(Published - 15 July 2019)
They did it to save money, they said. And because nobody told could have foreseen how bad things would get. And because, as would be repeated so many times, they had “instructions from above”.
That was a phrase Advocate Adila Hassim would come to know all too well as Lead Counsel in the Life Esidimeni arbitration – a legal investigation into one of the biggest human rights failures in democratic South Africa, and the deaths of at least 144 mental healthcare users from causes including starvation and neglect.
“Of all that we learned during the hearings, all of the terrible things, there was one vein that ran coldly through the evidence,” Hassim said, speaking at the 2019 David Sanders Lecture on Public Health and Social Justice at the University of the Western Cape’s School of Public Health. “And that was the repeated claim by government officials that they were obeying orders, and that they could not take individual responsibility.”
Her lecture, entitled ‘Decanting Life Esidimeni: Valuing life and human dignity in South Africa, delved into the truth behind the Life Healthcare Esidimeni Scandal, and the inability of those involved to take responsibility for their actions.
“The conditions that led to the Life Esidimeni disaster had nothing to do with resources,” Hassim said. “It had everything to do with civil servants who did not perform their jobs in a manner consistent with the law, or with the rights of the patients or the families.”
“Decanting” is an international description of the careful process of moving to community-based care. That’s not what happened in the Esidimeni case, where over 1000 mental healthcare patients were forcibly transferred from Life Esidimeni - the private healthcare provider where they were, by all accounts, well cared for - to unlicensed and unqualified NGOs in Gauteng province.
The transfers happened in a short period of time, due process was not followed, and patients were not cared for anywhere near adequately. Family members of deceased patients reported seeing patients walking around naked, that one NGO gave the same standard set of medication to every patient, and that bodies were badly decomposed.
“All of those things are what makes LE exceptional,” Hassim said. “But what permitted LE to happen was not exceptional. What permitted it to happen was a system of public governance that is broken.”
Justice Moseneke described the account of the Esidimeni removals as one of death, torture and disappearance.
“These are not words that are used lightly, especially in law. And they are not words that one would expect to be used to describe treatment of human beings in South Africa at the hands of the government in 2016. They are words that should have died with apartheid – but didn’t.
Why did this happen? Why didn’t the Constitution protect the 144 plus mental health care users who died, the 1418 who survived, and the 44 who went missing?
Saving Money – And Losing Lives
In 2015, Gauteng health MEC Qedani Mahlangu announced the province would terminate a decades-old contract with the private hospital group Life Esidimeni to provide state-subsidized care for about 1 700 mental health patients. The contract, Mahlangu argued, had become too expensive.
The cost per patient per day at Life Esidimeni was R320. The budget allocated to the NGOs who took the patients, was R112 per patient per day.
“Just imagine: R112 per day, to provide all of the care – the medical care, the residential care, the food and water and basic necessities and more – that a patient might need,” Hassim noted. “The idea that in the name of costs you would spend so little on the lives of citizens, that human beings would matter less than money, is reprehensible. And in fact it cost the government much more than that in the end.”
Who Could Have Known?
When it became known that this decision was being taken, a group of clinicians, professionals and clinical psychologists, wrote to the MEC and other senior members of the department and warned that the transfers would inevitably result in greater cost and loss of life. Patients' families, civil society and professional bodies cautioned that patients were not well enough to go home and that NGOs were ill-equipped.
“The department and the MEC were warned four times in writing before November 2015,” Hassim explained. “They were warned by people who worked in the field; people who understood what the implications of the transfer would be, and what would be needed to make them work. There was media, advocacy, protests, litigation.”
These warnings were ignored, and in one instance the department was found to have misled a court in order to prevent it from being interdicted.
It was very clear that this would be a problem…so what happened?
Mistakes Were Made (But Not By Me)
In September 2016, Gauteng health MEC Qedani Mahlangu first reported that several of the transferred patients had died. A report into events requested by the Minister of Health was finally released on 1 February 2017. The report concluded (among other things) that certain officials and certain NGOs and some activities within the Gauteng Marathon Project violated Human rights of mentally ill patients, and set off legal action that saw testimony from many involved.
