The following posts relate to my mother's case (see here) and were previously posted on my general blog, Letters from the Cape. I'm now including them under under the subject matter of this blog, Groote Schuur Negligence. (Long read.)
Adv. Rodney de Kock. My mom died in July 2017. Why no arrests?
To: Adv. Rodney de Kock, Director of Public Prosecutions, Cape Town
Copy: National Director of Public Prosecutions Adv. Shaun Abrahams
Dear Mr De Kock
Refer to my letter of 19 March 2018.
My mom died at Groote Schuur Hospital on 7 July 2017 of "unnatural causes". You have had the docket including post-mortem report and medical negligence opinion since January 2018.
Last year, after the South African police did nothing on the case for four months, I literally did their work for them and handed a sworn statement to you and expedited the collection of the post-mortem reports so they could deliver them to you.
You have not even taken statements from any of the accused from the hospital and Western Cape Health Department - the names I gave you including a foreign doctor who might be a flight risk and/or already left the country.
But your office and police freely gave Premier Helen Zille's and Western Cape Government's legal representative confidential information about an ongoing criminal investigation that until then had not been given me. The information gave them insight into the case and defence they as respondents might need in possible future criminal proceedings. It also led to Mrs Zille cancelling the internal investigation into my mother's care and complaints about hospital and health department staffs she had promised.
This is the second criminal complaint against the Western Cape Health Department where I was the complainant – the first was the Christopher Hobbs case – that you and police put their interests above the victim’s.
Also, it now appears you may not be asking the right questions as suggested in my statement, emails, health legislation and guidelines and case law, and not au fait with medical law as you should be. It appears you are reluctant or disinterested to proceed.
We are unhappy with your and the police’s lacklustre management of the case. There’s no excuse or explanation for the delay in making a decision and not informing us of it.
Thomas Johnson
(With a nod to Three Billboards outside Ebbing, Missouri.)
Original post date 23/03/2018.
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Culpable homicide bid fails: Perhaps I should've laid a charge of racism
This week Cape Town Director of Public Prosecutions (DPP), almost nine months to the day after my mother died on 7 July 2017, declined to prosecute doctors at Groote Schuur Hospital for culpable homicide, assault and violation of health laws. Without following medical and health legislative protocols or contacting the family for our consent, doctors removed her life-saving breathing tube, which led to respiratory and heart failure. She also died of heart complications of diagnosed but discontinued treatment of anaemia.
Medical guidelines and health legislation regarding the care of patients and withholding and withdrawing treatment are strict, and the law about the lack of informed consent, which I reminded the prosecutor must be considered, is very clear.
In a letter this week the DPP told me that while he declines to prosecute, he has referred the matter as an inquest. An inquest under the Inquests Act, 1959 is a public inquiry and is conducted for deaths by "unnatural causes"; no-one is accused, there is no defendant and it's a no-fault hearing. Inquests may but are not always held for unnatural deaths. It's up to the prosecutor, depending on information contained in the docket, most importantly, the post-mortem report.
Because my mother's death was originally declared an "unnatural death" for a reason unrelated to her treatment at hospital (she fell at home and broke her femur, an accident), only later we realised the manner of her death was suspicious.
On the surface there's no problem with an inquest - it's about determining the truth. But in this case the DPP has already found there was no medical negligence and no crime had been committed. I have a problem with this because they ignored the law regarding her treatment, especially the lack of informed consent. The defining case establishing informed consent in South Africa medical law was Castell v De Greef 1994, which found that treating a patient without informed consent is tantamount to assault. It was upheld by later decisions. I therefore I believe there are grounds for criminal charges.
My mother's life-supporting breathing tube was removed without our consent and led to respiratory and heart failure and death. The doctors made serial and systematic blunders the day she died, particularly, when they decided for reasons we still don't understand to remove the tube. Apart from not contacting and keeping us informed from midday to the time of death that night, they did not consult with specialists, review the risks and options of treatment, especially, removing and withholding life-support as medical law and health professions guidelines require.
Curiously, I believe neither the police nor DPP obtained statements from the doctors, hospital and health department in what was effectively a criminal investigation, criminal "proceedings" the DPP in December denied was taking place despite me, my family, Premier Helen Zille and health department believed was undertaken.
So, I believe the DPP made a political rather than legal decision. There is precedent. In 2003 they refused to prosecute the hospital's Christopher Hobbs, until 2002 a visiting British fellow, for practicing medicine without South African registration (fraud) and after he committed medical negligence - he misdiagnosed and mistreated a routine injury resulting in infection destroying my right hand joint (see Groote Schuur Hospital Negligence). It took me two years to show their "mistake". According to an aggressive and unapologetic DPP advocate, it would have been "unfair" to prosecute Hobbs, who had returned to the UK without a blemish on his record, and extradition didn't apply to the case.
The public's perception and experience of the National Prosecuting Authority and police is that generally they are mediocre, inept and susceptible to political interference, as the long-delayed Zuma fraud prosecution proves. Of course, there are exceptions among them.
