Deaths of mentally ill patients in Gauteng: Health Ombud report and Minister's response; with Deputy Minister present

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Health

15 February 2017
Chairperson: Mr F Mahlalela (ANC) Acting
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Meeting Summary

Document outstanding: Overview of Transferred Psychiatric patients from Life Esidimeni Centre to various NGOs in Gauteng

The Minister of Health introduced the Health Ombud who had been requested to investigate the 94+ mentally ill patients who died between 23 March and 19 Dec 2016 in Gauteng. The Minister had also dispatched a Ministerial Advisory Committee after learning of the deaths which went straight into action and within 48 hours had closed down five of the non-governmental organisations (NGOs).

The Director General explained the role she had played in reaching an out of court settlement in December 2015 between the Gauteng Department of Health and civil society organisations. They agreed to delay the de-institutionalising of the 1 900 mental health care users who would be moved only once a proper plan was developed. She explained with surprise that despite reaching this settlement, the same matter was taken to court in March 2016.

The Health Ombud presented his report with its 18 recommendations.

In discussion, Members asked what were the next steps following the recommendations; about the inquests and the relationship between the inquests and the recommendations; how the broken relationships in the Gauteng Health Department were going to be fixed; called for the MEC job description to be redefined; requested confirmation of the actual number of deaths; if bogus NGOs were still operating; about monitoring NGO compliance in other provinces; about the lack of remorse from the people responsible; why no one in the Department saw this coming; if the Minister would do an audit of all mental health institutions in the country; why the national health department was not responsible; when the Minister intended to amend the Mental Health Care Act and which powers needed to be taken away from provinces and given to the Minister; what measures were put in place to ensure the preservation of life; proper disciplinary measures had to be implemented; hoped this would not be an exercise in scoring political points; Gauteng province should have been present for questioning; that the attitude of the MEC was concerning; if a case had been opened by relatives of the deceased; what action had the Director General taken; was it a question of law or of capacity on the part of the national department to ensure norms and standards are implemented in the provinces.

The Minister of Health then specified the action he has taken on each of the 18 recommendations.

Members were satisfied with the Ombudsman report and the responses by the Minister on the action taken by him so far. Further questions and comments included why the Director General did not follow up on when the March 2016 court order was granted in favor of Gauteng Health;  when did the Minister first know about this; that the country lacked a proactive surveillance system and this was unacceptable; about the differing death dates; what had happened to the report that the Director General commissioned Prof Freeman to compile; and noted that they would be engaging with Gauteng Province on implementing the Ombud's six recommendations directed at it.

Meeting report

The Minister of Health, Dr Aaron Motsaoledi, gave a brief history of why the Office of the Ombudsman was established. One reason was that members of the public felt mistreated and neglected by medical personnel, and were not aware of any relief available; hence turned to the media for help when aggrieved. This led to the realisation by government that a gap existed and it needed to address this. The Health Ombud was established in order to fill the accountability gap that existed. This was done in terms of Section 81(1) of the National Health Amendment Act. One of its functions is that the Ombud can conduct an investigation on a matter referred to it and present a report.

The Minister explained the circumstances surrounding the deaths of over 100 mentally ill patients in Gauteng by stating that on 13 September 2016, MEC for Health, Ms Qedani Mahlangu, made an announcement that 36 mentally ill patients had died. It was following that announcement and public interest that the Minister learnt of this and requested the Ombud to investigate the circumstances surrounding the deaths of mentally ill patients. No immediate action was taken by the Ombud. The Minister then dispatched a Ministerial Advisory Committee on Mental Health within 48 hours of learning this news which was chaired by Prof Solomon Rataemane to urgently visit and establish conditions in the NGOs, to intervene where necessary and make necessary recommendations to save lives and prevent more deaths.

The intervention of the Ministerial Advisory Committee (MAC) led to the closure of five NGOs: Precious Angels (which accounted for the majority deaths), Bophelong Suurman, Anchor, Bokang and Siyabathanda. The Minister observed that mentally ill patients are always at the back of every queue and treated last, making them vulnerable hence the need for greater protection.

