Groote Schuur doctor accused of culpable homicide still working

Imagine my surprise when I saw Daily Maverick’s feature on Wednesday July 4 about Groote Schuur Hospital’s Trauma Centre.  There in the last photo is one of the doctors, Mikhail Botha, who contributed to my mother's death on 7 July 2017. (See my previous blog posts. Botha allegedly removed her life support without contacting the family after which she died of resultant respiratory and heart failure.)   He’s the one wearing green scrubs and the hipster goatee.

Our criminal (on, off, on, off again) and professional charges to the Health Professions Council of SA (HPCSA) about the incident are still open. He is a respondent to both. 

Cape Town's Director of Public Prosecutions (DPP) messed the case badly and now apparently don't know what to do about it. Wynberg Magistrates Court’s senior state prosecutor rejected it as an inquest due to "jurisdictional problems".  

Out of the blue, last month I heard from a police colonel, who was unaware of all the legal problems and machinations behind it, that Wynberg's senior prosecutor J Brandt had sent the docket back to the DPP around April 25 after receiving it a few weeks before.

I emailed Brandt and he confirmed they did send it back.  This is extraordinary and unheard of.  After they received the case (in April), he emphatically told me by email  he "cannot overrule the DPP's decision or intervene [in that decision] and can only follow their instructions".  

This gives some indication of the case's legal and political problems the DPP self-created.

I'm the complainant but both prosecutors’ offices, especially DPP, didn't let me know. Wynberg's prosecutor said I should contact the DPP for information.  I did but they didn't reply.  

On June 11 I laid a complaint against the DPP with the National Director of Public Prosecutions Shaun Abrahams[footnote 1] for incompetence, failing to investigate and review credible charges of assault, culpable homicide and violations of health laws, succumbing to political pressure from Premier Helen Zille, and a DPP senior state prosecutor volunteering case information to Zille’s government lawyers that until then I as complainant didn't know and had a hard time getting (and still do). 

In November Zille instructed one of the Western Cape government's advocates, Jan Gerber, to nose around a then ongoing police and DPP "investigation" (I use the term loosely; see below). 

Coincidentally, Zille is one of Daily Maverick’s opinionistas, arguably the most disingenuous and high and mighty of them, who writes "From the Inside" column that lectures DM's readers about governance, morality and ethics. (Disclosure: When DM still had a comments section, before they cowardly pulled it, I'd criticise her frequent defective opinions. She once responded, "Thomas, you always get personal and insulting".  In one article when she boasted about health care at the province’s public hospitals - Groote Schuur as it happened - I mentioned two stories where patients had died under questionable circumstances. Cornered, she promised to investigate if I provided details. Comments are no longer found on DM's archived articles.) 

The DPP admitted to me they had been in contact with Gerber and Zille's legal office.  But denied they'd given a "document" from the docket, a distinction without difference because they discussed a case that was then still under "investigation", despite also confusingly stating "there are no criminal proceedings".  Thus the DPP had no legal reason to inform third parties and Zille about anything, a contravention of case confidentiality and procedure.

The thing is, our criminal charges were never investigated as they ought to have been. The colonel told me our charges ought not to have been investigated as an inquest matter, which superficially it was, but as a criminal investigation.  Even as a basic inquest investigation, it was never properly investigated. The criminal charges were never investigated because the detective officially declared in November, two months after I laid charges, there were no criminal charges (sic); she had done no work on it at all, which the DPP knew.

There were thus procedural investigative and legal flaws in the DPP's management of the case including asking the state pathologist Dr Gavin Kirk for a "medical negligence opinion" about a matter beyond his professional expertise and direct knowledge (whether the treating doctors were negligent, something he couldn't definitely know) and for failing to apply medical and case law to the matter.

And as I alleged to Abrahams in my complaint, coincidentally, it became more suspicious after Gerber's involvement when the DPP told me "there are no criminal proceedings", four months before they notified me on April 10 they had declined to prosecute (no reasons given).   I realised then any pretence of a criminal investigation was make-believe for the family's benefit.

So the DPP tied a nice, neat bow around the docket: since there were no charges, there was no investigation, and with no investigation, there are no crimes to prosecute, particularly after the premier and government chats to them about, I don't know, old times.  It's all innocent, you see?

In April I laid charges of interference in an ongoing investigation citing Zille's, Gerber's and DPP senior prosecutor Nadia Ajam's involvement. (Note this is proven. The DPP confirmed these parties had been in contact. At the time Gerber phoned me and Zille's head of staff confirmed it.  What's at issue is what constitutes interference or irregular contact.)

Although the matter is now with the senior state prosecutor, I know it’s a long shot – the DPP won’t investigate and prosecute itself and its political masters.  The NPA is compromised by political interference that even the New York Times mentioned in a recent article, “In recent years, the National Prosecuting Authority, which has been compromised by intense meddling by ANC politicians, has increasingly been used for political ends”.

This is my point too: In South Africa it seems easier to be criminally charged for racism but not assault, culpable homicide and violations of the law.

Andrew Nicol, director of the Trauma Unit, mentioned in DM’s feature is not the person his public profile purports. In July last year, after I wrote to him about my mom – that was before we found her death suspicious – he replied he was concerned about our experience and would investigate. But he absolutely refused to provide a written report and excused himself or was replaced after I demanded it of his bosses. Strange, isn't it?

