Mental Health Care Act [No. 17 of 2002]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 449 Cape Town 6 November 2002 No. 24024
THE PRESIDENCY No. 1386 6 November 2002 It is hereby notified that the President has
assented to the following Act, which is hereby published for general information:–
No. 17 of 2002: Mental Health Care Act, 2002.


ACT To provide for the care, treatment and rehabilitation f persons who are mentally ill; to set out (different procedures to be followed in the admission of such persons; to establish Review Boards in respect of every health establishment; to determine their powers and functions; to provide for the care and administration of the property of mentally ill persons; to repeal certain laws; and to provide for matters connected tht:rewith.
PREAMBLE
RECOGNTSI.NG that the. Constitution o f the Republic of South Africa, 1996 (Act No. 108 of 1996), prohibits against unfair discrirnination of pecple with mental or other disabilities:
RECOGNISTIVG that the person and property of a person with mental disorders or mental disabilitizs, n~ay at times require protectim and that members of the p!lblic and their propertics may similx:y require protection from p2ople with menial disorders or mental disabilities; and
RECOGNISING further that there is a nced to promote the provision of mental health care services in a manner which promotes the maximum mental well-being o f users of mental health care services and communities in which they rcside;
B E IT TJEREFORE ENACTED by the Parliment of the Repuhlic of South Africa, as f0110~~s:- TABLE OF CONTENTS
- -
Section
CHAPTER I 5
4 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act No. 17, 2002 MENTAL HEALTH CARE ACT, 2002
5. Designation of health establishments administered under the auspices of State
6. Provision of mental health care, treatment and rehabilitation services at health :IS psychiatric hospitals or as care and rehabilitation centres
estahlishments
CHAPTER I11
RIGHTS A ND DUTIES RELATING TO MENTAL HEALTH CARE USERS
7. 8. 9.
10. 11. 12. 13. 14. 1s. 16. 17.
18. i9. 20. 21. 22. 23. 24.
Application of chapter Respect, human dignity and privacy Consent to care. treatment and rehabilitation and admission to health establishments Unfair discrimination Explmaitation and abuse Determinations concerning mental health status Disc,osure of information . - Limitation on intimate adult relationships Right to representation Discharge rzpolts Knowledge of rights
CHAPTER IV
MENTAL HEALTH REVIEW BOARDS
E$ablishmznt Powers and functions of.Xeview Board Composition o f Review Board Removal Vacancies Rernl.mzration Proctxhres of Review Board
CHAPTER V
25. 26.
27. 28. 29.
30. 31.
32. 33.
10
1s
20
25
Volmtary care, treatment and rehabilitation services . 30 Care, treatment and rehabilitation for mental health care users incapable of making informed decisions Application for assisted care, treatment and rehabilitation services Initial review of assisted mental health tal-e user by Review Board Appaul against decision o f head of health estahlishrnent to approve application 35 for xsisted care, treatment and rehabilitation Peric'dic re\ iew and annual reports on assisted health care users Recovery of capacity of assisted mental health care users to make informed dei-isions Care, tre;ttnlent and rehahilitation of rnentd health care users without consent 30 Applicatic>n to obtain in\,oluntary care, trealrnent and rehabilitation
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Act No. 17, 20082 MENTAL HEALTH CARE ACT, 2002
34. 72-Hour assessment and subsequent provision of further involuntary care,
35. Appeal against decision of head of health establishment on involuntary care,
36. Judicial review of need for further involuntary care, treatment and rehabilita- 5
37. Periodic review and annual reports on involtmtary mental health care users 38. Recovery of capacity of involuntary mental health care users to make informed
39. Transfer of mental health care users to maximum security facilities 40. Intervention by members of South African Police Service
treal ment and rehabilitation
treatment and rehabilitation
tion services
decisions 10
CHAPTER VI -
STATE PATIENTS
41. 42. 43. 44. 45. 46. 47. 48.
49. 50. 51. 52. 53. 54. 55. 56. 57. 58.
Dcsi gnation of health establishments for State patients Admission of State patients to designated health establishments 15 Transfer of State patients between designated health establishments State patients who abscond Leave of absence from designated health establishments Pericldic review of mental hcalth status of State patients Application for discharge of State patients 20 Conditional discharge of State patients, amendments to conditions or revocation of conditional discharge
CHAPTER VI1
MENTALJJY ILL PRISONERS
Dcsi!:nation of health establishments for prisoners who are mentally ill 25 Enquiry into the mental health status of prisoner Care. treatment and rehabilitation of prisoners with mental illnesses in prison hlagigterial enquiry concerning transfer to designated health establishments Proccd.;re to trlmsfer mentally 1!1 prisoners tu designated health establishments Transfer of mentally ill prisoners between designated health establishments 30 Periodic reviews of mental hcalth status of mentally ill prisoners Recovery of mental health status of mentally ill prisoners Mentally ill prisoners whv abscond from health establishments Procedure on expiry of term of imprisonment of mentally ill prisoners
CHAPTER VJII 35
CARE AND AUMINISTRATTON OF PROPERTY OF MENTALJAY I L L PERSON OR PERSON WITH SEVERE OR PROFOUND
INTEL1,ECTUAL DISABILITY
59. Appc'intment of administrator for care and administration of property of
60. Appl cation t o Master of High Court for appointment of administrator ment;diy i l l person or person with severe 01- profound intellectual disability 49
~~ --
8 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
61.
62. 63.
64. 65.
66. 67. 68. 69.
70. 71. 72. 73. 71. - - I>.
