An Overview of Aspects of the Mental Health Care Act 17 of 2002 in South Africa and The United Kingdom Mental Health Act Of 1983 with Focus on Review Boards and Tribunals
Main Article Content
Abstract
There is consensus that Review Boards are not efficiently managed and operated in South Africa. These boards are solely guided by the principle of legality in that they may act only if legally permitted to do so. There are no general procedural rules applicable to all review boards. A comparison can be made to the United Kingdom’s Review Tribunal as it relates to mental health care law. The United Kingdom Review Tribunals have rules of procedure and mechanisms aimed at case management. The South African Mental Health Care Act 17 of 2002 provides a right to legal representation for the mentally ill at the proceedings. This right does not extend to representation in any instances other than during the proceedings before a review board or any other court. The South African National Alliance on Mental Illness (NAMI) however publishes information about mental health and offers resources such as classes and training, mental health programs and events, and a helpline to recommend non-emergency resources and solutions. This all to try and better the position is South Africa. Focus is placed on the Mental Health Care Act 17 of 2002 and the UK Mental Health Act of 1983 (as amended in 2007). Further focus is placed on the shortcomings in the South African legislation and how these shortcomings can be addressed.
Article Details
How to Cite
SWANEPOEL, Magdaleen.
An Overview of Aspects of the Mental Health Care Act 17 of 2002 in South Africa and The United Kingdom Mental Health Act Of 1983 with Focus on Review Boards and Tribunals.
Medical Research Archives, [S.l.], v. 13, n. 2, feb. 2025.
ISSN 2375-1924.
Available at: <https://esmed.org/MRA/mra/article/view/5444>. Date accessed: 16 mar. 2025.
doi: https://doi.org/10.18103/mra.v13i2.5444.
Section
Research Articles
The Medical Research Archives grants authors the right to publish and reproduce the unrevised contribution in whole or in part at any time and in any form for any scholarly non-commercial purpose with the condition that all publications of the contribution include a full citation to the journal as published by the Medical Research Archives.
References
1. See Swanepoel M Law, Psychiatry and Psychology: A Selection of Constitutional, Medico-legal and liability issues 2009 published LLD thesis, University of South Africa; Swanepoel M & Mahomed S “Involuntary admission and treatment of mentally ill patients – The accountability of mental health review boards.” South African Journal of Bioethics and Law 2021;14(3):89-92. (Involuntary admission and treatment of mentally ill patients – the role and accountability of mental health review boards |Swanepoel South African Journal of Bioethics and Law (sajbl.org.za); Swanepoel M "Human rights that influence the mentally ill patient in South African medical law: A discussion of sections 9, 27, 30, and 31 of the Constitution" 2011 14 PER 7:127-146; Swanepoel M "A selection of constitutional aspects that impact on the mentally disordered patient in South Africa" 2011 32 Obiter 2: 282-303; Swanepoel M "Law, psychiatry and psychology: A selection of medico-legal and clinical issues" 2010 THRHR 177-199.
2. Bartol CR et al Criminal behaviour: A psychosocial approach (2008) 228-229.
3. "Mental Health: Report of the surgeon general" 1999 in Mental illness 4.
4. Bartol Criminal behaviour: A psychosocial approach 228-229.
5. Another term that must be distinguished from mental illness and mental disorder is "mental retardation", professionally known as developmental disability. This is a cognitive deficiency - measured by IQ tests (specifically, IQ below 70), which cannot be cured. It is a syndrome of delayed or ill brain development evident before age 18 years. It results in difficulty learning information and skills needed to adapt quickly and adequately to environmental changes. See Ainsworth P et al Understanding mental retardation (2014) 3.
