The story of Madiba’s final days must be told
THESE last few weeks, amid the issues of state capture, Gupta e-mail leaks, factional battles, launch of civil society movements; the South African public was also confronted by the launch and recall of the book Mandela’s Last Years by Vejay Ramlakan.
Television stations, print media, Twitter and online news feeds were awash with the controversy the book unleashed.
The book, which was published by Penguin Random House South Africa, has been vilified and applauded.
Some members of the Mandela family have called it opportunistic and unethical.
Others have applauded it for giving insight into Madiba’s last years and days.
The author alluded to his motivation.
He said the book was based on a deep sense of love and respect for Tata Madiba.
Ramlakan stated his decision, together with those in charge of Madiba’s health and security and some family members, was to put on record the final chapter following Madiba’s Long Walk to Freedom – the Final Journey. They wanted to show the still exemplary and inspirational character of this world icon and hero.
Ramalakan stated that once the consultative and collaborative decisions were made with the family representatives, medical, security, support staff and comrades close to Madiba, he put pen to paper.
The motivation was multifactorial – to prevent the Madiba legacy from remaining “in the untold memory” of those close to him; to put paid to endless speculation and conjecture in the media and public domain; and to correct and provide the true and complete picture.
Above all, Ramlakan stated the book showed Madiba’s character, greatness, immense courage, unconquerable fortitude, and how a great man in the twilight of his life could still be an inspiration to millions. The issue of doctorpatient confidentiality, ethics, state security, protocols and legal concerns, Ramlakan had said, were dealt with.
Thus it was to place on record and be witness “to one of the triumphs of the human spirit”.
But what of doctor-patient confidentiality?
The furore that erupted goes also to this very issue.
Doctor-patient confidentiality is one of the pillars of medical ethics.
The Health Professions Council of South Africa (HPCSA) sets down rules, regulation and guidelines as per the National Health Act and various other laws to ensure ethical and legal behaviour of doctors.
- The National Health Act (Act no. 61 of 2003) states all patients have a right to confidentiality and this is consistent with the right to privacy in the SA Constitution (Act No. 108 of 1996).
- Rule 13 of the Ethical Rules of the HPCSA states that a practitioner may divulge information regarding a patient only if this is done: In terms of a statutory provision; at the instruction of a court; in the public interest; with the express consent of the patient; with the written consent of the parent or guardian of a minor; and in the case of a deceased patient with the written consent of the next of kin or the executor of the deceased’s estate.
Under Rule 8: Disclosure of Information other than for Treatment of Individual Patients.
Rule 8.2.4.2: In all cases the healthcare practitioner must weigh the possible harm against the benefits that are likely to arise from the release of this information.
In an article in the South African Medical Journal, Professor McQuoid-Mason discussed the issue of confidentiality and disclosure.
Following on the rules, where information can be divulged, the article states: “The law, however, does not protect the confidentiality of deceased persons, and generally when people die their constitutional and common law personality rights, including their right to privacy and confidentiality, die with them. This means that the next-of kin or executors of the estates of the deceased persons may not bring actions for damages on their behalf for beaches of confidentiality arising after their deaths.”
In this era of instant news, leaks, fake news, whistle blowing, the line between confidentiality and the public right to information is blurred.
The courts are increasing becoming the battle ground between these two forces.
Under Rule 12, disclosures may not be regarded as unethical under certain conditions.
The South Africa Medical Journal article alluded to what are matters of public interest.
“These matters include aspects of the private lives of public figures that are relevant to their public lives, people catapulted into the public eye, and matters that are in the public domain such as politics, governance, administration of justice.”
A recent example was in the case of Manto TshabalaMsimang, the former minister of health, whose disclosure of allegations of alcohol abuse and treatment.
In the case, TshabalaMsimang and Another vs Makhanya and Others, some of the findings were: The acquisition of private facts through a wrongful act of intrusion and subsequent disclosure constituted an infringement of the right to privacy. But justifiable in the public interest. In the appropriate circumstances the public had the right to information about public figures even where it had been unlawfully obtained (Section 16 – Freedom of the Press).
Thus various media organisations have labelled the withdrawal of the book on Mandela as censorship.
The various arguments put forward goes to the special place Mandela occupied in the psyche of the people of South Africa and the world versus the wishes of the Mandela family.
It’s argued that the public right to information and knowledge of Madiba’s final thoughts, wishes, discomfort, anguish and resilience is only fitting to be made available.
This would give a total picture of a human spirit that inspired generations.
Media speculation on the haste to withdraw the book only came from a section of the large Mandela family.
The schisms and manoeuvring in the family has been eluded to in the public domain.
A couple of questions then arise: who does Mandela belong to? The family, the nation, the world? With who does the exclusivity of his life story belong to?
Can one separate the story of the life and times of a great soul from the manner of his last days?
Mandela’s story needs to be told in full, truthfully.
Anything else will be an affront to what he himself believed in – openness and truth.
To quote Ramlakan: “The story of Madiba’s last years is actually in a sense more impressive than when he was a fit human being because the strength and determination, the unconquerable fortitude, the approach he had to his mortality was fascinating. It was a gripping story, it was one miracle after another.”
I personally hope the book will be re-released, so millions will know of what Ramlakan meant in the above quote.
To end, this quote by Madiba is relevant: “Do not judge me by my successes, judge me by how many times I fell down and got up again.”