Nobuntu Fuzane Petition Report

NCOP Petitions and Executive Undertakings

07 June 2017
Chairperson: Mr M Mhlanga (ANC, Mpumalanga)
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Meeting Summary

Documents handed out:
Draft Report on the Nobuntu Fuzane Petition

The meeting was convened for the consideration and adoption of the Nobuntu Fuzane Petition Report. The petition had been submitted by Ms N Fuzane on behalf of her daughter, Tamara, and had raised complaints against Groote Schuur Hospital and Khayelitsha District Hospital (KDH) concerning mistreatment experienced Tamara at both hospitals in 2011 and 2014.

Members expressed concern over the long time the Committee had taken to deliberate on the petition considering that it had first been brought to the Committee in 2015. It was proposed that the Committee should deliberate multiple petitions at its meetings to save time and enhance its efficiency and effectiveness.

The Committee was provided with a full summary of the issues which had resulted in the original submission of the petition. Tamara had been wheelchair-bound and with a pre-existing condition which had required brain surgery at Groote Schuur. She had been put in a general ward instead of intensive care, despite the nature of the operation, and had been discharged without her mother being given sufficient time to arrange transport or clothing. A request for her to remain overnight so that arrangements could be made, had been denied.

The complaint against KDH was that while Tamara was a patient at the hospital, she had sustained marks which suggested that they had been deliberately inflicted by somebody. However, upon making enquiries about this, the hospital had been unable to explain what had happened to Ms Fuzane’s daughter.

The Committee, together with the Portfolio Committee on Health, had held three hearings on the petition. The delay in the adoption of the Committee’s report because it could not adopt the report before the Committee on Health considered it and gave their input. However, despite a meeting with the Committee on Health being rescheduled three times, a mutually convenient date could not be secured. The Committee had therefore resolved to adopt the report in today’s meeting and then forward it to the Health Committee for any further input.

However, a number of issues were raised during discussion which persuaded Members that they needed further information on the matter in order to make informed decisions in the report. Both hospitals had admitted shortcomings in their record-keeping, and the duty nurses at the time would need to be called to explain what had really happened. Why had the prosecutor declined to prosecute the case “for lack of evidence” after Ms Fuzane had reported the matter to the police? The forensic expert had indicated that the marks on Tamara’s body were “most likely” sustained as a result of an assault, but he had only been able to examine photographs. A Member suggested that if the Committee lacked confidence in the various parties’ submissions, it should be recommended that further investigations be carried out.

Meeting report

Nobuntu Fuzane Petition Report

Ms B Engelbrecht (DA, Gauteng) expressed her concern that the Committee had taken a long time to deliberate on the petition concerning the alleged ill-treatment of the petitioner’s daughter while admitted at Groote Schuur Hospital, considering that it had first been brought to the Committee in 2015. She also asked why the Committee could not deliberate on the other outstanding petitions with this petition, as it would have saved time and made the Committee more efficient and effective. She proposed that in future, the Committee should deliberate more petitions at a time, and requested that the meeting deliberate on it as an agenda item.

Ms G Manopole (ANC, Northern Cape) said that the proposed issue should not be adopted as a separate agenda item but rather be raised during deliberations, since it was pertaining to the petition as well.

Mr M Monakedi (ANC, Limpopo) proposed that the meeting adopt the agenda the way it was, without adding any items. The issue raised could be raised during deliberations or at a later stage when the Committee was deliberating on its internal operations

Ms Manopole seconded the adoption of the agenda.

The agenda of the meeting was adopted as it was.

Ms Manopole requested that the content advisor give a summary of the petition and the relief sought by the petitioners, for the benefit of the Members who had not been present during the hearing of the petition so that they could make an informed decision.