6. According to the American Psychiatric Association the term "mental illness" unfortunately implies a distinction between "mental illnesses" and "physical illnesses", which is a reductionistic anachronism of mind / body dualism. A compelling literature documents that there is much "physical" in "mental illnesses" and much "mental" in "physical illnesses". However, the problem raised by the term mental illness has been much clearer than its solution, and the term will have to persist until an appropriate substitute is found. See American Psychiatric Association DSM-5 xxi. See also the definition of mental illness according to ICD-10: "a mental illness is a clinically recognisable collection of symptoms or behaviour associated in most cases with distress or interference with personal functions. A deviant pattern of behaviour, whether political, religious, or sexual, or a conflict between an individual and society, is not a mental illness unless it is symptomatic of a dysfunction in the individual".
7. Section 1 of the Mental Health Care Act.
8. See also the definition of "severe or profound intellectual disability": "means a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care". See section 1 of the Mental Health Care Act.
9. Mason & McCall-Smith 164.
10. Rabey v R (1981) 114 DLR (3d) 193.
11. R v Sullivan [1983] 2 All ER 673 HL.
12. Mason & McCall-Smith 164-165.
13. See also R v Foy [1960] Qd R 225; R v O'Brien (1966) 56 DLR (2d) 65; R v Kemp [1956] 3 All ER 249. In Kemp, the accused suffered from arteriosclerosis, which interfered with the supply of blood to the brain. It was ruled, as a matter of law, that arteriosclerosis, being capable of affecting the mind, was therefore a disease of the mind in context of the M'Naghten Rules. Compare R v Quick where it was held that automatism due to hypoglycaemia in a diabetic was not the result of the underlying disease, but rather, was due to the external factor of injected insulin. The somewhat perverse implication to be derived from Quick is that diabetes per se is a disease of the mind. See R v Quick [1973] 3 All ER 347; [1973] QB 910.
14. Thompson 4. Compare also the definition of "mental health status": "[M]eans the level of mental well-being of an individual as affected by physical, social and psychological factors and which may result in a psychiatric diagnosis". See section 1 of the Mental Health Care Act.
15. Allan A "Psychiatric diagnosis in legal settings" 2005 11 South African Journal of Psychiatry 2: 55.
16. Sadock & Sadock (eds) viii.
17. Katona & Robertson 11.
18. See Swanepoel M & Mahomed S “Involuntary admission and treatment of mentally ill patients – The accountability of mental health review boards.” South African Journal of Bioethics and Law 2021;14(3):89-92.
19. See however Swanepoel & Mahomed South African Journal of Bioethics and Law 2021 89-92.
20. Section 19 of the Mental Health Care Act.
21. Section 24 of the Mental Health Care Act.
22. Section 1 of the Mental Health Care Act.
23. See Ndou MM “A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom” The Comparative and International Law Journal of South Africa” 56-83.
24. (1750-1823.) See Barak G et al Battleground: Criminal Justice (2007) 259ff.
25. (1763-1856.) See Robinson DN Wild beasts and idle humours: The insanity defense from antiquity to the present (1996) 142ff.
26. (1771/1772 – 1841.) Also spelled Hatfield.
27. Barrel J Imagining the king's death: Figurative treason, fantasies and regicide 1793-1796 (2000) 370ff.
28. (1710-1790.) Tuke DH A Dictionary of psychological medicine: Giving the definition, etymology and synonyms of the terms used in medical psychology with the symptoms, treatment, and pathology of insanity and the law of lunacy in Great Britain and Ireland (1892) 641ff.
29. Bordenn WA "A history of justice: Origins of law and psychiatry" 1999 24 AAPL Newsletter 2:12-14.
30. (1784–1857.) See Tuke S Description of the retreat: An institution near York, for insane persons of the Society of Friends (1813) 1ff.
31. Sadock BJ & Sadock VA (eds) Kaplan & Sadock's comprehensive textbook of psychiatry (2000) 3304; Katona C & Robertson M Psychiatry at a glance (2005) 62.
