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March 2016 Court Papers seeking Interdict to Stop Discharge of Esidimeni

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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: ______________

In the matter between:

 

THE SOUTH AFRICAN DEPRESSION ANXIETY GROUP (First Applicant)

THE SOUTH AFRICAN FEDERATION FOR MENTAL HEALTH Second Applicant  

THE SOUTH AFRICAN SOCIETY OF PSYCHIATRISTS Third Applicant

THE ASSOCIATION OF CONCERNED FAMILIES OF RESIDENTS OF LIFE ESIDIMENI Fourth Applicant

 and

MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, GAUTENG First Respondent

, HEAD OF DEPARTMENT FOR HEALTH  GAUTENG Second Respondent

LIFE ESIDIMENI (PTY) LTDThird Respondent

TAKALANI HOME Fourth Respondent

 

FOUNDING AFFIDAVIT 2

 

I, the undersigned CASSANDRA CHAMBERS hereby state under oath: 1. I am an adult female. I am the Operations Director at the South African Depression & Anxiety Group (“SADAG”). I am duly authorized to depose to this affidavit on behalf of the applicants. 2. The contents of this affidavit are true and correct and, unless the context indicates otherwise, within my personal knowledge. Where I make legal submissions I do so on the advice of the applicants’ legal representatives.

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INTRODUCTION

3. This application arises from a threatened breach by the Gauteng Department of Health (“the Department”) of a settlement agreement concluded between the Department, the applicants and Life Esidimeni (Pty) Ltd (“Life Esidimeni”). The effect of this breach would be to deny mental health care services to 54 mental health care users currently receiving care at the Life Esidimeni mental health care facilities, operating in terms of a service level agreement concluded between the Department and Life Esidimeni. 3 4. As per the attached letter marked “CC1”, the Department has terminated the service level agreement. Although the Life Esidimeni facilities were due to close on 31 March 2016, this date has been extended to 30 June 2016. I refer to the attached statement marked “CC2”.

 

5. As I discuss in more detail below, on 17 December 2015, the applicants launched an urgent application under case number 2015/44348 (“the 2015 application”). A copy of the notice of motion in that application is attached as “CC3”. To avoid over-burdening this Court, I have not attached the full application. The papers will, however, be made available should this be required.

 

6. As is clear from the notice of motion in that matter, the applicants sought an order, inter alia interdicting the Department and Life Esidimeni from discharging mental health care users from the Life Esidimeni facilities pending the outcome of an application for the appointment of curators ad litem to represent the rights and interests of these users.

 

7. The matter was set down for hearing on 22 December 2015. On the morning of the hearing, the parties signed a settlement agreement, a copy of which is attached as “CC4”. In terms of that agreement – 7.1. The 2015 application was to be removed from the roll; 7.2. The parties agreed to engage in a meaningful consultation process, with the inclusion of all necessary stakeholders, with a view to reaching an 4 agreed plan for the provision of mental health care users at the Life Esidimeni facilities. The plan would ensure that the users receive health and other services at least equal to the services that they receive at the Life Esidimeni facilities. 7.3. Pending the conclusion of this agreed plan, the Department “shall maintain the status quo by not placing users from Life Esidimeni facilities in any other facility pending the conclusion of settlement discussions.”

 

8. Despite their obligations arising from the settlement agreement, the Department has planned the discharge of users accommodated at the Life Esidimeni facilities. I refer to the attached e-mail of 11 March 2016 marked “CC5”, in which Dr Morgan Mkhatshwa, the Managing Director of Life Esidimeni, informed me that – 8.1. 50 users at Life Esidimeni Randfontein and Life Esidimeni Rand West were identified on 8 and 10 March 2016 for transfer to Takalani Home (“Takalani”). As I set out below, there are in fact 54 users scheduled for placement at Takalani; and 8.2. The users will be placed in Takalani in groups of ten, with the first group being transferred on 14 March 2016. 9.

 

Dr Mkhatshwa also indicated that, in addition to representatives of Takalani, representatives of other NGOs, namely Lebogang Centre, Xihlovo and Tumelo Home, have also visited the Life Esidimeni facilities with a view to selecting users 5 to be placed at these facilities. Unfortunately, I have no further evidence of these planned discharges.

 

10.This is in direct breach of the settlement agreement, which requires that the Department maintain the status quo and not place any users in other facilities pending the outcome of a meaningful consultation process leading to the development of a reasonable plan to ensure the ongoing care of mental health care users at Life Esidimeni facilities.

