It was proposed to amend the law to prevent courts from referring state patients to correctional services.
Skeptical MPs asked a number of questions on Tuesday after the Corrective Services Portfolio Committee revealed that 437 people deemed mentally unfit to face criminal charges were being held in prisons rather than psychiatric hospitals.
The number of cases has doubled in two years from 204 and 117 cases in 2020.
The Department of Health said this was partly related to the harsh fact that state patients can only be admitted to one of the 14 facilities available across South Africa. This is subject to bed availability at the time of order.
Another reason is that correctional services temporarily house psychiatric patients in facilities if beds are not available.
“Why is keeping them in prison the middle ground we have decided on?” asked Kabelo Kgobisa Nqaba from the prosecutor’s office.
“The reason they weren’t convicted is because they weren’t in good health. So even though they’re violent people, they’re not fit to go to prison.”
“This is incredibly inhumane, vulgar, and violates our Constitution.”
prison waiting list
Ideally, authorities should transfer state patients to psychiatric hospitals within 30 days, but this rarely happens.
Inspecting Judge Leonard Bozalek of the Corrective Services Judicial Inspectorate said state patients at the Pietermaritzburg Intermediate A facility had been detained since 2020.
EFF’s Karl Niehaus called for clarification on the backlog of defendants requiring forensic observation.
“It is true that the accused have been waiting a very long time for an assessment,” said Nicholas Crisp, acting director of the National Health Service at the Ministry of Health.
While 2,783 patients are still awaiting observation, only 339 were newly admitted to psychiatric hospitals.
Dudu Siva, head of mental health and substance abuse at the Department of Health (DoH), said the number of referrals was continually increasing and there were “approximately 10% of these declared state patients”.
The Ministry of Health said it does not have the budget to clear the backlog.
“The Ministry of Justice and the CD have not paid the Ministry of Defense for forensic psychiatric observations carried out since 2023. Currently, R380 million is outstanding. The Ministry of Defense continues to expend resources on this unfunded service,” the ministry said.
Change the law to eliminate arrears
Bozalek proposed changing the law to prevent courts from referring state patients to correctional services.
“Or, what I prefer, if there are no beds in a mental health facility, we refer the patient to a correctional facility for up to 30 days,” he said.
If there is no change by then, the facility director should go to court for another order to return the person to the medical facility, he said.
Misrepresentation of “condition patient”
In addition, courts are increasing the number of state patients by recognizing mentally unfit people who have committed misdemeanors as state patients, Shiba said.
By law, they are to be admitted as involuntary psychiatric patients and treated at one of 64 hospitals designated by the Mental Health Act, yet only 6,290 were admitted.
Only serious criminals should be treated as patients of the state, yet overcrowded prisons are further packed with unnecessary court orders.
With more than 168,000 prisoners currently crammed into facilities built for just over 107,000 people, South Africa’s correctional system is operating at 58% above capacity.
“If you were to add everyone in prison and increase the current hospital population, that would only be a 10% increase,” Nqaba said.
Principal Deputy Commissioner for Rehabilitation Anna Molepo said only 159 state patients had been transferred from prisons to health facilities.
“What message do you think is being sent by us continuing to use prisons as de facto psychiatric wards?” asked prosecutor Janho Engelbrecht.
There aren’t enough hospitals, psychiatrists, or beds.
There are 942 psychiatrists in South Africa. Of these, 707 work in the private sector, and the majority of patients are treated in the public sector.
“The private sector is having a hard time hiring people,” Crisp said.
Rural facilities such as Komani, Umzimkulu, and Hayani are considered to be underserved because there are fewer psychiatrists willing to work there and community health centers are generally not prioritized.
However, the Health Department announced that “a psychiatrist has been appointed to Komani Psychiatric Hospital in 2025 through headhunting.”
Where are the facilities located in Mpumalanga?
There are only 14 medical facilities in the country with the capacity to accept state patients. There are at least two in each state. Except for Mpumalanga.
The state does not have a single psychiatric facility for state patients, creating an administrative challenge. This includes transporting patients across state lines, estranged families, and transporting more patients to understaffed facilities.
The committee was told that the Mpumalanga construction project would begin in 2022.
“Four years later, you said the exact same thing,” Engelbrecht said. “What exactly is the current status of that project?”
Crisp said the building was only designed and no physical location was chosen.
“This has been in the works for some time and is at the BFI,” he said.
He added that the nature of the BFI, which is a state-managed infrastructure fund for new buildings in South Africa, is hampering construction.
“There is an expectation from the Treasury that our facilities have to make a profit. So you ask how are public sector mental health facilities going to make a profit? That’s not possible.”
“They even asked, ‘Can we charge more for parking?’ So it’s like a slap in the face to the health department,” he says.
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