Seldom is one moved emotionally when reading a legal document. But the opening paragraph of the arbitration award by retired Justice Dikgang Moseneke in the case of the deaths of 144 mental health patients in South Africa evoked strong feelings. It read:
This is a harrowing account of the death, torture and disappearance of utterly vulnerable mental health users in the care of an admittedly delinquent provincial government. It is the story of the searing and public anguish of the families of the affected mental health users and of the collective shock and pain of many other caring people in our land and elsewhere in the world. These inhuman narratives were rehearsed before me.
This represents a scathing indictment of government.
Moseneke was appointed to arbitrate a dispute resolution process after tragic events in 2016 when the Provincial Government Health authority in Gauteng cancelled a contract with a hospital group housing mental health patients. The patients were then sent to ill-equipped and underfunded NGOs. Within nine months 144 had died. Another 44 remain unaccounted for.
The arbitration hearings were between the Gauteng Department of Health and families of the patients. The alternative would have been for individual claims or class action suits that would have taken an inexorable amount of time.
It was an unprecedented way of dealing with a health tragedy of this magnitude. But it ensured that the families got redress efficiently and quickly – Moseneke took only five months before delivering his final report.
Moseneke ruled that the affected families should each receive R1.2 million (about US$ 100 000).
There are two aspects of the arbitration hearings worth examining: the compensation amount, and the question of culpability. This aspect is unique for an arbitration hearing and ventures into the arena normally seen in a medical malpractice claim where these two aspects are dealt with separately.
Compensation and culpability
Under the compensation set out by the retired judge each family has been awarded about R1.2 million. The principle of compensation is undisputed as it invariably forms part of a case of (medical) malpractice. In this instance the malpractice was medically but also socially abhorrent.
Under the circumstances, Moseneke argued that the individual awards were commensurate with the negligence. On an individual basis the amounts are perhaps not excessive. But considering the number of claims and the total amount to be paid, the monetary value is significant.
The second aspect that warrants comment is the question of culpability. In effect 144 people, perhaps more, died after being entrusted to the care of a provincial health department. Many of the officials responsible, such as the former local government official Qedani Mahlangu, claimed that she could not have foreseen the consequences of this decision. This was wholly rejected by Moseneke.
Culpability in this instance is made up of two components – professional and criminal. Professional culpability warrants full due process by the relevant professional bodies such as the Health Professions Council of South Africa and the South African Nursing Council. Why these bodies have been slow to act is inexplicable.
Moseneke alluded to criminal culpability in his judgment, suggesting that the South African Police Services should investigate the matter. A full record of the proceedings has been provided to the police and they should, along with others in the justice system, do their job and provide a docket to the National Prosecuting Authority for further action. Importantly, government should set aside resources for the justice system to expeditiously conclude its investigations.
The intriguing question to consider is whether, given the rejection of the lack of foresight argument by several key individuals in the tragedy, would a charge of murder, dolus eventualis be appropriate? Intent, in the manner of dolus eventualis or legal intention, is considered when, objectively, the perpetrator can foresee the possibility of their act causing death, yet they persist regardless of the consequences. This question warrants consideration in court.
If South Africa fails to hold those responsible for the tragedy culpable, there’s every likelihood it could be repeated.
In one sense, South Africa has been here before. The death of Steve Bantu Biko in police custody on 12 September 1977 was another case of people, including doctors who examined him after he’d been tortured, failing in their duty. There was no culpability for the people who should have protected Biko, and did not.
Those entrusted with the care of the vulnerable must understand that there are consequences to actions that cause harm, suffering or death.
Finally, a common theme in the hearings from those who were responsible for what happened was that the plan to end the contract with the hospital and move the patients was executed to “save costs” or because they had pressure from “the auditor-general”.
But there’s a difference between cost cutting and cost efficiency. One affects quality. The other shouldn’t.
In the country’s current climate of austerity, South Africans should remind themselves of these victims of cost cutting. And practitioners need to remember that their only responsibility is to the well-being of their patients.
Associate Professor and Hepatologist, University of Cape Town
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