 

11.As I set out in detail below, the consultation between the parties is underway. The applicants contend, however, that the respondents are in breach of their obligations to consult meaningfully with the applicants. In particular – 11.1. Despite undertaking to do so on several occasions, the Department has failed to provide information requested by the applicants, which information is critical to meaningful consultation; and 11.2. Although we have attended regular meetings with the Department, we have not been advised of the process of assessing users to identify their needs, nor are we aware of how the Department is assessing NGOs as to their capacity to accommodate users’ needs, or what is being done to develop this capacity.

 

12.The information requested by, and which has never been provided to, the applicants is basic information that should be within the knowledge of the  Department in undertaking a project of the scope of the termination of the Life Esidimeni contract. The Department’s inability to provide such information and inconsistency in its reporting at meetings with the applicants makes it clear that the Department is far from having developed a reasonable plan.

 

13.The applicants therefore seek to interdict the discharge and/or placement by the respondents of users at the Life Esidimeni facilities at Takalani, pending a process that ensures that the rights and best interests of these users are protected. In this regard, we seek an order directing the Department to engage with SASOP and the Federation on the assessment of mental health care users and alternative facilities respectively, the outcome of such assessments being foundational to the development of a reasonable plan.

 

14.In setting out the basis for the relief the applicants seek, I deal with the following in this affidavit: 14.1. Parties; 14.2. Urgency; 14.3. Background facts; 14.4. Legal framework; 14.5. The requirements for an interim interdict; and 7 14.6. Costs. PARTIES 15.The first applicant is the South African Depression and Anxiety Group (“SADAG”), South Africa’s largest mental health support and advocacy group. SADAG’s primary place of business is Block E, Rivonia Close Office Park, 322 Rivionia Boulevard, Sandton. 16.SADAG was the first applicant in the 2015 application and is a signatory to the settlement agreement. As I set out in further detail below, SADAG has also been attending regular meetings with the Department as one of the key stakeholders in the closure of the Life Esidimeni facilities and the appropriate placement of the users accommodated there.

 

17.The second applicant is the South African Federation for Mental Health (“the Federation”), the largest national mental health organisation in the country. The Federation’s primary place of business is at 267 Long Avenue, Johannesburg, 2194. 18.The Federation was the third applicant in the 2015 application, and is a party to the settlement agreement. As I set out in further detail below, the Federation has also attended meetings with the Department as one of the key stakeholders in the protection of rights of mental health care users. 

 

19.The third applicant is the South African Society of Psychiatrists (“SASOP”), a professional body representing the interests of psychiatrists. SASOP’s activities are also aimed at fighting discrimination and stigma directed at people with mental illnesses. SASOP’s primary place of business is at Unit 16, Northcliff Office Park, 203 Beyers Naude Drive, Northcliff, Johannesburg. 20.SASOP was the fourth applicant in the 2015 application, and is a party to the settlement agreement. As I set out below, SASOP has been represented as one of the stakeholders at consultative meetings with the Department.

 

The fourth applicant is the Association of Concerned Families of Residents of Life Esidimeni, an association of users of Life Esidimeni and their loved ones, whose objective is to ensure that the users of Life Esidimeni facilities continue to receive the care that they need.

 

22.The fourth applicant was the second applicant in the 2015 application, and is a party to the settlement agreement.

 

23.The first respondent is the Member of the Executive Council for Health in Gauteng (“the MEC”). The MEC is the political head of the Department in Gauteng and is responsible in terms of the National Health Act 61 of 2003 (“National Health Act”) to “ensure the implementation of national health policy, norms and standards in [her] province” in terms of section 25(1). The MEC’s 9 primary place of business is Bank of Lisbon Building, 37 Sauer Street, Marshalltown, Johannesburg, 2147.

 

24.The second respondent is the Head of the Department (“the HOD”). The HOD is the administrative head of the Department and is responsible in terms of section 25 of the National Health Act for, among other things, providing specialized hospital services; planning, co-ordinating and monitoring health services; planning the development of health establishments; controlling and managing the cost and financing of public health establishments and public health agencies; controlling the quality of health care services and facilities; providing health services contemplated by specific provincial health service programmes; consulting with communities on health matters; and promoting community participation in the planning, provision and evaluation of health services.

 

25.The HOD’s primary place of business is Bank of Lisbon Building, 37 Sauer Street, Marshalltown, Johannesburg, 2147.

