This is an update to my previous posts (most recent here) of the Health Professions Council of South Africa's (HPCSA) investigation into Groote Schuur Hospital (GSH) and Western Cape Health Department (WCHD) doctors who removed my late mother's life supporting breathing tube on 7 July 2017 that resulted in her death by respiratory and heart failure.
GSH's Trauma Centre doctors who removed the tube didn't inform us of her deteriorating condition nor sought our consent as is required by national health law. The hospital only called us after she died.
My mother was critically ill and couldn't breathe without it. She had been intubated that day, the doctors allegedly puncturing her lung in the process according to a nurse.
The previous evening she had been awake and lucid. The following morning, the day she died, she was breathing on her own, and unconscious from pain medication. Later that evening she was still unconscious, with a breathing tube having been inserted inserted without them telling us. Even so, her condition was serious but stable. In fact, the attending senior Dr Ahmed Al Sayari (see below), who was rude to my sister and me, told us she was "improving".
Their action to remove the tube without following strict medical protocols and without our knowledge and not in express accordance of our wishes amounted to the active termination of her life, similar to physician-assisted euthanasia.
The HPCSA's Guideline Booklet 7 Withholding and Withdrawing Treatment and other chapters gives the steps practitioners must follow for critical patients and those at the end of life. They are similar to international codes like the American Medical Association's Code of Medical Ethics Chapter 5: Caring for Patients at the End of Life.
The AMA defines euthanasia in Code 5.8 as "the administration of a lethal agent by another person to a patient for the purpose of relieving the patient’s intolerable and incurable suffering".
"Euthanasia is fundamentally incompatible with the physician’s role as healer, and would pose serious societal risks ... The physician who performs euthanasia assumes unique responsibility for the act of ending the patient’s life. Instead physicians must aggressively [emphasis added] respond to the needs of patients at the end of life. Physicians must (a) not abandon a patient once it is determined that a cure is impossible, (b) respect patient autonomy, (c) provide good communication and emotional support and (d) provide appropriate comfort care and adequate pain control."
(The AMA defines physician-assisted suicide in Code 5.7: "when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act". The code they must follow to obviate the "fundamentally incompatibility to their role as healer" is the same as for euthanasia.)
None of Groote Schuur's doctors except arguably Crowther applied these fundamental principles. (The hospital refused to say which doctors were responsible, leaving us to deduce who from the medical records including including Al Sayari). They were either ignorant of them, recklessly and negligently disregarded them or both.
The HPCA's inquiry committee's decision, noting my mother was "terminal", retroactively approved the doctors' non-existent to unsatisfactory communication including about end-of-life decisions, which after the fact they termed "adequate discussions". To them it's like, she was going to die anyway (note they said she was improving) so why bother.
The law and regulations about informed consent and patient rights are explicit and mandatory and doesn't mention or allow "adequate". Also, the committee didn't distinguish the different doctors' conduct who illegally made the end-of-life decision to remove the endotracheal tube with the family's knowledge and consent.
So contrary to the HPCSA's own code and country's laws, this purportedly is the new deemed standard for health practitioners and facilities in the country.
The committee decision is wrong in law, prejudicial to the public and biased toward practitioners' questionable conduct and "fundamentally incompatible to their role", and cannot be allowed to remain.
This de facto principle applied in practice even if not legally valid must be why GSH, WCHD, health MEC Nomafrench Mbombo and former premier Helen Zille refused to give us explanations and answers, why the doctors didn't inform us of her worsening condition – we only learned the extent of it the evening before she died – and obtain our consent for procedures, and critically, for removing the endotracheal tube. For elderly patients especially, there's a high risk they're unable to breath without it.
As a result of their refusal to investigate as required by law, in October 2017 I laid complaints with the HPCSA against the head of WCHD Dr Beth Engelbrecht after she pre-emptively exonerated hospital CEO Dr Bhavna Patel and implicated doctors without applying her mind to the facts of the matter. Also, after pressure from me, she referred the case to the province's Independent Health Complaints Committee but then suddenly almost two months later, dismissed the investigation for spurious unnamed "logistical problems".