Recommendation to appoint administrator by High Court during an enquiry or i n course of legal proceeding Confirmation of appointment of administrator Powers, functions and duties of administrators and miscellaneous provisions relati~~g to appointment of administrators 5 Termination of administrator Administration of property of mentally ill minors or minors with severe or profound intellectual disability
CHAPTER IX
REGULATIONS
Regul ations Content of regulations Procedure for making regulations Conditions and exemptions contained i n regulations
CHAPTER X
GENERAL PROVISIONS
OPiences and penalties Establishment of advisory or technical committees Delegation and assignment of powers and agreements Repeal of laws ‘Transitional arrangements Short title and commencement
SCHEDULE
CHAPTER I
INTRODUCTION
Definitions
1. In this Act, unless the context indicates othcrwise-
10
15
20
25
“administrator” means a person appointed in terms of section 59 t o care for and ;tdminister the property of a mentally ill person and where applicable 30 includes an interim adlninistratur; “assisted care, treatment and rehabilitation” means the provision of health interventions to people incapable of making informed decisions due IO their mental hcalth status and who do not refuse the health intcrvenlinns and “assisted care, treatment and rehabilitation services” has a corresponding 35 meaning; “asskted mental health care user” means a person receiving ussisied care, treatment and rehabilitation; “associate” means a person with a substantial or material interest i n the v,ell-hcing o f a mental health c x e uscr or a person ~ b h o is in substantial 40 contt.ct \ V l t l I the user; “carme and rehabiiitation centres“ means heaith esrahiishn:cnls f t ~ ~ . ihe ct~Ie, t1-ea:rnent a n d rehabilitation of people \+pith intellectuxl disabilitiex: “Constitution” means the Constitution of the Republic of South Afl-ica. 1Y96 (Ac t NO. IOS of 1996); 45 “Correctional Services,%ct” means the Colrectional Scrvices Ad. ! W H (Ac t No. 11 1 o f 1098): “court” me;~ns a court of 1al.c;
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Act NO. 17,2002 MENTAL HEALTH CARE ACT, 2002
(ix)
(x)
(xi) (xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvi i )
(xviii)
(xixj
(XY)
( S X i )
(xxii)
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Act No. 17, 20K! MENT.4L HEALTH CARE ACT, 2002
(xxiii) (xxiv)
(xxv>
(xxvi) (xxvii)
(xxviii)
(xxix)
(xxx)
(xxxi)
(xxxii)
(xxxiii)
(xxxiv)
(xxxv)
(xxxvi)
(xxxvii)
‘‘Minister” means a Minister responsible for Health; “national department” means the National Department of Health services within the national sphere of government; “oflicial curator ad lifem” means the Director of Public Prosecutions of a province in whose jurisdiction theState patient is detained; . 5 “prescribed” means prescribed by regulation; “prison” means a prison as defined in section 1 of the Correctional Services Act: “property”, for purposes of Chapter VTII, includes income, finance, business or undertaking; 10 “provincial department” means the department responsible for rendering health services within the provincial sphere of government; “psychiatric hospital” means a health establishment that provides care, treat.ment and rehabilitation services only for users with mental illness; “psychiatrist” means a person registered as such in terms of the Health 15 Prof‘essions Act; “ps:ychologist” means a person registered as such in terms of the Ilcalth Prof’essions Act; “rehabilitation” means a process that facilitates an individual attaining an optimal level of independent unctioning; 20 “relevant member of the Executive Council” means a member of the Executive Council responsible for health i n a province; “Review Board” means Mental Health Review Board established in terns of s e d on 18; “severe or profound intellectual disability” means a range of intellectual 25 functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care; “social worker” means a person registered as such in terms of the Social 30 Senices Professions Act, 1978 (Act No. 110 of 1978);
(xxxviii) “State patient” means a person so classified by a court directive in terms of
(xxxxix) “this Act” includes the regulations; section 77(6)(a) or 78(6) of the Criminal Proccdure Act;
(xl) “voliuntary care, treatment and rehabilitation” means the provision of 35 health interventions to a person who gives consent to such interventions.
Interpretation
2. ( I ) This Act must be interpreted in a manner that is consistent with the objectives
(2) In the event of any conflict arising between this Act and any other law other than 40
- of this Act.
the Constitution, this Act must prevail.
.
CHAPTER I1
FUNDAMENTAL PROVISIONS
Objects of Act
3. ’Thc objects of this Act are to- . .- 45 ( (1 ) regulate the mentsl health care in a ~nanner that-
(i) makes thc best poscible mental health care, treatment and rehabilitation services available to the population equitably, efiicicntly and in the best
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___.____ .~
interest of mental health care users within the limits of the available resources;
(ii) co-ordinates access to mental health care, treitment and rehabilitation services to various categories of mental health care users; and
(iii) integrates the provision of mental health care services into the general 5 health services environment;
(h) regulate access to and provide m-ental health care, treatment and rehabilitation ' senices to-
(i) voluntary, assisted and involuntary mental health care users; (ii) State patients; and 10
(iii) mentally ill prisoners;
obligations o f mental health care providers; and
persons with severe or profound intellectual disability may he dealt with by a 15 court of law.
(c) clarify the rights and obligations of mental health care users and the
(d) regulate the manner in which the property of persons with mental illness and
Implernentatiion of policies and measures by State
4. Every organ of State responsible for health services must determine and cn-ordinate the imDlementation of its uolicies and measures in a manncr that---
ensures the provision of mental health care, treatment and rchabilitation 20 services at primary, secondary and tertiary levels and health establishments refe'Tcd to in section 5( 1); prolnotes the provision of community-based care, treatment and rehabilitation services; prornotes the rights and interests o f mental health care users; and 25 promotes and improves the mental health status of the population.
Designation of health establishments administered under the auspices of State as psychiatric hospitals or as care and rehabilitation centres
5. ( 1 ) The head of the national department must, nith the concumnce of thc head of the relehant provincial department within 120 days of the commencement of this Act, 30 designate heaitin establishments or part of a heairh establishment which must serve as-
(a) psychiatric hospitals; or (b) care and rehabilitation centres.
(2) A dcsigmtion referred to in subsection ( 1) m a y at any time be revoked or varied by the head o f the national department with the concurrence of the head of the relevant 35 provincial department.