Dr Mimmi Gondwe, Committee Content Advisor, said that the petition had been submitted by Ms Fuzane on behalf of her daughter, Tamara. The petition had raised complaints against Groote Schuur Hospital and Khayelitsha District Hospital (KDH) concerning mistreatment at the hospitals on or about around July 2011 and 2014 respectively. The cause of action against Groote Schuur Hospital had occurred when the petitioner had sought medical attention for Tamara at the hospital. The daughter was wheelchair bound and had been diagnosed from an early age. The third time she was taken to the hospital, she needed to undergo surgery in order to replace surgical shanks that had been inserted in her brain to release the pressure.

After the surgery, Tamara had been put in a general wing, rather than in an intensive care unit, given the nature of the operation she had undergone. On a subsequent visit, she had been told that her daughter had been discharged and she had to take her home immediately. The petitioner had just come from work and was not in a position to take her daughter home. She had asked the attending nurse to allow Tamara to spend the night at the hospital and be picked up the following day when she had transportation. The attending nurse had denied her request and had allowed her only to take a wheelchair. The attending nurse had denied her daughter a change of clothes, and instead had given them a bedsheet to cover her. The petitioner had managed to get Tamara home that evening after borrowing a car from a colleague at work.

The complaint against KDH was that, while Tamara was admitted at the hospital, she had noticed marks on her daughter which suggested that they had been inflicted by somebody. Upon making enquiries about them, the hospital had been unable to explain what had happened to her daughter.

The Committee, together with the Portfolio Committee on Health, had had three hearings on the petition. The delay in the adoption of the report was occasion by the fact that the Committee could not adopt it before the Portfolio Committee on Health had considered it and given their input on the report. The meeting with the Health Committee had had to be rescheduled three times before a mutually convenient date was available.

The Committee had received submissions from the petitioner, Dr Terence Carter (National Department of Health), Dr Beth Engelbrecht, (Head: Provincial Department of Health, Western Cape) and Dr Anwar Kharwa, (Chief Executive Officer: KDH).

Dr Kharwa had submitted that, as soon as the marks had been brought to their attention, he had requested another doctor, Dr Werner Viljoen, to examine the pictures of her injuries and determine whether or not they were as a result of any malice. Upon examination, he had determined that they were not sustained as a result of malice.

Dr Carter had submitted that he had contacted Prof Gert Saayman, from the University of Pretoria, to examine pictures of the daughter’s injuries and determine whether the injuries sustained had been deliberately inflicted, bearing in mind that she had pressure sores sustained from her prolonged immobility and confinement to a wheelchair, or otherwise, being bedridden. Dr Saayman’s assessment had been that Tamara had been injured by something resembling a cane, since the marks appeared to be repetitive.

The internal investigation conducted by KDH had been inconclusive, as no witness statements were ever taken from the relevant medical staff or nurses on duty at the time. The KDH medical staff also had not noticed the abrasions on Tamara during her admission, and the petitioner had been the first to notice them. This was deduced from the absence of any medical notes or records, by the attending nurses, confirming that she had been thoroughly examined before and during the admission. The records by the KDH staff were observed to be poor -- for example, they could not determine how many times Tamara was turned over on her bed on any given day. Dr Carter had observed that Tamara was most likely assaulted, given the appearance of the abrasions sustained.

The Committee’s request for the attending nurses at the time to appear before the Committee for questioning had not been acceded to by the Provincial Department of Health. The memorandum prepared by Dr Engelbrecht had also lacked sufficient detail regarding the extent of the internal investigations undertaken by KDH in determining whether Tamara had indeed been assaulted. The fact that both Dr Engelbrecht and Dr Kharwa had acknowledged it was regrettable that no one had noticed the abrasions on Tamara, was prima facie proof that she had indeed been assaulted. 

Ms Manopole said that there were no observations relating to Groote Schuur hospital dealing with the petitioner’s grievances, and only observations relating to KDH reflected in the report.

Dr Gondwe apologised for not including how Groote Schuur had dealt with the petitioner’s grievance in the observation. Dr Bhavna Patel, CEO, Groote Schuur Hospital, had apologised for the way Tamara had been discharged, and had admitted that it had not been patient-centered. He had assured the Committee that the hospital would reprimand the relevant attending nurse.

