Esidimeni final arguments: Putting a price on pain and suffering

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The Esidimeni tragedy families will have to wait a month before they know the outcome of arbitration hearings. Polity reports that on Friday 9 February, after all legal representatives had made their final arguments, retired chief justice Dikgang Moseneke, who has been chairing the arbitration, said he will need 30 days to go through the evidence before making an award to the families.

In terms of constitutional damages, legal representatives argued that families of the deceased should be awarded R1.5m as part of the redress. Advocate Lilla Crouse, for Legal Aid South Africa, who is representing some families of the survivors, didn’t reach an agreement with the State, and instead, made different submissions and argued that survivors should be compensated with R750,000 as part of general damages. She also said it was fair to award family members of the survivors R300,000. She added that families should be further compensated with R5,000 for clothing and R1,000 for transport costs. Crouse said R1m in constitutional damages for surviving patients would be sufficient.

 

Meanwhile, state advocate Tebogo Hutamo stunned the audience at the hearing when he said compensation should be awarded in relation to “what the families went through and not what the patients went through”.

Polity reports that in his closing arguments, Hutamo said families of the 144 patients, who died during the botched transfer of patients to unlicensed NGOs, were not entitled to constitutional damages. Hutamo said families were entitled to R200,000 for common law damages and will also be given counselling, which according to the State is sufficient.

He emphasised that the arbitrator should not consider claim for constitutional damages because the people whose rights were violated are not claiming for themselves, but the families are the claimants. Instead, he said only survivors are entitled to the constitutional damages.

He read the recommendation made on the Health Ombudsman report. “The report shows that compensation should be granted to those affected by the tragedy.”

Moseneke appeared shocked and, the report says, asked Hutamo whether the suffering of the deceased was irrelevant and should be ignored. “Is that your argument?” asked Moseneke. “Yes, we will make submissions why they are not entitled to constitutional damages,” Hutamo replied amid murmurs of disapproval.

Moseneke asked the lawyer if the state was aware he was submitting that the violation of rights of the deceased should be ignored. “Yes, they are aware,” responded Hutamo. “So, all evidence in relation to the deceased is irrelevant?” asked Moseneke. “For the purposes of compensation, yes,” affirmed Hutamo much to the chagrin of family members in attendance.

Moseneke asked if he meant the court should forget about how the patients died, the consequences and about the breaches of the constitution. “Ignore the fraud, the improper licensing, improper treatment, absence of medication, absence of care, forget about those things. Basically, you are saying to families you are only entitled to the pain you felt when they died as for the rest, it’s none of your business… How could that ever be?” asked Moseneke.

Hutamo said this was not just about the money, it’s about repairing where things have gone wrong. “One of the phases of this process was to get senior government officials to apologise,” he said. The lawyer for the state argued that the arbitration should not lose sight in the objective which is sought in the hearings. “Government being punished goes against the objective of these proceedings.”

 

The violation of the dignity of the Life Esidimeni patients and their families lies at the heart of the legal argument made by Section27, reports News24. Advocate Adila Hassim, on behalf of Section27, which represents more than 60 families who lost loved ones, recounted the testimonies of family members, government officials and experts.

After more than 40 days of testimony, the hearings into the deaths of at least 140 mental healthcare patients were drawing to an end. Hassim said the entire disaster saw the patients and their families deprived of one of their most basic rights – the right to dignity. “Their dignity was violated in the most wanton and flagrant manner… We submit in other words that the claimants were stripped of their dignity in the manner in which this matter was handled,” Hassim said.

During her argument, she went through the conditions and treatment the patients were subjected to as well as the conduct of the Gauteng Health Department and some of its officials. “There was a total disregard for human dignity… In other words, the lack of dignity, the failure to uphold the human dignity of the mental healthcare users when they were alive, continued after they were dead,” she said. “(Family members) have said that the treatment of their relatives was worse than that of a township dog.”

Hassim said the evidence the arbitration hearings heard about how there was a lack of food, security, access to medication, professional care, clothes and reports of suspected abuse “painted a ghastly picture”.

Hassim said the abuse and neglect the Life Esidimeni patients experienced could only have happened to “a marginalised and disempowered” group of people such as mental healthcare patients who still experienced a lot of stigma in society.

Moseneke said: “The secondary trauma in the way the deceased’s bodies were handled… it must have caused massive trauma (for the families). I’m not a psychologist, but it is mere common sense.”

 

Section27 and union Solidarity have agreed with the State that families will receive R200,000 as compensation, reports The Citizen. Hassim said R180,000 was intended for emotional shock, while R20,000 was for funeral arrangements. She said counselling will also be offered. Solidarity also reached the same agreements as Section27.

Also, the report says, Health Ombudsman Professor Malegapuru Makgoba had earlier in the week clarified that four people out of the 144 who were included in the number of patients who died during the botched project, will not be part of the Life Esidimeni alternative dispute process.

On the matter of a further 12 people who died and were suspected to be part of the official toll, Hutamo said only one patient qualified to be added to the arbitration process.

 

Five of the more than 60 former Life Esidimeni patients who were classified as missing during the arbitration hearings have been found.

