A Human Rights analysis of the Challenges in Mental Health Services during COVID-19 in South Africa By MASECHABA EVELYN KGAMPE Dissertation submitted in accordance with the requirements for the degree of MASTER OF HUMAN RIGHTS (MPhil) In the Faculty of LAW Centre for Human Rights University of the Free State SUPERVISOR: Professor E. DUROJAYE NOVEMBER 2022 pg. i DECLARATION Name: MASECHABA EVELYN KGAMPE Student number: 1997791247 Degree: MASTER OF HUMAN RIGHTS The exact wording of the title of the dissertation as appearing on the ethical clearance submitted: "A Human Rights Analysis of the Challenges in Mental Health Services during COVID-19 in South Africa." I declare that this dissertation is my original endeavor and that all sources I used or cited are given and acknowledged with full references. I further declare that I have not previously submitted this independent work or part at the University of the Free State or faculty for another qualification at any other higher education institution. With this, I cede the copyright to the University of the Free State. 30 November 2022 _______________________ _______________________ SIGNATURE DATE (Masechaba Evelyn Kgampe) pg. ii DEDICATION This dissertation is dedicated to my children. Refiloe-Mpho (daughter) and Tumelo Kgampe (son) pg. iii ACKNOWLEDGEMENTS In His infinite mercy, God lifted me and placed me on the shoulders of giants to reach what I could only dream of. He bestowed good health, strength, wisdom, and stability of purpose to carry on with this dream of furthering my studies. This project became a reality with the kind of support and endeared assistance of many individuals. To my supervisor, Professor Ebenezer Durojaye, your invaluable support, persistent guidance, and encouragement through the research process was a milestone in completing this document. My wholehearted thanks for all your patience and advice that have been monumental in this study's success. To my daughter, Refiloe-Mpho, you were enduring love for unwavering motivation. Pursuing this degree would have remained a dream without your support. You inspired me with love and care. "Poppitjie," echoing words back to me, "never give up, mummy." To my son, Tumelo, you believe in me. 'Tumi-Tumi,' the extreme care and protector, 'mummy, are U okay,' and the juice and fruits to keep me awake. Thank you for always understanding when mummy is talking and working accordingly. My mother (Selina Keta), brother (Dr. Paliso Keta), and immediate family, words of courage and moral support cannot go unnoticed for holding the fort while I gave my studies my undivided attention. A token of appreciation and gratitude to the following people: 1. Dr. John Phori for all the informative lectures privately held. 2. 'Mufasa' Mr. Christian Kayembe, for the expertise and assistance. 3. My editor, for the diligent work, is highly cherished. 4. Colleagues, friends, and study buddies (the musketeers), your heartfelt wishes made this document worth celebrating. Thank you! I gratefully acknowledge the financial assistance from the University of Free State authorized by The Deputy Registrar and Line manager, without which this study could not have been possible. pg. iv ABSTRACT In South Africa, COVID-19 prevention and mitigation efforts were unexpected and challenging, with the extended lockdown straining socio-economic activities. Marginalized groups and individuals are particularly vulnerable to unfavorable effects of the pandemic, such as human rights abuse. This study analyzes human rights within the challenges in mental health care during the COVID-19 pandemic and has primarily targeted limitations of individual freedoms to shield public mental health. The right to enjoy the appalling physical and mental health standards provides the state with a binding normative obligation for healthcare systems, broader social responses, and international solidarity. The International Covenant on Economic, Social, and Cultural Rights recognizes the right to health needs wherein governments take steps to prevent, treat and manage widespread pandemics, endemic activity, and other diseases and to ensure health services and attention in the event of sickness. The appropriate health needs are that health goods, services, and facilities are offered in adequate numbers; accessible on a financial, geographical, and non-discriminatory basis; acceptable, as well as culturally applicable and respectful of gender and medical ethics; and of excellent quality. However, South Africa has imbalanced difficulties in ensuring the provision and accessibility of COVID-19-related health coverage, resulting in shortages in essential medical care, diagnostic tests, and personal protection instrumentation for health care and other front-line staff. In some provinces, self-discipline measures, structural adjustment programs, and user fees have rendered essential services inaccessible for a few vulnerable individuals. This study emphasizes the need to uphold human rights and address the challenges in mental health services in South Africa during the pandemic. South Africa may embed a proactive psychosocial response to medical management and existing prevention strategies pg. v LIST OF ABBREVIATIONS ACHPR African Charter on Human and People's Rights CEDAW Committee on the Elimination of Discrimination against Women CERD The International Convention on the Elimination of all Forms of Racial Discrimination CESCR The International Covenant on Economic, Social, and Cultural Rights COVID-19 Coronavirus Disease 2019 CRC Committee on the Rights of the Child GDoH Gauteng Department of Health General comment No 14: Attainable Standard of Health (Art.12) General Comment No.20: Non-discrimination in economic, social, and cultural rights https://sdgs.un.org/2030agenda ICCPR United Nations International Covenant on Civil and Political Rights ICESCR International Covenant on Social and Economic Rights LE Life Esidimeni MCHA Mental health Care Act MHCU Mental Health Care User NCD Noncommunicable diseases NGO Non-Government Organisation NHA National Health Act OHCHR Office of the United Nations High Commissioner for Human Rights SAHRC South African Human Rights Commission SAJHR South African Journal on Human Rights U.N. United Nations Protocol UDHR Universal Declaration of Human Rights UNESCO United Nations Educational Scientific and Cultural Organization WHO World Health Organization https://sdgs.un.org/2030agenda pg. vi TABLE OF CONTENTS DECLARATION ................................................................................................................ i DEDICATION ...................................................................................................................ii ACKNOWLEDGEMENTS ............................................................................................... iii ABSTRACT .....................................................................................................................iv LIST OF ABBREVIATIONS ............................................................................................. v CHAPTER ONE .............................................................................................................. 1 INTRODUCTION ............................................................................................................. 1 1.1. Introduction and Background ................................................................................. 1 1.2. The rationale of the research study ....................................................................... 3 1.3. Problem Statement ................................................................................................ 4 1.4. Aim and Objectives ............................................................................................... 9 1.5. Research Questions .............................................................................................. 9 1.6. Methodology ........................................................................................................ 10 1.7. Significance of the study ...................................................................................... 10 1.8. Limitations of the study ........................................................................................ 11 1.9. Definition of Key Concepts .................................................................................. 11 1.10. Chapters Outline .............................................................................................. 12 1.11 Ethical consideration ........................................................................................ 14 1.12. Conclusion ....................................................................................................... 14 CHAPTER TWO ............................................................................................................ 15 THE CONCEPTUAL AND THEORETICAL UNDERPINNING OF HUMAN RIGHTS AND MENTAL HEALTH......................................................................................................... 15 2.1. Introduction .......................................................................................................... 15 2.2. Concepts of human rights, mental health services, and COVID-19 ..................... 15 2.2.1 Human Rights ............................................................................................... 15 pg. vii 2.2.2 Mental health ................................................................................................ 17 2.3 Mental health services in South Africa................................................................. 21 2.4 COVID-19 and Mental Health .............................................................................. 23 2.5 The Core Principles of Human rights in Mental Health ........................................ 25 2.6 The link between human rights and mental health .............................................. 27 2.7 Critical challenges of mental health services during COVID-19 .......................... 28 2.8 Conclusion ........................................................................................................... 32 CHAPTER THREE ........................................................................................................ 33 LEGISLATIVE GUIDELINES DETERMINING HUMAN RIGHTS VIOLATIONS IN MENTAL HEALTH and SERVICES .............................................................................. 33 3.1 Introduction .......................................................................................................... 33 3.2 National laws about health and mental health ..................................................... 33 3.3 International laws and human rights instruments ................................................ 34 3.4 The role of human rights instruments on mental health issues ............................ 40 3.5 Case laws on Human rights and mental health ................................................... 41 3.6 Conclusion ........................................................................................................... 43 CHAPTER FOUR .......................................................................................................... 44 DID THE SOUTH AFRICAN GOVERNMENT RESPECT ITS OBLIGATION TO PROTECT AND PROMOTE THE RIGHT OF INDIVIDUALS IN THE MENTAL HEALTH CARE ............................................................................................................................ 44 4.1 Introduction ...................................................................................................... 44 4.2 SIRACUSA Principles ...................................................................................... 