MENTAL HEALTH ACT

ARRANGEMENT OF SECTIONS

SECTION

PART I
Preliminary

    1.    Short title and commencement

    2.    Interpretation

PART II
Establishment of Mental Health Board

    3.    Establishment of Board

    4.    Functions of Board

    5.    Membership of Board

    6.    Tenure of office

    7.    Disqualification, suspension and removal of member

    8.    Vacation of office

    9.    Filling of vacancies

    10.    Remuneration and allowances

    11.    Secretary of Board

    12.    Co-opted members

    13.    Committees of Board

PART III
Meetings and Proceedings of Board

    14.    Meetings of Board

    15.    Quorum and procedure at meetings

    16.    Disclosure of interest

    17.    Confidentiality

PART IV
Mental Illness and Capacity to make Mental Health Care and Treatment Decisions

    18.    Determination of mental illness

    19.    Capacity to make mental health care and treatment decisions

PART V
Advance Directive and Nominated Representatives

    20.    Advance directive

    21.    Advance directive not to apply to emergency treatment

    22.    Advance directive register

    23.    Reviewing, altering or cancelling of advance directive

    24.    Access to advance directive

    25.    Advance directive for minor

    26.    Liability of psychiatrist or mental health professional in relation to advance directive

    27.    Appointment of nominated representative

    28.    Nominated representative for minor

    29.    Duties of nominated representative

PART VI
Rights of Persons with Mental illness

    30.    Rights and duties with respect to persons with mental illness

    31.    Respect of human dignity and privacy

    32.    Respect of right to live in community

    33.    Non-discrimination

    34.    Protection from exploitation and abuse

    35.    Duty to inform of individual rights

PART VII
Care and Treatment of Persons with Mental illness

    36.    Admission of persons with mental illness

    37.    Voluntary admission

    38.    Discharge report

    39.    Facilitated admission

    40.    Treatment on facilitated admission

    41.    Admission of minors

    42.    Person with mental illness at place of residence

    43.    Person with mental illness in public place

    44.    Emergency treatment

    45.    Major medical or surgical procedures

    46.    Seclusion and restraint

    47.    Rights of nominated representatives, relatives and care-givers

    48.    Leave to persons admitted as facilitated admission

    49.    Absence without leave of persons admitted as facilitated admission

    50.    Persons with mental illness in custody

PART VIII
Establishment of Mental Health Tribunal

    51.    Establishment of Tribunal

    52.    Membership of Tribunal

    53.    Functions of Tribunal

    54.    Powers of Tribunal

    55.    Proceedings before Tribunal

    56.    Reasons for decisions

    57.    Appeals

    58.    Report of Tribunal

    59.    Secretary to Tribunal

PART IX
Miscellaneous

    60.    Offences and penalties

    61.    Regulations

    62.    Repeal of Cap. 63:02

    63.    Transitional and savings provisions

 

Act 20, 2023.

    An Act to provide for mental health care, treatment and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental health care, treatment and services; and for matters connected therewith or incidental thereto.

 

[Date of Commencement: ON NOTICE]

PART I
Preliminary

1.    Short title and commencement

    This Act may be cited as the Mental Health Act, 2023, and shall come into operation on such a date as the Minister may, by Order published in the Gazette, appoint.

2.    Interpretation

    In this Act, unless the context otherwise requires—

    "advance directive" means an advance directive made under section 20;

    "Board" means the Mental Health Board established under section 3;

    "care-giver" means a person who resides with a person with mental illness and is responsible for providing care to that person, and includes a relative or any other person who performs this function;

    "Director" means the Director of Social Protection from the Ministry responsible for local government;

    "head of a mental health facility" means the accountable officer of a mental health facility;

    "intellectual disability" means a condition of arrested or incomplete development of the mind;

    "least restrictive alternative" means providing a person with treatment or a setting for treatment which—

    (a)    meets the person’s treatment needs; and

    (b)    imposes the least restriction on the person’s rights;

    "leave" means a specified period granted by the head of a mental health facility, authorising a person receiving treatment to leave a mental health facility;

    "member" means a member of the Board;

    "mental health care" or "mental health treatment" includes biological and psychological treatments, social care for mental illness and curative and rehabilitative services provided either in a health or mental health facility or in a community;

    "mental health facility" includes designated psychiatric facilities or general health facilities where mental health care and treatment is provided;

    "mental health professional" means a health professional registered under the Botswana Health Professions Act or the Nurses and Midwives Act and who has been trained to provide mental health care, treatment and rehabilitation services;

    "mental illness" means an illness as determined under section 18, but does not include intellectual disability in itself;

    "nominated representative" means a person appointed under sections 27 and 28;

    "officer in charge" has the meaning assigned to it under the Prisons Act; "relative" any person related to the person with mental illness by blood, marriage or adoption; and

    "Tribunal" means the Mental Health Tribunal established under section 51.