32. Section 1 of the UK-Mental Health Act.
33. Section 1(2)-(4) of the UK-Mental Health Act.
34. Section 2 of the UK-Mental Health Care Act.
35. Section 2(4) of the UK-Mental Health Act.
36. Section 3(3) of the UK-Mental Health Act.
37. Section 3(3) of the UK-Mental Health Act.
38. Section 4 of the UK-Mental Health Act.
39. Section 5 of the UK-Mental Health Act.
40. Section 6 of the UK-Mental Health Act.
41. Section 17 A of the UK-Mental Health Act.
42. Section 65 (1A) of the UK-Mental Health Act. Ndou 78-79.
43. Section 65 of the UK-Mental Health Act.
44. Section 68(2) of the UK-Mental Health Act.
45. Section 68(6) of the UK-Mental Health Act.
46. Ndou 82-83.
Bibliography
Ainsworth P, (assistant professor of psychiatry and human behavior at the University of Mississippi Medical Center and has a private practice) et al Understanding mental retardation (2014) University Press: Mississippi
Allan A, (professor and Chairman of the Department of Psychiatry and Behavioral Sciences at the University of Louisville) "Psychiatric diagnosis in legal settings" 2005 11 South African Journal of Psychiatry 2: 52-55
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) 5th ed text revision 2013 https://doi.org/10.1176/appi.books.9780890425596 USA
Barak G, (professor of criminology and criminal justice at Eastern Michigan University) et al Battleground: Criminal Justice (2007) Publisher: Greenwood
Barrel J, (late professor of English and Co-Director, Centre for Eighteenth Century Studies, University of York) Imagining the king's death: Figurative treason, fantasies and regicide 1793-1796 (2000) New York: Oxford University Press, USA, 2000 First Edition
Bartol CR, (Professional Psychology: Research and Practice) et al Criminal behaviour: A psychosocial approach (2008) Publisher: Prentice Hall
Bordenn WA, (no affiliation found) "A history of justice: Origins of law and psychiatry" 1999 24 AAPL Newsletter 2:12-14
World Health Organization, ICD-10: international statistical classification of diseases and related health problems: tenth revision, 2nd ed World Health Organization https://iris.who.int/handle/10665/42980
Katona C, & Robertson M, Psychiatry at a glance (2005) Publisher: Kent Institute of Medicine and Health Sciences
Mason JK, (late emeritus professor of Forensic Medicine at the University of Edinburgh School of Law) et al Law and Medical Ethics Eighth Edition Publisher: Juta Legal and Academic Publishers
Mental Capacity Act 2005
Mental Health Act 1983 as amended in 2007
Mental Health (Amendment) (Northern Ireland) Order 2004
Mental Health Care Act 17 of 2002
Mental Health (Care and Treatment) (Scotland) Act 2003
US Department of Health and Human Services, Mental Health: Report of the surgeon general Rockville, MD: US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health, 1999
Ndou MM, (North West University) “A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom” The Comparative and International Law Journal of South Africa 56-83
R v Foy [1960] Qd R 225
R v Kemp [1956] 3 All ER 249
R v O'Brien (1966) 56 DLR (2d) 65
R v Quick [1973] 3 All ER 347; [1973] QB 910
R v Sullivan [1983] 2 All ER 673 HL
Rabey v R (1981) 114 DLR (3d) 193
Robinson DN, (late professor of psychology at Georgetown University and later in his life became a fellow of the faculty of philosophy at Oxford University) Wild beasts and idle humours: The insanity defense from antiquity to the present (1996) Publisher: Harvard University Press
Sadock BJ, (professor of psychiatry, New York University) & Sadock VA (professor of psychiatry, New York University) (eds) Kaplan & Sadock's comprehensive textbook of psychiatry (2000) Wolters: Kluwer
Swanepoel M, (associate professor of law, University of South Africa) Law, Psychiatry and Psychology: A Selection of Constitutional, Medico-legal and liability issues 2009 published LLD thesis, University of South Africa Publisher: Lambert Academic Publishing
Swanepoel M, (associate professor of law, University of South Africa) & Mahomed S (professor of law, University of South Africa) “Involuntary admission and treatment of mentally ill patients – The accountability of mental health review boards.” South African Journal of Bioethics and Law 2021;14 (3):89-92. (Involuntary admission and treatment of mentally ill patients – the role and accountability of mental health review boards |Swanepoel South African Journal of Bioethics and Law (sajbl.org.za)
