Mental Health Care Bill: deliberations and finalisation

Meeting report

HEALTH PORTFOLIO COMMITTEE
24 October 2001
MENTAL HEALTH CARE BILL: DELIBERATIONS & FINALISATION

Chairperson: Dr Nkomo

Relevant documents:
Mental Health Care Bill [B69-2001]
Department's Proposed amendments (see Appendix 1)
DA Proposed Amendments (see Appendix 2)

SUMMARY
The meeting dealt with the formal deliberation of the Mental Health Care Bill. Amendments arising from the public submissions on Monday, 22 October 2001 were discussed as well as other proposed amendments from the parties. The Bill has been in process for a long period of time and there have been many revisions. Consequently, there was a strong desire to conclude its discussion in today's meeting, so that it could move on to the National Council of Provinces, with the overall aim being to have it passed this session. The DP and NNP introduced several amendments, as did the department, although these were related to technical matters on the whole. The ACDP also proposed an amendment. The full list of amendments is given (see documents)

MINUTES
Prof Freeman introduced representatives from the departments of KwaZulu Natal and the Northern Province, as well as two members of the National Directorate and the State Law Adviser, Ms Portia Lisese. He then proceeded to go through the Bill clause by clause to establish if there were any points of contention.

Preamble & Chapter 1
Prof Freeman read the introduction, the preamble and the table of contents, where no objections were indicated.

Clause 1 Definitions
The department proposed a change to the definition of a psychiatric hospital as it was felt to be too broad. Thus the word 'only' be inserted so that it read "a health establishment that provides care, treatment and rehabilitation services only for users with mental illness". This definition did not preclude general hospitals from establishing sections for this purpose, and the functions were not affected.

Dr Nkomo checked whether the members found the format acceptable. Mr Ellis said he thought there was broad approval for expediency, which the chair noted.

Prof Freeman indicated that the state law advisers had found the definition of "curator ad litem" to be superfluous, since there was also a definition of "official curator ad litem" and this was the term used in the Bill. Thus Clause 1 xix part iv was recommended for deletion.

The Committee agreed unanimously on the deletion.

Chapter 2
Prof Freeman then went through Clause 3. The Committee indicated that there were no objections.

Prof Freeman went through Clause 4, saying that the implementation emphasised community-based care, as well as the rights and interests of the service users.

Clause 5 dealt with the designation of health establishments in such a way that it allowed for both State-run and certain private hospitals to be under the auspices of the State. He added that there was a move to separate the psychiatric hospital, which dealt with mental illness, from care and rehabilitation centres, which dealt with mental retardation. Establishments dealing with both would have to have to separate licences.

Ms Kalyan asked if a definition for people with intellectual disabilities should not then also be included.

Prof Freeman thanked her for the suggestion, indicating that Clause 1(xxxvi) defined "severe or profound intellectual disability", adding that milder forms should be dealt with by the Department of Education or Social Development.

Dr Nkomo asked that debate be dealt with later, but asked whether the explanation was acceptable and Ms Kalyan said that it was.

Prof Freeman moved on to Clause 6. Voluntary users will not be allowed admission unless they are admitted to specific programs, such as a treatment for eating disorders (see s 6.6.a).

Dr Rabinowitz (IFP) asked for clarification on s.6.3. she said that it seems that very much was being left to the department, and that in the absence of a framework or standards, nothing could be done in an autonomous fashion. She suggested that this could leave a vacuum in the interim period.

Prof Freeman said that the Committee's input would be needed here, as it had been specifically formulated that way to allow national to fulfill an oversight role. He said that some provinces did not have any facilities, and if the national department did not have that control, the provinces could each only cater for their own populations.

Dr Baloyi (IFP) suggested that it was the "must" which made it problematic.

Dr Nkomo asked if Dr Rabinowitz was suggesting an amendment. She indicated that she would reserve the right to propose it later.

Dr Nkomo said that he thought the IFP had no amendments, but the Committee would then move on. Ms Dudley had arrived and he asked her if the ACDP had formulated any amendments.

She indicated that she had made representations in the Committee earlier, and would see what had become of them in today's meeting.

Prof Freeman indicated that, in relation to the previous point, all State patients remained a national responsibility and thus there was little problem with involving national to such a degree.

