tag:theconversation.com,2011:/uk/topics/qedani-mahlangu-35560/articlesQedani Mahlangu – The Conversation2017-09-26T16:44:15Ztag:theconversation.com,2011:article/839862017-09-26T16:44:15Z2017-09-26T16:44:15ZWhy mediation and arbitration offer a better route to solving medical disputes<figure><img src="https://images.theconversation.com/files/187037/original/file-20170921-8194-1g0yduo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>A medical scandal in South Africa, that resulted in the deaths of 94 patients with mental health disorders after they were moved from the Life Esidimeni Hospital to unlicensed facilities, is taking a new turn. Retired Chief justice Dikgang Moseneke has been appointed to <a href="http://www.news.gauteng.gov.za/content/news/makhura-welcomes-the-announcement-of-the-life-esidimeni-alternative-dispute-resolution-process.html">arbitrate the dispute</a> between the Department of Health and the families of the patients who died. Judge Moseneke will make a binding award of compensation to avoid a costly legal battle. Health and Medicine Editor Candice Bailey spoke to Romany Sutherland about medical mediation.</em></p>
<p><strong>What is medical mediation?</strong> </p>
<p>Mediation is one of a few alternative dispute resolutions tools. The idea behind it is that as soon as a conflict or dispute arises, an independent person gets involved to facilitate conversation between the parties. The process is voluntary, confidential and “without prejudice” so nothing that is said or conceded can be used in court later. It offers a safe space for the parties. With the assistance of a mediator they discuss their concerns and interests.</p>
<p>Before medical mediation was allowed, the only redress in a dispute be it after a breakdown in the patient-doctor relationship, a dispute around accounts or allegations of negligence or misconduct – was via an attorney who would investigate and litigate. </p>
<p>But litigating a medical negligence dispute can take <a href="http://www.med.umich.edu/news/newsroom/Boothman%20et%20al.pdf">seven years</a> or even longer. And very often costs exceed the compensation sought. In addition, parties can be left despondent, emotionally exhausted and sometimes, financially ruined.</p>
<p>In most litigation matters there is also no platform to discuss what actually happened. Most patients pursuing litigation in medical matters need the three A’s: Answers, Accountability and Assurance – an explanation as to why the results were not as intended or predicted and what happens as a result. </p>
<p>The benefit of a medical mediation is that the emotional toll on both parties in the dispute is minimised.</p>
<p><strong>How big is it in South Africa and elsewhere in the world?</strong></p>
<p>Medical mediation is on the rise in South Africa. Roughly a quarter of all the mediators trained and working in the country are <a>medical mediators</a>.</p>
<p>There is a need to channel disputes towards mediators to try and find solutions inexpensively and quickly. This is particularly important because government health departments are in financial distress and are facing a medical malpractice litigation storm. In the country’s wealthiest province Gauteng for example, the department of health has had to pay out over <a href="http://www.news24.com/SouthAfrica/News/more-than-r1bn-paid-in-medical-negligence-payouts-by-gauteng-health-da-20170523">R1 billion</a> (US$75million) in medical negligence claims since January 2015. </p>
<p>Legal claims are so high that obstetricians in the private sector have left the profession because they can’t afford indemnity cover <a href="https://www.medicalbrief.co.za/archives/sas-obs-gynae-crisis-innovative-risk-solutions-needed/">that exceeds</a> R850,000 (USD64,000) per annum.</p>
<p>The South African Constitution gives everyone the right to seek legal remedy for any dispute. But the country is in the process of introducing legislation that, if promulgated, may make medical mediation compulsory before litigation is commenced. </p>
<p>In the rest of the world, medical mediation and alternate dispute resolution are common. </p>
<p>In the US several medical centres have used mediation to divert potential litigation claims. The <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314770/">University of Michigan</a> adopted mediation procedures in 2002 and included a premediation agreement at its teaching hospital. As a condition of treatment, patients agree to try mediation before pursuing litigation for any potential claim. As a result the university managed to drop claims by 60% and <a href="https://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjnl-vHsbjWAhUFPRoKHUJZD5wQFggkMAA&url=https%3A%2F%2Fwww.help.senate.gov%2Fimo%2Fmedia%2Fdoc%2Fboothman.pdf&usg=AFQjCNE2zrMx88h2NnswX0ed9myaBCQ_fQ">reduce claim processing</a> time from 20 months to nine over five years.</p>
