Motsoaledi says courts send too many accused for mental health observation, straining scarce beds

Health Minister Aaron Motsoaledi has accused the courts of sending too many accused people to state psychiatric facilities for mental health observation, saying the referrals take beds the health system does not have.

He was briefing the National Council of Provinces' Select Committee on Social Services on his department's annual report on Wednesday, 28 October. EWN's Babalo Ndenze and the Daily Sun's Rejoice Ndlovu both reported the remarks the next day. The Daily Sun's headline rendered the complaint as "Hospitals are not holding cells". That line is the paper's headline, not a sentence the minister is quoted as saying.

"It is a huge burden on the healthcare system to keep on observing people who have committed crimes," Motsoaledi said, as reported by EWN; the Daily Sun carried the same remarks. "Because I can tell you with my eyes closed, many of them are just criminals and nothing else. It has got nothing to do with mental health. Unfortunately, the legal system pushes it to that extent."

He argued that some accused people use mental health referrals to delay their trials and that habitual offenders end up in health facilities rather than in correctional centres. He said the courts were partly to blame for the congestion. In the same briefing he called on the finance department to end austerity measures that he said were hurting public health facilities. The austerity point is a separate demand, made in the same appearance. It is not a count of psychiatric beds, and he did not tie a rand figure to it.

The minister did not give figures for how many accused people are waiting for observation, how long they wait, or how many of those assessed are found to have a mental illness. Without those numbers, his claim that many referrals are unwarranted cannot be checked. "Many of them" and "with my eyes closed" are the strength of the claim he offered. They are not a table.

Why courts order observation

Observation is a legal step, not a treatment. Under the Criminal Procedure Act, a court can refer an accused person for psychiatric assessment when there is doubt about whether they can understand the proceedings and help with their own defence, or whether a mental illness or intellectual disability affected their responsibility for the crime. Those are sections 77 and 78. Section 79 is the referral itself: the court can commit the accused to a psychiatric hospital for this observation for periods of up to 30 days at a time.

The outcome shapes the case. An accused person found unable to stand trial, or not criminally responsible, can be declared a state patient and detained for psychiatric care instead of going to prison. A referral is how the court gets the report that makes that finding possible. It is also, on the minister's account, how people he regards as ordinary accused end up in a hospital bed. The Act does not give the health minister a veto over the referral. The committee he was addressing does not sit as a court. What he asked for, in the remarks that were reported, was recognition that the referrals are a burden, and that some of them should not have been made. He did not table an amendment.

A bed used for observation is a bed not used for someone admitted for treatment. That is the squeeze he described. EWN reported that facilities face serious bed shortages. He did not say how many observation beds the state has, how many are occupied by people awaiting a report, or how many of those reports come back finding no mental illness. The shortage is the context the coverage gives. The split between "criminals and nothing else" and patients who do need the bed is the split he asserted and did not measure.

An old complaint

Motsoaledi has made the same argument before. In August 2018 he told reporters: "We have 1,400 criminals languishing in mental-health institutions, waiting to be assessed." He said then that some offenders used mental health as a tactic in their cases and that the backlog was tough to clear. He also said the shortage of specialised psychiatric beds meant some mental health patients were kept in general medical wards until a bed became available. Business Day, reporting that briefing, put the country's registered psychiatrists at 700, with a quarter of them in the health sector. That was 2018. He did not update either number on Wednesday.

The 1,400 figure is eight years old. It is the last count he is on record as giving. This week's remarks do not say whether the list is longer, shorter or the same. They repeat the judgment: that many of the people in the queue are not mentally ill, and that the courts are how they got there. A listener who wants to know if the queue has moved since 2018 cannot tell from the 28 October briefing.

His latest remarks are not his first clash with the judiciary this year. In May, Judges Matter called on him to retract comments about judges' medical scheme benefits made after the Constitutional Court heard challenges to the National Health Insurance Act. He later said he would "unreservedly apologise and withdraw whatever statements may have been offensive". That row was about judges' benefits and the NHI hearing. This one is about criminal referrals and hospital beds. They share a minister and a willingness to criticise the courts. They are not the same dispute, and the May apology does not cover the October comments. No one has asked him to withdraw these.

The committee's response to his comments on observation referrals was not reported. No response from the Department of Justice and Constitutional Development or the judiciary had been reported by the time of writing. Until someone answers with a count, or the minister supplies the one he did not bring to the committee, the claim stands as he made it: a burden, a legal system that pushes accused people into hospitals, and no figures attached.