Medical Negligence & The Mental Health Act In South Africa
18 May 2022 The Star
Sections of the Mental Health Act were ruled unconstitutional by High Court.
Sections of the Mental Health Act that allowed the involuntary detention of patients, as occurred in the Life Esidimeni tragedy, have been declared unconstitutional by the Gauteng High Court.
Although the decision by Acting Judge PN Manamela (PM Attorneys), on 11 May 2022 in the North Gauteng High Court, Pretoria, might be too late for some, it should, however, help prevent a similar tragedy from occurring in the future.The matter will now go to the Constitutional Court for confirmation that sections of the Act are unconstitutional.
The ruling comes after the Makana People’s Centre, a civil rights organisation, took the health minister and provincial health MECs to the High Court, where it argued that 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, the group said.
Makana cited the Life Esidimeni saga as a result of the challenging sections. More than 140 mental health patients died in 2016 after the Gauteng government transferred patients from Life Esidimeni Private Hospital to various, mostly unregistered and inadequate NGO centres.
An inquiry chaired by retired Deputy Chief Justice Dikgang Moseneke concluded that the 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, nor were these reviews needed before and after the placement of the patients at Life Esidimeni.
The group also submitted reports pertaining to the deaths after the removals from Life Esidimeni.
The health minister argued the challenged sections did not infringe any rights because families of the detained patients had a right to approach the courts at any stage.
Acting Judge PN Manamela said: “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.
“The reports 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.”
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