The Mental Health Care Act

(MHCA) no.17 of 2002

Peter Ashman

(Dept Psychiatry &Mental Health, UCT)

 Mental health law in general

• Is used in the management of psychiatric

disorders and developmental disabilities
where a person does not possess the
ability to act in a legally competent manner
and requires treatment and/or another
person to act in his or her best interests.
Mentally ill/handicapped or otherwise psychologically
vulnerable persons may transgress the law or pose
a risk to self and/or others because of:
• lack of understanding
• disturbed perception of the world
• abnormal emotional states
• defects in cognition/intellect /personality
• alcohol or substance abuse
These abnormal “states of mind“ may
lead to circumstances which are :
• detrimental to their health or lives
OR
• danger to others

DUE TO THEIR MENTAL STATE

 Case 1
• 52 year old man
• Refusing medication
• 6 weeks of being withdrawn, accusing his
mother of poisoning food, confronting strangers
in the street, accusing them of bewitching him
• Threatening to kill his mother
• Suspicious, irritable, hearing voices
• Patient says nothing wrong with him
 Case 2
• 50 year old man
• Known to be alcohol dependent
• Has been treated for depression in past
• Family phones you (as their GP)
• The man is shouting abuse at them, smashing
the house, threatening to kill his wife because
she won’t give him the car keys
• They are desperate
 Case 3
• 32 year old woman
• Gang raped and set alight
• Constantly crying, can’t sleep, night
mares, avoids contact with others
• No suicidality
• Refuses all attempts at help
• Says there is nothing wrong with her and
wants to be left alone
 Case 4
• 40 year old man
• Moderate intellectual impairment
• Previous admissions to Alexandra Hospital
for behavioural disturbance associated
with auditory hallucinations.
• Brought to Victoria Hospital Casualty by
elderly parents – 2 week history of social
withdrawal and talking to self.
• Recent death of a friend
 Case 5
• 16 year old girl
• Previous history of ODs and self injury
since age of 13 years. Parents neglectful.
Home circumstances currently being
investigated by social worker.
• Escalation of self harm over the past 2
weeks.
• Presents to casualty after a potentially
lethal overdose of amitriptyline.
 Mental Health Law intends to:
• provide for treatment & rehabilitation
• protection of the patient
• safety of the community

Legal System may be divided into :

CRIMINAL LAW
CIVIL LAW
COMMON LAW
STATUTORY LAW
 Mental Health Law aims to :
• Promote mental health and prevent disorder
• Improve access and conditions of treatment
• Ensure an adequate standard of assessment
• Ensure least restriction and should protect patient
rights
• Encourage self determination
• Allow for assistance to optimise self determination
• provide for control and treatment
• Ensure a review procedure (incl automatic periodical
review)
• Keep the community safe
• Consider other rights and needs (property)
 Balancing rights and risk
Aims tostill
Whilst : respecting :
• patient autonomy
provide for treatment & rehabilitation of mentally ill
• patient
basic human rights
• protection
principles of& patient
safety of the patient
care
• protection
beneficence & safety of the community
•• ensure rights of patients
non-malificence & community
(‘do no harm’)
• justice for patient and community
World Health Report (2001): Countries
with a Mental Health Act
Regions With legislation No legislation

Africa 59% 41%

The Americas 73% 27%

Eastern
59% 41%
Mediterranean
Europe 96% 4%

South-East Asia 67% 33%

Western Pacific 72% 28%

Guy Tillim: Asylum for psychiatric patients,
Luanda, Angola, 1994
Centre Malemba Yulu, a traditional psychiatric institution led by the Prophet Mbetado. Patients are chained to engine parts - to restrain/detain them
for the duration of the treatment as well to give symbolic weight to the eventual cure and release. Kinshasa, Democratic Republic of Congo, 2003
Chang Chien-Chi : “The Chain”
 Two international variations wrt assessing
and treating patients against their will

1. Court orders are required for compulsory

treatment

vs

2. Mental health providers may treat

compulsorily by following set procedures,
usually with means of appeal or regular
scrutiny to ensure compliance with the law.
 Mental Health Act 18 of 1973
[MHA 1973]

(Mental Health Act and Mental Disorders Act)

 Dimitri Tsafendas
(1918-01-14)14 January
Born 1918
Lourenco Marques,
Mocambique
7 October 1999(1999-10-07)
(aged 81)
Died Sterkfontein psychiatric
hospital, Krugersdorp,
gauteng, South Africa

