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What you need to know about the proposed changes to the Mental Health Care Act 17 of 2002



By  Trisha Dhanasar


During the Health Budget Vote speech given by the Minister of Heath on the 23rd of July 2014, the Minister categorized South Africa’s disease profile in to 4 main areas, namely  HIV/AIDS and TB, maternal and child mortality, non-communicable diseases ( includes mental health)  and lastly injury and violence. When evaluating and effecting measures to combat health related issues, SA is driven by the country’s disease profile, while taking in to consideration, on an international level, strategies and goals as recommended by the World Health Organization The Mental Health Act 17 of 2002 was enacted to give effect to certain Constitutional rights such as everyone has the right to health care services, the right to basic health care services for children and adequate medical treatment for detainees and prisoners at the States expense, while also acknowledging that the Constitution also prohibits unfair discrimination of persons with mental or other disabilities.

Consequentially, the Mental Health Care Act acknowledges that health is a state of both, physical and mental well-being and that mental health services should be offered at health service institutions. The Act purports to make the best achievable mental health care, treatment and rehabilitation services available to the people, without discrimination, but within the parameters of the county’s means. I will discuss the amendments proposed in the Mental Health Care Amendment Bill and the possible positive and negative consequences of the Bill from a social and financial perspective.

Placing mental illness in perspective

South Africa’s healthcare system is ultimately directed at the prevention of diseases and promotion of health, as guided by the National Planning Commission. Non communicable diseases kill more than 36 million people each year and is defined as chronic diseases that cannot be spread from person to person. Mental health is also a very recognizable NCD in South Africa.

Mental disorders are associated with significant and impairment of human functioning, which includes the inability to work, learn and interact with people. According to the South African stress and health study (SAHS), funded and initiated by the World Health Organization (WHO), 16.5% of South Africa’s population suffered from some form of mental disorder of the 12 month period it covered. Approximately 26% of these cases were classified as severe and it has been estimated that at least 30% of South Africans will have suffered from a mental disorder in the course of their lifetime. Bearing this in mind, mental health is undoubtedly a discernible issue in our county and as per the 2014 budget speech, a financial plan of R145.7 billion of government expenditure is budgeted for the department of health for the year 2014/2015, and approximately 7.7 million will be allocated for health infrastructure.

What are the proposed changes to Mental Health Act?

In terms of s72 of the Act, the Minister or any other relevant member of the Executive Council may assign or allocate any of the powers conferred upon him by the Act or any other law, to either, an employee of the State or a board established under the Act but it has to be in accordance with the instructions given by the Minister or Executive Council.

In addition to this, the Bill proposes that the Act is amended to insert s72A. This provision will allow for the Head of the National Department to delegate any power granted upon him to an employee(s) of the national department, provided that the delegated task is made in writing. This proposed amendment is consistent with s238(a) which is a general authorization of executive organs  to delegate any power or function in terms of legislation, provided that the authorization to delegate is consistent with the legislation in terms of which the power is exercised or the function is performed. Bearing this in mind the amendment specifically indicates certain aspects that may not be delegated, consequentially, the head of the national department is solely responsible for the following tasks:

  1. Authorize health institutions or part of health institutions to serve as a psychiatric hospital or a care and rehabilitation centre to the general public. This is also required to be done for State patients and mentally ill prisoners so that they can be admitted, taken care of and evidently treated for any psychological conditions.
  2. Furthermore, in terms of the Act, no person or health establishment may disclose any mental health care information, that patient is entitled to be kept confidential. However, the head of the national department may disclose such information if she believes that such information would seriously prejudice the patient or others.

Subject to the above exceptions, all other powers can be delegated and powers assigned thereof can be withdrawn or the decisions can be amended. Nonetheless, decision or tasks that are delegated will be deemed to have been made by the head of the national department.

What does this mean for the health sector?

I am of the opinion that the amendment will be beneficial for the health sector, which includes patients and stakeholders for the following reasons. Firstly, by sanctioning a delegation of powers allows for the reorganization and division of departmental administrative activities, thereby rendering effective service delivery. Secondly, through delegation, outcomes are accomplished through the actions of others which is inevitably necessary for the health sector to function adequately. It is clear that one person cannot cope with all administrative tasks and ensure the effective implementation of decisions, but, through delegation of tasks and decisions, this can be achieved.

Ideally, the quality, speed and flexibility of decision making and the execution of these decisions in the health sector will ultimately improve as different tiers are created in which tasks can be done. This will also impact the productivity and time spent in effecting these decisions.

On the contrary, if there is a lack of communication, trust, delegates was not properly trained, irresponsibility on the part of government officials or adequate resources were not put in place to complete the tasks assigned, the purpose and intention of the Bill will be unsuccessful. Unintended negative consequences of delegation such as inaction, abuse of power and incompetency are risks that are required to be considered in the delegation process. The principle of accountability is essential to the delegation process, and if government officials are not accountable for their actions this could lead to wasted expenditure at a national level and failure to implement at a provincial and local level. These possible consequences could be avoided by placing a system of checks and balances in place.

What are the budgetary implications of the Bill?

It is possible that more government expenditure will be spent if this Bill is enacted because central to delegation is the effective utilization and training of staff to whom decisions or tasks shall be delegated and the placing of appropriate structures of procurement of sufficient resources to achieve the tasks at hand. Bearing this in mind, one has to also consider if more government employees are required or if government employees to whom delegated powers will be assigned, require salary increases, as remuneration for the increase in work load. More professionals may need to be trained to treat the increasing number of psychological disorders and more community base facilities may need to be established.

Then again, According to statistical research adults with severe mental illness over a 12 month period lost earnings that amounted R28.8 billion and far outweighs the direct spending on mental health care for adults. If the purpose of the amended provision in the Bill is effected properly and the expenditure for health care allotted in the 2014/2015 budget is carefully accounted for, one could expect very little to no   It is evident that it costs South Africa more not to treat mental illness, than to treat it and for that reason, I believe that there will not be any significant budgetary implications if this Bill is comes in to operation.


Neglect of mental health will impact education, productivity, violence and poverty in the country. The Bill is clearly in the public and economic interest and provided that the principle of transparency and accountability are adhered to, there is sufficient internal control, cost effective use of financial resources and that delegated powers are not exploited by government officials, the implementation of the proposed amendment is sure bring positive results within the health sector. From a broader perspective, if people’s inner world is impaired, it makes it very tough to perform in a way that changes that South Africa in a positive way. It is therefore imperative to instigate better structures to change their psyche, to achieve better economic and social development in our country, which is the broader aim of the Bill. Ultimately, this is solely dependent on how well the provisions in the Bill are implemented and will only become apparent in due course.


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