A South African high court ruling marks an important milestone in holding public officials to account for their decisions.
As a result of the ruling, Qedani Mahlangu, who was the health minister for Gauteng province, and Makgabo Manamela, who was the province's mental health director, can now be prosecuted for nine of the 144 deaths that occurred following the transfer of people with mental disability out of Life Healthcare Esidimeni hospitals in 2015 and 2016.
In October 2015 Mahlangu announced the health department was terminating its contract with Life Esidimeni in line with the Mental Health Care Act, "which encourages mental health care practitioners to treat mental health care users in the least restrictive environment", and to save costs.
What followed was one of the most shameful episodes of the past 30 years.
In her oral judgment on 10 July 2024, judge Mmonoa Teffo said Mahlangu, through the decision to terminate the contract, and Manamela, through implementation of the project, were responsible for the catastrophe.
They can both now be criminally charged.
Read more: Missteps stand in the way of criminal liability in South African mental health patient deaths
As a psychiatrist with many years' experience in academia and working in communities, this is, to my knowledge, the first time in democratic South Africa that government health officials have been held personally responsible for the consequences of a political decision.
It also highlights the devastating consequences of not looking after the country's most vulnerable citizens, and putting perceived cost before outcomes.
Most helpless
It's worth remembering just how vulnerable the people staying at the Life Esidimeni hospitals were. They lived with chronic neuropsychiatric conditions such as schizophrenia, bipolar disorder, intellectual disability, cerebral palsy, epilepsy and dementia, often more than one of these conditions.
The impact of these was such that living in their communities had been difficult. One person with chronic schizophrenia had reportedly lived at an Esidimeni hospital for 40 years.
Most people staying at Life Esidimeni facilities were admitted under the Mental Health Care Act as "assisted mental health care users" by trained medical professionals, meaning that they were assisted in the decision regarding their care by a family member or custodian and two mental health practitioners.
Essentially, terminating the contract overruled decisions made by families and trained professionals, ostensibly to save money.
How the tragedy unfolded
In October 2015, Mahlangu announced the Gauteng health department would end its decades-long contract with Life Esidimeni, a cluster of privately run mental healthcare facilities.
The contract had ensured the provision of medium- to long-stay hospital care for people with severe mental disabilities.
Mahlangu justified the decision as a "project" to deinstitutionalise patients in line with national policy, but said the reason for the decision was that the contract was unaffordable.
Ending the contract meant about 1,700 mental health patients had to be relocated out of the Life Esidimeni hospitals to alternative care.
By the end of June 2016, some users were sent home to their families, just over 200 were transferred to provincial tertiary academic psychiatric hospitals, and over 1,200 were moved to either a state-run care centre or one of 27 residential homes run by non-governmental organsations (NGOs).
The process was chaotic. The lack of planning meant that many of the non-governmental homes were unsuitable, understaffed, and lacking experience in providing the type of care required.
It was later revealed many NGOs were fraudulently licensed and inadequately subsidised by the health department.
Gauteng's former head of health, Tiego Selebano, later admitted under oath to signing and backdating NGO licences - even after patients had died.
Some mental healthcare users with different diagnoses and medical needs were transported to the various NGOs in open pickup trucks.
Some had their hands and feet tied.
Families were not informed of the whereabouts of their loved ones, confidential patient records were lost or damaged, and people were at times bounced between multiple NGOs.
As early as September 2016 it was clear that things had gone tragically wrong. Mahlangu announced in the Gauteng legislature that 36 people had died as a result of the policy.
By the time the inquest presided over by Teffo began its work in July 2021 the death toll had risen to 144.
Last in line
I was a member of the Sedibeng district mental health team during the Life Esidimeni tragedy. We received 63 mental healthcare users, who were placed in five different non-governmental organisations.
At Life Esidimeni, users were allocated R320 or just under $18 per day. Now, apart from the NGO subsidy of R112 or just over $6 per user per day, no additional resources were allocated to our (or any other) district.
However, the care we provided required intensive collaboration between the mental health team, the family medicine and primary healthcare practitioners, and the non-governmental organisations.
Already short staffed, routine clinical services gave way to the immediate needs of highly distressed, fragile people coming from Life Esidimeni.
The process was such that it seemed decision-makers and government officials did not have to uphold the eight Batho Pele - or "People First" - principles for public service: consultation, service standards, access, courtesy, information, openness and transparency, redress, and value for money. Or perhaps that the Batho Pele principles did not apply to people with mental disability.
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Will it make a difference?
The Mental Health Care Act promotes care in the least restrictive environment possible. Wherever possible, people with mental illness who require long-term care should be discharged for follow-up at primary care or community mental health services.
However, 20 years since promulgation of the act, government funding continues to prioritise stand-alone psychiatric hospitals. Primary care and community mental health services remain underresourced, despite the hard lessons learnt during the Life Esidimeni tragedy.
South African society is not safe, secure, or supportive of people with mental disability. It is riddled with violence, poverty and psychological stress, factors to which people with mental disabilities are most vulnerable. They often have to fend for themselves if they cannot access long-term hospital care.
Holding public officials accountable for their callousness and incompetence is a significant step forward.
But, while the Life Esidimeni judgment brings some dignity to people with mental disability, it lays bare the catastrophic consequences of policies which aren't backed up by appropriate funding.
Read more: South Africa's mental health watchdogs must be given voice and teeth
Lesley Robertson, Adjunct professor of psychiatry., University of the Witwatersrand