<p>Australia, the UK and the US are among the few countries where sanctions are imposed if mediation doesn’t precede litigation. In India, the courts/judges facilitate mediation themselves.</p>
<p><strong>What is the difference between mediation and arbitration?</strong> </p>
<p>During mediation a trained mediator facilitates the conversation. The mediator is an independent third party with no vested interest in the outcome. The mediator doesn’t give advice or make a decisions on how the matter should be settled. The parties themselves make decisions about how the matter is settled. </p>
<p>Also, mediators aren’t allowed to give legal advice.</p>
<p>Arbitration can be used instead of mediation. As with mediation, the arbitrator is independent. But the arbitrator, like a judge, is given powers to make binding awards on the parties. </p>
<p>It’s preferable for all parties to have legal representation in all alternative dispute resolutions. This is important to ensure matters are not under-settled, that patients’ claim period doesn’t lapse and that legal advice is on hand. </p>
<p><strong>What are the dangers of mediation not being handled correctly?</strong></p>
<p>Mediation works well because the process is confidential. Documents, conversations, progress, process and the outcome of a mediation is totally confidential until both parties have agreed to the terms of settlement.</p>
<p>This is important because it means that none of the negotiations, agreements and concessions during the mediation are binding until the matter is finalised, reduced to writing and signed by both parties.</p>
<p>In most mediation agreements the terms will include a further confidentiality clause that covers the settlement terms after agreement has been reached.</p><img src="https://counter.theconversation.com/content/83986/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Romany Sutherland owns Romany Sutherland & Associates, Medical Mediation Consultants
She is affiliated with South African Medico-legal Association and well as Mediation in Motion. </span></em></p>Medical mediation has become a buzzword in health departments across the world as an alternative to taking legal action to solve disputes.Romany Sutherland, Part time lecturer in medical mediation, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725462017-02-08T13:07:50Z2017-02-08T13:07:50ZTop political executives in South Africa don’t resign: they only quit under duress<figure><img src="https://images.theconversation.com/files/156013/original/image-20170208-9139-s5s5gb.jpg?ixlib=rb-1.1.0&rect=45%2C0%2C509%2C394&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Qedani Mahlangu resigned as the local government minister for health in Gauteng following the deaths of 94 mentally ill patients.
</span> <span class="attribution"><span class="source">South African Tourism</span></span></figcaption></figure><p>The recent resignation of Qedani Mahlangu, the local government minister for health in Gauteng, South Africa’s wealthiest province, over the deaths of <a href="https://theconversation.com/politicians-must-account-for-the-deaths-of-94-psychiatric-patients-in-south-africa-72422">94 mental health patients</a> is a rare occurrence in the country. </p>
<p>The country’s top political executives don’t resign as a way of assuming political responsibility for problems in their portfolios. They very seldom account publicly for their responsibilities, or own up when problems arise. Instead, the usual trend is for senior officials who report to them to take the rap. Bureaucrats end up paying the price instead of their political bosses. </p>
<p>Equally rare are resignations of senior people associated with government. The exceptions can be counted on one hand. They include the resignation of Brian Molefe as CEO of the state power utility Eskom. He quit following the release of a damning report into allegations of state capture which showed he had <a href="http://mg.co.za/article/2016-11-11-breaking-brian-molefe-resigns-from-eskom">close links to the discredited Gupta</a> family. South Africa’s High Commissioner in Australia, Sibusiso Ndebele, did the same in October 2016. He was accused of taking a <a href="http://www.timeslive.co.za/politics/article1890584.ece">R10 million (US$750 000) bribe</a> in his previous position as transport minister.</p>
<p>But none of these resignations came about as a result of individuals taking executive accountability or political responsibility. The resignations cited above were caused by public pressure: in one case because of a public investigation, in the other because he faced criminal charges. </p>
<p>Similarly, Mahlangu quit hours before a damning report was released that laid bare neglect and callous disregard for vulnerable patients under her watch.</p>