But arguably, the senior prosecutor who handled our case and freely gave information about an ongoing investigation, which the DPP denies, to the respondents Western Cape Government's and Premier Zille's advocate (she instructed him to intervene in the case) on request lacks an understanding of medical law, and too might be in awe of and susceptible to political influence.
On April 12 I emailed Wynberg Magistrate Court's senior public prosecutor and inquest magistrate informing them I shall not be involved with the inquest (my family will have to make their own decision). On principle I cannot participate in a sham hearing when the "fix" is in, i.e., the outcome is as the DPP already decided, and the respondents to the complaint, the WC government, have a conduit into the prosecutor's office.
The Health Professions Council of South Africa has registered my complaints against the doctors and hospital and health department administrators.
Postscript: I subsequently laid crimen injuria charges with the police against one of the doctors and interference in an investigation on 24/04/2018 because the DPP dismissed the original charges for no reasons given. It too was dismissed.
Original post date 12/04/2018, updated 17/01/2019.
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Groote Schuur doctor accused of culpable homicide still working
Imagine my surprise when I saw Daily Maverick’s feature on Wednesday July 4 about Groote Schuur Hospital’s Trauma Centre. There in the last photo is one of the doctors, Mikhail Botha, who contributed to my mother's death on 7 July 2017. (He allegedly removed her life support without contacting the family after which she died of resultant respiratory and heart failure.) He’s the one wearing green scrubs and the hipster goatee.
Our criminal (off, on, off, on, off again) and professional charges to the Health Professions Council of SA (HPCSA) about the incident are still open (but see here). He is a respondent to both.
Cape Town's Director of Public Prosecutions (DPP) messed the case badly and now apparently don't know what to do about it. Wynberg Magistrates Court’s senior state prosecutor rejected it as an inquest due to "jurisdictional problems".
Out of the blue, last month I heard from a police colonel, who was unaware of all the legal problems and machinations behind it, that Wynberg's senior prosecutor J Brandt had sent the docket back to the DPP around April 25 after receiving it a few weeks before.
I emailed Brandt and he confirmed they did send it back. This is extraordinary and unheard of. After they received the case (in April), he emphatically told me by email he "cannot overrule the DPP's decision or intervene [in that decision] and can only follow their instructions".
This gives some indication of the case's legal and political problems the DPP self-created.
I'm the complainant but both prosecutors’ offices, especially DPP, didn't let me know. Wynberg's prosecutor said I should contact the DPP for information. I did but they didn't reply.
I'm the complainant but both prosecutors’ offices, especially DPP, didn't let me know. Wynberg's prosecutor said I should contact the DPP for information. I did but they didn't reply.
On June 11 I laid a complaint against the DPP with the National Director of Public Prosecutions Shaun Abrahams[footnote 1] for incompetence, failing to investigate and review credible charges of assault, culpable homicide and violations of health laws, succumbing to political pressure from Premier Helen Zille, and a DPP senior state prosecutor volunteering case information to Zille’s government lawyers that until then I as complainant didn't know and had a hard time getting (and still do).
In November Zille instructed one of the Western Cape government's advocates, Jan Gerber, to nose around a then ongoing police and DPP "investigation" (I use the term loosely; see below).
Coincidentally, Zille is one of Daily Maverick’s opinionistas, arguably the most disingenuous and high and mighty of them, who writes "From the Inside" column that lectures DM's readers about governance, morality and ethics. (Disclosure: When DM still had a comments section, before they cowardly pulled it, I'd criticise her frequent defective opinions. She once responded, "Thomas, you always get personal and insulting". In one article when she boasted about health care at the province’s public hospitals, I mentioned two stories where patients had died under questionable circumstances. Cornered, she promised to investigate if I provided details. Comments are no longer found on DM's archived articles.)
The DPP admitted to me they had been in contact with Gerber and Zille's legal office. But denied they'd given a "document" from the docket, a distinction without difference because they discussed a case that was then still under "investigation", despite also confusingly stating "there are no criminal proceedings". Thus the DPP had no legal reason to inform third parties and Zille about anything, a contravention of case confidentiality and procedure.
The thing is, our criminal charges were never investigated as they ought to have been. The colonel told me our charges ought not to have been investigated as an inquest matter, which superficially it was, but as a criminal investigation. Even as a basic inquest investigation, it was never properly investigated. The criminal charges were never investigated because the detective officially declared in November, two months after I laid charges, there were "no criminal charges" (sic); she had done no work on it at all, which the DPP knew.
There were thus procedural investigative and legal flaws in the DPP's management of the case including asking the state pathologist Dr Gavin Kirk for a "medical negligence opinion" about a matter beyond his professional expertise and direct knowledge (whether the treating doctors were negligent, something he couldn't definitely know) and for failing to apply medical and case law to the matter.
And as I alleged to Abrahams in my complaint, coincidentally, it became more suspicious after Gerber's involvement when the DPP told me "there are no criminal proceedings", four months before they notified me on April 10 they had declined to prosecute (no reasons given). I realised then any pretence of a criminal investigation was make-believe for the family's benefit.
