15 February 2018

South Africa: #lifeesidimeni - Officials Could Face Culpable Homicide Charges

Photo: Joe Gratz/Flickr
Judge's gavel.

Those who oversaw the removal of mental health patients could face the full wrath of the law as could those standing by as KZN's cancer care fails.

Gauteng health department officials could be criminally charged with culpable homicide for their roles in the Life Esidimeni scandal, says David McQuoid-Mason, a law professor at the University of KwaZulu-Natal's Centre for Socio-Legal Studies.

He believes former Gauteng health MEC Qedani Mahlangu, her former head of department, Barney Selebano, and the mental health services director, Makgoba Manamela, could be convicted of culpable homicide if prosecutors can prove their negligence caused the deaths of at least 144 patients and that these deaths were illegal. McQuoid-Mason was speaking at a lecture hosted by the University of the Witwatersrand Steve Biko Centre for Bioethics last week.

The trio could also be held personally liable for damages suffered by patients and families as well as associated legal fees in a civil claim under the Apportionment of Damages Act regardless of the arbitration's outcome, he warns.

The Act allows for people to sue officials who are shown to have been negligent, incompetent, or caused harm to others. If found guilty, these officials are not the only ones who would have to pay up to see justice done.

"If a public health official who is held personally liable by the court cannot afford to compensate the harmed patient in full, the patient may always cite the relevant provincial MEC for health or minister of health as a joint wrongdoer. The court may order each to pay a proportion of the damages," McQuoid-Mason wrote in a June edition of the South African Medical Journal.

Similarly, Gauteng Premier David Makhura and Health Minister Aaron Motsoaledi could also be personally charged with "vicarious liability" in civil cases under the State Liability Act if families or patients go this legal route. This is despite the pair's continued assertion that they were ignorant of plans to move patients to nongovernmental organisations who were not equipped to care for them.

Former Gauteng Health MEC could face jail time for a deadly decision to move mental health patients to unregistered NGOs. (Oupa Nkosi)

Mahlangu, Selebano and Manamela oversaw the removal of about 1 700 long-term mental health patients from state-sponsored care at private Life Esidimeni facilities to largely unlicensed community organisations. At least 144 patients later died, and about 40 are missing, according to Gauteng health MEC Gwen Ramokgopa's January testimony before the Life Esidimeni arbitration.

The arbitration hearings ended last week and did little to reveal the Gauteng health department's real motives for ending its decades' long contract with Life Esidimeni. Retired Deputy Chief Justice Dikgang Moseneke who presided over the process, and is expected to announce how much the state must pay survivors of the tragedy and victims' families but it is estimated the Gauteng provincial government could be liable for at least R28-million in damages.

Mahlangu also testified at the hearings and maintained that her duties as an MEC did not involve the day-to-day running of the department, which was Selebano's responsibility.

It's a view supported by the Public Finance Management Act, the Rural Health Advocacy Project's Russel Rensburg told Bhekisisa in January.

But Mahlangu may have exposed herself to legal liability for the move when she admitted that she ordered the Life Esidimeni contract to be cancelled, McQuoid-Mason says.

"The moment you interfere with the existing administration, you take direct responsibility."

The embattled former MEC said she had been forced to end the agreement with the private hospital group because of the auditor general's growing concerns that the contract had not been subject to tender and budget constraints.

Gauteng finance MEC Barbara Creecy later testified that there was no proof the auditor general had advised the department to terminate the Life Esidimeni contract.

The Gauteng health department had also spent more than R90-million on consultants when it axed the Life Esidimeni contract in a bid to save R250-million, Creecy revealed. Creacy's figures may be one of the most serious attacks on Mahlangu's claim to innocence.

The right to health in South Africa is a progressive one, meaning that the state must take reasonable measures "within available resources" to provide the best healthcare possible.

If Mahlangu's proposition that there was no money for private, long-term care for Life Esidimeni patients is a lie, then her decision to terminate the contract violated patients' constitutional rights.

The families of the victims are seeking R1.5-million in constitutional damages because advocates argue their constitutional rights were violated. It is the first time legal representatives have argued for this kind of award on behalf of mental health patients.

But Gauteng officials aren't the only ones who may face charges of culpable homicide, McQuoid-Mason says. Since June, KwaZulu-Natal's public sector has relied on just two state oncologists and what the province has admitted are just three working machines to treat cancer patients.

The province has blamed specialists for leaving the public service for better-paid private posts but doctors and the South African Medical Association have said poor management is behind the crisis.

In 2017, the national health department implemented what was billed as a two-week plan to resuscitate cancer services in the province but not much has changed, says Democratic Alliance MPL Imran Keeka. "The waiting times for cancer patients in KwaZulu-Natal are anywhere from nine months to never. Most of them will be dead by then," he says.

As waiting lists for treatment grow, so too does the death toll from the crisis, Keeka fears. He has requested figures in the provincial legislature from the KwaZulu-Natal health department as to how many patients have succumbed to cancer since services first began collapsing in 2016 but he has yet to receive accurate answers, he says.

McQuoid-Mason warns that it may already be too late for officials to escape liability. "If the MEC had made sure cancer machines were working, cancer patients would not have progressed from stage one to stage four cancer - and in many cases would not have died as a result."

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