Provision of mental health care, treatment and rehabilitation services at health establishme!l!:s
6. (1 ) Health establishments must- (.) pro\ ide any person requiring mental health care, treatment and rehabilitation 40
services with the appropriate lcvcl of mental health care, treatment m d rchabilitation services within its professional scope of pr : 1. c t ' Ice: or
(22) refer such person. xcording to established referral and ximission routes, to a health establishment that provides the :Ippropriate level of mental care, tre;1tment and rehabilitation serviccs. 45
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l lct NO. 17, 2002 MENTAL HEALTH CARE ACT, 2002
(2 ) A hcalth establishment may not cause a mental health care user to receive psychiatric mc1.lication for more than six months unless authorised by a mental health care practitioner who is designated to provide medication and review psychiatric treatment.
relevant pro\:incial departments in respect of health establishments designated in tenns of section 5( 1 j , determine the nature of the care, treatment and rehabilitation services to be provided at every establishment so designated.
(4) A hcs!th chtahlishment providing inpatient secondary level care and treatment may not admit a mental health care user for more than two months unless authorised by 10 a mental health care practitioner in charge of that part of the health establishment.
(5) Tertiary level nlental health care, treatment and rehabilitation services may be provided at a tertiary health establishment or a psychiatric hospital designated in terms of section 5( I)
(3) The head of the national department must, with the concurrence of the heads of the - 5
( 6 ) Psychiatric hospitals may admit, care for, treat and rehabilitate- 15 wluntary mental health care users in special programmes; assist-ed mental health care users; involuntary mental health care users; State patients; mentally ill prisoners; 20 persons referred by court for psychiatric observation in terms of the Criminal Proct:dure Act; and persons admitted for a long period as part of their care, treatment and rehabllitation.
(7) Care and rehabilitation centres may- 25 (a ) conduct assessments of intellectual abilities; and (h j provide care, treatment and rehabilitation services to persons with severe or
profound intellectual disabilities, including assisted and involuntary mental hralth care users.
(8) Persons providing care, treatment and rehabilitation services must provide such 30 services i n a mmm that facilitates community care of mental health care users.
CHAPlER 111
Application 01' chapter
7. (1) The rights and duties of persons, bodies or institutions set out in this Chapter are 35
(2) In exc rc ihg the rights and in performing the duties set out in this Chapter, regard in addition to any rights and duties that they mayhave in terms of any other law.
must be hat1 for what is in the best interests of the mental health care user.
Respect, human dignity and privacy -
X. (1) Thc pt-rson, human dignity and privacy of every mental health care user must 40 be respected. : > (2) EWI-Y mental health c x e user must be provided with care, treatment and
rehabilitati~n 5ervict.s that 1n:prove the mental capacity of the user to develop to full potential and t o facilitate his or her integration into community life.
care user nllist be proportionate to his or her mental health status and may intrude only as little ;IS p o b d l e to give effect to the appropriate care, treatment and rehabilitation.
( 3 ) The CUC', treatment and rehahilitation services administered to a mental health 45
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Act No. 17,2002 MENTAL HEALTH CAKE ACT, 2002
Consent to care, treatment and rehabilitation services and admission to health establishments
9. (1) A health care provider or a health establishment may provide care, treatment and rehabilitation services to or admit a mental health care user only if--
the user has consented to the care, treatment and rehabilitation services or to 5 admission; authorised by a court order or a Review Board; or due: to mental illness, any delay in providing care, treatment and rchahilitation services or admission may result in the- (i) death or irreversible harm to the health of the user; 10
(ii) user inflicting serious harm to himself or herself or others; or (iii) user causing serious damage to or loss of property belonging to him or
(2) Any person or health establishment that provides care, treatment and rehabilitation her or others.
services to a mental health care user or admits the user i n circumstances referred to in I5 subsection (l)(c)-
(u) must report this fact in writing in the prescribed manner to the relevant
(b) may not continue to provide care, treatment and rehabilitation services to the Review Board; and
user concerned for longer than 24-hours unless an application i n terms of 20 Chapter V is made within the 24-hour pcriod.
Unfair discrimination
10. (1) A mental health care user may not be udairly discriminated against on the
(2) Every :mental health care wx must receive care, treatment and rkh:lbilitation 25 grounds of hi.; o r her mental health status.
services according to standards equivalent to those applicable to any other health care user.
(3) Policies and programmes ailncd at promoting the mental health datns of a person must be implcmented with regard to the mental capacity of the person concerned.
'Exploitation and abuse 30
11. (1) Evel-y person, body, organisation or health establishment providing care, treatment and rehabilitation services to a mental health care user must take steps to ensure tha-
(u) users are protected from exploitation, abu?e and any degrading treatment; (h) users are not subjected to forced labour; and 35 (c) care, treatment and rehabilitation services are not used as punishment or for
(2) A person witwssing a::y f c rn ~f abuse set out i!: subsection (1) .gaitst a mental the confenience of other people.
health care user must report this flct in the prescribed manner.
Determinations concerning mental health status 30
12. (1) Any determination concerning the mental health status of any person must be bawd on factors exclusively relcvmt to that person's mcntal health ctatus or, for the
20 K O . 21024 GOVI-RNMENT GAZETTE. 6 NOVEMBER 2002
purposes of giving eCfect to the Criminal Procedure Act. and not on socio-political or economic status, cultural or reliiious background or afiinity.
( 2 ) A dcterm nation concerning the mental health status of a user may only be In:& or referred to for purposes directly relevant to the mental health status of that user.
Disclosure of information 5
13. (1) A person or health establishment may not disclose any information which a mental health care user is entitled to keep confidential i n terms of any other law.
(2) Despite subaection (1); the head of the national department. a head of provincial department or the head of a health establishment concerned may disclose such infolmation if failure to do so would seriously prejudice the health of the mental health 10 care user or of (other people.
(3) A mental health care provider may temporarily deny mental health care users access to information contained in their health records, if disclosure of that information is likely to-
( a ) seriously prcjudice the user; or 1.5 (0) cause the user to conduct himself or herself in ;t manner that may seriously
prejudice him or her or the health of other people.
Limitation on intimate adult relationships
14. Subject to conditions applicable to providing tal-e, treatment and rehabilitation services in health establishments, the head of a health establishment may limit intimate 20 relationships of adult mental health care users only if duc to mental illness, the ability o f the user to consent i s diminished.
