WHILE THE Canadian state of Ontario was removing the cap on the number of marijuana shops in the province, South Africa’s drug enforcement agencies were busy taking down a dagga dispensary franchise operation known as Canapax. News of cannabis operations being opened to the public overseas were met by stories of SAPS beating up on local dagga activists. The death of Rastafarian Jan de Bruin at the hands of law enforcement, is a particularly galling example. De Bruin’s crime, having the audacity to grow weed in the small town of Wellington.
The country’s inability to deal with the ramifications and nuances of the end of prohibition follows a groundbreaking ConCourt ruling last year which allows use of the herb in private, yet expressly forbids dealing, while granting Parliament a period in which to review regulations.
Canapax, a going concern was ostensibly rolled out in terms of the ‘Traditional Health Practitioners Act of 2007’ (THP). The result was a tragic case of magical thinking. Franchisees sincerely believed that Canapax had all its papers in order, and was operating as a registered entity under the act.
Out of the frying pan and into the fire, to put it mildly. Since in terms of the law, it is still an offence to practice as a traditional healer without a licence — health practitioners may not prescribe nor examine patients without authorisation under a regime, which is essentially based upon a medical model.
Fields of Green a website published by Julian Stobbs and Myrtle Clarke maintain that the real reason was that THP precludes healers from prescribing any ‘dependence producing or dangerous substance or drug.”
The statement were supposedly backed up by a briefing issued by SAPS and comes after a directive was issued by the NPA on the subject calling upon officers to obey the ConCourt decision.
That both law enforcement and the so-called Dagga Couple had it wrong can be seen by the fact that our apex court had already ruled that dagga was no longer a dangerous , dependency causing substance but rather could be used in private. The law in this respect had yet to be confirmed by parliament.
As I suggested to Gareth Prince and Richard Kraak, during the period of the High Court trial, your crime is essentially, ‘baking bread in a no-baking zone’. Microbrewers of gin don’t have the same problem as growers of cannabis in selling their product, nor do bakers of bread, what exactly is going on?
The ConCourt decision essentially shifted weed from the realm of the narcotics and medicines act into the realm of the liquor act, at least insofar as harm was concerned. Ganga is no more harmful than a tipple and in many respects less harmful than alcohol.
Here is another way of looking at this: Under Dagga Prohibition, the law had three pillars; 1) Dagga is a dangerous, dependency causing substance and therefore is prohibited 2) It must follow that no dealing or possession is allowed 3) You cannot grow or produce a prohibited substance.
Along came the ConCourt decision, down went pillar one:
1) Dagga no longer dangerous
2) It read into law the decision, and gave Parliament two years to come up with regulations.
3) It maintained the regime with regard to dealing, but stated that possession and growing in private was allowed.
It doesn’t take much further reasoning to show how dagga prohibition came to an end, and how dealing in dagga today, is about as bad as dealing in bread without a licence.
Yet absolutely nobody gets bust for baking bread or distilling alcohol these days. It serves no purpose to continue to claim that dagga is harmful and ergo, must be regulated.
There really is no sense in cannabis culture continuing to pursue a medical model ( ditto patient confidentiality?) and for regulators to continue to pursue a regime which no longer has constitutional validity.
If anything Canapax erred in not seeking proper registration with the THP council. Under THP penalties are imposed on individuals who practice as traditional healers sans registration.
This model was clearly not the best vehicle for a commercial dispensary operation, and yet, significantly, THP does create a system for dispensing ganga which is no longer considered dangerous, but only if you happen to be licensed. No need to read new laws, while we here, may as well state the obvious, ganga has been prescribed for many decades by registered alternative health practitioners, they are not dealing, but healing.
Evidence lead during the ConCourt “trial of the plant’ was that dagga had many health benefits, and the evidence is both mounting and persuasive.
Clearly, Traditional Health Practitioners may prescribe cannabis, as a complimentary traditional therapy, but may run foul of the law in calling it a medicine.
It is surely up to our legislature to clarify and refine the regulations.
THE SCANDAL involving the deaths of nearly 100 so-called ‘mental patients’ deserves more consideration. Missing from the press narrative regarding the tragedy, involving an investigation by Health Ombudsperson Malegapuru Makgoba and the many understatements and obfuscations by Health Minister Elias Motsoaledi, is any criticism of the designated methodology used to commit patients, namely psychiatry.
