An analysis of informed consent and clinical aspects regarding mental capacity in context of the Mental Health Care Act 17 of 2002

Abstract

This study aims to establish a coherent framework for informed consent by mentally ill persons in South Africa, with specific focus on the role and impact of the Mental Health Care Act 17 of 2002. The analysis is done from a constitutional-, legislative-, common law- and ethics perspective. Selected clinical aspects pertaining to informed consent by mentally ill persons are explored with reference to the different categories of mental health care users provided for in terms of the Mental Health Care Act. It is found that although the Mental Health Care Act has made considerable progress in terms of promoting the basic human- and health rights of the mentally ill, discrepancies and deficiencies are still present in the Act which may result in unnecessary confusion and prejudice to the rights of mental health care users, hence undermining the objectives of the Act itself. An attempt is made to address the current shortcomings and discrepancies within the mental health care system by means of suggested amendments to the Mental Health Care Act.