<p>In other words none took public accountability for their actions. </p>
<h2>How others fare</h2>
<p>Assuming executive political responsibility for mistakes, disasters or political failures is regarded as an entrenched democratic principle linked to public accountability in many countries.</p>
<p>Recent examples include resignations of the British and Italian prime ministers. Both David Cameron and Matteo Renzi stepped down after losing national referenda.</p>
<p>Historical examples of political leaders resigning include US President Richard Nixon for his role in the 1974 <a href="http://watergate.info/">Watergate scandal</a> and Japan’s prime minister Naoto Kan after the <a href="https://global.britannica.com/event/Fukushima-accident">Fukushima nuclear tragedy</a>. </p>
<p>But there are also many examples where senior politicians didn’t do the honourable thing. Bill Clinton didn’t resign as US president over his scandalous affair with <a href="http://www.washingtonpost.com/wp-srv/politics/special/clinton/players/lewinsky.htm">Monica Lewinsky</a>, an intern. More recently, South Korea’s scandal hit President Park Geun-hye has refused to leave office despite <a href="http://www.aljazeera.com/news/2016/11/south-koreans-urge-resignation-scandal-hit-president-161126132707796.html">massive demonstrations</a> against her.</p>
<h2>Dearth of accountability</h2>
<p>Unacceptable executive conduct by political heads can assume different forms. These include unconstitutional, illegal and unethical conduct and administrative misconduct. </p>
<p>In South Africa these activities are regulated by a host of legislative and other directives. These include the <a href="http://www.saflii.org/za/legis/num_act/emea1998252.pdf">Executive Members’ Ethics Act</a>, the <a href="http://www.parliament.gov.za/live/content.php?Item_ID=235">Code</a> of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council and the <a href="https://pmg.org.za/policy-document/359/">Ministerial Handbook</a> In addition, the constitution has provisions for impeachment. </p>
<p>Ministers, therefore, cannot escape the binding nature of their political responsibility by claiming that it depends mainly on moral judgement, which can differ from person to person.</p>
<p>But in South Africa they do escape this responsibility despite all the checks and balances in place. The general trend is that national and provincial government ministers don’t take personal political responsibility. Instead they act as bystanders when a scandal erupts or an embarrassing event occurs while their senior officials take the blame.</p>
<p>Examples abound. The most noteworthy have been the <a href="http://www.corruptionwatch.org.za/the-arms-deal-what-you-need-to-know-2/">arms deal scandal</a>, the illegal use of <a href="http://mg.co.za/article/2013-05-22-full-report-on-gupta-waterkloof-landing-released">Waterkloof airforce base</a> by the controversial <a href="http://www.bbc.com/news/world-africa-22513410">Gupta family</a> and the <a href="https://theconversation.com/marikana-tragedy-must-be-understood-against-the-backdrop-of-structural-violence-in-south-africa-43868">Marikana massacre</a>.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/156014/original/image-20170208-9136-1i9tf0a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sibusiso Ndebele, left, and President Jacob Zuma are dogged by scandals.</span>
<span class="attribution"><span class="source">Reuters/Peter Andrews</span></span>
</figcaption>
</figure>
<p>And the lack of accountability extends to the highest echelons of power – like the <a href="http://www.gov.za/sites/www.gov.za/files/Public%20Protector's%20Report%20on%20Nkandla_a.pdf">Nkandla scandal</a> over President Jacob Zuma’s use of public money to build his private homestead. In 2016 the Constitutional Court found that Zuma had <a href="http://www.timeslive.co.za/politics/2016/03/31/TRANSCRIPT-Judgment-of-the-Constitutional-Court-on-Nkandla">acted inconsistent with the constitution</a> and also illegally. Yet he remains in office.</p>
<p>Given this scenario, what are we to make of Mahlangu’s resignation over the deaths of the 94 mental health patients on her watch? Does her departure constitute a break with the past? Is it symptomatic of changes in the governing African National Congress (ANC)? </p>
<h2>Pragmatism, not accountability</h2>
<p>We should not over interpret the significance of the development. Mahlangu resigned shortly before the Health Ombudsman’s <a href="https://theconversation.com/patient-deaths-show-south-africas-care-for-the-mentally-ill-is-in-disarray-72472">damning report</a> became public. This means her resignation was also due to public pressure and not because she’d accepted that she’d failed in her job. </p>
<p>But the fact that she resigned is nevertheless significant. And here context matters. </p>
