DA lays charges against former Health MEC Qedani Mahlangu
The DA is laying charges today against former Gauteng Health MEC Qedani Mahlangu who resigned this week after the devastating findings of the Health Ombudsman's report into the transfer of mental health patients from Life Healthcare Esidimeni to NGOs without legal licenses where 94 patients died.
In my affidavit, Mahlangu is charged with culpable homicide and with contraventions of the Mental Health Care Act (MHCA) and the National Health Act (NHA).
The crime of culpable homicide is defined as the “unlawful, negligent killing of another human being.”
The Ombud's Report in numerous instances describes the conduct of the Gauteng Department of Health (GDoH) and by extension the MEC, as negligent. There can be no doubt that the deaths of the patients are as a direct consequence of that conduct, and that the conduct was not in accordance with the NHA, the MHCA and the Constitution.
It is therefore apparent that the MEC, in instructing the termination of the GDoH contract with Life Healthcare Esidimeni, has prima facia met the requirements of culpable homicide.
Section 70 of the MHCA states as follows:
“(1) Any person who –
(a) misrepresents a fact in any application, report, record, certificate;
(b) obstructs or hinders any person in the performance of his or her functions;
(c) neglects, abuses or treats a mental health care user in any degrading manner or allows the user to be treated in that manner;
.... is guilty of an offence.
The MEC’s false statement in the Legislature on 13 September 2016 in which she said that 36 patients had died whereas the true figure was 77 patients is a prima facie misrepresentation of a fact in a report as considered by Section 70(1)(a) above.
Furthermore, the decision by the GDoH to terminate its contract with Life Healthcare Esidimeni at the MEC's instruction directly resulted in the neglect and abuse of numerous mental health care users. Instigating such treatment, let alone permitting it, is therefore a prima facie offence in terms of Section 70(1)(c).
I also charge the MEC with breaches of the NHA that relate the withholding of adequate health services as required in Section 3(2) and also the failure to provide discharge reports as required in Section 10.
I have laid these charges as it is important that there are consequences for contraventions of the law by politicians and also because I am not confident that the provincial government will lay similar charges against former MEC Mahlangu.
The scale of the deaths and the negligence make this a Medical Marikana that requires accountability from the perpetrators and justice for the victims.
Media are invited to the Johannesburg Central Police Station at 1 Commissioner Street at 12pmwhere I will be formally laying the charges.
Text of affidavit:
AFFIDAVIT
I, the undersigned,
JACK BLOOM
(_________________ )
Hereby make oath and state that:
AD DEPONENT
1.
1.1 I am an adult male member of the above details and of full legal capacity, employed as a member of the Gauteng Provincial Legislature, City Hall Street, Johannesburg and residing at _______________________
1.2 Unless otherwise indicated, the facts contained in this affidavit are within my personal knowledge, and are to the best of my belief both true and correct.
AD PURPOSE
2.
2.1This affidavit concerns possible criminal offences committed by the Gauteng MEC for Health, Ms Qedani Mahlangu (hereafter referred to as “the MEC”) in terms of the Mental Health Care Act, Act 17 of 2002 (hereafter referred to as “the MHCA”), the National Health Act, Act 61 of 2003 (hereafter referred to as “the NHA”) and in terms of the common law.
THE ALLEGED OFFENCES
3.
3.1On Wednesday 1 February 2017, the health ombudsman, Professor Malegapuru Makgoba, published a report entitled “The report into the circumstances surrounding the deaths of mentally ill patients: Gauteng Province. No Guns: 94+ Silent Deaths and Still Counting” (hereafter referred to as “the Report”). I attach a copy of the Report hereto marked “Annexure JB1”.
3.2 The Report was published pursuant to an investigation into the reported deaths of mentally ill patients in the Gauteng Province upon request by the Minister of Health.
3.3The Report reveals that:
3.3.1On 31 March 2016, the Gauteng Department of Health (hereafter referred to as “the GDoH”) terminated its contract with the LE Health Care Centre (hereafter referred to as “the LEHCC”).
3.3.2 The decision by the GDoH to terminate its contract with the LEHCC was done at the instruction of, alternatively with authorization from, alternatively under the supervision of, the MEC who was at that time ultimately responsible for the GDoH’s operations.
3.3.3As a necessary consequence of the GDoH’s decision to terminate its contract with the LEHCC, a programme of action was developed to transfer an estimated 1371 chronic mentally ill patients from the LEHCC to hospitals and NGOs throughout Gauteng.