Chapter 3
Prof Freeman said that Chapter Three was a recognition of the fact that, while the Constitution protected all citizens of South Africa, there was a need to elaborate how the rights contained therein applied in the context of mental health. He went through these rights. (Clauses 7 - 17)

Dr Gous asked if there were any areas in the Bill which might lead to a challenge on constitutional grounds in the Constitutional Court.

Prof Freeman said that the State Law Advisers as well as the Human Rights Commission had indicated that they had no problems with the Bill.

Ms Kalyan indicated that she had some amendments. She asked why, if there was 'respect for human dignity', mental health service users could be transported in a different manner from other patients. She said that there was a need to be explicit, since they were often transported by the police, instead of in ambulances.

Dr Nkomo said that this was dealt with in a later chapter. He asked if it could be addressed then, but accept the principles of rights here.

Ms Kalyan asked if "prescribed manner" in s 9.2 (a) should be defined.

Prof Freeman said that the feeling was that it should be dealt with in regulations, so as not to overburden the Bill.

Dr Nkomo asked if this was acceptable, and it was agreed upon.

Chapter 4: Mental Health Review Boards
Prof Freeman mentioned that these were not meant to take the place of hospital boards, and were meant to deal with those not giving their consent. He said that he understood that the DA had a comment on the composition of the Board and how a person could be appointed.

Ms Kalyan (DA) said that the definition of a community member should be defined, asking if a relationship with the service user would exclude someone from sitting on that Board. She asked what the criteria were as well as whether they would be from civil society.

Prof Freeman said that he thought it would be from civil society but it could be dealt with in regulations, rather than in the legislation. He said that his view was that it would not be a family member, but would come from CBOs, NGOs and traditional leaders, for example.

Mr Ellis said that, with respect to Prof Freeman, MPs had no say in the drafting of regulations, and he strongly recommended that these recommendations be taken up.

Ms Kalyan used an example of someone who headed a support group, and who sat on the Board. She asked if this did not open the possibility of a breach of confidentiality.

Ms Baloyi (ANC) suggested that this would be the same situation as with a family member, and there would be a need to excuse oneself from the proceedings in that case.

Prof Freeman agreed that it would need to be dealt with, stressing the need for the Board to be independent. He suggested that such people would need to inform the Board, rather than sit on it.

Ms Baloyi said that she did not understand the distinction.

Prof Freeman explained that before making a decision, the Board could call on people to give information on the patient in order to make its decision.

Clauses 18-20 were dealt with briefly and were accepted.

Clause 21
Ms Kalyan said that "public interest" in 21(1)(e) needed to be clarified, as it allowed subjectivity to creep in.

Prof Freeman said that he would agree except that 21(2) made provision for an enquiry, to ensure that the reasons for someone's removal from the Board were adequate. He said for example that someone may be obstructionist on the Committee.

Dr Rabinowitz said that she felt this was covered by 21(1)(b) and therefore nothing would be lost by removing it.

Prof Freeman said that in the example of someone being racist, this would be a matter of "public interest".

Dr Rabinowitz asked if there was an appeal process against the decision.

Prof Freeman said that there was no appeal process, but the Executive Committee was involved, which offered some measure of protection. There was also recourse to the courts in terms of common law.

Clause 22 was dealt with by Prof Freeman, and there was no point of debate.

Clause 23
Dr Cwele (ANC) said that the professor had indicated previously that there would be financial implications related to the Boards. He said that much legislation had been delayed at the implementation level by a lack of planning and budgeting. He asked if provinces had budgeted for the establishment of these Boards, and what were some of the costs involved. He asked for some assurances in this regard, particularly in relation to the Medium Term Expenditure Framework.

Prof Freeman said that all he could say was that the Heads of the Provincial Departments had been consulted, and the estimated cost was around R1,5 million, which was accepted by the provinces. However, he re-emphasised the expected savings which would result in the longer term.

Dr Cwele suggested that the national department make some provision for a contingency fund to ensure implementation.

Prof Freeman said that unfortunately he could not make such a promise.

Dr Cwele accepted this, but said that he wanted to sensitise the department to this issue.

Dr Nkomo suggested that the meeting move on. Dr Baloyi asked if the meeting would return to this issue. In reply, Dr Nkomo said that it might not belong in this particular discussion, and asked if there were going to be delays due to this particular issue.

Dr Baloyi asked if a clause could be included to make provision for this. Ms Baloyi said that including a money aspect would make the Bill a money bill, which would mean the involvement of the Treasury.

