Health Ombud reviews complaint against Groote Schuur Hospital and WC Health Department

Here is the shortened, edited version of the letter I wrote to the national health ombud Office of Health Standards Compliance (OHSC) on 4 February 2019 motivating why they should take over the investigation of my mother's case (see elsewhere in this blog). The complete letter can be found here.

I wrote to them because the Health Professions Council of South Africa has not contacted me about their investigation into accused doctors more than a year after I laid complaints and after saying they would by December 2018 (see here).  

The OHSC's mission and mandate is "ensuring quality and safety in healthcare" and "investigating complaints relating to the national health system".  My late request for them to review the case and particularly Groote Schuur Hospital's and Western Cape Health Department's conduct and role comes after I copied them my last email to HPCSA on January 15 requesting an update to which the HPCSA still hasn't responded.

But I'm not hopeful.  The OHSC's Stella Harzenberg informed me during a phone call on February 1 they are limited in what they can do, this despite having jurisdiction over the national health system. A curious situation.  I'll post their response when I receive it.

To: Office of Health Standards Compliance

Attention: Ms Stella Hartzenberg

4 February 2019

INQUIRY: GROOTE SCHUUR HOSPITAL & WESTERN CAPE HEALTH DEPARTMENT

I confirm our phone conversation on Friday February 1.  Thank you for taking time to explain what you can and cannot do. 

As I said, copying you my emails to the Health Professions Council of South Africa (HPCSA), which I’ve not heard from despite their promises to contact me in December 2018, was a long shot.  We would appreciate it if you can help resolve questions about my mother’s, Helen Johnson, care and death on 7 July 2017 at Groote Schuur Hospital that still eludes us. 

Reasons for approaching OHSC

Like LifeEsidimeni, this case illustrates the lack of accountability of healthcare providers, dysfunction of the patient complaints process and dysfunction and apathy of the investigative and regulatory organisation like HPCSA, National Prosecutions Authority (NPA) and police.  We have no faith in them, let alone the deceitful culpable parties, the hospital and Western Cape Government, its politicians, administrators and doctors named herein who deliberately and with impunity violated the health laws and are allowed to get away with it.

With respect, I never had much hope in your office either and your cautionary advice about what you can and cannot do does not give me confidence.

However, please don’t speculate about my mother’s care and cause of death [see below] or make a decision without reading all the documents including medical and post-mortem reports, some of which you must request from Cape Town’s Director of Public Prosecutions, Western Cape Forensic Pathology Services and Western Cape Health Department (WCHD). The case numbers are given in this letter. I’m attaching a compilation of my verbatim emails with the parties and certain documents.

According to pathologist Dr Gavin Kirk (12/07/2017), my mother died of “ischaemic heart disease, chronic obstructive lung disease and anaemia, possibly complicated by a fracture of the neck of the right femur”, after the life supporting breathing tube was removed at 10:35pm on 7/07/2017. Until then, she was unconscious, seriously ill but stable and “improving”, according to the senior attending doctor, Mohammed Mayet, to whom my sister and I spoke that evening between and 7 and 8.30pm.

Kirk said in a follow-up email on 4/08/2017 responding to my extensive list of questions (apparently, the hospital’s Prof. Andrew Nicol and Dr Bhavna Patel didn’t ask him similar – see below) that she died of breathing difficulties which induced heart failure after the tube was removed, and although it’s hard to say, likely in pain.  It was unlikely complications of the fall (she fell at home at 7.00am on 6/07/2017 and admitted at 11:30am) – internal bleeding – contributed to her death as little sign of bleeding around the fracture was observed during the post-mortem.

So your explanation on the telephone of a pulmonary embolism that caused her lung to collapse is discounted [without the facts of the case and the first time we had spoken, Hartzenberg made this speculative medical conclusion]. (Before the post-mortem I asked Kirk inter alia to look for anything that might have contributed to the lung collapsing including an outside agent like a carelessly applied intubation tube which we suspected. Our request and statements are in the forensic chain statements.)  Anaemia was diagnosed and she received treatment for it – two blood packs – but inexplicably it was discontinued midday on July 7.  Again as with other matters, the hospital refused to give an explanation for that and the collapsed lung.

