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THE MENTAL HEALTH CARE BILL Progress Problems and Ethical Issues Professor Tuviah Zabow President : South African Society of Psychiatrists. other significant affiliations :. Vice-President : World Association of Medical Law Chairperson : WPA Section on Psychiatry, Law and Ethics - PowerPoint PPT Presentation
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THE MENTAL HEALTH CARE BILL Progress Problems and Ethical Issues
Professor Tuviah Zabow
President : South African Society of Psychiatrists
other significant affiliations :
• Vice-President : World Association of Medical Law
• Chairperson : WPA Section on Psychiatry, Law and Ethics
• Convenor : International Centre of Mental Health Law
• Nominated WHO Consultant to Lesothu Mental Health Review Board
SOUTH AFRICAN LEGISLATION CHANGES:
Circular 28 of 1866 (British Colonial)
Natal Act 1 of 1868
Cape of Good Hope Act 20 of 1879(Dangerous Insane; Dangerous Idiot)
Lunacy Act 35 of 1891
OFS Act 4 of 1893
Transvaal Act 9 of 1894
Valkenberg Act 17 of 1894
Lunacy Act 1 of 1897(voluntary principle)
The Lunacy and Leprosy Laws Amendment Act 1914
Mental Disorders Act 1916
Amendment Act 7 of 1944
Amendment Act 37 of 1957
Mental Health Act 18 of 1973 and amendments ++
MENTAL HEALTH CARE LAW
TEN BASIC PRINCIPLES
1. Promotion of Mental Health and Prevention of Mental Disorders
2. Access to Basic Mental Health Care
3. Mental Health Assessments in Accordance with Internationally Accepted Principles
4. Provision of Least Restrictive Type of Mental Health Care
5. Self-Determination
6. Right to be Assisted in the Exercise of Self-Determination
7. Availability of Review Procedure
8. Automatic Periodical Review Mechanism
9. Qualified Decision-Maker
10. Respect of the Rule of Law WHO 1996
MENTAL HEALTH ACT REVISION PRINCIPLES
Process - psychiatrists vs law drafters (Law Commission)
Adaptation to available resources as applicable (compare to universal law aim)
Terminology user-friendly vs legal applications
Conflict of interests by curator ad litem concept of AG
Decrease in State powers and control
Move from Judicial/administrative controls to clinical review
Utilization of all mental health professionals
New concept of Mental Health Review Board
Care and admin of property of mentally ill
Recognising that the constitution prohibits the unfair discrimination of people withmental or other disabilities
Definitions
Objectives
Objections to present legislation include:
Malpractice in mental institutions nationally and internationally persists.
Both Mental Health Act and patients human rights are allegedly abused.
Allegations that the MHA protects the autonomy of psychiatrists andreinforces the non-transparent functioning of mental institutions.
Institutionalisation and stigmatisation in large psychiatric hospitals.
State's power should be restricted to emergency situations.
No need to legislate to improve the degenerated standards in facilities.
Revision aimed at:
Prolonged institutionalization and related practices.Involuntary hospitalisation.Protection of Human Rights.Control of certain "treatments".The rights of the mentally handicapped, children and patients in ForensicUnits.
OBJECTIVES OF THE MENTAL HEALTH ACT
Regulation of mental health environment
best possible mental health care
in the best interests of the user
correlation of access and provision of services integration of access and provision within general health services
Sets out rights and obligations of mental health users
Regulates access and provision of care and treatment
voluntary, assisted and involuntary users
state patients mentally ill prisoners
Regulates manner in which property of those with mental illness may bedealt with by court of law
Provides for any related matters
MENTAL HEALTH CARE ACT
Name changeAvailability of
suitable legal counselindependent psychiatristsprompt judicial hearingsfrequent reports on patient's condition and status especially in
need for continued hospitalizationEmphasis on
need for treatmentinability to make own decisionsreasonable expectation to benefit from careidentification of special groups of patients
Principles to includeindividual autonomydue process of the lawbeneficencedecreased coercionfamily involvement
Principle of Mental Health Review Board(MHRB)
DEFINITIONS
"Assisted care, treatment and rehabilitation"= the provision of health interventions with people not capable of making
informed decisions
"Assisted health care user"
"Associate"= a person with substantial and material interest in the wellbeing of the user
who is also in substantial contact with the user
"Head of health establishment"
"Health establishment"
"Involuntary mental health care user"
"Mental health care provider" (practitioner)
"Mental Health Care User"
"Mental illness"=a positive diagnosis of mental health related illness
PREAMBLE
Recognising that health is a state of physical, mental andsocial well being and that mental health services should beprovided as part of primary, secondary and tertiary healthservices;