Right to repre,sentation
15. (1) A mcntal health care user is entitled to a representative, including a legal representative, when- 2.5
(a ) submitting an application; (0) lodgi!lg an appeal; or (c) appexing before a magistrate, judge or ;I Review B ~ a r d , subject to thc laws
govcrning rights of appearanccs at a court tot' law. (2) An indiFtnt mental health care user is entitled to legal aid providcd by the State in 30
respect of any proceeding instituted or conducted in terms of this Act subject to any condition fixed in terms of section 3(dj of the Legal Aid Act, 1969 (Act No: 22 of 1969).
Discharge reports
16. The Ilcaci of' a health establishment must, in a prescribed form, issue 3. discharge repc~rt to the user who was adnittcd fc;r p u ~ o s e s ~f rece:v~ng c x e , treatment a ~ c ! 3.5 rehabilitation xn.iccs.
. .
Knowledge of rights
17. Every h~al t i l care p1uvider must, before ndlniniqtering any care. treatlncnt anti 1-ehabilitation wviczs , inform a lncntal health care L I W ~ i n an appropriate manner of his o ~ ' her rightc. Imless the user- has heen admitted rlndcr circumstances refen-ed to in 40 section 9( I ) ( ( , j
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.\et No. 17, 2002 MEN’rAAL HEALTH CARE ACT, 2002
CHAPTER IV
MENTAL HEALTH REVIEW BOARDS
Establishment
18. (1) A member of the Executive Council responsible for health services in a province must, after consultation with the head of the provincial department concerned, S establish a Rcview Board in respect of every health establishment providing mental health care, trt:atment and rehabilitation services in that province.
(2) The Review Board referred to in subsection (1) may be established. for a single, a cluster or all health establishments providing mental health care services in that province. I O -
(3) The relcvant provincial department must, subject to the laws governing public service--
(a) appoint. second or designate persons in its-employ; and (0) mak: availabkother resources,
to the Review Board to enable it to perform its administrative functions. 15
Powers and functions of Review Board
19. (1) ‘The Review Board must- consider appeals against decisions of the head of a health estdblishment; n1akc decisions with regard to assisted or involuntary mental health care, treatnlent and rehabilitation services; 20 consider reviews and make decisions on assisted or involuntary mental health care LISCI’S; consider 72-hours assessnlent made by the head’of the health establishment and make decisions to provide further involuntary care, treatmcnt and rehabilitation; 25 consider applications for transfer of mental health care USCI-s to maximum security facilities; and consider pertodic rcports on the mental health status of mentaily ill c vsoners. ‘
- (2) . The Review Board may, when performing its functions, consult or obtain t.epresentatiol1~. fr& any person, including a person or body with expertise. 30
Composition of Keview Board
20. (1) I’he lie\,iiew Board consists of no fewer than three persons and no more than five persons who are South African citizens appointed by the relevant member of the Executive Council in each province.
(2) The Re\ iew Board must at lenst consist of a- -3 s (u) mcntal health care practitioner: (/I) magistrate, an attorney or an advocate admitted in terms of the law of the
(cj nxmhcr o f the community coricerned. Repuhlic; and
(3) Before appointing any person 1-eferred to in subsection ( I ) , the relevant member of 10 the Executive Council must--
( a ) by rwtice in the Pmvinrid &ury ;?rrangements arc made with the :tppropriate health
establishment to eifect t ! x transfer.
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Act No. 17, 2002 LIENTAL IHEAI~TlT CARE ACT, 2002
(5) T h e head of a health establishment in which a mentally ill prisoner is detained may, with the concurrence of the head o fa health establishment with maximum security facilities, effect a transfer to such health establishment pending an order by the relevant Review Board if the conduct of the mental health care user has or is likely to give rise to an emergency. 5
(6) Whenever a transfer is effected in terms of this section- ( a ) the pxson or b6dy ordering the transfer must, in writing within 14 days ofthe
transfer. notify the head of the prison where the pl-isoner is detained of the dztails of the transfer; and
(b) the head of the heaith establishment receiving thementally ill prisoner- 1 0 ( i ) is regarded as having lawful custody of the prisoner concerned only upon
( i i ) is thereafter responsible for the safe custody of the prisoner. r-cceiving the prisoner; and
Periodic reviews of mental health status of mentally ill prisoners
55. (1 ) The head of a health establishment in which a mentally ill prisoner is detained 15 mud canse the ITleIlkil health shdlus of that mentally ill prisoner to be reviewed every six months from thc date on which the prisoner was received in that health establishment.
(2) The revicw must- (u ) specify the mental health status of the mentally ill prisoner; and ( b ) set out recommendations regarding- 20
(i) a plan foor further care: treatment and rchabilitation services for the
.(ilj lhe merits of returning the mentally i l l prisoner to the prison from which incntally ill prisoner; and
1 he plisoner \vas initially transferred. (?)The head of the health emblishment must submit a summary report of the review 25
to the- (u) Rc\it:w Boa~-d; (0) relevant magistrate; (c) achini\trator, i f appointed; and (dj hend of the. relevant prison. 3 0
(a) m a y consult uith any person who may have information concerning the
(b) l1;ust make I-ecommendations regarding-
(1) Witllin 30 days aftel- receipt of the report, the Review Board-
mental ctatus of the prisoner concerned:
( i ) ;I plan for further care, treatment and rehabilitation of the mentally ill 35
( i i ) [he return of that prjsoner to the prison from which the prisoner was
(c) nlust .;eIIJ a written notice of its reconmendation and the reasons for such rccolnlncndation t o the mentally ill prisoner, the administrator if appointed, 40 tile l ~ i ~ , ~ f i 1 I L L 4 U ,>q \,I the :-.!e\.ant health es!ahlis!xnent, the head of the national pa^ t m n t and the magistrate concelncd.
prisoner concerned: and
i nitially transferred; and
(b) notify the relevant magistrate and the head of the prison within 14 days of having notified the South African Police Service.
(2) The South African Police Service must comply with the request. (3) If the mentally ill prisoner is considered dangerous, the head of the health
establishment must notify the South African Police Service. (4) A mentally ill prisoner apprehended must be held in custody for such period as
prescribed to effect a return. (5 ) A member of the South African Police Service may use such constraining
measures as may be necessary and proportionate in the circunlstances when apprehending a person or performing any function in terms of this section.