In November I laid complaints against Trauma Centre head Prof. Andrew Nicol (his and Botha's photos can be seen in this Daily Maverick feature) and Patel for the same reason – promising to investigate and not doing so. (Patel took over the "investigation" from Nicol after he declined to provide a written report and in only one working day, not counting her day-to-day executive duties, conducted a desk-top review of my mother's medical record. She apparently didn't interview medical staff – orthopaedic, anaesthesiology, trauma and medicine professors, registrars, medical officers and nurses – who had attended my mother over the 36-hour period she was in hospital including those who had removed the tube, presumably Botha. We rejected her one-page letter as worthless spin and cover-up.)
Last, we laid complaints against Al Sayari, Crowther and Botha for their role in my mother's care and death. According to pathologist Dr Gavin Kirk, she died from respiratory and heart failure after the tube was removed. In other words, she suffocated that caused cardiac arrest. She likely suffered pain. She also had anaemia which contributed to heart failure for which treatment was discontinued the day she died. As with other things, the hospital refused to give an explanation.
The HPCSA dragged the investigation out including by giving the respondents far more time to respond than their own regulations allowed (regulations permit 40 days but they were allowed three months and more (failure to respond within that time is a disciplinary offense that I reminded the HPCSA of). Nicol failed to properly respond the first time and they gave him another chance this year, a year after the complaint was filed. They mostly didn't inform me of progress and apparently didn't read the additional information I sent or our complaint properly. In December the case officer left and it wasn't transferred to another, and there was a hiatus when it was apparently abandoned for a few months until in April I complained to the CEO/registrar Dr Raymond Billa (see here and here).
The HPCSA's Committee of Preliminary Inquiry doesn't sit every three or four months as it is schedule to. The first time our case was on the agenda was November 2018, but was adjourned. It didn't sit in March, and finally reviewed the case on 30-31 May. In a letter dated 27/06/2019 received June 28 case investigator Khomotso Maimela wrote:
"The Committee considered the matter and resolved to accept the Respondents explanation in terms of regulation 4(7) of the regulations relating to the conduct of inquiries, [sic] the Committee concluded that in the setting of a terminally ill patient there was adequate discussions with member [sic] of the family at different times."
They would contact the respondents Engelbrecht et al and are closing the file. If we are "aggrieved by the decision", we may appeal at the High Court may in terms of section 20 of the Health Professions Act.
I don't expect they shall comply with my request. (Postscript: Maimela replied on July 1 promising the documents "as soon as possible.)
Significantly, the committee reviewed and ruled on only one aspect of the complaint – doctors' communication with the family, which we strongly disagree was even adequate – but ignored medical negligence and the poor professional conduct of particularly "Mayet" who was rude and abusive to my sister and I, and Nicol, Engelbrcht and Patel (just about), the last three for refusing to investigate in terms of section 18 of the National Health Act and WCHD's procedures.
They exonerated the doctors and administrators implicated in my mother's care and death. They deem the laws and regulations superfluous to their needs and that of the profession.
Their failure to investigate all aspects of the complaints cannot be due to an oversight. If it is, it proves how incompetent they are and that they didn't read all the documents I submitted as the incoming investigator, Khomotso Maimela, indicated this year.
Rather, it shows their political and professional tendency, bias and reluctance to investigate practitioners, determination to seek ways to exonerate them and reckless disregard for the laws and standards of ethical and professional conduct they ought to uphold and defend as "advocates for the public".
The Health Professions Act's Ethical Rules of Conduct section 27A states inter alia a practitioner shall "respect patient confidentiality, privacy, choices and dignity, maintain the highest standards of personal conduct and integrity, provide adequate information about the patient's diagnosis, treatment options and alternatives and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others, maintain proper and effective communication with his or her patients, and obtain informed consent from a patient or, in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin".
However, since the committee did not rule on the other substantive matters – (a) to (c) in my response to them – the charges of medical negligence, personal conduct and integrity and terminating a patient's life are unresolved and shall continue to be a stain against the respondents' professional and personal integrity.
This is the second time the HPCSA dismissed my complaints regarding the hospital. In 2001 it declined because the case was "politically sensitive" among other reasons (Christopher Hobbs – see in this blog). Clearly, they are incompetent and reluctant to act against practitioners, and when they do, it gives them extraordinary latitude without consideration for and prejudice against complainants.
But when it serves political motives, prosecutes practitioners on superficial and vexatious charges like Banting diet guru Tim Noakes and Nelson Mandela's personal physician Vejay Ramlakan who wrote an unauthorised account of Mandela's last days.