“Not a single individual in the department took responsibility,” Hassim noted. “Not one. The officials involved in decision-making were eager to eschew individual accountability, to explain why they could not be held accountable for their own actions. The responsibility, they noted, was collective – belonging to the system as a whole, and in no part to them.”
That held even for those at the very top.
Dr Barney Selebano, Former Gauteng Health Department Head, testified that, despite his senior position, and his acknowledgement that he was the person signing documents and approving the project, he was powerless to stop the project.
“The Head of Department took no responsibility. He said that it is the culture of government that stood in the way of him standing up against the project. Eventually Dr Selebano did break down during the course of the hearing, and apologised to the families for what had happened. But he didn’t take accountability for a range of actions that he himself was responsible for.”
Mrs Masondo, Chair of the Mental Health Review Board, was appointed by the department, and didn’t seem to understand that her role was to oversee the department.
“She saw the Board as being subservient to the Directorate of Mental Health, rather than being tasked to review decisions affecting mental health care users. She testified that she simply trusted that the Department had done the necessary research, and were just doing the right thing.”
Dr Makgabo Manamela, the Director of Mental Health, was a key lynchpin in the entire process. She testified that: “It was not within my power, Justice – not within my power to do anything.”
“She testified that a government decision is never an individual decision, and to say that it was her decision would be misleading,” Hassim said. “When asked why she didn’t try to stop it, she also emphasised that she was 'carrying out the instructions of my seniors’.”
Nobody felt they should do anything to fight against instructions that were clearly wrong. Nobody felt it was their duty to do something, or their fault that things went wrong.
“In the face of all of this, my proposition is that the law is simply ineffective when it comes dealing with this level of intransigence,” Hassim said. “We need something more. We need ethical and moral upliftment. We need to be better. We need to have our public servants be better.”
Winning At Last: But Where To From Here?
In March 2018, after 44 days of testimony and contemplation, arbitrator Justice Dikgang Moseneke ruled that families of the affected patients must each be paid R1.2 million, made up of R20,000 for funeral expenses‚ R180,000 for shock and psychological trauma, and R1 million in constitutional damages.
“Most lawyers would consider the story to be a victory from a legal perspective,” Hassim commented. “After all, the families were vindicated in the end, and awarded damages for the loss of their loved ones – an absolute first in South African Law.”
Under South African law, one cannot claim monetary compensation for the loss of a life unless one can show what that life was worth – via a salary, for example. But the life of a mental health care user who doesn’t work has no financial value in SA law.
"But I would like to suggest that this is not a story of victory but one of law’s failures. Why? Because despite the fact that we have one of the world's most progressive constitutions, if not the most, it was not enough to prevent the loss of life that occurred.”
If the system is as poorly functional as it was in that situation, at that time, in that place, why should we expect to not have a repeat?
“I think that what helps is simply to listen,” Hassim said. “You don’t have to agree with what you hear, but you need to take stock of it. As a manager, if you create a culture where you think people can speak in your presence and express their real opinions, and know that they will be heard, then that will go a long way towards coming to the right decision eventually.”
And that goes not just for public health, or even for the public sector – that matters wherever people make decisions that affect the lives of others.
“We have to start in another part of the constitution – Section 195,” she said. “We have to demand the appointment of public servants who are capable, honest and serious about their constitutional obligations: public servants who put people first.”
“Maybe then we’ll obviate the need for lawyers to protect us from our government – and our society will be the better for it.”
The David Sanders Lecture is sponsored by the South African Research Chair in Health Systems, Complexity and Social Change supported by the South African Research Chair's Initiative of the Department of Science and Technology and National Research Foundation of South Africa (Grant No 82769). Any opinion, finding and conclusion or recommendation expressed in this material is that of the author and the NRF does not accept any liability in this regard.