RECOMMENDATIONS

1. Human rights and mental health

The problems in transforming mental health and mental retardation services are daunting. They require enormous resources for training, community-based services, advocacy, and research. Those efforts will take years, even decades. The difficulty of those transformations, however, should not delay the commitment to protect the basic human rights of people who find themselves in psychiatric institutions or discriminated against as a result of their disability. We therefore have the following recommendations:

(a) Recognize and protect the rights of people with mental illness

The most important step to take is to ensure that people with mental illness and mental retardation have a legally recognized right to dignity, to treatment in the community, to participation in their treatment, to non-discrimination, and to due process of law. These rights must be recognized in law. While the right to community-based services is aspirational at this time in history, it still needs to be recognized.

The law should protect the rights recognized by the international standards, and South African law should be rewritten not only to articulate them but to implement and devise procedures to protect them. These standards are summarized below:

· The right to be treated with respect for the inherent dignity of the person.

· The right to be free from discrimination on the grounds of mental illness.

· The right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights and other international declarations and covenants.

· The right to have the best available mental health treatment, in the community in which the person lives and suited to his or her cultural background. The treatment should include vocational and social skills training.

· The right to treatment in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the person's needs and behavior toward others.

· The right to retain legal capacity to make decisions. When this is not possible, the right to a fair procedure in which the person is represented by counsel.

· The right to consent to treatment and refuse treatment offered unless specific standards and procedures are in place.

· For people in residential facilities, the right to privacy, to communicate with others, to be protected from harm, the right to be free from physical restraints (except when essential to prevent imminent harm), and the right to retain the rights of those not in facilities.

· The right to definable standards and procedural safeguards, including notice, the right to be heard before an impartial body, and to representation by counsel, before involuntary hospitalization.

· The right to access to advocates.

· The right to confidentiality.

· The right not to be used as a research subject without full safeguards.

These rights must be respected in fact. Professionals and other facility staff who work with people with mental illness and mental retardation should be provided with extensive training in human rights and with guidance in how to protect and respect those rights.

(b) Recognize and protect the rights of people with mental retardation

People with mental retardation and with mental illness are entitled to protection of their rights. People with mental retardation have all the rights listed above.

A law should be enacted to protect the rights of persons with mental retardation. The law should define mental retardation according to international standards and, in addition to the rights applicable to persons with mental illness specified above, should protect the following rights:

· The right to training in life skills, including self-care and vocational skills, to enable those who can to live, with supports, in the community.

· The right not to be institutionalized on account of mental retardation alone.

· For children, the right to an education.

People with mental retardation and no psychiatric condition should not be placed in psychiatric hospitals which can offer no training to them. A plan should be developed to place people with mental retardation who are now in psychiatric hospitals in a more appropriate environment in communities, with appropriate supports.

(c) Training in human rights

Consumers, families and professionals should all be trained in the human rights of people with mental illness and mental retardation.

(d) Investigation of sterilization

The Ministry of Health should conduct an investigation of sterilization of persons with disabilities in South Africa. The investigation should include a comprehensive review of the extent of involuntary sterilization, particularly among people with disabilities, in institutions and in communities in South Africa.

A law should be enacted to protect individuals against involuntary sterilization with enforcement and reporting mechanisms designed to assure that people are not being sterilized.

(e) Facility standards and investigation

The Ministry of Health should establish standards for all facilities, public or private (including Life Care), including provincial facilities. These standards should be designed to assure appropriate and safe living conditions and the protection of the human rights of residents.

The Ministry of Health, or an entity it designates, should regularly investigate all facilities to assure they meet standards and protect human rights. The reports should address basic living conditions, the protection of patients from harm, and the nature and extent of therapies provided, and should review practices regarding medication, physical restraints, seclusion, and other physical interventions. The report should include specific action steps to bring human rights violations in facilities to an end. Reports of investigations should be made public.

(f) Advocacy support

The Ministry of Health should develop a plan to support the development of advocacy organizations representing people with mental illness and mental retardation and their families. The support should include assistance in organizing and communicating with individuals throughout the country and in traveling to meetings.

(g) End differential funding rates of institutions

Funding disparities for Life Care facilities based on the race of the population in the facility should be brought to an end.

(h) Plan for community-based services

Consistent with the changes in law recommended in (a) above, the Ministry of Health should establish, as national policy, a commitment to provide services in the community for people with mental illness and mental retardation. We recognize that this is an enormously challenging undertaking, requiring financial, human and technical resources. We urge that the process of development continue.

The Ministry of Health should continue its initiatives to develop mental health services in primary care and community-based services for people with mental illness and to take advantage of opportunities for training and technical assistance from the international community. These services must be well designed so that discharged individuals do not become homeless.

In a similar vein, the Ministry of Health should initiate a plan to develop community-based services for people with mental retardation and bring institutionalization of persons with mental retardation to an end. It should particularly take advantage of community resources for such a transition.

These processes should include participation by people with disabilities and their families.

(i) Repeal of prohibition on institutional investigations

Provisions of law that render it a criminal offense to make false statements about institutional conditions should be repealed.

2. The psychological legacy of apartheid

The legacy of violence and trauma from apartheid is one of the most difficult tasks South Africa faces. Some of the challenges, particularly to reduce the level of violence in society, are far beyond the scope of this report.

(a) Promote understanding of the scope of the injury

The ability to function at levels sufficient to fulfill personal, family, and community expectations requires appropriate management of grief, joy, rage, fear, a sense of security, hostility and spontaneity. Membership in civil society should assure a sense of belonging to a moral order grounded in broadly held values of right and wrong. To the extent that this has been compromised, it should be recognized and addressed. The TRC can provide a service to the nation simply by recognizing the enormous scope of the injuries to so many hundreds of thousands, perhaps millions of people.

(b) Promote multicultural interventions for trauma

One of the challenges facing a multicultural society such as South Africa is to include methodologies for treatment of trauma beyond those traditional to Western practitioners. An example is the success the Zionist Church has had in restoring wholeness and strengthening communities, due in part to its grounding in prophetic revelation congruent with Xhosa and other African peoples' theological notions of cleansing and the casting out of evil forces.

Strategies for fostering a multicultural approach to trauma and the experience of violence must be developed. Earlier in the report, we discussed several possible pathways to expand multicultural resources for those suffering from torture, state sanctioned uprooting and human rights violations. These include taking advantage of the skills and talents of black social workers, clergy, traditional healers and trauma centers. These resources should be further developed.

(c) Professional training and commitment

Mental health professionals trained in Western methods have paid little attention to the trauma experienced by blacks during apartheid. Language and cultural barriers are reinforced by focus on private practitioners serving white patients. These professionals can themselves enlarge their cultural vision and contribute to healing and relief from suffering, but they must learn multicultural skills and, equally important, commit themselves to working with all the people of South Africa.