The SA courts have not emerged unscathed from the saga of the deaths of 94 psychiatric patients at the hands of uncaring, incompetent Gauteng Health officials. Rapport points out that lobby group Section 27 tried more than once to interdict the transfers of patients to NGOs, with its second court application in March 2016 dismissed due to ‘lack of urgency’.
Recapping several explicit warnings – and evidence – about the pending disaster that were ignored, Rapport also touches on the role played by the judiciary in the process. It points out that lobby group Section27 went to court more than once to interdict the transfers of the patients to NGOs and to intervene in the situation. When Section27 approached the court for a second time in March 2016, the application was dismissed due to a lack of urgency.
Solidarity’s charity wing, Helping Hand, openly blames the judiciary for failing to intervene. Helping Hand brought an urgent application in the Gauteng High Court (Pretoria) on 9 July on behalf of one of the beleaguered NGOs, Siyabadinga, requesting the court to appoint a curator to investigate negligence and abuse of patients. The court proceedings were postponed several times, says Helping Hand’s Ernst Vorster. Judge Peter Mabuse finally dismissed the application on 9 August without providing reasons.
The organisation approached the Deputy Judge President and on 30 August the latter undertook to reprimand Mabuse and to urge him to provide reasons for the judgment as Helping Hand sought to appeal. As of last week – five months later – Helping Hand was still awaiting the reasons, notes the report.
The events have raised two important issues – the extent of responsibility by political appointees such as the MEC as well as the problem of medical doctors’ having “dual loyalties”, writes Mark Sonderup, associate professor and hepatologist, University of Cape Town in The Conversation. He says this exists where medical professionals are employed by, for example, the state or defence force.
Sonderup writes: “South Africa has a particularly brutal case of ‘dual loyalty’ that underscores why it’s vital that doctors remember their first responsibility is to their patient’s well-being, interests and safety. In other words the needs of their patients must supersede any demands placed on them by their employer.
“Dr Wouter Basson, dubbed ‘Dr Death’ by local media, was the head of the apartheid government’s chemical and biological warfare programme, “Project Coast”, in the 1980s and 1990s. Working for the South African Defence Force, Basson was tasked with the manufacture of toxic substances for use in attacks and assassinations on members belonging of the anti-apartheid movement.
“The work of Project Coast’s researchers included finding substances that could kill people without leaving a trace post-mortem, producing drugs such as ecstasy, mandrax and “new-generation” teargas for use against “enemies of the state”.
“The Health Professions Council of South Africa found Basson guilty of unprofessional conduct in December 2013 for his role as the head of the project.”
Sonderup writes that the Basson case illustrates the challenge for medical professionals who work for the state or defence force. Their primary responsibility is to the patient – not any unjustified demands or nefarious intent by the State.
He writes: “The two officials involved in the Gauteng psychiatric patients case were doctors and should therefore face the requisite processes. Appropriately, the ombudsman’s report recommended that they should be referred to the Health Professions Council of South Africa for investigation of professional misconduct.”
Sonderup also points out that the MEC was not a doctor adding that “this is itself a problem as there’s a tendency in South Africa to appoint non-medical people to head up health services. This seems counter-intuitive, but occurs regularly.
“Even so, the report suggests that the MEC and her officials were well aware of problems associated with their hurried decision to transfer patients. They were repeatedly warned by numerous people and organisations that the consequences could be fatal.”
Sonderup writes: “To what extent should she be held responsible – even legally liable for the deaths of the 94 patients? Let me be clear I am not a lawyer and have no legal training so my questions are simply that – just questions.
“The Oscar Pistorius murder case sheds light on the question of liability, highlighting the distinction between dolus eventualis versus dolus directus. Duhaime’s Law Dictionary says that intent can occur in three forms: dolus directus, dolus indirectus and dolus eventualis.
“Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.
“Dolus directus, on the other hand, is present when the accused’s aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small.
“Is the MEC guilty of dolus directus? The answer must be no as she did not directly cause the unlawful deaths of the individual patients. Could she have foreseen the consequences of her decision and hence guilty of murder by dolus eventualis? This is a question that I believe should be answered by a court.”
Sondersup says: “South Africa fought a very hard battle to establish a culture of human rights. Politicians cannot simply resign and walk away. Accountability, where death has occurred on such a large scale, cannot merely be political. Proper legal processes must be followed and all those responsible be held truly accountable. No one, and especially politicians, is above the law.
“In South Africa’s young democracy, the questions raised here must be asked and answered. If they aren’t, the tragic events such as this will happen again and those entrusted with the care of the most vulnerable of our society will be tempted to act with impunity.”
The National Department of Health has commenced with processes to review the licences of all the 27 NGOs who received patients during the Gauteng Mental Health Marathon Project (GMHMP). This follows the recommendations of the Health Ombudsman’s report.
The report found that all the 27 NGOs to which the patients were transferred operated under invalid licences and all patients who died there, died under unlawful circumstances. The provincial government said a government task team has commenced work in preparation for the relocation of mental health patients currently being cared for at various NGOs.
“The team visited the NGOs to establish the correct number of mental health patients currently being cared for at the NGOs. “Specialists have advised that in transferring patients to suitable institutions everything must be done to avoid any negative impacts on the patients. The five high risk NGOs identified by the report of the Health Ombudsman are being prioritised,” said the provincial government.