45 4.3 Human rights violations in South Africa ............................................................ 46 4.4 South African government's failure to protect and promote individuals' right to mental health ............................................................................................................. 47 4.4.1 South African National Defence Force and Collins Khosa ......................... 48 pg. viii 4.4.2 Lack of accurate data as a human right violation ....................................... 50 4.4.3 Mental Health Programmes ....................................................................... 52 4.4.4 Corruption as a human right violation ........................................................ 52 4.4.5 Lack of infrastructure and funding ............................................................. 54 4.4.6 Mental health and other issues .................................................................. 57 4.5 Conclusion ........................................................................................................... 62 CHAPTER FIVE ............................................................................................................ 63 SUMMARY, FINDINGS, RECOMMENDATIONS, AND CONCLUSION ....................... 63 5.1 Introduction .......................................................................................................... 63 5.2 Key Findings ........................................................................................................ 63 5.3 Recommendations .............................................................................................. 65 5.4 Possible Future research ..................................................................................... 69 5.5 Concluding statement .......................................................................................... 69 BIBLIOGRAPHY ........................................................................................................... 71 CHAPTER ONE INTRODUCTION 1.1. Introduction and Background In most countries, the coronavirus disease of 2019 (COVID-19) was unexpected and presented a challenge for preventative and mitigation measures, extending the lockdown and placing pressure on socioeconomic activities, including mental health services.1 South Africa was not excluded from this pandemic. Global and national mental health services provide unique and qualified services to disadvantaged groups and individuals susceptible to human injury, which may lead to a mental health disorder. Research opines that people who use2 mental health services are misunderstood, discriminated against, and socially excluded due to some level of commitment and lack of facilities in South Africa. The term "mental health" is commonly observed to have a negative connotation and has developed a stigma in society.3 Furthermore, explicit or implicit discrimination in health care creates a significant barrier and contributes to poor quality of care. As a result, an individual with a mental illness is particularly vulnerable to poor or no mental health care. According to Marks, Verdelli & Willis, and in light of this stipulation, it is clear that the vulnerable groups’ human rights to receive quality psychosocial therapy, rehabilitation, and access to adequate care, are indirectly violated.4 According to recent studies, South Africa was not isolated from previous incidents such as the Life Esidimeni tragedy or violating individual human rights in delivering quality mental health services.5 These include the lack of psychosocial support, causing feelings of insecurity, acute panic, anxiety, depression, obsessive-compulsive behaviour, social 1 Layachi 2020:1332 2 Mental Health Care ACT 17 of 2002: Section 1, means a person receiving care, treatment and rehabilitation services or using health services at a health establishment aimed at enhancing the mental health status of a user. 3 Rossler 2016:1250 4 Marks,Verdelli & Willis 2019:2 5 Makgoba 2017 pg. 2 disorders, stigma, fear, increased incidents of gender-based violence, and discrimination in the distribution of food aid. Since the proclamation and implementation of the National Disaster Management Act due to COVID-19 in 2020, the lack of substantial protection resources has influenced the South African health system, showing an increase in mental health problems, including throttle abuse and reading noncommunicable diseases (NCD).6 Some individuals could not access treatment due to lockdown restrictions imposed by the government. In a press release, Dr. Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organization (WHO), mentioned that, regardless of how countries manage COVID-19, it is vital to search for innovative ways to ensure that essential services for NCDs are provided.7 Despite the fact that the impact of COVID-19 has raised awareness and attention to the socio-economic status of South Africa, several challenges remain within mental health services that violate citizens' human rights. There is insufficient research concerning the challenges in mental health services that have emerged during COVID-19. Therefore, it is vital to discuss how challenges in mental health care impact human rights. The purpose of this study is to provide a broad overview of the significant challenges facing the South African mental health care system, to provide a greater understanding of the challenges identified during the COVID-19, and to highlight a human right understanding of what stakeholders perceive to be the best means of addressing the challenges. Keywords to the study: Human Rights, COVID-19, Mental Health Services Policy and Framework, Challenges in Mental Health Services 6 Mbunge 2020:1809 7 WHO 2020: https://www.who.int/news/item/01-06-2020-covid-19-significantly-impacts-health-services-for- noncommunicable-diseases https://www.who.int/news/item/01-06-2020-covid-19-significantly-impacts-health-services-for-noncommunicable-diseases https://www.who.int/news/item/01-06-2020-covid-19-significantly-impacts-health-services-for-noncommunicable-diseases pg. 3 1.2. The rationale of the research study The researcher's motivation for the study stemmed from observing a decline in quality health care and personal interest in human rights. Maphumulo and Bengu demonstrate how the decline in quality healthcare delivery violates the human rights of people with mental health problems in South Africa.8 In addition, studies by Maphumulo et al. found that the quality of health care in South Africa has suffered, adversely affecting the quality of health care through various challenging situations combined with simple patient care requirements.9 Improving healthcare quality means fewer delivery delays of supply, accelerated performance, improved market shares, and lower prices related to access to services. International human rights instruments are significant in mental health because it is the only method of implementation within the law that legitimizes international scrutiny of mental health policies and practices within a sovereign country. It provides fundamental protection that ordinary political processes cannot remove. Human rights and mental health are inextricably linked as complementary approaches to human improvement.10 A measure of mental health is required within human rights because only those with a reasonable level of functioning can participate in political and social life. According to Gostin and Gable, human rights are an essential component of mental health as it protects the individual from harm or restraint and the freedom to form and express beliefs necessary for mental well-being.11 As a result, international and regional systems have addressed the human rights of people suffering from mental illnesses through treaties, declarations, and thematic resolutions. The researcher aims to add to this study's knowledge by focusing on human rights violations in mental health services during COVID-19 in South Africa. The researcher believes that the findings from this study will highlight the influence and risks associated 8 Maphumulo & Bhengu 2019:1 9 National Department of Health 2012:4 10 Ventura 2014:1 11 Gostin and Gable 2004:121 pg. 4 with human rights and the effects that challenged mental health service delivery during COVID-19 in South Africa. Furthermore, the findings from the study will provide recommendations to improve mental health services and human rights methods used to deal with a pandemic. 1.3. Problem Statement The right to health care is a fundamental human right that every country's constitution should protect. According to section 27 of the 1996 "Constitution of the Republic of South Africa" (hereinafter the Constitution) states that all citizens have the right to health care services, including reproductive health care services, and that no one may be denied emergency medical treatment.12 According to Perehudoff, Alexandrov, and Hogerzeil, limited social insurance in the event of illness, insufficient funding for vital medications, frequent stock-outs in the public sector, and high prices in the private sector are persistent impediments to universal access to healthcare.13 The above issues are significant problems within healthcare systems worldwide, including South Africa. Vergunst research indicates that South Africa has a significant disparity in mental healthcare, with those living in rural areas having less access to healthcare than those living in urban areas.14 Based on data researched by Vergunst, he reports that the density of psychiatrists in or around the largest city is 3.6 times greater than the national density of psychiatrists.15 Furthermore, he determined that rural areas in South Africa often do not have psychiatrists or psychologists and rely mainly on general practitioners, occupational therapists, and nurses for mental health interventions. Should someone need a psychologist or psychiatrist, they are often referred to the nearest town, which sometimes involves transport problems.16 In the province of Free State, only one 12 Constitution of the Republic of South Africa, 1996 Chapter 2, Section 27 (1): Bill of Rights 13 Perduhoff et all 2019:2 14 Vergunst 2017:2 15 Ibid 16 Ibid pg. 5 Psychiatric hospital serves five districts with 20 municipalities.17 In cognizance of the latter provincial psychiatric hospital, there are only 877 hospitalized beds for individuals requiring mental service in this province. The question then arises about how the state provides adequate mental health care services for South Africa's neglect of mental health services.18 Mental health service users19 reportedly died as a result of negligent relocation and treatment of mental health service users from a government facility to an unregistered nongovernmental hospital.20 Similarly, according to the World Health Organization, disadvantage and marginalization exclude specific populations from enjoying good health.21 South African government agencies, such as UNAIDS, responded to the public health emergency to counterbalance public health protections against the Coronavirus by providing social protection packages and transport to obtain medical care to vulnerable individuals in communities as lockdown measures restricted them, including the freedom of movement and to access health care services. During this process of preventing the spread of the infectious disease, Coronavirus, there were possibilities of decreased fatalities and increased violation of individual rights. Various authors, such as Pillay, Barnes, and Naidu, have reported that the impact of COVID-19 has caused an impact on mental health issues.22 As the world imposed restrictions by keeping most of the general population indoors, several psychiatric symptoms and illnesses have occurred as a result of continued isolation and a significant lack of social interaction with others. Humans, as they are inherently social 17 Health Department of South Africa Free State: http://www.health.fs.gov.za/?page_id=1391 accessed pdf on Free State Psychiatric Complex: http://www.health.fs.gov.za/files/health- facilities/mangaung/FS%20Psychiatric%20Complex%20Brochure.pdf 18 Dhai 2017 Makgoba 2017 Pillay 2019 SAHRC 2019: Annual Report 19 “means a person receiving care, treatment and rehabilitation services or using a health service at a health establishment aimed at enhancing the mental health status of a user, State patient and mentally ill prisoner and where the person concerned is below the age of 18 years or is incapable of taking decisions, and in certain circumstances.” 