Mental Health

According to the Department of Health, one out of four South Africans has, or is affected by mental illness.1 Given that the brain is an organ, just like any other in the human body, this statistic should not be surprising, though it is of heightened concern due to the implications following dysfunction or impairment of the brain.

The Mental Health Care Act 2002 recognises that health, overall, is a state of mental well-being just as much as it is of physical or social well-being. Moreover, given that the Constitution prohibits unfair discrimination against people with a disability, and that such people may at times require protection, the Act makes careful provision for the care, treatment and rehabilitation of persons who are mentally ill. It also establishes procedures for their admission to places of care, and for the administration of their property.

A. Health care establishments

  1. Any person who obstructs or hinders any person in the performance of his functions at a mental health care establishment commits a crime.2

  2. Any person who misrepresents any fact in the following documents commits a criminal offence:

    • a report to the Mental Health Review Board3 which must be submitted on the care, treatment or rehabilitation in relation to each mental health patient;4
    • an application to court, or to a Review Board (including for the transfer of a patient to security facilities) or to a judge – in particular, for the discharge of state patients;5
    • a report issued to someone on his discharge from an establishment;6
    • reports on mentally ill prisoners;7
    • applications concerning the care and treatment of a patient who is likely to inflict serious harm to himself or others, and is incapable of making an informed decision himself;8
    • findings consequent upon the examination of patients;9
    • applications to the Master of the High Court for the appointment of an administrator for a mentally ill person.10

B. Health care users11

  1. It is a criminal offence to neglect, abuse or to treat a mental health care user in a degrading manner.12

  2. It is a criminal offence to allow a patient to be treated in that manner.13

  3. It is a crime to assist or encourage a patient to abscond from a health establishment.14

  4. It is also a crime to assist or encourage him not to comply with any care treatment or rehabilitation plan, or the conditions imposed upon any leave of absence.15

  5. Any person who refuses to furnish information to the police about the whereabouts of an absconded patient commits an offence; and, also, if he provides false information.16

  1. Source:

  2. Section 70(1)(b). 

  3. Such a board exists in respect of every mental health care establishment. 

  4. Section 9(2)(a), section 28(1), section 30, section 34(3)(b)(ii), section 37(3), section 39(2) read with section 70(1)(a). 

  5. Section 43(4)(b), section 47(2) read with section 70(1)(a). 

  6. Section 16 read with section 70(1)(a). 

  7. Section 50(2), section 55(3), section 56(a) read with section 70(1)(a). 

  8. Section 26 read with section 70(1)(a). 

  9. Section 27(5) read with section 70(1)(a). 

  10. Section 60 read with section 70(1)(a). 

  11. This is the term used in the Act for a person receiving care, treatment and rehabilitation. 

  12. Section 70(1)(c). 

  13. Section 70(1)(c). 

  14. Section 70(1)(d)(i). 

  15. Section 70(1)(d)(ii). 

  16. Section 70(1)(e).