Culpable homicide bid fails: Perhaps I should've laid a charge of racism (part 2)

In previous posts I related my attempts to get the circumstances of my mother's death last year at Groote Schuur Hospital investigated.

This week the National Prosecutions Authority's (NPA) office in Cape Town, the Director of Public Prosecutions (DPP), finally, almost nine months to the day after my mother died on 7 July 2017, declined to prosecute doctors at Groote Schuur Hospital for culpable homicide, assault and violation of health laws. Without following medical and health legislative protocols or contacting the family for our consent, doctors removed her life-saving breathing tube, which led to respiratory and heart failure. She also died of heart complications of diagnosed but discontinued treatment of anaemia. 

Note medical guidelines and health legislation regarding the care of patients and withholding and withdrawing treatment are strict, and the law about the lack of informed consent, which I reminded the prosecutor must be considered, is very clear. 

In  a letter this week the DPP told me that while he declines to prosecute, he has referred the matter as an inquest. An inquest under the Inquests Act, 1959 is a public inquiry and is conducted for deaths by "unnatural causes"; no-one is accused, there is no defendant and it's a no-fault hearing.  Inquests may but are not always held for unnatural deaths. It's up to the prosecutor, depending on information contained in the docket, most importantly, the post-mortem report.

Note because my mother's death was originally declared an "unnatural death" for a reason unrelated to her treatment at hospital (she fell at home and broke her femur, an accident), only later we realised the manner of her death was suspicious.

On the surface there's no problem with an inquest - it's about determining the truth, right?  But in this case the DPP has already found there was no medical negligence and no crime had been committed.  I have a problem with this because they ignored the law regarding her treatment, especially the lack of informed consent. The defining case establishing informed consent in South Africa medical law was Castell v De Greef 1994, which found that treating a patient without informed consent is tantamount to assault. It was upheld by later decisions. Consider that and the way doctors removed her life-support that caused her death, and I believe there are grounds for criminal charges.

My mother's life-supporting breathing tube was removed without our consent (she was unconscious/comatose; under the National Health Act, her children were her proxies), and led to respiratory and heart failure and death. The doctors made serial and systematic blunders the day she died, particularly, when they decided for reasons we still don't understand to remove the tube. Apart from not contacting and keeping us informed from midday to the time of death that night, they did not consult with specialists, review the risks and options of treatment, especially, removing and withholding life-support as medical law and health professions guidelines require. 

We're not sure who made the decision and carried it out because the hospital won't tell us, but suspect a 28 year-old junior Dr B--- who joined Groote Schuur November 2016 (his Facebook page says he graduated at the University of Cape Town in 2012), removed the tube.  At the family briefing at 1am that night the attending senior Dr A---, who should have been consulted and part of the decision-making process and ensured the family were informed and our consent requested, claimed "I don't know who did it and I wasn't there". Note he was there because my sister and I spoke to him that evening when we visited my mother before she died, and he was unbelievably rude to us including ordering us to leave the ward - "families can't hang around here" (my mother was seriously ill, we weren't in the way and visitors are allowed at any time). He lied about that and the time of death. 

Dr A--- is an Indian national whose LinkedIn and Facebook pages say he studied in India then worked at Mafraq Hospital in Abu Dhabi. Goote Schuur is his second listed employer where he has been a trauma consultant and fellow since 2015. The third implicated doctor is an anaesthetic registrar who apparently instructed the tube's removal at 9pm that night, noting the family must be informed. We were only contacted one and half hours after she died.

Dr A--- gave us the wrong time of death despite having her medical record available. Groote Schuur Hospital and Western Cape Health Department have consistently refused to say who did what and why, and why he got the time of death wrong. Contrary to the law that states medical information must be given to patients and their families, the hospital only reluctantly gave the doctors' names after a promotion of access to information request.

Curiously, I believe neither the police nor DPP obtained statements from the doctors, hospital and health department in what was effectively a criminal investigation, criminal "proceedings" the DPP in December denied was taking place despite me, my family, Premier Helen Zille and health department believed was undertaken.

So, I believe the DPP made a political rather than legal decision. There is precedent. In 2003 they refused to prosecute the hospital's Christopher Hobbs, until 2002 a visiting British fellow, for practicing medicine without South African registration (fraud) and after he committed medical negligence - he misdiagnosed and mistreated a routine injury resulting in infection destroying my right hand joint (see Groote Schuur Hospital Negligence). It took me two years to show their "mistake", but by then it was too late. According to an aggressive and unapologetic DPP advocate, it would have been "unfair" to prosecute Hobbs, who had returned to the UK without a blemish on his record, and extradition didn't apply to the case.

My response dated 11 April 2018 to the Director of Public Prosecutions:

Dear Sir

Thank you for your letter of 10 April 2018. (Note their letter's heading states "medical negligence". I never laid that charge but culpable homicide, assault and violation of health legislation.)

You decided not to prosecute but instead referred the case as an inquest at the Wynberg Magistrates Court. What are the reasons for both? 

For the first, you presumably determined no laws were broken or crimes committed; there was no medical negligence or malpractice, and despite the medical record proving its absence, there was informed consent and thus, no assault. Alternatively, there was no informed consent but that was not sufficient to persuade you prima facie crimes had been committed. 

