Long read. This is the
text, edited and appended, of an affidavit submitted to the National Prosecutions Authority's (NPA) Western Cape office,
the director of public prosecutions, in September 2021. (I’ve previously written
about these cases in this blog.)
These cases, as with others
reported over the years involving the Western Cape and national public health
system, and other state organs, show a pattern, a modus vivendi, of endemic
corruption, illegality and unethical conduct.
Nothing ever changes. Then as now
the NPA is reluctant to or won’t prosecute corruption, politically sensitive
cases and government officials.
WC Health shields negligent
unlicensed British doctor. NPA and Health Professions Council refuse to
prosecute
In 2001 Western Cape Health Department (WCHD) and Groote
Schuur Hospital management chief medical superintendent Drs Peter Mitchell,
outpatients director Tunc Numanoglu, orthopaedics unit head Mike Solomons and
medico-legal heads David Bass and Alfredo (Al) Rossi shielded visiting British
surgical registrar Christopher Hobbs from charges after he misdiagnosed and
mistreated a routine injury that contributed to permanent damage to me (“the
patient”).
Hobbs was not registered with the Health Professions Council
of South Africa (HPCSA), a legal requirement for doctors as prescribed by the
Health Professions Act of 1954. (Whether a qualified health practitioner or
not, practicing without a state license is a serious offense the HPCSA claims
it prosecutes.) He continued working at the hospital, though.
Hobbs and Solomons harassed the patient to drop the
complaint. Hospital staff confirmed management had discussed “what to do” about
the problem. The result was to not account for Hobbs’ conduct which by WCHD
policy must be within 21 days of the complaint; denied the patient’s requests
for his medical record to which he was entitled and did not cooperate with the
subsequent police investigation necessitating a court order.
Three months after the incident and one day after Hobbs left
the hospital and country, Solomons penned a whitewash report gaslighting the
patient (they waited until Hobbs had left before writing the report which by
WCHD policy must be within 21 days of the date of complaint). Mitchell insisted
Hobbs had been registered.
That Hobbs was negligent and had committed a criminal act
was not in dispute. Other doctors including emeritus professor the late Martin
Singer confirmed his misdiagnosis which required remedial surgery and a year’s
follow-up care. WCHD knew about his unlicensed state from his personnel file,
as the hospital’s staff records department confirmed, and HPCSA.
According to Rossi, Bass (he reported to then head of health
Dr Craig Househam and the health MEC whom the patient informed of events but
did nothing) was the architect of their strategy to obstruct, deny and allow
Hobbs to flee. Bass lied to the media, MEC, South African Human Rights
Commission and State Attorney. Among
other things he said WCHD had no control over doctors – Hobbs – in its
employ.
But HPCSA declined to charge anyone saying it was
“politically sensitive” due to the officers – Bass et al – implicated and that
Hobbs’ irregular status was not under its purview (it has prosecuted other
unregistered practitioners, though). The South African Police had to be pressurised
to open a case, describing it as a “nuisance”.
So an open and shut case took almost a year to reach the
National Prosecutions Authority’s (NPA) Western Cape office, the director of
public prosecutions, despite evidence of Hobbs’ guilt months before. (The
Western Cape provincial police commissioner dismissed complaints about poor
service, concerned about the reputations of the detectives involved who were
eventually promoted).
For their part, NPA said there was “no criminal case [sic]”
despite prima facie evidence. Later
when presented HPCSA’s legal opinion on the illegality of Hobbs’ actions,
unrepentant and aggressive, they stated “it was unfair to Hobbs [sic]” to prosecute him.
By then it was moot because Hobbs was long back in England.
They said they would apply for a bench warrant for his arrest but later the
Cape Town Magistrate Court had no record of it. Had the warrant been issued,
Hobbs would have been arrested had he re-entered South Africa. Not applying for
the warrant is further proof of NPA’s attitude to government criminality.
The Prevention and Combating of Corrupt Activities Act,
which was not yet in force, defines what constitutes corruption that includes irregularly
acting to benefit another. The Act obligates managers to act if they’re aware
of potentially corrupt and illegal acts, the failure of which also makes them
liable.
