BRAIN FREEDOM: UN Convention adopts SA Bill of Rights position

A UNITED NATION’S convention has adopted key elements of South Africa’s Bill of Rights on the eve of the country’s Constitution Celebrations. These include human dignity, equality and psychological integrity, in other words, the right to be considered a person and to exercise legal capacity, irrespective of one’s mental state or disability.

The week of 17 to 21 March 2007 has already been named National Constitution Week by the Constitutional Court, and consequently South African members of the World Network of Users & Survivors of Psychiatry are calling for special emphasis and care to be placed on the rights of people living with psycho-social disabilities, as well as for current South African Mental Health Care legislation to be brought in line with recent advances and progress in the sector. This comes as we celebrate human rights and democratic principles.

South Africa’s Human Rights-based Constitution came into effect on February 4, 1997, after being signed into law by President Nelson Mandela at Sharpeville, (in Vereeniging on December 10, 1996) a decade ago. Unfortunately key elements have not been translated into practice. Psychiatric patients continue to be denied the most basic of human rights — the right to be regarded as persons and to exercise legal capacity. The International Disability Caucus (IDC), which served as the coordinating body for the participation of people with disabilities in the drafting and negotiation process for the convention, of which WNUSP was a part, was in favour of a supported decision making model, which we succeeded in getting into the final text of the Convention. This model is in direct opposition to the current legal framework in which guardianship is exercised over people with disabilities.

The UN Convention on the Rights of People with Disabilities, adopted by the General Assembly on December 13, 2006, makes reference to South Africa’s article 12, in particular, 12 (2), which includes the right to psychological integrity, i.e. to be regarded as a person, and to be recognized as such before the law — an expression which was signed into law by President Nelson Mandela.

In the UN version of South Africa’s article 12, the convention awards persons with psycho-social disabilities, equality before the law and access to equal protection, and protection against discrimination, amongst other things. ‘Persons with disabilities’ it says ‘have the right to recognition everywhere as persons before the law.’ Furthermore, ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’ Signatories to the convention are further obliged to take ‘appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’.

South African Health Care legislation continues to operate on the assumption that mental health users have no capacity to act, and may therefore be incarcerated against their will, suffer preventive or pre-emptive detention for their own good, or the good of society, and be locked up without access to legal assistance for up to 45 days at a time. In fact in Chapter 5, article 37 of the Mental Health Care Act (2002), the head of health establishments need only review the involuntary commitment status of an individual every 6 months and every 12 months thereafter. Article 12 of South Africa ‘s Bill of Rights, expressly forbids detention without trial. The contradiction in the way our society treats people with disabilities as well as users and survivors of psychiatry is remarkable in this new era of freedom.

In article 17 of the UN convention, the ‘mental integrity’ of the person is given protection. ‘Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.’ This reaffirms South Africa ‘s bill of rights, specifically article 12 which includes the freedom and security of the person (which links the right to bodily and psychological integrity), including the right to: ­

to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.

Despite these guarantees, South Africa’s mental health legislation continues the old practice of coercive psychiatry, alongside forced admissions to mental hospitals, the use of torture as a form of medical treatment (such as electroconvulsive shock therapy, invasive psychosurgery and mechanical and chemical restraint) and the denial of legal capacity via a system which precludes the intervention of legal practitioners and human rights advocates in the very process in which human dignity is stripped from a patient as the patient is turned into a medical subject and given a medical label.

While the latest version of South Africa’s Mental Health Care Act (2002) contains various reformist measures, alongside an incoherent attempt to exclude the commitment of patients on socio-economic or political grounds, it is a far cry from the express limitation on detention without trial and human rights contained within the constitution, and now adopted by the United Nations General Assembly via an International Convention.

Submitted on behalf of the User/Survivor movement by

Moosa Salie

105 Coronation Road , Maitland

tel. 021 5115776

Positions held:

Co-chair, World Network of Users and Survivors of Psychiatry

Director on the board of the African Decade for People with Disabilities, representing the Pan African Network of Users and Survivors of Psychiatry

Coordinator of recently launched independent, User/ Survivor Network in Cape Town

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