Judges need to be prepared to prioritise the right to health for mentally ill accused, even if Parliament hasn’t said so.

The amendment of the Criminal Procedure Act following the Constitutional Court ruling in De Vos N.O. v Minister and the subsequent Bill mark an important step towards protecting the mentally ill within South Africa’s criminal justice system. Importantly, these amendments move away from treating mental illness as criminal issue to a health issue by prohibiting judges from imposing sentences of imprisonment on mentally ill persons who have committed crimes.

However, these changes are only a step and further protections need to be adopted, particularly when it comes to detaining accused persons prior to evaluation. Under the law, accused persons continue to be detained for lengthy periods while they wait to be evaluated for mental illness.

The Current Law

Section 77 sets out the procedure a judicial officer should follow when an accused person is unable to understand the criminal proceedings as a result of mental illness or intellectual disability aka, they are raising a defence of insanity. Section 78 outlines the procedure to be followed if an accused is claiming to have been mentally incompetent at the time of commission of the offence, aka a defence of temporary insanity.

In these cases, the accused is referred to state a psychiatric facility to be evaluated so that their mental illness or intellectual disability and its severity can be confirmed. On the basis of this evaluation, the judicial officer will make a decision on what should happen to the accused. Section 77 previously specified that if an accused was charged with murder, culpable homicide, rape or a charge involving serious violence (such as armed robbery), the accused would have been be detained in a psychiatric hospital or in prison until he was treated and discharged by a judge. For other offences, the accused would have to be detained in a health establishment for treatment.

The Amendments

The amendments proposed by the Bill will now allow judicial officers to make a broader range of orders beyond just detention. Specifically, individuals who are not in need of inpatient treatment can be released on condition that they receive treatment on an outpatient basis.

Judicial officers can also order that an accused person be released until a bed is available at a facility – or if an individual is particularly dangerous – that they be held temporarily in the hospital facility of the prison. Most notably, the amendments do away entirely with the judicial officer’s power to order imprisonment (save as a temporary measure) for any persons found to be mentally ill or intellectually disabled.

The Problem

Though the amendments prohibit detention when a judge has determined that an accused is mentally ill, they do no address what happens to an accused prior to their evaluation.

As the law stands, there is no prohibition on detaining an accused in prison prior to their evaluation. This means that a judge can deny an accused bail and require that they be detained while waiting for their evaluation. Judges often do not grant bail or otherwise release accused person prior to evaluation. This is largely due to the fact that very few mentally ill persons have fixed addresses, family members to care for them or money for bail. All this factors weigh against the likelihood that an accused will return to court with little consideration for the negative impact detention will have on an accused’s mental health.

This means that mentally ill persons are typically detained while waiting to be evaluated, even if they have committed relatively minor offences such as theft.

The wait time for evaluation at some facilities is in excess of a year due to the high volume of persons to be evaluated and the resource constraints placed on facilities. While children and accused persons who committed serious offences are prioritised, this leaves those accused of minor offences to be detained in prisons for periods in excess of 12 months. During this time, most are detained with the general population and very few receive medication or any treatment. In fact, most accused will be kept in poor conditions that will most likely exacerbate their illness or condition and leave the prison system traumatised. Most devastatingly, even after being evaluated, many accused are returned to prisons to wait for beds to open up at facilities.

This is the problem the amendments fail to address. While it is all very well to prohibit detention as a sentence for the mentally ill, many accused will still spend a substantial amount of time in jail, waiting for their evaluation.

The Solution

The decision to release an accused, even a mentally ill one, is discretionary. This means that Parliament does not necessarily need to amend the Act to prevent unnecessary and harmful detention. Yet, judges continue to detain the mentally ill without consider the impact of their health. Judges have an opportunity to use the amendments as a guideline for granting bail. Where post-evaluation detention is prohibited, it should also be prohibited before evaluation.

An amendment should not be necessary to ensue that judges do prioritise health over securing an accused’s attendance at court but if it is, Parliament should be prepared to legislate.

A prohibition on detention for the mentally ill and intellectually disabled should not be limited to the sentenced imposed, but apply to every stage of criminal proceedings. While we can wait to see if judges adopt such a prohibition on their own, the Legislature should be prepared to intervene and limit the discretion of judges to order pre-trial detention for the mentally ill.



Photo: Robert Hammond (Image used under CC by 2.0 license)