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GENERAL INFORMATION

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:

Information management for national enquiries pertaining to available services and resources for persons with intellectual or psychiatric disability;
Statistical analysis of social work services rendered by constituent mental health societies to persons with intellectual or psychiatric disability; and
Record all reported cases of violation of the human rights of persons with intellectual or psychiatric disability.

STATISTICAL ANALYSIS OF SOCIAL WORK SERVICES RENDERED

September 2008/9

i. Services Report
The Services Report is aimed at creating a national profile of service users, service providers and the services (programmes) delivered.
The diversity of the projects and programmes within service delivery makes it difficult to comprehensively report on the actual services delivered, however the following data reflects the extensive levels of service delivery

Prevention		Early intervention		Alternative care
Service Users	Projects	Service Users	Projects	Service Users	Projects
38604	38557	38557	570	7272	56

Prevention projects involve life skills training and information dissemination. Due to the scarcity of capacity and the huge demand for services, the preventative level of work would bear the best fruit.

Early intervention services by social workers entail counseling, early childhood development, family support, support groups, service user empowerment and income generation. Majority of beneficiaries of the services provided, received early intervention services.

Alternative care and service provision on this level is not recommended, yet in some instance unavoidable. Therefore only a limited number (56) of projects were undertaken by the mental health societies.

Service Beneficiaries:
The services beneficiaries/ service users nationally totals = 46 529 and are persons with intellectual or / and psychiatric disability, as well as persons with emotional / relationship problems, or other disabilities.

The majority of service users benefiting from the services / programmes delivered is Black. The gender division of the service users was 2:1 in favour of women.

The actual figures were as follows:

23 494 male;
38 445 female;
22786 persons with intellectual disability; and
23 743 persons with psychiatric disability.

The remaining number of service beneficiaries are persons with emotional / relationship problems or other disabilities.

HUMAN RIGHTS VIOLATION REGISTER

The objective of this project is to record all reported cases of violation of the human rights of persons with intellectual or psychiatric disabilities.

S.A. Federation for Mental Health implemented the register for the reporting of the following incidents:

Violations of human rights (Mental Health Care Act [17/2002] – Chapter III);
Stigmatisation;
Discrimination;
Abuses (physical, emotional, verbal or other); and
Neglect of persons with mental disabilities (psychiatric & intellectual).

The register was started in April 2006 and requires constant input from the service delivery sector.
We would like to appeal to everyone to communicate with the National Office about incidents in your communities. Please submit cases reported in your local newspapers, radio as well as personal reports, in order to add to our database of incidents.

We would like to keep track of incidents and the reactions thereto by societies, organisations, government and the general public.

With a central co-ordinated database we, as custodians of human rights of persons with mental disabilities, would be able to formulate appropriate positions.

The Human Rights Commission and the Review Boards in the regions where these incidents take place will also be informed to take appropriate actions.

The aim is to increase the impact of our advocacy programme through the inclusion of examples with the necessary statistics when speaking to policymakers, sponsors and Government.

HUMAN RIGHTS AND MENTAL HEALTH REVIEW BOARDS

A. INTRODUCTION

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.

B. MENTAL HEALTH ISSUES AND THE HUMAN RIGHTS COMMISSION

Issues concerning mental health have been brought to the SA Human Rights Commission’s attention on a number of occasions. This is in line with the commission’s mandate and the issues that are raised. The involvement of human rights commissions in matters concerning mental health mirrors the experiences of human rights commissions elsewhere in the world. For example, the Indian Human Rights Commission has been involved in investigating their mental health institutions and it resulted in a constitutional court case in that country in which it was declared that it is illegal that persons who are not mentally ill are sent to hospitals. This was necessary as the commission found that there were people who were simply abandoned by their families, often due to poverty, and left at mental health care establishment. This example gives an indication of what issues are being addressed by other commissions in developing countries around the world.

The Human Rights Interest: Why from a human rights perspective do we need Mental Health Review Boards?

The ultimate fear
Mental hospitals, or health establishments as we call them in our legislation, evoke fear and suspicion for many. There are many reported cases of abuse from around the world of political dissidents who speak out for democracy and human rights being placed against their will in mental institutions in order to ensure that they are silenced. It is estimated that at least 3000 people have been sent to mental institutions because of their dissident political views in the past two decades. During the time of the former Soviet Union there were also many reports of the abuse of mental institutions for political reasons. In South Africa we have our Apartheid legacy in which there were disproportionate services provided to persons in need of mental health care based on race. Many of the institutions that existed for black persons did not afford any semblance of dignity in the care or treatment that was provided.

South African mental health legislation
There was thus an urgent and dire need to change our mental health legislation in South Africa post 1994. The need also existed as the approach and understanding of mental health care has changed substantially in past decades and the Mental Health Act that was on the statute books was promulgated in 1973. Since such time there have been many advances both internationally and domestically in understandings and approaches in dealing with persons in need of mental health care. Legislation is an important tool in ensuring that rights are protected.

It was timely that an overhaul of mental health legislation was embarked upon. Also, and more importantly, there was a need to ensure that all our legislation was in line with the constitution and in particular, the right to equality and dignity, which are both, founding principles as well as rights enshrined in our constitution. The legislator needed to ensure that persons who are treated due to mental illness are protected, that their rights are respected and that the least possible infringements are made upon their rights.

The Mental Health Care Act 2002
The Mental Health Care Act (the Act) passed in 2002 (and promulgated on 15 December 2004) seeks to ensure that the care, treatment and rehabilitation of persons who are mentally ill conform to the constitution and the bill of rights.

Human Rights involved
The care of persons with mental illness impacts upon a number of rights that are guaranteed in the constitution. Many of these rights are also contained in chapter 3 of the Act. Some of the more pertinent rights are highlighted below:

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)

C. A CAREFUL BALANCING ACT

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.

In addition to this domestic law, we must remember that our courts when interpreting the Bill of Rights are entitled to have consideration for international and foreign law (section 39(1) of the constitution). There is therefore a plethora of international instruments that could be useful in assisting and guiding us when interpreting this law.

These include:

At an international level some of the more significant instruments include:

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;

D. THE MENTAL HEALTH REVIEW BOARD

The new Mental Health Care Act establishes a Mental Health Review Board, which is primarily aimed at ensuring that decisions that are taken concerning mental health care users do not violate their rights. The legislation is an important tool in codifying and consolidating the fundamental principles and values that underlie the rights contained in our Bill of Rights.

Powers and functions of the Board
It is clear from the powers and the functions of the board that the Board is an important institution that seeks to protect rights of mental health care users. These powers and function are set out in section 19 of the Act and include: “

The Review Board must –

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

(2) The Review Board may, when performing its functions, consult or obtain representations from any person, including a person or body with expertise.

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.
Make decisions with regard to assisted or involuntary mental health care, treatment and rehabilitation services
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.
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 .
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.

E. EXERCISING THE BOARDS POWERS WITHIN A HUMAN RIGHTS FRAMEWORK

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.

D. CONCLUSION

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)