1. SOUTH AFRICAN HUMAN RIGHTS COMMISSION
Presentation to the Portfolio Committee on Justice and Correctional Services
Re: Briefing on the “Esidimeni” Complaint
22 February 2017

2. Introduction
Introduction of new Chairperson, Commissioners present and delegation. The request by the Honourable Portfolio Committee is welcomed by the SAHRC.

3. Introduction
The Commission’s presentation will provide an overview of:
The matter of the transfer of mental health care users from Life Esidimeni;
Current work; and
The upcoming national probe

4. Introduction Legal Framework
The South African Human Rights Commission Act, 40 of 2013 (SAHRC Act) provides the enabling framework for the exercise of the Commission’s constitutional mandate and powers.
Complaints Handling Procedures per gazette are soft laws

5. Overview
The Commission received a complaint from Annie Robb, a manager at Ubuntu Centre (representative organisation of people with psychosocial disabilities), on 15 March The complaint received by Commissioner Malatji and members of the Section 11 Committee, was sent by Commissioner Malatji to the Gauteng Provincial Office (GPO) on 23 March 2016.
The complaint was regarding the closure of Esidimeni Life Healthcare Residential Facilities.
The GPO of the Commission, assessed the complaint, and determined that further information was required in respect of the history of the matter.

6. Overview
Further information revealed that the discharge of mental health care users from Esidimeni Facilities had been the subject of two separate urgent applications before the Gauteng Local Division of the High Court of South Africa (the applicants in both matters were represented by Section 27).
The Commission established that the first urgent application sought an order, among others, interdicting the Gauteng Department of Health (GDoH) and Life Esidimeni from discharging mental health care users pending the outcome from an application for the appointment of curators ad litem to represent the rights and interests of the users.

7. Overview
On the morning of the hearing, 22 December 2015, the parties signed a settlement agreement.
Broadly, the terms of the settlement were that the matter would be removed from the court roll and the parties would engage in a meaningful consultation process with a view to reaching an agreed plan (aimed at resolving the dispute before 31 January 2016) for the provision of mental health care users at Esidimeni Facilities;
The GDoH would not place users from Esidimeni Facilities in any other facility pending the conclusion of the consultation process; and
The parties should endeavour to reach an agreed plan guided by the constitutional imperatives on the GDoH and at the very least endeavour that users receive health and other services no lessor quality to that received at Esidimeni to protect, promote and fulfil their rights.

8. Overview
The settlement agreement, it is alleged, was not honoured by the GDoH.
Thereafter, the same applicants filed a second urgent application.
This application sought, among others, to interdict the discharge and/or placement of users at Esidimeni Facilities at Takalani (an NGO), pending a process that ensures that the rights and best interests of these users are protected.
This second application was dismissed by the High Court on 15 March 2016.
Determined not to reject as provided for in its Complaints Handling Procedures

9. Overview
Despite the finding by the Court, the Commission resolved not to reject the complaint on this basis and instead determined that the file would remain open and the matter be monitored.
In July 2016, the complaint lodged with the Commission was raised in a Section 11 Committee meeting and on 20 July 2016, Commissioner Malatji followed up with the GPO on the progress of its investigation.
Determined not to reject as provided for in its Complaints Handling Procedures

10. Overview
In August 2016, media reports indicated that the DA in Gauteng had questioned the whereabouts of 400 mental health care users who had been transferred from Esidimeni. The GDoH responded that no users were missing.
The Commission thereafter requested detailed information of the DA regarding the questions it had posed to the GDoH in the Provincial Legislature.
Copies of written replies to questions from the MEC to all Members of the Legislature and the transcript from an oral question in the house were provided.
The Commission thereafter engaged further with Section 27.
In September 2016, it was reported that 36 users who had been transferred from Life Esidimeni had died.

11. Overview
Further engagement with Section 27, who represent some of the families of the deceased users took place.
Urgent correspondence was issued to the GDoH calling for a detailed response to questions posed by the Commission in addition to information requested by the Commission. Commissioner Malatji followed this up with the GPO.
An inspection at one of the NGOs – Precious Angels followed.
Information arising from the Commissions inspection were provided to the Health Ombud, and assistance offered to the Ombud’s investigation.
Further urgent correspondence to the GDoH was issued, requesting a detailed written response to questions arising from the findings of the inspection.
When did contact Ombud?

12. Overview
GDoH undertook to provide a formal response to the Commission by 30 September 2016.
In its response received on 29 September 2016, the GDoH detailed steps taken. Most tellingly the GDoH recorded that the whereabouts of the mental health care users were always known and that it would not allow for a situation where their whereabouts are unknown.
The Commission continued engaging with the Office of the Health Ombud in its monitoring of the situation.
At this stage further complaints were received following the reported deaths and were consolidated with the initial complaint.

13. Overview
In November 2016, further correspondence was sent to the GDoH requesting full information regarding the details of each mental health care user transferred as well as detailed information on the steps taken by the Department to mitigate any future harm that may befall those who had been transferred.
The MEC was advised of the Commissions support to the investigation by the Health Ombud and its intention to provide information relating to matter to the investigation.

14. Overview
The Commission met with Ubuntu Centre, Section 27, and a representative of the Families Association during this time.
The information from the inspection of Precious Angels were presented to the Health Ombud in the course of his hearing during a formal interview.
GDoH requested an extension until 2 December 2016 to respond to the correspondence issued by the Commission, due to the extensive nature of the issues raised and the ongoing investigation of the Health Ombud.

15. Overview Response from GDoH was received on 2 December 2016.
The Commission provided a full written submission to the Health Ombud regarding the relevant human rights framework and the possible human rights violations.
A meeting was also held with the Health Ombud and the Commissioners, prior to the release of the Ombud’s report. At the meeting the Commission shared its concerns, among others, around the systemic nature of these rights violations.

16. Next Steps Moving forward:
On 10 February 2017, the Minister of Health, requested that the Commission undertake a systematic and systemic review of human rights compliance and possible violations related to mental health, at a national level.
The request followed on the recommendation by the Health Ombud.
The body of Commissioners resolved to host a national probe and to ensure provincial support. The Commission is in the process of establishing a Reference / Advisory Group of experts and stakeholders to provide expertise and guidance to the Commission in this process.

17. Next Steps At the provincial level, the following actions are planned:
i) Monitoring the progress of compliance with the recommendations of the Health Ombud;
ii) Non-legal remedies including securing counselling; and
iii) Assessing the need for litigation support;
iv) Continuing engagements with the Task Team appointed by the Minister and stakeholders .
The outcomes from provincial activity is to be included in the national hearing.

18. Next Steps
In respect of the national probe, immediate plans are to identify and secure expert and technical support.
Identify and invite submissions and stakeholders.
Secure media support for awareness.
Convene the Hearing based probe.
Analyse submissions and issue recommendations.
The Commission will continue monitoring to take steps where appropriate redress needs to be secured.
Reports to stakeholders and to Parliament will be provided.

19. Using the mandate
The Commission will monitor facilities in the course of its ongoing work
Given its resource constraints monitoring will be limited to:
- random samples of facilities in each province and;
- facilities identified in complaints to the Commission
The Commission will continue efforts to secure support for full implementation of the monitoring envisaged in the Optional Protocol to the Convention on the Rights of Persons with Disabilities

20. The South African Human Rights Commission
@sahrcommission THANK YOU