 

26.The third respondent is Life Esidimeni (Pty) Ltd (“Life Esidimeni”), a company with limited liability incorporated in terms of the company laws of the Republic. Life Esidimeni has been operating the mental health care facilities that form the subject matter of this application in terms of a public private partnership with the Department.

 

27.Life Esidimeni operates five mental health care facilities in Gauteng. This application concerns the threatened transfer of users at its Randfontein and Rand 10 West Facilities. However, the termination of the Department’s service level agreement and the obligations arising from the settlement agreement effect the users accommodated at all of the Life Esidimeni facilities.

 

28.Life Esidimeni’s principal place of business is at 21 Chaplin Road, Illovo, Johannesburg, 2196.

 

29.For ease of reference, where I refer to the first to third respondents in the remainder of this affidavit, I will refer to them as “the respondents”. I will refer to the first and second respondents collectively as “the Department”.

 

30.The fourth respondent is Takalani Home (“Takalani”), a non-governmental organization that provides mental health care services. As I set out in further detail below, Takalani is equipped to provide residential facilities to up to 100 children with severe to profound intellectual disabilities. Its principal place of business is at Power Park, Orlando, Soweto, 1804.

 

31.The applicants cite Takalani because of its interest in this matter. We do not seek any direct relief against Takalani, save for a costs order in the event that they oppose this application.

 

URGENCY

 

32.The purpose of this application is to interdict the discharge and/or placement of users at Life Esidimeni to alternative facilities. The applicants seek to halt this 11 process until the respondents have engaged meaningfully with all stakeholders and developed a reasonable plan that protects the rights of these users and promotes their best interests, including the right to continue to receive mental health care services on at least the same level as what they have been receiving at the Life Esidimeni facilities.

 

33.The respondents have, through their signature of the settlement agreement, undertaken not to discharge users from Life Esidimeni until the stakeholders have all agreed on a plan that meets the needs and promotes the best interests of the users concerned.

 

34.Despite this, the e-mail of 11 March 2016 indicates that the Department has taken a decision to place 54 users at Takalani, with the first group of users being transferred on 14 March 2016.

 

35.The urgency of this application is self-evident. Should the Court not interdict the placement of these users at Takalani before the first group is transferred on 14 March 2016, then the applicants will have no way to enforce the settlement agreement and to protect the rights of the users.

 

36.As I set out below, the applicants have grave concerns about the conditions of Takalani, and the impact of the placement of Life Esidimeni users at this facility, on both the Life Esidimeni users and on the children currently accommodated at Takalani. These concerns are set out in detail in the attached expert affidavit of Dr Joanna Taylor. 12

 

37.Given the imminent discharge of these users, and the negative impact that this would have, the applicants have no other choice but to approach this Court on an urgent basis before such damage ensues. If the matter is not heard on an urgent basis, the impact on all of the mental health care users at these facilities will be severe and irreversible.

 

BACKGROUND FACTS Events leading up to the 2015 application 38.Although this application is based on a settlement agreement concluded on 22 December 2015, it is necessary to provide a brief background to the settlement agreement, and to the litigation that preceded it. 39.The formal announcement of the closure of the Life Esidimeni facilities was made on 21 October 2015, in the attached notice marked “CC6”. However, even in the discussions leading up to this announcement, there were serious concerns about the impact of this closure.

 

40.I attach as “CC7” the affidavit of Dr Talatala, the President of SASOP, filed in the 2015 application. In this affidavit, Dr Talatala refers to the following concerns as communicated to the Department: 

 

40.1. The discharge of users to acute care facilities will place significant pressure on these facilities, and will compromise their ability to meet the needs of all of the users. Acute care facilities are already operating under strain, and cannot accommodate all of the new acute admissions, let alone the chronic users. 40.2. The users at Life Esidimeni are, as a matter of policy, not ready to be discharged to their communities and require a very high level of care. 40.3. There is a threat that the users discharged to their communities before they are ready will, as a result of their lack of treatment, be arrested, and will then need to be accommodated in the forensic psychiatry system, which is already overburdened.

 

41.I further refer the Court to Dr Talatala’s confirmatory affidavit, which will be attached.

 

42.Despite these concerns, the Department put together a termination strategy for the closure of the Life Esidimeni facilities and the placement of the users accommodated there. A copy of this termination strategy is attached as “CC8”.

 

43.The applicants, and particularly SADAG, had a number of concerns about this termination strategy, and specific questions relating to the discharge and placement of users. In response to a request by the Department to do so, SADAG recorded these questions in writing in the attached letter marked “CC9”, 14 and dated 26 November 2015. SADAG regards the answers to these questions as a prerequisite for meaningful consultation. To date, and despite undertakings to provide these answers, we still await a substantive response.

