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The Treatment Action Campaign (TAC) welcomes the report of South Africa’s Health Ombud, Professor Malegapuru Makgoba, into the Life Esidimeni tragedy in Gauteng. The devastating report titled “The report into the circumstances surrounding the deaths of mentally ill patients: Gauteng province and sub-titled no guns: 94+ silent deaths and still counting, can be downloaded here=(http://www.ohsc.org.za/images/documents/FINALREPORT.pdf)

The report outlines how the Gauteng Department of Health hastily and irresponsibly moved over a thousand mental health patients out of institutional care into often grossly substandard community-based care run by various non-government organisations (NGOs).

The Ombud found that at the time of writing the report 94 patients had died. Adjusting for population sizes, he found a 1 to 7 ratio for deaths in hospitals vs deaths in the NGOs in question. The Ombud found that “all patients who died in these NGOs died under unlawful circumstances.”

The Ombud also found that “all the 27 NGOs to which patients were transferred operated under invalid licenses.”

A paragraph from the report on who was ultimately responsible for the tragedy is worth quoting in full:

“Available evidence by the Expert Panel and the Ombud showed that a ‘high-level decision’ to terminate the LE (Life Esidimeni) contract precipitously was taken, followed by a ‘programme of action’ with disastrous outcomes/consequences including the deaths of Assisted MCHUs [mental health care users]. Evidence identified three key players in the project: MEC Qedani Dorothy Mahlangu, Head of Department (HoD) Dr. Tiego Ephraim Selebano and Director for Mental Health Dr. Makgabo Manamela. Their fingerprints are ‘peppered’ throughout the project. The decision was unwise and flawed, with inadequate planning and a ‘chaotic’ and ‘rushed or hurried’ implementation process.”

A paragraph from the report dealing with rights violation and unlawful actions is also worth quoting in full:

“There is prima facie evidence, that certain officials and certain NGOs and some activities within the   Gauteng Marathon Project violated the Constitution and contravened, the National Health Act (NHA), (Act No. 61 of 2003) and the Mental Health Care Act (MHC), (Act No. 17 of 2002). Some executions and implementation of the project have shown a total disregard of the rights of the patients and their families, including but not limited to the Right to Human dignity; Right to life; Right to freedom and security of person; Right to privacy, Right to protection from an environment that is not harmful to their health or well-being, Right to access to quality health care services, sufficient food and water and Right to an administrative action that is lawful, reasonable and procedurally fair.”

The TAC is shocked by the inhumanity and callous disregard for the lives of others that has been uncovered in this report. We consider the Life Esidimeni tragedy to be a moment in South African history of at least as much significance as the massacre at Marikana.

The Ombud’s report paints a picture of a government with no regard for the lives of some of the most marginalised people in our society – people with severe mental health problems. The report also paints a picture of a healthcare system that is grossly mismanaged and that has been entrusted to people incapable of effectively serving the public interest.

The Ombud recommended, amongst others, that “the Premier of the Gauteng Province must, in the light of the findings herein, consider the suitability of MEC Qedani Dorothy Mahlangu to continue in her current role as MEC for Health.” We welcome the fact that MEC Mahlangu has indeed resigned because of this tragedy. We stress however that she should have been dismissed, or at least suspended, many months ago given that sufficient evidence of the tragedy was already public knowledge. The TAC has on numerous occasions, most recently in December 2016, called for Mahlangu to be dismissed.

We do not consider Mahlangu’s resignation to provide sufficient accountability for the lives lost due to her gross mismanagement of mental healthcare in Gauteng. She must face criminal charges. We note with concern however that MECs are rarely held accountable. Former Free State MEC for Health Benny Malakoane, for example, was simply moved to a different portfolio and has not yet been held accountable for various unlawful actions.

We also demand that the national department and the Gauteng provincial department of health implements all of the recommendations made in the report. In particular, we demand that all individuals named in the report must be investigated and prosecuted as outlined in the set of recommendations made by the Ombud. It is also critical that the necessary reforms be made to mental healthcare services in Gauteng and South Africa more broadly and that urgent steps are taken to ensure that the surviving patients are placed in appropriate care.

We are encouraged by comments from Minister of Health Dr Aaron Motsoaledi and Gauteng Premier David Makura indicating that they will implement the Ombud’s recommendations. We will hold them to this commitment. (Below we reproduce the Ombud’s recommendations in full for easy reference.)

Finally, we thank Professor Makgoba and his team for the exemplary public service they have performed in investigating this matter and producing a credible and evidence-based report.

Recommendations of South Africa’s Health Ombud:

1. The Gauteng Mental Health Marathon Project must be de-established.

2. The Premier of the Gauteng Province must, in the light of the findings herein, consider the suitability of MEC Qedani Dorothy Mahlangu to continue in her current role as MEC for Health;

3. Disciplinary proceedings must be instituted against Dr Tiego Ephraim Selebano for gross misconduct and/or incompetence in compliance with the Disciplinary Code and Procedure applicable to SMS members in the Public Service. In the light of Dr Selebano’s conduct during the course of the investigation, which includes tampering with evidence, it is recommended that the Premier should consider suspending him pending his disciplinary hearing, subject to compliance with the Disciplinary Code and Procedure applicable to SMS members in the Public Service.

4. Disciplinary proceedings must be instituted against Dr Makgabo Manamela for gross misconduct and/or incompetence in compliance with Disciplinary Code and Procedure applicable to SMS members in the public service. In the light of Dr Makgabo Manamela’s conduct during the course of   the investigation, which includes tampering with evidence, it is recommended that consideration be given to suspending her pending her disciplinary hearing, subject to compliance with the Disciplinary Code and Procedure applicable to SMS members in the public service.