Swanepoel M, (associate professor of law, University of South Africa) "Human rights that influence the mentally ill patient in South African medical law: A discussion of sections 9, 27, 30, and 31 of the Constitution" 2011 14 PER 7:127-146
Swanepoel M, (associate professor of law, University of South Africa) "A selection of constitutional aspects that impact on the mentally disordered patient in South Africa" 2011 32 Obiter 2: 282-303
Swanepoel M, (associate professor of law, University of South Africa) "Law, psychiatry and psychology: A selection of medico-legal and clinical issues" 2010 THRHR 177-199
Tuke DH, (no affiliation found) A Dictionary of psychological medicine: Giving the definition, etymology and synonyms of the terms used in medical psychology with the symptoms, treatment, and pathology of insanity and the law of lunacy in Great Britain and Ireland (1892) London J & A Churchill 11 New Burlington Street
Tuke S, (no affiliation found) Description of the retreat: An institution near York, for insane persons of the Society of Friends (1813) York: The Retreat Archive
2. Bartol CR et al Criminal behaviour: A psychosocial approach (2008) 228-229.
3. "Mental Health: Report of the surgeon general" 1999 in Mental illness 4.
4. Bartol Criminal behaviour: A psychosocial approach 228-229.
5. Another term that must be distinguished from mental illness and mental disorder is "mental retardation", professionally known as developmental disability. This is a cognitive deficiency - measured by IQ tests (specifically, IQ below 70), which cannot be cured. It is a syndrome of delayed or ill brain development evident before age 18 years. It results in difficulty learning information and skills needed to adapt quickly and adequately to environmental changes. See Ainsworth P et al Understanding mental retardation (2014) 3.
6. According to the American Psychiatric Association the term "mental illness" unfortunately implies a distinction between "mental illnesses" and "physical illnesses", which is a reductionistic anachronism of mind / body dualism. A compelling literature documents that there is much "physical" in "mental illnesses" and much "mental" in "physical illnesses". However, the problem raised by the term mental illness has been much clearer than its solution, and the term will have to persist until an appropriate substitute is found. See American Psychiatric Association DSM-5 xxi. See also the definition of mental illness according to ICD-10: "a mental illness is a clinically recognisable collection of symptoms or behaviour associated in most cases with distress or interference with personal functions. A deviant pattern of behaviour, whether political, religious, or sexual, or a conflict between an individual and society, is not a mental illness unless it is symptomatic of a dysfunction in the individual".
7. Section 1 of the Mental Health Care Act.
8. See also the definition of "severe or profound intellectual disability": "means a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care". See section 1 of the Mental Health Care Act.
9. Mason & McCall-Smith 164.
10. Rabey v R (1981) 114 DLR (3d) 193.
11. R v Sullivan [1983] 2 All ER 673 HL.
12. Mason & McCall-Smith 164-165.
13. See also R v Foy [1960] Qd R 225; R v O'Brien (1966) 56 DLR (2d) 65; R v Kemp [1956] 3 All ER 249. In Kemp, the accused suffered from arteriosclerosis, which interfered with the supply of blood to the brain. It was ruled, as a matter of law, that arteriosclerosis, being capable of affecting the mind, was therefore a disease of the mind in context of the M'Naghten Rules. Compare R v Quick where it was held that automatism due to hypoglycaemia in a diabetic was not the result of the underlying disease, but rather, was due to the external factor of injected insulin. The somewhat perverse implication to be derived from Quick is that diabetes per se is a disease of the mind. See R v Quick [1973] 3 All ER 347; [1973] QB 910.