20 Makgoba 2017 21 WHO 2017 https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health “A focus on disadvantage also reveals evidence of those who are exposed to greater rates of ill-health and face significant obstacles to accessing quality and affordable healthcare, including indigenous populations.” 22 Pillay & Barnes 2020; Naidu 2020 http://www.health.fs.gov.za/?page_id=1391 http://www.health.fs.gov.za/files/health-facilities/mangaung/FS%20Psychiatric%20Complex%20Brochure.pdf http://www.health.fs.gov.za/files/health-facilities/mangaung/FS%20Psychiatric%20Complex%20Brochure.pdf https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health pg. 6 species, require interaction and cooperation from others to thrive and survive in their environment effectively.23 An individual's social life comprises the various relationships formed with others, including family, friends, and work colleagues. COVID-19 has severely impacted the extent of individual social interaction and severely limited physical interaction among individuals. This lack of socialization and reduced interaction with the external environment has a severe impact on the mental health of people around the world. The COVID-19 pandemic is an additional stressor that individuals are exposed to as part of their daily lives. According to Lahav, the stress caused by COVID-19 can ultimately lead to mental disorders.24 People previously exposed to traumatic events or who have experienced long-term traumatic stress are particularly vulnerable to the potential development of mental illness related to the COVID-19 pandemic.25 Long-term isolation from others and pre-existing support structures are aggressors for possible mental disorders (WHO, 2020). Furthermore, Lahav found that factors such as income levels, social relationships, and living alone during the pandemic are among the stress-related psychiatric symptoms caused by the COVID-19 pandemic.26 Stress-related symptoms caused by the COVID-19 pandemic are highly individual and can vary from person to person. A study by Rohde, Jeffsen, Norremark, Danielsen & Ostergaard reviewed clinical records made by health professionals when treating or hospitalized individuals for mental disorders.27 Peled-Raz notes that human rights are fundamental rights that cannot be disputed.28 A person has these rights solely because they are human. The Office of the United Nations High Commissioner for Human Rights (2008) states that "the right to health is inextricably linked to many other human rights including the right to food, water, housing, work, education, life, non-discrimination, privacy, access to information, the prohibition of torture 23 Nature Human Behavior, 2020 24 Lahav 2020 25 Ibid 26 Ibid 27 Rohde, Jeffsen, Norremark, Danielsen & Ostergaard 2020 28 Peled-Raz 2017: pg. 7 and the right to life.”29 According to the World Health Organization (2021), universal health care means everyone, including individuals and communities, has the right to access the health care they require without financial hardship.30 It includes all critical and high-quality healthcare services for people of all ages, from prevention to treatment, rehabilitation, and palliative care. Therefore, according to Article 5, in compliance with the fundamental obligations laid in article 2 of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), everyone should be treated equally, receiving the right to public health, medical care, social security, and social services, regardless of their financial, national or ethnic origin.31 An inadequate number of mental health hospitals and other mental healthcare facilities should provide services equally accessible to all. Koelbe and Siddler support research by Maphumulo and Bhengu, who believe that the South African healthcare system is ruined and thus needs a severe restoration intervention.32 Therefore it notifies that there has been a struggle in South Africa to address the human rights issues in mental health care. According to Harris and others, necessary services must be provided to the entire population without causing unnecessary burdens on individuals or families to achieve fair universal health coverage.33 Every citizen is entitled to health. The right to health addresses individuals' rights to mental health and health care levels and the state's obligations to provide a certain level of public health care in the community. Govender, a psychologist associated with Doctors Without Borders, found that, during Covid 19, various patients were sent home from public hospitals due to a lack of resources;34 Research focussed on the latter confirmed that there was a decreasing number of mental health visits during the lockdown period in one of the facilities in 29 Office of the United Nations High Commissioner for Human Rights 2008 30 World Health Organization 2021 31 https://www.ohchr.org/en/special-procedures/sr-health/international-standards-right-physical-and-mental- health 32 Koelbe & Siddle 2014:1118 33 Harris et al. 2011 34 Govender et al 2020 pg. 8 Tshwane.35 South Africa's poor mental health care has far-reaching consequences for people with identified mental illnesses. A mental health facility named “Life Esidimeni” in the province of Gauteng is an example of such a poor mental health services facility, which resulted in being closed.36 The mental health care patients had to be transferred to alternative facilities managed by nongovernmental organizations (NGOs').37 According to the Makgoba report, the other facilities to accommodate these patients were not ready or well prepared to receive these patients.38 It is further mentioned that these institutions were not licensed and did not have the basic competencies and leadership experience to manage mental health patients.39 The execution that transpired during the process showed a total disrespect for patients' rights and their families and violated their human rights. In addition to poor mental health services, high numbers of mental health cases have plagued South Africa during the lockdown, where one in three individuals developed a psychiatric disorder.40 The researcher furthermore states that an increase in mental health patients was perceived with low availability of mental health services amidst COVID-19, emphasizing the need for immediate and accessible psychological resources in South Africa.41 The latter implies that mental health relies on many support systems and resources that facilitate individual engagement at the highest level of gainful employment and other community roles.42 It is thus significant that there is a connection between mental health and human rights. This study will address the gap in South Africa that explores a human rights analysis of challenges in mental health services during COVID-19. The various facets to be explored in the study include the National Mental Health Policy Framework (Legislation) and the 35 Ibid 36 Durojaye & Agaba 2018:1 37 Ibid 38 Makgoba 2017 39 Ombuds report: https://ohsc.org.za/final-report-into-the-circumstances-surrounding-the-deaths-of-mentally-ill- patients-gauteng-province/ 40 Kim, Nyegarai & Mendenhall 2020:1 41 Ibid 42 Mann, Bradley & Sahakian 2016:264 pg. 9 impact of Human rights in South Africa. The challenges prevalent in mental health care delivery will be identified, and human rights violations will be discussed. The current practice methods will be highlighted for recommendations toward implementing the Legislation. 1.4. Aim and Objectives This study analyzes human rights challenges within mental health services during COVID-19 in South Africa. Based on the aim, the researcher hopes that the findings will contribute to the decision-makers and human rights advocates' finding ways to cope with the various effects of COVID-19. The following objectives are identified in order to achieve the research aim: • To explain and discuss the conceptual, theoretical, and contextual underpinnings of mental health and human rights. • To investigate whether the South African government respected national laws, international laws, and human rights instruments on the issue of mental health during the COVID-19 pandemic. • To find out the role of human rights instruments in response to mental health issues in South Africa. • To identify the variables influencing human rights violations regarding mental services during COVID-19 in South Africa. • To identify the international actions and best practices used in other countries to promote mental health and protect mental health patients during the COVID-19 pandemic. • To provide possible and feasible recommendations. 1.5. Research Questions • What is the conceptual, theoretical, and contextual underpinnings of mental health and human rights? (Literature review) • What legislative guidelines determine human rights violations in mental health and services? pg. 10 • Has the South African government complied with its obligations under international and national laws on the issue of mental health during the COVID-19 pandemic? (Variables influencing and critical challenges) • What are the possible and feasible recommendations that can be made to improve mental health service responses and promote the rights of individuals? 1.6. Methodology This research is based on secondary data from written documents and records available in public libraries and websites. The methodology followed in this research is a socio- legal study, an interdisciplinary approach to analyzing the law, legal phenomenon, and relationships between these and broader society. The social law approach is directly related to analyzing the social situation to which the law applies if the law is seen in the context of the situation's creation, maintenance, and/or modification.43 There are two types of data within research: primary and secondary data. However, the difference between the two types of data is that secondary data is already published in books, newspapers, magazines, journals, online portals, and many more.44 Peersman agrees that secondary data is retrieved from various sources, such as formal policy documents, implementation plans and reports, official statistics, program monitoring data, and program records.45 On the other hand, Peersman describes primary data as information collected through interviews with critical informants, individuals, groups, focus group discussions, projective techniques, and questionnaires or surveys via email, web, and face-to-face mobile data.46 This research study will use secondary data from various sources such as Books, Journals, Websites, Government documents, Case laws, and international human rights instruments. 