Maverick Citizen

SPOTLIGHT OP-ED

No end in sight for Life Esidimeni inquest while health officials continue denying responsibility for the tragedy

Members of the Treatment Action Campaign protest outside the Emoyeni Conference Centre in Johannesburg, where the Life Esidimeni arbitration took place on 22 January 2018. (Photo: Gallo Images / Daily Sun / Lucky Morajane)

The Life Esidimeni inquest stands as a crucial accountability process for a national tragedy that ought never to have happened and should never happen again. Here, they summarise and assess progress at the inquest since October last year. They previously wrote about the first months of the inquest.

This article recaps evidence and themes emerging from the Life Esidimeni inquest from October 2021. Evidence and themes from July to October 2021 were covered in part one of this series, which you can read here.

The Life Esidimeni inquest stands as a crucial accountability process for a national tragedy that ought never to have happened and should never happen again. It was established to determine the cause of death for each of the 144 mental healthcare users who died, and whether there were criminal acts or omissions involved. The deaths came after a decision by the Gauteng Department of Health to transfer patients to ill-equipped NGOs in 2016.

After several setbacks and adjournments due to procedural concerns in 2021, the inquest resumed on 17 January 2022. It is hoped that the inquest proceeds uninterrupted this year so that its findings can speedily be taken forward by the National Prosecuting Authority (NPA) to form the basis for criminal charges against those involved in this tragedy. It is important that the bottlenecks, delays and postponements that plagued the process last year are avoided in 2022.

For the bereaved families to get closure and justice, the court needs to get to the essence of what happened when patients were transferred from Life Esidimeni to unprepared NGOs. It needs to determine who should be held accountable for the deaths. 

As a reminder, in 2015 the provincial health department terminated its contract with Life Esidimeni where the patients were receiving care and hastily transferred them to NGOs. The department called this the Gauteng Mental Health Marathon Project.

The evidence from seven witnesses connected to the tragedy has begun to shed light on why and how the decision was taken to move mental healthcare users out of Life Esidimeni’s facilities and into unprepared and unlicensed NGOs during the Marathon Project.

Witnesses from the Mental Health Directorate

Evidence from the first four witnesses to testify at the inquest — Cassandra Chambers from the South African Depression and Anxiety Group, Dr Morgan Mkhatshwa and Zanele Buthelezi, both from Life Esidimeni hospital group, and Dr Richard Lebethe, the former acting head of clinical services in the Gauteng Department of Health — is covered in part one of this series.

Since October 2021, three more witnesses have taken the stand. They are Levy Mosenogi, who was the manager of the Life Esidimeni termination project, Noncebo Sennelo, then deputy director of the mental healthcare directorate in the Gauteng health department, and Hanna Jacobus, the deputy director in the mental healthcare directorate of the provincial health department responsible for overseeing the NGOs to which mental healthcare users were moved. Notably, all three were responsible for implementing the transfer of patients from Life Esidimeni to the NGOs.

Evidence from these witnesses shows that proper processes for transferring mental healthcare users were not followed and the transfer process itself was rushed.

Between 500 and 800 mental healthcare users transferred in May and June 2016. Officials in the Gauteng health department have testified that they were under severe pressure to transfer the patients, and that they placed patients in NGOs knowing they were unprepared.

Levy Mosenogi’s evidence showed that warnings about the risks of the pace of the planned transfers were not only raised by concerned families and civil society groups, but also came from within the provincial health department. 

Mosenogi testified that he repeatedly escalated concerns to seniors in the department and tried to provide alternatives to the Marathon project. 

According to Mosenogi, senior staff, including the then head of department Dr Tiego Selebano, as well as former Health MEC Qedani Mahlangu, did not listen to these warnings. 

Mosenogi, the only witness to become visibly emotional during his time on the stand, admitted, “When we took over the responsibility of the mental healthcare users, that is where the problems multiplied for ourselves and the patients. We should not have done what we did.”

Mosenogi said as warnings were ignored and senior management in the department insisted that the mental health directorate push forward with the rushed and poorly planned process, he “couldn’t sleep at night” and said he felt “there was nothing we could do”.