His immediate superior, hospital CEO Bhavna Patel, emailed me a one-page "letter" – her version of a forensic report into my mother's care and death – after only one working day, not counting the weekend, apparently taking over Nicol's month-long investigation (it's hard to understand how she managed a complete, complex forensic investigation in only one working day; it takes Forensic Pathology Services up to four months to produce reports, and that's with a complement of staff for each case) that said nothing beyond the itinerary of my mom's stay in the Trauma Unit.  Her report was worthless, and I told them so.

I reported Nicol and Patel to the HPCSA in November. But after registering the complaints, it too refuses to say what, if any, progress is being made despite telling me the preliminary stage is six months after the complaint is filed. 

Of course, these are allegations and must be investigated although the evidence makes them conclusive.  

But there must be something fishy about the entire case if DPP, Groote Schuur, Zille and HPCSA are playing silly buggers.  Cape Town's inquest magistrate could tell me during a phone call (I called her after the Wynberg prosecutor wouldn't touch it, trying to find out about its status) she "heard something about the case" when I mentioned it's a mess. Why would she hear about a case – perhaps judicial gossip in the corridors and among prosecutors – that hasn't yet, if ever, been assigned to her roll and she doesn't know the specifics of or even my family name?  (I didn’t discuss the merits of the case but she informed me she couldn’t if it was to come before her.)

In the meantime the doctor is still working at Groote Schuur. I don't know if the other doctors implicated in my mother’s care and death, one an Indian national, are still around.  Neither DPP, Nicol, hospital nor Western Cape government, including Zille who promised to investigate but changed her mind after instructing Gerber to contact the DPP, are concerned about my mother’s care and death, one year on Saturday July 7 at 10.30pm.

I've heard many stories of weird things going on at the hospital.  I call them "doctors of death".

Postscript: Our cat Larry died on Tuesday July 3 after a year-long battle with nasal squamous cell carcinoma that destroyed his nose and mouth. Over the previous month his condition had visibly worsened, and by last week it was clear he was getting to the end-stage when his strong spirit, good nature and energy which he maintained until the end – the cancer doesn't affect major organs but upper respiratory nasal passages and mouth – would be overcome by poor quality of life and indignity.  He had to be euthanized.  

This comes four days before the anniversary of my mother's death when the Trauma Centre's doctors, without informing us and obtaining our legally required consent, removed her life supporting breathing tube.  (And they were rude and abusive to us before the event and evasive and uninformative after, as was the hospital and Western Cape government.)

Footnote:

1: The NDPP replied on June 11: “[We] confirm [your complaint] will be addressed in the office of the National Director of Public Prosecutions (NDPP)”. They did not. But with Abrahams now removed  following the recent Constitutional Court decision that his appointment was unlawful, it's unlikely his successor acting NDPP Silas Ramaite shall do so either.

2: A Woodstock detective came to see me on September 6.  Cape Town Magistrate Court's prosecutor had instructed him to obtain a clarifying statement, and they needed one from my sister. This is the first time they had come to speak to us about the case, not counting my communication with them. This detective was always unobtainable when I tried contacting him during July and August 2017 until I gave up. This was the first time they had asked for my sister's statement. How they conduct their business is anyone's guess. He said it's for an inquest but couldn't say why one is needed. I don't know either. He also said Groote Schuur Hospital is a strange place, "people [plural] go in for check-ups, and they die". He had a look of wonder on his face. He should know as he deals exclusively with inquest-related unnatural causes deaths at Groote Schuur and is the "busiest detective at Woodstock" according to Cape Town's inquest magistrate.

3. The Health Professions Council emailed me that they have received statements from the doctors against whom I laid complaints in November (responding doctors have three months but it eventually took seven or eight). They were still waiting for the hospital to send my mother's medical records. 

Postscript

I sent a draft of this article to Daily Maverick and previous accounts about my mother's case, which can be found in my blog, to them, Politicsweb other media. There was no response.

This case is topical and of public interest, not the specifics perhaps, but the failures of the Western Cape Health Department, police and prosecuting authority and political interference in it especially after Life Esidimeni showed the public health system's and political failures. Like Life Esidimeni, there was no accountability.

This story has everything - death, police and prosecutorial ineptitude and political maneuvering.  I know stories of less interest are published - see Groundup any day of the week, incidentally, which in December said they would publish a story I suggested about the failings of the Western Cape Health Department's Independent Complaints Commission but changed their minds for specious reasons. I think it was because they were reluctant to go up against the government.

The media lap up minor  and irrelevant scandals about politicians, celebrities, and the ever popular, whites on a racist rant. But the poor and vulnerable and real issues affecting them are rarely covered (Groundup, which I no longer read, perhaps still does so) in depth and with honesty.

The media focus on whatever their political or sectarian agenda is for the week or month - racism, farm murders, perennial and tiresome political squabbles - and are less inclined to cover the frequently explosive failings of implicated agencies and because of a manufactured fear of what they deem - not real - possible defamation without going to the trouble of checking stories' accuracy.  (At other times when going after their target, defamation is the least of their concerns.)

Postscript and footnote 1 added 30/08/2018. Footnote 2 and 3 added 11/09/2018.