The role of the multi-professional team in the granting of leave and discharge to state patients

• Jurisdiction: South Africa
• Pages: 193-203
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Hennie Oosthuizen
• Citation: (1999) 12 SACJ 193

The role of the multi-professional

team in the granting of leave

and discharge to state patients

HENNIE OOSTHUIZEN*

TEUNS VERSCHOOR**

1 Introduction

Persons who are not fit to stand trial and/or not criminally responsible and

who are committed in terms of ss 77(6) and or 78(6) of the Criminal

Procedure Act 51 of 1977 as state patients, can, after their admission to a

mental institution, qualify for leave as well as for discharge. This principle is

also applicable to persons who are committed in terms of both ss 9 and 28 of

the Mental Health Act 18 for 1973. The charge against the person should not

be used as the only norm against which the decision to grant leave or

discharge should be measured. The person's clinical picture should rather be

the decisive factor. In deciding whether to grant leave or discharge to a state

patient, several role players are involved. This discussion will feature the

roles of the Attorney-General, the multi-professional team and the

representative of the office of the Attorney-General in the decision to grant

leave or discharge to state patients. We will also look at the report of the

South African Law Commission, namely

The Declaration and Detention of

Persons as State Patients under the Criminal Procedure Act, Act 51 of 1977,

and the discharge of such persons under the Mental Health Act, Act 18

of 1973, including the burden of proof with regard to the mental state of an

accused or convicted person,

1

the recommendations of the report and also

the proposed amendments to the legislation.

2 The Attorney-General

2.1



Preventing an accused from being declared a state patient

Section 6 of the Criminal Procedure Act 51 of 1977 empowers the Attorney-

General to withdraw charges against an accused or stop the prosecution in

particular instances. These powers are sometimes used to prevent an unfair

* Bluris, LLB, LLD, LLD (UOFS),

Senior Lecturer, University of the Orange Free State.

** Bluris, LLB, LLD (UP),

University of the Orange Free State.

1

South African Law Commission, Project 89 of 1995.

193

(1999) 12 SACJ 193

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