1.7. Significance of the study Media news reports that many celebrities have been found deceased in hotel rooms or their homes, and little to no explanation is provided as to what motivated them to commit 43 https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1976.tb01458.x 44 Dudovskiy 2018 45 Peersman 2014:3 46 Peersman 2014:3 pg. 11 suicide during the Covid 19 pandemic.47 If an in-depth investigation could be made, the latter would be evident that mental health is an issue that affects all individuals from different life perspectives. Section 10 of the Mental Health Care Act in South Africa states that a mental health care user may not be unfairly discriminated against because of his or her mental health status. Furthermore, the Mental Health Care Act 17 of 2002 mentions that all mental health service users must receive the same level of care, treatment, and rehabilitation within limited resources.48 Therefore, this study is significant in bringing the aspects of human rights violations to the fore when dealing with mental health care during the COVID-19 pandemic in South Africa. 1.8. Limitations of the study As this study is a desktop review, the significant limitations include the lack of available data and locating specific data regarding the challenges in mental health services concerning the violation of human rights during COVID-19 in South Africa. Another disadvantage of desktop research is that finding reliable data for the research topic is complex. The published data may not always be reliable or precisely what is required to conduct the research. Before using published data, the researcher must conduct thorough research. Reliance on public data is undesirable and dangerous as it affects humans. The conclusions drawn from such data may be untrustworthy. In order to avoid such problems, the researcher will use data triangulation. 1.9. Definition of Key Concepts The following concepts will be defined to explain the validity of this research study: COVID-19, Mental Health, and Mental Health Services. It is important to define these terms as they will be used more often throughout the study. 47 Ntlebi 2022, https://opera.news/za/en/entertainment/e700780d2594b3966fb3bdffeb646974 48 Mental Health Care Act 17 of 2002, Chapter 2 Section 3(i) & 6(i) https://opera.news/za/en/entertainment/e700780d2594b3966fb3bdffeb646974 pg. 12 • Covid-19 The World Health Organisation (2021) reports that Coronavirus disease, known as COVID-19, is an infectious disease caused by the SARS-CoV-2 virus.49 Most people infected with the virus will experience mild to moderate. Coronaviruses are common viruses that cause nose, sinuses, and upper throat infections. The majority of coronaviruses are not dangerous. • Mental health Human beings' emotional, psychological, and social well-being contribute to their mental health. It impacts how an individual thinks, feels, and acts. It also influences how people deal with stress, interacts with others, and make decisions. Mental health is essential at all stages of life, from childhood and adolescence to adulthood.50 The literature review relevant to the study will be discussed based on the research aims and objectives. • Mental Health Services (MHS) Greene defines "mental health services as services which include the formal system of care, both specialty mental health care, and medical care; the lay system, such as friends, family and self-help groups; the folk system of religious leaders and alternative medicine; and the human-social system of the clergy and police."51 In addition, Samartzis and Talias also state that mental health services are responsible for preventing and treating mental illnesses and maintaining, improving, and restoring a particular population in terms of mental health.52 For the present study context, mental health services are primary services providing direct and indirect care to mental health care users within multidisciplinary engagements. 1.10. Chapters Outline The research report’s main findings will be divided into five chapters that elaborate on the study's scope, aim, and objectives. The chapter outlay for the study is as follows: 49 World Health Organisation 2021 50U.S. Department of Health & Human Services, 2020 51 Greene 2019:2 52 Samartzis and Talias 2020:1 pg. 13 • Chapter 1: Research setting The chapter is based on the general introduction and methodology. This includes identifying the background and rationale for the research's problem statement and the different objectives and questions elucidated. The chapter argues that qualitative research methodology is followed by implementing a desktop type of research. The chapter also defines the possible keywords used frequently in the research study. Further discussion of the historical context will be discussed in the following chapters. • Chapter 2: Literature review The chapter's primary focus is to discuss the arguments and results obtained from research conducted in the past by other authors. Furthermore, in this chapter, the key focus areas of the study are human rights, mental health services, and COVID-19. It will also include contextualizing challenges in mental health services internationally and locally. Aspects in the discussion include the historical origin of human rights, its instruments, and challenges in mental health services experienced during COVID-19. The legislative guidelines to determine the human rights violation in mental health care services during COVID-19 Chapter 3: Data collection- Legislative guidelines determining human rights violations in mental health and services. This chapter outline the legislative guidelines determining human rights violations in mental health and services. The role of human rights instruments will highlight how the violation of human rights occurred and the prevalent challenges of mental health service delivery during COVID-19 in South Africa. • Chapter 4: Analysis The chapter will discuss if the South African government complied with its obligations under international and national laws on the issue of mental health during the COVID-19 pandemic. The focus is on the different responses from global perspectives on the issue of human rights and the challenges of mental health services during the Covid-19 pandemic. • Chapter 5: Conclusion and Recommendations The chapter provides synthesis, conclusion, and recommendations. This chapter will list critical points discussed throughout the research study and conclude with the main pg. 14 findings. The chapter provides a list of recommendations and areas for possible future studies and research. 1.11 Ethical consideration Ethical considerations in research are principles that guide research designs and practices. These principles include voluntary participation, informed consent, anonymity, confidentiality, potential harm, and communication results. In other words, research is guided by certain principles and rules. Academic ethics for informed confidentiality, integrity, and honesty were among the study's key priorities. This included adhering to the University of Free State's strict non-plagiarism policies. This study uses secondary data; therefore, informed consent is not needed. The researcher will not falsify data or plagiarise any collected information. The University provided institutional clearance. The researcher places a high value on ethical principles, and the above standards were strictly followed throughout the study. Finally, it is important to note that this study contains no sensitive information in the form of secondary data-collection methods. 1.12. Conclusion Chapter One provides a detailed introduction to the research topic, rationale, and the methodological foundation executed in the study's compilation. The introduction and rationale for the study emphasized the relevance and importance of investigating human rights analysis of challenges in mental health care services during COVID-19 in South Africa. pg. 15 CHAPTER TWO THE CONCEPTUAL AND THEORETICAL UNDERPINNING OF HUMAN RIGHTS AND MENTAL HEALTH 2.1. Introduction Chapter two focuses mainly on providing arguments and explanations by authors who have written about and researched the topic. The chapter begins with the concepts of human rights, mental health services, and COVID-19. This section will focus on human rights, the different human rights instruments, mental health, mental health services, COVID-19, and the core human rights principles in mental health. In addition, the chapter analyzes the critical challenges of mental health services during COVID-19. Furthermore, the chapter will provide a perspective on human rights violations in mental health services during COVID-19, health and mental health services legislation, and human rights mechanisms/policies/laws supporting mental health services, which will be critically analyzed and discussed. 2.2. Concepts of human rights, mental health services, and COVID-19 The contents below will critically analyze the different concepts identified. 2.2.1 Human Rights Human rights are the legal yardstick issued to measure a government's treatment of its people. Its historical origin was derived from an argument focused on a search for moral standards of political organizations and behaviour that is independent of the contemporary society Kaur points out that the term "Human Rights" was coined in the twentieth century, replacing previous expressions such as "Natural Rights" or "Men's Rights."53 It is further known that Greek philosophers developed the concept of 'natural law or natural right.' They claimed that man possesses "insight," which reveals the goodness and badness of 53 Kaur 2014:997 pg. 16 things and teaches him absolute and eternal values.54 Greek citizens had rights such as “isonomy,” meaning equality before the law, “isotonic,” equal respect for all; and “isogori,” equal freedom of speech.55 According to UNICEF (2015), human rights are principles that recognize and protect the dignity of all people.56 Human rights govern how individuals live in society, interact with the state, and their obligations. Human rights law requires governments to carry out certain obligations while prohibiting them from carrying others. Individuals are also accountable. When exercising their human rights, they must respect the rights of others. No government, group, or individual has the authority to violate the rights of others.57 The South African Parliament (2021) states that in 1948, the United Nations issued the Universal Declaration of Human Rights, which outlined 30 human rights articles. Kaur states that the twentieth century endured two world wars, in 1914 and 1939, which led to the United Nations General Assembly adopting the universal declarations.58 It established universal human rights based on humanity, liberty, justice, and peace. These universal declarations define the rights of all human beings. In addition, it places responsibilities on the shoulders of governments to promote and defend these rights. For example, the Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa, 1996, has included indivisible human rights.59 The South African Constitution's articles can only be changed by a two-thirds majority in Parliament, making it difficult for anyone, including the government, to take away a citizen's fundamental rights. Human rights, according to Weston, are rights that an individual or group of individuals have simply by virtue of being human, due to inherent human vulnerability, or because they are required for the possibility of a just society.60 Regardless of the theoretical 54 Kaur, 2014:997 55 Kaur, 2014:997 56 UNICEF 2015: https://www.unicef.org/child-rights-convention/what-are-human-rights 57 UNICEF 2015: https://www.unicef.org/child-rights-convention/what-are-human-rights 58 Kaur 2014:998 59 The Bill of Rights, Chapter 2 of the Republic of South Africa Constitution, 1996 60 Weston 2021:https://www.britannica.com/topic/human-rights https://www.unicef.org/child-rights-convention/what-are-human-rights https://www.unicef.org/child-rights-convention/what-are-human-rights pg. 17 justification, human rights refer to a broad spectrum of values or capabilities thought to enhance