Procedure on expiry of term of imprisonment of mentally ill prisoner
5
1 0
58. (1) A mentally ill prisoner must, subject to subsections (2) and (3) , be released from prison or a health establishment designated in terms of section 49 at which the prisoner is detained on expiry of the term of imprisonment to which that prisoner was sentenced.
(2) 4 t least 90 days before cxpiry of the term of imprisonmerlt, an application may be made according to the relevant provisions in Chapter V to the head of the health establishment i n which the mentally ill prisoner is detained for the provision of assihted or involuntary care, treatment and rehabilitation, as. the case may be, of the prisoner.
be made to a lnagistrate for the continued detention of a mentally ill prisoner in the designated hr;llth establishment where such prisoner was cared for, treated and rehabilitated pt:nding the finalisation of-the application referred to in subsection (2).
15
(3) At least 3,O days before the expity of the term of imprisonment, an application may 20
CHAPTER VlTI
CARE AND ADMINISTRATION OF PROPERTY OF MEXTALLY ILL 25 PERSON OR PERSON WITH SEVERE OR PROFOUND
INTELLECTUAL 1)ISARILITY
Appointment of administrator for care and administration of property of mentally ill person or person with severe or profound intellectual disability
59. (I) A Master of a High Court may appoint an administrator to care for ind 30 administer the property of a nlentally ill person or person with severe or profound intellectual disability on consideration and processing of-
(u) an application submitted in terms of section 60; or (b) a n order made by a High Court after an appeal or an enquiry referred to in
section 60 or 61, respectively, stating that such person is incapable of 35 managing his or her properly and that an administrator be appointed. .
(2) An administrator may only be appointed in respect of the property of a mentally ill person or pcrson with severe or profound intellectual disability if the proccdures set out in section4 60 or 61 have been complied with.
Application to Master of High Court for appointment of administrator I '10
60. (1) Any person over the age (jf 18 may applp to a Master of a'High Court for the :lppointment o f an administrator for a mentally ill person or persol1 with severe o r profound intellectual disability.
( 2 ) The applicaticjn must he made in writing. ~mder oath or solemn nftirmation and must- 45
(0, be[ out the reiariunship of the icpplic.,lnt to that person and-- (i) . f rhc applicant is not a spouse or nzxt of kin of that person, thc ~ c n v m
~ ~ v h y the spouse oI next of kin did not make the application; ar1d
(ii) i f they are not available to make the application, what steps were taken to
include all available mental health related medical certificates or reports relevant to the mental health status ofthat person and t o his or her incapability to m,mage his or her prop rty; 5 set out the grounds on which the applicant bclievcg that such person is incapable of managing his or hcr property; state that, within seven days immediately before submitting the application, the applicant had seen that person; state the particulxs of that person and his or her estimated property value and 10 annual income; and give the particulars and contact details of persons who may provide further information relating to the mental health status of that person.
establish their whereabouts before making the application;
(3) The applicmt must attach proof that a copy of the application has been submitted
(4) The Master of the High Court may, after considering the applicationr to the mentally ill person.
(a) appoint an interim administrator pending the outcome of the investigation
( h ) appoint an administrator without conducting such investigation, if- refemd to subsection ( 5 ) ; or
(i) the estimated property value and annual income of that person i s below
(ii) satisfied that sufficicnt good grounds exist to make the appointment. the prescribed amount; and
( 5 ) The Master of the High Court must, within 30 days of receipt of the application, cause an investigation into rhe merits of the application to be conducted by a suitably qualified person, if--
(a) certain allegations in the application require confirmation; (0) further information is required to support the application; or (c) the estimated property valae and annnal income of that person is above the
prescribed amount. (6) The person conducting the investigation-
(u ) must confirm all allegations and facts contained in the application and call on
(h) may-- that person or his or her legal-representative to respond to the application;
(i) sumnmn any person to appear befwe him o r her to providc information ,and documents relevant to the application; and
(ii) tenquire into the financial position of that person: and (c) must submit a report on his or her finding to the 3Llaster of'the High Court.
(7) The investigation must be finalised within 60 days of being instituted or such
(3) The hlasl.er must, within 14 days after considering the report-- extended periods as may be granted by the Master.
( a ) appoint an administrator: (0) decline to appoint an administrator; or (c) reier the matter for consideration by a Iiigh Court Judge in chambers.
(9) The h l w e r must, in writing, inform the appiicant and the mentaiiy ii l person o r person with severe or profound ii~tcllectual disability of his or her dccision and the reasons thereof.--
(1 0) The applicant, mwtally ill person or person with severe or p f o u n d intellectual disability may, within 30 days of receipt of the written notice, appeal against the decision of the Llastcr by suhmitting a written noticc of appeal to LI f€iFh Court Judge i n chambers and 3. copy to the hlastel- setting out thc grounds of the appeal.
(11) If the Master refers the application for the conbideration by a High Court Judge i n chamhers. 01- i-ec.cives a c q y ofrhe h1-itiei: notice 0 1 appeal, he or she must, wi th in I3 days, submit t o thz-High C o r 1 I - t J u J Z r in chalnbcrs a copy of---
((!) t1.e L""3'lic'-tiQ". ( 1 7 ) ;I wt-iItcn sumnlal-y 6f his o r her findings; ( c ) a I - c p r t on the investigation i n tern1.s of iubsection (5j, it conducted; ( (1) the wasons for declining the application ~r for referring the application to the
'i r
High Court Judge i n chanlhc?s; and
64 No. 24024 GOVEKNMENT GAZETTE, 6 NOVEMBER 2002
Act h'n. 17, 9002 AlliNTAL IfEALTH CARE ACT, 2002
( e ) the notice of appeal by the applicant, in the case of an appeal. (13) The High Court Judge i n chambers must, within 30 days of receipt of the relevant
(a ) consider the application or appeal, as the case may be, in the appropriate documents-
manner, including providing the- 5 (i) appellant or applicant, as the case may be;
(ii) independent mental health practitioners, if any; and (iii) head of the relevant health establishment, with the opportunity to make oral or written representations on the merits of the application or appeal; 10
(b) make a recommendation; and ( c ) send a written notice of the recommendation to the relevant Master of the
lfigh Court, the head of the relevant provincial department and the persons referred to in paragraph (u)-
(1 3 j The hla:jter must, within 60 days of being notified of the recommendation by the 15 High Court judge in chambers, cause-an investigation to be conducted to determine a suitable candidate to be appointed as administrator for the person concerned and appoint the admini\trator.