Ms Kalyan agreed with Ms Baloyi, saying that it was a valid point but that the Committee did not have jurisdiction over financial issues.

Dr Nkomo said it was a matter of operationalisation, which was not to be dealt with by the Committee. He said their first priority was to agree on the principles.

Dr Cwele said that if the professor had not indicated consultation with the provinces, then there might be a problem.

Dr Nkomo welcomed the Director-General, who had just joined the meeting and recommended that they move on to the next item.

Chapter 5
Prof Freeman said Clause 25 emphasised that, in terms of voluntary care, it was to be approached in the same way as any other type of care.

Dr Rabinowitz asked how hospitals would be prevented from becoming 'safe havens' for people who simply disliked the outside world.

Prof Freeman said that there were provisions for "appropriate care" and the process of refining the activities of psychiatric hospitals would also help. He also said that conditions in psychiatric hospitals did not make this a likely scenario as well.

Prof Freeman read through Clauses 26, 27 and 28.

With regard to Clause 28, Dr Rabinowitz asked how often the Review Board would sit to deal with appeals, applications etc.

Prof Freeman said that it would depend on the size of the area that they dealt with. There was flexibility built into the process, as the situation was likely to vary. They could meet every day, week or month. Meeting once a month was the worst case scenario, as there was the risk that someone could be kept for up to thirty days without a review, although there was the protection of having an examination by to mental healthcare practitioners.

Dr Rabinowitz asked if being remunerated for sitting might represent an incentive to sit more often than was necessary.

Prof Freeman said that it had not occurred to him that people would agree to meet solely for the purpose of being remunerated. He said that there was a monitoring process in the sense that the number of people being dealt with at each session would be monitored, and referrals could be made to the MEC to rectify the situation.

Clauses 29 and 30 were read, and there was no disagreement.

Clause 31 was outlined by Prof Freeman, saying that provision had to be made for the recovery of capacity to ensure that people were not forced to wait for a periodic review before they could be discharged.

Ms Dudley (ACDP) said that the elderly had made a representation to the Committee, and she asked if it was possible for the family of the service user to make an appeal against the release of that person.

Prof Freeman said that the department felt strongly that someone who is not ill should not be kept in an institution. He added that there was a need to ensure that the family and the community had the capacity to care for the person. He added that there were other means available in common law to protect the community and the family.

Dr Rabinowitz said that this suggested a strong link between health and social services. She asked whether the professor had any suggestions for improving this, given the poor track record that existed in this regard.

Prof Freeman said that at national and provincial level, they were working towards an integrated approach. He said that they were piloting several community-based programs, assisted by NGO's. He said that there was a need for work at the local level, which was the reason that the provincial representatives were present at the meeting, to take note of the concerns.

Dr Nkomo said that they needed to move on.

Clause 32 was read and there were no comments.

Clause 33 was read, and the professor noted that in 33(8), the word "assisted" should be changed to "involuntary", as this was a typing error.

Professor Freeman said that Clause 34 was one area in which the Bill differentiated between involuntary and assisted care, and that was in the provision for a 72-hour assessment for involuntary service users.

Ms Kalyan asked what happened if no one was available to conduct the assessment required under 34(1).

Professor Freeman replied that a medical practitioner must conduct an examination, and one other mental healthcare practitioner, if available. He said that the preference was for two people, but this was not essential. He said that the reason a medical practitioner was specified was that the underlying cause might be physical. He added that this recommendation had come from the SA Council of Medical Practitioners. And the Council of Psychiatrists.

Ms Kalyan said that such individuals might pick up on the physical issues, but not be suitably trained in the mental health aspects.

Dr Baloyi said that it was unclear, because "if available" suggested that both could be 'if available', but neither were required.

Prof Freeman said that it had been an issue for debate in various meetings, and if the Committee felt that it should be taken out, it was acceptable to him. He cautioned however that this might disqualify some establishments from making these kinds of assessments.

Dr Cwele said that the "if available" was not clear, and that it could be reworded to make the meaning clearer.

Dr Baloyi said that the presentation of symptoms was often fairly clear, so could it not be worded as either a medical or a mental health practitioner, or both?

Dr Nkomo suggested that there was agreement that the correct wording would have to be agreed to, and said that it could be returned to in the formal stage. He asked the Director-General if he had a comment to make.