Ms Manopole stated that, based on the observations in the report, the investigations conducted had not been thorough enough for the Committee to make a responsible and informed decision. She proposed that the NCOP recommend the National Health Department investigate the complaints against Groote Schuur and KDH, since the nurses and the relevant staff members had never been interviewed. The National Health Department was better placed in terms of resources and expertise to investigate the matter and also inform the Committee on the root cause of the injuries sustained by Tamara.

Mr D Ximbi (ANC, Western Cape) said that the report was sufficiently clear and did not need any further investigation, since the Committee had managed to question the prosecutor, the doctors and the National Health Department, who in turn had produced a forensic report that determined that Tamara had indeed been beaten. Groote Schuur had also apologized for their actions, thereby admitting that they were at fault. The only reason the Committee had been unable to question the attending nurses personally was because the Provincial Health Department had refused to summon them to appear before the Committee. Dr Kharwa should be investigated for misleading the Committee during his submission, and the investigations done by his hospital were not credible. The Committee had also summoned the prosecutor who had refused to prosecute Ms Fuzane’s case, but he had written a letter to the Department stating that he did not report to the Committee. The law must take its course and bring the CEO of Khayelitsha Hospital to book for trying to mislead the Committee.

Mr Monakedi agreed that the actions of the medical staff of the two hospitals had fallen below expectations. It was clear that the principles of batho pele had not beenobserved, since the complaints lodged were never promptly investigated and no clear feedback had been given. Proper records were not also being maintained by the hospital and this presented serious health and legal risks. The non-cooperation by the Western Cape government in bringing the relevant officials before the Committee for questioning was not in line with the spirit of cooperative governance. The Committee should strongly state that cooperation between different government offices at all levels of government should be expected at all times. He also pointed out that it may not be possible to refer the matter to the SA Police Service (SAPS) since the report indicated that a magistrate had dealt with the matter, thereby limiting any further related legal action. He enquired whether the office of the Health Ombudsman could take up the petitioner’s case in light of the fact that its call for action had occurred before the establishment of the office.

Ms Engelbrecht requested more information regarding the court’s judgment on the matter so as to enable the Committee to make an informed decision.

Ms Manopole said that the observations highlighted by Mr Ximbi were not reflected in the report, and requested clarification from the content advisor. The wording of the report suggested that Dr Carter’s findings were not definitive as to the cause of the injuries sustained by Tamara, and were therefore only speculative. She said that there was a contradiction regarding the report by the National Health Department and the Member’s recollection of the facts uncovered during the hearing.  

Ms Engelbrecht asked about the information the Committee was waiting for from the Portfolio Committee on Health, and also the diagnosed condition of the patient and the medication prescribed.

Ms T Mokwele (EFF, North West) expressed her concern regarding the fact that her name was not reflected in the reports despite the fact that she was actively present at all the petitioner’s hearings. She commented that the hospitals could not give out the patient’s medical diagnosis due to doctor-patient confidentiality.

Mr Ximbi reiterated that the sole fact that the patient was beaten during her admission at the hospital was evidence enough of their culpability.

Ms Mokwele commented that, even though the petition touched on emotionally sensitive issues relating to some of the Members’ personal experiences as well, they should treat the petition with the integrity and impartiality that it deserved. The petition dealt with issues that still affected families and communities, and should therefore not be dealt with any consideration for political party affiliation. There were some issues in the petition that may need the assistance of the Public Health Ombudsman in order to get clarification.

Dr Gondwe said that regarding the court case, the petitioner had reported the case to her local police station in Harare, Khayelitsha, and the prosecutor had informed her that the matter would be taken to the high court. However, towards the end of October 2014, she had been informed that her case was closed due to lack of sufficient evidence.