But even under extant South African law, WCHD’s doctors,
officers, political heads especially its medico-legal head David Bass were
unethical, conspired in fraud and violated the Health Professions Act and that
of the department to protect Hobbs. This is corruption also. They ought to have
been prosecuted by HPCSA, NPA or both but nothing happens to people like them.
Hobbs went on to have a successful career in Portsmouth, England.
Postscript: When I
informed Britain’s General Medical Council about Hobbs, initially keen, they said
there was wrongdoing but declined to take it further because the offenses
happened outside its jurisdiction. But
because of its seriousness, they made a permanent note in his record (it would
not be expunged). In the circumstances it was a justice, albeit nominal,
compared to none the patient received in his country from the purported
defenders of the constitution NPA, HPCSA, SAPS and government. But as events show – lighting striking the
same family twice (see the next part of the story) – this is typical for South
Africa.
WC Health protects
doctors accused of culpable homicide. No action from NPA and court
In 2017 Groote Schuur’s Trauma Centre head Andrew Nicol,
senior medical officer Ahmed Al Sayari, registrar Marcelle Crowther, junior
officer Mikhail Botha, registrar Mohammed Mayet, CEO Bhavna Patel and head of
health Beth Engelbrecht were variously accused of assault, culpable homicide,
fraud, violations of national and provincial health laws and policy and unethical
conduct in causing the death of 91 year-old patient, my late mother.
Effectively, they euthanized her rather than continue providing high care.
That morning a doctor told the family she was not deserving
of an ICU or high care bed because she was elderly. This was an ad hoc directive because there is
no policy or guideline that prevents a patient receiving care on the basis of
age, gender, race or religious belief. Since there was no medical reason, it
was discriminatory, unlawful and unconstitutional.
As the family observed, the directive – euthanasia,
violation of bodily integrity and informed consent, cessation of treatment,
homicide, call it what you will – did not apply to other patients in the
unit. It really had nothing to do with
medical or humanitarian reasons but to free beds for what they considered deserving cases like self-inflicted alcohol and other
trauma admitted to South African hospitals.
That day on July 7, 2017 the Trauma Centre was not
excessively busy and there were free bed(s).
There was no health emergency or resource crisis
that forced staff to make hard, pre-emptive decisions about who to treat. The patient was dispensable solely because of age and not worth
their time as a state patient.
Nevertheless, as the day progressed, my mother improved – the
doctors said she responded to treatment and was “looking better”. Therefore, she was not “terminal” despite them afterwards claiming so, their defence
being she died of age-related natural causes.
But her medical record during those critical hours did not indicate
prognosis was worsening. While age was a
factor to her condition, she did not die naturally but the result of withholding
of treatment, gross negligence, violation of health regulations at many levels
and assault.
Like the Hobbs and other reported cases, hospital and WCHD
hierarchy including Nicol, Patel and Engelbrecht were evasive, obstructive,
bullying and committed fraud to cover up. They refused to investigate or said they
would as they must per departmental policy and national health laws but refused
to release a medico-legal report. And
they attempted to deflect blame onto the family to make them go away.
The then premier Helen Zille, who like DA claim they’re
against corruption, refused to investigate as she had to do under the National
Health Act as ultimate head of WCHD. She stated her a priori confidence in Engelbrecht et al. (Health MEC Nomafrench Mbombo, the DA’s token
black and a cipher, ignored the family’s appeals and played no part.)
Zille went further, though, and interfered in the police’s
and NPA’s pro forma “criminal investigation”.
That was unethical and illegal on her part but it went beyond that too. The police (Woodstock branch commander Col. T
Lotz et al) and NPA prosecutor advocate Nadia Ajam gave Zille’s representative,
Western Cape government advocate J Gerber
acting on her instructions, information that ought to have been privileged.
Worse, it was given to the accused themselves, Western Cape government, during
private, ex parte conversations. NPA
and police denied they gave material information but yet they and Zille’s
representatives confirmed to the family there was contact and what it had been
about.