Also, based on [pathologist] Dr ----’s medical negligence opinion and post-mortem findings, you probably determined the doctors had done all they could and my mother received the best possible care and that she died, as the hospital found after their superficial examination, of complications of heart and lung failure following her fall. 

The fact her life-supporting breathing tube was removed without the doctors following medical and legislative protocols, which was done without our knowledge and consent, that caused her lungs and heart to fail and her death, apparently, is not a matter you need consider further. 

Perhaps if I had accused the doctors and hospital of “racism”, which is de rigueur and I actually mentioned in my statement as a possible reason for [the attending doctor - see above] Dr A----’s discourtesy to us on the day, you might have taken the matter seriously. 

Your decision not to prosecute strongly suggests that according to you, my mother died of natural causes. I am confused. If her fall at home was an accident and her death was by natural causes, why did you instruct Wynberg’s senior public prosecutor to refer the case as an inquest? That implies you are unsure about some aspects, which ones you don’t say. But last month [police detective] Capt. ---- informed me you had not given him further instructions, i.e., to continue the investigation, which would have provided more clarity. Also, I believe you did not obtain statements from the implicated doctors, hospital and health department in at least a semblance of a balanced investigation, which is unusual for criminal complaints. Why did you curtail the police investigation? 

An inquest is guided by the evidence leader, in this case, the prosecutor. It could either be by reviewing the docket only or in open court with testimony. Wynberg’s senior prosecutor has less insight into the case than you, and only third-hand compared to your direct knowledge of the docket having directed the police to gather, except the statement I provided, the post-mortem report, medical negligence opinion and “research” you mentioned. Ultimately, the inquest magistrate will have the same information you do so cannot conceivably arrive at a different conclusion than you. 

Therefore, on the basis of the same exonerating information in the docket that decided you not to prosecute, your decision to refer the matter as an inquest for further investigation appears contradictory, irrational and perhaps motivated by what you think we want to hear. 

While we want an inquiry into her death (one into why she fell is trivial and unnecessary) because the circumstances warrant it, on principle I will not be involved with an “inquiry” that goes through the motions, where real evidence is not led and interrogated and those involved in the matter are not called to testify; where the outcome is predetermined (like the Seriti Commission of Inquiry) and where, if evidence of wrongdoing is proven, no-one is held accountable. This is what I told the Western Cape Department of Health about the [Independent Health Complaints Committee] IHCC inquiry, which I think was the real reason they cancelled it. 

I appreciate you have been under pressure from me, Premier Zille and the Western Cape Department of Community Safety’s Adv. ------*, to whom you freely gave information about the case. But if you had prosecuted, it would have opened the floodgates given that, according to Cape Town’s inquest magistrate, Woodstock detectives are inundated with “unnatural causes” deaths out of Groote Schuur Hospital, like our neighbour’s 16 year-old daughter who died a couple of years ago after being admitted, lucid and talking, but was brain-dead a few days later (the grieving family still have no idea what happened as there was no inquest, proving inquests are not a foregone conclusion). Politically, this would not be tolerated, so I suspect you opted for the no-fault inquest. 

Just like your refusal to prosecute Dr Hobbs in 2003 for violating the law, I suspect your decision not to prosecute now has in it an element of politics and the Western Cape Government’s and Mrs Zille’s veiled pressure, to whom you gave an update, apparently, before giving one to me. The fact that you are silent about the law on informed consent, or did not consider it at all, indicates as much.

Nothing that transpired here gives me confidence in the NPA and police. 

Faithfully

Thomas Johnson

[End]

Conclusion

The public's perception and experience of the National Prosecuting Authority of South Africa and police is that generally, they are mediocre, inept and susceptible to political interference, as the long-delayed Zuma fraud prosecution proves. Of course, there are exceptions among them.

But arguably, the senior prosecutor who handled our case and freely gave information about an ongoing investigation*, which the DPP denies, to the respondents Western Cape Government's and Premier Zille's advocate on request lacks an understanding of medical law, and too might be in awe of and susceptible to political influence. 

On April 12 I emailed Wynberg Magistrate Court's senior public prosecutor and inquest magistrate informing them I shall not be involved with the inquest (my family will have to make their own decision). On principle and in good conscience I cannot participate in a sham hearing when the "fix" is in, i.e., the outcome is as the DPP already decided, and the respondents to the complaint, the WC government, have a conduit into the prosecutor's office.

The Health Professions Council of South Africa has registered my complaints against the doctors and hospital and health department administrators.

*Footnote: On November 23 the senior advocate phoned me. He said Premier Zille had instructed him to look into the case. I thought it was making good on her promise to internally investigate my mother's care. He wanted letters the DPP sent me. He had spoken to the police station commissioner and investigator (at two stations) and senior state prosecutor who gave him information. "I used to work [at the DPP]". I asked who he was really. He said he was exercising his legislative "oversight" authority. But his department has no remit over the National Prosecuting Authority, only police. Later I got suspicious and emailed the police and DPP stating I was concerned they gave information about an ongoing investigation to the de facto legal representative of the respondent/accused, the WC government. The DPP didn't respond to that in his letter of December 7. But in his recent letter he insisted they only provided a "status" report.

Zille reneged on her promise to independently investigate, which, incidentally, is required by the National Health Act. Her chief of staff emailed me they cannot interfere in a criminal investigation.

Footnote and links added 15/04/2018.