 

44.On 30 November 2015, at a meeting between the Department and SADAG, the Department made the following undertakings, as recorded in the cover letter and minutes attached as “CC10”: • SADAG, the Department and other stakeholders will meet on 7 December to initiate and plan a consultative process through which plans for Esidimeni users will be developed; • These plans will result in Esidimeni users receiving services on at least the same level of the services they currently receive; • The Department has not instructed Esidimeni to discharge users and will not begin with discharging users until 2016, the HOD also indicated that users will not be discharged pending the consultation above and preparation of other facilities to provide appropriate services; • The Department will share the evaluation process and criteria for discharge and transfer of users; and • The Department will respond to the questions posed in SADAG’s letter of 26 November 2015, especially as it will not be possible to have meaningful engagement on plans for Esidimeni users in the absence of this information. 

 

45.On 5 December 2015, however, SADAG received an extract from what appeared to be an updated plan for the discharge of users accommodated at Life Esidimeni. A copy of this document is attached as “CC11”. This document suggested that 353 users had been discharged from Life Esidimeni as at 4 December 2015.

 

46.With the Department having breached its undertaking not to discharge users pending the outcome of a meaningful consultative process, as well as persisting in its failure to provide the information necessary for this process, the applicants’ attorneys wrote to the Department on 9 December 2015, proposing the appointment of curators to investigate the needs of the users at Life Esidimeni, and requesting an undertaking not to discharge any users pending the completion by the curators of their mandate. I attach a copy of this letter as “CC12”.

 

47.The Department did not accept this approach. In the attached letter marked “CC13” and dated 14 December 2015, the Department indicated that it would continue with the proposed discharges. 48.To protect the rights of the Life Esidimeni users, therefore, the applicants filed the 2015 application, which gave rise to the settlement agreement. Events following the conclusion of the settlement agreement

 

49.SADAG has, in line with the settlement agreement, maintained regular correspondence with the Department since January of this year. A summary of that correspondence follows.

 

50.SADAG wrote to the Department on 15 January 2016 in regard to a meeting held with the Department on 6 January, attaching the minutes of that meeting and reiterating SADAG’s “eagerness to engage with the Department to develop a plan that is in the best interests of mental health care users at Life Esidimeni facilities.” SADAG also noted that, while the settlement agreement stated an intention to develop a plan for Life Esidimeni users by 31 January, it remained committed to “continue to work with the Department for as long as necessary to ensure that the best interests of [Life Esidimeni] users are protected.”

 

51.SADAG also set out once more the questions raised initially in its letter of 26 November 2015, reiterating that this information was critical to the meaningful consultation process, as well as further questions arising out of the meeting of 6 January. It is not possible to develop a reasonable plan without this information.

 

52.A copy of this letter, together with the minutes of the meeting, is attached as “CC14”. The Department, rather than providing input into SADAG’s minutes, provided its own set of minutes, in the attached document marked “CC15”.

 

53. A further meeting was held on 20 January 2016. SADAG addressed a letter to the Department attaching its minutes on the same day. A copy of this letter is attached as “CC16”. The Department, rather than providing input into SADAG’s 17 minutes, provided its own set of minutes, in the attached document marked “CC17”.

 

54.It is clear from the minutes that SADAG repeated its requests for information, and that the Department undertook to provide copies of the requested reports and documents. These were never provided.

 

55.The next stakeholder meeting was held on 9 February 2016. SADAG’s minutes of the meeting, with the attached cover letter, are attached as “CC18”. As is clear from the attached email from Mr Levy Mosenogi, marked “CC19”, the Department confirmed these minutes, save for some minor corrections. The Department, however, also provided its own minutes, attached as “CC20”.

 

56.SADAG’s cover letter, to which the minutes of the 9 February meeting were attached, records its concerns about the progress in the consultation process and the reliability of the information provided by the Department. This concern was especially acute in regard to the Department’s reports of the number of users at Life Esidimeni. SADAG noted that the Department had reported at various times “dramatically inconsistent” figures. These figures were also inconsistent with figures reported by Life Esidimeni. Finally, SADAG noted that “to the extent that the Department’s figures are coherent, they appear to indicate a dramatic rise in January 2016 of the number of residents discharged from Life Esidimeni facilities.”

