Aaron Motsoaledi, Minister for Health, has officially gazetted Policy Guidelines for the Licensing of Residential and/or Daycare Facilities for Persons with Mental Illness and/or Severe or Profound Intellectual Disabilities. These Guidelines set out requirements for a non-governmental organisation (NGO) to obtain a license to operate a facility caring for people with psychosocial disabilities and people with intellectual disabilities. The Guidelines will be enacted in the wake of the Life Esidimeni tragedy where 144 people lost their lives and where a large number of people remain unaccounted for. The predominating factor catalysing what has been hailed as one of the worst human rights violations in South Africa’s recent history was that the majority of NGO’s to which mental health care users were transferred from Life Esidimeni were either unlicensed or had improperly obtained their licenses. Lack of adequate facilities led to people dying of preventable diseases, starving to death or dying from dehydration. While this may well be hailed as “too little, too late,” there is a growing body of evidence which illustrates the marginalisation and dehumanisation of mental health care users across the country. In light of this, and in light of the fact that there is no way of knowing what will happen to people so-situated in the future, these Guidelines bare careful analysis.
An aspect that is welcomed by the South African Federation for Mental Health (SAFMH) is that the Guidelines are extremely comprehensive and detailed, setting out precisely what needs to be in place for an NGO to qualify for a licence. There is, however, a downside to this in that the requirements are so strict and onerous that the vast majority of NGO’s will not be able to comply with them without considerable additional funding and subsidies. Since no promise is made of this, it is likely that many will have to close their doors, which will be of imminent detriment to mental health care users. It would appear that the state is so preoccupied with safeguarding themselves against future liability that they have not fully taken into account the situation on the ground. The Guidelines can thus be seen as a knee-jerk reaction rather than a clearly thought-out process. It would seem that in compiling these Guidelines, a healthy space for constructive dialogue, where NGO’s can express freely what they need, has not happened to the extent it should have, which has the effect that the Guidelines are somewhat unrealistic in nature.
A major aspect, and one related to the above, that we question is that the Guidelines do not make provision for capacitating NGO’s to comply with the requirements for registration. As articulated, many NGO’s simply do not have the resources to improve their premises to suit the required standards with the effect that they cannot become licensed. Often, there is also a lack of knowledge of national, provincial and municipal law, which can also lead to non-compliance. Given the shortage of supply in these services in relation to the demand, it is submitted that capacity building is vital to ensure that there are enough facilities available. Had government focussed on development rather than simply on process, a chance would have existed that the sector could have been furthered rather than hindered. It is submitted that government could have solved this problem by building in a segment where they made a statement of intent to aid NGO’s in meeting the requirements for obtaining a license.
The service users referred to in the Guidelines provide only for people with mental illnesses and people with severe or profound intellectual disabilities. It therefore does not include people with mild and moderate intellectual disabilities. It is submitted that this is an oversight because such individuals can also require a substantial amount of support and can also become vulnerable to abuse, neglect and exploitation. Because facilities providing for and protecting people so-situated are not included in the Guidelines, this could lead to them operating unlicensed; something which could very quickly become disastrous.
In disability rights, a medical model was previous used. The person was considered a patient and maximal level of integration back into society was not a real consideration. This appears to be the approach adopted by the Guidelines, which refer to discharge reports whereas community-based services are run by NGOs and according to a recovery-model approach. Service users are therefore never admitted (as they would be in a clinical setting) and thus are not formally discharged. Community-based service is based on the equality between staff and services users and not on a professional and patient basis. The multi-disciplinary approach and team set forth in the Guidelines is therefore embedded in the medical model and does not embrace the essence of community-based services at grassroots level. Where daily medical care is not indicated, it should not be a requirement, yet it is in the Guidelines. It is therefore suggested that in drafting these Guidelines, government lacked an understanding of how these services are intended to function.
It is also important to acknowledge the limitations of the Guidelines. They cannot, for instance, altogether curb the existence of unlicensed NGO’s. This is because such facilities can become self-supporting by, for example, charging fees. The shortage in supply of these residential and / or day care services means that many families and caregivers of the targeted groups may simply have no option as to where to send them and may settle for an unlicensed facility, regardless of the fact that it may be deficient in terms of the requirements of the Guidelines. It is submitted therefore, that government was remiss in not including consequences for operating without a license.
The South African Federation for Mental Health (SAFMH) is a non-profit organisation seeking to protect and uphold the rights of people with psychosocial disabilities and people with intellectual disabilities. We call upon all stakeholders- including government- to come together and derive a way in which these Guidelines can come to be a viable yardstick for how facilities operate.
Government has long-since required licenses from NGO’s in order for them to obtain subsidies. This is a necessity when signing service level agreements with the state. This imperative is thus not new. While the Guidelines have certain troubling issues, they are the best we have and it is time to take up the cudgels and make the best of the situation. Nothing can undo the monumental tragedy that was Life Esidimeni, but the state has made the effort to ward of this kind of human rights violation in the future. It bears criticism, but it also bears hope, and it is our hope that the Guidelines will serve to catalyse at least some kind of positive change in the future.
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