<p>The ANC’s decline in support across the province of Gauteng – and its defeat in its two major cities Johannesburg and Tshwane – in the <a href="https://theconversation.com/sharp-tongued-south-african-voters-give-ruling-anc-a-stiff-rebuke-63606">August 2016 election</a> came as an existential shock to the party. </p>
<p>And there’s now a real chance that the ANC provincial leadership will lose its majority in 2019. Thus the party needs to present itself as being radically different in Gauteng when it comes to ethics, accountability and leadership qualities. </p>
<p>Mahlangu’s resignation could be a demonstration of this. But we’ll only know if this is the case if similar resignations follow. </p>
<p>A complicating element in the Mahlangu case is the implication of the principle of collective executive responsibility. Does it mean that only the MEC and her department must take blame for the deaths of 94 patients? Or must the entire Provincial Executive Council, including the Premier, take the blame? </p>
<p>Parliamentary government is normally associated with collective responsibility. In other words, the leader, in this case the premier, must demand accountability from the ministers. </p>
<p>It’s fair to say that the ANC is a long way from accepting this much more radical approach to governing accountability.</p><img src="https://counter.theconversation.com/content/72546/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mahlangu’s resignation over the deaths of mental patients sets her apart from her colleagues in government. But, it does not portend a new trend in political accountability for the governing ANC.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/724722017-02-06T12:34:09Z2017-02-06T12:34:09ZPatient deaths show South Africa’s care for the mentally ill is in disarray<figure><img src="https://images.theconversation.com/files/155612/original/image-20170206-18271-1ialc7l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Emanuele Mazzoni Photo/Shutterstock</span></span></figcaption></figure><p><em>A report in South Africa detailing <a href="https://theconversation.com/politicians-must-account-for-the-deaths-of-94-psychiatric-patients-in-south-africa-72422">the death of 94 people</a> with mental health disorders who were moved from the Life Esidemeni Hospital and placed in inadequate facilities has sparked outrage and led to Qedani Mahlangu stepping down as the local government Minister of Health in Gauteng province. Janine Bezuidenhout and Shehnaz Munshi unpack <a href="http://www.ohsc.org.za/images/documents/FINALREPORT.pdf">the report</a> and what it reveals about mental health care in South Africa.</em></p>
<p><strong>What did the report find and what does this say about the system failures in mental health care?</strong></p>
<p>Generally people with mental health disorders have limited access to the <a href="http://www.who.int/mental_health/evidence/south_africa_who_aims_report.pdf">appropriate health care services</a>. They have a lower life-expectancy and the increased risk of co-morbid physical illnesses. It is critical for them to have a stable environment, with qualified medical professionals. </p>
<p>The health ombudsman’s report was damning. It found that 94 patients – and not 36 as previously reported – died after they were moved from the hospital to facilities run by NGOs.</p>
<p>In total 1,039 patients were transferred to 27 NGOs. The reported deaths occurred in 16 of the 27. None had the appropriate license to take care of the patients.</p>
<p>The report’s most damning findings are around the:</p>
<p><strong>Transfer of patients:</strong> Patients were moved without their families being informed. Some incapacitated patients without wheelchairs were tied with bed sheets to support them. Others were transported in open trucks.</p>
<p>Patients ended up in organisations not originally selected for them or far away from the families. Some patients with co-morbid medical conditions, which requires specialised medical care, were transferred to facilities where no such care was available.</p>
<p><strong>NGO conditions:</strong> The organisations were not sustainable. They did not have financial support for infrastructure, food, clothing and bedding for the winter months. As a result some had no bedding or blankets and others left patients hungry. Many patients were malnourished and suffered severe weight loss.</p>
<p>In addition, staff were not trained or prepared for the task of taking care of the patients. Overcrowding was common and some patients were left dirty, poorly groomed and without treatment. Some weren’t given the correct medication which meant that they were at a higher risk of relapsing.</p>
<p>Fourteen of the 25 inspected NGOs were found not fit for purpose. The recommendation is that they should be closed.</p>
