The Commission again expresses it sincere commiseration with bereaved family and friends of the deceased persons in this tragedy.

The findings of the Health Ombudsman’s demonstrate egregious violations to basic human rights of vulnerable persons entrenched in our constitution. In recognition of the complaint it had referred to the Ombud, the Commission actively supported the investigation by the Ombud. After conducting an inspection at one of the NGO’s to which mental health care users had been transferred, the Commission determined that it would be appropriate to bring the matter to the attention of the Ombudsman.

Shortly thereafter, the Ombud began his probe into the reported deaths of patients. The Commission in the course of its own investigation of the matter lent support to the office of the Ombud, engaged with the Gauteng Department of Health and met with representatives of affected families and other stakeholders. The Commission’s investigation of the Esidimeni matter will now continue with a view to highlighting the human rights dimensions of the matter and to assist in the prevention of such a tragic recurrence in the future.

The SAHRC investigation in its present form relates to, violations of the right to life, access to healthcare, the right to dignity, the right to freedom and security of the person, the right to food and adequate nutrition, access to information and proper consultation, and cruel and inhumane treatment and the responsibilities of private business in respecting human rights. The Ombud, recommended that the Minister of Health should request the Commission to undertake a systematic and systemic review of human rights compliance and possible violations nationally related to Mental Health. Having noted developments around the interim interdict from the court in the Eastern Cape against the closure of a Frail Care Centre, and the recommendation of the Ombud, together with non-compliance with its 2009 Health Enquiry findings and recommendations, the Commission is assessing the way forward to give effect to the recommendations and its concerns.
 
The Commission found in its 2009 Public Inquiry into health, that, “decisions on policy development and implementation should envisage the exercise of a greater duty of care for the protection of poor people; particularly, the rights of vulnerable people, which includes elderly people and people with disabilities”. These findings are not inconsistent with the findings made in the Esidimeni probe where the report by the Health Ombud states:
“The decision was unwise and flawed, with inadequate planning and a ‘chaotic’ and ‘rushed or hurried’ implementation process. The decision to terminate the contract precipitously contradicted the National Mental Health Policy Framework and Strategy; the cost rationale could not be justified above the rights of the mentally ill patients to dignity and the state’s constitutional obligation to accessible health care. This precipitous approach was not supported by available research experience or legislative prescripts. The project has brought ‘pain and anguish’ to many families, it has also brought national and international disrepute and embarrassment to South Africa, particularly its Health System."

Human rights violations
A recognition in the Ombudsman’s report of human rights violations will be taken into account by the Commission. In particular where the report indicates that some execution and implementation of the Gauteng Marathon Mental Health Project showed “a total disregard of the rights of the patients and their families.”

The Ombud’s report identifies the human rights, which may have been violated, as:
“…including but not limited to the Right to Human dignity; Right to life; Right to freedom and security of person; Right to privacy, Right to protection from an environment that is not harmful to their health or well-being, Right to access to quality health care services, sufficient food and water and Right to an administrative action that is lawful, reasonable and procedurally fair.”

The Ombudsman’s Report correctly recognises that rights are interrelated, linking the protection of the right to health as central to the protection of the right to life. The Ombud thus found that the evidence provided in this case indicates that a number of the NGOs and other healthcare facilities that accepted the transferred MHCUs did not have the capacity to provide the necessary healthy environment as well as adequate food and nutrition for the MHCUs. The right to adequate, nutritious food is recognised under South African and international human right law.

In view of the findings of the Health Ombud, the Commission reiterates its call for the exercise of a greater duty of care for the protection of the rights of vulnerable people.

Ends

Issued by the South African Human Rights Commission  

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