The representatives of the families were also part of the task team to ensure that families are part of the relocation process. It said the team will identify public health institutions that are well-equipped to care for the mental health patients.
“All this information will be critical in determining the correct steps as part of relocating the mental health patients.” The newly established team comprised senior officials; specialists in the area of mental health: doctors, psychiatrists, psychologists, nurses, occupational therapists; and civil society organisations, family representatives.
The team is co-chaired by the Gauteng director-general (DG) in the Office of the Premier, Phindile Baleni, and the National Health Department DG, Precious Matsoso.
Some of the recommendations made by the ombudsman include that the GMHMP be de-established. The Gauteng Provincial Government has confirmed that the project has been stopped. It was also recommended that Gauteng Premier David Makhura consider the suitability of former MEC Qedani Mahlangu as Health MEC in the light of the findings, but she has already resigned.
The provincial government said disciplinary proceedings against officials in the Gauteng Department of Health were initiated on Friday. The Gauteng provincial commissioner has been requested to centralise all cases related to the GMHMP to ensure that they are prioritised for forensic investigations.
It was also recommended that the National Minister of Health and Premier of Gauteng meet with affected families and facilitate a process of Alternative Dispute Resolution Mechanism.
“Consultations are underway on Alternative Dispute Resolution, particularly with regard to closure and redress.
“The Gauteng Department of Health will work together with the National Department to overhaul mental healthcare in the province. The World Health Organisation has been contacted to provide expert assistance in the re-establishment of quality mental health care in Gauteng.”
The DA has set out priorities for new health MEC Gwen Ramokgopa including the safety of the mentally ill patients who were unlawfully transferred from Life Esidimeni to unlicenced NGOs and the review the R87m SmartPurse contract. According to a Polity report, the DA said SmartPurse was failing “abysmally” to pay 8 000 Community Health Workers on time.
Ramokgopa was sworn in as new health MEC on Monday.
“New Gauteng Health MEC Gwen Ramokgopa faces a huge challenge in restoring confidence in the health department which has been shown to be uncaring and deceitful,” said, Gauteng DA MPL. “Her previous stint as Health MEC from 1999 to 2006 was marked by mediocrity and an ugly spat at the end with her head of department Dr Letitia Rispel.”
He said Ramokgopa should ensure that all the remaining mental health patients are safely transferred from unlicensed NGOs to facilities where they will receive proper care.
“As existing public hospitals are already over-crowded, she should request Life Healthcare to re-open the facilities where mental patients were previously treated.”
Bloom said Ramokgopa should speedily appoint new top management “with real skills and ethical standards. The criterion should be competence, not political loyalty”.
He said the review of the R87m contract with SmartPurse must also be a priority and that all suppliers must be paid on time within the legally stipulated 30 days.
On 1 September 2016, former Gauteng Health MEC Qedani Mahlangu claimed to set the record straight about the deaths of 36 patients who were moved from the Life Esidimeni facility to various NGOs.
News24 takes a look at what she said then, and what the Health Ombudsman and his team of inspectors found.
Life Healthcare says the 462 patient deaths at its Life Esidimeni healthcare facilities over four years were natural and not caused by neglect or malnutrition. The Times reports that the group was reacting to weekend media reports that revealed this toll for the period from October 2011 to June 2016.
Nilesh Patel‚ executive Life Healthcare services operations‚ is quoted in the report as saying that the deaths at the NGOs and at the Life Esidimeni homes were not the same. “Absolutely‚ it (462) is a big number and any death is not a positive outcome at all. It is devastating to those affected and involved. We can 100% confirm that none of our patients died from poor care‚ from neglect‚ from dehydration‚ from malnutrition and for not receiving medication.
“We can attest to the situation and circumstances around all of the deaths. Each of deaths were recorded. Our duty of care has been fulfilled in every case.”
The report says all data on the deaths was submitted to the ombudsman‚ who found there were three to four deaths per 100 patients at Life Esidimeni facilities over the years versus seven deaths per 100 patients who died at NGOs last year.
Patel said the Life Healthcare group did raise concerns multiple times about the project to remove almost 1,400 patients from its facilities and place them with relatives or at NGOs. When Mahlangu announced the termination of the private-public contract with Life Esidimeni‚ it offered to sell its Life Esidimeni premises to the Gauteng Department of Health. It even provided options for the department to buy the facilities over time if the department didn’t have finances upfront.
The report says the idea of a sale had been welcomed by head of department Barney Selebano‚ but he was later side-lined from the project‚ according to Health Ombudsman Malegapuru Makgoba’s report.
The department never replied to this offer.
Life Esidimeni psychiatric staff also offered to inspect the NGOs to check they were of a good quality‚ as the ombudsman’s report recorded‚ but this offer was never taken up. One psychiatrist working for an Esidimeni home resigned out of conscience over the project.
Patel said it had offered‚ on more than one occasion‚ to provide empty facilities that are not in use to the department but has not heard from them. It wrote to the department after the release of Makgoba’s report last week about working with it at one if its facilities. It has not received a response.
“The staff had been traumatised by the move and the loss of their patients‚” he said. Some staff had worked at Life Esidiemeni facilities for 30 years. Mahlangu had promised to hire some of the Life Esidimeni staff and had done so. But she did not hire the most vulnerable and lowly paid – the cleaners and caterers‚ said Patel.