(14) The coj1.s for conducting the investigation referred to in subsections (5) and (1 3) must be-- 20
( ( 1 ) paid Out of the estate of the mentally ill person or if the Master or the High. (hur l . judge in chambers is of the view that the application was trivial or vexdtiaus, out of the property of the applicant; and
( b ) deter111ined by the Master after consultation with the person conducting the investigation. 25
Recommendation to appoint administrator by High Court during enquiry or in course of iegal proceeding
61. ( I ) Jf a High Court, when conducting an enquiry in terms of this Act or during any legal proceeding, has reason to believe that a person in respect of whom an enquiry or legal proceeding is held or conducted may be incqahle of managing his or her property, 30 the High Cout-t may. as p t o f that enquiry or proceeding, initiate an investigation into the mental health status of that person and his 01- her capacity to manage h i s or her property.
(2) The High Court may, when conducting such investigati0n;request for further information f r - o m any relzvant person as may be necessary for purposes of establishing 35 the mental healh status of the person concerned and the capacity of that person to manage his o r hcr property.
(3) If on completion of the investigation, the High Court finds that the mental health status of the person concerned is of such-a nature that such person is incapable of ~nanaging Ilia or her property, the High Court may- 40
(a ) rccornrnend that an administrator be appointed in respect of that person; and (bj in writing, notify that person and a Master o f a High Court of the finding and
(4) The Master of the High Court must, within 60 days of the notice by the High recomrnzndation and the reasons thereof.
court- 45 ( a ) cause an investigation to be conducttx-
( i j into the cstilnated property value and annual income of the person
( i i ) to determine ;1 suitable candidate to'be appointed as administrator for that
( h j appoi::t d n ;>d~ninih~rator, ifthe estimated property value and annual income of
(5)Thc. cos ts l'ur conducting rhc in\c.stigation referred to in subscction (4) must he--
mncerned: 2nd
pe~'sOl1; and - 5 0
the pt:rson concenled is below the prescribed amount.
( a ) paid 0111 o f the est;lte o t the mentally ill person; and ( / I ) derzr1nint.d by the L l u ~ t e r after consultation w i t h the person conducting the 55
invc.s:ig;ltion
Confirmation of appointment of administrator
62. A n appointment of an adriiiljistiator is cffec:ivc fram the date Oil which A Master of a High Court qigns an official nntide of such appointment.
66 No. 24024 GOVERNMENT GAZETTE, 6 NOVEhlBER 2002
Act No. 17, 20012 MENTAL HEALTH CAKE ACT. 2002 --
Powers, functions and duties of administrators and miscellaneous provisions relating to appointment of administrators
63. (1 ) (a) An administrator must, before a Master of a High Court signs an ()%cia1 notice Of appointment, lodge security with the relevant Master of the High Collrt of an amount to be determined by the Master.
(0) The Master may, on good cause shown by the administrator- 5
(i) red.uce the amount of security required; or (ii) dispense with security.
(2) If the Master at any stage- fa) becomes aware that sequestration proceedings against the administrator have 10
(0) has reason to believe that it is in the best interest of the person in respect of commenced or are likely to be instituted; or
whom the administrator has been appointed, he or she may-
(i) increase the amount of security to be paid by that administrator, or 15 (ii) app'uint a co-administrator, and all acts relating to the property of the person
concerned must be done with the consent of both administrators. (3) An administrator has powers and functions to-
(a) take: care of and administer the property of the person for whom he or she is
(h ) carry on any business or undertaking of that person subject to any other law.
(a) may not alienate or mortgage any inmovable property of the person for whom he or she is appointed unless authorised to do so by a court order or with the consent of the rel vant Mastep of the High Court; and 25
(0) his or her spouse, child, parent, partner, associate or agent may not purchase or otherwise acquire any property of that person unless-- (i) with the consent of the relevant Master; or
(ii) the purchase or acquisition was, in writing, legally authorised by that
( 5 ) An administrator must, immediately after his or her appointment, pay all moneys received on bellalf of the person he or she is appointed for into the hands of the relevant Master of the High Court, unless-
appointed and perform all functions ncidental thereto; and 20
(I) An administrator-
person before that administrator was appo nted. 30
(a) the Master directs otherwise; (0) a legal document of that person made before the administrator was appointed, 35
authorises otherwise; or (c) the money is required to--
(i) repay of any debt; (ii) pay expenses relating to the safe custody of the property of that person;
(iii) maintain or educate that person or his or her dependants; or 40 (iv) p;iy for the current expenditure of' the business or undertaking of the
person.
Termination (of administrator
64. (1) The term of office of an administrator appointed in terms of this Act may only be terminated on consideration of an application made by- 45
(a) a person in respect of whom the administrator was appointed; (b) that administrator; or (c) the person who made an application for the appointment of the administrator
concerned. (2) The applic, d t - Ion must- 50
( a ) be made by way of a written ailidavit; (0) he sent t o n Master of 3 High Courr; and ( c ) contain-
(i) the grounds 011 which the application is based; lii) all medical certifica:es or reports relevant to the mental health status of 55
the person concerned issued suhscquent to the appointment of t h a t administrator; and
(iii) the estimated property value of that perwn at the time of submitting the application.
68 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act No. 17,2002 MENT.4L HEALTH CARE ACT, 2002
(3) The Master of the High Court must, within 14 days of receipt- of the application- ( a ) terminate the appointment of the administrator; (0) decline the application; or (c) refer the matter for the consideration by a High Court judge in chambers.
(4) If the Master of the High Court terminates such appointment or declines the 5 application to terminate, he or she must, in writing, notify the applicant of the decision and reasons thereof.
