“A minister must assume responsibility for the failings of a civil servant… … but that would not necessarily absolve the civil servant”

Fact Finding on deaths of renal dialysis patients

‘ There is no way one can compel the government to act on the findings of an inquiry’

By LEX

Renal patients. Pic – cdn.georgeinstitute.org

A Fact Finding Committee to be chaired by Mrs Deviyanee Beesoondoyal, former Judge, has been set up to inquire into the recent death of renal dialysis patients at the New Souillac Hospital would have as Assessors, Dr P. Chitson and Dr S. Mareeachalee. This has come about as a result of a lot of public pressure in the media and on social media platforms – like most others in the past following public resentment of perceived institutional failings. Fact-finding committees have the responsibility of determining the facts relevant to decide a controversy, and in light of their findings, disciplinary proceedings or even a police case may be instituted if the evidence so warrants. Tied to that is the issue of accountability. Who should ultimately bear responsibility for executive or departmental failings? Is it the minister in the case of the public service, or is it the civil servant/s found to have been negligent or imprudent in dealing with a specific matter. Lex sheds light on the different issues involved in this debate.

* Government has appointed a Fact Finding Committee to inquire into the recent death of renal dialysis patients at the New Souillac Hospital to be chaired by former Judge Mrs Deviyanee Beesoondoyal. Its terms of reference appear wide-ranging in terms of the issues to be addressed. Is that ‘fact-finding’ exercise a necessary preliminary step in determining whether a disciplinary investigation is warranted?

A fact-finding committee is an investigative body. It cannot summon witnesses but can invite people to come and give evidence on the subject matter of the inquiry. In the light of the findings, there may be disciplinary proceedings or even a police case if the evidence so warrants.

* Numerous fact-finding committees have been set up by successive governments here to inquire into controversies concerning alleged fraud at SIFB, disappearance of 16 kg heroin whilst in official custody, alleged medical negligence in public hospitals, Food and Mouth disease, Britam, etc. Not all reports have been made public, whilst some of these Committees are still ongoing. Is that acceptable?

 Certainly not. Whatever be the reason is a matter of speculation. But politically it can be surmised that if the findings are unpalatable to the government of the day or to their protégés, then the report will be buried in some drawer in the corridors of power.

* According to the United Nations, which also has established fact-finding procedures relating to serious violations of human rights and humanitarian law, etc., fact-finding should be “comprehensive, objective, impartial and timely”. One would therefore expect the chairpersons of such Committees and their assessors to meet that high standard of conduct that is expected of them, isn’t it?

In the absence of evidence to the contrary, there is no reason to suggest that the committee will not be impartial and will not work objectively. However, when the same persons are appointed to chair commissions or inquiries, the question may be asked as to why some specific or a select group of persons are chosen for such assignments.

* Can we compel a Mauritian government to act on their report of a fact-finding committee, beyond the point setting up such a committee – usually following intense public pressure to get down to the bottom of a controversy?

There is no way one can compel the government to act on the findings of an inquiry. If a citizen applies to the Supreme Court to compel the government to act, his case will be thrown out without any ado on the ground that he does not have any locus standi. In other words he does not have an interest to act.

* Tied to the debate on fact-finding committees is the issue of accountability. Who should ultimately bear responsibility for executive or departmental failings? Things appear to be more straightforward in the private sector than it is in the Civil Service…

According to well-established tradition, a minister must assume responsibility for the failings of a civil servant. But that would not necessarily absolve the civil servant if he has been grossly negligent or imprudent in dealing with a specific matter.

A civil servant can be disciplined under the Public Service Commission Regulations. But if a minister does not accept responsibility for the failings of a civil servant and does not resign, there is not much one can do except wait for the next elections to apply the required sanction.

* The fact that departmental failings keep happening every year, as highlighted by the Director of Audit in his annual reports, which is almost akin to a permanent fact-finding committee, indicates that nobody is held responsible for wastage of resources resulting in huge losses. Who should bear responsibility for such failures: the ministers or the civil servants?

Both. A minister is responsible for his department and must accept responsibility for what goes on in his department. The civil servant has a duty to comply with rules and regulations and the code of ethics of the civil service.

* Renal dialysis patients at the New Souillac Hospital got infected by Covid-19 and 11 patients have died. A fact-finding committee has been set up by Government to inquire, inter alia, into the circumstances of those deaths. Whose job is it to ascertain that sanitary protocols have been followed at the New Souillac Hospital and at the quarantine facility at Tamassa Hotel? Is it the Minister’s responsibility?

The person responsible for the hospital is responsible and must see to it that patients are treated in a safe clinical environment. We have Regional Health Directors who have a duty to see to it how health care centres or hospitals falling under their purview are functioning. The job of Regional Health Director cannot be limited to sitting in a office and be at the beck and call of the minister concerned.

* Published in print edition on 4 May 2021