Democratic Alliance (DA) Gauteng member of the provincial legislature Jack Bloom is quoted in a Polity report as saying that he had been informed that five former Life Esidimeni patients were found, three of whom were residents at Mosego Home in Krugersdorp. “I have been informed by the police that they have found five of the 62 patients that were listed as missing since they were discharged from Life Esidimeni in mid-2016,” Bloom said. “Three of these patients are at the Mosego Home in Krugersdorp, which the Health Ombudsman ordered closed after seven patients died there,” he said.

One patient was discharged last year while another is recorded as having died. The details around this patient’s death were not immediately available.

The report says Bloom commended the police for finding some of the patients after he opened missing persons cases last week and said he would be writing to the department to place the patients in reputable institutions. “And I hope further progress is made in finding the others.”

Bloom said, however, that he was “horrified” to learn that three of the patients were found at an institution that was ordered to close immediately. “I am horrified that three Esidimeni patients are still at one of the NGOs that Health Ombudsman Malegapuru Makgoba said should be closed ‘immediately as their continuity poses high risk’,” he said.

Bloom highlighted Makgoba’s analysis of the conditions at the institution where patients were found to be hungry, thirsty, in pain and severely neglected.

The report says the Gauteng police were not immediately available for comment.

Families of the 140-plus psychiatric patients who died after being moved from Life Esidimeni facilities to irregularly registered non-governmental organisations (NGOs) have suffered so much that some themselves are now dying, reports Health-e News. Media reports blaming relatives for the Life Esidimeni deaths have upset families, who continue to suffer mentally and physically from the trauma. Since the controversial move followed by dozens of deaths with many patients still missing, two families have suffered another tragic loss.

The report says these new deaths, it has been argued, are also a direct result of the stress of the tragedy and the traumatic loss of their loved ones. “My mother’s last words were ‘I want to see that Qedani who killed my son!’,” said Maggie Mosiane. Her brother Caswell Mosiane was the sixth casualty of over 140 mental health care users who lost their lives as a result of the ill-conceived decision by the Gauteng Health Department to terminate its contract with Life Esidimeni. It was a decision that saw 1711 mental healthcare users moved into unlawfully licensed NGOs. Former health MEC Qedani Mahlangu has been implicated as one of the government officials responsible for the deadly project.

Maggie’s mother, Yvonne Mosiane, died on 23 November 2017 of heart failure. “After Caswell died my mom got sick. She couldn’t walk, eat or talk properly and her diabetes got worse because of the stress,” said Maggie.

The report says clinical psychologist Coralie Trotter, who testified at the Life Esidimeni arbitration hearings that the treatment of mental health care users amounted to torture, said that the stress of Caswell’s death had a direct impact on Yvonne’s physiological health – destabilising her diabetic condition and ultimately leading to her death. “The body and mind are not separate entities, that is an outdated notion,” she said. “An emotional trauma affects the chemistry and physiology of the body and can lead to sickness and death.” Maggie herself is struggling physically from the double loss.
“Since I lost my mom I have had constant diarrhoea and I’m always nauseous, I keep asking myself what is happening to me,” she said.

The report says two weeks ago the Daily Sun published a column that opened with: “What responsibility are the family members of the Life Esidimeni patients taking for the deaths of their family members?” It accused families of “abandoning” their loved ones who were “simply dumped” in state institutions, implying a callous lack of love and care. These remarks have upset many family members who said they are still suffering from the consequences of the traumatic experience.

Christine Nxumalo lost her sister Virginia Machpelah at the infamous Precious Angels NGO in August 2016. “People don’t know bad it was. It was absolute chaos trying to find my sister and many families struggled immensely going to NGOs trying to find their loved ones without answers,” she said. “It was scary. The pain and fear we felt is something I would not wish on anyone.” The family was dealt a second blow when Virginia’s daughter and Christine’s niece, Shanice Machpelah, died suddenly the very first day of the arbitration proceedings on 9 October last year.

“She was supposed to come with me that day but decided not to at the last minute,” remembered Christine. “She seemed normal when she woke up but a few hours later she leaned forward holding her knees saying she wanted water and to lie down.” The family rushed her to a hospital in Midrand where she died soon afterwards. The family is still waiting for her post mortem results but they suspect she died of broken heart syndrome as a result of the traumatic circumstances under which she lost her mother.

Trotter said this is why counselling for the affected families is so important. “The problem with trauma is the shock removes you from being present enough to process it. Through psychological counselling you’re trying equip and facilitate people to start processing the trauma. You’re trying to integrate the event into part of who you are rather than something that has happened to you,” she said. “The less able you are to process the emotions the more of an impact it is going to have on your entire body.” Christine said that they tried to encourage Shanice to go for counselling but that she said “that she didn’t want to break down because she didn’t think she would be able to put herself back together again”.

Referring to the Sun article Christine is quoted in the report as saying that “for someone to so arrogantly say we didn’t care about our families is just shocking, they do not know our full story. We just thought we were getting over my sister’s death and then Shanice’s passing happened. We just didn’t see it coming. It was so painful. It still is.”

 

Health-e News report
Polity report
Polity report
News24 report
The Citizen report
Polity report


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