Inequities in Forensic Mental Health in South Africa and Recommendations for Service Development

Abstract

The roots of South Africa’s forensic mental health system are plagued by its colonial and apartheid legacy. Extensive forensic waitlists exist partly due to restrictive criminal justice legislation and an under-funded forensic mental health system, predicated largely on European norms and standards. There are several areas of concern in South Africa’s forensic mental health system, which may be viewed as inequitable to Black Africans and other marginalized groups. Black Africans are over-represented in the forensic mental health system, and many defendants are not fluent in English – the official language of the courts. The absence of competency restoration can result in extended detention in forensic hospitals. People with intellectual disabilities are disproportionately targeted for sexual assault, and face significant barriers in attempts to achieve justice. Further, the colonial legacy of the rebuttable presumption of doli incapax (children presumed incapable of forming criminal intent) can affect determinations of children’s criminal capacity. These issues warrant change, including introducing competency restoration, improving systems for testimony by sexual violence survivors with intellectual disabilities, reconsidering the rebuttable presumption in child justice matters, and using psychologists and outpatient evaluations to address the waitlists for forensic examinations. Comparisons are also made with US standards, challenges, and developments, especially in view of the authors’ knowledge of both systems and the common challenges facing them.

Keywords:

• Forensic psychology
• mental health
• law
• diversity
• equity

Conflict of interest

The authors have no conflicts of interest to report.

Notes

1 Throughout this article, South African terminology will be prioritized over American standards. Where salient conceptual differences arise, we will provide additional context. For example, when reviewing the South African NGRMI statutes, it should be noted that the term “insanity” is not used in South African legislation.

2 While the authors do not support the use of race terms and the prejudices they create, in this paper they highlight the consequences of racial discrimination and the apartheid legacy. In South Africa, the term ‘Black’ has been used in historical and progressive contexts to include all groups previously oppressed by apartheid, while ‘Black African’ refers to people of African ancestry, who were the most severely oppressed during apartheid.

3 There are varying perspectives on the most appropriate terminology for this population. Some recommend “victim,” while others recommend “survivor.” The American Psychological Association has suggested "person who has experienced" or "been impacted by" to either victim or survivor. Those perspectives differ across various international settings. We have chosen to use the term “persons who have experienced rape” throughout this article, but we acknowledge that an experience does not define a person’s full identity, and we acknowledge that every linguistic option has legitimate advantages and disadvantages.

4 The term “doli incapax” is a legacy of British colonialism which reflects an additional age span, above the MACR, in which a child is regarded as not criminally responsible, unless proven otherwise, usually through expert evidence.