He responded saying that if that was what the Committee wanted, it could be achieved by saying and/or; which still allowed for the ideal.

Dr Cwele said that while he accepted the idea, he cautioned that this might make it too broadly defined, since it would include a social worker. He said that this would need to be looked at.

Dr Gous said that he thought Prof Freeman had said that SAM insisted on the medical practitioner, but he agreed with Dr Cwele.

Dr Rabinowitz said that, with due respect for the medical doctor, there were other people who are qualified in mental health care. She added that she supported added protection for the public.

Prof Freeman said he hoped that it was recognised that a doctor had said that a medical practitioner was not necessary.

Clauses 34(7) and (8) deal with the Review Board's role in this issue. They were not debated and nor was Clause 35.

Prof Freeman explained that Clause 36 tied in with what Prof Zabow had said during the public submissions regarding the need for due process, since the removal of freedom had to be a legal process.

Clause 37 was similar to the process outlined for assisted care users.

Ms Kalyan asked who conducted the review

Prof Freeman said that the Bill specified that the head of the health establishment had to cause a review to be conducted, not that he/she had to do it themselves. Lifecare suggested that if psychiatrists were felt to be the only ones qualified, this would place undue pressure on institutions. He said that, in consultation with the Director General, it was recommended that the first review be done by a psychiatrist, the second by a mental health practitioner, and then they could alternate thereafter.

Dr Jassat (ANC) asked why the Review Board could not do it.

Prof Freeman explained that someone had to write the report which the Board reviewed. He added that at the moment they received reports such as "patient recovered. Have to keep for another year".

Clause 39 was explained and accepted.

It was noted that Clause 40 had been drafted by the South African Police Service.

Ms Kalyan introduced amendments to 40(7) and (8). She said that there was a need to define the amount of time a service user could spend in police custody, a better definition of "constraining measures" was needed and there was a need to keep the mentally ill separate from hardened/violent criminals.

Prof Freeman said that his input on the issue of the time frame was that, if such a time was specified, the police would always hold someone for that maximum amount of time. This had been the experience from the previous act. With regard to 40(8), he said that the police had to use the constraining measures available to them, which excluded sedatives for obvious reasons. He added that there are some situations in which the police are the only people with the skills and equipment to take someone into custody.

Ms Kalyan said that she agreed with this, but said that setting a maximum amount of time such as 8 or 12 hours might be better so as to protect the patient. As an alternative, she said that something could be specified under 40(1)(a).

Dr Jassat agreed with Ms Kalyan, asking if 12 hours could be set as the maximum amount of time.

Dr Baloyi said that, with respect to Health, the issue of police over-involvement was a 'red herring'. He agreed with the first issue , that police had the capacity to constrain people. But he said that it was a function of the health department to transport patients, and police are only used in a few instances. He said that this should be kept in mind, so as not to perpetuate the perception where police were seen as the major source of transport in these instances.

Dr Cwele said that the professor had indicated that the police were extensively negotiated with and that there are exceptional circumstances where their involvement is necessary. With regard to the time issue, he said that he felt the professor had made a good argument against including it here, and he felt it could be dealt with in regulations. He added that police did not like to keep mental patients. Steps were being taken to introduce democratic police interventions, and there was a need to take note of the realities of the resources available to the health department to transport patients.

Ms Kalyan indicated that she was happy with the explanation, but could come back to the issue in the formal stage.

Prof Freeman said that in the draft regulations, the police were only to be used in "highly exceptional circumstances" for example when a patient was likely to abscond.

Dr Rabinowitz said that she felt there was a need to clarify the issue because hospitals did not want the responsibility of transporting patients.

However, Dr Nkomo suggested that there were time constraints and recommended moving on.

Chapter 6
Clauses 41- 44 were read and explained. There was no comment from the Committee.

Ms Dudley suggested that, for Clause 45 dealing with leave of absence, not only a written notice be given to the service user, but also to the community, for example the mother who's son has been murdered. Because if the 'murderer' was felt to be not fit to stand trial, she felt that the community should be able to appeal against the 'murderer' being granted a leave of absence from the institution, as well as being informed if such leave was granted.

Dr Baloyi asked which two points were being discussed, as his understanding was that leave of absence dealt with transfer between two State facilities.