human agency or protect human interests and are declared universal, in some sense equally claimed for all human beings, past, present, and future.61 It is well understood that humans worldwide require various values or capabilities to ensure their individual and collective well-being. Regardless of whether it is conceived as a moral or legal requirement, this requirement frequently results in painful frustrations brought on by social and natural forces, resulting in exploitation, oppression, persecution, and other forms of deprivation. These two observations are deeply rooted in the origins of what is now known as "human rights" and the accompanying national and international legal processes.62 Furthermore, Donnelly defines human rights as "the rights of man, which means “the rights that one has because one is human.”63 Nweke adds that the term "human" refers to everyone, regardless of age, ethnicity, nationality, ideology, orientation, sex, or creed.64 Rights are freedoms that everyone is entitled to regardless of age, ethnicity, nationality, ideology, orientation, sex, or creed. Character and application of rights are usually legally enforceable. Human rights are thus privileges and opportunities that a person is entitled to simply by virtue of being a human being. Dhupdale classifies human rights into two categories such as rights to basic human needs (medical care) and adequate development of human personality (right to free movement)65 2.2.2 Mental health According to the World Health Organization (WHO), cited by Galderisi, Heinz, Kastrup, Beezhold, Sartorius, and Toward, mental health is "a condition of wellbeing in which an individual recognizes his or her own potential, can manage with typical life stresses, can work successfully and fruitfully, and can contribute to his or her community.” 66 It should 61 Kaur 2014:998 62 Wetson 2021: https://www.britannica.com/topic/human-rights 63 Donnelly 2013 64 Nweke 2020 :2 https://www.researchgate.net/publication/342946672_UNDERSTANDING_HUMAN_RIGHTS 65 Dhupdale 2017 : https://www.researchgate.net/publication/319451017_Introduction_to_Human_Rights 66 Galderisi, Heinz, Kastrup, Beezhold & Sartorius 2015, available at : https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ pg. 18 be noted that different definitions have been attributed to mental health. Leighton and Dogra argue that the World Health Organization ( WHO) broadly uses the term 'mental disorders ' to include mental illness, intellectual disability, personality disorder, substance dependence, and adjustment to adverse life events.67 Nevertheless, the word "disorder" is used to avoid the stigma associated with the illness, such as significant distress, impairment in functioning, or risk of self-harm. A fact sheet published by WHO in June 2022 mentioned an increase in people living with anxiety and depressive disorders (mental illness) because of the COVID-19 pandemic.68 The latter is because most individuals with mental disorders do not have access to adequate care and experience stigma, discrimination, and human rights violations.69 For this mentioned reason, Galderisi et al. argue that being aware that differences across countries in values, cultures, and social backgrounds may hinder the achievement of a consensus on the concept of mental health.70 In other words, different organizations and regions define mental illness differently. The idea that mental health is more than just the absence of mental illness was universally accepted, but the equivalence of mental health and wellbeing/functioning was not, and a definition that allowed for a range of emotional states and "imperfect functioning" was drafted.71 Manwell et al. concur that there is little agreement concerning a general definition of 'mental health. There is a widespread use of the term 'mental health as a euphemism for 'mental illness.72 Bremberg and Dalman, in Granlund et al., demonstrate the overlap between mental illness and mental health constructs using the figure below.73 This study adopts the following figure to point out the concept of mental health. 67 Leighton and Dogra 2009:9 68 https://www.who.int/news-room/fact-sheets/detail/mental-disorders: 8 June 2022 69 Ibid 70 Galderisi et al. 2015: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ 71 Ibid 72 Manwell et al. 2015 : https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ 73 Granlund et al. 2021:5 Mental illness and Mental Health Problems https://www.who.int/news-room/fact-sheets/detail/mental-disorders https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ pg. 19 Figure 1: The relations between different concepts used when discussing mental health (Bremberg and Dalman,2015) As shown in Figure 1, mental health problems frequently overlap with well-being. Mental health problems are a normal part of people's lives, but so is well-being.74 However, Copeland, Adair, Smetanin, Stiff, Briante, Colman, Fergusson, Horwood, Poulton, and Costello point out that mental health problems and mental illness partially overlap. As a child, having persistent mental health problems increases the likelihood of being diagnosed with a mental illness as an adult.75 In addition, figure 1 demonstrates that mental illness is completely subsumed within mental health problems, whereas some 74 Granlund, Imms, et al 2021:5 75 Copeland, Adair, Smetanin, Stiff, Briante, Colman, Fergusson, Horwood, Poulton, and Costello 2015:792 pg. 20 mental disorders do not automatically overlap with mental illness or mental health problems.76 In addition, Granlund, Imms, et al. explain that mental health problems differ throughout life, with certain stages, such as adolescence, characterized by both biological change and changes in life role expectations that increase the likelihood of mental health problems.77 Everyone goes through periods in their lives when they have more or less mental health issues. Figure 2 is an illustration obtained from Halfon et al., showing that mental health problems can change over time: From no problems to severe mental health problems.78 Neither complete well-being nor severe mental health problems or mental illness may occur frequently.79 Figure 2: Wellbeing in a life span perspective (Halfon et al., 2014) 76 Granlund, Imms, et al., 2021 :5 77 Granlund, Imms, et al., 2021 :5 78 Halfon, Larson, Lu, Tullis & Russ 2014 :352 79 Granlund, Imms, et al., 2021:5 pg. 21 2.3 Mental health services in South Africa Docrat, Besada, Cleary, Daviaud, and Lund point out that low- and middle-income countries (LMICs), such as South Africa, consider the mental health system scale-up as part of a broader universal health coverage-related health system where transformation requires detailed and locally derived estimates on existing mental health system resources and constraints.80 On the other hand, Mlaba states that South Africans' mental health has deteriorated over the past year (2020) as a result of COVID-19. It appears to worsen as the country continues to suffer the socioeconomic consequences of the pandemic.81 According to Human Sciences Research Council's Dr. Priscilla Reddy, South Africans are increasingly diagnosed with depression, and the pandemic has played a large part in that.82 On April 12 and 13, 2012, the National Mental Health Summit was convened by the Department of Health, Republic of South Africa. Lund, Petersen, Kleintjes, and Bhana called this summit “a historic occasion for mental health in South Africa.”83 The summit provided an important platform for the department to engage stakeholders in mental health, evaluate progress toward transforming this work area, and identify critical challenges to be prioritized in reorganizing and transforming the healthcare system.84 The objectives of the summit were to: • Engage mental health stakeholders and mental healthcare users. • Take stock of the progress made in transforming the mental health system. • Identify key challenges. • Identify and prioritize key interventions that must be undertaken as part of the activities being undertaken to reorganize and overhaul the health system. • Determine a framework for mental health services in the Western Cape Province. 80 Docrat, Besada, Cleary, Daviaud, and Lund 2019:706 81 Mlaba 2021 82 Moodley, 2021: https://www.sabcnews.com/depression-anxiety-increased-among-south-africans/ 83 Lund, Petersen, Kleintjes, and Bhana 2012:402 84 https://www.gov.za/summit-helps-transform-mental-health-south-africa National Mental Health Policy Framework and Strategic Plan 2013 – 2020: https://pmhp.za.org/wp- content/uploads/2015/05/National-Mental-Health-Policy-Framework-and-Strategic-Plan-2013-2020.pdf https://www.sabcnews.com/depression-anxiety-increased-among-south-africans/ https://www.gov.za/summit-helps-transform-mental-health-south-africa https://pmhp.za.org/wp-content/uploads/2015/05/National-Mental-Health-Policy-Framework-and-Strategic-Plan-2013-2020.pdf https://pmhp.za.org/wp-content/uploads/2015/05/National-Mental-Health-Policy-Framework-and-Strategic-Plan-2013-2020.pdf pg. 22 Lund points out that this summit was convened by the former Minister of Health, Dr. Aaron Motsoaledi.85 The event witnessed the attendance of over 400 mental health stakeholders from across the country. The summit marked the end of a lengthy consultation and research process that included over 4,000 stakeholders in provincial summits and a national mental health situational analysis. The "Ekurhuleni Declaration," issued that day, signaled a new government commitment aimed at the neglected mental health field, leading to the July 2013 adoption of a new National Mental Health Policy Framework and Strategic Plan (2013-2020). The World Health Organisation (2017) reports that there are 3,460 outpatient mental health facilities, 80-day treatment facilities (about half of which are provided by the S.A. Federation for Mental Health), 41 psychiatric inpatient units located in general hospitals with a total of 2.8 beds per 100,000 population; and 63 community residential facilities.86 According to the South African Government media newsletter (2022), a person with a mental illness may be admitted to a public mental health facility.87 There are numerous mental health issues, each with its unique symptoms. Some are more severe than others in terms of their impact on the individual, family, and community. According to the Mental Health Information Centre of Southern Africa, mental illnesses exist and have a substantial negative social and economic impact on South African Society.88 These highly treatable conditions have received significant research attention since the 1990s, dubbed "The Brain Decade." Developing selective, effective, and safe medication for major psychiatric disorders is one of the most significant advances in diagnosis and treatment. Conversely, Robertson argues that South Africa ranked 103 out of 149 countries on the happiness index in 2020, a measure of population well-being based on six factors: GDP per capita, social support, healthy life expectancy, personal 85 Lund 2017: Online publication 1 Mar 2017, https://hdl.handle.net/10520/EJC-6a9d1fb08 86 WHO-AIMS (World Health Organisation) -2017: https://www.who.int/mental_health/evidence/south_africa_who_aims_report.pdf 87 https://www.gov.za/services/health/admission-mental-health-institution 88 Mental Health Information Centre of Southern Africa 2022 https://hdl.handle.net/10520/EJC-6a9d1fb08 https://www.who.int/mental_health/evidence/south_africa_who_aims_report.pdf https://www.gov.za/services/health/admission-mental-health-institution pg. 23 freedom, goodwill of others, and trust in government.89 While demographic and other inequities are not considered, people with psychosocial disabilities will likely face the worst. Unemployment, social exclusion, poor physical