( 5 ) If the Master of the High Court declines the application or refuses to refer the application for consideration by a Nigh Court Judge in chambers, the applicant may, within 30 days of receipt of the notice referred to in subsection (4), appeal against the 10 decision of the Master-
(a ) by submitting a written notice of appeal to a High Court judge in chambers; (b) setting out the grounds'of the appeal; and (c) submit a copy of the notice to the Master.
(6) The Master of the High Court must, within 14 days after receipt of an appeal in 13 terms of subxection ( 5 ) or after eferring an application to a High Court for consideration, submit to the High Court ;1 copy of-
(a ) the application; (b) a written summary of his or her findings; ( c ) the reasons for refusing the application or for referring the application to the 20
High Court, as the case may be; and fd) the notice of appeal, in the case of an appeal.
(a ) consider the application or appeal in the prescribed manner, as the case may be; 25
(b) provide the- (i) appellant:
(ii) relevant administrator; (iii) independent mental health practitioners, if any; and (iv) head of the health establis ment, 30 the opportunity to make oral or written representations on the merits of the application or appeal; and
(c) in writing, notify the appellant, administrator, head of the health establishment concerned and head of the relevant provincial department of his or her decision and the reasons thereof. 35
(7) The High Court must, within 30 days of receipt ol' the relevant documents-
Administration of property of mentally ill person or person with severe or profound intel,lectual disability
65. In addition to this Chapter the provisions of sections 75,78,79, 83, 84 and 85 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), with the necessary changes, apply to any administrator appointed in respect of a mentally disablcd person. 40
CHAPTEK IX
REGULATIONS
Regulations
66. (1) The Minister may, after consultation with all relevant members of the Executive Council. make regulations on- 45
( a ) surgical procedures or medical or therapeutic treatment for mental health care
( h ) settirg o f quality standards and norms for cxc , treatment and rchabilitation of
(c) establishnient of maximum security facilities for mental health care users; SO (d) seclusiun of mental healrh care USCJS and use of mechanical means of
( e ) establishn~rnt of facilities 1.01- State patients and mcntally i l l primlcrs; (s) obserm1ion. detention, care. treatment and rehabilitation of mental health care
users;
Inentd ilculth care users:
restraint:
- users referred to a health establishment by a court of law; 5s
. -
70 No. 2402'1 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act No. 17, 7002: MENTAL HEALTH CARE ACT, 2002 -
expi-,diting the processing of applications referred to in Chapter V, establishment of child, adolescent and geriatrics facilities to promote their mental health status and their admission, care, treatment and rehabilitation at health establishments; establishment and implementation of educational programmes for mental 5 health care users admitted at health establishments; discharge or leave of absence of mental health care users on their recovery or on the application from spouses or associates; transfer, removal and transportation of mental health care users to a health establishment and the assistance by members of the South African Police 10 Ser1;ice in effecting a removal or transfer and conditions to be attached to such removal or transfer; hoolts and records which must be kept at a health establishment in respect of a mental health care user and the entrics which must be made therein, including the accounts, returns, reports, extracts, copies, statements, notices, 15 documents and information which must be sent to the Minister; payment of maintenance costs and expenses incurred in connection with the tran:jfer, detention. care, treatment and rehabilitation and maintenance of any mental health care user in health establishments administered under thc auspices of State; 20 estimated property value and annual income of a mentally ill person or person with severe or profound intellectual disabiiity in respect of whom an administrator may be appointed; authorisation and licensing of health establishments administered under the auspices of State, 8 non-governmental organisation or private body providing 25 mental health care, treatment and rehabilitation services and conditions to be attached to such authorisation or licence; matters concerning the powers, functions, guidelines for cxercising these powers and functions and reporting obligations of a Review Board; care.. treatment and rehabilitation of mental health care users with specified 30 infectious or communicable diseases; the ]period Lvithin which mental health care users may be kept i n Po!ice custody; and any matter necessary or expedient in order to achieve the objectives of this .4ct. 35
Content of regulations
40
67. (1) A re!;ulation made under this Act may- (u) confer powers or duties on any person, body or public authority; (h) contain conditions and provide for exemptions; or ( c ) be i n respect of different-
(i) parts of the Republic; or (ii) categories of persons.
(2) The Minister may, in any regulation made under this Act- ((2) designate as authoritative any published methodology, procedure, piactice or
stanclard that is generally recognised as authoritative within the relevant profession: and
(0) require m y person or body to comply-with that designated methodology, procr:dure, practice or standard.
45
12 No. 24024. GOVERNMENT GAZETTE, 6 NOVEh4BER 2002
Act No. 17,2002 MENTAL IIEALTH CAKE ACT, 2002
Procedure for making regulations
68. (1) The Minister must, before making or amending regulations under this Act--- (u) by notice in the Gazette, publish his or her intention to make regulations; (h) state: in the notice-
(i) that draft regulations have been developed for comment; and 5 (ii) where a copy of the draft regulation may be obtained;
(c) allow at least 30 days period for comment; and (d) consider comments received.
(2) At any time before issuing regulations, discussions and consultations may be held with any intersested group. I O
(3) Subsection (1) does not apply- in respect of- (a) any regulation which the public interest requires to be made without delay; or (b) an amendment to correct a textual error.
(4) Any regulation regarding State revenue or expenditure must be made with the
( 5 ) Any reglulation regarding the South African Police Service must be made with the
(6) Any regulation regarding education must be made with the concurrence of the
(7) Any regulation regarding the terms and conditio& of a person employed by the 20
concurrence of the Cabinet member rcsponsible for finance. 15
concurrence of the Cabinet member rcsponsible for safety and security.
Cabinet member responsible for education.
national department, a provincial department or district health authority or any labour relations matter, must be made with the concurrence of the Cabinet member responsible for public service and administration.
(8) Any re;gulation regarding the appointment of an administrator including the threshold amounts for the appointment of a Master of a High Court as administrator and 25 conditions for such appointment, must be made with the concurrence of the Cabinet member responsible for justice and constitutional development.