So the DPP tied a nice, neat bow around the docket: since there were no charges, there was no investigation, and with no investigation, there are no crimes to prosecute, particularly after the premier and government chats to them about, I don't know, old times. It's all innocent, you see?
And as I alleged to Abrahams in my complaint, coincidentally, it became more suspicious after Gerber's involvement when the DPP told me "there are no criminal proceedings", four months before they notified me on April 10 they had declined to prosecute (no reasons given). I realised then any pretence of a criminal investigation was make-believe for the family's benefit.
So the DPP tied a nice, neat bow around the docket: since there were no charges, there was no investigation, and with no investigation, there are no crimes to prosecute, particularly after the premier and government chats to them about, I don't know, old times. It's all innocent, you see?
In April I laid charges of interference in an ongoing investigation citing Zille's, Gerber's and DPP senior prosecutor Nadia Ajam's involvement. (Note this is proven. The DPP confirmed these parties had been in contact. At the time Gerber phoned me and Zille's head of staff confirmed it. What's at issue is what constitutes interference or irregular contact.)
Although the matter is now with the senior state prosecutor, I know it’s a long shot – the DPP won’t investigate and prosecute itself and its political masters. The NPA is compromised by political interference that even the New York Times mentioned in a recent article, “In recent years, the National Prosecuting Authority, which has been compromised by intense meddling by ANC politicians, has increasingly been used for political ends”.
This is my point too: In South Africa it seems easier to be criminally charged for racism but not assault, culpable homicide and violations of the law.
Although the matter is now with the senior state prosecutor, I know it’s a long shot – the DPP won’t investigate and prosecute itself and its political masters. The NPA is compromised by political interference that even the New York Times mentioned in a recent article, “In recent years, the National Prosecuting Authority, which has been compromised by intense meddling by ANC politicians, has increasingly been used for political ends”.
This is my point too: In South Africa it seems easier to be criminally charged for racism but not assault, culpable homicide and violations of the law.
Andrew Nicol, director of the Trauma Unit, mentioned in DM’s feature is not the person his public profile purports. In July last year, after I wrote to him about my mom – that was before we found her death suspicious – he replied he was concerned about our experience and would investigate. But he absolutely refused to provide a written report and excused himself or was replaced after I demanded it of his bosses. Strange, isn't it?
His immediate superior, hospital CEO Bhavna Patel, emailed me a one-page "letter" – her version of a forensic report into my mother's care and death – after only one working day, not counting the weekend, apparently taking over Nicol's month-long investigation (it's hard to understand how she managed a complete, complex forensic investigation in only one working day; it takes Forensic Pathology Services up to four months to produce reports, and that's with a complement of staff for each case) that said nothing beyond the itinerary of my mom's stay in the Trauma Unit. Her report was worthless, and I told them so.
I reported Nicol and Patel to the HPCSA in November. But after registering the complaints, it too refuses to say what, if any, progress is being made despite telling me the preliminary stage is six months after the complaint is filed.
Of course, these are allegations and must be investigated although the evidence makes them conclusive.
But there must be something fishy about the entire case if DPP, Groote Schuur, Zille and HPCSA are playing silly buggers. Cape Town's inquest magistrate could tell me during a phone call (I called her after the Wynberg prosecutor wouldn't touch it, trying to find out about its status) she "heard something about the case" when I mentioned it's a mess. Why would she hear about a case – perhaps judicial gossip in the corridors and among prosecutors – that hasn't yet, if ever, been assigned to her roll and she doesn't know the specifics of or even my family name? (I didn’t discuss the merits of the case but she informed me she couldn’t if it was to come before her.)
In the meantime the doctor is still working at Groote Schuur. I don't know if the other doctors implicated in my mother’s care and death, one an Indian national, Ahmed Al Sayari, are still around. Neither DPP, Nicol, hospital nor Western Cape government, including Zille who promised to investigate but changed her mind after instructing Gerber to contact the DPP, are concerned about my mother’s care and death, one year on Saturday July 7 at 10.30pm.
I've heard many stories of weird things going on at the hospital. I call them "doctors of death".
Footnote:
1. The NDPP replied on 11/06/2017 confirming my complaint will be addressed. They did not. But with Abrahams removed following the Constitutional Court decision that his appointment was unlawful, due to his and NPA's numerous problems and their overall disinterest, it will not be, ever.
2. A Woodstock detective came to see me on September 6. The Cape Town prosecutor had instructed him to obtain additional statements and one from my sister. This is the first time they had spoken to us about the case. This detective, Sgt Booi, was always unobtainable when I tried contacting him during July and August 2017 until I gave up. How they conduct their business is anyone's guess. He said it's for an inquest but couldn't say why one is needed. I don't know either. He also said Groote Schuur Hospital is a strange place, "people [plural] go in for check-ups, and they die". He should know as he deals exclusively with inquest-related unnatural causes deaths at Groote Schuur and is the "busiest detective at Woodstock" according to Cape Town's inquest magistrate.
3. The Health Professions Council emailed me they have received statements from the doctors against whom I laid complaints in November. Responding doctors have three months but it eventually took seven or eight. It has taken twice as long as it should have (see here for the latest).
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