Hundreds of state mental health patients are being kept in prison

Hundreds of people deemed mentally unfit to stand trial are being kept in prisons rather than receiving treatment at state psychiatric hospitals, such as Valkenberg in Cape Town. Archive photo: Ashraf Hendricks

• Hundreds of state patients — people declared mentally unfit to stand trial or to be held criminally liable — are being kept in prisons rather than being treated in psychiatric hospitals.
• The number of state patients in prison has increased significantly over the past year.
• The Department of Correctional Services and the Department of Health are at odds over who should be responsible for these patients, and for how long.

People who are found unfit to stand trial or be held criminally liable for a crime due to their psychiatric state are supposed to receive specialised care in the health system. But hundreds are being kept in prisons.

And while the Department of Correctional Services and the Department of Health haggle over who should take responsibility, the number of these state patients is increasing.

In Parliament earlier this month, Correctional Services Minister Pieter Groenewald said he had sent multiple letters to the Minister of Health, requesting the department to make room for the state patients in designated health facilities.

“If the minister responds tomorrow and says ‘send them’, we will send them almost that same day,” said Groenewald.

He said that much of the Department of Correctional Services’ (DCS) overspending — about R690-million in 2023/24 — was due to legal obligations such as caring for state patients, for which the overcrowded system does not have the budget. “I will continue to follow up with the minister of health again, but unfortunately, I can’t just take [the patients], go to a facility and offload them as if they are not my responsibility.”

Health department spokesperson Foster Mohale said correspondence from the DCS had been received and responded to.

Mohale said “ideally” a state patient should be transferred to a psychiatric hospital within 30 days. This is the time it takes to complete the required paperwork if it is initiated as soon as the person is declared a state patient by the court.

But the law is unclear about who is responsible for state patients and how long they need to remain in state care. According to the Mental Health Care Act, state patients should be transferred to healthcare facilities within two weeks of their designation. But a 2017 amendment to the Criminal Procedure Act (CPA) states they can be held in prisons, possibly indefinitely, or temporarily in the prison’s health wing.

Prison rates rising

Regardless of how the responsibility is supposed to be shared, the current number of state patients in prisons appears to be increasing significantly.

Groenewald said there were 331 state patients in prisons as of 7 May. The figure has been confirmed by the Judicial Inspectorate for Correctional Services (JICS). The health department puts the number of state patients in prisons at around 400.

This is a massive increase from March last year, when the number was about 200, according to the DCS annual report. It is also the highest number of state patients in prison since statistics were first published in 2019.

But these numbers are constantly in flux. In the 2023/24 reporting year, 185 state patients were transferred to health department psychiatric hospitals, but the number of new patients declared mentally unfit to stand trial was higher. The DCS annual report noted that state patients were remaining in prisons because there are not enough psychiatric hospitals, all of which have long waiting lists.

Mohale says there are currently 3,765 declared state patients nationally. This implies about 10% or less are in prisons. The rest were housed across 13 psychiatric hospitals that have a total of 1,937 beds. The shortfall of about 1,500 beds in health department facilities is due to psychiatric hospitals admitting more patients than they have space for, and state patients being deemed stable enough to leave the hospital under particular guidelines.

The health department states there has been an overall increase in psychiatric patients.

“These facilities were able to cater for the need in the past,” said Mohale. He said there are now more state patients overall, and fewer of them are being reintegrated into their communities.

Treatment vs Punishment

Figures gathered by JICS, obtained from a source, show that while some state patients are held in prisons for a few days or weeks, the vast majority have been kept in prison for months or even years. Three patients have been kept in prison for more than four years.

Whether or not this is within the bounds of the law is unclear, as Parliament’s subcommittee on correctional services noted three years ago.

Keeping a state patient in prison may not be best for patients or prisons.

“The purpose of referral of state patients to a psychiatric institution is not punishment, rather treatment and rehabilitation, while simultaneously monitoring and managing their potential risk to the community,” states the DCS in its annual report.

A 2015 study found that the majority of state patients who received treatment over three years at Sterkfontein Hospital in Gauteng were reintegrated into communities and did not reoffend, although a quarter of patients absconded. Similar studies on state patients in prisons have not been conducted.

“If the Department of Health knows of [state patients], they must make space, but obviously, a plan has not been made,” said Janho Engelbrecht, DA MP on the Portfolio Committee on Correctional Services.

Plans in place

Mohale said the health department is trying to remedy the situation, with infrastructure projects being implemented at some psychiatric hospitals — some of which are more than 100 years old — and plans to build a new facility in Mpumalanga.

The department is also looking to contract non-profit organisations to accommodate state patients when they are reclassified from state patients to outpatients, and to match state patients with custodians early to facilitate their reintegration.

A significant step is also to address the shortage of psychiatrists at Eastern Cape facilities. “This is largely due to the rural nature of the province, resulting in fewer psychiatrists willing to work there, especially at Komani Hospital,” Mohale says.

He said two additional psychiatrists have been appointed to the province through international recruitment.

The department is also considering joint appointments with universities to increase the number of psychiatrists working in some capacity with state patients. Along with expanding the capacity of psychiatric hospitals, this may address current gaps in the system.

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