Until 2002 when the Mental Health Care Act was implemented and then amended in 2004, it was considered acceptable to incarcerate persons for political and socio-economic reasons. Involuntary psychiatric commitment was a hallmark of the apartheid regime. Yet the practice of ‘torture as treatment’ deployed by persons such as Dr Aubrey Levin, aka ‘Dr Shock’, continued long past the transition.
It should be remembered that thousands of SADF conscripts ended up in South African asylums, and many were only dehospitalised in 1994. Despite these amendments outlawing involuntary commitment on specific grounds, psychiatry remains the designated methodology deployed by our health department.
All it takes today is two doctors to commit a patient. There is no obligation for these doctors to even see the patient, and thus involuntary commitment of political dissidents may occur even via remote control. Once inside the system, it is extremely difficult for patients to gain access to what little remains of human agency, both in terms of human rights and decision making.
Despite provisions within the Act, it must be noted the so-called Mental Health ‘review boards’, do not function as personal ombuds as such, and even if they did, the problem arises, that of legal representation.
Bar the existence of the general health ombud, there is still no dedicated and practical ombud system focused on South Africa’s so-called mental institutions, nor an independent watchdog for that matter, and we still lack genuine means by which such persons may safely contest a commitment decision and especially when their rights are infringed.
A psychiatric patient for instance, might appear before a judge or lawfully convened health panel, but in a highly medicalised state, and without a dedicated representative, present, to argue his or her case. The situation is akin to being charged with a crime, in this case in the form of a medical diagnosis, and yet to be cast within a situation where there is no defense against what is essentially the medical dismissal of one’s ideas and behaviour.
A dire state which makes the possession of other rights in the constitution, meaningless.
It is not surprising, and given the many articles on this issue in the foreign press, that South Africa has consistantly failed to provide UN country reports on the status of its psychiatric patients, and by most accounts, has failed to honour its obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD).
The release of the damning health ombud report is however to be welcomed as one small step towards rectifying this horrendous situation.
Both article 12 of the CRPD convention and article 12 of our own Constitution, guarantee that psychiatric patients have human rights and are also to be considered in possession of ‘psychological integrity’, — an all-important concept when one remembers — whether unconscious or asleep, citizens do not automatically lose the presumption of consciousness, as they did under the past regime.
While the UCT sponsored psychiatric consortium has received massive funding from central government and is currently expanding the Valkenberg facility to twice its size, these funds could be better spent on providing therapies within complementary modalities. Instead Big Pharma is the big winner in a model which provides persons with a diagnosis and then treats the diagnosis instead of the individual.
Mental diseases unlike physical diseases are invented. It takes two persons to have a mental illness. Every year the psychiatric profession vote on what to include in the Diagnostic Statistical Manual (DSM). The same cannot be said of cardiologists and neurologists. Mental illness labels are thus a social construction.
Medical professionals such Dr Aubrey Levin and others, who administered Electroconvulsive Shock Therapy (ECT) to persons suffering from what was then considered a mental illness, namely homosexuality, were never prosecuted by the TRC. The commission failed to investigate the use of ‘torture as treatment’ under apartheid.
Psychosurgery as well as ECT are still considered ‘therapies’ under the current act, which fails to provide for comparative therapies and other treatments. It is time for a commission of inquiry into abuses and gross violations committed by psychiatry under apartheid and for new thinking on this important subject.
Upon the investigation, the Ombud has established that:
- A total of ninety-four (94+) and not thirty-six (36) mentally ill patients (as initially and commonly reported publicly in the media) died between 23 March 2016 and 19 December 2016 in Gauteng Province. This total number of 94 should be seen as a working and provisional number.
- All the 27 NGOs to which patients were transferred operated under invalid licences; therefore, all patients who died in these NGOs died in unlawful circumstances
- The NGOs where the majority of patients died had neither the basic competence and experience, the leadership/managerial capacity nor ‘fitness for purpose’ and were often poorly resourced. The existent unsuitable conditions and competence in some of these NGOs precipitated and are closely linked to the observed ‘higher or excess’ deaths of the mentally ill patients.
