Public Protector Busisiwe Mkhwebane has again dived headfirst into constitutionally murky waters, instructing the government to “within 90 days” act to finalise the controversial State Liability Amendment Bill, which would allow for periodic payments or “in-kind” treatment in a public hospital, instead of lump sum payments to the victims of medical negligence, reports MedicalBrief. She also ordered the National Department of Health “to consider taking over medico-legal claims as they affect most of the provinces”.
Mkhwebane’s unusual and probably pointless instructions to the Director-General of the DoH and the Department of Justice and Constitutional Development is the tail-end of her findings and recommendations stemming from an Investigation into Allegations of Worsening Conditions Within the Health Facilities/Hospitals in the Eastern Cape Province.
It follows a brief analysis of the worsening debt burden that the Eastern Cape, as with all provinces, faces in terms of medical negligence payouts.
Whether or not the PP indeed has the power to make the recommendations will need a “considered review of the raft of judgments on the PP’s powers”, said Donald Dinnie, Norton Rose Fulbright director. He commented that Mkhwebane sensibly had “shied away from directing a result in the sense of directing that the Bill must be ‘finalised’ or the National Department must take over medico-legal claims.”
“To the best of my knowledge the National Department has previously considered taking over the relevant claims, and decided not to. So all the National department need to do is say it has already considered and declines to. Or has now considered and declines. The National Department cannot be forced to take those claims over.”
Dinnie described the PP’s directive on the State Liability Amendment Bill “more peculiar”. “There is a long stalled Bill. A Bill exists. All the recommendation requires is that steps to be taken to speed up the process of finalising the Bill.
“If that means, and it isn’t clear, getting the Bill before Parliament then once it is on an order paper, the job is done and in the hands of Parliament and its processes with an uncertain fate which the PP doesn’t and cannot dictate.”
She writes:
“In the Member of the Executive Council for Health, Gauteng Provincial Government v PN [2021] ZACC, the Constitutional Court ruled that while the defendant is liable for 100% of the plaintiff’s agreed or proved damages, the order has nothing to do with 'the how'. The focus is on being liable to compensate.
“Consequently, it is now acceptable/possible to arrange for structured settlements and periodical payments for the satisfaction of claims against the State as a result of wrongful medical treatment of persons by servants of the State. This is necessary to protect the constitutional responsibility to provide healthcare which is at risk due to increasing budget pressures facing the Eastern Cape Department of Health (ECDoH).
“According to the Eastern Cape Provincial Treasury (ECPT), a total of R 2.519 billion has been paid from 2014/15 to 2018/20. For the current financial year, as at 31 December 2020, an amount of R905,108 million has been paid for the medico-legal claims. These are projected to grow over the Medium Term Expenditure Framework (MTEF) period.
“Within 90 (ninety) from the date of issue of this report take the necessary steps to speed up the process of finalising the current State Liability Amendment Bill, which seeks to amongst other things make provision for structure settlement orders which would include periodic payments in cases of medical negligence against the State.
“The National Department of Health to consider taking over medico-legal claims as they affect most of the provinces.”
Less controversially, the PP found that allegations that the administration of health by the ECDoH at Nessie Knight Hospital, Mthatha Hospital, Livingstone Hospital, and Uitenhage Hospital did not accord with the obligations imposed by the Constitution and the law were substantiated by her investigations.
Observations made during the on-site inspection undertaken by PPSA team revealed systemic deficiencies, such as staff shortages, lack of adequate medical equipment, insufficient supply of PPE, poor physical infrastructure such as dilapidated buildings, lack of vehicles, lack of laundry services and poor supply of water, among other failings.
The PP’s wrote as regards her recommendations for remedial action:
The Public Protector notes and acknowledges the challenges and constraints faced by the ECDoH, as well as the context within which health services are delivered in the Eastern Cape Province.
Based on the action plans submitted by the ECDoH detailing how the shortcomings and deficiencies in each of the four hospitals will be addressed and taking into consideration submissions made by both ECDPWI and ECPT, the appropriate remedial action that the Public Protector is taking in pursuit of section 182(1)(c) of the Constitution is the following:
In respect of the Nessie Knight Hospital, the Head of the ECDoH to take appropriate steps to ensure that:
Within the 2021/22 Medium Term Expenditure Framework (MTEF) the ECDoH and where appropriate in consultation with Eastern Cape Department of Public Works and Infrastructure (ECDoPWI) as well as Eastern Cape Provincial Treasury (ECPT) finalises the following projects:
. (a) Construction of the new residences for the staff;
. (b) Fencing of the hospital grounds;
. (c) Installing water supply in the residences;
. (d) Renovation of the male, female and TB wards;
. (e) Construction of a concrete drive way;
. (f) Renovation of the kitchen and Central Sterile Supply Department;
. (g) Installation of new ceilings in the ward’s passage(s) as part of and
the main hospital building renovations;
. (h)Refurbishment of hospital equipment and installation of piped
. oxygen;
. (i) Upgrading the IT connectivity within the hospital;
. (j) Replacing of the old fleet of vehicles and the laundry machines;
. (k) Sourcing additional funding from the Provincial/National Treasury to
pay creditors and critical service providers, including contractors on
projects and
. (l) Addressing shortages in human resources.