<p><strong>Causes of death:</strong> A sample of 38 patients were selected to determine their cause of death. In 21 of the 38 patients, the immediate cause of death could be identified. For those, most died of pneumonia, uncontrolled epilepsy, stroke, sepsis or dehydration.</p>
<p>Families were not immediately notified of deaths. Some families only found out three weeks later.</p>
<p><strong>What does the report tell us about the bigger picture of mental health care failings in South Africa?</strong></p>
<p>The report shows that mental health care in South Africa is in a state of disarray. </p>
<p>South Africa has good policies for mental health care. But the implementation of these policies remain a challenge. Mental health services have not been integrated into the routine care of chronic diseases and within the primary health care system. As a result mental health has been <a href="https://www.health-e.org.za/wp-content/uploads/2016/05/South-African-Health-Review-2016.pdf">marginalised and underfunded</a>. </p>
<p>There are several areas that create <a href="http://www.who.int/mental_health/management/depression/wfmh_paper_depression_wmhd_2012.pdf">barriers</a> to effective mental health care services. These include: </p>
<ul>
<li><p>A lack of financial investment: without the financial resources invested in mental health, programmes will <a href="https://www.health-e.org.za/wp-content/uploads/2016/05/South-African-Health-Review-2016.pdf">not be sustained</a>. This is despite the fact that studies show that it costs more <a href="https://www.health-e.org.za/wp-content/uploads/2016/05/South-African-Health-Review-2016.pdf">not to treat mental disorders</a> than to treat it.</p></li>
<li><p>Stock outs of medications: According to the <a href="https://www.health-e.org.za/wp-content/uploads/2015/10/rural-mental-health-campaign-report-2015.pdf">stop stock-outs project</a>, psychiatric medication made up 10% of the reported medication stock outs in the country between January and July 2015. </p></li>
<li><p>The social stigma associated with mental disorders</p></li>
</ul>
<p><strong>Does mental health care play second fiddle to primary health care in the country?</strong></p>
<p>Mental health care has always been the “stepchild” of health care. In South Africa, it is estimated that 75% of people with a mental health disorder don’t receive mental health care services. This is referred to as the “mental health treatment gap”.</p>
<p><a href="http://bjp.rcpsych.org/content/208/s56/s29">Integrating mental health care</a> into the existing health system structures could reduce the stigma and result in greater effectiveness of health care interventions. </p>
<p>There are moves to incorporate mental health care better. Recent policies by the National Department of Health show a high level of commitment to integrate mental health care services into the primary health care chain.</p>
<p>The department’s <a href="https://www.health-e.org.za/wp-content/uploads/2014/10/National-Mental-Health-Policy-Framework-and-Strategic-Plan-2013-2020.pdf">2013-2020 mental health policy framework and strategic plan</a> envisages scaling up and decentralising integrated primary mental health services. This includes community-based care, primary health care and district hospital level care. Implementing and sustaining these policies are key. </p>
<p>In the long term health plan under the National Health Insurance (NHI), mental health care appears to be sidelined. In the white paper on the NHI, mental health care is only broadly mentioned. Mental health services are included as part of the comprehensive package, but no detail is provided about programmes, or how the shortage of mental health professionals will be addressed. </p>
<p><strong>What next? What steps should be taken to avoid this from happening again?</strong></p>
<p>Five of the NGOs have already been closed down. The ombudsman recommended that remedial action should be implemented within 45 days of the release of the report. </p>
<p>The report needs to be studied in detail to establish which key actions should be taken to prevent this from happening again. </p>
<p>The report, combined with existing policies, should be used to put a plan in place for mental health care services. This was proposed by the social justice NGO <a href="http://www.huffingtonpost.co.za/2017/02/01/the-life-esidimeni-deaths-explained/">Section27</a>.</p>
<p>There also needs to be more transparency and accountability within the Department of Health. It was repeatedly warned that the transfer was placing patients in danger. The department was <a href="http://www.huffingtonpost.co.za/2017/02/01/the-life-esidimeni-deaths-explained/">taken to court twice</a>. It assured the court that the patients’ health would not be compromised by the transfers. Its actions resulted in human rights violations as well as medical negligence.</p>