In 2015 the minister of the health Aaron Motsoaledi called the HPCSA "dysfunctional" after a departmental investigation. But the council, an independent statutory body, declined to accept the department's recommendations. While it is not the only professional body and regulator affected by deep malaise – arguably all of them are – it's the only one where life and death are affected by its decisions and dysfunction. But the HPCSA's CEO/registrar Billa told me this year it's an "advocate for the public".
The effect of their decision in our case – and the precedent if it hasn't already occurred – is it nullifies the Health Professions Act's section 27A. So, doctors can be rude and abusive to patients and their families and not consult them about diagnoses and treatments. And if they decide to, euthanize patients particularly elderly ones like my mom whom that day they had already said they wouldn't provide intensive care for if she needed it and denied treatment for the anaemia that contributed to heart failure. The HPCSA has given doctors an awful power the law didn't intend.
And its failure in an unknown number of cases to prosecute and sanction health practitioners has contributed to the appalling situation in South Africa's public healthcare like Life Esidimeni and recently where doctors and nurses hand-cuffed a patient to a bench.
It's not only "dire conditions" at hospitals where that occurred, but the country's health regime too, which is on life support. The HPCSA shares that shame.
In choosing the path of least resistance, the committee and council has not provided justice and clarity for either the accused or my mother and family.
References
HPCSA's letter
Complaint to the Office of Health Standard Compliance
Minor edits 8/07/2019
GSH's Trauma Centre doctors who removed the tube didn't inform us of her deteriorating condition nor sought our consent as is required by national health law. The hospital only called us after she died.
My mother was critically ill and couldn't breathe without it. She had been intubated that day, the doctors allegedly puncturing her lung in the process according to a nurse.
The previous evening she had been awake and lucid. The following morning, the day she died, she was breathing on her own, and unconscious from pain medication. Later that evening she was still unconscious, with a breathing tube having been inserted inserted without them telling us. Even so, her condition was serious but stable. In fact, the attending senior Dr Ahmed Al Sayari (see below), who was rude to my sister and me, told us she was "improving".
Their action to remove the tube without following strict medical protocols and without our knowledge and not in express accordance of our wishes amounted to the active termination of her life, similar to physician-assisted euthanasia.
The HPCSA's Guideline Booklet 7 Withholding and Withdrawing Treatment and other chapters gives the steps practitioners must follow for critical patients and those at the end of life. They are similar to international codes like the American Medical Association's Code of Medical Ethics Chapter 5: Caring for Patients at the End of Life.
The AMA defines euthanasia in Code 5.8 as "the administration of a lethal agent by another person to a patient for the purpose of relieving the patient’s intolerable and incurable suffering".
"Euthanasia is fundamentally incompatible with the physician’s role as healer, and would pose serious societal risks ... The physician who performs euthanasia assumes unique responsibility for the act of ending the patient’s life. Instead physicians must aggressively [emphasis added] respond to the needs of patients at the end of life. Physicians must (a) not abandon a patient once it is determined that a cure is impossible, (b) respect patient autonomy, (c) provide good communication and emotional support and (d) provide appropriate comfort care and adequate pain control."
(The AMA defines physician-assisted suicide in Code 5.7: "when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act". The code they must follow to obviate the "fundamentally incompatibility to their role as healer" is the same as for euthanasia.)
None of Groote Schuur's doctors except arguably Crowther applied these fundamental principles. (The hospital refused to say which doctors were responsible, leaving us to deduce who from the medical records including including Al Sayari). They were either ignorant of them, recklessly and negligently disregarded them or both.
The HPCA's inquiry committee's decision, noting my mother was "terminal", retroactively approved the doctors' non-existent to unsatisfactory communication including about end-of-life decisions, which after the fact they termed "adequate discussions". To them it's like, she was going to die anyway (note they said she was improving) so why bother.
The law and regulations about informed consent and patient rights are explicit and mandatory and doesn't mention or allow "adequate". Also, the committee didn't distinguish the different doctors' conduct who illegally made the end-of-life decision to remove the endotracheal tube with the family's knowledge and consent.
So contrary to the HPCSA's own code and country's laws, this purportedly is the new deemed standard for health practitioners and facilities in the country.
The committee decision is wrong in law, prejudicial to the public and biased toward practitioners' questionable conduct and "fundamentally incompatible to their role", and cannot be allowed to remain.
