Human rights became a global focus after the Universal Declaration of Human Rights was adopted by the UN General Assembly in 1948.
In the early 1960’s deinstitutionalisation was implemented in the US and parts of Europe, acknowledging the rights of mental health care users. South Africa implemented the same, officially in 2004 when the new Mental Health Care Act 17 of 2002 came into effect.
There are also few organizations that represent the interests of mental health care users. In 2007 South Africa became one of the first 10 signatories of the UN Convention on the Rights of Persons with Disabilities. Article 5 of the UNCRPD, which deals with equality and non-discrimination, states that all signatories shall “Prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all ground”.ess, psychiatric, neurological or intellectual and or cognitive disabilities, illnesses or conditions. Those organizations that do exist tend to be poorly resourced and do not have the necessary resources to articulate the human rights concerns of this group sufficiently.
In its Country Report to the UNCRPD, South Africa responded to the progress made in the implementation of Article 5 on Equality and non-discrimination and states that: “It is recognised that there is a persistent disjuncture between the theoretical framework and the lack of effective implementation of such rights. So while persons with disabilities are, in principle, able to harness the law to protect and pursue interests on an equal basis with others, a number of obstacles, including persistent harmful traditional beliefs, ingrained stigmatisation and consequent discrimination on the one hand, and the interrelatedness of disability and poverty on the other, the inability to afford legal fees, lack of information in the use of equality courts, accessibility of equality courts, communication barriers, lack of a disability-sensitive judiciary and court staff, inaccessible buildings and transport, detract from the equality provided for in law.” The report also states that: “Further compounding the lack of access to justice is the high instance of undiagnosed intellectual impairment and mental illness in impoverished and rural communities. A system to avoid wrongful criminal convictions in the absence of assessment to distinguish between intellectual disability and criminal capacity, is urgently required”. Lastly, it also states that: “It is acknowledged that, as so eloquently illustrated through numerous case studies and submissions presented during the consultative process in drafting this report, that laws and policies cannot, in and of themselves, change the lives of persons with disabilities, but that it requires coordinated planning, provisioning and enforcement by Government to ensure that persons with disabilities have access to the services that the law provides. This is particularly relevant in relation to equal access to justice for children with sensory, communication, intellectual and psychosocial disabilities from poor and/or rural households.”
South Africa’s National Mental Health Policy Framework and Strategic Plan 2013-2020 emphasizes (in point 7.5 on Advocacy) that there is a commitment from the Department of Health to (4) “give exposure to positive images of mental health advocates, prominent user role models and well-known and influential champions for mental health in order to change discriminatory attitudes toward mental disability. This work will be framed within the provisions of the UN Convention of the Rights of Disabled Persons and the human rights based framework of South African law, as well as advocacy guidelines from the WHO” and further states (5) “Emphasis will be placed on ensuring representation of people with mental disability on the broader disability agenda, and developing capacity to place mental health user concerns on the political, development and public health agenda”. These goals were set to be achieved by 2015, and it is therefore critical that all persons with mental disabilities are empowered as a matter of urgency to ensure that they are able to fully participate within the ambit of these activities and successfully achieve these goals without any further delay.
Minister of Health, Aaron Motsoaledi, at the 2012 National Mental Health Summit in Ekurhuleni, Gauteng, where he stated that it was an offence against human rights to neglect the worst-off in society, and stressed that resources, infrastructure, social mobilization plans and employment targets had to take mental health into consideration. There was a need for an increased focus on mental health promotion, prevention programmes, public awareness and stigma and discrimination in South Africa.
Despite the advancements in human rights focussed legislation, progress made in medical science in terms of diagnosing and treating mental disorders and improved understanding of mental disorders in general, we are still stuck with stigma and related discrimination, and this fact is clearly acknowledged by our Government.
Stigma involves elements of ignorance, attitude and behaviour where negative responses are directed at a certain group of society – persons with mental disorders are one of the most vulnerable among all the marginalised groups of society.
Stigma and related discrimination has a huge impact on a person’s life, and causes severe disabling effects, even more so than the symptoms of their mental disorder. It creates barriers that prevent mental health care users from accessing and enjoying their Constitutional rights.
Human rights related issues affect persons with psychosocial and intellectual disabilities severely as they form part of the marginalised groups of society and have to deal with the impact of stigma and discrimination attached to these disabilities, that frequently lead to human rights violations. A large number of those experiencing human rights violations don’t report it, some don’t know where to report it and others who do report it often find that their case ends up unresolved.
SAFMH implemented its Mental Health Watch reporting system for human rights violations to ensure that persons with psychosocial and intellectual disabilities have the most accessible methods at their disposal to report any such violations and assist individuals in accessing equal justice and where required, linking them up with SAFMH legal partners.
In the Community …