health, shortened life expectancy, loss of autonomy and liberty, being a victim of violence, and government neglect negatively impact wellbeing.90 An account is given of Jostina Sangweni, accused of witchcraft and brutally murdered in 2021, while identified as having schizophrenia. The latter incident alerted Society that South Africa's mental health awareness fails to protect people with psychosocial disabilities (psychosocial disability refers to people with mental and intellectual disabilities). The following researchers, Petersen, Fairall, Bhana, Kathree, Selohilwe, Brooke, Sumner, Faris, Breuer, Sibanyoni, Lund, and Patel, state that in South Africa, the rising prevalence of chronic illness and its high comorbidity with mental disorders, highlight the need for district-level integration of mental health into chronic care.91 2.4 COVID-19 and Mental Health According to the World Health Organisation fact sheet of 2021, Coronavirus is an infectious disease caused by the SARS-CoV-2 virus, and a person can get sick with COVID-19 and become seriously ill or die at any age.92 COVID-19 virus forms part of the Coronaviridae family in which the human coronaviruses can cause mild diseases similar to a common cold, while others cause more severe diseases such as MERS - Middle East Respiratory Syndrome and SARS – severe acute respiratory syndrome.93 In December 2019, a new coronavirus that had not previously been identified in humans emerged in Wuhan, China. The Coronavirus led to a worldwide pandemic. Wiersinga, Rhodes, and Cheng also note that the coronavirus disease 2019 (COVID-19) pandemic, caused by the novel severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), has 89 Robertson 2021 : https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently- needs-to-update-its-mental-health-policy.html 90 Robertson, 2021 : https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently- needs-to-update-its-mental-health-policy.html 91 Petersen, Fairall, Bhana, Kathree, Selohilwe, Brooke, Sumner, Faris, Breuer, Sibanyoni, Lund, and Patel 2016:S29 92 WHO 2021 factsheet: https://www.who.int/health-topics/coronavirus#tab=tab_1 93 National Foundation of Infectious Diseases fact sheet: https://www.nfid.org/infectious-diseases/coronaviruses/ https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently-needs-to-update-its-mental-health-policy.html https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently-needs-to-update-its-mental-health-policy.html https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently-needs-to-update-its-mental-health-policy.html https://www.wits.ac.za/news/latest-news/opinion/2021/2021-10/south-africa-urgently-needs-to-update-its-mental-health-policy.html https://www.who.int/health-topics/coronavirus#tab=tab_1 https://www.nfid.org/infectious-diseases/coronaviruses/ pg. 24 resulted in a worldwide sudden and significant increase in pneumonia hospitalizations with the multiorgan disease.94 According to Wiersinga et al., SARS-CoV-2 is spread primarily through respiratory droplets during close face-to-face contact.95 Asymptomatic, presymptomatic, and symptomatic carriers are able to spread infection. In the same vein, WHO (2021) states that respiratory symptoms such as fever, cough, and shortness of breath are signs and symptoms.96 In more severe cases, an infection may result in pneumonia, severe acute respiratory syndrome, and, in extreme cases, death. In preventing the spread of COVID- 19, standard recommendations include frequent hand washing with an alcohol-based hand rub or soap and water, covering the nose and mouth with a flexed elbow or disposable tissue when coughing and sneezing, and avoiding close contact with anyone who has a fever and cough. The graph below by Wiersinga et al. shows the history and timeline of the Coronavirus across the world.97 The Government of South Africa (2022) provides a timeline of the virus' trajectory in South Africa. Furthermore, Statistics South (2020) explains that in South Africa, the first case was reported in early March in Kwazulu-Natal, followed by the first death near the end of the month, just as the lockdown began.98 Little was known about the effect it would have on the population. Only China's experience and Europe's emerging crisis information were available to guide South Africa. Naidu commented that the HIV pandemic devastated South Africa. However, South Africa swiftly reacted to COVID-19, making the same mistakes.99 Posttraumatic stress disorder (PTSD), grief, anxiety, and depression rose to unprecedented levels of public concern outside of wartime.100 South Africa's government was slow to respond to Human Immunodeficiency Virus (HIV). It did not make the same mistake during the COVID-19 pandemic. 94 Wiersinga, Rhodes, and Cheng 2020:783 95 Wiersinga et al. 2020:783 96 Ibid 97 Wiersinga et al. 2020 :784 98 Ibid 99 Naidu 2020 :559 100 Ibid pg. 25 In addition, the pandemic in South Africa represents yet another threat to a society beleaguered by serial collective trauma. The pandemic's economic and health consequences for African countries are expected to be "catastrophic" (The Lancet Global Health, 2020). Considering South African mental health without considering the socio- historical context is unrealistic. Many South Africans suffer from "protean sequelae of prolonged, repeated trauma," which leads to complex PTSD.101 The latter is the constant threat of violent hijackings, such as home invasions, robbery, rape, murder, gangsterism, and everyday trauma, or "common shock," prevalent in South Africa. The research found that trauma exposure is high, with 73.8 percent of the general population reporting lifetime exposure to at least one potentially traumatic event.102 The trauma caused by the COVID- 19 pandemic will aggravate pre-existing mental health conditions.103 2.5 The Core Principles of Human rights in Mental Health The Universal Declaration of Human Rights (UDHR) notes that "all human rights are accepted universal, indivisible, interrelated, interdependent and at the same time mutually reinforcing, and all human rights ought to be dealt with honestly and equally, on equal footing and with the same emphasis.”104 Universality and Inalienability: Human rights are universal and inalienable. All people are entitled to these rights. The universality of human rights is encompassed in Article 1 of the Universal Declaration of Human Rights: "All human beings are born free and equal in dignity and rights." 101 Naidu 2017 : https://doi.org/10.1007/s40596-017-0752-y 102 Atwoli et al., 2013:5 103 Mon-temurro, 2020:1” Suicidal cases were reported in India (Goyal et al., 2020) but also in other countries, Italy included, where two infected Italian nurses committed suicide in a period of a few days probably due to fear of spreading COVID-19 to patients. It is possible that fear and anxiety of falling sick or dying, helplessness will drive an increase in the 2020 suicide rates. In the United States (US), the COVID-19 Pandemic’s New Epicenter, a dedicated Lifeline (the National Suicide Prevention Lifeline) was activated for emotional distress related to COVID-19 to prevent suicide” 104 UDHR 2016 :4 pg. 26 Indivisibility: Human rights are indivisible. Human rights are inherent in the dignity of every human being, whether they relate to civil, cultural, economic, political, or social issues. As a result, all human rights have equal status and cannot be ranked in any way. Denial of one right invariably makes the enjoyment of other rights more difficult. Everyone's right to a decent living cannot be sacrificed at the expense of other rights, such as health or education. Interdependence and Interrelatedness: Human rights are interdependent and interrelated. Each one contributes to realizing a person's human dignity by satisfying his or her developmental, physical, psychological, and spiritual needs. The fulfillment of one right often depends, wholly or in part, upon the fulfillment of others. For instance, fulfilling the right to health may depend, in certain circumstances, on fulfilling the right to development, education, or information. Equality and Non-discrimination: All individuals are equal as human beings by virtue of the inherent dignity of each human person. Individuals should not suffer discrimination based on race, color, ethnicity, gender, age, language, sexual orientation, religion, political or other opinions, national, social, or geographical origin, disability, property, birth, or another status as established by human rights standards.105 Participation and Inclusion: All people have the right to participate in and access information about decision-making that affects their lives and well-being. Rights-based approaches require community participation, civil society, minorities, women, young people, indigenous peoples, and other identified groups. Accountability and Rule of Law: States and other duty-bearers are answerable for observing human rights. In this regard, they must comply with international human rights instruments' legal norms and standards enshrined. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicators in accordance with the rules and procedures. Individuals, the media, civil society, and the international community play important roles in holding governments accountable for their obligation to uphold human rights. 105 https://www.equalityhumanrights.com/en/human-rights-act/article-14-protection-discrimination pg. 27 2.6 The link between human rights and mental health The right to health is well documented in several human rights instruments and conventions. These documents include the International Committee of Economic, Social, and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the International Convention on the Elimination of all Forms of Discriminations against Women (CEDAW), the African Charter on Human and Peoples Rights, and the Protocol to the Convention of Rights on the People with Disability (CRPD) as identified by Rubin and Flores.106 Furthermore, we must know that the right to health is enshrined in the South African Constitution of the Republic of South Africa of 1996 Chapter 2, Section 27 of the Constitution provides everyone the right to access health care services, including reproductive health care services, and no one may be refused emergency medical treatment.107 Human rights principles protect ailing individuals from any form or type of discrimination. In the case of “Soobramoney,” the patient was denied emergency access which is a guarantee in section 27(3) that no person may be refused emergency medical treatment.108 The World Health Organisation (2017) states that the right to healthcare must be enjoyed without discrimination based on race, age, ethnicity, or another status.109 This includes mentally healthy patients who should not be discriminated against based on their mental health problems. In addition, the right to healthcare contained in Article 12 was defined in General Comment 14 of the Committee on Economic, Social and Cultural Rights – a committee of Independent Experts responsible for overseeing adherence to the Covenant. The right includes the following core components: • Availability • Accessibility 106 Rubin and Flores 2020 107 The Bill of Rights, Chapter 2 of the Republic of South Africa Constitution, 1996 Section 2 108 Thiagraj Soobramoney v Minister of Health: Province of Kwazulu Natal D&CLD 5846/97,21 August 1997, unreported 109 https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health pg. 28 • Acceptability • Quality Mental health and human rights have a complicated and bidirectional link. As a result, following the U.N. Convention on the Rights of Persons with Disabilities and the WHO Quality Rights Initiative, global mental health movements should stress promoting human rights in mental health care.110 From the standpoint of human rights, society, particularly policymakers, must actively foster the conditions for all people to exercise their rights fully. A more comprehensive model should be developed that incorporates human rights into existing mental health treatments and practices.111 This model recognizes that all persons with mental illness or psychosocial problems have rights. According to Dainius Puras, a former U.N. right-to-health specialist, a recent study provided proof that there can be no health without mental health. Mental health is not treated equally to physical health in terms of budgeting, medical education, or practically anywhere in the world.112 Another report by the National Investigative Hearing focused on the status of mental Health Care in South Africa (2017) and points out that in comparison to the general population, people with mental health conditions and those with psychosocial disabilities have disproportionately higher rates of poor physical health and have a shorter life expectancy – a 20-year drop for men and 15 years for women.113 Stigma is also a significant factor in determining the quality of care people receive and their ability to obtain the full range of treatments they require. 