15 December 2022
Illustration: Lisa Nelson
Senior officials at the Tembisa Tertiary Hospital, including its former CEO Dr Lokopane Mogaladi, must be disciplined for their roles in the death of a patient, an independent ad hoc tribunal has ruled.
Shonisani Lethole was admitted to Tembisa Hospital on 23 June 2020 with Covid. He had chest pains, was weak and battling to breathe. He was intubated on 27 June. He died two days later.
But before he died, Lethole took to Twitter on 25 June to describe the unbearable and uncaring conditions he was experiencing. He said he had not eaten for two days.
An Ombud investigation was prompted by a complaint by the Minister of Health.
Health Ombud Prof Malegapuru Makgoba in January last year found that Lethole had been denied food for “100 hours and 54 minutes” and that medical staff had been grossly negligent. He recommended that 18 staff members, including doctors and nurses, should face disciplinary action.
Mogaladi was suspended almost immediately afterwards.
An appeal tribunal, set up in terms of the National Health Act, consisting of three members – two doctors, Prof Rudo Mathivha and Prof Ebrahim Variava, and retired Constitutional Court Judge Bess Nkabinde – considered appeals by Mogaladi and Dr Makhosazane Ngobese, head of the Covid unit at the time, against the Ombud’s findings and recommendations.
Mogaladi and Ngobese raised several grounds of appeal, including that there was no valid complaint, that the Ombud had acted beyond his mandate and that his findings were not supported by the evidence.
The tribunal returned two decisions. Judge Nkabinde said she would have upheld the appeal in its entirety. But the majority, Professors Mathivha and Variava, while setting aside some of the Ombud’s recommendations, said Mogaladi and Ngobese should still be disciplined.
Regarding Mogaladi, they said he should be disciplined for presiding over a hospital “that on two separate occasions could not provide Lethole food for prolonged periods”, and a “health establishment that showed poor record-keeping”. He should also face charges relating to substandard care at the hospital.
Regarding Ngobese, they set aside the findings against her except one, that she should face a disciplinary inquiry for her failure to ensure that critical care equipment in the Covid ward was available and functioning properly.
The tribunal said Lethole had been described by his family as a very responsible young man, a “son of the soil” who was deeply loved and cherished.
The two professors said they differed with Judge Nkabinde on the question of accountability.
“While we recognise the immense challenges brought by the Covid-19 pandemic, the norms and standards regulations remained applicable.
“Where we find, on a fair consideration of the facts, that these norms and standards have not been fulfilled, and where there is a prima facie indication that the appellants had some responsibility in relation to their non-fulfillment, we consider it appropriate and important to recommend that an accountability process follows,” they said.
Judge Nkabinde, in her ruling, placed emphasis on the impact of the pandemic on hospitals and said based on the rationality and procedural fairness grounds of appeal, the appeals should succeed.
“This conclusion should not, however, be understood to suggest that no-one should be held accountable when a proper case is made. It is difficult to accept a loss of life … but adverse factual findings and remedial action should be rational and should be right, just and fair.”
She said her judgment did not stop the Department of Health from taking steps to fix the systematic issues at the hospital or disciplining those “properly found” wanting in upholding a high standard of professionalism.