This was a serious violation of the law and professional
ethics by the already compromised NPA and South African Police Service. First,
communication with the NPA by any party about cases is through its chief clerk,
not individual staff members. But Zille and Western Cape government got
preferential treatment and direct access to prosecutors, access that is denied
the public including victims for whom NPA is the pro forma advocate. In other
words, equality before the law does not apply as NPA sees it.
Second, it’s unheard of for them to give the anyone
information because it may compromise the investigation.
Third, NPA and SAPS apparently did not ask Gerber/Zille what
their political interest was in the
investigation. It’s astounding and
indicative of conspiracy to obstruct and defeat justice that they gave
information knowing government
officers were the accused.
So Zille’s, NPA’s and police’s conduct was unethical,
incompetent and corrupt.
However, it’s a given in the context that NPA (and SAPS) is subject to
political interference that even the New
York Times noted a couple of years ago in an article about its
problems.
Unsurprisingly, like Hobbs, NPA said there was no criminal
case. Despite criminal charges and a
supposed “criminal investigation”, the police never opened a criminal docket as
it ought to have despite two detectives acknowledging receipt of the complaint
and confirmed they would. So really the criminal
case never happened.
This is known as deniability or cover up to protect influential people, those
charged. (In related events in 2019, detectives at two stations including
Woodstock refused to accept charges against the Health Professions Council.)
The state pathologist, Gavin Kirk, is also implicated. He gave
post-mortem findings to accused Andrew Nicol, head of Groote Schuur’s Trauma
Unit, despite by law (National Health Act regulations and those applying to
officers of the court) it is privileged and can only be released to the police, prosecutor and court and family of
deceased. Kirk himself reiterated this obligation in writing to the family at the
time of the post-mortem.
Kirk’s competence and role as pathologist is limited to
gathering evidence on the causes of death, not events while the patient was
alive of which he has no direct knowledge. In this matter, at the time he
declared in writing he had no remit over the patient’s treatment at hospital before
her death. Instead, over the family’s objections and pleas to consult an
independent expert for a medical negligence opinion (note this is distinct and
separate from Kirk’s official role and an unusual request to make of him), NPA
commissioned him, who unsurprisingly, found Nicol et al were not medically negligent, the answer Zille
and Western Cape government wanted to hear.
There was a serious problem with the NPA asking and him
agreeing to the NPA’s commission for a negligence opinion. In July 2017, about
six months before the NPA’s request, Kirk knew Nicol et al were accused of
serious crimes and misconduct regarding the care and subsequent death of the
patient and at minimising and covering up her death.
In late July or August, Nicol requested and received Kirk’s
verbal post-mortem findings despite by law and Kirk previously telling me he
could only reveal them to officers of the court. The NPA were later informed of
what he had done when we heard about them commissioning the negligence opinion but
did nothing nor did it influence their confidence in Kirk. (Zille too had a priori confidence in WCHD staffs
including health Beth Engelbrecht despite serious allegations against them.)
Kirk and Nicol are senior members of UCT Medical School and
WCHD.
During their communication Kirk would have obtained details
about the deceased’s hospital care from Nicol. Probably Nicol told Kirk what he
and their employer – WCHD – wanted to hear: that there was no medical
negligence and no foul play. So long
before the NPA asked Kirk for an opinion, he had already made up his mind (bias,
lack of independence, conflict of interest, all compelling grounds for recusal).
NPA accepted Kirk’s finding. Oddly two years later police
told the family medical negligence shall be covered by the still unscheduled
inquest. But given the irregularities, the family view the inquest shall be a
sham and want no part of. The NPA did
not respond to the family about this and other problems about the case.
The NPA ignored the family’s warnings about Kirk’s unlawful
conduct of giving privileged information to excluded parties and an accused to
boot and of his conflict of interest. It behaved irrationally, unprofessionally,
incompetently and with contempt for the legal and professional ethics it must defend.
It likely was prosecutor Nadia Ajam’s decision but since DPP Rodney de Kock was
informed too and made the final decision so he shares blame.
