Little is known about the 37 people and the factors that led to their deaths. For example, of the patients transferred, all 37 were reported to have died over a four-month period and the cause of death is currently classified as unknown. Eight individuals have been linked to the NGO known as Precious Angels, located in Atteridgeville. Precious Angels only registered as an NGO in June of 2016. Interestingly, this date falls within the time frame of the four-month period when the eight people died. 

Multiple investigations have been launched into the death of the 37 psychiatric patients. Health Minister Aaron Motsoaledi has asked the Health Ombudsman to investigate the matter along with the provincial department. In response, Health MEC Qedani Mahlangu stated to the SABC, “It is important to indicate that no one can die simply because they are moved. That is impossible under any circumstances … Some of these patients may have had underlying causes”.  DA Gauteng shadow Health MEC, Jack Bloom, has blamed Mahlangu for the death of the 37 patients. He stated that full responsibility should be taken by the Gauteng Department of Health, more specifically MEC Mahlangu. In addition, the South African Human Rights Commission (SAHRC) has formally engaged with the Health Ombudsman to ascertain the full facts on the matter. Furthermore, the SAHRC has asked for a formal response from the Gauteng Health Department, outlining the steps that were in place to ensure the safety and security of the 1 300 patients transferred from Life Esidimeni. 

Section 9(1) of the Constitution states that “everyone is equal before the law and has the right to equal protection and benefit of the law”. Section 9(2) and 9(3) adds that equality includes “the full and equal enjoyment of all rights and freedoms and that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including disability”. The deaths of the 37 psychiatric patients epitomise an infringement of basic rights guaranteed in the Constitution. More specifically, section 11 of the Constitution, right to life, and section 27(1), access to health care services and social security, have been violated in this ongoing matter. 

The World Health Organisation (WHO) acknowledges that mental health has been a long-neglected problem and is firmly rooted in the action of human rights. In theory, global attention has been brought to the mental health discourse. The WHO and United Nations (UN) have both developed frameworks to support and protect persons with disabilities, but in practice these policies have proven inadequate and fall short of their mandate. Moreover, South Africa has developed a legislative framework, outlined in the Mental Health Care Act, to regulate and ensure the “care, treatment, and rehabilitation of persons who are mentally ill”. The Act recognises that the Constitution prohibits unfair discrimination of people with mental or other disabilities, and sets out provisions to protect the rights of people with mental health issues. Section 6 of the Mental Health Care Act, states that “health establishments must provide any person requiring mental health care, treatment and rehabilitation services with the appropriate level of mental health care, treatment and rehabilitation services within its professional scope or practice”.  In addition, section 11 of the same Act acknowledges, “Users are protected from exploitation, abuse and any degrading treatment”. As such, the Department has fallen far short of its constitutional and legislative obligations and the WHO statement that mental health is often neglected, rings true in this instance.

In a country where poverty is rife, people are at greater risk of developing mental disorders based on the stressors of living within a more precarious environment. Dr Alban Burke writing in Evil, Law and the State, asserts South Africa’s deep-seated history of violence, institutional racism and inequality exacerbates the prevalence of mental health issues. As a result, a person with mental health issues may face challenges meeting their full capacity as a contributor to society and a participant in the labour market. It then becomes the responsibility of the government to provide support to this population, to ensure that they do not fall to the peripheries of society. As such, a transparent government and open society are crucial components to ensure that mental health patients enjoy their constitutional right to equality, dignity, and most importantly life.

To this end, the Department of Health developed the National Mental Health Policy Framework and Strategic Plan 2013-2020, to present what should be the government’s safety net to protect persons with mental health issues.  The plan is in line with the WHO recommendations regarding mental health services, with an emphasis on a multi-level approach to a mental health system. Moreover, the purpose of the policy is to “give guidance to provinces for mental health promotion, prevention of mental illness, treatment and rehabilitation”. Despite a comprehensive framework provided in the plan, the Department of Health has fallen short of its mission of “promotion, prevention, treatment and rehabilitation” of mental health patients, clearly highlighted by the death of the 37 psychiatric patients.

Not only are these deaths in violation of the Constitution, but they also violate South Africa’s commitment to international human rights law. This can be seen in the nation’s ratification of both the International Covenant on Economic‚ Social and Cultural Rights and the International Convention on the Rights of Persons with Disabilities. In response to these devastating incidents, the CFCR has lodged a complaint with the SAHRC to monitor the on-going matter. In accordance with section 184 of the Constitution, among the primary objectives of the SAHRC are “to promote respect for human rights and a culture of human rights” and to “monitor and assess the observance of human rights in the Republic”.  It is within the legislative mandate of the SAHRC to “take steps to secure appropriate redress where human rights have been violated” and, if it believes it to be appropriate, to refer this ongoing human-rights violation to the National Director of Public Prosecutions for further consideration.

According to national legislation and international guidelines, the ongoing situation amongst the transferred psychiatric patients demonstrates a clear violation of human rights. Arguably, if it can be shown that specific individuals were deliberately negligent and therefore caused the deaths of the patients, then such individuals would be liable for criminal prosecution. Persons with mental health issues fall amongst the most vulnerable in society. Thus, it is imperative that adequate services be allocated to this population to ensure safety and security. Although it takes a joint effort from both the government and civil society to protect this population, in situations where life is lost, accountability is necessary to ensure justice.   

By Kiah Murphy: Intern, Centre for Constitutional Rights

Photo credit: Freaktography via / CC BY-NC-ND