Ms Dudley said that her understanding was that the person is released into the community, so the community should have a say in whether or not that person should be there.

Dr Baloyi asked for clarification on when the person ceased to be a State patient.

Prof Freeman said there were three contexts for a State patient to leave a facility - when they are discharged, when they are conditionally discharged and when they are granted a leave of absence. Clause 45 dealt with them going on leave into the community as part of a program leading up to their release.

Dr Cwele said he was concerned and asked what was the normal process for granting leave at the present moment, and whether this would be covered in regulations.

Dr Jassat asked if it was not possible to categorise for example violent crime, and violent crime for toxic reasons, to give an idea of whether or not people would revert.

Ms Baloyi said that she did not understand, because she had been under the impression that State patients were institutionalised for life.

Ms Mnumzana (ANC) said that she supported Dr Cwele, saying that some of the potential State patients could change their behaviour, pretending to be abnormal to escape trial, and then after a time becoming normal in the institution in order to get released and continue with their crimes. She also asked if primary care nurses would be dealing with such people.

Ms Kalyan suggested that this clause should classify the objectives of the 'leave' and say "based on an assessment of the patient's ability to be reintegrated".

Dr Rabinowitz spoke to Dr Baloyi's statements re State patients, saying that the purpose of legislation was to make these issues understandable, and was there any reason not to include a definition.

Ms Dudley said that, while the curator was aware of the reasons for the hospitalisation, the head of the health establishment might not be, and in the context of over-crowded institutions, might release someone too early.

Prof Freeman said at this point that it was clear that the State Patient process needed to be clarified. He said that a person is deemed to have committed a crime and arrested. If the magistrate or judge is unsure whether they were fit at the time of the crime, they need a clinical decision and the person is referred for thirty days observation. A psychiatrist makes a report and the court decides. If the person is found unfit, they stop being part of the criminal justice system, and pass into the health system. There is no time frame for their treatment and it is certainly not for life. The criminal sentence which might have been given does not influence the clinical decisions around treatment. Discharge involves a 'curator', who is the Director of Public Prosecutions. Previously, the DPP could only request a discharge, but now others can make an application in this regard. This is largely a clinical decision and discharge is not taken lightly. The authorities set up a process which includes leave of absence as a way of gradually reintegrating the person. Leave of Absence is an important part of the process, since it allows assessment of the progress being made. Putting too many constraints on this would inhibit the treatment process. He added that stigmatisation was a major problem, and labelling these people would make reintegration difficult. He pointed out that they had not committed crimes out of malice, but out of sickness.

Dr Rabinowitz said that he was talking about someone who was ill, but what about someone who was a psychopath i.e. not able to be rehabilitated.

Prof Freeman said this was a difficult issue worldwide. In SA, the Booysen Commission in 1989 had decided that psychopaths were not mentally ill in terms of the Criminal Procedure Act, therefore they were sentenced in the criminal justice system and put in prison.

Dr Cwele said that he was concerned that the head of the establishment be guided by a review process.

Prof Freeman indicated that the current act had 'Guidelines for Forensic Psychiatry', and similar guidelines would be created for the new act.

Dr Nkomo suggested that further comments be included in an amendment.

Break

Prof Freeman said that he wanted to point out that the clauses that were causing contention had existed for a long time, and were very similar to the clauses which had existed in the old act since 1973.

Clauses 46 & 47 were read, and there were no objections. The typing error in 47(2)(f) which states "paragraph (f)" was amended to read "paragraph (e)".

Clause 48 deals with the release of State patients subject to certain conditions such as continuing treatment.

Dr Rabinowitz complained that here again there was no provision for the reclassification from State patient to criminal.

Prof Freeman pointed out that there was provision for them to be recharged by the courts.

Dr Rabinowitz said that they were found guilty, then found mentally ill.

Prof Freeman said that this was untrue, as they were never tried - the decision is made before they are tried.

Dr Rabinowitz said that she felt that there were too many protections for the patient.

Prof Freeman said that you could not detain people on the basis that they might commit another act.

Dr Nkomo pointed out that this Bill could not act as a 'catch-all', and that the issues pertained to mental health, not justice and it is these which should be addressed.

Ms Dudley said that her objections to Clause 45 pertained to Clause 47 as well.

Dr Nkomo again said that she needed to formulate the ideas into a concrete proposal.

Prof. Freeman went on, saying that conditional discharge allowed monitoring of patients in the community.