In fact, except saying she was old, had chronic heart and lung disease and the alleged impact of the fall, neither Mayet, Trauma Centre head Prof. Andrew Nicol, hospital CEO Bhavna Patel and head of the WCHD Beth Engelbrecht gave any information about the nature of her medical condition, except vaguely and briefly on the morning of July 7, why they provided or withheld treatment, the risks and benefits and alternatives including removing the breathing tube and the exact circumstances of her death. 

They also refused to explain why they didn’t contact us and obtain our informed consent.  All these are mandatory requirements of the National Health Act. We were contacted an hour and half after she died and had been unaware of her (worsening) condition from about midday. Note doctors told us that morning and rudely that evening not to make a nuisance of ourselves in the ward despite visitors being allowed within reason at any time of the day or night (normal visiting rules don’t apply in the Trauma and ER).

After initially agreeing to do so, they – Nicol, partly Patel, Engelbrecht and finally Zille; I went up the chain of command – refused to investigate. Their actions violated the National Health Act including the right of healthcare users to lay complaints and have it investigated (chapter 2, section 18).

You asked to whom and when we complained. Note I am the family’s representative and acting on their behalf. Here is the chronology. All communication was by email with occasional phone calls. See attached compilation of emails.

Chronology of complaints

 [For the complete chronology see here.]

 Summary of Chronology: 2017 - 2019

Date (of complaint)	Person/organisation	Action/Status
6/07/2017	Mrs Helen Joyce Johnson	Groote Schuur Hospital Trauma Centre Admitted: 11:30
7/07/2017	Groote Schuur Hospital. Helen Johnson deceased	Trauma Centre. Time of death: 22:35
8/07/2017	Salt River Mortuary. Body transferred	Post-mortem 12/07/2017. Preliminary findings ex Dr Gavin Kirk same day
9/07/2017	Prof. Andrew Nicol (UCT/GSH)	No action/refused to issue report
10/07/2017	Woodstock Police Station. CAS X/7/2017. Automatic inquest docket	No action. Transferred to [another station].
3/08/2017	Dr Bhavna Patel (GSH)	No investigation/one-page letter. Closed
6/08/2017	Dr Beth Engelbrecht (WCHD)	No investigation. Cancelled
25/08/2017	Police Station. CAS X/07/2017.  Inquest docket from Woodstock	Very limited investigation. Docket transferred to Wynberg prosecutor, then back to DPP/Cape Town. Status unknown, presumed dismissed/closed
5/09/2017	Police Station. No Criminal charges. No case number	No criminal investigation. Docket transferred to DPP. Declined to prosecute. Closed
20/09/2017	Health MEC Nomafrench Mbombo (WC Government)	No response at all. No action. Closed.
4/10 &  6/11/2017	HPCSA. Professional conduct complaints	Pending. Response by December 2018 lapsed. Dormant or closed
16/11/2017	Premier Helen Zille (WC Government)	Transferred to Jan Gerber. No investigation. Closed
23/11/2017	Adv. Jan Gerber	Superficial enquiries. No investigation. Closed
24/04/2018	Woodstock Police Station. CAS X/4/2018. Criminal charges	Limited investigation. Status unknown, presumed dismissed/closed
15/01/2019	OHSC	Pending. Advised likely no investigation

In addition to these details, view my related blog posts here, which is part of my testimony. I shall post this report in my blog after a short delay for you to review the documents and report what, if anything, you can do. Your decision shall become part of the record.

As can be seen in the table below, except for Forensic Pathology Services (Salt River Mortuary), which was very good despite at the time there been a worker strike, this list displays a litany of “no action”, “no or limited investigation”, “cancelled”, “case closed”, “declined”, “dismissed” and so on, all too familiar of the country’s state agencies and the failure of service and in breach of the civil contract citizens have with the state. Such failures and corruption are tacitly condoned but the same officials – the corrupt and compromised – ask and expect people to be good citizens, the essence of new National Director of Public Prosecutions Adv. Shamila Batohi’s statement on Friday February 1.