Conditions and exemptions contained in regulations
69. (1) The Minister may, at any time by notice in the Gazette with regard to any institution. person, body, or organisation- 30
( n ) impose. \,ary or withdraw any condition in a regulation; or (b) grant, vary or withdraw an exemption in a regulation.
(2) The Minister may not vary or withdraw any condition or exemption made under this Act unless a person or body alfected made representation to that elfect.
CHAPTER X
GENERAL PROVISIONS
Oeences and penalties
3s
70. (1) Any person w h e (a ) misrcpresents a fact in any application, report, record, certificatc; jb) obstructs or hinders any person in h e performance of his or her functions; 40 (c) neglects, abuses or treats a mental health care user in any degrading manner or
allo~~vs the user to be treated in that manner; ( d ) assi:jts or incites a mental health care user-
(i) to abscond from a healrh establishment at which he or she is admitted; or
74 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act No. 17, 2002 MENTAL HEALTH CAKE ACT, 2002
(ii) not to comply with any care, treatment and rehabilitation plan or terms of
(e ) refuses to furnish information or provides false information to a member of the South African Police Service about the whereabouts of a mental health cas-e user who has absconded or is deemed to have absconded, 5
a leave of absence or conditional discharge; or
under this Act, is guilty of an offence. (2) Any person who is found guilty of an oft'ence under this Act is liable on conviction
to a fine or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
Establishment of advisory or technical comm ttees 10
- 71. (1) The Minister may appoint an advisory or a technical committee in order to .
(2) When appointing an advisory or a technical committee, the Minister may, by achieve the objectives of this Act.
regulations, determille- (a) the composition, functions, and working procedure of the committee; 15 (b) the terms, conditions, remuneration and allowances applicable to members of
such committee with the concurrence of the Cabinet member responsible for finance; and
(c) any other incidental matter.
Delegation and assig me t of powers and agreements 20
72. (1) (a) The Minister may, in writing, delegate any power conferred on him or her by this Act or any other law to any-
(i) pcrson in the employ of the State; or (ii) board or body established under this Act,
except the powers referred to in section 66. 25 (b) The relevant member of the Executive Council may. in writing, delegate any
power conferred on him or her by this Act or the Minister to any person or body referred to in paragraph (a).
(2) A person or body to whom any power is delegated m a y exercise that power subject to the direction of the Minister or relevant member of the Executive Council. 30
(3) 'The Ministcr or relevant member of the Executive Council may, at any t:me- (a) withdraw a delegation made under subsection (1); or (b) withdraw or amend any ,decision made in the exercise of such delegated
power. (4) A decision made in the exercise of any delegated power, unless withdrawn or 35
amended, is deemed to have been made by the Minister or relevant member of the Executive Council, as the case may bz.
(5) Any right or privilege acquired or any obligation or liability incurred as a result of a decision made in terms of a delegated power referred to in subsection (1) cannot be affected by any subsequent withdrawal or amendment of that decision. 40
(6) The national department or a provincial department may enter into agreement with any non-governmental organisation or public or private provider of goods or services in order to exercise powers and perform functions and duties under this Act.
Repeal of laws
73. (1) The laws set out in the first and second column of the Schedule are repealed 45
(2) The repeal does not affect any tranaitional arrangetnent contained i n section 74. to the extent set out i n the third column of the Schedule.
76 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act h'o. 17, 2002 MENTAL HEA1,TH CARE ACT, 2002
Transitional arrangements
74. ( I ) The transitional arrangements in this section must be read and applied as
( 2 ) Anything done before the commencement of this Act in terms of the laws repealed substantive provisions of this Act.
is regarded a's done under this Act and continues to be of force and effect- 5 (u) except if it is inconsistent with this Act; or (h) until it is set aside or repealed.
(3) Any proceedings instituted or procedures conducted under the laws repealed by
(4) Any person who in terms of the laws repealed by this Act was considered a 10 this Act, must be disposed of as if this Act has not been enacted.
voluntary pal.ient, must on the commencement of this Act be dealt with in terms of section 25.
( 5 ) (a) Any person who in terms of the laws repealed by this Act was regarded as a patient by consent, is at the commencement of this Act deemed to be an assisted mental health care user and for purposes of section 30 must be reviewed within six months. 15
( [ I ) Any review clone within six months before the commencement of this Act is deemed to be a six months review in terms of section 30.
(6) (a) Any person issued with a detention order in terms of the laws repealed by this Act. is on the commencement of this Act deemed to be an involuntary mental health care user and for purposes of scction 37 must be reviewed within six months. 20
( [ I ) Any review done within six months before the commencement of this Act is deerned to be a six months review in terms of section 37.
(7) (a) Any peison who in terms of the laws repealed by this Act, was regarded as a State patient lor mentally ill prisoner must, on the commencement of this Act, be dealt with i n terms of Chapters VI and VII, respectively, and for purposes of sections 46 and 25 55, reTpectivt:ly, be reviewed within six months.
deerned to be a six months review in terms of sections 46 and 55, respectively.
continues to be of force and effect but the duration of the certificate may not be extended 30 on its expiry.
(0) Any review done within six months before the commencement of this Act i s
(8) Any certificate issued in terms of section 43 or 44 of the laws repealed by this Act
Short title and commencement
75. This Act is called the 1Mental Health Care Act, 2002, and comes into operation on a date fixed by the President by proclamation in the Gazette.
78 No. 24024 GOVERNMENT GAZETTE, 6 NOVEMBER 2002
Act NO. 17, 2002 MENTAL HEALTH CAKE ACT, 2002
SCHEDULE
LAWS REPEALED
1 No. and year of Act [ Short Title - [Extent of Repeal I Act No. 18 of 1973 I Mental Health Act, 1973 1 The whole xcept Chapter 8. I Act No. 19 of 1981 (Transkei) [Mental Health Act, 1981 I The whole. Act No. 26 of 1985 (Bophuthatswana)
The whole. Mental Health Act, 1985
1 Act No. 23 of 1986 (Ciskei) I Mental Health Act, 1986 [ The whole. Proclamatiolt No. 26 of 1992
Proclamation, 1992 (Venda) (Venda) The whole. Mental Health Amendment
&