 

 57.SADAG also repeated its request for the information required for meaningful consultation and a reasonable plan. Again, the request for this information went unanswered. SADAG closed its letter by summarising circumstances that gave rise to “grave concerns” as to the rights of Life Esidimeni users. In the light of these concerns, it requested a response by 23 February.

 

58.In addition to the above and also in response to the 9 February meeting, SASOP also wrote to the Department on 9 February. This correspondence is attached as “CC21”. This correspondence clarified to the Department SASOP’s role, and the necessity of SASOP’s involvement in, the settlement discussions. SASOP also offered assistance to the Department and explained why SASOP’s expertise is of value. In particular, SASOP could provide invaluable assistance in the assessment of the needs of users at Life Esidimeni, so that the Department could take appropriate steps to meet these needs. I refer to the confirmatory affidavit of Dr Talatala, the President of SASOP, which will be attached.

 

59.On 22 February 2016, the Department issued a media release indicating that it was extending its contract with Life Esidimeni for three months. In other words, rather than the facilities closing on 31 March 2016, they are due to close on 30 June 2016. A copy of this statement is attached as “CC2”. The applicants only learned of this decision through the media release, despite our regular engagement with the Department as important stakeholders.

 

60.SADAG responded to this media release in a letter dated 22 February 2016, and attached as “CC22”. Although we welcomed the decision to delay the closure of  the Life Esidimeni facilities, we repeated our concerns regarding the Department’s inconsistent reporting of the number of Life Esidimeni users. We also noted the Department’s intention to discharge users in phases and requested details in regard to this plan. Finally, the letter once again requested the outstanding information SADAG had previously requested. We did not receive any of the details requested.

 

61.On 24 February 2016, SADAG wrote to Mr Morgan Mkhatshwa of Life Esidimeni. This correspondence is attached as “CC23”. The correspondence reminded Life Esidimeni of its undertaking at the meeting of 9 February to send a summary of discharges over the previous six months. After a follow-up request on 29 February 2016, a copy of which is attached as “CC24”, Mr Mkhatshwa responded on 2 March 2016 and attached a summary of discharges. This correspondence is attached as “CC25”.

 

62.Mr Mkhatshwa’s correspondence does not indicate an increase in discharges. However, we remained concerned that the Department was continuing to discharge users from Life Esidimeni.

 

63.As I discuss below, we later learned that the Department was making an artificial distinction between the “discharge” of users (which it defines as sending users home to be cared for by their families) and “placement” of users (which it defines as placing users in alternative facilities). The applicants do not support such a distinction as rational. In any event, the settlement agreement prohibits any release of users from Life Esidimeni (outside discharges in the ordinary course),  pending the development of a reasonable plan following a meaningful consultation process.

 

64.On 3 March 2016, SADAG wrote to the Department. A copy of this letter is attached as “CC26”. This letter emphasized SADAG’s concerns in regard to the outstanding information requests as well as the “increasing lack of clarity as to the number of residents at and discharges from Life Esidimeni.” SADAG also extended, on behalf of SASOP and the Federation, formal offers of assistance to the Department. These offers pertained to the unique expertise of SASOP and the Federation, and their ability to assist in the assessment of users and the vetting of alternative health care facilities to ensure that the users would continue to receive an equal standard of mental health care services.

 

65.On 4 March 2016, Dr Manamela responded to this letter noting that the letter had been sent late in the evening and requesting that the parties “clarify issues” during the upcoming meeting of 8 March. This correspondence is attached as “CC27”. 66.Mr Mosenogi also responded in correspondence of 4 March to “suggest that the offers [of SASOP and the Federation] be discussed at the next meeting.” This correspondence is attached as “CC28”.

 

67.On 7 March 2016, SADAG again wrote to the Department reminding it of the need for the outstanding information prior to the 8 March meeting. This  correspondence is attached as “CC29”. We did not receive the requested information.

 

68.The parties met on 8 March 2016. At that meeting, it emerged that the Department had been planning the “placement” of users at alternative facilities, and that it did not consider these “placements” as discharges. This raised grave concerns for the applicants. We had still not been provided with information about the needs of the users and the capacity of the alternative facilities to meet these needs. Without this information, we could not be satisfied that the users scheduled to be discharged would receive the mental health care services to which they are entitled.

 

69.We therefore addressed a letter to Life Esidimeni on 9 March 2016, requesting a summary of both “placements” and “discharges”, so that we could assess the current situation. We were concerned that, if users were being discharged, this would be in breach of the settlement agreement. More importantly, we were concerned that the needs of the users would not adequately be met. A copy of this letter is attached as “CC30”.