3.3.4 Between 23 March 2016 and 19December 2016, approximately 94 of the patients transferred died under unlawful circumstances, as determined in the Report.
3.3.5On 13 September 2016, the MEC announced that the number of mortalities following on from the decision of the GDoH to terminate its contract with the LEHCC was 36. A copy of this statement is attached hereto marked “Annexure JB2”
3.3.6 At the time of the above statement, the number of mortalities was in fact 77.
3.4 The Report further notes the following:
a) That the decision to transfer patients to NGOs that were inter alia overcrowded, under-capacitated and unprepared was negligent, reckless and in violation of the Constitution, the NHA and the MHCA.
b) That the decision to transfer ‘precipitously and chaotically’ without a proper plan and against the advice of expert and professional practitioners was negligent, reckless and in violation of the Constitution, the NHA and the MHCA.
4.
4.1 Section 70 of the MHCA states as follows:
“(1) Any person who –
(a) misrepresents a fact in any application, report, record, certificate;
(b) obstructs or hinders any person in the performance of his or her functions;
(c) neglects, abuses or treats a mental health care user in any degrading manner or allows the user to be treated in that manner;
(d) assists or incites a mental health care user –
(i) to abscond from a health establishment at which he or she is admitted; or
(ii) not to comply with any care, treatment and rehabilitation plan or terms of a leave of absence or conditional discharge; or
(e) refuses to furnish information or provides false information to a member of the South African Police Service about the whereabouts of a mental health care user who has absconded or is deemed to have absconded, under this Act, is guilty of an offence.
(2) Any person who is found guilty of an offence under this Act is liable on conviction to a fine or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.”
4.2 The MEC’s false statement on 13 September 2016 is a prima facie misrepresentation of a fact in a report as considered by Section 70(1)(a) above, and accordingly I submit that the MEC is guilty of such an offence.
4.3Further, the decision by the GDoH to terminate its contract with the LEHCC at the instruction of, alternatively with authorization from, alternatively under the supervision of, the MEC directly resulted in the neglect and abuse of numerous mental health care users, the full extent of which is yet to be realized. Instigating such treatment, let alone permitting it, is therefore a prima facie offence in terms of Section 70(1)(c) above, and accordingly I submit that the MEC is guilty of such an offence.
5.
5.1 Section 3(2) of the NHA states as follows:
“(2) The national department, every provincial department and every municipality must establish such health services as are required in terms of this Act, and all health establishments and health care providers in the public sector must equitably provide health services within the limits of available services.”
5.2 The decision by the GDoH to terminate its contract with the LEHCC at the instruction of, alternatively with authorization from, alternatively under the supervision of, the MEC amounted to the prima facie withholding of adequate health services as required by the above Section 3(2), and accordingly I submit that the MEC is guilty of such an offence.
5.3Section 10 of the NHA states as follows:
“10.(1) A health care provider must provide a user with a discharge report at the time of the discharge of the user from a health establishment containing such information as may be prescribed.
(2) In prescribing the information contemplated in subsection (1), the Minister must have regard to-
a) the nature of the health service rendered;
b) the prognosis for the user; and
c) the need for follow up treatment.
(3) A discharge report provided to a user may be verbal in the case of an outpatient, but must be in writing in the case of an inpatient.”
5.4The Report notes on page 9 that discharge summaries were “not comprehensive, some without treatment”. It is submitted that this constitutes a prima facie breach of Section 10 above, and accordingly I submit that the MEC is guilty of a corresponding offence.
6.
6.1 The crime of culpable homicide is defined in S v Whitehead 2008 (1) SACR 431 (SCA) at Para 37 as the “unlawful, negligent killing of another human being.”
6.2 The Report in numerous instances describes the conduct of the GDoH, and by extension the MEC, as negligent. There can be no doubt that the deaths of the patients are as a direct consequence of that conduct, and that the conduct was not in accordance with the NHA, the MHCA and the Constitution. It is therefore apparent that the MEC, in instructing, alternatively authorizing, alternatively supervising the termination of the GDoH contract with the LEHCC has prima facia met the requirements of culpable homicide, and I accordingly submit that the MEC is guilty of such an offence.
7.
I herewith request that the matter be investigated fully, and the appropriate steps – whatsoever they may be - taken to see justice done and the rule of law upheld.
8.
This is all I can declare.
_____________________
DEPONENT: JACK BLOOM
ENDS
Statement issued by Jack Bloom MPL, DA Gauteng Shadow MEC for Health, 3 February 2017