This de facto principle applied in practice even if not legally valid must be why GSH, WCHD, health MEC Nomafrench Mbombo and former premier Helen Zille refused to give us explanations and answers, why the doctors didn't inform us of her worsening condition – we only learned the extent of it the evening before she died – and obtain our consent for procedures, and critically, for removing the endotracheal tube. For elderly patients especially, there's a high risk they're unable to breath without it.
As a result of their refusal to investigate as required by law, in October 2017 I laid complaints with the HPCSA against the head of WCHD Dr Beth Engelbrecht after she pre-emptively exonerated hospital CEO Dr Bhavna Patel and implicated doctors without applying her mind to the facts of the matter. Also, after pressure from me, she referred the case to the province's Independent Health Complaints Committee but then suddenly almost two months later, dismissed the investigation for spurious unnamed "logistical problems".
In November I laid complaints against Trauma Centre head Prof. Andrew Nicol (his and Botha's photos can be seen in this Daily Maverick feature) and Patel for the same reason – promising to investigate and not doing so. (Patel took over the "investigation" from Nicol after he declined to provide a written report and in only one working day, not counting her day-to-day executive duties, conducted a desk-top review of my mother's medical record. She apparently didn't interview medical staff – orthopaedic, anaesthesiology, trauma and medicine professors, registrars, medical officers and nurses – who had attended my mother over the 36-hour period she was in hospital including those who had removed the tube, presumably Botha. We rejected her one-page letter as worthless spin and cover-up.)
Last, we laid complaints against Al Sayari, Crowther and Botha for their role in my mother's care and death. According to pathologist Dr Gavin Kirk, she died from respiratory and heart failure after the tube was removed. In other words, she suffocated that caused cardiac arrest. She likely suffered pain. She also had anaemia which contributed to heart failure for which treatment was discontinued the day she died. As with other things, the hospital refused to give an explanation.
The HPCSA dragged the investigation out including by giving the respondents far more time to respond than their own regulations allowed (regulations permit 40 days but they were allowed three months and more (failure to respond within that time is a disciplinary offense that I reminded the HPCSA of). Nicol failed to properly respond the first time and they gave him another chance this year, a year after the complaint was filed. They mostly didn't inform me of progress and apparently didn't read the additional information I sent or our complaint properly. In December the case officer left and it wasn't transferred to another, and there was a hiatus when it was apparently abandoned for a few months until in April I complained to the CEO/registrar Dr Raymond Billa (see here and here).
The HPCSA's Committee of Preliminary Inquiry doesn't sit every three or four months as it is schedule to. The first time our case was on the agenda was November 2018, but was adjourned. It didn't sit in March, and finally reviewed the case on 30-31 May. In a letter dated 27/06/2019 received June 28 case investigator Khomotso Maimela wrote:
"The Committee considered the matter and resolved to accept the Respondents explanation in terms of regulation 4(7) of the regulations relating to the conduct of inquiries, [sic] the Committee concluded that in the setting of a terminally ill patient there was adequate discussions with member [sic] of the family at different times."
They would contact the respondents Engelbrecht et al and are closing the file. If we are "aggrieved by the decision", we may appeal at the High Court may in terms of section 20 of the Health Professions Act.
I replied the same day:
I reiterate our incredulity at
the Preliminary Inquiry’s finding the respondents Dr Beth Engelbrecht et al
individually and collectively had “adequate discussions with the family at
different times” (sic).
They neither notified the family during the course of 7 July 2017 about my mother’s deteriorating condition nor sought our informed consent for any treatment and for withholding and withdrawing treatment including for ongoing anaemia and whether or not to remove life support.
They neither notified the family during the course of 7 July 2017 about my mother’s deteriorating condition nor sought our informed consent for any treatment and for withholding and withdrawing treatment including for ongoing anaemia and whether or not to remove life support.
The lack of communication,
obstruction and obfuscation persisted after her death and we still don’t really
know what happened. The facts and my mother’s medical
record do not support the respondents’ and committee’s assertions and finding. Therefore, we reject them.
The committee has made a ruling on only one aspect of our complaint – communication
between family and respondents, Groote Schuur Hospital and Western Cape Health
Department – but not the other, viz, (a) unethical conduct – abuse, bullying,
evasion – of practitioners toward me and members of
the family, (b) medical negligence/malpractice and (c) terminating a patient’s
life by active measures.