<p>Opposition parties have called for legal action. The Economic Freedom Fighters have <a href="http://citizen.co.za/news/news-national/1417575/da-lays-culpable-homicide-charge-qedani-mahlangu/">laid charges</a> of murder against the former local government minister and the Democratic Alliance of culpable homicide and contravening the Mental Health Care Act and the National Health Act. Several organisations involved in the tragedy are considering similar action. All believe that those responsible should be held <a href="http://section27.org.za/2017/02/section27-calls-for-systematic-change-in-mental-health-in-south-africa/">legally accountable</a>. </p>
<p><em>Janine Bezuidenhoudt co-authored this article. She works for the Foundation of Professional Development.</em></p><img src="https://counter.theconversation.com/content/72472/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shehnaz Munshi is affiliated with the Junior Public Health Association of South Africa and the People's Health Movement - South Africa (PHM-SA). </span></em></p>The 94 people with mental health disorders who died after they were moved from the Life Esidemeni facility and put into inadequate care shows the poor state of mental health care in South Africa.Shehnaz Munshi, Occupational Therapist, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/724222017-02-05T07:08:50Z2017-02-05T07:08:50ZPoliticians must account for the deaths of 94 psychiatric patients in South Africa<figure><img src="https://images.theconversation.com/files/155442/original/image-20170203-13978-vzpdmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family members of the psychiatric patients commemorating their deaths.</span> <span class="attribution"><span class="source">Shayne Robinson / Section27</span></span></figcaption></figure><p>The local government minister for health in Gauteng, South Africa’s wealthiest province, <a href="http://bhekisisa.org/article/2017-02-01-mahlangu-quits-as-death-tally-almost-triples/">resigned</a> on Tuesday 31 January just before the release of a report into the deaths of 94 mental health patients. Qedani Mahlangu’s post is the equivalent of a health minister but at provincial level. She faces a class action lawsuit after a report by South Africa’s health ombudsman exposed the appalling conditions in which the psychiatric patients died between 23 March and 19 December 2016.</p>
<p>The patients came to their deaths because of a cost-cutting exercise by the Gauteng government. A total of 2,000 patients were moved from Life Esidimeni private hospitals to 27 NGOs. The report stated that:</p>
<blockquote>
<p>All the 27 NGOs to which patients were transferred operated under invalid licences. All patients who died in these NGOs died under unlawful circumstances.</p>
</blockquote>
<p>It was initially reported that 36 patients had died, but the figure turned out to be nearly triple that. The health ombudsman found that the most <a href="https://www.businesslive.co.za/bd/opinion/editorials/2017-02-03-editorial-victims-of-the-states-priorities/">common cause</a> of the deaths was pneumonia, followed by uncontrolled seizures. Patients were found to be starving and dehydrated. Relatives <a href="http://www.iol.co.za/news/south-africa/gauteng/life-esidimeni-mental-patients-died-of-hunger-cold-7591663">testified</a> that the patients had been given no blankets or warm clothing during last year’s cold winter. </p>
<p>The patients died on average two months after the hurriedly and haphazardly arranged transfers took place.</p>
<p>The report has been met with outrage and shock. In addition to the Gauteng Health MEC’s resignation, the suspensions of two other senior officials have also been recommended – the head of Health and a senior director. Both are registered medical doctors. The report <a href="http://bhekisisa.org/article/2017-02-01-mahlangu-quits-as-death-tally-almost-triples/">stated</a> that the MEC’s and the two officials’</p>
<blockquote>
<p>fingerprints are ‘peppered’ throughout the project.</p>
</blockquote>
<p>The events have raised two important issues – the extent of responsibility by political appointees such as the MEC as well as the problem of medical doctors’ having “dual loyalties”. This exists where medical professionals are employed by, for example, the state or defence force.</p>
<h2>The case of “Dr Death”</h2>
<p>South Africa has a particularly brutal case of “dual loyalty” that underscores why it’s vital that doctors remember their first responsibility is to their patient’s well-being, interests and safety. In other words the needs of their patients must supersede any demands placed on them by their employer. </p>
