By Moffat Ndou

Section 15 of the Mental Health Care Act 17 of 2002 (MHCA) provides that a mental health care user is entitled to representation, including a legal representative. Section 15 further provides that a user is entitled to the representation when submitting an application, lodging an appeal, or appearing in court or at the mental health review board (the review board). ‘Mental health care user’ (user) refers to ‘a person receiving care, treatment and rehabilitation services or using a health service at a health establishment aimed at enhancing the mental health status of a user, state patient and mentally ill prisoner and where the person concerned is below the age of 18 years or is incapable of taking decisions, and in certain circumstances may include –

(i) prospective user;

(ii) the person’s next of kin;

(iii) a person authorised by any other law or court order to act on that person’s behalf;

(iv) an administrator appointed in terms of this Act; and

(v) an executor of that deceased person’s estate.’

‘Representative’ is not defined in the MHCA. The dictionary defines ‘representative’ as ‘a person chosen or appointed to act or speak for another or others’ (see Concise Oxford English Dictionary (New York: Oxford University Press 2011)).

Principle 18 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (the principles) provides that:

‘The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.’

The Principles define a ‘counsel’ as a ‘legal or other qualified representative’. The Principles do not provide the definition of a ‘qualified representative’. I submit that it may mean any person who acts on behalf of another and is officially recognised as a practitioner of a profession (see Concise Oxford Dictionary (op cit)). If the user is an indigent person, legal aid must be provided by the state.

This article examines the provisions of s 15 of the MHCA in order to determine the content of the right of an indigent mental health care user, to legal aid at the expense of the state.

An indigent user

Section 15(2) provides that an indigent user is entitled to legal aid provided by the state in respect of any proceeding instituted or conducted in terms of the MHCA. The right to legal aid is subject to any condition fixed in terms of s 4(1)(e) of the Legal Aid South Africa Act 39 of 2014 (the Act). Section 4(1)(e), provides that the Legal Aid Board South Africa (Legal Aid SA) has the power to fix conditions subject to which legal aid is to be rendered. The power includes fixing conditions in accordance with which any rights in respect of costs recovered in any legal proceedings or any dispute in respect of which the aid is rendered, are ceded to Legal Aid SA; and the payment of contributions to Legal Aid SA by persons to whom legal aid is rendered.

Section 23(1)(b) of the Act provides that the minister must make regulations relating to the requirements or criteria that an applicant must comply with in order to qualify for legal aid, as well as the terms and conditions on which such legal aid is made available to the applicant (s 4(1)(e)(i) – (ii) of the Act).

The Act commenced on 1 March 2015 and there are no regulations made by the minister on the requirements or criteria that an applicant must comply with. However, s 26(6) provides that the Legal Aid Guide in force on the date of commencement of the Act remains in force until it is withdrawn and replaced by regulation by the minister and the Legal Aid Manual. The Legal Aid Guide 2014 provides requirements or criteria that an applicant must comply with in order to qualify for legal aid.

‘Indigent person’ is defined in the Legal Aid Guide as ‘[a] person who qualifies for legal aid under Legal Aid South Africa’s means test’. Chapter 5 of the Legal Aid Guide has laid down a means test in order to determine if a person qualifies for legal aid or not. The following guidelines are prescribed for determining if the person has passed the means test:

• In the first stage, it must be determined if the person is employed. If the person is not employed, it is the end of the inquiry, the applicant qualifies for legal aid. If the person is employed, the second stage inquiry is required.
• In the second stage, the person receiving the legal aid application determines whether the legal aid applicant is single or a member of a household or a child. A single applicant who has a nett monthly income after deduction of income tax of R 5 500 a month or less will qualify for completely subsidised legal aid. An applicant, who is a member of a household and whose household has a nett monthly income after deduction of income tax of R 6 000 a month or less, will qualify for completely subsidised legal aid. The Legal Aid Guide further provides that a legal aid applicant or household who do not own immovable property will be permitted to have nett movable assets (including physical and/or intellectual rights to property) of up to R 100 000 without being disqualified under the means test. A legal aid applicant or household who own immovable property will be permitted to have nett immovable assets and movable assets (including physical and/or intellectual rights to property) of up to R 500 000, but the applicant/household must physically reside in the immovable property or at least one of the immovable properties (where more than one) unless the Regional Office Executive authorises to the contrary. The guide further provides tables of qualifying applicant and the provision of partially subsidised legal aid.

