Makana People's Centre v Minister of Health and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondo CJ, Maya DCJ [1] , Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J
• Judgment Date: 09 June 2023
• Citation: 2023 JDR 2031 (CC)
• Hearing Date: 10 November 2022
• Docket Number: CCT 125/22
• Court: Constitutional Court

Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring):

Introduction

[1]

In May 2008 the United Nations (UN) Convention on the Rights of Persons with Disabilities [2] (CRPD) entered into force. The CRPD has been said to signal a change from medical and welfare (or charity) models of disability to a social model. The medical model sees disability as a medical condition from which a person suffers and which calls for medical treatment. The welfare model likewise focuses on the individual's impairment and views the state's role as being to care for those afflicted by disability by creating facilities and opportunities for them outside the mainstream of

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

society. By contrast, the social model, which has non-discrimination as a core value, views the source of disability not as the individual's impairment but as barriers set up by society which hinder the individual's full and effective participation in the world on an equal basis with others. It is not the individual who needs to be cured or sequestered; it is society that must change. [3]

[2]

In relation to the mentally ill, the CRPD – particularly as it has been understood by the UN's High Commissioner on Human Rights and the UN's Committee on the Rights of Persons with Disabilities – has profound implications for the domestic laws of State Parties, including South Africa. The implications are not confined to legislation on the treatment of the mentally ill. Capacity, criminal accountability and curatorship are among the subjects that may need to be reconsidered. Whether all of the CRPD's promises can be translated into workable legislation remains to be seen, not to mention the human and financial resources that might be needed. [4]

[3]

In common with South Africa, the laws of most countries on the treatment of the mentally ill still follow the medical model, though with increasing emphasis on human rights and patient autonomy. The CRPD has spawned an abundant literature. Globally, the law on mental health is in a state of flux. In the present case, however, there is no challenge to the fundamental scheme of the legislation in issue, the Mental Health Care Act (Act). [5] The issues, while important, are quite modest in the context of the paradigm shift which the CRPD has been said to herald. They are (a) whether involuntary inpatient treatment should be subject to automatic independent review (for example, by

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

a judicial officer) [6] before or immediately following the decision to admit the person for involuntary treatment; and (b) whether the Mental Health Review Boards (Review Boards), which are created by the Act and which play an important role in authorising involuntary inpatient treatment, are sufficiently independent.

[4]

This case is thus not about whether involuntary inpatient treatment is ever justified, or about the criteria which the Act sets for this to occur, or even about the procedure in general which the Act lays down. This case is also not about how the Act is being implemented in practice. Constitutionally compliant legislation may be implemented badly and constitutionally deficient legislation may be implemented humanely. [7]

[5]

The applicant, Makana People's Centre (Makana), applied to the High Court of South Africa, Gauteng Division, Pretoria (High Court), to have certain provisions of the Act declared constitutionally invalid. The High Court granted the declarations. Makana

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

applies to this Court for their confirmation. [8] Makana is a not-for-profit organisation committed to uplifting the lives of the marginalised and previously disadvantaged in South Africa. Its mission is to advance the educational and socio-economic rights of South Africans in various ways, including public interest litigation. Makana brought the application in its own interest, in the interest of mental health care users unable to act in their own names and in the public interest.

[6]

The first respondent in the High Court was the Minister of Health (Minister). The second to tenth respondents were the Members of the Executive Councils responsible for health in the nine provinces (MECs or Health MECs). They are similarly cited in this Court. The Minister and eight of the MECs (the second to ninth respondents) opposed Makana's application and were jointly represented in the High Court, as they are in this Court. The tenth respondent, the MEC for Health in the Western Cape (WC MEC), was separately represented in the High Court, as she is in this Court. The WC MEC abided the High Court's decision but filed explanatory affidavits.

[7]

This was the High Court's order:

"1.

The scheme for the involuntary detention of a mental health care user created under sections 33-34 of the [Act] is declared to be inconsistent with the Constitution and therefore invalid, to the extent that it does not provide for automatic independent review prior to or immediately following the initial detention of a person involuntarily detained under the [Act].

2.

In terms of section 34(7) and section 36 of the [Act], the Review Board and the Court respectively, may in their discretion, examine the mental health care user who is the subject of the review proceedings.

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

3.

Chapter IV of the [Act] is declared to be inconsistent with the Constitution and invalid, to the extent that it fails to provide an adequate level of independence to the Mental Health Review Board(s).

4.

The first and the tenth respondents are to pay the costs, jointly and severally, one paying the other to be absolved, including the costs of two counsel."

[8]

Paragraphs 1 and 3 of the order contain the declarations which Makana asks this Court to confirm. The Minister and the eight MECs oppose confirmation. They also apply for leave to appeal the High Court's failure to limit the retrospective effect of its declarations and to suspend them for 24 months. Additionally, the Minister appeals the costs order against him. [9] Conditionally on this Court confirming the declarations of invalidity, the WC MEC likewise seeks leave to appeal on retrospectivity and suspension. The WC MEC also appeals the costs order made against her. The declaration in paragraph 2 of the High Court's order, which is not one of constitutional invalidity, is uncontentious. In what follows, any reference to the contentions and submissions made by the Minister should be understood as including the second to ninth respondents.

Statutory scheme

Preamble and objects

[9]

The Act's preamble recognises, among other things, that the Constitution prohibits unfair discrimination against people with mental or other disabilities; that mental disorders and disabilities sometimes give rise to the need to protect the person or property of the patient or of members of the public; and that mental health care services should be provided in a way which promotes the maximum mental well-being of mental health care users and the communities in which they reside.

[10]

The objects of the Act are set out in section 3. These include making the best possible mental health care, treatment and rehabilitation services available to the

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

population "equitably, efficiently and in the best interest of mental health care users within the limits of the available resources".

Definitions

[11]

The Act uses the expression "mental health care user" for a person receiving mental health care services. Save when quoting from the Act, I shall refer simply to a user. [10] The definition of "mental health care user" refers to a person receiving services at a "health establishment" aimed at enhancing the "mental health status" of the user. [11] The definition of "health establishment" includes community health and rehabilitation centres, clinics, hospitals and psychiatric hospitals. The definition is not limited to facilities in the public sector. The "head of a health establishment" (head) is defined as the person who manages the establishment. The head may be, but does not have to be, a medical professional.

[12]

A "mental health care practitioner" (MHC practitioner) is defined as meaning "a psychiatrist or registered medical practitioner or a nurse, occupational therapist, psychologist or social worker who has been trained to provide prescribed mental health care, treatment and rehabilitation services".

[13]

The Act refers to the services which it regulates as "mental health care, treatment and rehabilitation services". For the sake of brevity, I shall simply refer to "treatment".

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Rogers J (Zondo CJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Tshiqi J concurring)

Chapter IV - Mental Health Review Boards

[14]

The establishment of Review Boards is dealt with in Chapter IV of the Act (sections 18-24), which the High Court declared unconstitutional to the extent that it failed to provide an adequate level of independence for Review Boards.

[15]

The heads of provincial health departments must establish one or more Review Boards for their provinces. A Review Board may be established for a single health establishment, a cluster of health establishments or all...