Esidimeni tragedy was a failure of the duty of care

Qedani Mahlangu
Qedani Mahlangu

Celebrated 18th-century German philosopher Immanuel Kant posited that the supreme principle of morality is an innate human code that we must always follow, despite any natural desires or inclinations we might have to the contrary.

Some former Gauteng health department officials, including their erstwhile political head, nongovernmental organisations (NGOs) and private business entities have been found to have no desire or proclivity to subject their consciences to the supreme moral code.

Let me explain.

The demands of our modern, fast-paced and constantly changing world have altered the nature of our society, including how we organise ourselves and interact with one another.

Whereas in the past familial responsibilities, such as baby-sitting, care of the infirm and the elderly, could easily be shared among family members and neighbours, it has become increasingly necessary, and common practice, that professionals be entrusted with these demanding tasks.

It is for this reason that mental health patients were confined to mental health specialist institutions Life Esidimeni for their wellbeing and care. Sadly, tragic events ensued in a botched patient migration process, which led to an arbitration process chaired by retired Deputy Chief Justice Dikgang Moseneke, who released his findings this week.

Moseneke’s report exposes the department’s abdication of its responsibilities towards citizens, particularly users of its health facilities.

The public service dictum of Batho Pele, which enjoins public servants to conduct themselves with integrity and diligence, was found by Moseneke to have been “trampled upon”.

Lest we forget, former president Thabo Mbeki once had choice words for delinquent bureaucrats when he admonished them thus: “We must be impatient with those … bureaucrats who think they have a right to ignore the vision of Batho Pele …”

Moseneke’s report paints a picture of a systematic orgy of immoral and unlawful conduct by the department’s bureaucrats.

But for the public uproar following the tragic loss of many lives, and the dogged public interest litigation, this repugnant conduct would’ve gone unnoticed. The culprits might not have been held to account for their appalling conduct.

Although meticulous, ground-breaking and well received, Moseneke’s report is unlikely to change bureaucrats’ attitudes towards public service, nor does it expressly seek to do so.

Pervasive ethical misconduct 

What the report in effect does, though, is prise open the corrosive effect of pervasive ethical misconduct within government, on the one hand, and the propensity of big business, including venal NGOs, to aid delinquent officials to upend the basic tenets of the Batho Pele motto, on the other.

Former Gauteng MEC for health Qedani Mahlangu appears to have initially been driven by altruistic intentions when seeking to terminate Life Esidimeni’s evergreen contract. Mahlangu apparently sought to reintegrate mental health patients into society, an act espoused by the UN.

Notwithstanding, it is evident that Mahlangu and her officials flouted the universal laws of ethical behaviour in at least three crucial elements.

First, Mahlangu and her team failed to follow proper supply chain management prescripts when seeking to terminate Life Esidimeni’s contract. Evergreen contracts are inherently antithetic to the advancing black economic empowerment project, particularly in the context of enabling black enterprise development.

Second, while it is generally accepted that there is nothing intrinsically wrong with reintegrating mental health patients into society, or migrating them to other capable institutions, proper clinical protocols were found not to have been adhered to in this instance.

Third, when first requested to account by civil society organisation Section 27, Mahlangu sought to obfuscate her way out of the fracas. Mahlangu compounded her problems by further telling a litany of outright untruths through her testimony which was contradicted by Gauteng finance MEC Barbara Creecy, whose testimony Moseneke found credible.

As it transpired, the alacrity and zeal with which Mahlangu and her team sought to achieve their objectives, not only placed them at risk of acting irrationally but, critically, also imperilled the lives of vulnerable mental health patients.

Evidently, Mahlangu and her team failed to observe Kant’s theory on ethics, whose command imperative is to always do what is right, unconditionally.

As the political head of the department, Mahlangu had, as Kant implores, a “perfect duty to refrain from” effecting arbitrary supplier changes, particularly when this invited her subordinates to employ unlawful methods that included fraud and coercion.

Perhaps, a glaring omission, dare I suggest it to be remiss of the arbitration process, lies in Moseneke’s ostensible exculpation of Life Esidimeni from this monumental tragedy. Without suggesting any guilt on the hospital group, its centrality and complicity, including legal culpability, in this tragedy is not inconsequential nor can it be wished away.

There is reasonable suspicion that, faced with real prospects of losing a profitable contract, resentment could’ve precipitated irrational conduct on the part of Life Esidimeni. At one extreme lie accusations of criminal negligence, while on the other extreme lie accusations of probable commercial sabotage on the part of Life Esidimeni. The hospital had a moral and legal duty to stop the mass migration under then prevailing conditions.

First, there must have existed reasonable apprehension, if not tangible evidence, on the part of Life Esidimeni that bureaucrats didn’t follow due supply chain management processes. This would include that intended beneficiaries of the sourcing initiative, namely, mostly newly formed NGOs, didn’t possess requisite qualifications or capabilities to undertake what is patently a specialist assignment.

On this basis alone, Life Esidimeni should have, but intriguingly didn’t, approached the courts to interdict this unlawful process.

Second, as a good corporate citizen, Life Esidimeni could have also interdicted the mass migration of patients when it became evident that these patients were being moved without accompanying clinical records. An otherwise botched migration could’ve thus been averted.

Third, Life Esidimeni’s alleged withholding of patients’ records, fully cognisant of the likely consequences that awaited patients upon their migration, was, at best, reckless.

Why Life Esidimeni was not called to testify boggles the mind.

The conduct of the intended beneficiary NGOs is no less repugnant.

Apparent pursuit of meaningful black economic participation doesn’t absolve black businesses and NGOs from the imperative for ethical conduct. It appears that greed primarily motivated their and Life Esidimeni’s callous, criminal and unethical conduct.

As for the sanctimoniousness in our midst, it is apparent that the majority of family members of the affected mental patients didn’t abdicate their moral duty of care for their relatives. How else would they have anticipated that professionals, including state functionaries unto whom they had entrusted the welfare of their loved ones, would toss Batho Pele with such devastation?

Mahlangu and her senior team acknowledged the pain endured by mental healthcare users and apologised for this. Surprisingly, and despite their obvious positions of authority and power, they each refused to take full responsibility for their administrative culpabilities.

Gauteng Premier David Makhura, contrite throughout the arbitration process, offers a glimmer of hope that such monumental lapses in ethical conduct within his government, wouldn’t be countenanced.

Perhaps history will record the Life Esidimeni tragedy as a euphemism for what happens when rationality, accountability, responsibility and ethics neatly disappear, in the probable human cosmos of ethical failure.

Let’s all not only pray, but also ensure, that such an avoidable tragedy never pays us further courtesy visits.

- Khaas is chairperson of Corporate SA and trustee of the Institute of Public Interest NPO

Follow him on Twitter @tebogokhaas

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