- 75 (79.78%) patients died from 5 NGO/hospital complexes (Precious Angels 20, Cullinan Care and Rehabilitation Centre (CCRC)/ Siyabadinga/Anchor 25, Mosego/Takalani 15, Tshepong 10 and Hephzibah 5);
- There were 11 NGOs with no deaths, 8 NGOs with average deaths and 8 NGOs with ‘higher or excess’ death;
- Only 4 Mental Health Care Users (MCHUs) died in hospitals compared to 77 MCHUs deaths at NGOs; in absolute numbers for every 1 death at the hospitals there were 19 deaths at the NGOs but correcting for the total base population the ratio is 1:7. This ratio is very high.
- When the MEC of Health made announcement on 13 September 2016, 77 patients had already lost their lives.
- At the time of writing the Report, 94 patients had died in 16 out of 27 NGOs and 3 hospitals.
- 95.1% deaths occurred in the NGOs from those directly transferred from LE Health Care Centre.
- Available evidence by the Expert Panel and the Ombud showed that a ‘high-level decision’ to terminate the LE Health Care Centrecontract precipitously was taken, followed by a ‘programme of action’ with disastrous outcomes/consequences including the deaths of Assisted MCHUs. The Ombud identified three key players in the project: MEC QedaniDorothy Mahlangu, Head of Department (HoD),Dr. Tiego Ephraim Selebano and Director Dr. Makgabo Manamela at times referred to as ‘dramatis personae’ in the text. Their fingerprints are ‘peppered’ throughout the project. The decision was reckless, unwise and flawed, with inadequate planning and a chaotic and ‘rushed or hurried’ implementation process.
- Several factors in the ‘programme of action’ were identified by the (Expert Panel, OHSC Inspectors, Ombud and Ministerial Advisory Committee) that contributed and precipitated to the accelerated deaths of mentally ill patients at the NGOs. The transfer process particularly, was often described as ‘chaotic or a total shamble’;
- The Gauteng Mental Health Marathon Project, as it became known was: done in a ‘hurry/rush’; with ‘chaotic’ execution; in an environment with no developed, no tradition, no culture of primary mental health care community-based service framework and infrastructure;
Human Rights Violations.
There is prima facie evidence, that certain officials and certain NGOs and some activities within the Gauteng Marathon Project violated the Constitution and contravened, the National Health Act and the Mental Health Care Act (2002). Some executions and implementation of the project have shown a total disregard of the rights of the patients and their families, including but not limited to the Right to Human dignity; Right to life; Right to freedom and security of person; Right to privacy, Right to protection from an environment that is not harmful to their health or well-being, Right to access to quality health care services, sufficient food and water and Right to an administrative action that is lawful, reasonable and procedurally fair.
The Ombud established that the following decisions/actions were negligent or reckless by the Department of Health:
- Overcrowded NGOs which are more restrictive, is contrary to the deinstitutionalization policy of the MHCA and MH Strategy and Policy.
- Transfer of patients to far-away places from their communities, is contrary to the policy of deinstitutionalization.
- Transfer of patients to NGOs that were ‘not ready’, that were ‘not prepared properly for the task’.
- Transfer of patients without the provision of structured community mental health care services is contrary to the Mental Health policy.
- NGOs without qualified staff and skills to care for the special requirements of the patients.
- NGOs without appropriate infrastructure and not adequately financially resourced.
- NGOs without safety and security.
- NGOs without proper heating during winter, some were described as ‘cold’.
- NGOs without food and water, where patients became emaciated and some died of ‘dehydration’.
- Grant and sign licences without legal or delegated authority.
IMAGINE a world in which the state keeps compulsory psychiatric records of all its citizens dating from birth. A world in which the only mode of treatment is drugs and electroconvulsive shock therapy. A world in which dissident voices, outspoken critics, different points of view are swept away behind a curtain of secrecy, conformity and denial while natural remedies, peer counselling and psychological support services are banned.
If plans by South Africa’s Psychiatric Consortium are to be taken seriously, then a nation-wide programme of psychiatric intervention in the form of “aid to children of school-going age,” could result in a dystopian vision reminescent of George Orwell and Aldous Huxley.