Feeling powerless to stop or slow the rushed transfer of mental healthcare users is a recurring theme in government witnesses’ evidence.

Nonceba Sennelo, deputy director of the mental healthcare directorate at the time, said during her testimony that she felt it was “difficult to object” to her direct supervisor, Dr Makgabo Manamela. 

She admitted that had NGOs been provided with financial starter packs, among other things, it would have helped with their readiness in caring for mental healthcare users. Sennelo, however, insisted that even though NGOs needed support before mental healthcare users were transferred, they (NGOs) had the ultimate responsibility to refuse to accept the patients if they did not have the means to take care of them. 

Sennelo conceded that the difficulties and frustrations of implementing a rushed project can be traced back to the mandate given by former Health MEC Mahlangu.

Hanna Jacobus, the deputy director in the mental health directorate responsible for overseeing NGOs, said during her testimony that she “did not have any decision-making power” over the project or the NGOs where patients were transferred. This contradicts evidence from the arbitration proceedings which show Jacobus knew that all the new NGOs established to take the patients were unprepared, under-resourced, unlicensed and that it was, therefore, unlawful for them to receive the patients. 

Having admitted that it could take three years to prepare and licence an NGO for mental healthcare users, Jacobus did not do enough to prevent the placement of patients into NGOs that had been hastily established just three months before, and whose licences were fraudulent. 

Jacobus even went so far as to concede that many licences for the Marathon project were unlawfully revised and backdated. She went on to testify that the necessary inspections, audits or licensing procedures were not followed. There were too few NGOs in the province to house the number of patients who needed to be placed, and the new NGOs developed for the Marathon project did not have enough food, beds, qualified or even trained staff, emergency medical equipment, medication or security.

Despite this, the mental healthcare users were transferred to these NGOs. 

Jacobus is now a pensioner, having been employed by the provincial health department until 2021. Despite her knowing that the new NGOs were unprepared and posed risks to mental healthcare users’ lives, wellbeing and rights, Jacobus has so far faced no meaningful consequences for her role in the tragedy.

What next? 

Gauteng health officials continue to pass the buck, denying that the deaths and violations of patients’ rights could have been foreseen. 

Even Mosenogi, who admits that in retrospect the department should have done things differently, denies that anyone could have anticipated the disaster that unfolded. 

However, it is now clear that there were numerous warnings of the risks involved in a rushed transfer. There were multiple calls for alternatives from families, doctors and other concerned parties. Despite all of this, the health department went ahead and moved patients into NGOs that were known to be completely unprepared.

Since this is not a criminal trial, no one will go to jail at the end of this inquest. The sole purpose of the process is to establish the cause of death of these mental healthcare users and ascertain who should be held responsible. 

In other words, Judge Mmonoa Teffo must make a finding on whether there is credible and acceptable evidence before her that could be used in future criminal trials. For now, however, the equivocation from witnesses frustrates the purpose of this process — to establish the truth.  

The next witness, Dr Sophie Lenkwane, is the last member of the mental healthcare directorate to take the stand. Lenkwane, like Sennelo, was responsible for facilitating the transfers of the patients.

Judge Teffo will, at the end of the inquest, deliver a set of findings surrounding the legal cause of death for each of the mental healthcare users for which evidence is available, and whether there is any prima facie evidence of criminal liability for each of these deaths. These findings will be given to the NPA to decide whether there are sufficient grounds to prosecute.

The duration of the inquest remains uncertain, but it is likely to continue for months — pathologists and psychiatrists are still to take the stand, as well as some family members and high-ranking officials. 

It is hoped that all this evidence will bring us closer to understanding the decisions and conditions that led to the deaths. DM/MC

Julia Chaskalson is a research and advocacy officer at SECTION27. Mbali Baduza is a legal researcher in the health rights programme at SECTION27. SECTION27 represents 40 of the bereaved families of the Life Esidimeni tragedy in this process. 

This article was produced by Spotlight — health journalism in the public interest.

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