Cause of death Chronic heart failure

Pneumonia
Ethnicity Mixed
Assassination of South
Known for African Prime Minister,
Hendrick Verwoerd
(06/09/1966)
Criminal charge Murder
Criminal penalty Detained "at the pleasure of
the State President"
Criminal status Not guilty by reason of
insanity
 Old Mental Health Act 1973
• Compulsory treatment process went through a
magistrate
• primary focus was on patient control and the “welfare
and safety” of the society.
• patients did not have a significant right of appeal or
representation
• Insufficient review of involuntary hospitalisation
• Insufficient attention to human rights (eg autonomy,
dignity, justice)
• Stigmatisation associated with care in large psychiatric
hospitals
• Institutionalisation
• Facilitated disproportionate care based on race
• Accusations of potential abuse for political means
The changes in the MHCA 2002
• Due process of law/prompt judicial review
• Improved accessibility and care at appropriate level
• Independent assessment
• Frequent reports to Review board
• Envisaged reduced management in specialist
hospitals
• Envisaged increased management at 1°+2° levels of
care
• Integration with general healthcare service
 MHCA 2002 emphasises
• best interests, rights & obligations of
mental health users
• the duties of mental health care providers
• provision of care at all levels (state
responsibility)
• least restrictive environment
• integration into general health care
• the need to destigmatise mental illness
• the involvement of family members
• includes mental health promotion
 Who is treated under MHCA?
This includes
Patient suffering
anyfrom
patient
a mental
: illness or
• severe/profound
whatever the mental intellectual
illness disability:
• needs
where atreatment
delay in care may result in death or irreversible
• harm
can be treated
• risk
is incapable
of user inflicting
of makingserious
informed
harmdecision
to self or others
• or
is acause
risk to
serious
self ordamage
others to or loss of property
• refuses treatment (involuntary)
 Definitions (MHCA)
“Mental illness” means 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
 Definition of Mental disorder (DSMV)
• A syndrome characterized by clinically significant
disturbance in an individual’s cognition, emotional
regulation, or behaviour that reflects dysfunction in the
psychological, biological, or developmental processes
underlying neural functioning.
• Usually associated with
– Significant distress
– or disability
• NOT an expectable or culturally approved response to a
common stressor or loss.
• NOT socially deviant behaviour (eg. political, religious,
sexual) or conflicts between the individual and society
unless this is a result of a dysfunction in the individual
as described above.
Mental illnesses that may fall under the
MHCA
• Those generally that interfere with an
individuals cognitions or their ability to
control behaviour
• Eg
– Psychotic disorders
– Dementias
– Mental handicap
– Mood disorders
 Concept of Capacity
Eg: capacity to consent/make a decision
requires person to:
• Be informed
• Understand
• Retain the information
• Weigh in the balance (appraise and
reason)
• Communicate
 Who does not fall under the MHCA?
(N.B. These are Not absolute exclusions)
• Suspected mental illness – incapable of giving
informed consent, but current primary focus of
care = physical illness
– E.g.Coma/ delirium/ dementia or mental retardation
• Primary diagnosis of:
– Substance intoxication
– Substance withdrawal
• Personality Disorder with no co-morbid mental
illness/ mental illness not current focus
• Malingering
The clinical
interface…
 Three Questions

Is there an underlying
General Medical Condition?

Is this Substance
Intoxication or
Withdrawal?

Is this a Mental
Illness?
When is the Mental Health Care Act used
to admit a patient?

• The user is likely to inflict serious harm to:

– himself/herself or
– others
• Or care, treatment and rehabilitation is
necessary for the protection of:
– the financial interests of the user or
– reputation of the user.
 MHCA Admission Categories
(i.e. options)
• Voluntary
• Assisted
• Involuntary
• Emergency
Issues :
• Is patient capable of making informed
decision?
• Does patient want to be admitted?
 Admission Categories

• Voluntary:
– User is ill, needs help.
– User is competent to make an informed
choice.
– User consents to treatment.
– User can be helped
 Admission Categories

