN Resolution on protection of Persons with mental Illness
4. The Role of International Human Rights in National Mental Health Legislation