LIFE ESIDIMENI INQUEST: Part 2- Recap on its progress and what to expect
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 I of this article, 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 legal cause of death for each of the mental healthcare users and whether there were criminal acts or omissions which led to the deaths, following the decision of the Gauteng Department of Health to transfer mental healthcare users 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 into the meat of what happened when patients were transferred from Life Esidimeni into unprepared NGOs, and 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 mental health users were receiving care, and with the end date of the contract looming, hastily transferred the patients to NGOs. The department called this the Gauteng Mental Health Marathon Project.
The evidence from seven witnesses connected to the tragedy spanning over 30 days of hearings – some partial, others long, emotional, and laden have begun to shed light on why and how the decision was taken to move mental healthcare users from Life Esidimeni facilities 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 (SADAG), 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 I of this series.
Since October 2021, three more witnesses have taken the stand. This includes Levy Mosenogi, who was the project manager of the Life Esidimeni termination project, Noncebo Sennelo, then deputy director of the mental health care directorate in the Gauteng health department, and Hanna Jacobus, the deputy director in the mental health care directorate of the provincial health department who was responsible for overseeing NGOs where mental healthcare users were moved. Notably, these were all witnesses in the mental health directorate charged with implementing the transfer of patients from Life Esidimeni to the NGOs.
Across the board, evidence from these witnesses shows that proper processes for transferring mental healthcare users were not followed and the transfer of patients from Life Esidimeni to NGOs was incredibly rushed. There were between 500 and 800 mental healthcare users transferred in May and June 2016 alone. Officials in the Gauteng health department have testified that they were under severe pressure to implement the transfer of patients and placed patients into NGOs they knew were unprepared.
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 from within the provincial health department. Mosenogi testified that he escalated concerns repeatedly to seniors in the department and tried to provide alternatives to the Marathon project. According to Mosenogi, seniors, including the then Head of Department Dr Tiego Selebano and former 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 ill-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 health care directorate at the time, said during her testimony that she felt that 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 the transfer of patients if they did not have the means to take care of them. However, Sennelo conceded that the difficulties and frustrations of implementing a rushed project can be traced back to the mandate given by the former Health MEC Mahlangu.
Hanna Jacobus, the deputy director in the mental health directorate responsible for overseeing NGOs, during her testimony said 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 shows that Jacobus knew that all the new NGOs established to take patients were unprepared, under-resourced, unlicensed and that it was, therefore, unlawful for them to receive patients. Having admitted that it could take three years to prepare and license an NGO for mental healthcare users, Jacobus did not do enough to prevent the placement of patients to NGOs that had hastily been established just three months before and whose licenses were fraudulent. Jacobus even went as far as conceding that many licenses 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, 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 knowledge that the new NGOs were unprepared and posed risks to mental healthcare users’ lives, wellbeing, and rights, Jacobus has to date faced no meaningful consequences for her role in the deaths of the 141 mental healthcare users.
Gauteng health officials continue to pass the buck, unanimously denying that deaths or violations of rights of mental healthcare users 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 tragedy, despite warnings. Despite numerous warnings of the risks of a rushed transfer, despite multiple calls for alternatives from families, doctors, and concerned parties, and despite many officials who were psychiatric experts aware of the specific health needs of mental healthcare users, 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 purpose of this Inquest is to establish the cause of death of mental healthcare users and who may be responsible for those deaths. 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 health care directorate to take the stand. Lenkwane, like Sennelo, was responsible for facilitating the transfers of mental healthcare users from Life Esidimeni to either hospitals or NGOs.
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 who can then decide whether there is strong enough evidence to lay charges and prosecute.
The duration of the Inquest remains uncertain, but it is likely to continue for months more – pathologists and psychiatrists are still due to take the stand, as well as some family members and high-ranking officials to testify after that. It is hoped that all this evidence will bring us closer to unearthing the conditions that led to the deaths.
*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.