Therefore, we question the
apparent narrow scope of the committee’s investigation and whether it
considered and reviewed all the numerous documents I submitted in support of
our complaint, the last one on 20/05/2019 (you confirmed that day). I submit its rationale was defective and/or there
were other factors influencing its decision, viz, prejudice because I had
complained about the council to registrar Dr Raymond Billa and Office of Health
Standards Compliance.
We note the tardy, unsatisfactory
and prejudicial manner the council and committee managed our complaints. I laid the complaints in October and November
2017 but contrary regulations, the respondents were permitted a lengthy time in
which to reply; there was no response as promised of the outcome of the
previous committee meeting where this was on the agenda; the previous investigator
left without transferring the case to a new officer, and the case was on hiatus
without informing us. This indicates
compromised case management and violation of administrative justice. Any decision that flows from this process is suspect.
In order to determine the
committee’s rationale for its decision, we need the un-redacted written record
of decision and respondents’ responses.
And only once we have studied them, can we determine if they were reasonable
or an appeal viable. Section 20 of the
Health Professions Act states an appeal must be filed within a month of the
decision. So, until you provide those documents, provisionally, that is our
intention.
I don't expect they shall comply with my request. (Postscript: Maimela replied on July 1 promising the documents "as soon as possible.)
Significantly, the committee reviewed and ruled on only one aspect of the complaint – doctors' communication with the family, which we strongly disagree was even adequate – but ignored medical negligence and the poor professional conduct of particularly "Mayet" who was rude and abusive to my sister and I, and Nicol, Engelbrcht and Patel (just about), the last three for refusing to investigate in terms of section 18 of the National Health Act and WCHD's procedures.
They exonerated the doctors and administrators implicated in my mother's care and death. They deem the laws and regulations superfluous to their needs and that of the profession.
Rather, it shows their political and professional tendency, bias and reluctance to investigate practitioners, determination to seek ways to exonerate them and reckless disregard for the laws and standards of ethical and professional conduct they ought to uphold and defend as "advocates for the public".
The Health Professions Act's Ethical Rules of Conduct section 27A states inter alia a practitioner shall "respect patient confidentiality, privacy, choices and dignity, maintain the highest standards of personal conduct and integrity, provide adequate information about the patient's diagnosis, treatment options and alternatives and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others, maintain proper and effective communication with his or her patients, and obtain informed consent from a patient or, in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin".
However, since the committee did not rule on the other substantive matters – (a) to (c) in my response to them – the charges of medical negligence, personal conduct and integrity and terminating a patient's life are unresolved and shall continue to be a stain against the respondents' professional and personal integrity.
This is the second time the HPCSA dismissed my complaints regarding the hospital. In 2001 it declined because the case was "politically sensitive" among other reasons (Christopher Hobbs – see in this blog). Clearly, they are incompetent and reluctant to act against practitioners, and when they do, it gives them extraordinary latitude without consideration for and prejudice against complainants.
But when it serves political motives, prosecutes practitioners on superficial and vexatious charges like Banting diet guru Tim Noakes and Nelson Mandela's personal physician Vejay Ramlakan who wrote an unauthorised account of Mandela's last days.
In 2015 the minister of the health Aaron Motsoaledi called the HPCSA "dysfunctional" after a departmental investigation. But the council, an independent statutory body, declined to accept the department's recommendations. While it is not the only professional body and regulator affected by deep malaise – arguably all of them are – it's the only one where life and death are affected by its decisions and dysfunction. But the HPCSA's CEO/registrar Billa told me this year it's an "advocate for the public".
The effect of their decision in our case – and the precedent if it hasn't already occurred – is it nullifies the Health Professions Act's section 27A. So, doctors can be rude and abusive to patients and their families and not consult them about diagnoses and treatments. And if they decide to, euthanize patients particularly elderly ones like my mom whom that day they had already said they wouldn't provide intensive care for if she needed it and denied treatment for the anaemia that contributed to heart failure. The HPCSA has given doctors an awful power the law didn't intend.
And its failure in an unknown number of cases to prosecute and sanction health practitioners has contributed to the appalling situation in South Africa's public healthcare like Life Esidimeni and recently where doctors and nurses hand-cuffed a patient to a bench.
It's not only "dire conditions" at hospitals where that occurred, but the country's health regime too, which is on life support. The HPCSA shares that shame.
In choosing the path of least resistance, the committee and council has not provided justice and clarity for either the accused or my mother and family.
References
HPCSA's letter
Complaint to the Office of Health Standard Compliance
Minor edits 8/07/2019
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