Mental health in South Africa – a cause for concern?

July 22nd, 2016

Intellectual heavyweight! Model brain with barbells

By Saul Leal

We are living in a singular era where we are able to diagnose that which has previously been unknown.

Frantz Fanon dedicated his life to defend a more human approach in terms of mental disorders and the treatment of patients, following the breakdown of the prison-like characteristics of old mental hospitals. Fanon followed the African principle of ubuntu in his undertaking of treatment, because, he argues, ‘[w]e are not simply “thrown” into the world; we are propelled toward it and other people. We want “to touch the other, feel the other, discover each other”. Our primordial ethical orientation is one of intersubjectivity’ (Hudis Frantz Fanon: Philosopher of the Barricades 5ed (London: Pluto Press 2015) at 5). He calls for a world of ‘reciprocal recognitions’ (Hudis (op cit) at 6).

Fanon exhorted society at large to have respect for the dignity of the human being, including the mentally ill. As Hudis remarks, this ‘had clearly been one of the central motifs in Fanon’s work since he began thinking about the intersection between philosophy and psychology’ (Hudis (op cit) at 60). Hudis further explains that Fanon ‘continued to challenge the prison-like character of mental institutions by embarking on such projects as building a theater and soccer stadium for inmates, creating a school for nurses, and introducing an open clinic for those suffering from mild cases of mental illness’ (Hudis (op cit) at 65). Fanon tried, as a psychiatrist, to reach the patients’ humanity (Hudis (op cit) at 15).

Joseph Wolpe, like Fanon, is considered to be a hero of the ‘psychological revolution’. Wolpe adopted the theory and method of the Russian physiologist Ivan Pavlov, who showed that an animal’s fear could be extinguished by gradually exposing the animal to the object of its fear. Wolpe was concerned that this behavioural treatment might be quite stressful, so he turned to ‘a modified extinction procedure in which people were taught to relax and [were] then exposed in imagination to the fear-evoking stimuli’ (R Layard and DM Clark Thrive: The Power of Psychological Therapy (London: Penguin Random House 2014) at 133). According to the experience, when the fear of the imagined object declined, ‘people were encouraged to expose themselves to the real thing’ (Layard and Clark (op cit) at 133). This technique led to a therapeutic breakthrough.

Layard and Clark state that by applying this type of behaviour therapy, Wolpe found his patients recovering quickly (Layard and Clark (op cit) at 9). This breakthrough brought about an incomparable development of cognitive behavioural therapies. They also note that to ensure that the new treatments could have reliable results, Wolpe ‘developed manuals of good practice which any well-trained practitioner with enough empathy could apply’ (Layard and Clark (op cit) at 9). Wolpe, alongside Fanon, envisaged empathy as being a trustworthy pathway to the introduction of a new humanism in the treatment of the mentally ill (Layard and Clark (op cit) at 9).

The Constitution inherently upholds the principle of empathy as promulgated by Fanon and Wolpe. The explicit protection of the right to mental health assures psychological integrity, as well as well-being, welfare, and quality of life. This establishes a manner in which the ideal of a new beginning for future generations could implement Fanon’s form of new humanism.

The Constitution granted the opportunity for dialogue regarding people with mental disorders insofar as it is granted the right to mental health (s 28(1)(f)(ii)). Apart from recognising the right to mental health, it is also granted the right to psychological integrity. Section 12(2) of the Constitution states that: ‘Everyone has the right to bodily and psychological integrity, which includes the right –

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed consent.’

These provisions show an attentive framework related to the medical necessities of the physical and psychological aspect of an individual’s life. The text provides for ‘psychological integrity’ in addition to ‘bodily integrity’, breaking down the culture which emerged after the World War II according to which people’s dilemmas would be solved by meeting material and physical needs.

The Constitution also provides the right to healthcare services (s 27(1)(a)). It repudiates any form of unfair discrimination, directly or indirectly, against people with, among other things, disabilities (s 9(3)). If one were to assume that mental health requires care with a special form of security, it requires a broader protective interpretation to s 198(a), according to which national security must reflect the resolve of South Africans, as individuals and as a nation, ‘to be free from fear and want and to seek a better life.’ It is a true protector statute to the mental health.

I refer to the right to happiness in terms of the Constitution’s assumption of the duty to improve the quality of life of South Africans, as stated in the preamble, as well as its regulations, which render welfare services to fall under the functional areas of concurrent national and provincial legislative competence (sch 4, part A). Furthermore, the Constitution embraces, in five different circumstances, the task of looking after the people’s wellbeing.

Quality of life, wellbeing and welfare comprise two dimensions:

  • an objective approach, the content of which is based on the realisation of material goods, such as the effective access to socio-economic rights, and
  • a subjective perspective, constituted by immaterial goods, things that seem to be intangible or subjective, such as happiness. The quantity of material possessions is not the only means to measure a life; the quality of life is also crucial. Therefore, lives must be qualitatively assessed.