2.7 Critical challenges of mental health services during COVID-19 Historically, mental health care has encountered numerous challenges in pre-Covid-19 and during the Covid-19 period. In a study by Wainberg, Scorza, Shultz, Helpman, Mootz, and Johnson, mental health care has been severely under-resourced.114 Their study 110 Mahdanian, Laporta, Bold, Funk and Puras, 2022: 111 Ibid 112 OHCHR 2022: 113extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.sahrc.org.za/home/21/files/SAHRC%20Mental%20 Health%20Report%20Final%2025032019.pdf 114 Wainberg, Scorza, Shultz, Helpman, Mootz and Johnson 2017:15 pg. 29 focused on ten (10) South American countries. A similar point is made in a report by the Organisation for Economic Co-operation and Development. However, the report points out that governments need to step up their efforts to improve mental health care, which remains poorly resourced and under-prioritized in too many countries.115 The World Health Organisation (2020) reports that before the pandemic, countries spent less than 2% of their national health budgets on mental health and struggled to satisfy their people's requirements.116 A study by Docrat et al. found that South Africa's public mental health expenditure represented 5.0% of the total public health budget, with wide disparities among provinces.117 Underfunded mental health is not unique to South Africa, as demonstrated above. It is a universal problem that many countries are faced with. However, Covid-19 has exerted the problem mainly because governments worldwide are forced to invest more money in Covid-19 response. This has led to many other issues, such as mental health being neglected. Deloitte (2022) reports that the South African government has been compelled to make reprioritizations across various health spending areas since the Supplementary Budget of 2020 aimed to support the COVID-19 response.118 For example, the “Health Facility Revitalisation Grant” experienced a One billion rand reprioritization away from infrastructure spending towards the immediate COVID response. 115 OECD 2021: “Mental health services were already over-stretched before 2020. The scale of mental distress since the start of the pandemic requires unprecedented levels of mental health support if it is not led to permanent scarring. OECD countries have taken immediate steps to increase mental health support.” https://www.oecd.org/coronavirus/policy-responses/tackling-the-mental-health-impact-of-the-covid-19-crisis-an- integrated-whole-of-society-response-0ccafa0b/ 116 https://www.who.int/news/item/05-10-2020-covid-19-disrupting-mental-health-services-in-most-countries- who-survey 117 Docrat, Besada, Cleary, Daviaud and Crick Lund 2019:706 https://doi.org/10.1093/heapol/czz085 118 Deloitte 2021: “the South African health system has continued to be buffeted by the pandemic, and has forced government to make significant budget adjustments, shifting funding across commitments, as well as moving funding obligations from outer years to the immediate term to provide an adequate response.” https://www2.deloitte.com/za/en/pages/tax/articles/health-system-spend-pushed-out-as-COVID-response-takes- precedence.html https://www.who.int/news/item/05-10-2020-covid-19-disrupting-mental-health-services-in-most-countries-who-survey https://www.who.int/news/item/05-10-2020-covid-19-disrupting-mental-health-services-in-most-countries-who-survey https://doi.org/10.1093/heapol/czz085 pg. 30 The World Bank (2022) reports that South Africa's proposal for a $750 million development policy loan (DPL) was approved by the World Bank Group Board of Executive Directors. This financing would help the South African government speed up its COVID-19 response, aiming to protect the poor and vulnerable from the pandemic's adverse socioeconomic effects while promoting a resilient and long-term economic recovery. A vast sum of money is spent on Covid-19 responses at the expense of other issues, such as mental health care. As Nguse and Wassenaar stated, resources and energy have been concentrated on the biomedical aspect of the virus with relative disregard for the mental health impact.119 Additionally, at the height of the Covid-19 pandemic, access to mental health facilities was a significant challenge. Pillay and Barnes point out that while essential services, including mental health care, were provided and accessible during the lockdown period, as stipulated by the government (Lockdown regulations, No.: 43232, April 2020), some mental health care users were unable to do so due to the limitations and risks posed by physical contact and in-person consultations.120 A similar observation was made by Govender, a psychologist for Doctors Without Borders in the South African city of Tshwane, where the author argues that they reported a decrease in mental health visits during the lockdown period in one of their facilities.121 In other words, the nationwide lockdown measures, which shut down most primary health centers to limit the spread of the epidemic, were the main reported hurdles to accessing mental health treatments, including psychotherapy and other types of care. According to Antiporta and Bruni, access to mental health care is at risk due to a lack of resources to restructure mental health services, including virtual forms and appointment procedures.122 Virtual therapies and interventions rely on the availability of services and the patient's knowledge of how to use technical tools, both of which are not ideal in the current situation. Given the decreased availability of psychiatric drugs relative to those 119 Nguse and Wassenaar 2021:307 120 Pillay and Barnes 2020:149 121 Govender et.al, 2020:2 122 Antiporta and Bruni 2020:3 pg. 31 used in general health and for illnesses related to COVID-19, access to pharmaceuticals was mentioned as a potential barrier.123 Similarly, Peng, Wang, and Xu point out that patients' anxiety and shame are necessarily heightened by high contagion, intrinsic scientific ambiguities, and the implementation of strict isolation, which creates barriers to obtaining help for proper medical therapy and psychological crisis intervention.124 Ali & Agyapong notes that family caregivers and psychiatrists speak out against the low priority of mental health when policies are drawn up125. The authors above are bringing into play the structural challenges to mental health. These issues arise from institutional policies and processes that limit the rights and opportunities of people with mental illnesses.126 Various authors and researchers such as Balhara et al. (2016); Kovacs et al. (2018), Azman, Jamir, and Sulaiman (2019); Hanlon et al. (2017), and Keynejad et al. (2016) have focussed on the issue of structural barriers by arguing that an absence of planning and Legislation and the development of inadequate public health policies are frequent and contribute to the stagnation of the system and makes it difficult to access treatment127. Malik and Khan point out that the government's lack of will and commitment also affects creating of specific budgets, resulting in an underfunded system and services that are not given.128 Sahithya and Reddy, as well as Vigo, Kestel, Pendakur, Thornicroft, and Atun, argue that regardless of whether they are high or low-income countries, the treatment difference is more significant in countries with socioeconomic conflicts—war, unemployment, economic recession, unequal distribution of wealth, budget cuts, and so on. Some of these challenges identified an impact directly on individuals' human rights.129 123 Antiporta and Bruni, 2020:3 124 Peng, Wang and Xu 2020:1 125 Ali & Agyapong 2015:8 126 Carbonell, Navarro-Pérez, and Mestre, 2020 :1367 127 Carbonell, Navarro-Pérez, and Mestre, 2020 :1372 (Balhara et al. 2016, Kovacs et al. 2018, Azman, Jamir, and Sulaiman 2019, Hanlon et al. 2017 & Keynejad et al. 2016) 128 Carbonell, Navarro-Pérez, and Mestre, 2020:1373 (Malik and Khan 2016) 129 Sahithya and Reddy 2018 Vigo, Kestel, Pendakur, Thornicroft, and Atun, 2019 pg. 32 2.8 Conclusion The chapter discussed various concepts, such as human rights, COVID-19, and mental health. Furthermore, the chapter provided international and local Legislation regulating physical and mental health. Finally, it linked the two main concepts of our discourse, human rights and mental health, including the critical challenges to mental health during the COVID-19 pandemic. Chapter three will discuss the legislative guidelines for determining human rights violations in mental health care services. pg. 33 CHAPTER THREE LEGISLATIVE GUIDELINES DETERMINING HUMAN RIGHTS VIOLATIONS IN MENTAL HEALTH and SERVICES 3.1 Introduction International human rights law, the South African Bill of Rights, and other enabling Legislation are discussed to establish whether the South African State has complied with its duties to the Rights of individuals within the context of mental health services during the COVID-19 in South Africa. The substantive and procedural aspects of law affecting the challenges in mental health services during COVID-19 in South Africa are discussed in Chapter four. The framework (instruments) of human rights in this chapter will be used to analyze if South African legislative Legislation is up to standard and “where and how” it may be improved. The conclusion of this chapter highlights the role of human rights instruments. 