INTERACTION BETWEEN MENTAL HEALTH ACT AND SECTION 77(6) CPA

IN RE JY 2016 (1) SACR 399 (KZP)

 

Mental health — Involuntary healthcare user — Interaction between Mental Health Care Act 17 of 2002 and s 77(6)(a)(ii) of Criminal Procedure Act 51 of 1977 — Provisions of former cannot be dispensed with or superseded by latter.

 

The provisions of the Mental Health Care Act 17 of 2002 (the MHCA) cannot be dispensed with or superseded by the provisions of s 77(6)(a)(ii) of the Criminal Procedure Act 51 of 1977 (CPA). They work in conjunction with each other while serving different purposes, namely:

  • The detention of persons under s 37 of the MHCA caters for cases where persons are not criminally charged for any offences, whereas s 77(6)(a)(ii) of the CPA provides for the referral of accused persons who are charged for offences and are found unfit to stand trial.
  • Where an institution is not specified in the court order referring a person in terms of s 77(6)(a)(ii) of the CPA, the chairperson of the mental-health review board would be at liberty to select an institution which would be in the best interest of the mental-healthcare user, without reverting to the court.
  • Where the mental-health review board finds that the person referred does not require involuntary care, treatment and rehabilitation, an application should be made to the High Court for the release of such person.
  • Where the referral is done in terms of s 77(6)(a)(ii), and the mental-health reports pursuant to the provisions of ss 79(3) and (4) of the CPA are done, such reports must be sent to the mental-healthcare practitioners of the institution specified in the referral in terms of s 77(6)(a)(ii) of the CPA.
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