By Moffat Ndou
Section 9(1)(c)(iii) of the Mental Health Care Act 17 of 2002 (MHCA) provides that a health care provider or a health establishment may provide care, treatment and rehabilitation services to or admit a mental health care user (see s 1 for definition of mental health care user), inter alia, only if – due to mental illness, any delay in providing care, treatment and rehabilitation services may result in the user causing serious damage to or loss of property belonging to him or her or others.
Section 32 of the MHCA provides for involuntary services in certain carefully delimited circumstances. Section 32 of the MHCA allows for care, treatment and rehabilitation of a person without consent if –
‘(a) an application in writing is made to the head of the health establishment concerned to obtain the necessary care, treatment and rehabilitation services and the application is granted;
(b) … there is reasonable belief that the mental health care user has a mental illness of such a nature that –
(i) the user is likely to inflict serious harm to himself or herself or others; or
(ii) care, treatment and rehabilitation is necessary for the protection of the financial interests or reputation of the user; and
(c) at the time the application the mental health care user is incapable of making an informed decision on the need for care, treatment and rehabilitation services and is unwilling to receive the care, treatment and rehabilitation required’ (my italics).
Once these requirements are met, it is lawful and justifiable to provide mental health care services to a mental health care user. In considering whether the detention of mentally ill persons in instances where the detention is necessary for the protection of financial interest, one is required to look at the concept of mental illness and that of financial interest or reputation.
Concept of mental illness
The MHCA defines ‘mental illness’ as ‘a positive diagnosis of a mental health related illness in terms of accepted diagnostic criteria made by a mental health care practitioner authorised to make such diagnosis’ (see AA Landman and WJ Landman A Practitioner’s Guide to the Mental Health Care Act (Cape Town: Juta 2014) at 11). ‘Mental defect’ refers to a condition where the person has significantly below average intellectual functioning, which is accompanied by significant limitations in several areas of adaptive functioning such as communication, social/interpersonal skills and self-direction (‘mental defect’ is usually equated to ‘mental retardation’) (see C Tredoux, D Foster, A Allan, A Cohen and D Wassenaar Psychology and Law (Cape Town: Juta 2005)). ‘Mental illness’ or ‘mental defect’ means pathological disturbance of a person’s mental capacity (S v Stellmacher 1983 (2) SA 181 (SWA) at 187). Swanepoel defines mental illness as a disorder (or disease) of the mind that is judged by experts to interfere substantially with a person’s ability to cope with the demands of life on a daily basis (M Swanepoel ‘Legal aspects with regard to mentally ill offenders in South Africa’ PER (2015) 18.1).
The diagnosis of whether a person has a ‘mental illness’ requires a positive diagnosis of a mental health-related illness in terms of accepted diagnostic criteria made by mental health practitioner authorised to make such diagnosis (Landman and Landman (op cit) at 12). The diagnosis of mental illness is generally made according to the classification system of the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Classification of Diseases (ICD). There are different types of mental illnesses and each of these can occur with a varying degree of severity; they include –
Financial interest or reputation
The wording of s 32 of the MHCA clearly states that detention without consent is permitted for protection of a mentally ill person’s financial interests or reputation. The MHCA does not define what it means by ‘financial interest’ and ‘reputation’.
‘Personal financial interest’ defined in relatively broad terms includes: A direct material interest of a financial, monetary or economic nature, or to which a monetary value may be attributed. It may also be defined as a comprehensive term to describe any right, claim, or privilege that an individual has towards real or personal property. (See www.legal-dictionary.thefreedictionary.com, accessed 30-9-2016).
Reputation in the context of delictual claims is the opinion or regard which a person enjoys within the community (see J Neethling, J Potgieter and PJ Visser Law of personality (Durban: LexisNexis 2015)). In Pitout v Rosenstein 1930 OPD 112 at 117 and Kriel v Johnson 1922 CPD 483, it was found that a person’s reputation was impaired where defamatory statements exposing a person to hatred, contempt, or ridicule to lower the opinion of a person in the view of men whose standard of opinion the court can properly recognise or induced people to entertain an ill opinion of the person.
