EXECUTIVE SUMMARY

The Truth and Reconciliation Commission (TRC) requested the Science and Human Rights Program of the American Association for the Advancement of Science, Physicians for Human Rights and other U.S.-based organizations to examine human rights violations in the health sector under apartheid and to make recommendations to build a culture of human rights in the health professions and the health sector as a whole. This report responds to that request. It is our belief that without concerted action, the racism that so deeply infected the health system will continue to cause pain and injury to South Africans.

Apartheid was a system fundamentally based on such deep racism that it deprived black people of all human dignity. This racism was manifested in every aspect of health: rigid segregation of health facilities; grossly disproportionate spending on the health of whites as compared to blacks, resulting in world-class medical care for whites while blacks were usually relegated to overcrowded and filthy facilities; public health policies that ignored diseases primarily affecting black people; and the denial of basic sanitation, clean water supply, and other components of public health to homelands and townships. Health services were deliberately fragmented to perpetuate discrimination. Race bias infected health research and even the keeping of health statistics. Even forensic evaluations were biased in favor of the police, controlled as they were by the very institutions who were responsible for human rights violations. Apartheid also exacerbated the denial of human rights of people with mental illness and mental retardation by locking them away in institutions, deprived of all semblance of human rights and due process of law, and denying them access to community-based programs that would enable them to recover.

The health consequences of apartheid extended beyond the practices within the health sector itself. Apartheid inflicted an enormous level of violence on black people, including indiscriminate killing in the townships and torture in detention facilities. Forced relocations and family breakups inflicted additional trauma.

Under apartheid, few blacks could become health professionals. Those who were trained were subjected to schools with inadequate resources and, when admitted to white institutions, were demeaned by practices like prohibitions on black medical students learning anatomy on white cadavers or wearing white coats and stethoscopes in white hospitals. Black nurses were denied adequate training resources and the opportunity to use their skills in an appropriate manner.

White health professionals were deeply implicated in human rights abuses under apartheid. A few acted with great courage to uphold medical ethics in the face of demands for silence and complicity, and some medical educators fought for desegregated professional schools. But the large majority of white health professionals benefited from a discriminatory system and either embraced the values and practices of apartheid or went along with them in silence. Some physicians working in detention facilities as district surgeons wrote false medical reports to cover up the existence of torture; others testified falsely in support of security forces; others failed to provide adequate health care to detainees. Hospital personnel discharged men, women and children wounded by gunshots in political demonstrations and in need of medical attention to the police; the ethical duties of confidentiality and provision of emergency treatment were trumped by cooperation with security forces.

Health professionals who were not directly involved in abuses were also deeply compromised by apartheid. Clinicians tolerated segregated services, gross inequities in treatment resources, terribly overcrowded facilities for the black majority and other facets of a dual health care system as part of normal life. Most failed to take action to protest human rights violations by their colleagues.

The conduct of the leaders of health professional organizations was in many respects the most egregious of all. These individuals occupied positions of power and prestige and could more safely speak out in support of medical ethics and human rights. Instead, the white leadership of the health professions generally allied itself with the apartheid state and, until very late in the day, went out of its way to avoid challenging overt discrimination in health, forced relocations, and detention of children. When individual physicians committed violations of human rights, establishment health organizations chose the side of the state over the victims of abuse. They not only refused to support colleagues who spoke out but sought to discredit them. They demonstrated no interest in training health professionals in human rights or medical ethics and, indeed, the training of health professionals in South Africa has neglected human rights and medical ethics.

The behavior of the South African Medical and Dental Council is of special concern. It not only refused to take disciplinary action against physicians who were implicated in the death of Black Consciousness leader Steven Biko until compelled by a court to do so, but even now refuses to acknowledge its disgraceful behavior in that case and others.

After the end of apartheid some institutions of the health professions, including academic institutions and professional societies, have expressed regret at their past behavior and have pledged to work toward a society that respects human rights. It is not for us to judge the sincerity of these commitments. The question is whether they will be accompanied by concrete steps to address the legacy of apartheid, which continues to inflict injury on South Africans. Our recommendations are designed to help ameliorate that legacy and build a culture of human rights in the health sector in South Africa.

