Obtaining involuntary mental health care in the South African constitutional dispensation

Abstract

The history of mental health care in South Africa has come a long way from the flawed past, where individuals who suffered from mental disabilities were treated like criminals and where social problems were blamed on and confused with mental deviance. While positive policy changes have undoubtedly been brought about by the Mental Health Care Act 17 of 2002 (MHCA), the question remains whether effect is truly being given to the upholding of rights envisaged by this Act and by the Constitution of the Republic of South Africa, 1996 (the Constitution). While substantive issues are admittedly of cardinal importance, especially when viewed in the light of the past, due process is something which cannot be disregarded when dealing with involuntary mental health care. The aim of this contribution is to determine to what extent the MHCA upholds mental health care users' fundamental rights, as afforded by the Bill of Rights, specifically in the process of obtaining involuntary mental health care. This will be done against the background of the history of mental health legislation and its development in South Africa as well as the procedure by means of which involuntary mental health care must be obtained under current legislation. When scrutinising this procedure it will become clear that the MHCA requires the consideration of several factors when the decision concerning the provision of involuntary mental health care is made. It will subsequently become evident that the MHCA is transparent in terms of its procedure to obtain involuntary care, specifically regarding the administrative law aspect thereof, and that it provides sufficient procedural and substantive protection for mental health care users' rights, in accordance with the Constitution.