/ 19 March 2018

#LifeEsidimeni judge: ‘Government violated the Constitution’

Activists and families of relocated Life Esidimeni patients marched on the department of health last week. The department says it does not know the current death toll among the patients.
Activists and families of relocated Life Esidimeni patients marched on the department of health last week. The department says it does not know the current death toll among the patients.

The Gauteng government has been ordered to pay each of the 135  Life Esidimeni claimants R1-million in Constitutional damages as “appropriate relief and compensation for the government’s unjustifiable and reckless breaches” of six sections of the Constitution and “multiple contraventions” of the National Health Act and Mental Health Care Act.

It also has to pay the families of patients who died R20 000 to cover funeral costs of loved ones and R180 000 for shock and psychological trauma.

Of the 135 claimants, 63 were represented by social justice organisation Section27, 68 by Legal Aid and four by trade union Solidarity through law firm Hurter Spies.

At least 144 psychiatric patients died between 2015 and 2017 after being transferred from private Life Esidimeni health facilities, for which the state had paid, to largely ill-equipped community organisations. The tragedy has been described by human rights lawyers as one of “the greatest violations of human rights since the dawn of our democracy”.

The government has to pay claimants the full amount – R1.2-million per claimant of mental health users who died and R1.18-million per claimant of patients who survived – within three months. It also has to cover claimants’ legal costs.

People can claim Constitutional damages when a government official has violated their Constitutional rights such as the right to health, life or equality, said the Dean of the University of Cape Town’s Law Faculty, Penelope Andrews. “It requires the plaintiff to show something much more than negligence (by the state), for example – almost reckless disregard.”

[WATCH]: Malebona Matsoso, director general in the national health department,reflects on the settlement awarded to Life Esidimeni families.

The Life Esidimeni arbitration is the first time in South African history that Constitutional damages have been sought for the violation of mental health care patients’ rights.

In a 100-page arbitration ruling, former Deputy Chief Justice Dikgang Moseneke, who presided over the arbitration proceedings, said the Life Esidimeni transfers breached several Constitutional rights, particularly the right to human dignity of both patients and their families.

Almost 2000 mental health patients were transferred under the leadership of former Gauteng Health MEC, Qedani Mahlangu in 2015 and 2016. Between 45 and 62 patients are still missing.

“Mahlangu was more concerned with playing a political game than the deaths of patients,” Moseneke said. “She was responsible for the patients and constitutionally obliged to look after them.”

[LISTEN]: Section 27’s Mark Heywood on the R1.2-million award for Life Esidimeni families.

During the last week of the hearings in February, state advocates vehemently opposed the idea of awarding claimants Constitutional damages.

State advocate Tebogo Hutamo argued Life Esidimeni families were not entitled to make this claim because it was the rights of their loved ones – and not theirs – that suffered directly as a result of the Gauteng health department’s decision to remove patients from Life Esidimeni care.

“Families should be compensated for trauma and shock but not for the trauma the deceased went through as a result of the implementation of the project,” Hutamo said.

But Moseneke ruled “there is no doubt” that the Constitutional rights of patients and their families had clearly been violated.

He labelled the testimonies of Mahlangu and Barney Selebano, who was the head of the Gauteng health department at the time, as “not only untrue, but also irrational”. “Their decisions were in full breach of the Constitution,” he said.

Both Mahlangu and Selebano argued that they went ahead with the transfers of patients to save costs and to implement national policies. “But this makes absolutely no sense,” Moseneke said. “When asked how much money she saved, Mahlangu had no idea and moving patients to community-based organisations, known as deinstitutionalisation, has globally been shown to be expensive.” 

The Gauteng health department has also been ordered to report senior health officials’ conduct to the Health Professions Council of South Africa and the South African Nursing Council. These include Selebano, the former director of mental health services, Makgoba Manamela, and her deputy, Hannah Jacobus and of the department’s Mental Health Review Board, Dumi Masondo. Selebano is a registered medical doctor, Manamela a psychiatric nurse and Jacobus and Masonda are registered nurses.

The department has to provide the health ombudsman and the claimants with a “recovery plan” within six months. The plan needs to detail what the department will do to achieve “systemic change and improvement in the provision and delivery of mental healthcare”.

Section27 executive director, Mark Heywood, welcomed the ruling and said it “sets a world standard for human rights”.

[LISTEN]: “There is no amount of money that can compensate for loss of life,” says Gauteng premier David Makhura.

Gauteng Premier David Makhura, who attended the ruling announcement today, said he was committed to implementing all Moseneke’s recommendations. The award amount, however, far exceeds the R28 million that Gauteng Finance MEC, Barbara Creecy, allocated to Life Esidimeni compensation costs in her budget vote speech in March. 

In a press statement, the DA’s shadow Gauteng Health MEC questioned the provincial government’s ability to pay up: “It remains to be seen if enough has been budgeted to cover the financial award,” he warned. 

But according to Makhura’s spokesperson, Thabo Masebe, the premier “will go to the provincial Treasury and ask for more money”.

The national health department’s director-general, Malebona Matsoso, said she hoped the ruling paves the way for the national health department to be allocated “more authority” with regards to managing Health MECs, so that it has more control over their actions. Currently, MECs are supervised by Premiers, and not the national health minister. 

Moseneke said he would be contributing his arbitration fees to legal departments with programmes that fight for the rights of “the most vulnerable, including mental health users” in society.

This story will be updated as more information becomes available.