Recommendations

1. Elimination of racial discrimination in the health sector

The most fundamental step in overcoming the legacy of apartheid in the health sector is to eliminate racial discrimination and racial disparities in that sector. All vestiges of segregation of facilities and inequities in health funding based on race should end. Black people must gain both greater access to professional education in the health fields and greater access to education generally. Affirmative steps should be taken to bring blacks into positions of leadership in associations of health professionals and in the bodies that regulate the professions.

Legal reform is needed as well. The mandate of the South African constitution to create a non-discriminatory society should be fulfilled by enacting civil rights laws prohibiting discrimination in all institutions concerning health.

Health professionals must no longer have exclusive power to regulate themselves. Representatives of consumers of health services, human rights organizations, unions, and other sectors of society must participate effectively in the promulgation of human rights standards and their enforcement.

2. Adoption of human rights standards for health
professionals

A binding code of human rights standards should be promulgated for health professionals and enacted into law. The code should pay special attention to human rights violations committed by health professionals, including violations of confidentiality, mistreatment or cooperation in the mistreatment of prisoners and detainees, and discrimination on the basis of race in the clinical setting. There are many models for the content of these standards, including the model code promulgated by the Commonwealth Medical Association, the guidelines of the World Medical Association, and many others. The code should be written with significant input from stakeholders in the health system, including those who have suffered human rights violations. Compliance with the code should be a condition of licensure.

3. Reform of societies of health professionals

While most societies of health professionals have adopted policies embracing non-discrimination, and some have apologized for their conduct under apartheid, additional steps need to be taken to develop a professional culture supporting human rights. In the first place, the societies should affirmatively embrace certain reforms recommended here, including the promulgation of a legally binding code of conduct, reform of the professional disciplinary process, human rights training as a condition of licensure, and human rights monitoring in the health sector.

Second, professional societies should investigate human rights violations by their own members under apartheid. The TRC process, effective as it was, did not reach many health professionals who committed gross violations of human rights, and its mandate did not reach violations of complicity. The University of Witwatersand has provided a useful model of an internal process to bring forward the facts of human rights violations by members of its medical faculty. The professional societies should do the same.

Third, the professional societies should incorporate human rights education and cross-cultural understanding in ongoing professional training.

Fourth, the leadership of the organizations should no longer be dominated by whites. The demographics of the professions are themselves products of apartheid and should not be used as an excuse to maintain the status quo.

Fifth, the professions should demonstrate a commitment to health
equity for all South Africans.

Sixth, human rights should gain significant institutional stature within these organizations through high level committees, human rights presentations, and other means.

Finally, human rights should become a frequent subject of articles in professional journals.

4. Reform of professional regulation

The statutory Councils that uphold standards of professionalism can play a critical role in fostering and enforcing respect for human rights among health professionals. The behavior of the Councils under apartheid points to the need for thorough reform. To date, however, the interim Councils have shown little interest in or capacity to address human rights, either in the form of a review of violations in the past or in devising procedures and standards to investigate those that may occur in the future. Existing proposals for change we have reviewed are, we believe, inadequate to accomplish the essential task of reform.

Reform should begin with a thorough review of the Councils' own records under apartheid. We especially urge such a review for the Interim Medical and Dental Council, which was far from forthcoming to the TRC even in discussing its most spectacular act of complicity, the case of the doctors who were in part responsible for the death of Steven Biko. Accordingly, all internal documents of the Council should be disgorged and reviewed by an independent authority. Reform should also include re-opening cases of alleged human rights violations from the apartheid past where the Councils failed to take appropriate disciplinary investigations or actions.

The composition of the Councils should change. Individuals who serve on the Councils as members or staff, who failed to investigate human rights abuses or who were complicit in covering up human rights violations, should be removed from their positions. More generally, representation on the Councils should change dramatically, so that they are no longer organs of the health "establishment" but include effective representation from community-based organizations and constituency groups concerned with health. Each major population group should be represented. Every member should demonstrate a commitment to human rights.

The investigative procedures of the Councils need to be completely overhauled so they can effectively investigate human rights abuses. The complaint-filing process should be made accessible to all members of the society and the Councils should have the authority to impose emergency disciplinary action where necessary to prevent imminent harm to individuals or groups of individuals.