The Constitutional provisions are not empty promises. Layard and Clark assure that different medical systems have different ways of measuring the quality of life, and explain that there is a standard set by the World Health Organisation (Layard and Clark (op cit) at 188). This quality of life is tied to the right to happiness, as NJ Udombana explains, ‘[l]ife is primarily about promoting human dignity, happiness and values’ (NJ Udombana ‘A Question of Justice: The WTO, Africa, and Countermeasures for Breaches of International Trade Obligations’ (2005) 38 The John Marshall Law Review 1153 at 1202).

In sch 2 of s 1, the Constitution presents the oath or solemn affirmation of the President and Acting President, which contains the following statement: ‘I … devote myself to the wellbeing of the Republic and all of its people’ (The same is applicable to the Vice-President (s 2). Likewise, the Niger’s Constitution of 2010 states by its article 50 that before entering into his functions, the President of the National Assembly takes an oath by promising ‘to work tirelessly for the happiness of the People’). The oath is echoed in Thomas Jefferson’s statement that ‘[t]he care of human life and happiness … is the … only legitimate object of good government’ (Layard and Clark (op cit) at 244).

In South Africa, the substitution of the word ‘happiness’ for the neutral expression ‘wellbeing’ it is a product of legislative policy, unable to erase the historical perspective that shows the reference of happiness in past documents. Article 81 of the Constitution of the South African Republic, 1858 stipulated the following oath by the President before the Volksraad: ‘I promise and swear solemnly, that I shall … act according to the Constitution of the Republic, and intend alone the furthering of the happiness and welfare at large of its inhabitants’ (see Chapter II of the Constitution of the South African Republic. See also: H Williams & F Charles Hicks (eds) ‘Selected Official Documents of South Africa and Great Britain A Documentary perspective of the causes of the War in South Africa’ (1900) The Annals of the American Academy of Political and Social Science (, accessed 23-6-2016)  at 27).

The Constitution builds a barrier trying to minimise the inevitable presence of pain in people’s life. Pain must not be understood in a narrow way. Psychological pain is no less important than physical pain. They are equally real, and both are experienced ‘in exactly the same brain areas … (the anterior cingulate cortex and anterior insula)’ (Layard and Clark (op cit) at 34). Additionally, it appears that to be stigmatised, to face prejudice, and to be denied in terms of the right to preserve one’s sense of self-esteem are all causes of severe psychological pain.

Mental illness brings about both pain and stigma, as many people are ashamed of being mentally ill. This stigma is what causes mental illness to become ‘the biggest single cause of misery in modern societies … :

  • Mental illness causes more of the suffering in our society than physical illness does, or than poverty or unemployment do’ (Layard and Clark (op cit) at 63). Stigma is also associated with the guilt which is often felt by relatives of the mentally ill (Layard and Clark (op cit) at 7).

In the Constitution, the only provision that speaks about ‘enjoyment of all rights and freedoms’ is that which reprehends any form of discrimination against people with disabilities. Section 9 provides that: ‘Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms’.

But what about mental disability? The question remains whether the state regards mentally ill individuals in the same way in which it regards individuals with physical disabilities. Would an individual who has been diagnosed with depression be treated with the same regard as an individual with a fractured arm, if that individual were admitted to hospital? These questions illuminate the issue of the possibility of a new culture of humanism with regard to mental health.

The Constitution is clear in assuring that everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including mental disability (s 9(1)(2)(3)). Therefore, it is necessary to surpass the paradigm of contempt that has been controlling the perverse scenario of discrimination against people with mental disorders before the state.

It is important to note that s 41 of the Constitution, which addresses the principles of cooperative government and intergovernmental relations, provides that: ‘All spheres of government and all organs of state within each sphere
must –

secure the wellbeing of the Republic’ (the sole para of s 23 of the Brazilian Constitution provides that supplementary laws will establish the norms for the cooperation between the Federal Government and the States, the Federal District and the municipalities, in view of the equilibrium of the development and of the ‘wellbeing’ on a national level). This provision has a clear goal, namely, the preservation of the public virtue, implemented through the understanding and the support of the individual’s right to the pursuit of happiness.

By embracing wellbeing in strategic points of its Constitution, South Africa recognises mentally ill individuals in order to establish the necessary normative opening for the celebration of the right to happiness. Wellbeing translates concerns about its objective content, such as health care services, as well as the subjective aspects, a sense of self-respect and self-esteem.

Saul Leal PhD (Constitutional Law) (Pontifical Catholic University of São Paulo) is an advocate at Pinheiro Neto Advogados in Brazil.

This article was first published in De Rebus in 2016 (Aug) DR 28.

De Rebus