Sufficient PPE for the hospital is supplied within 30 (thirty) days from the date of this report.
In respect of Mthatha Hospital, the Head of the ECDoH to take appropriate steps to ensure that:
Vehicles from other health care facilities are reassigned for the benefit of the Mthatha Hospital, within thirty (30) days from the date of this report;
A submission is made to the Provincial/National Treasury for assistance with the timely settlement of medico legal claims relating to the hospital to avoid the further attachment of the assets of the hospital, within thirty (30) days from the date of this report;
The Mthatha Hospital utilises the mortuary at the Sir Henry Elliot Hospital within sixty (60) days from the date of this report;
Within 2021/22 MTEF, the ECDoH and where appropriate in consultation ECDoPWI as well as Eastern Cape Provincial Treasury (ECPT) finalises the following projects:
. (a) Upgrading the IT connectivity within the hospital;
. (b) Filling of the vacant positions;
. (c) Procurement of the laundry machines; and
. (d) Renovating and upgrading the infrastructure of the hospital.
Sufficient PPE for the hospital is supplied within 30 (thirty) days from the date of this report.
In respect of Livingstone Hospital, the Head of the ECDoH to take appropriate steps to ensure that:
The recruitment process for the vacant leadership positions at the hospital is finalised within 60 days from the date of this report;
The filling of other critical positions at the hospital is prioritised;
Interns appointed as from April 2021 are placed at the hospital to assist;
The organogram for the hospital is finalised within 90 days from the date of this report and the relevant Treasury engaged for additional funds to fill vacant positions;
An integrated metal health strategy for public hospitals is developed for the Nelson Mandela Bay Metropolitan area, within 90 days from the date of this report;
External Service providers are appointed for the maintenance of the laundry and other vital equipment at the hospital, within 90 days from the date of this report;
Within 2021/22 MTEF the ECDoH and where appropriate in consultation ECDoPWI as well as Eastern Cape Provincial Treasury (ECPT) conducts a full conditional assessment of the hospital buildings in order to develop a costed strategy for planning and budget allocation over the MTEF for refurbishment of the facility, subject to budget availability;
The Maintenance Unit at the hospital conducts routine or scheduled maintenance and regularly attend to blocked drains in order to avoid blockages and disruption of operations; and
Sufficient PPE for the hospital is supplied within 30 (thirty) days from the date of this report.
In respect of Uitenhage Hospital the Head of Department for ECDoH to take appropriate steps to ensure that:
The organogram of the hospital with the correct classification of posts is completed within ninety (90) days from the date of this report;
The recruitment process for the leadership positions at the hospital is completed within sixty (60) days from the date this report;
The filling of other critical vacant positions at the hospital is prioritised;
The correct classification of the hospital is finalised within ninety (90) days from the date of this report;
A comprehensive security assessment is conducted at the hospital to inform the 2021/2022 Procurement Plan in terms of the additional security required within 90 days from the date of this report;
Within 2021/22 MTEF the ECDoH and where appropriate in consultation ECDoPWI as well as Eastern Cape Provincial Treasury (ECPT) finalises the following projects:
. (a) Repairing of air conditioners and lifts in the hospital including settlement of the OTIS account for the repairs to be effected;
. (b) Conditional assessment of the Nurses Home to be conducted to inform budget and planning over the MTEF;
. (c) Procurement of a new mobile X-RAY; and
. (d)Identification of space for renovation and upgrades where
. necessary.
Sufficient PPE for the hospital is supplied within 30 (thirty) days from the date of this report.
The appropriate recommendation in pursuit of section 6(4)(c)(ii) of the Public Protector Act to the Head of Department of ECDPWI is as follows:
The Public Protector, in terms of section 6 (4) (c) (ii) of the Public Protector Act, refer to the Head of the Department of ECDPWI, this matter for consideration of technical infrastructural support and renovation needs where it appears necessary in relation to the identified and other public health facilities in the province of EC.
The appropriate recommendation in pursuit of section 6(4) (c)(ii) of the Public Protector Act to the Head of Department of ECPT is as follows:
The Public Protector, in terms of section 6 (4) (c) (ii) of the Public Protector Act, refer to the Head of the Department of ECPT, this matter for consideration of financial support and oversight where it appears necessary in relation to the identified and other public health facilities in the province of EC.
From the MedicalBrief archives:
AG warns urgent intervention needed to prevent provincial health collapse (April, 2021)
ConCourt confirms alternative compensation remedy for negligence (April, 2021)
ConCourt judgment is an opportunity to resurrect Bill on state liability (April, 2021)
Widespread opposition to Bill on lump-sum negligence payouts (2018)
Public Protector’s Report into Eastern Cape Healthcare
Report 11 of 202122