 

70.On 10 March 2016, we sent a follow up letter, noting that it had come to our attention that day that the Department had instructed that 50 Life Esidimeni residents were earmarked for discharge and placement. We requested specific information in relation to this development and asked for an urgent response, by 11:00 on 11 March 2016. A copy of the letter is attached as “CC31”.

 

 71.Life Esidimeni responded on the afternoon of 11 March 2016, in the attached letter marked “CC5”. This was the first confirmation we received that the Department is planning to discharge 54 Life Esidimeni users to Takalani, and that these discharges will commence on 14 March 2016. The 11 March 2016 letter did not state whether similar discharges had occurred previously.

 

72.We considered this to be in direct breach of the settlement agreement, in which the respondents undertook not to discharge users until a reasonable plan was developed following a meaningful consultation process.

 

73.Importantly, although the Department recognized in the settlement agreement that the applicants are key stakeholders to be included in the consultation process, we have no information to suggest that the Department has assessed the conditions at Takalani Home and its capacity to absorb 54 users with these particular conditions.

 

74.We also had specific concerns about Takalani. I refer to the attached document marked “CC32” and entitled “Mental Health Project Progress Report”. Page 5 of the document records that Takalani provides “child residential” services to users with “severe / profound” intellectual disabilities.

 

75.The e-mail from Life Esidimeni included a list of 54 users scheduled to be discharged from Life Esidimeni and placed at Takalani. A copy of this list is attached as “CC33”. I have redacted the names, dates of birth and identity 23 numbers of the users to protect their privacy, but will make the information available to the Court should this be required. As is evident from this list – 75.1. Although Takalani is listed by the Department as a children’s facility, the age of the users scheduled to be transferred there ranges from 24 to 101. 75.2. Takalani is listed by the Department as accommodating users with severe or profound intellectual disabilities. The current clinical conditions in the list of users however includes current clinical conditions such as “dementia”, “frail”, “behavior problems”, “schizo-affective disorder”, “hyper sexuality”, “epilepsy”, “severe cognitive impairment”, “schizophrenia”, “psychosis” and “autism”, as well as a host of comorbidities. There is no evidence that Takalani is adequately equipped to meet these users’ needs.

 

76.I also refer to the attached affidavit of Dr Joanna Taylor, in which she raises critical questions about the safety of the users currently accommodated at Takalani, and the concerns about placing Life Esidimeni users at that facility.

 

77.Our attorneys therefore immediately addressed a letter to the respondents, demanding an undertaking by 08h00 on Saturday 12 March 2016 not to discharge users from Life Esidimeni to place them at Takalani or elsewhere until the outcome of a meaningful consultation process. A copy of this letter is attached as “CC34”. 24 78.The respondents did not provide the undertaking as we had demanded. We therefore had no choice but to approach this Court on an urgent basis for relief.

 

THE LEGAL FRAMEWORK

 

79.Section 27(1)(a) of the Constitution affords everyone in South Africa “the right to have access to health care services.” I am advised that this right imposes two categories of obligation on the government: 79.1. First, in terms of section 27(2), the State has the positive obligation to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right of access to health care services. 79.2. Second, the State has a negative obligation not to reduce the degree of access to health care services that are currently available. Put differently, the State may not take or permit any regressive measures that cut back on the health care services that it has already put in place.

 

80.These rights are also to be viewed in the context of section 195 of the Constitution, which sets out the basic values and principles governing public administration. These include the following:  80.1. A high standard of professional ethics must be promoted and maintained; 80.2. Efficient, economic and effective use of resources must be promoted; 80.3. People’s needs must be responded to, and the public must be encouraged to participate in policy-making; 80.4. Public administration must be accountable; and 80.5. Transparency must be fostered by providing the public with timely, accessible and accurate information.

 

81.One of the key pieces of legislation giving effect to section 27 of the Constitution is the National Health Act 61 of 2003 (“the National Health Act”). 82.The National Health Act recognises the value of “a spirit of co-operation” between private and public health professionals and providers as well as a “shared responsibility” between them. It also establishes a single “national health system” comprised of pubic and private components “concerned with the financing, provision or delivery of health services”.

 

83.The objects of the National Health Act as set out in section 2 include:  83.1. establishing a national health system which encompasses public and private providers of health services; and 83.2. protecting, respecting, promoting and fulfilling the rights of: 83.2.1. the people of South Africa to the progressive realisation of the constitutional right of access to health care services, including reproductive health care; and 83.2.2. vulnerable groups such as women, children, older persons and persons with disabilities.