This case reveals numerous irregularities, illegalities and
corrupt activities at all levels. There was an assault and negligence as
defined by international and South African practice and law (as with the Hobbs
case, NPA appear to have no competence on medical law) on an unconscious
patient by unsupervised (that too is not in dispute; supervision, consultation and
communication are key legal principles) 27 year-old junior doctor Mikhail Botha
and others that directly led to her death by suffocation and cardiac arrest. The
doctors also neglected her known anaemia which weakened her heart per
post-mortem findings.
There were attempts by Nicol, Patel, Engelbrecht, Zille and
others at the hospital, to a degree facilitated after the fact by officers of
the court, to cover up and gaslight the family.
There was incompetence, unethical and illegal conduct by
police and NPA and a lack of professional judgement, illegality and conflict of
interest (bias, lack of independence) by the pathologist. There were exchanges
of information between officers of the court – prosecutor, police and
pathologist – and accused that benefited the accused, NPA’s and police’s
political masters.
Significantly, the information given Zille changed her
government’s behaviour and approach and gave them insights that advantaged them
as respondents. As relayed to the family, it ended with her refusal, after
earlier reluctantly agreeing, to investigate and hold WCHD and its staff to
account as required under the National Health Act and Western Cape legislation.
Thus she could maintain her a priori
confidence in her department and its staff.
The causality from SAPS and NPA disseminating information
despite the fact it was improper (their known deficiencies militate against
inadvertent mistakes) to not bringing charges is critical in proving the
parties’ unlawful conduct.
Probably among the information shared was NPA commissioning
state pathologist Gavin Kirk for a medical negligence opinion (the family
learned about it second hand) which likely gave WCHD an opportunity to backstop
their version of events. But Kirk’s ex parte consultant’s opinion, i.e. a
private commission beyond the scope of his ex
officio role as forensic pathologist, was not objective. His conflict of
interest and irregular prior communication with Nicol likely influenced his
finding.
And the fact there was no proper investigation, for example,
statements were not obtained from the accused or family, hospital and WCHD
witnesses, unheard of in a “criminal investigation”.
That NPA resultantly brought no charges emboldened the
accused to believe they were in the clear. I believe this included Nicol et al later
fabricating part of the patient’s medical record (WCHD staffs had access to it
after the event) to support their version that includes hearsay accounts the
medical record does not reflect. The
original record, which the family and NPA have copies of, refutes their
reconstructed version which they did with legal help.
Had statements been obtained at the start of the purported
investigation from September 2017, the accused and WCHD would have committed
themselves to the record. They would not have had an opportunity to later set
up a story and allegedly reconstruct the patient’s medical record to support
their version.
The NPA’s incompetence and failures (SAPS’ told me he was
waiting for instructions from NPA) severely damaged attempts to find the
truth. Note late 2017 before any
investigation was done and not even the pathologist’s findings (available July
2017) in the docket, NPA declared there was no criminal case.
But this is not where it ended. NPA denied it acted improperly
and dismissed the criminal case.
However, after saying the
patient’s death was natural and that there was no medical negligence or crime,
they contradictorily referred to an inquest.
Either death was by natural causes or it was not. (Under the Inquests
Act, its purpose is to determine cause of death.) They refused to explain the contradiction to
the family.
So, out of expedience rather than firmly held conviction, NPA
shuffled the case to Wynberg Magistrate Court (the family were not notified
when exactly although they would have been summoned as witnesses and the
Inquests Act is clear about the court respecting their wishes). But the senior prosecutor there declined it
and returned it to the director of public prosecutions (De Kock, Ajam) after
previously telling the family he had “no choice” about cases referred to him by
his superiors. After the family coincidentally heard about developments from a
third party, a policeman, he told the family’s representative there were
“problems” with it.
Contacted informally for comment, Cape Town inquest
magistrate Ingrid Arntsen was curious why Wynberg rejected the case. She said
she had heard “talk” about the case and agreed with the opinion that so far it
was a “mess”. At the time it was not on
her docket but she was agitated when copied an email to NPA about its
back-and-forth journey discussed with her (its merits were not raised). She said any communication must be with the
inquest clerk.