Among all these individuals and agencies there was not even a minor attempt, never mind serious one, to determine why my mother’s life support was removed without the family’s knowledge and consent in violation of the health laws and as a result, her life cut short. I’m aware that particularly among elderly patients it’s important to remove intubation as soon as possible because they might never breathe without it.  But we were never contacted and reasons given despite Dr Marcelle Crowther, the anaesthetist registrar on call that night, writing in my mom’s medical file the family had to be informed. 

If fact, staff did not inform my sister, brother, niece and I when we were at my mother’s bedside between 7 and 8.30pm that night. Instead, he was rude, shouted at and told us to leave.  So we have no way of knowing if my mother might have recovered had the tube remained for an extra few hours, a question Mayet after her death evaded, pointing the finger of blame at junior doctors (he was the senior, his LinkedIn profile stating he’s a “consultant” and “trauma surgeon”).

 

This indicates that medically assisted euthanasia has become unofficial policy in South Africa’s public hospitals. Ironically, the DPP is prosecuting Prof. Sean Davison, founder and director of Dignity SA, for allegedly assisting in the suicide of quadriplegic, Dr Anrich Burger in 2013.

Jurisdiction of OHSC

 During your phone call, you stated the OHSC is not allowed to investigate cases other agencies have or are already doing.  That may be a problem and I suspect the reason you shall use for declining this one. 

But without pre-empting your decision which you will take upon careful review of all available information, I shall motivate why you ought to take the case without necessarily duplicating work already done. 

The reason is that the organisations where I lodged a complaint – Groote Schuur Hospital, Western Cape Health Department, police with criminal complaints and HPCSA – either did not conduct investigations or never started (hospital and WCHD) or whose mandate is only to look at specific and narrow matters, e.g. inquest investigation for cause of death (police, DPP and Inquest Court) and HPCSA for professional conduct of individual members.

Furthermore, our criminal and professional conduct charges relate to the accused as individuals in their personal capacity, not to their employer, an organisation like the WCHD.  Therefore, in the criminal and HPCSA processes, they – hospital and WCHD – and their policies, e.g. removing life support when patients are not brain dead and they have no express permission to do so, cannot be charged and prosecuted, and if found to have violated health and other laws and regulations, found culpable and sanctions and remedies imposed. I’ve not heard of entity being prosecuted in South African law, least of all a state entity.

You mentioned financial compensation. That is not our motivation in pursuing this but justice for my mother and family. [Neither I nor family raised this with any party including OHSC and we have not considered it. However, for her to mention it of her own accord indicates it's a consideration for regulators and particularly Western Cape Health Department in this and similar matters. Note South Africa's public health system faces large medical negligence legal claims and is in crisis due to "negligence, corruption and mismanagement".  But rather than getting to the bottom of it, health minister Aaron Motsoaledi delusionally believes it's due to fraud.]

Inquests: According to the Inquests Act 58 of 1959, an inquest may be instituted at the discretion of the prosecutor to establish the cause of death when there is suspected unnatural causes. My mother’s death was formally ruled “unnatural causes” because she fell at home. That was not the cause of her death, though, which was precipitated by her existing medical condition and weakened state after she fell, and diagnosed but untreated anaemia. 

The single significant contributory factor was an outside agent – the doctor prematurely removing – for now, we’ll leave why he did so but that must be considered at a hearing – the breathing tube that according to the pathologist, caused “breathing difficulties” and the fatal cardiac event.

However, the DPP declined to prosecute our criminal charges, ergo, the cause of death was not unnatural and no inquest is required.  (Note he referred the case to an inquest in April 2018 but refused to explain the contradiction, no doubt because he had no rational explanation.  This must have being a reason why Wynberg’s prosecutor declined the case for “problems” and sent it back.  I submit political considerations are among the reasons he declined to prosecute.)

That leaves the Western Cape Health Department, the first and perhaps only one in mind when you asked to whom I complained. Theoretically, the Independent Health Complaints Committee is supposed to perform the function of investigating complaints of poor healthcare in the province’s public health service. (Incidentally, it’s not independent as it exists entirely at the whim of the head of department who is the only one mandated by its founding provincial act to refer complaints to it. As such, it’s her tame poodle and has little credibility.)