Recognising that the Constitution of the Republic of SouthAfrica, 1996, prohibits the unfair discrimination of peoplewith mental or other disabilities;
Recognising that the person and property of people withmental disorders and intellectual disabilities, may at timesrequire protection and that members of the public and theirproperty may similarly require protection from people withmental disorders and intellectual disabilities; and
Recognising further that there is a need to promote theprovision of mental health care services in a manner whichpromotes the optimal mental well being of users of mentalhealth care services and the communities in which theyreside;
STATE'S RESPONSIBILITY FOR MENTAL HEALTH
Section 4 :
(a) ensures mental health care, treatment and
rehabilitation services are provided –
(i) at primary, secondary and tertiary levels,
specialised health establishments; and
(ii) in a manner that promotes the provision
community based care, treatment and
rehabilitation
(b)promotes rights and interests of users
(c) promotes and advances
CHAPTER III
RIGHTS AND DUTIES RELATING TO MENTAL HEALTH (PATIENT'S RIGHTS)
Section 8: RESPECT, HUMAN DIGNITY AND PRIVACY
Section 9: REQUIREMENT OF CONSENT FOR CARE, TREATMENT etc
Section 10: UNFAIR DISCRIMINATION
Section 11: EXPLOITATION AND ABUSE
Section 12: DETERMINATIONS CONCERNING MENTAL HEALTH STATUS
Section 13: DISCLOSURE OF INFORMATION (Confidentiality)
Section 14: LIMITATION ON INTIMATE ADULT RELATIONSHIPS
Section 15: RIGHT TO BE REPRESENTED
Section 16: DISCHARGE REPORT TO USER
Section 17: FULL KNOWLEDGE OF RIGHTS
SECT 27 : ASSISTED MENTAL HEALTH CARE USER"Incapable of making informed decision"
APPLICATION
<18 years - must be made by parent or guardian spouse, next of kin,
partner, associate, parent or guardian OR health care provider if
above not available (reason given) seen within 7 days
EXAMINATION AND REPORTS
by 2 mental health care practitioners (one qualified to perform
physical examination)
Head of Establishment if concurs sends copy to applicant
ADMISSION within 5days
REVIEW (MH RB) within 7 days
within 30 days
REPORT TO HEAD OF PROVINCIAL DEPARTMENT
Periodical Reports after 6 months and then annually to MHRB to Head of Establishment to Head of Provincial Department
Appeals; On recovery Voluntary
SECTION 33 : INVOLUNTARY MENTAL HEALTH CARE USERAPPLICATION
<18 years - must be made by parent or guardianspouse,next of kin, partner. Associate, parent or guardianOR Health Care Professional if above not availableMust have been seen in 7 days
EXAMINATION AND REPORTSby 2 mental health care practitioners(one to conduct clinical examination)Head of Establishment if consents informs Applicant in writing
ADMISSION (within 48 hours)72 hours ASSESSMENT ------------------------ inpatient OR outpatient
report to Applicant in 24 hoursREVIEW (MHRB) within 7 days
Reports to Head of Establishment within 30 daysCopies to Applicant and Head of Province Department
Registrar of High Court -> JudgeJUDICIAL REVIEW within 30 daysAppealsPeriodical Reports to Head of Establishment, MHRB and Head of Provinceafter 6 months and then annuallly thereafter
MENTAL HEALTH REVIEW BOARD
(1) At least 3 persons but no more than five persons
(2) Must be composed of at least :
(a) a mental health care practitioner
(b) a magistrate, attorney or advocate
(c) community member
CONSIDER APPEALS
REVIEWS AND REPORTS ON USERS
TRANSFERS TO MAXIMUM SECURITY WARDS
INTERVENTIONS BY SOUTH AFRICAN POLICE SERVICE
• Urgent admissions for 24 hours • abscondances -
transfer in “prescribed manner”• must comply with request• estimated level of dangerousness• may be held in custody “for
such time as may be necessary”
• “may use such constraining measures as may be necessary and proportionate in the circumstances”
JUDICIAL RULINGS may be required in :
decisions that unfairly discriminate
in blanket policies
in decisions not to provide services(resource allocations)
REGULATIONS ? Mental health care professional qualification
Surgical procedures or medical or therapeutic treatmentsdeemed dot be appropriate
Setting of quality standards and norms
Establishment of Maximum Security Hospitals
Seclusion and Mechanical Restraint
Facilities for State Patients and Mentally ill prisoners
Establishment of Child and Adolescent facilities
Rehabilitation and maintenance
Licensing of Health Establishments
RESTRICTION OF LIABILITY
• ? Limitation of professional liability
• ? “act in good faith”
• in present Act and earlier draft Bill
PROVISIONS FOR CERTAIN GROUPS
• Mentally handicapped/ intellectually impaired
• alcohol/drugs/ chemical dependency
• children and adolescents
• old age
CONCLUSION
Legislation must realise the promise of :
Transparency
Improved process of decision-making
Further the public's understanding
Control the widening of the state'spowers
Promote proper discretion in policycreation
Accountability for resource allocation