An assessment of mental health care law in South Africa with specific reference to the Life Esidimeni tragedy

Abstract

The history of mental illness and its treatment reveals apart from each other the mentally-ill have had few advocates and have suffered confinement and neglect. The treatment of persons with mental illness occupies a dark place in the pages of history. South Africa’s new democratic order ushered in by the 1993 Interim Constitution1 was confirmed with the signing by President Nelson Mandela of the 1996 Constitution2 at Sharpeville on 10 December 1996. These developments brought to a close a long and bitter struggle to establish democracy in South Africa. In South Africa after the introduction of a democratic constitution there was an evident awareness that mental health had been neglected and that the transition to democracy requires it be given more attention. The Mental Health Care Act of 2002 and read with the Bill of Rights are key documents to regulating mental health care in South Africa. This study investigates where accountability lies following tragedies such as the Life Esidimeni incident. It examines the findings of the Ombudsman and the evidence that came out of the arbitration process to determine what should happen next. A particular focus in the study is on legal liability and accountability, as well as on issues of negligence and the law regarding obedience to the orders of superiors. The dissertation critically examines the Mental Health Care Act and its alignment with the South African Constitution and other international, regional and national human rights law instruments.