Mental health and law

Mental health and law in South Africa has resulted in the new Mental Health Care Act (MHCA 2002) was passed in 2002 and promulgated in December 2004. It came into line with other progressive mental health legislation, such as in Scotland, England and Jamaica. The main aim behind the new act was to shift focus from one of custodial care to one of community care; to ensure that appropriate care treatment and rehabilitation is provided at al levels of the health service; and to ensure that people with mental health disorders are not discriminated against, stigmatised or abused.

Key principles of the Act are that patients’ rights privacy and dignity must be respected; that patients should not be discriminated against because of their mental illness; and that patients must be protected against exploitation and abuse.

How is the Act implemented?

Patients can be admitted to hospitals for psychiatric treatment in one of 3 ways.

    The first is as an Involuntary Patient. In this case the person can only be admitted as an involuntary patient if:
  • 1. there is reasonable belief that they are suffering from a mental disorder, AND
  • 2. they are a serious danger to themselves or others, OR
  • 3. they are likely to suffer financial loss or loss of dignity as result of their behaviour.

In these cases, the patient must be admitted to a health establishment for purposes of care, treatment and rehabilitation within 48 hours if the application is accepted.

The health establishment is usually a secondary level or tertiary level institution
Secondary level institution are usually district hospitals (eg Paarl, Karl Bremer)
Tertiary level institutions are usually large regional hospitals (eg Valkenberg, Stikland, Lentegeur)

The application is formally made to the head of the health establishment, but practically this is application is assessed by a medical doctor and a second mental health professional who then see the patient.

If the decision is that involuntary admission is required, then the patient must be admitted to the health establishment . If this is not done within 48 hours, then another application must be made.

Once the patient has been admitted to hospital, there is a period of 72 hours during which time the patient is assessed, both physically and mentally. After 72 hours, then the health establishment must decide if the patient requires further care, treatment and rehabilitation as an in-patient. Again this task will be performed by the medical staff. If it is felt that further in-patient care, treatment and rehabilitation is not required (ie they DO NOT SUFFER from a mental disorder, OR are not a serious threat to themselves or others, OR not a financial threat to themselves or likely to suffer loss of dignity) then the patient must be discharged immediately, unless the patient gives consent for further treatment. Patients can then have their status changed to discharged or voluntary in-patient or out-patient.

The second way that a patient is admitted to a health establishment is as a Voluntary Patient When an individual submits to a mental health facility for care and treatment, and who consents to such care, they are ‘entitled’ to appropriate care or referral for such care. They are then admitted as a Voluntary Patient.

The third manner in which a patient is admitted is as an Assisted Patient. In this case, the person is thought to be mentally ill or impaired to the degree that they require care and treatment for their, or others, health or safety, but is incapable of giving informed consent for admission to hospital. In these cases, patients are not resisting hospitalisation, but do not have the capacity to agree to admission.

The mental health practitioners assessing the patients must be suitably qualified mental health professionals. They would comprise of a at least one medical practitioner in state employment, and a second practitioner (medical doctor, mental health nurse, occupational therapist, social worker or physiotherapist).

Mental health review boards

These have been established to ensure the legal rights of patients with mental illness held under the MHCA.
The board comprises one magistrate, one attorney and one mental health practitioner.
After the 72 hour assessment, if it is decided that further in-patient care is necessary, then the health establishment must submit a report to the Mental Health Review Board within 7 days to request further involuntary care.
It is interesting that the patient is not afforded the opportunity to forward arguments against further involuntary admissions, only the applicant and the mental health providers.
Furthermore, after the Board has made their decision, the results are not forwarded to the patient.

Naturally if the Board’s decision is against the health establishment, then the patient must be discharged immediately.

If the Board’s decision is against the patient, then they must forward their decision to the High Court for judicial review – The Court has one month to come to a decision.

Patients also have the right to legal representation

Patients have the right to appeal against any decision to continue involuntary admission.

Patients are also entitled to have their cases reviewed 6 monthly and then annually by the Review Board.


Under the old legislation, Police would take mentally ill individuals to a Magistrate for the issue of a Reception Order. Now any individual apprehended by the Police and suspected to be mentally unwell, must be transported to a health establishment where they can be suitably assessed by qualified mental health practitioners.

Police are often called upon in cases where a person appears to be mentally ill. In certain cases, the Police Services may have a legal duty to assist with the management of someone who is deemed to be mentally ill and a risk to themselves or others.

“The Assisted Patient”

When an individual is thought to be mentally unwell through their behaviour but not a danger to themselves or others, and not at risk of harm from others, then the Police are not under obligation to assist.

The Police have various options in this situation.
  • 1. Advise the individual to seek psychiatric help
  • 2. Locate the family or carer of the person and advise that that person be taken for psychiatric help
  • 3. Take the individual to a health establishment if they feel that the individual is likely to be a risk, or at risk, in future. In this case, a mental health professional will do an application for assisted admission.
  • 4. Inform the nearest Mental Health or Social Service facility about the individual, who might decide to do a visit the individual to assess their mental state.
“The Involuntary Patient”

Generally, the tasks of the Police are:

If the Police has the belief that an individual is mentally unwell or severely intellectually impaired and is a threat to themselves or others through personal observation, or if informed by a mental health practitioner, then the Police are duty bound to apprehend that person and transport them to an appropriate mental health establishment.

In addition the health establishment can request the assistance of the Police to

  • 1. Transport patients between hospitals
  • 2. Locate, apprehend and return patients that have absconded from hospital

Such a person apprehended may be held in custody at a Police station, but not longer than 24 hours, before they have to be returned or transferred.

The use of constraining measures, if used, must be proportionate to the risk of danger and risk of absconsion.