Changes to Mental Health Act

SECTIONS of the legislation that allow involuntary detention of mental health patients, as happened in the Life Esidimeni matter, have been declared unconstitutional.

The Makana People Centre, a civil rights organisation, took the health minister and provincial health MECs to the North Gauteng High Court, Pretoria, over sections of the Mental Health Act.

It argued sections 33 and 34 of the act were unconstitutional because they did not provide for automatic independent review before or immediately after the involuntary detention of a mental health patient.

The sections violated the right to dignity, because they meant a mental health patient could be detained without necessary investigation.

Makana cited the Life Esidimeni saga as a result of the challenged sections.

Over 140 mental health patients died in 2016 after the Gauteng government decided to transfer patients from Life Esidimeni Private Hospital to various NGO centres.

The transfers were done haphazardly, some to unregistered NGOs. An inquiry chaired by retired Deputy Chief Justice Dikgang Moseneke concluded that families of the 144 victims should be compensated.

Makana argued in court that the sections it challenged allowed the transfers from Life Esidimeni because they did not stipulate judicial reviews, neither were these reviews needed before and after the placement of the patients at Life Esidimeni.

Makana submitted reports pertaining to the deaths following the removals from Life Esidimeni.

The health minister argued the challenged sections did not infringe rights because families of the detained patients have a right to approach the courts at any stage.

The Western Cape submitted it did things much differently compared to other provincial governments.

Acting Judge PN Manamela found Makana made out a case against the sections of the Mental Health Act.

“I have considered the submissions made around the Life Esidimeni tragedy to the extent that it relates to mental health care users, as well as the extent to which the applicant has relied on it to support its case,” said the judge.

“I am persuaded that the reports do provide sufficient evidence of lack of proper safeguard within the statutory framework in so far as it relates to the detention of involuntary mental health care users.

“The scheme for the involuntary detention of a health care user created under section 33-34 of the Mental Health Act 17 of 2002 is declared to be inconsistent with the Constitution and therefore invalid, to the extent that it does not provide for automatic independent review prior to or immediately following the initial detention of a person involuntarily detained under the act.”

The matter was now due to go to the Constitutional Court for confirmation that the sections of the Mental Health Act were unconstitutional.