When the then health MEC Theuns Botha first proposed the IHCC, I wrote to him and a letter to the Cape Argus stating the problems I mention here – primarily its lack of independence – it cannot independently decide for itself which complaints to adjudicate as the OHSC and all ombudsmen do. His personal assistant phoned boasting it was the only such (provincial) body in the country but failed to refute my questions. The original bill was withdrawn due to legal technicalities and finally passed in 2014 to fulsome, self-congratulatory fanfare from Zille’s government.  I would like to see the IHCC Act challenged because it’s inconsistent with the National Health Act.

But the IHCC’s and its operations are opaque and under the radar.  And complaints about poor patient care continue, e.g. here, here and here. In its newsletter on 28/06/2018 the Treatment Action Campaign (TAC) said “The Western Cape health system is failing the people who rely on it”. However, Zille and the DA government insist the province’s public health system is very good with an alleged enviable record (the South African Health Review 2016 places it third last with a user satisfaction rating of 53% compared to a national average of 58%).

If the healthcare system and IHCC is working as they should, why is there so much dissatisfaction among users? Surely, all of them cannot be mistaken about their experience? But as I wrote in my blog on 11/12/2017, the IHCC is dysfunctional as proven by Engelbrecht’s claim it had logistical, i.e. organisational and resource, problems which she spuriously gave for not investigating our complaint.

Therefore, since the WCHD/government/premier/IHCC refused to and did not investigate our complaint (Engelbrecht suggested the public protector, SAHRC and presumably OHSC but the first two are not competent to review medical matters), it leaves only you to do so in the absence of action or investigation from other agencies and the fact criminal and professional conduct complaints concern people in their personal capacities, not systemic organisational failures, e.g. Life Esidimeni.  Naturally, by investigating the organisation, their implicated employees’ conduct shall fall under the spotlight too.

The OHSC’s mission is “ensuring quality and safety in healthcare” and “investigating complaints relating to the national health system”, i.e. ensuring the intent and provisions of the National Health Act are adhered to in its entirety.  The accused mentioned herein believe they have the personal choice whether or not to abide by the letter and spirit of the Act and other health laws, e.g. Health Professions Act’s Ethical Rules and Conduct for Practitioners especially section 27A, main responsibilities of health practitioners.  They – Nicol, Patel, Engelbrecht, Zille (Mbombo was silent, a cipher during it all) et al – were blatant about it too. 

While one of the doctor's conduct was abusive, arrogant and insulting, I don’t know if he and the other doctors are simply ignorant of the laws and health guidelines. They shouldn’t be, but it happens.  But that doesn’t excuse Nicol et al who as senior doctors particularly are mentors who ought to guide trainees and juniors in best medical and ethical practice.  Unfortunately, ethics and morality are not valued traits in this country.

And displaying a worrying lack of knowledge and understanding of medical law that I experienced in a previous [professional conduct to HPCSA and criminal] complaint in 2001 and 2002 (Christopher Hobbs), the DPP stated in a letter to me that it’s Engelbrecht’s prerogative to ignore health laws (sic). This attitude by regulators, and arguably the most important one, NPA, of turning a blind eye to illegality is why the public have no confidence in them and why I shall not deal with them again.

I urge you not to take a technical, legalistic interpretation of your mandate.  Had that happened you might not have accepted Life Esidimeni, which I accept you had no choice about due to its social, medical and political magnitude.  I’m not saying my mother’s case is anywhere near that but we also experienced lies, obfuscation, obstruction and the facilitation of criminal conduct from individuals and their organisations we accused in various complaints and this report.

I experienced the same in 2001 and 2002 from much the same people in the Hobbs case (see here). They too were allowed to get away with it because the police, HPCSA and DPP failed to do their jobs due to indifference, and as in this case, likely political considerations and interference.

It has been difficult, and while I have no expectation or false hope you will take the case, the least I can do is argue and motivate why you should. Theoretically, nothing prevents you from investigation the institutional aspect – Groote Schuur’s and WCHD’s failures, excesses and abuses – which the others didn’t do because it fell outside their scope and due to political reasons, and take the product of their partially complete and incomplete investigations and build on it.  If you and they can’t or won’t, who will? It indicates a flaw in the national patient complaints review process.

I'm attaching the email thread and Engelbrecht’s letter dated 19/09/2017. 

Thomas Johnson

[End]

Minor edits, updates and clarifying annotations added.