Chapter 4 of the Legal Aid Guide provides an exception to the application for legal aid by a user.  The following exceptions apply:

• Where the user is not assisted, then the means of the user will be considered.
• Where the user is assisted by their parents, guardian, spouse, life partner or child, then their means will be considered.
• If the user is assisted by his or her parents, guardian, spouse, life partner or child, who exceed the means test and can afford to provide legal representation for the user, yet fail, refuse and or neglect to do this, then legal aid will be provided to the user if substantial injustice would otherwise result. If Legal Aid SA provides legal aid to a user assisted by a parent, guardian, spouse, life partner or child with the means; it may institute proceedings against the parents, guardian, spouse, life partner or child to recover these costs if: The parents, guardian, spouse, life partner or child could afford to provide legal representation for the user as a part of their duty of support, and they neglected, failed or refused to provide legal representation for the user.

Legal Aid SA will only provide legal aid to the user where substantial injustice would otherwise result (see ch 4 of the Legal Aid Guide). Substantial injustice occurs when –

• a person cannot afford legal representation, and without legal representation would be imprisoned, or has the possibility of being sentenced, to direct imprisonment of more than three months or if given the option of a fine, the fine is or would remain unpaid for two weeks after the date of sentence.
• the seriousness of the issue, the complexity of the relevant law and procedure, the ability of the person to represent himself or herself effectively without a lawyer; the financial situation of the person, the chances of success in the case justifies the granting of legal aid and Legal Aid SA fails to grant such legal aid (see ch 4 of the Legal Aid Guide at paras 4.1, 4.9 and 4.18.1 for a detailed discussion of what would amount to substantial injustice).

In S v Khanyile and Another 1988 (3) SA 795 (N) at 815, the court introduced the guidelines on what would amount to substantial injustice (the guidelines were later endorsed in S v Vermass; S v Du Plessis 1995 (3) SA 292 (CC)). The following principles where introduced at p 815 of the judgment:

• Legal Aid SA must consider the inherent simplicity or complexity of the case, as far as both the law and the facts go.
• Legal Aid SA must consider general ability of the person to fend for themselves in a case.
• Legal Aid SA must consider the gravity of the case.

Right to representation and the right to legal representation

Section 15 of the MHCA is clear that a person has a broader right to representation, which includes the right to legal representation. The MHCA does not define representation, however, I submit that, it means any person chosen or appointed to act or speak for another person. I further submit that the person need not be qualified. Any person that the user appoints will qualify as a representative. It is clear what s 15 means by representation. It should be emphasised that s 15 does not provide the right to be represented by any party in a court of law, because s 15 provides that representation in the court of law must be subject to the laws governing right of appearance at a court of law (see s 15(2) of the MHCA).

Section 15 further states that the right to representation, includes legal representation. The right is not limited to appearance in a court of law, I submit that it would also be applicable when a user appears in the review board (see s 15 of the MHCA).

The right to representation, only applies in three instances. First, in submitting an application. The MHCA does not specify what application would be covered in terms of s 15. However, I submit that a user has the right to representation in the submission of the following applications:

• Application for assisted care, treatment and rehabilitation services (see s 27 of the MHCA).
• Application to obtain involuntary care, treatment and rehabilitation (see s 33 of the MHCA).
• Application for discharge of state patients (see s 47 of the MHCA).

It should be noted that the definition of a user is wide enough to include next of kin, which means that even in cases where the application is made by a next of kin, the provisions of s 15 would still apply.

Secondly, lodging an appeal. The user may lodge the following appeal:

• Appeal against decision of head of health establishment to approve application for assisted care, treatment and rehabilitation (see s 29 of the MHCA).
• Appeals against decision of head of health establishment on involuntary care, treatment and rehabilitation (see s 35 of the MHCA).

Thirdly, appearing before a magistrate, judge or a review board, subject to the laws governing rights of appearances at a court of law.

Conclusion

I submit that a user will be entitled to legal aid in terms of s 15 of the MHCA, if it is clear that the person is an indigent person and if substantial injustice would occur if the legal aid is not provided.

Moffat Ndou LLB (UJ) LLM (NWU) is a lecturer at the University of the Free State.

This article was first published in De Rebus in 2017 (Nov) DR 22.