In 2015 the lack of attention to mental health care in South Africa made news headlines when 1,711 mental health care users dependent on assistance were forced out of state-sponsored private mental health care facilities. In what has been called the worst human rights violation since the end of apartheid, 144 of these transferred patients died due to neglect. A number of national and international legal mechanisms exist to hold the perpetrators accountable, but victims and their relatives may need assistance to be able to do so.
In 2015, the South African government decided to move 1,711 mental health care users dependent on assistance for their daily functioning from a state-sponsored private hospital group called Life Esidimeni into the care of other actors, including NGOs and hospitals not specialized in the care of patients, many of whom were suffering from severe mental illness that affected their ability to lead normal lives. Following the death of 144 mental health care users due to inadequate care and neglect, the South African government stated that this decision had been made in order to implement a policy of deinstitutionalisation, to satisfy financial auditing requirements not to use one service provider for lengthy, uninterrupted periods, and to save costs.
A remaining 1,418 persons survived, experiencing conditions that former Deputy Chief Justice Moseneke, the arbitrator in proceedings between the South African government and the families of the mental health care users, described as torture (paras 58 to 141). At the time of the arbitration award in March 2018, 44 of the mental health care users had gone missing in the absence of care, lack of food, water and sanitation and systems to keep track of where users were housed. News reports in March 2019 indicated that some users were still unaccounted for, although many had been traced with the help of police and the Department of Social Development.
Investigations point to rash decision-making and a lack of care
A report by the Office of the Health Ombud has described the provincial health department’s project in terms of which the transfers occurred as “done in a ‘hurry/rush’, with ‘chaotic’ execution, in an environment with no developed, no tradition, no culture of primary mental health care community-based services framework and infrastructure”.
According to the Arbitration Award, the South African government accepted liability and acknowledged that the actions of its officials and its agents contravened South Africa’s obligations under international law, the South African Constitution, 1996, the National Health Act 61 of 2003, the Mental Health Care Act 17 of 2002, and the government’s own National Mental Health Policy Framework and Strategic Plan.
The survivors and the families in the Life Esidimeni arbitration were awarded compensation of approximately R1.2 million (approximately €73,000) each in terms of the common law and in the form of damages for breaches of constitutional rights. Justice Moseneke also ordered the government to construct a monument to commemorate the suffering and loss caused by the government’s actions and to remind future generations of the “human dignity and vulnerability” of mental health care users. He furthermore ordered that government report to the Office of the Health Ombud and to survivors and their families on the contents, as well as the implementation of its recovery plan, which seeks to “achieve systemic change and improvement in the provision and delivery of mental health care by the Department of Health in the Province of Gauteng” (para 7a). Furthermore, Justice Moseneke ordered that the health care professionals involved in the killing and the torture of the mental health care users be reported to their respective professional bodies. Steps taken in this regard should be reported on to the Health Ombud and the claimants.
Pursuing accountability: two possible avenues
The steps taken by government above are arguably insufficient to ensure accountability. Apart from measures that the South African government can choose to implement at its discretion, which accountability mechanisms can be used by social justice organizations representing the victims and their relatives to address the crass disregard for mental health care users’ rights by government officials, health care professionals, and managers of NGOs involved in the Life Esidimeni case?
The Special Investigations Unit, the State’s preferred forensic investigations unit established in terms of legislation, has been successful in claiming back portions of the funds that had been improperly allocated to some NGOs. This was done after a presidential decree to investigate whether NGOs benefited improperly from the Life Esidimeni processes. However, no accountability has followed for government officials and health care professionals who were involved in taking reckless decisions and implementing such decisions. What are the options in this regard?
Firstly, accountability in the form of criminal prosecutions is possible, although the National Prosecuting Authority (NPA) has stated that there is insufficient evidence for criminal prosecutions. However, evidence can be gathered through inquests into the deaths by courts, which have been ordered by the Arbitrator.
Moreover, if the NPA maintains its refusal to prosecute those involved in the deaths and torture, there is the possibility of private citizens instituting prosecution proceedings in terms of the Criminal Procedure Act, although the costs involved make this a prohibitive process for most persons. Funding options for private prosecutions include NGOs and private donors. Without funding and legal assistance, it is highly unlikely that it is an avenue that families would be able to pursue.
Secondly, if domestic remedies are unsuccessful, there is the possibility of laying a complaint with the United Nations Committee on the Rights of Persons with Disabilities in terms of, inter alia, articles 3, 15 and 16 of the Convention on the Rights of Persons with Disabilities. South Africa ratified the Convention, together with its Optional Protocol, in 2007. However, the Committee may only make “suggestions and recommendations” after considering a complaint (art 5 of the Optional Protocol). Unless there are political or economic repercussions that flow from adverse findings by the committee, it is my view that it is likely to be a weak accountability measure.
These are two possible avenues in the continuing struggle to ensure accountability for the deaths, pain, and suffering caused by the South African government’s, health care professionals’ and non-governmental organizations’ actions in the Life Esidimeni cases. While the report of the Health Ombud and the arbitration award have suggested repercussions for some of the health care professionals and state officials who neglected their duties, it remains to be seen whether the individuals whose actions caused the deaths, torture, and trauma of mental health care users and their loved ones will be held accountable.
About the author:
Meryl du Plessis is a senior lecturer in the School of Law at the University of the Witwatersrand. In 2019, she participated in an Erasmus+ sponsored fellowship programme at the International Institute of Social Studies.