In June 2019 NPA referred the family’s queries and requests
to the inquest clerk. After no response to an email and reminded two months
later, clerk Wilmarie du Toit replied the family would be contacted “once
[Arntsen] has read the docket and made findings”, i.e. a desktop review. This
was news to the family. She was asked why the inquest would be a desktop review
rather than hearing with testimony. The
Act clearly states the family’s wishes must be taken into account, and
obviously they must be informed, but it appears a decision about the form of
inquest had already been made.
To the question if the magistrate was taking cognisance of
additional information sent NPA and Court that meanwhile arose , Du Toit
replied she had no role passing information to the magistrate and the family
must do so to “the NPA” despite been told they
had referred the family to her.
Therefore, the family believes the Court does not have
information of all developments, and if it should proceed on this basis and
with the irregularities presented and unexamined, the inquest shall be a sham. Also
the Court’s officers’ tone were combative and unresponsive and might not be
impartial should the case proceed. Du Toit promised the family a copy of the
records they had been requesting but never delivered. By then NPA said the case was out of their
hands but when forwarded Du Toit’s responses, said they would look into
it. The family don’t know if they did
and with whom they ought to communicate: NPA or Court.
The NPA’s and Court’s conduct and management of my mother’s
case mirrors exactly that of the HPCSA’s inquiry that exonerated the accused,
Nicol, Engelbrecht, Patel, Crowther, Al Sayari, Mayet and Botha. The panel did
not examine the charges (as with the police and NPA, they did not draw up formal
charges which the regulations prescribe) that include death of a patient, fraud
and numerous violations of professional ethics and health laws and regulations;
did not examine all information provided; contrary regulations gave the accused
extraordinary grace and time (up to a year), to present their case and accepted
uncorroborated hearsay testimony (of the he-said kind) from the accused.
The composition of the panel itself was irregular. A member, Prof. Elmin Steyn, head of surgery
at Tygerberg Hospital and University of Stellenbosch medical school, has a
personal/business relationship with Nicol. They’re co-editors of a medical book
that’s still in publication from which they presumably derive profits and
reputational acclaim (the book is listed on their résumés and professional and social
media pages). A negative finding against
Nicol and thus his reputation might impact the sales, and in an extreme case
for which there’s precedent in South Africa, lead to the publisher, Oxford University,
withdrawing it.
Just as Nicol ignored regulations and procedures when he refused to issue a medico-legal report to the family and asked pathologist Kirk for his findings, it is probable he and Steyn had occasion to discuss the
charges against him privately outside the forum of the HPCSA’s inquiry structures. Also, he and Steyn are professional (heads of surgery at their hospitals and universities) and book writing partners. This can be the why only explanation why HPCSA gave Nicol, unusually, a second
opportunity to make a statement in defence one year after his first
(regulations state the accused must respond within forty days to receipt of a complaint
but were allowed four months for the first response, and Nicol a further year
for his second).
The family had informed Western Cape director of public
prosecutions Rodney de Kock of the irregularities including his office and SAPS
exchanging privileged information with the accused, the Western Cape
government. He personally did not respond except NPA demanded in future the
family correspond with the chief clerk about any matter. But De Kock and his staff permits the accused
and politicians direct access to himself and staff.
The status of the “inquest” case is dormant four years after
the death of the patient. This is typical of similar cases originating at
Groote Schuur Hospital like the death on May 11, 2016 of 16 year-old Tatiana
A. According to her family, she was
admitted to the ER feeling unwell but lucid, talkative and ambulatory. She went
into a coma during the hour after admission while doctors attended her. She was brain dead shortly after. Life support was removed later the week. Doctors refused to say what they did in that
critical hour that might have contributed to her death. There were no
investigations and an absence or brusqueness of response from authorities. They never heard from NPA and there was no
inquest.
I informed the NPA the family shall not cooperate with an
inquest, especially not a sham one, unless and until they explain why one is
necessary after they declared there were no contributing criminal, medical or
other malfeasant actions that contributed to my mother’s death. So far our
requests going back four years for explanations have been ignored.