14. Thompson 4. Compare also the definition of "mental health status": "[M]eans the level of mental well-being of an individual as affected by physical, social and psychological factors and which may result in a psychiatric diagnosis". See section 1 of the Mental Health Care Act.
15. Allan A "Psychiatric diagnosis in legal settings" 2005 11 South African Journal of Psychiatry 2: 55.
16. Sadock & Sadock (eds) viii.
17. Katona & Robertson 11.
18. See Swanepoel M & Mahomed S “Involuntary admission and treatment of mentally ill patients – The accountability of mental health review boards.” South African Journal of Bioethics and Law 2021;14(3):89-92.
19. See however Swanepoel & Mahomed South African Journal of Bioethics and Law 2021 89-92.
20. Section 19 of the Mental Health Care Act.
21. Section 24 of the Mental Health Care Act.
22. Section 1 of the Mental Health Care Act.
23. See Ndou MM “A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom” The Comparative and International Law Journal of South Africa” 56-83.
24. (1750-1823.) See Barak G et al Battleground: Criminal Justice (2007) 259ff.
25. (1763-1856.) See Robinson DN Wild beasts and idle humours: The insanity defense from antiquity to the present (1996) 142ff.
26. (1771/1772 – 1841.) Also spelled Hatfield.
27. Barrel J Imagining the king's death: Figurative treason, fantasies and regicide 1793-1796 (2000) 370ff.
28. (1710-1790.) Tuke DH A Dictionary of psychological medicine: Giving the definition, etymology and synonyms of the terms used in medical psychology with the symptoms, treatment, and pathology of insanity and the law of lunacy in Great Britain and Ireland (1892) 641ff.
29. Bordenn WA "A history of justice: Origins of law and psychiatry" 1999 24 AAPL Newsletter 2:12-14.
30. (1784–1857.) See Tuke S Description of the retreat: An institution near York, for insane persons of the Society of Friends (1813) 1ff.
31. Sadock BJ & Sadock VA (eds) Kaplan & Sadock's comprehensive textbook of psychiatry (2000) 3304; Katona C & Robertson M Psychiatry at a glance (2005) 62.