Chapter 7
Clauses 49-51 were read out. Prof Freeman said that Clause 51 reflected the desire to treat mental illness in prisons as far as possible, in line with the sentiment that it was the same as other illnesses such as diabetes which were treated in prison.

Ms Kalyan said that she understood the desire not to discriminate between mental and physical illness, but she was concerned over the vulnerability to abuse, particularly sexual abuse, which could be a function of mental illness.

Clauses 52 & 53 allow someone to be transferred via a magistrate to a psychiatric hospital if the illness became severe, that is, in extreme situations.

Ms Kalyan asked if they would be moved to maximum security facilities.

Prof Freeman said that Clause 49 designated the appropriate facilities.

Mr Gous asked how many appropriate facilities existed, to the professor's knowledge.

Prof Freeman said that there were about five such institutions, concentrated in the well-resourced provinces.

Ms Kalyan said that, in that situation, there were issues around transporting people between institutions, and holding them. She said that the ideal would be to hold them in the same prison, but separate from other illnesses.

Prof Freeman said that he did not think that there were enough mentally ill prisoners to justify that. He added that psychiatric hospitals had the monopoly on the best skilled staff as well. He added that the police were currently reviewing the security at psychiatric hospitals, to make sure that it was adequate.

Clauses 52 - 55 were read without objection or debate.

The proposed amendment to 54(2)(a) from the DA was noted, but not debated.

Clause 56(4) also had an amendment proposed by Ms Kalyan. The intention was to rearrange the order of the subclauses to make it clearer.

The State Law Adviser indicated that she did not feel that, legally, there was anything wrong with the clause as it stood.

Ms Kalyan indicated that she had no problem with the intention, but had wanted to rearrange the order to make it clearer. However, she was satisfied with the response and withdrew the amendment.

Rev Magoba (PAC) asked if the situation actually existed whereby mentally ill prisoners 'recovered' i.e. wanted to return to prison.

Prof Freeman said the reverend should view the conditions in some of the institutions.

Clauses 57 and 58 were explained without comment or debate.

Chapter 8
Prof Freeman said that there had been discussion of including this chapter in the regulations, but that the law advisers had recommended its inclusion in the Bill. A member of the ANC asked what was covered by the term "property". Prof Freeman said that it covered everything they had ownership over. The underlying principle was that they did not have the capacity to handle their affairs. Clauses 59 - 65 were briefly explained, but there was no debate over these clauses.

Chapter 9
This chapter dealt with the regulations, and while there had been an attempt to cover everything, 66(r) had been included to allow the Minister to add to these at a later date.

Dr Rabinowitz said that, in relation to norms, the Minister may not take into account all the norms, such as traditional healers, for example.

Prof Freeman expressed the view that he did not feel that there was a need to set down all the norms for healthcare, as it was a developing process, and couldn't cover everything, such as aromatherapy and traditional healing.

Ms Kalyan said that in terms of controversial procedures such as ECT, surely standards should be set.

Prof Freeman said that 66(a) as well as the draft regulations dealt with a recommended minimum standard for such controversial treatments.

Dr Rabinowitz said that the minimum standards should definitely be set out in the framework.

Prof Freeman read Clauses 67 & 68, pointing out that 68(1) allowed the Minister to consider comment on regulations, which was the practice of the minister, as she liked considering the comment of others.

Chapter 10
Clauses 70 - 73 were read to the Committee and there was no comment or proposed amendments.

Prof Freeman drew attention to Clause 74 which made provision for interim measures between the repeal of the old and introduction of the new Act. He also said that, in terms of laws repealed (see schedule), chapter 8 of the 1973 Act had not been repealed, as this dealt with hospital boards, and there was a process of setting up new boards. Once this process was completed, chapter 8 of the old act would be repealed.

Dr Gous asked what a 'reception order' was.

Prof Freeman said that this was part of Clause 9 of the 1973 Act dealing with involuntary care, and this had been done away with due to the Review Boards.

Dr Nkomo noted that this was the end of the informal section. He asked the opposition parties if they had anything to add.

Ms Kalyan pointed out that they were meant to return to a discussion on ambulance transport rather than using police vans.

Prof Freeman said that they knew from experience that a mentally ill person could destroy an ambulance and it was sometimes necessary to use force to get a person to treatment. The police are the only people allowed to use force, and there was an agreement with the police to train police members in this regard, for example at the police colleges.