 

84.The National Health Act requires the Department to “establish such health services as are required in terms of this Act” and requires all health establishments in the public sector to “equitably provide health services within the limits of available resources” in terms of section 3(2). It also places an obligation on the MEC to “ensure the implementation of national health policy, norms and standards in his province” in terms of section 25(1).

 

85.The Head of Department’s obligations in terms of section 25 include the following: 85.1. Provide specialised hospital services; 85.2. Plan, co-ordinate and monitor health services and evaluate the rendering of health services; 85.3. Plan the development of public and private hospitals, other health establishments and health agencies; 85.4. Control and manage the cost and financing of public health establishments and public health agencies; 85.5. Control the quality of all health services and facilities; 85.6. Provide health services contemplated by specific provincial health service programmes; 85.7. Consult with communities regarding health matters; and 85.8. Promote community participation in the planning, provision and evaluation of health services.

 

86.The respondents are also under obligations arising from the Mental Health Care Act 17 of 2002 (“Mental Health Care Act”). The objects of the Mental Health Care Act include the obligation to regulate mental health care in a manner that “makes the best possible mental health care, treatment and rehabilitation services available to the population equitably, efficiently and in the best interests of mental health care users within the limits of available resources”. (My emphasis)

 

 87.In line with these objectives, section 4 requires the Department to determine and co-ordinate the implementation of its policies and measures in a manner that, inter alia, promotes the rights and interests of mental health care users.

 

88.Section 6(1)(a) of the Mental Health Care Act requires that health establishments provide persons requiring mental health care, treatment and rehabilitation services with the appropriate level of mental health care, treatment and rehabilitation services within their professional scope of practice.

 

89.These services must, in terms of section 8, be proportionate to a user’s mental health status and may intrude only as little as possible to give effect to the appropriate care, treatment and rehabilitation.

 

90.To give effect to these principles, the Department has adopted the Gauteng Mental Health Policy. A copy of this policy is attached as “CC35”.

 

91.The overall spirit of this policy appears to be one of de-institutionalisation, coupled with strengthening the capacity of NGOs and other community-based facilities to cater to the needs of mental health care users and provide them with the treatment they require.

 

92.The Policy states that the Provincial Departments of Health are to licence and regulate the provision of community-based mental health services by NGOs and for-profit organisations, such as community residential care, day care services,  and halfway houses. To my knowledge, however, there has been no such regulation that is sufficient to meet the needs of mental health care users currently accommodated at Life Esidimeni.

 

93.There is also a clear emphasis on collaboration with stakeholders, in the best interests of mental health care users. This is key to the realization of the users’ right of access to health care services, and to the specific measures to ensure that they receive a level of mental health care that meets their needs.

 

94.This legal framework formed the basis for the 2015 application, and continues to bind the respondents. They are prohibited from adopting measures that would have a regressive effect on the right of Life Esidimeni users to health care services. They are further required to take positive steps to meet the mental health care needs of these users, to ensure that they are placed in appropriate facilities and to consult with all relevant stakeholders to meet these needs.

 

THE REQUIREMENTS FOR AN INTERIM INTERDICT

 

95.I am advised that the applicants must meet the following requirements for an interim interdict: 95.1. A prima facie right; 95.2. A well-grounded apprehension of irreparable harm; 30 95.3. The balance of convenience favours the granting of the interdict; and 95.4. No other available remedy.

 

96.I deal with these requirements in turn. Prima facie right 97.This application is grounded in the settlement agreement, which imposes an obligation on the respondents not to discharge users accommodated at Life Esidimeni, until the conclusion of a meaningful consultation process, the outcome of which would be a reasonable plan to meet the needs of these mental health care users.

 

98.Importantly, the settlement agreement creates an obligation not to discharge users to their families, nor to discharge them to be placed at other facilities. This is critical to the protection of the rights of these users, as the appropriate placement of users must depend on an assessment of their needs and the identification of appropriate facilities that can and will accommodate these needs.