3.2 National laws about health and mental health South Africa has various policies and Legislation focusing on mental health issues. Firstly, the researcher notices that the Constitution is South Africa's Supreme Law that informs all other legislative, executive, administrative, and judicial acts to comply with the values set out in the Constitution. The Constitution contains a bill of rights that stipulates the rights and freedom granted to all citizens and the corresponding state obligations. In addition, according to the Interpretation Clause of Article 39, the Constitution provides that courts must consider international law when interpreting and developing the law and is explained in Section 39 (2) provides that the law's interpretation that promotes the Bill of Rights' spirit, purpose, and purpose. Furthermore, Section 9 of the Constitution of the Republic of South Africa (1996) draws attention to equality. According to Swanepoel, equality (non-discrimination) is inherent in the Bill of Rights and opposes laws and practices that reinforce the subordination of disadvantaged groups and persons with incapacities.130 It is thus a central concept in 130 Swanepoel 2011: pg. 34 human rights that all individuals have inherent value, worth, and dignity, and individuals should be protected from discrimination and abuses of fundamental rights from any cause.131 In “S v Makwanyane and another 1995(6) BCLR 665 (CC) at par 111, the court stated that respect for life and dignity are values of the highest order in the Constitution”. Sections 8 (1) and (2) of the Constitution, state that the Bill of Rights governs all laws and binds states, individuals, and groups, considering the nature of rights and the nature of the obligations imposed by the law.132 Secondly, the national laws cover the Mental Health Care Act 2002(MCHA). "The MCHA was widely admired as one of the most advanced parts of mental health legislation." Regrettably, it was an unfunded mission with little preparation and training.133 Facilities were developed at no district or regional level, and the government did not allocate a budget to implement the ACT.134 The latter statement resulted in an incline of chronic complications facing healthcare services across the country.135 Burns states that a substantial gap exists between South African mental health care resources and the enormous mental illness suffering and disability burden.136 3.3 International laws and human rights instruments International law and regional human rights instruments are essential in the context of mental health because they are the only source of law that legitimizes international scrutiny of a sovereign country's mental health policies and practices, as well as because they provide fundamental protections that cannot be revoked through the ordinary political process.137 The International Bill of Rights, comprised of the United Nations (UN) Declaration of Human Rights (UDHR, 1948), the ICESCR, and the International Covenant on Civil and Political Rights, is one of these legal instruments (1966). Although the UDHR 131 Section7(1) of the Constitution affirms the democratic values of human dignity, equality, and freedom in South Africa. 132 Constitution Bill of rights Section 8 133 Burns 2011:100 134 Ibid. 135 Ibid. 136 Ibid. 137 Ferlito & Dhai 2017:52 pg. 35 is not legally binding, it establishes fundamental human rights that apply to all nations. Other treaties include the Convention on the Rights of Persons with Disabilities (CRPD, 2006), the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1983), and the Convention on the Elimination of All Forms of Discrimination Against Women (1989). (CEDAW, 1979). The African Charter on Human and People's Rights is a regional human-rights law instrument (1986). The United Nations Human Rights Office of the High Commission (2014) notes that ten bodies are responsible for monitoring the implementation of these treaties and optional protocols through two main channels: periodic reports on specific rights in a state party and individual communications. Some treaty bodies have the authority to visit countries and conduct investigations. It should be noted that these human rights treaty bodies are committees consisting of independent experts.138 The former Commission on Human Rights, the Human Rights Council, and the Special Procedures body are charter bodies, including the Human Rights Council, which replaced the Commission on Human Rights, and convened for the first time on 19 June 2006. The following paragraphs discuss in brief the international human rights instruments that protect and promote the rights of people with mental health conditions: • Universal Declaration of Human Rights (UDHR) 1948 The Universal Declaration of Human Rights articulates individuals' fundamental rights and freedoms, always promoting respect for these rights through education and their universal and effective recognition through progressive national and international policies and attention. Therefore, the Legislation forms the basis of all human rights in all aspects of life. According to Article 25 (1), every individual has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care, and necessary social services, and the right to security in the event of 138 OHCHR 2021: Monitoring the core international human rights treaties. https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx pg. 36 unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in the circumstances beyond his control. • International Covenant on Economic, Social and Cultural Rights, ICESCR (1966) Article 12 (1) states that every "Individual has the right to enjoy the highest attainable physical and mental health standards." The article requires the government to provide all individuals with access to essential healthcare services without discrimination, which benefits all. (2) It further informs to cater for improvements of any aspects related to environmental and industrial hygiene. Thus, it commits that services should be delivered in a well-structured and hygienic atmosphere. Lastly, it assures that in conditions such as COVID-19, it will assure that all medical services, including mental health services, are delivered with extended attention to the event of illness. This international Legislation thus places the responsibility of health on the government to recognize every individual’s right to health, either physical or mental. It also requires the government to take the necessary steps to provide individuals with quality healthcare. The government can build mental health facilities, train mental health practitioners, and develop a budget to cover mental health services. Moreover, finally, the Legislation places the responsibility on the government to find means to prevent mental health and other health-related issues. In the case of “Soobramoney v. Minister of Health (Kwazulu-Natal), a patient was refused health care because the hospital did not have sufficient resources to provide specific treatment. Further, the hospital budget does not make any provisions for vast expenditures”.139 • International Convention on the Elimination of All Forms of Racial Discrimination, ICERD (1965) Article 5, in compliance with the fundamental obligations laid down in article 2 of this Convention, as well as States Parties, undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction of 139 Thiagraj Soobramoney v Minister of Health: Province of Kwazulu Natal D&CLD 5846/97,21 August 1997, unreported pg. 37 race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights. However, we find that state mental health care is limited, catering to those who are poor or from a disadvantaged group. The latter example is tabulated below and shows the Public mental Health care in the Province of Free State. Figure 3: FSDoH - Clinical Health Services Facilities • Regional human rights instruments Regional human rights systems, including regional instruments and mechanisms, are becoming increasingly important in promoting and protecting human rights. Regional human rights instruments (e.g., treaties, conventions, declarations) assist in localizing international human rights norms and standards by reflecting the region's specific human rights concerns. URG further explains regional human rights mechanisms (such as commissions, special rapporteurs, and courts) and then assists in implementing these instruments.140 The three most established regional human rights systems exist in Europe, the Americas, and Africa. a) African Union The African Union has established various human rights instruments within the African continent. Some of these instruments have been mentioned and discussed below. 140 URG 2021 pg. 38 According to Keetharuth, the African Commission, established by Article 30, is the treaty body monitoring the African Charter's implementation.141 It was established in 1987 with the mission of monitoring states' compliance with the human and people's rights enshrined therein and ensuring their protection. • African Charter on Human and Peoples' Rights (African Charter) The African Charter, which came into effect in 1986, incorporates universal human rights standards and principles while reflecting African traditional virtues and values. As a result, the African Charter is distinguished by a reciprocal relationship between the individual and the community, connecting individual and collective rights. The African Charter established the African Commission for Human Rights, headquartered in Banjul, Gambia. It is a quasi-judicial body comprised of eleven independent experts tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent (via periodic reports from States Parties on the implementation of the Charter's provisions), as well as interpreting the African Charter and considering individual complaints of Charter violations. • Protocol to the African Charter on the Establishment of the African Court of Human and Peoples' Rights This court protects the rights of those abused by the government across the African continent. Mental health patients can take their governments to this court if they believe their rights have been infringed upon. The African Charter on Human and Peoples' Rights (African Charter) do not appear to provide for the qualification of progressive realization and maximum available resources for realizing (ESC) Economic, Social Cultural rights.142 However, given the economic realities within Africa, this argument would have far- reaching implications for the very nature of ESC rights.143 ESC rights, including the right to health, are justifiable in the African human rights system, alongside civil and political 141 Keetharuth 2009:163 142 African Charter 143 Odinkalu 2001: pg. 39 rights.144 The latter is because the primary human rights instruments have combined ESC and civil and political rights into a single document. In the Ogoniland case, the Commission "confirmed the justiciability of ESC rights," ruling that "there is no right in the African Charter that cannot be made effective."145 • Protocol to the African Charter on the Rights of Women in Africa The second, the African Charter on Human and Peoples' Rights Protocol on the Rights of Women in Africa (hereinafter the Women's Protocol), was adopted in Maputo, Mozambique, in 2003 and entered into force on 25 November 2005.146 The Women's Protocol has been ratified by 26 countries so far. • African Charter on the Rights and Welfare of the Child The second sentence of Article 23(1) of the Convention stipulates the right to health care services that no child should be deprived of. The Charter does not expressly provide for such a right but seems to assume that a similar right is contained in the general right to the best state of health. The Charter lists specific measures that governments should undertake to implement the right in its entirety. For example, in Article 14(2)(b), the Charter obligates the State Party to ensure the necessary medical assistance and health care to all children. Below, the researcher points out all standards relating to the right to physical and mental health, listed in hierarchical order, beginning with the Universal Declaration of Human Rights. These standards include Core International Human Rights Treaties, International Human Rights Treaty Bodies, Other Universal Standards, Standards for specific groups, International Humanitarian Law, and regional standards. 144 See generally the African Charter on the Rights and Welfare of the Child and Protocl to the African Charter on the Rights of Women (which provide civil). The Preamble of the Protocl to the African Chater on the Rights of Women in particular provides that civil and political rights cannot be dissociated from economic, social and ultural rights in their conception’. 145 Communication 155/196, Social and Economic Rights Action Center and Another v Nigeria (Ogniland case) 2001) AHRLR