The Department of Health Director General, Ms Malebona Matsoso, stated how the Gauteng Department of Health had reached an out of court settlement with the parties [South African Depression and Anxiety Group, the South African Federation for Mental Health, the South African Society of Psychiatrists and the Association of Concerned Families of Residents of Life Esidimeni] in December 2015 that the mental health care users will be moved only once a proper plan is developed. She had wanted the agreement to be signed but not made a court order. The agreement was consequently signed however only two out of three signatures were obtained. She later learnt of a court case concerning the same matter which the Gauteng Department won in March 2016, this surprised her.

Prof Malegapuru Makgoba, Health Ombud, presented his report. He had been requested by the Minister of Heath to undertake an investigation into the ‘Circumstances Surrounding the Death of Mentally ill Patients in Gauteng Province and advice on the way forward’. The MEC of Health in Gauteng, Ms Qedani Mahlangu was supportive of the Ombud investigating the matter as a priority and urgently.

The investigation found that the Gauteng Department of Health terminated its contract with Life Esidimeni (LE) Health Care Centre on 31 March 2016 although it extended the contract for a further few months until 30 June 2016. An estimated 1 371 chronic mentally ill patients were rapidly transferred to hospitals and 27 Non-Governmental Organisations (NGOs) from 1 April to 30 June 2016 in Gauteng Province.

As part the investigation, the Ombud requested clinical records and any relevant information or documents from the MEC of Health and Gauteng Department of Health. Prof Makgoba constituted a team of seven independent psychiatric experts with vast clinical expertise as well as one expert experienced in public health to assist with the investigation. The Office of Health Standards Compliance (OHSC) also constituted a team of inspectors to conduct inspections at these health establishments. The purpose of the inspections was to assess the veracity of the allegations as well as to determine the capability and competence of the health establishments in the management and care of mental health care patients. The investigation was requested in terms of Sections 81A(1-11) and 81B(2) of the National Health Amendment Act, 2013.

The Ministerial Advisory Committee on Mental Health, chaired by Prof Solomon Rateamane was dispatched even before the Ombud was appointed to urgently visit and assess conditions in NGOs to intervene where necessary and make recommendations to save lives and prevent further loss of life. 

At the time of compiling this report, the number of mentally ill patients that had died was 94. While presenting the report, Prof Makgoba stated, “I am quite confident that the figure is now above 100 deaths’’ and that they were collating more data.

1.1. The following was established by the Ombud:
• A total of 94+ and not 36 mentally ill patients (as initially and commonly reported in the media) died between the 23 March 2016 and 19 December 2016 in Gauteng.
• All the 27 NGOs to which patients were transferred operated under invalid licences.
• All patients who died in these NGOs died under unlawful circumstances.
• There were 11 NGOs with no deaths, 8 NGOs with average deaths and 8 NGOs with ‘higher or excessive’ deaths.

1.2. Available evidence by the Expert Panel and the Ombud showed that a ‘high-level decision’ to terminate the LE contract precipitously was taken, followed by a ‘programme of action’ with disastrous outcomes. Consequences including the deaths of assisted mental health care users (MCHUs). Evidence identified three key players in the project: MEC Qedani Dorothy Mahlangu, Head of Department (HoD) Dr Tiego Ephraim Selebano and Director, Dr Makgabo Manamela. Their fingerprints are ‘peppered’ throughout the project.
 
1.3. Several factors in the ‘programme of action’ were identified independently by the Expert Panel, OHSC Inspectors, Ombud and MAC that contributed and precipitated to the accelerated deaths of mentally ill patients at NGOs. The transfer process particularly, was often described as ‘chaotic or a total shambles’. The Gauteng Mental Health Marathon Project (GMMP), as it became known was: done in a ‘hurry/ rush’; with ‘chaotic’ execution; in an environment with 'no developed, no tradition, no culture of primary mental health care community-based services framework and infrastructure'.

1.4. The NGOs where the majority of patients died did not have the basic competence or experience, the leadership/managerial capacity or ‘fitness for purpose’, and were often poorly resourced. The existent unsuitable conditions and competence in some of these NGOs precipitated and are closely linked to the observed ‘higher or excess’ deaths of the mentally ill patients. These NGOS were not only unsuitable to care for the high specialised non-stop needs of the ‘assisted’ MCHUs they received but were also not adequately prepared for the task.

