Mental Health Care Act, 2002 (Act No. 17 of 2002)Chapter VI : State Patients47. Application for discharge of State patients |
| (1) | Any of the following persons may apply to a judge in chambers for the discharge of a State patient: |
| (a) | The State patient; |
| (b) | an official curator ad litem; |
| (c) | an administrator, if appointed; |
| (d) | the head of the health establishment at which a State patient is admitted; |
| (e) | the medical practitioner responsible for administering care, treatment and rehabilitation services to a State patient ; |
| (f) | a spouse, an associate or a next of kin of a State patient; or |
| (g) | any other person authorised to act on behalf of a State patient . |
| (2) | Such an application must be in a prescribed form and contain – |
| (a) | reasons for the application; |
| (b) | a report by a psychologist, if the State patient has been assessed by such a person; |
| (c) | where the applicant is an official curator ad litem or an administrator, a report containing a history and a prognosis of a mental health status of the State patient from – |
| (i) | the head of the health establishment where the State patient is admitted; and |
| (ii) | two mental health practitioners and one of whom must be a psychiatrist ; |
| (d) | details of any application made for the discharge of the State patient within 12 months before the application in question; |
| (e) | in the case where the applicant is not an official curator ad litem or administrator, an indication of whether the current curators may have a conflict of interest with the State patient and supply proof that a copy of the application has been given to the curators concerned; |
| (f) | in the case where the applicant is an associate or the person referred to in paragraph (e), the nature of the substantial or material interest or the nature of the conflict, if any; and |
| (g) | any information relevant to the application held by the applicant. |
| (3) | The Registrar of the High Court must submit a copy of the application to an official curator ad litem, where the applicant is not an official curator ad litem. The official curator ad litem must within 30 days of receipt of the application, submit a written report to the judge in chambers and such report must – |
| (a) | set out and contain a history and a prognosis of the mental health status of the State patient from – |
| (i) | the head of the designated health establishment at which the State patient has been admitted; and |
| (ii) | two mental health practitioners and one of whom must be a psychiatrist; |
| (b) | contain a report from a psychologist if the State patient has been assessed by such a person; |
| (c) | indicate whether another application was made for the discharge of the State patient concerned within a period of 12 months and the status of such application; and |
| (d) | make recommendations on whether the application should be granted and the basis for the recommendation. |
| (4) | On considering the application, the judge in chambers – |
| (a) | must establish whether another application for the discharge of the State patient concerned is pending or had been considered within a period of 12 months, in which case, the application referred to in subsection (3) must be dismissed; |
| (b) | must establish whether the official curator ad litem has a conflict of interest with the State patient, in which case a legal practitioner must be appointed to assist in the processing of the present application; and |
| (c) | may call for further information and assistance from the applicant, mental health practitioner or a relevant curator, as may be necessary to process the application. |
| (5) | The legal practitioner appointed in terms of subsection 4(b) must – |
| (a) | adduce any available evidence relevant to the application; |
| (b) | perform the functions and duties as required by the judge in chambers concerned to process the application; and |
| (c) | be remunerated by the national department responsible for justice and constitutional development according to the tariffs and scale of benefits and allowances determined for this purpose by the member of Cabinet responsible for justice and constitutional development. |
| (6) | On considering the application, the judge in chambers may order that the State patient – |
| (a) | remain a State patient; |
| (b) | be reclassified and dealt with as a voluntary, assisted or involuntary mental health care user in terms of Chapter V; |
| (c) | be discharged unconditionally; or |
| (d) | be discharged conditionally. |
| (7) | For the purposes of this section "legal practitioner" means an attorney or an advocate who has a right of appearance in a High Court. |