<p><a href="http://mg.co.za/article/2014-11-27-wouter-basson-subordinated-the-role-of-doctor-for-that-of-soldier">Dr Wouter Basson</a>, dubbed “Dr Death” by local media, was the head of the apartheid government’s chemical and biological warfare programme, <a href="https://issafrica.org/iss-today/why-project-coast-still-matters">“Project Coast”</a>, in the 1980s and 1990s. Working for the South African Defence Force Basson was tasked with the manufacture of toxic substances for use in attacks and assassinations on members belonging of the anti-apartheid movement.</p>
<p>The work of Project Coast’s researchers included finding substances that could kill people without leaving a trace post-mortem, <a href="http://bhekisisa.org/article/2015-01-22-dr-death-outfoxes-his-pursuers">producing drugs</a> such as ecstasy, mandrax and “new-generation” teargas for use against “enemies of the state”. </p>
<p>The Health Professions Council of South Africa found Basson guilty of unprofessional conduct in December 2013 for his role as the head of the project. </p>
<p>The Basson case illustrates the challenge for medical professionals who work for the state or defence force. Their primary responsibility is to the patient – not any unjustified demands or nefarious intent by the State. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/155446/original/image-20170203-14009-pb1vng.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Health Ombudsman Malegapuru Makgoba releasing the report into the deaths of psychiatric patients.</span>
<span class="attribution"><span class="source">Sandile Ndlovu/Sowetan</span></span>
</figcaption>
</figure>
<p>The two officials involved in the Gauteng psychiatric patients case were doctors and should therefore face the requisite processes. Appropriately, the ombudsman’s report recommended that they should be referred to the Health Professions Council of South Africa for investigation of professional misconduct. </p>
<h2>Responsibility and liability</h2>
<p>The MEC was not a doctor. This is itself a problem as there’s a tendency in South Africa to appoint non-medical people to head up health services. This seems counter-intuitive, but occurs regularly. </p>
<p>Even so, the report suggests that the MEC and her officials were well aware of <a href="https://www.scribd.com/document/338099437/Life-Esidimeni-Fact-Sheet#from_embed">problems</a> associated with their hurried decision to transfer patients. They were repeatedly warned by numerous people and organisations that the consequences could be fatal. </p>
<p>To what extent should she be held responsible – even legally liable for the deaths of the 94 patients?</p>
<p>Let me be clear I am not a lawyer and have no legal training so my questions are simply that – just questions.</p>
<p>The <a href="https://theconversation.com/oscar-pistorius-sentence-you-might-not-like-it-but-it-is-the-law-62183">Oscar Pistorius murder case</a> sheds light on the question of liability, highlighting the distinction between <a href="http://barristerblogger.com/2014/09/17/cant-tell-dolus-eventualis-dolus-directus-brief-reflection-pistorius-verdict/">dolus eventualis versus dolus directus</a>. </p>
<p>Duhaime’s Law Dictionary <a href="http://www.duhaime.org/LegalDictionary/D/DolusDirectus.aspx">says</a> that intent can occur in three forms: dolus directus, dolus indirectus and dolus eventualis.</p>
<blockquote>
<p>Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.</p>
</blockquote>
<p>Dolus directus, on the other hand, is present </p>
<blockquote>
<p>when the accused’s aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small.</p>
</blockquote>
<p>Is the MEC guilty of dolus directus? The answer must be no as she did not directly cause the unlawful deaths of the individual patients. Could she have foreseen the consequences of her decision and hence guilty of murder by dolus eventualis? This is a question that I believe should be answered by a court. </p>
<h2>Culture of human rights under threat</h2>
<p>South Africa fought a very hard battle to establish a culture of human rights. Politicians cannot simply resign and walk away. Accountability, where death has occurred on such a large scale, cannot merely be political. Proper legal processes must be followed and all those responsible be held truly accountable. No one, and especially politicians, is above the law. </p>
<p>In South Africa’s young democracy, the questions raised here must be asked and answered. If they aren’t, the tragic events such as this will happen again and those entrusted with the care of the most vulnerable of our society will be tempted to act with impunity.</p><img src="https://counter.theconversation.com/content/72422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Sonderup does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A South African politician under whose watch 94 psychiatric patients died resigned this week. But should she be taken to court to be held properly accountable?Mark Sonderup, Associate Professor and Hepatologist, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.