• Assisted:
– User is ill, needs help.
– User is a danger to him/her self and/or others.
– User is not competent to make an informed
choice.
– User does not refuse treatment.
– User can be helped.
 Admission Categories
• Involuntary:
– User is ill, needs help.
– User is a danger to him/her self and/or others or
care and treatment and rehabilitation is
necessary for the protection of the financial
interests or reputation of the user.
– User is not competent to make an informed
choice.
– User refuses treatment.
– User can be helped.
 Admission Categories
• Emergency:
– User is ill, needs help.
– Any delay may result in:
• Death or irreversible harm to the user.
• User inflicting serious harm to him/her self or others.
• User causing serious damage or loss of property
belonging to him/her self or others.
– User is not competent to make an informed choice.
– User refuses treatment.
– User can be helped.
– Can only hold for 24 hours, must report to the Review
Board.
– Form 01
 Involuntary Admission Process
72-hour
Application
Admission
Assessment
assessment
(MHCA
(MHCA 05)04)
(MHCA 06)07)
x2

Ap
pr
ov
al
of
fur
th
er
in
vo
lu
nt
ar
y
ca
re
(M
H
C
A
08
)
 Who may apply for assisted or
involuntary admission?
• If user <18, then must be parent or guardian.
• >=18, spouse, next of kin, partner, associate,
parent or guardian.
• If unwilling, incapable or not available, then
health care provider. Person with substantial
or material interest in the
• Must have seen the user withinofseven
well-being user or days
who
before making the application.
is in substantial contact
with the user
 MHCA FORMS

• At the point that you complete the MHCA

forms, you are making a formal application to
the Western Cape High Court.
 
• Everything you submit is submitted to a
Judge at the High Court for scrutiny.
 
• Wherever possible, consult with the family.
 Question
“What if my patient is dangerous and
refuses to accompany their relative to
hospital?”
 Involving SAPS (Section 40)
• If a member of SAPS has reason to believe,
from personal observation, or from information
obtained from a mental health care practitioner,
that a person due to his/her mental illness or
severe/profound ID is likely to inflict serious
harm to himself or others, the member must
apprehend the person and:
– Take them to an appropriate health establishment
– Hand them into the custody of the head of
establishment or other designated person
 Involving SAPS (Section 40)
• If mental health practitioner agrees that
person is mentally ill, must admit and can
hold for max 24 hours.
• SAPS also have a role if assisted or
involuntary user absconds from hospital:
– Must locate, apprehend and return to health
establishment.
 Involving SAPS (Section 40)
• When requesting assistance, SAPS must
be informed of the estimated level of
dangerousness.
• SAPS may hold person in custody to effect
their return or transfer to hospital, but for
max 24 hours.
 Question
“Does my patient have the right to challenge
their admission?”
 Appeals: The right to challenge
admission

• Right to legal representation.

• Within 30 days of HHE decision to admit patient,
user, spouse, next of kin, partner, associate,
parent or guardian may appeal to the Review
Board.
• Review Board have 30 days to consider oral or
written representations from appellant, applicant,
mental health care practitioners or HHE, and to
send out written notice of their decision.
 Case 1
• 52 year old man
• Refusing medication
• 6 weeks of being withdrawn, accusing his
mother of poisoning food, confronting strangers
in the street, accusing them of bewitching him
• Threatening to kill his mother
• Suspicious, irritable, hearing voices
• Patient says nothing wrong with him
 Considerations…
• Patient rights
• Freedom of choice
• Safety of patient
• Safety of community
• Least restrictive principle
• Consent issues
 Case 2
• 50 year old man
• Known to be alcohol dependent
• Has been treated for depression in past
• Family phones
• Patient is being abusive, smashing the house,
threatening to kill his wife because she won’t
give him the car keys
• They are desperate
 Disorders in which certification is
inappropriate
• Alcohol, drug intox, abuse, dependence
• Personality disorders
• Anxiety disorders
• Sexual disorders
• Somatoform disorders
• Relationship difficulties
• Psychotic disorders in remission, or with residual
symptoms only
• Bed pressure
 Case 3
• 32 year old woman
• Gang raped and set alight
• Constantly crying, can’t sleep, night
mares, avoids contact with others
• No suicidality
• Refuses all attempts at help
• Says there is nothing wrong with her and
wants to be left alone
 Case 4
• 40 year old man
• Moderate intellectual impairment
• Previous admissions to Alexandra Hospital
for behavioural disturbance associated
with auditory hallucinations.
• Brought to Victoria Hospital Casualty by
elderly parents – 2 week history of social
withdrawal and talking to self.
• Recent death of a friend
 Case 5
• 16 year old girl
• Previous history of ODs and self injury
since age of 13 years. Parents neglectful.
Home circumstances currently being
investigated by social worker.
• Escalation of self harm over the past 2
weeks.
• Presents to casualty after a potentially
lethal overdose of amitriptyline.