 

99.Not only does this right arise from the respondents’ obligation in terms of the settlement agreement, but it is also a feature of the right of access to health care services protected by section 27 of the Constitution, and through the National Health Act and the Mental Health Care Act. The users have a right to have their mental health care needs met. Their needs are being met at the Life Esidimeni  facilities. A discharge of these users to their families or to other facilities, without a thorough assessment of the needs of the users and the extent to which these will be met, has a clear impact on their rights to health care. 100. In addition, as key stakeholders in the protection of rights of mental health care users, the applicants have a right to be included in a meaningful consultation process. As is clear from the settlement agreement, the aim of this process is to produce a reasonable plan to ensure that the health care needs of the users will be met. This would be entirely undermined if the users were to be discharged before the finalisation of this plan. This is particularly the case given that all of our interactions with the Department suggest that it does not yet have a reasonable plan to ensure the ongoing care of users of Life Esidimeni. In fact, it does not so much as have in its possession the information that would be required to develop a reasonable plan. Well-grounded apprehension of irreparable harm

 

101. The discharge of users before the development of a reasonable plan to meet their needs creates a threat of regressive measures in the realization of their right to health care services. I set out above the applicants’ specific concerns in relation to Takalani. These are also addressed in the affidavit of Dr Joanna Taylor.

 

102. The very purpose of the consultation process envisioned in the settlement agreement is to ensure that when the users are discharged, they are transferred  to facilities that can appropriately meet their mental health care needs. The evidence suggests that the users’ needs will not be met at Takalani and that their placement at Takalani may in fact threaten the safety of the users currently at that facility. Balance of convenience

 

103. I am advised that this enquiry considers the impact on the applicants if the interdict is refused, against the impact on the respondents if it is granted. While I am advised that the balance of convenience is considered only in the event that the right relied on by the applicants is open to doubt, I have addressed this issue out of an abundance of caution.

 

104.The respondents expressly agreed not to discharge users until the parties had agreed on a reasonable plan to meet these users’ needs. The effect of an interdict against the discharge of users would merely be to enforce their own undertaking.

 

105.The respondents’ undertaking as recorded in the settlement agreement arises from their legal obligation to meet the health care needs of the users accommodated at Life Esidimeni, and to consult meaningfully with stakeholders to ensure that these needs are adequately met.

 

106.The applicants do not seek a final interdict that would force the respondents to continue to accommodate users at Life Esidimeni indefinitely; rather, we seek a 33 hold on discharges pending the conclusion of a process that will ensure that the users are discharged to places that will adequately meet their needs and that the level of health care services that they are currently receiving is not diminished.

 

107.It is clear that the balance of convenience therefore favours the applicants. No other available remedy

 

108.The nature of the harm threatened in this case goes to the heart of the constitutional rights of some of the most vulnerable members in our society. They are entitled to access mental health care services and have been accessing these services at the Life Esidimeni facilities. If they are transferred to facilities that do not adequately meet their needs, the harm they will suffer will be irreparable.

 

109.Pursuant to the settlement agreement, the applicants have been relying on the respondents’ good faith in ensuring that the interests of these users are protected. We have, however, still not received the information we require to engage meaningfully with the respondents. In addition, the respondents have been acting in bad faith in creating an artificial distinction between “discharges” and “placements” in seeking to circumvent the settlement agreement.

 

110.In the circumstances, the applicants have no choice but to approach this Court to enforce compliance with the settlement agreement, and in particular to 34 prevent the discharge of users before the development of an appropriate plan as to how their needs will be met. COSTS

 

111.The applicants have brought this application in the interests of mental health care users and in the public interest, to protect the right of access to health care services in section 27 of the Constitution. We have been engaging with the Department in good faith to ensure that the needs of the users are met and that they do not receive any interruption in their care or any decrease in the level of their care.

 

112.We entered into the settlement agreement on 22 December 2015 and, since then, have been attending regular meetings with the Department as part of the envisaged consultative process. We were not informed of any intention to discharge users to be placed at Takalani or anywhere else. We have also not received any of the information we require to make meaningful consultation possible.

 

113.As soon as we received the information of the imminent discharges, we gave the Department an opportunity to reverse its decision and to comply with the settlement agreement. They did not do so. We therefore had no choice but to approach this Court for assistance in protecting the rights of the Life Esidimeni users. 3

 

114.On this basis, we submit that the respondents should be held liable for the applicants’ costs in bringing this application.

 

CONCLUSION

 

115.The respondents’ plan to discharge users from Life Esidimeni in direct breach of their obligations under the settlement agreement. They continue to undermine the rights of the Life Esidimeni users to mental health care services and shirk their obligations to consult meaningfully with stakeholders.

 

116.On this basis I submit that the applicants have made out a case for the relief we seek. We therefore pray for an order in terms of the notice of motion to which this affidavit is attached. ___________________

 

DEPONENT I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at ________________________ on this the ____day of __________________ 2016. ________________________

 

COMMISSIONER OF OATHS

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