Ms Kalyan asked if there was a place in the Bill for dealing with post-discharge support in the community.

Prof Freeman said that this was up to the Committee, but felt that it was a policy issue which the department was currently working on.

Dr Jassat drew attention to the 'escape-potential' that existed from an ambulance as opposed to a police van.

Dr Rabinowitz said that she was unsure where the clause she would like to propose would fit in, but that the IFP was happy with the Bill, barring a few amendments. She suggested that it would be along the lines of "if a patient was admitted as a State patient, but it became clear that the crime was committed with full capacity..." (at which point she tailed off.)

Prof Freeman said that he agreed with the principle, but said that a court decision could not be overturned. He did say that a person could be recharged, however and he was unsure about the need to include such a provision in this Bill.

Dr Rabinowitz asked for legal opinion.

Ms Lisese said that in the case of being found unfit to stand trial, proceedings were withdrawn, which allowed the person to be recharged.

Dr Cwele said that on the issue of regulations, where was the transfer of funds dealt with?

Prof Freeman said that there had been a request to include something in the regulations which allowed the transfer of funds to non-profit organisations to assist in the fulfilment of the aims of the Bill. He said that the move from hospital-based to community-based care led to a greater dependence on these organisations, which would require a transfer of funds. He said that this provision was in the current act, but had been taken out.

Mr Ellis asked whether that was included as a clause.

Prof Freeman said that it was part of the regulations which the Minister could advise on.

Mr Ellis said that he felt it important for it to be included.

Dr Gous asked whether that would make it a money bill and the state law adviser, Ms Lisese, said that she thought that this would in fact make it a money bill.

Dr Gous said that the DA had refined its amendments and was left with only three: amendments 4, 6 and 9 (see Appendix 2).

Dr Nkomo suggested that a short break be taken, for discussion. He said that one member from each party should take part in this sub-committee, to finalise the amendments, and the formal stage would follow this.

When the meeting resumed, Dr Cwele reported on the discussions of the sub-committee. He said much progress had been made, and most of the parties agreed on all the Department's proposed amendments, except for points 7 and 9 (see Appendix 1). The contentious issues dealt with notifying victims and the community prior to the release of involuntary or State patients. The concern was that, while there was respect for the concerns voiced by Ms Dudley, there could be unforeseen negative consequences. The state law adviser was consulted on whether the Promotion of Access to Information Act did not adequately address this issue.

Prof Freeman indicated that he was satisfied with the amendments.

Dr Rabinowitz was asked for her views on points 7 and 9. She indicated that she had seconded Ms Dudley's proposal, but said that she would accept dropping pt 9, given that there might be unintended consequences.

A representative from the National Directorate for Mental Health and Substance Abuse pointed out that the Access to Information Act was a better mechanism to achieve the aims underlying the amendments, as it allowed an appeal process. Including point 7 in the Act would be over-legislating.

Dr Nkomo said that Ms Dudley and Dr Rabinowitz still had problems with dropping pt 7.

Dr Rabinowitz said she could not drop it on Ms Dudley's behalf (Ms Dudley was not present). She also pointed out that the Access to Information Act involved a costly procedure.

Ms Kalyan said she was reluctant to support such an amendment, as it was a judicial rather than a health matter. Consequently, it did not fit into the Bill.

Dr Cwele said he agreed with Ms Kalyan. He said that it could be agreed that Ms Dudley had had bad experiences, but that she did not exhaust the procedures available to her. He said he felt that the Committee should not over-legislate, although it remained sensitive to the spirit underlying the amendment. He argued that putting in a 'half-measure' at this late stage opened the possibility for unintended interpretations by the judiciary. He also said that there was a need to ensure that what was done could not be used as a weapon against the mentally ill. He used the example of the Truth and Reconciliation Commission, where the intention had been to forgive, but in instances had exacerbated the negative feelings. The intention was not to condemn the mentally ill for life. He said that, as Ms Kalyan had recommended, people could follow other legal avenues.

Dr Baloyi said that knowing did not remove the danger that might exist. He therefore asked what value there was in making the information available, because it did not change what could happen in two weeks or two years.

Dr Nkomo thanked the members and asked if he could assume that points 7 and 9 were to be dropped. The Committee indicated its consent. He then asked if they were ready to move on to the formal stage. He read the motion of desirability.

