Rights of vulnerable in our hands
“WHAT you do to the least of these, you do unto me.” These immortal words of Jesus Christ, uttered more than 2 000 years ago are, par excellence, are apt in relation to the treatment of mentally ill people in South Africa. The Gauteng mental health project, in which at least 94 mentally ill patients died in appalling conditions, is a tragedy of the first order. In his damning report, health ombudsman Malegapuru Magoba listed certain adverse findings, inter alia, that patients died unlawfully of starvation, thirst and the cold in overcrowded NGOs – all 27 were operating under invalid licences. He also found that the “high level decision” to terminate the Life Esidimeni contract was taken “precipitatively”. He also found that the actual transfer was “a total shambles”.
Mentally ill patients, by virtue of their condition, are probably the most vulnerable group and minority of people in our land. They have fundamental rights as enumerated in the Bill of Rights, contained in our constitution.
However, rights have to be executed in general by the holders of the rights. This, mentally ill patients cannot do, so these precious rights have to be exercised in a fiduciary manner for them, through those charged with their care, who must nurse, look after and administer facilities for such patients.
In this regard, firstly, responsibility rests with the political and administrative officials who take decisions relating to the care of such patients.
Next responsibility rests with the professional care workers and the supervising doctors who take decisions and oversee the treatment of such patients, by the actual carers.
There is also a responsibility that rests with the public to ensure that this vulnerable group of people receive the correct, compassionate and dignified treatment.
From Magoba’s report, all categories mentioned above are weighed and found wanting. The MEC, Quedani Mahlangu, who has resigned, and senior professional staff who took the decision to relocate mentally ill patients from Esidemeni Life to 27 unlicensed NGOs, bear a serious responsibility both morally and legally. The criminality of such conduct could very well be tested in the courts.
Furthermore, it is submitted that those care workers who should actually have cared for the mentally ill patients concerned, are all morally and professionally responsible for the neglect and death of these patients. Unfortunately, the public in general and informed people were blissfully unaware or indifferent to the unfolding tragedy occurring in mental health facilities in Gauteng.
By resigning, Mahlangu has dispassionately accepted political or ministerial responsibility by declaring: “These deaths occurred under my leadership and I take political accountability as the final authority in the department.”
It is submitted that much more is actually required. Metaphorically, she should be weeping and wailing as a result of what has occurred.
Besides the political responsibility, which by virtue of ministerial responsibility, only a court of law could establish whether she was in any way criminally negligent for the death of patients. It is submitted that there is a distinct possibility of this being the case, or at least some kind of civil liability for ill treatment and death of those who died as a result of gross negligence.
In addition to ministerial responsibility, there is also collective cabinet responsibility, which is recognised in the constitution, which in Section 61 states: “Members of the executive council of a province are accountable collectively and individually to the legislature for the exercise of their powers and performance of their functions. Furthermore, such members must act in accordance with the constitution… and provide the legislature with full and regular reports concerning matters under their control.”
It is therefore for good reason that Gauteng Premier David Makhura has been targeted in relation political and administrative accountability as a result of this unprecedented health tragedy that occurred under his provincial administration and government, of which he is the premier.
The public must of necessity to be justifiably outraged by what has occurred and must insist that every aspect of this sordid affair be thoroughly investigated both politically and legally and all those responsible be brought to book, regardless of their political or professional status. Only then can we rest assured that such a tragedy never occurs again.
The cost of liberty is indeed eternal vigilance, and this inordinate tragedy makes it necessary for increased awareness and vigilance on the part of civil society and the public in general.
There are other areas of public administration where there are vulnerable persons, such as is the position in the prisons, where there is endemic overcrowding. We should not be waiting for a tragedy to occur, but insist on more pro-active policies to ameliorate problems and prevent a tragedies from occurring.
Although in South Africa there is a great deal of talk and discussion about human rights, what is required is a far more compassionate society.