32. Section 1 of the UK-Mental Health Act.
33. Section 1(2)-(4) of the UK-Mental Health Act.
34. Section 2 of the UK-Mental Health Care Act.
35. Section 2(4) of the UK-Mental Health Act.
36. Section 3(3) of the UK-Mental Health Act.
37. Section 3(3) of the UK-Mental Health Act.
38. Section 4 of the UK-Mental Health Act.
39. Section 5 of the UK-Mental Health Act.
40. Section 6 of the UK-Mental Health Act.
41. Section 17 A of the UK-Mental Health Act.
42. Section 65 (1A) of the UK-Mental Health Act. Ndou 78-79.
43. Section 65 of the UK-Mental Health Act.
44. Section 68(2) of the UK-Mental Health Act.
45. Section 68(6) of the UK-Mental Health Act.
46. Ndou 82-83.
Bibliography
Ainsworth P, (assistant professor of psychiatry and human behavior at the University of Mississippi Medical Center and has a private practice) et al Understanding mental retardation (2014) University Press: Mississippi
Allan A, (professor and Chairman of the Department of Psychiatry and Behavioral Sciences at the University of Louisville) "Psychiatric diagnosis in legal settings" 2005 11 South African Journal of Psychiatry 2: 52-55
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) 5th ed text revision 2013 https://doi.org/10.1176/appi.books.9780890425596 USA
Barak G, (professor of criminology and criminal justice at Eastern Michigan University) et al Battleground: Criminal Justice (2007) Publisher: Greenwood
Barrel J, (late professor of English and Co-Director, Centre for Eighteenth Century Studies, University of York) Imagining the king's death: Figurative treason, fantasies and regicide 1793-1796 (2000) New York: Oxford University Press, USA, 2000 First Edition
Bartol CR, (Professional Psychology: Research and Practice) et al Criminal behaviour: A psychosocial approach (2008) Publisher: Prentice Hall
Bordenn WA, (no affiliation found) "A history of justice: Origins of law and psychiatry" 1999 24 AAPL Newsletter 2:12-14
World Health Organization, ICD-10: international statistical classification of diseases and related health problems: tenth revision, 2nd ed World Health Organization https://iris.who.int/handle/10665/42980
Katona C, & Robertson M, Psychiatry at a glance (2005) Publisher: Kent Institute of Medicine and Health Sciences
Mason JK, (late emeritus professor of Forensic Medicine at the University of Edinburgh School of Law) et al Law and Medical Ethics Eighth Edition Publisher: Juta Legal and Academic Publishers
Mental Capacity Act 2005
Mental Health Act 1983 as amended in 2007
Mental Health (Amendment) (Northern Ireland) Order 2004
Mental Health Care Act 17 of 2002
Mental Health (Care and Treatment) (Scotland) Act 2003
US Department of Health and Human Services, Mental Health: Report of the surgeon general Rockville, MD: US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health, 1999
Ndou MM, (North West University) “A comparative discussion of the regulation of Mental Health Review Boards in South Africa and the Mental Health Review Tribunal in the United Kingdom” The Comparative and International Law Journal of South Africa 56-83
R v Foy [1960] Qd R 225
R v Kemp [1956] 3 All ER 249
R v O'Brien (1966) 56 DLR (2d) 65
R v Quick [1973] 3 All ER 347; [1973] QB 910
R v Sullivan [1983] 2 All ER 673 HL
Rabey v R (1981) 114 DLR (3d) 193
Robinson DN, (late professor of psychology at Georgetown University and later in his life became a fellow of the faculty of philosophy at Oxford University) Wild beasts and idle humours: The insanity defense from antiquity to the present (1996) Publisher: Harvard University Press
Sadock BJ, (professor of psychiatry, New York University) & Sadock VA (professor of psychiatry, New York University) (eds) Kaplan & Sadock's comprehensive textbook of psychiatry (2000) Wolters: Kluwer
Swanepoel M, (associate professor of law, University of South Africa) Law, Psychiatry and Psychology: A Selection of Constitutional, Medico-legal and liability issues 2009 published LLD thesis, University of South Africa Publisher: Lambert Academic Publishing
Swanepoel M, (associate professor of law, University of South Africa) & Mahomed S (professor of law, University of South Africa) “Involuntary admission and treatment of mentally ill patients – The accountability of mental health review boards.” South African Journal of Bioethics and Law 2021;14 (3):89-92. (Involuntary admission and treatment of mentally ill patients – the role and accountability of mental health review boards |Swanepoel South African Journal of Bioethics and Law (sajbl.org.za)
Swanepoel M, (associate professor of law, University of South Africa) "Human rights that influence the mentally ill patient in South African medical law: A discussion of sections 9, 27, 30, and 31 of the Constitution" 2011 14 PER 7:127-146
Swanepoel M, (associate professor of law, University of South Africa) "A selection of constitutional aspects that impact on the mentally disordered patient in South Africa" 2011 32 Obiter 2: 282-303
Swanepoel M, (associate professor of law, University of South Africa) "Law, psychiatry and psychology: A selection of medico-legal and clinical issues" 2010 THRHR 177-199
Tuke DH, (no affiliation found) A Dictionary of psychological medicine: Giving the definition, etymology and synonyms of the terms used in medical psychology with the symptoms, treatment, and pathology of insanity and the law of lunacy in Great Britain and Ireland (1892) London J & A Churchill 11 New Burlington Street
Tuke S, (no affiliation found) Description of the retreat: An institution near York, for insane persons of the Society of Friends (1813) York: The Retreat Archive