1.5. Human Rights Violations
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, 2003, and the Mental Health Care Act 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.

Some patients were transferred directly from ‘sick bays’ to NGOs; others were transferred with co-morbid medical conditions that required highly specialised medical care (‘bedsores and puss oozing out of sores’ or medical conditions such as epilepsy and hypertension) into NGOs where such care was not available, and yet other frail, disabled and incapacitated patients were transported in inappropriate and inhumane modes of transport, some ‘without wheel chairs but tied with bed sheets’ to support them; some NGOs rocked up at LE in open ‘bakkies’ to fetch MCHUs while others chose MCHUs like an ‘auction cattle market’ despite pre-selection by the GDMH staff; some MCHUs were shuttled around several NGOs; during transfer and after deaths several relatives of patients were still not notified or communicated to timeously; some are still looking for relatives; these conducts were most negligent and reckless and showed a total lack of respect for human dignity, care and human life.

1.6. A combination of 1.2, 1.3, 1.4, and 1.5 above contributed to the different pattern of deaths and to more deaths experienced in some NGOs.

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

1.8. The Gauteng Mental Health Marathon Project (GMMP) must cease to exist.

The 18 recommendations were noted (see document).

Discussion
Dr W James (DA) asked what was the next step following the recommendations by the Ombud in his report. He asked about the inquests which by their nature take long, and the relationship between the inquests and the Ombud recommendations. He asked how the broken relationships in the Gauteng Health Department were going to be fixed. He called for the MEC's job description to be redefined and asked the Ombud to confirm the actual number of deaths.

The next question to the Ombud was whether the bogus NGOs operating under invalid licences may still validly be called NGOs. Besides the findings of the investigation in Gauteng province, what was the situation about NGO compliance in other provinces? There needed to be monitoring.

Mr C Hattingh (DA) stated that the deaths had occurred among the most vulnerable of the vulnerable in a multi-million rand department. He wondered what was going on in the rest of the department behind closed doors.

Ms D Ngwenya (EFF) commented that she did not see any remorse from the people responsible and that no one was taking responsibility. She would like to see the recommendations implemented and the people in charge, charged for murder. The MEC's resignation was not enough and that she should face charges for what she had done.

Ms L James (DA) said that people in charge should do their job. She wondered why no one saw this coming and she asked if the Minister was going to instruct the Ombud to do an audit of all the mental health institutions nationally.

The Chair cautioned Members to limit their questions to the Ombud presentation and that they were still going to get to the Minister's presentation on the implementation of the Ombud’s recommendations.

Mr S Jafta (AIC) stated that it was clear that there were no plans to properly transfer the patients to the 27 NGOs with invalid licences. How could it be said that the health department nationally was not affected, when it was the health department provincially?

Ms C Ndaba (ANC) called for the NGO boards to be held accountable, despite claims made by them that the MEC was overpowering them. She stated that the MEC did not hold a gun to their heads. She was also concerned about the unethical behavior of lawyers who were touting clients and that they should be reported to their law societies. Lastly, she wanted the Minister to state when he intended to make amendments to the Mental Health Care Act and table these amendments in Parliament.

Dr P Maesela (ANC) asked what measures were being put in place to ensure the preservation of life and that proper disciplinary measures were being implemented.

Mr D Khosa (ANC) hoped that this was the last report presented to the Committee and that it should not be an exercise of scoring political points.

Ms L Dlamini (ANC; Chairperson of the Social Services Select Committee) appreciated the report but stated that some of the deaths could have been avoided. She wished Gauteng province was present for the briefing as the Committee had more questions for them and wanted to ask them why this had happened. She agreed that the attitude from the MEC was concerning. She asked if a case had been opened by relatives of the deceased.