Mr Ellis indicated his support.

The Committee agreed not to go clause-by-clause but to accept the amendments as a whole. The amendments were accepted, with no abstentions.

Mr Ellis suggested that there was something wrong, because everyone was agreeing with each other!

Dr Nkomo submitted the Bill as a whole, as amended. It was accepted. He then read and signed the report of the Committee on the Bill.

The meeting was adjourned.

Appendix 1:
AMENDMENTS TO MENTAL HEALTH CARE BILL [B69-2001]

1. On page 6, in line 18, delete "a curator ad litem or

2. On page 6, in line 45, after "services" to add" only"

3. On page 16, in line 49, to omit "assisted" and to substitute "involuntary"

4. On page 17, in line 12, delete ", if available"

5. On page 20, in line 54, to omit "time as may be necessary" and to substitute "period as prescribed"

6. On page 22, from line 23 to line 24, to omit " a period as may be possible and to substitute "period as prescribed"

*7. On page 22, after line 41, to insert:
"(5) The notice referred to in subClause (2) must, on request, be made available to an affected person."

8. On page 23, in line 37, to omit "(f) and to substitute "(e)"

*9. On page 24, after line 25, to insert:
The official curator ad litem must, on request, make available the order referred to in subClause (6) to an affected person.

10. On page 26, in line 38, to omit paragraph (a) and to substitute:
"(a) if the mentally ill prisoner -
(i) previously absconded or attempted to abscond; or
(ii) has inflicted or is likely to inflict harm to others; and"

11. On page 28, from line 4 to line 5, to omit " a period as may be possible " and to substitute "period as prescribed"

12. On page 33, after line 37, to insert the following paragraph:
"(r) the period within which mental health care users may be transported;"

Appendix 2:
PROPOSED AMENDMENTS TO THE MENTAL HEALTH CARE BILL FROM THE:
DEMOCRATIC PARTY, NEW NATIONAL PARTY, FEDERAL ALLIANCE

1. Chapter III: General Comment
1.1. Many mental health users are transferred from one facility to another in the back of a police van. This is an inhumane practice. It is suggested that mental health users be accorded the same rights as patients i.e. that they be transported in ambulances.

1.2. It is suggested that post-discharge support from the community be included in this chapter. A clear definition between Primary Mental Health and Community Mental Health is also recommended.

1.3. Section 11(2)
It is suggested that "the prescribed manner" referred to in this Clause be specified.

2. Chapter IV Section 20 (2c)
The defining criteria in respect of the member of the Community who sits on the Review Board should be stated e.g. facilitator of a support group to which the Mental Health User may belong or the local priest who may have offered Pastoral Counseling. Would a family member of the Mental Health User qualify?

3. Chapter IV Section 211(e)
It is suggested that this be omitted as it is too open an area and can lead to subjective interpretation.

4. Chapter V Section 34 (1b)
Omit "if available'' or insert ''a suitable alternative''.

5. Chapter V Section 37
Who would do the review/ report needs to be specified i.e. is it the Head of the establishment or the involved mental health care practitioner i.e. the attending psychiatrist, social worker, psychologist or all of the above?

6. Chapter V Section 40 (7)
The amount of time that a mental health user may be held in custody at a police station should be prescribed. The main object being to minimize the possible traumatic impact on the mental well being of the said person.

7. Chapter V Section 40 (8)
"Constraining measures" should be clearly defined as should the amount of force and the use of handcuffs etc.
It is strongly recommended that an insertion be made in respect of the need for police personnel specially trained in the field of Psychiatry to handle mental health users and that these users are kept in a holding facility separately from hardened and or violent criminals.

8. Chapter VII Section 51
It is suggested that prisoners with mental illnesses be kept in a separate facility from other prisoners simply on the grounds that they would be more vulnerable to attacks on their person especially in respect of sexual abuse.

9. Chapter VII Section 54 (2a)
Insert "or has made repeated attempts to escape" after is likely to inflict harm to others...

10. Chapter VII Section 56
Point (c) "inform the relevant magistrate in writing" should come after (a). Point (b) should then become (c) and insert "once the magistrate has authorized the discharge " at the beginning of the sentence.

11. Chapter IX Section 66
It is recommended that the Mental Health Care Practitioner's Professional Qualifications be included in this section.