The wording of Professor’s Saayman’s letter had indicated that the injuries were ‘most likely’ sustained as a result of assault, as he had only examined the photographs. No witness statements had been taken to corroborate the assertion. There was need for further investigations, since the medical reports regarding the injuries sustained were conflicting. The Portfolio Committee on Health had requested that the Committee attach the reports from Dr Engelbrecht and Professor Saayman, and all other relevant documentation to the Committee’s report, before the Committee could adopt it. However, during the adoption of the report, a resolution had been passed to postpone the adoption in order to allow the Portfolio Committee on Health to give an input, before the Committee could adopt it. Due to the Committees’ conflicting schedules, it was later resolved that the Committee adopt the report with its own recommendations, and forward it to the Portfolio Committee on Health to either supplement or fine tune the Committee’s recommendations.

Ms Manopole recommended that the National Department of Health and the Public Health Ombudsman conduct independent investigations on both hospitals, since the investigations previously conducted were insufficient.

Mr M Chetty (DA, Gauteng) said that the Portfolio Committee on Health did not deal with petitions, and therefore the Committee should not leave the impression that there was another body superior to them that had to validate their recommendations. The Committee should have the final say on its recommendations.

Ms Engelbrecht said that the patient had been admitted in 2014, and the people with the relevant information would be the nurses on duty at the time. There was a high probability that the Committee may not be able to get the necessary information it required, since either the attending nurses at the time no longer worked at the hospitals, or they may not sufficiently recall the details of the incident three years after the fact. The Committee should have pursued the petition promptly so as to secure the attendance of the nurses and the staff on duty. The fact that the Committee never got a response from the Portfolio Committee on Health was also unacceptable, since the Committee could have concluded the matter a long time ago.

Mr Monakedi said that the report indicated that a magistrate had determined that the injuries sustained by Tamara had not been inflicted by malice, and enquired whether the matter had actually gone to court. 

Dr Gondwe said that the petitioner had given the Committee the impression that the matter had not gone to court. However, Dr Kharwa had stated that the matter had indeed gone to court.

Mr Ximbi agreed that the matter should be referred to the Public Health Ombudsman. There were medical reports which indicated that the patient had sustained several broken bones on different parts of her body.

Ms Mokwele said that the petition touched on issues relating to race and educational inequality at institutions of higher learning, among others. The Committee’s decision would be compromised in the event that it did not take into consideration the observations of the various stakeholders involved in the matter. Before the Committee could make a decision, there was a need for further investigation and a need to peruse the judgment of the magistrate in order to determine what had transpired. The Committee had to determine if there had been proper proceedings and whether there had been any racial bias on the part of the prosecutor against the petitioner. The Committee’s report should highlight the observation that the prosecutor had made a determination that the matter was not to be taken to court. The Committee should take its time in order to make an informed decision, and if the Committee lacked confidence in the parties’ submissions, it should recommend further investigations to be done.

She pointed out that the attending nurse at the time had also made submissions to the Committee, and had presented documentation relating to the working schedules of the medical staff on duty at the time of the incident. Therefore the Committee would still be in a position to call on the implicated staff members, regardless of whether they still worked at the same hospitals.

Ms T Wana (ANC) proposed that the content advisor should consolidate all the observations made by the various investigations conducted, and present them to the Committee to make recommendations.

Ms Engelbrecht enquired whether any effort had been made to find out from the Treatment Action Campaign (TAC) whether there had been an actual court case that had determined that Tamara had not been assaulted.

Mr Ximbi said that there was no need to contact TAC, as they were only assisting the petitioner to file the suit in court. The Committee had contacted the prosecutor in order to clarify whether the case had actually proceeded to court, but he had declined to appear before the Committee.

Ms Engelbrecht expressed her concern that there was confusion regarding whether or not there had been an actual court case regarding the matter. If there had been a court case, it would unfortunately determine the Committee’s relief, since it could not go against a court’s judgment.