The Chairperson raised a few issues in the context that the Director General was informed of this matter and subsequently received a report and wanted to find out what action the Director General had taken. He asked which sections of the Mental Health Act needed to be reviewed and which powers needed to be taken away from provinces and given to the national Minister. He asked if it was a question of law or a question of capacity on the part of the national department to ensure monitoring and evaluation mechanisms are in place so that norms and standards are implemented. Last year, the Committee had held a meeting with the Gauteng Health MEC and the MEC had displayed arrogance and instilled fear in her officials, as a result, they could not give an objective report to the Committee.

The Ombud, Prof Makgoba, responded that he wanted to make a general point about collective responsibility. This matter was very problematic and no one wanted to take responsibility for these actions.  People must not abuse collective responsibility. When one is appointed to a job, there is no collective appointment but individual appointment. He cautioned against collective responsibility and called for people not to abuse this. He gave an example cited from his report that the decision to de-institutionalise was taken in Gauteng Premier Makhura’s office but it could not be established if it was actually taken by him personally or by the people working in his office.

Prof Makgoba addressed the fear of officials leading them to be unable to give an objective report, and he stated that the Constitution gives independence.

He replied that lawyers touting for clients was a case of bad ethics because people were trying to make money.

Prof Makgoba stated that the NGO boards were never interviewed by him. The NGOs were operating under invalid licences.  He did not have comprehensive details but that he had analysed the number of deaths. Deaths did not occur in every NGO.

On the question of who was responsible, Prof Makgoba replied, “I thought I identified who was responsible”. There are nine provincial Health MECs who are each appointed by their Premier and not by the Minister of Health. Therefore, the Minister of Health has no hand in appointing the Health MECs and they are not responsible to him.

The Minister of Health commented that the report was comprehensive. On the inquests, he replied that the Inquest Act was passed a long time ago when South Africa was still a Union and has not been changed, hence it had serious restrictions.

Health Ombud Recommendations: Implementation
The Minister of Health, Dr Motsaoledi, replied to the recommendations one by one:

Recommendation 1: Gauteng Mental Health Marathon Project must be de-established
• This project had been stopped and preparations for relocation of patients had immediately started and that they did not wait for the 45 day period given.

Recommendation 2: Gauteng Premier consider the suitability of Health MEC Mahlangu to remain MEC
• The MEC resigned and the new MEC, Dr Gwen Ramokgopa, is already discussing with the Minister on how to reorganise the department.

Recommendation 3: Disciplinary proceedings instituted against Gauteng Health Department Head,
Dr Tiego Ephraim Selebano for gross misconduct and/or incompetence in compliance with the Disciplinary Code and Procedure applicable to Senior Management Service (SMS) members in the Public Service
• This issue may only be handled in terms of the Labour Relations Act and there are procedures to be followed. This called for following a lawful procedure which had since been followed and the Head of Department (HOD) had since been suspended.

Recommendation 4: Disciplinary Procedures instituted against Gauteng Director of Mental Health Services, Dr Makgabo Manamela, for gross misconduct and/or incompetence in compliance with Disciplinary Code and Procedure applicable to SMS members in the Public Service
• This issue awaited the new HOD to be appointed. A new acting HOD had been appointed and has since started the disciplinary proceedings against the Director.

Recommendation 5: Findings against Dr Manamela and Dr Selebano must be reported to their respective professional bodies for appropriate remedial action with regard to professional and ethical conduct
• They were still investigating if they should first wait for the completion of pending disciplinary proceedings before they report to the respective councils or if both could happen simultaneously. Dr Manamela was not a medical doctor but has a PHD in nursing and needed to report to the South African Nursing Council.

Recommendation 6: Corrective disciplinary action must be taken against members of the Gauteng Department of Health Ms S Mashile (Deputy Director; Mr F Thobane (Deputy Director); Ms H Jacobus (Deputy Director); Ms S Sennelo (Deputy Director); Mr M Pitsi (Deputy Director); Dr S Lenkwane (Deputy Director); Ms D Masondo (Chairperson MHRB); Ms M Nyatlo (CEO of CCRC); Ms M Malaza (Acting CEO of CCRC); in compliance with the Disciplinary Code and Procedure applicable to them, for failing to exercise their fiduciary duties and responsibilities
• Steps had already commenced.