Least restrictive means of care, treatment and rehabilitation
The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (Principles) provides that:
‘Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners. … The treatment of every patient shall be directed towards preserving and enhancing personal autonomy’ of the mentally ill person. A mentally ill person may be admitted in a mental health facility as an involuntary patient if he or she has a mental illness; and ‘because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or
(b) that, in the case of a person whose mental illness is severe and whose judgment is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.’
The provision of the least restrictive type of mental health care is one of the World Health Organisation’s Mental Health Care Law: Ten Basic Principles (1996). It is required that everyone with mental illness should be provided with health care, which is the least restrictive. Member states should provide a community based treatment. The following items are considered in deciding the least restrictive measure to be applied:
‘(a) the disorder involved;
(b) the available treatments;
(c) the person’s level of autonomy;
(d) the person’s acceptance and cooperation; and
(e) the potential that harm be caused to self or others.’
Section 26 of the MHCA provides that the head of the mental health establishment may only approve assisted mental health care if satisfied that the restrictions and intrusions on the rights of the mental health care user to movement, privacy and dignity are proportionate to the care, treatment and rehabilitation services required. During the periodic review and annual reports on involuntary mental health care users, the review must indicate, inter alia, state whether there are other care, treatment and rehabilitation services that are less restrictive or intrusive on the right of the mental health care user to movement, privacy and dignity (s 37(2)(c) of the MHCA).
I submit that ‘least restrictive measures’ means that every patient has the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others; taking into account whether there is other care, treatment and rehabilitation services that are less restrictive or intrusive on the right of the mental health care user to movement, privacy and dignity. The test first requires the determination of whether care, treatment and rehabilitation services are proportionate to the patient’s health needs and the need to protect the physical safety of others. Secondly, consider the impact of the care, treatment and rehabilitation services on the right of the mental health care user to movement, privacy and dignity.
Whether involuntary detention may ever be justified for protection of financial interests
Chapter VIII of the MHCA provides a mechanism in terms of which the property of persons suffering from mental illness may be taken care of and administered. This is done by appointing a curator or administrator to take care and administer; and to carry on any business or undertaking of the mentally ill person. Taking into account the principle of least restrictive measure, it is important to ask whether, taking into account that the MHCA provides a mechanism for the protection of the mentally ill person’s property; it is ever justifiable to detain, without consent, mentally ill persons to protect them from any harm to their financial interest.
A possible answer could be sourced from foreign jurisdiction. In the Australian decision in Re J (no.2) [2011] NSWSC 1224, the New South Wales Supreme Court had to consider a similar question in respect of a detained mentally ill person. The patient, who suffered from mental illness, had recently received a substantial pay-out on his life insurance and in a manner that seemed out of character for him, had given away substantial amount of money to charity and his friends. He had also given his banking details and PIN to several people. On appeal, and considering whether a person may be detained to protect him from financial harm, the court considered that involuntary detention was to be a measure of last resort to protect against financial harm. The court noted that a financial management order could be applied for if it could be proved that the patient was not capable of handling his own affairs. Consequently the court found that since an alternative and least restrictive measure was available, it would be unlawful to involuntarily detain the patient.
I submit that a similar approach should likely be followed in respect of the MHCA. I further submit that it would be a reasonable and justifiable approach. The MHCA provides a least restrictive measure of protecting mentally ill persons from financial harm by appointing a curator and administrator. Involuntary detention for such purpose may only be justified in specific circumstances, should it be considered. Involuntary detention to protect mentally ill patients must never be considered as a default position; a further inquiry is required to determine whether, taking into account the principle of least restrictive measure and Chapter VIII of the MHCA, it is justified and lawful.
Moffat Ndou LLB (UJ) LLM (NWU) is a law researcher at the North West Division, Mahikeng.
This article was first published in De Rebus in 2016 (Nov) DR 40.