Dr Gondwe that the Committee’s researcher had looked into the matter but could not find any case filed with the Court. The petition had conflicting information. On one hand, the hospital denied the patient had ever been assaulted, whereas Professor Saayman had stated that she was most likely assaulted, given the nature of her wounds. Also, another private medical doctor had determined that the patient had suffered a broken hip whereas Dr Kharwa had denied that fact.

The Committee’s Researcher confirmed that she had followed up on whether there had been a court case, but could not find any case filed with the court.

Dr Gondwe said the first recommendation was that the complaints against the two hospitals be investigated by the Department of Health (DoH), since the other previous investigations had not been thorough enough. The petitioner’s case had been closed by the prosecutor due to lack of sufficient evidence, but Dr Kharwa, while on a visit to Cape Town, had uncovered new evidence which he had handed over to the prosecutor. The Committee should recommend that SAPS reopen the case and determine whether an assault took place. The third recommendation was to encourage hospitals to practice the principles of batho pele. The fact that the Western Cape local government had refused the nurses permission to make submissions to the Committee was also a cause of concern. The Committee should also recommend that hospitals should improve their record keeping, considering the delicate nature and risk associated with patient treatment. The office of the Public Health Ombudsman should look into the matter and see whether it was within its mandate to investigate.

The Chairperson suggested that the suspected individuals should also be investigated, together with the institutions implicated.

Ms Manopole noted that some of the proposals from Members appeared more as observations rather than recommendations. There should also be an inquiry into how the petitioner’s case had not proceeded to court, as there might have been a gentleman’s agreement between the prosecutor and the magistrate. She proposed that, as part of the recommendations, the Committee’s report should be amended to reflect Groote Schuur Hospital’s response to the petitioner’s complaints.

The Chairperson proposed that the Independent Police Investigative Directorate (IPID), as the oversight body of SAPS, should investigate why the case had been closed.

Mr Monakedi said that the Committee needed to decide whether it was moving towards the conclusion of this case or not, since it could not finalise the matter if it had to follow up on any further investigations to be conducted. Referring the matter to IPID suggested that there was something amiss on the part of the police, but if the case could not proceed due to lack of sufficient evidence, the matter could simply be referred back to the police, in light of the new evidence uncovered.

Mr D Stock (ANC, Northern Cape) proposed that the Committee should report the magistrate who had refused to appear before them, to the Magistrates Commission to investigate his conduct.

Ms Mokwele said that the report was only a draft report, and was subject to the Committee’s recommendations or resolutions. However, if the recommendations invited further investigations so as to resolve the petition, then the draft report could not be adopted. The report did not clearly identify whether it was a prosecutor or a magistrate who had declined to proceed with the case, and therefore invited further investigations to be conducted so that the Committee could make proper recommendations. The SAPS had never been at fault, since they had opened the case and forwarded it to another level of the criminal justice system -- it was the Department of Justice that was at fault for not prosecuting it. Therefore, the Committee should not recommend IPID to carry out an investigation.

Ms Engelbrecht asked for clarification on whether there was anything further the Committee could do to expedite the conclusion of the petition after the Committee referred it to SAPS and the Public Health Ombudsman.

Mr Monakedi said that the Committee’s officials needed to refine the report and check the facts surrounding the issues relating to the magistrate and the police. The Committee could meet at a later date and be briefed on the correct position of the facts so as to make an informed decision.

The chairperson noted that the Committee shall meet on a later date to conclude on the petition.

Committee business

The chairperson took the members through the Minutes.

Mr Ximbi moved that the Committee adopt the minutes dated Wednesday, 3 May 2017. Mr J Mthethwa (ANC, KwaZulu-Natal) seconded the proposal. The minutes were adopted without amendments.

Ms Mokwele said that some of the provinces were represented by two delegates instead of one, and asked whether the alternate members of the Committee were allowed to attend meetings while the permanent member was present.

The Chairperson said that the issue would be responded to at the next meeting.

The meeting was adjourned.

Documents

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