5. The findings against Drs. M Manamela and TE Selebano must be reported to their respective professional bodies for appropriate remedial action with regard professional and ethical conduct.

6. Corrective disciplinary action must be taken against members of the GDoMH:  Ms. S Mashile (Deputy Director);  Mr. F Thobane (Deputy  Director);  Ms. H Jacobus (Deputy  Director);  Ms. S Sennelo (Deputy  Director); Dr. S Lenkwane, (Deputy Director); Mr. M Pitsi (Chief Director); Ms. D Masondo (Chair MHRB), Ms. M Nyatlo  (CEO  of  CCRC), Ms. M Malaza  (Acting  CEO  of  CCRC)  in compliance with the Disciplinary Code and Procedures applicable to them, for failing to exercise their Fiduciary duties and responsibilities. They allowed fear to cloud and override their fiduciary responsibilities and thus failed to report this matter earlier to relevant authorities. Fiduciary responsibility is essential for good corporate governance;

7. All the remedial actions recommended above must be instituted within 45 days and progress be reported to the Chief Executive Officer of the Office of Health Standards Compliance within 90 days.

8. The Ombud fully supports the ongoing SAPS and Forensic investigations underway. The findings and outcomes of these investigations must be shared with appropriate agencies so that appropriate action where deemed justified can be taken.

9.  The National Minister of Health should request the SAHRC to undertake a systematic and systemic review of human rights compliance and possible violations nationally related to Mental Health.

10.  Appropriate legal proceedings should be instituted or administrative action taken against the NGOs that were found to have been operating unlawfully and where MCHUs died.

11. In light of the findings in the report, the NDoH must review all 27 NGOs involved in the Gauteng Marathon project; those that do not meet health care standards should be de-registered, closed down and their licenses revoked in compliance with the law.

12. The National Minister of Health must with immediate effect appoint a task team to review the licensing regulations and procedures to ensure they comply with the National Health Act, the Mental Health Care Act 2002 and Norms and Standards. The newly established process must ensure that NGO certification is done through the OHSC. This newly established licensing process should form the first line of protection for the mentally ill. Currently, this does not seem to be the case.

13. All patients from LE currently placed in unlawful NGOs, must be urgently removed and placed in appropriate Health Establishments within the Province where competencies to take care of their specialized needs are constantly available, this must be done within 45 days to reduce risk and save life; simultaneously, a full assessment and costing must be undertaken.

14. There is an urgent need to review the NHA 2003 and the MCHA 2002 to harmonise and bring alignment to different spheres of government. Centralisation of certain functions and powers of the MHCA must revert back to the National Health Minister, While Schedule 4, Part A of the Constitution and Sections 3 subsection 2; section 21, subsection l, section 25, subsection 1 and 2, sections 48 and 49 and section 90 of the National Health Act. No.  61, 2003, recognize and define Health as a concurrent competence between the National and Provincial government spheres the findings and lessons of this investigation merits such a review.

Furthermore, projects of high impact on the quality and reputation of the national health system and whose outcomes undermine human dignity, human well-being and human life must not be permitted nor be undertaken without the expressed permission of the National Health Minister or his/her nominee.

15. Projects such as the GMMP must not in future be undertaken without a clear policy framework, without guidelines and without oversight mechanisms and permission from the National Health Minister; where such policy framework exists the National Health Minister must ensure proper oversight and compliance.

16. This investigation has clearly shown that for deinstitutionalisation to be undertaken properly, the primary and specialist multidisciplinary teams that are community based mental health care services must be focused upon, must be resourced and must be developed before the process is started. It will most probably require more financial and human resource investment initially for deinstitutionalisation to take root. Sufficient budget should be allocated for the implementation.

17. The National Minister of Health must lead and facilitate a process jointly with the Premier of the Province to contact all affected individuals and families and enter into an Alternative Dispute Resolution process. This recommendation is based on the ‘low trust’, anger, frustration, loss of confidence’ in the current leadership of the GDoH by many stakeholders. The National Department of Health must respond humanely and in the best interest of affected individuals, families, relatives and the nation. The process must incorporate and respect the diverse cultures and traditions of those concerned.

The response must include an unconditional apology to families and relatives of deceased and live patients who were subjected to this avoidable trauma; and as a result of the emotional and psychological trauma the relatives have endured, psychological counselling and support must be provided immediately. The outcome of such process should determine the way forward such as mechanisms of redress and compensation. A credible prominent South African with an established track record should lead such a process.

18. The Gauteng Mental Health Review Board was found to be moribund, ineffective and without  authority and without independence. As a structure its terms of reference must be clearly defined and strengthened in line with the National Health Act and the Mental Health Care Act 2002 and its independence and authority re-established.

Recommendations to the GDoH:

• The development of information systems with patient registers and a data base by which to make evidence-based decisions, monitor and evaluate health care delivery must be a priority for the GDoH; this recommendation is strongly endorsed by StatsSA;
• Exemplary adherence to the MHCA and its related regulations by the GDoH and the MHRB;
• District health services must be capacitated to ensure adherence to regulations and to provide clinical and rehabilitative support to the NGOs in each district. The strengthening of Primary Health Care Services and District Hospitals;
• If deinstitutionalisation of MHCUs is to be implemented in South Africa, it has to be done with the provision of structured community mental health care services, as recommended by the MH Policy and articulated by Prof Freeman’s document, with the adequate planning and allocation of designated resources;
• Specialist run community/ psychiatric services, as described in the MH Policy, must be included in the proposed NHI structure and funding in order to address the needs of people with severe psychiatric disability/ who require specialist level care close to their homes;
• GDoH Must develop a  capacity programme for all newly established NGOs within 45 days (submit such to the OHSC within 90 days).

Issued by TAC