PART II
Establishment of Mental Health Board

3.    Establishment of Board

    There is hereby established a Board, to be known as the Mental Health Board.

4.    Functions of Board

    The functions of the Board shall be—

    (a)    to oversee the planning and management of mental health care, treatment and services;

    (b)    to promote standards of best practice and efficiency of mental health care, treatment and services;

    (c)    to set standards for accreditation of mental health facilities;

    (d)    to regulate mental health facilities;

    (e)    to set criteria and standards for specific mental health care, treatment, interventions and services, as necessary;

    (f)    to inspect with sufficient frequency, every mental health facility to ensure that the conditions, treatment and care of persons with mental illness comply with the provisions of this Act;

    (g)    to set standards for the use of seclusion or restraints in mental health facilities;

    (h)    to review the use of seclusion or restraints in mental health facilities;

    (i)    to advise and assist the Government on other matters related to mental health care, treatment and services; and

    (j)    to perform such other functions as may be assigned to it under this Act.

5.    Membership of Board

    (1) The Board shall consist of the following members appointed by the Minister—

    (a)    the Director;

    (b)    the Director of Health Services;

    (c)    a psychiatrist with at least five years’ experience in mental health care;

    (d)    a psychiatric nurse with at least five years’ experience in mental health care;

    (e)    a person who has received mental health care;

    (f)    a family member or a care-giver of a person with mental illness;

    (g)    a legal practitioner with at least five years’ experience;

    (h)    two representatives from civil society with an interest and knowledge in mental health issues; and

    (i)    a psychologist with atleast five years’ experience in mental health care.

    (2) The Minister shall appoint the Chairperson of the Board from amongst the members.

    (3) The Minister shall, by Notice in the Gazette, publish the names of members, specifying the dates of their appointment and the period for which they are appointed to the Board.

6.    Tenure of office

    A member shall hold office for a period not exceeding three years and shall be eligible for reappointment for a further period not exceeding three years.

7.    Disqualification, suspension and removal of member

    (1) A person shall not be appointed to be a member or be qualified to continue to hold office where the person—

    (a)    has, in terms of a law in force in any country—

        (i)    been adjudged or otherwise declared bankrupt and has not been discharged, or

        (ii)    made an assignment, arrangement or composition with, his or her creditors, which has not been rescinded or set aside;

    (b)    has, within a period of 10 years immediately preceding the date of his or her appointment, been convicted—

        (i)    of a criminal offence within Botswana, or

        (ii)    outside Botswana, of an offence which if committed in Botswana, would have been a criminal offence,

    and sentenced by a court of competent jurisdiction to imprisonment for a term of six months or more without the option of a fine, whether that sentence has been suspended or not, and for which he or she has not received a free pardon;

    (c)    has been convicted of an offence under this Act;

    (d)    is registered under the Sexual Offenders Register established under the Sexual Offenders Registry Act;

    (e)    is registered under section 55 of the Children’s Act; or

    (f)    is a member of the National Assembly, a Councillor in a local authority, member of the Ntlo ya Dikgosi or the holder of an office in a political party.

    (2) The Minister may, in writing, suspend from office a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that member is so suspended, the member shall not carry out any duties or be entitled to any remuneration or allowances as a member.

    (3) The Minister shall remove a member from office, if the member—

    (a)    is absent without reasonable cause from three consecutive meetings of the Board of which he or she has had notice;

    (b)    has been found to be physically or mentally incapable of performing his or her duties efficiently, and a mental health professional has issued a certificate to that effect;

    (c)    contravenes the provisions of this Act or otherwise misconducts himself or herself to the detriment of the objectives of the Board;

    (d)    has failed to comply with the provisions of section 16 or 17; or

    (e)    has been convicted of an offence under this Act, or under any other Act for which he or she is sentenced to imprisonment for a term of six months or more without an option of a fine.

    (4) For purposes of subsection (3)(c) "misconduct" includes any act done without reasonable excuse by a member which—

    (a)    amounts to a failure to perform in a proper manner any duty imposed on the member as such;

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