Recommendation 7: All the remedial actions recommended above must be instituted within 45 days and progress be reported to the CEO of the OHSC within 90 days
• Steps towards these processes had already started the very first day and they did not wait for the 45 day period to elapse and they are within this period.

Recommendation 8: The Ombud fully supports the ongoing South African Police Service (SAPS) and Forensic Investigations underway. The findings and outcomes of these investigations must be shared with appropriate agencies so that action where it is deemed justified can be taken
• Forensic investigations already started in September 2016. The problem was that some of the bodies were buried without post mortems; hence some of the inquests would be without postmortems. The results would be given to the National Prosecuting Authority (NPA) who will decide who will be criminally charged.

Recommendation 9: The National Minister of Health should request the South African Human Rights Commission (SAHRC) to undertake a systematic and systemic review of human rights compliance and possible violations nationally related to mental health.
• Everywhere were a mental patient was involved would be reviewed and it would not happen within a short space of time because it was systematic and systemic.

Recommendation 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
• There is no adult human being who does not know that taking care of mentally ill patients required special skills. The NGOs went with vans and chaotically took the patients as stated in the report. The fact that the police reports stated that the names of some patients were unknown served as proof thereof. He wondered how some NGOs took patients without their records; hence he agreed with the Ombud that the NGOs must also be accountable.

Recommendation 11: In light of the findings in the Report, the National Department of Health 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, together with, Recommendation 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 specialised 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
• He had appointed 60 professionals and technical experts from all sectors and within three days visited all NGOs and examined some patients. As a result of this visit, seven facilities had been closed.

The Minister said these Recommendations are still awaiting progress:
Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Recommendation 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.

Discussion
Dr James stated that he was satisfied with Ombudsman report and the responses by the Minister on the action taken by the Minister. He stated that the Director General knew a court order was granted that ruled in favor of Gauteng Health. Effectively the DG let go of the issue and that was a question of judgment. He asked why the DG made that judgment because it was clearly an error. He then asked about Dr Terence Carter. He also asked the Minister about when he first knew about this and what he did about it. He stated that the country lacked a national patient database and it is being remedied, however, it lacked a proactive surveillance system and that was unacceptable.

Ms Ndaba asked about the two different death dates which the Ombudsman spoke about and if this action was done by the mortuaries or the NGOs.

In reply, the Ombud stated that the data come from the Mental Health Services in the Gauteng Department of Health and it did not come from the mortuaries and that the two dates came from the same source.

The Chairperson asked the Director General about the report that she commissioned Professor Freeman to compile and what had happened to it.

Director General Matsoso responded by reading the provisions of the Mental Health Act, as she had requested a legal opinion concerning her powers which dealt with when mentally ill patients can be discharged. She also read an email from the HOD based on the agreement reached between the provincial health department and SADAG about the out of court settlement of December 2015 which read “Dear DG, kindly receive an agreement between provincial health and SADAG (and Section 27), this is an out of court settlement, we have avoided going to court on the matter we could agree on. The parties agreed that the best interest of the users currently placed in Life Esidimeni and that the rights of these users are of common concern to all parties and it is hereby noted that litigation is just a means to an end and in itself the parties need to find each other and reach an out of court settlement’’.

She stated that she regretted the out of court settlement and she should have rather made it a court order. In March 2016, the Gauteng Department of Mental Health and civil society organisations ended up in court concerning the matter and Gauteng won the case. The question asked by Dr James concerning compliance was responded to by the CEO for Office of Health Standards Compliance (OHSC) who stated OHSC has established an early warning system which is still a pilot system.

The Minister spoke of the Ministerial Advisory Committee visiting the NGOs who had invalid licences. They visited those NGOs in terms of the Act and that the NGOs had been required to establish teams but only seven teams were established. He replied to Dr James and admitted that it is true that they lacked a proactive surveillance system. He stated that they will establish such a surveillance system.

Ms Dlamini (Co-chair) concluded that this was not the last engagement. There were six recommendations directed to Gauteng Province and they would be engaging with them in order to get a progress report on the recommendations.

The meeting was adjourned.

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