Alternatively, the NPA must withdraw such declarations and
Kirk’s opinion there was medical negligence/malpractice. That shall be up to a proper impartial
inquiry to determine subject to the facts, laws and regulations. The alleged conduct of the offices and
officers including politicians, e.g. Helen Zille even if no longer with their
then employers, must be made a terms of reference of the inquiry. However, if
the inquest does proceed, given the nature of allegations against all mentioned
here and dysfunction inquest process so far, the High Court is the only forum
which should hear it, the magistrate court having effectively recused itself by
its bias and aggression toward the family.
The similarities to Hobbs case is striking. Those implicated in the death of my mother
and their sponsors, even if it was just medical negligence, have gotten away,
their conduct deliberately unexamined and unpunished. Like Hobbs, his Western Cape government
sponsors and those responsible for Tatiana A’s care, there is no mark on their
reputations and success. It’s the
family’s view justice cannot be achieved, soiled by the described events. The responsible prosecutor Ajam and De Kock
bear blame for the irregular way NPA managed the case. The family have no confidence in them, NPA
and SAPS.
The circumstances and alleged criminality and misconduct
fall under the Constitution, Promotion of Administrative Justice Act, National
Health Act, Health Professions Act, Prevention and Combating of Corrupt
Activities Act and Western Cape legislation and policy. The NPA and Cape Town Inquest Court already
have evidentiary substantiation of the allegations but since 2018 have done
nothing about the charges against the various politically connected people,
including their own offices and police, and unlikely ever will.
The Western Cape Health officers, and those in NPA, HPCSA, SAPS and court, we dealt with in the two cases mentioned here display signs of malignant narcissism with socio-pathetic tendencies. They're predatory, opportunistic, manipulative and incapable of genuine feelings. They can't forge relationships except with those who can further their own ambitions and agendas. Others don't matter.
Postscript: I informed the health regulator, which has jurisdiction over all health matters, Office of Health Standards Compliance.
After confirming they would investigate, there was no further contact from them.
Endnotes
When the family laid a complaint
about the police’s poor service with the Western Cape provincial commissioner,
one of the implicated detectives was instructed to investigate himself. He asked me to sign a document he had done so
who refused and told him to go away.
Replying to my displeasure about how NPA
and Court treated the family, Du Toit inter alia said “Do not twist my words to
justify your warped sense of public servants [sic]”; “the magistrate requested
you contact me is [because] you are not allowed to communicate with the
presiding officer directly!!! [sic]”; “I cannot communicate with the presiding
officer on your behalf. That is the function of NPA”, and “your poorly veiled
insults will not force the inquest to be finalised sooner [sic]”. She did not notice the contradictions of her
rude and aggressive statements.
I warned HPCSA CEO/registrar Raymond Billa
of problems with the management of the complaint and the Steyn/Nicol issue; the
latter suggests corruption. There was no response. The Prevention and Combating
of Corrupt Activities Act obliges manages who are aware of potential
illegalities to take action else they’re too culpable. Note the HPCSA was
investigated for bribery and corruption. Former health minister Aaron
Motsoaledi called it “dysfunctional”. But the HPCSA does prosecute cases that meet
its political agenda like against the doctor who gave full information, called “informed
consent”, to a patient in line with
health guidelines, and Nelson Mandela’s former private physician who wrote a memoir
after obtaining the family’s permission. And it lost court cases against former
apartheid doctor Wouter Basson for bias and failing to follow procedure during hearings.
It’s not a credible institution.
I informed the previous and incumbent
national director of public prosecutions about how NPA managed this case but
they did nothing, the incumbent not acknowledging receipt. During the selection
process for the vacancy of NNPA, I wrote to the search committee’s head
Minister Jeff Radebe complaining about NPA’s management of the case and pandering
to political interference. I said Rodney
de Kock was unsuitable for the job.
Under Shamila Batohi too, the status quo persists. NPA has not prosecuted even one low-hanging
grand corruption case. Ironically and
paradoxically, NPA, HPCSA and SAPS are members of the Health Sector Anti-Corruption
Forum.
Comments
Post a Comment