The Councils should maintain an independent professional staff to investigate allegations of human rights violations by health professionals and prepare cases to present. These investigators must have the authority to engage in a full investigation of the allegations, including gaining access to relevant records, and to prepare cases to present before an independent panel of adjudicators. The adjudication process should be thorough, open, and fair to all concerned, including both the accused and the complainant, and should be subject to review by a court—including allowing an appeal for failure to prosecute. Decisions from the panel should include a statement of reasons. Sanctions for violations should include not only suspension, license revocation, probation and censure, but also barring individuals from certain positions, mandatory human rights training, fines, and periods of community service.

The Councils should keep and publish statistical data on their disciplinary investigations and activities.

5. Human rights education

All health professionals should receive training in human rights and bioethics, based on international human rights principles. The training should emphasize the responsibilities of health professionals to promote and protect human rights and should link these standards to concrete
behavioral expectations. This training should take place at all levels: in the course of professional training, as part of continuing education programs, and at professional conferences. Completion of human rights training should be a condition of licensure.

The objectives of such training include the following: promoting understanding of the relationship between health and human rights, particularly in connection with a conception of health that looks beyond injury and disease to include concern for the well-being of the individual; promoting discussion of human rights concerns in the health sector, including physical and mental health consequences of human rights violations; and exploring the relationship between human rights and bioethics, particularly the limitations of an exclusively bioethics approach to the protection of human rights.

The health professions must restructure professional training to assure adequate consideration to human rights. The various health professional organizations should work closely with the Ministry of Health, academic institutions, community-based organizations, torture treatment centers, and other stakeholders to plan curricula; ensure adequate resources for training; establish concrete training objectives; develop educational materials; run pilot projects; and assess programs. Coordination and implementation should be supported by an infrastructure of professional support, including health and human rights committees; academic positions in the field; encouragement of writing and publication for professional journals; regular national, regional and local conferences; and monitoring of progress.

6. Human rights monitoring of the health sector

Monitoring of human rights is a widely respected and highly successful means of measuring compliance with human rights standards, fine-tuning public policies that affect human rights, and reinforcing respect for human rights. By monitoring, we mean systematic and comprehensive efforts to collect appropriate data to determine whether the performance of individuals and institutions conforms to international human rights standards. Monitoring should include regular reviews, based on established protocols, of human rights compliance by health institutions like hospitals, clinics, and other facilities where violations of human rights in health are frequent, such as prisons and detention facilities, in addition to reviews of complaints of particular violations of human rights in health. Monitoring of access to health care should also be undertaken under Section 184(3) of the South African constitution.

Effective monitoring is proactive, scheduled at regular intervals, systematic, independent, based on well-articulated standards, and performed according to a uniform methodology. A baseline should be established so that progress can be measured. The standards should include those that apply exclusively to health professionals, those especially relevant to health institutions, and those time-related goals for systemic reforms that progressively realize the constitutional right of access to health care. It is also important to develop guidelines for monitoring the mandate of non-discrimination, not only as to race, but as to gender, age, social and economic status, and immigration and other statuses. It is also essential to include public and community involvement in the promulgation of monitoring standards. The public awareness campaign by the Progressive
Primary Health Care Network is a good starting point.

Monitoring strategies can include a review of legislation and codes to assess conformity to international human rights standards; regular site visits to assess human rights compliance in particular localities or institutions (particularly those that have a history of human rights violations); self-assessments and written reports by institutions subject to monitoring; reviews of records; interviews with staff, professionals, and patients; and investigation of individual complaints. The monitoring body should have the legal authority to review records that might otherwise be considered confidential, as long as it does not further disclose the records.

Monitoring should also include regular reports, at least annually, to the nation on the human rights situation in the health sector. Reporting also provides an opportunity to synthesize data collected to provide a "report card" on human rights in the health sector.

Non-governmental organizations in South Africa have proposed a variety of monitoring systems. The Health and Human Rights Project has recommended a Commission on Health and Human Rights, consisting of professionals, human rights experts, consumer and community representatives, and legal experts. The Commission would monitor human rights in the health sector, provide advice on curriculum development in human rights education, receive and investigate individual complaints of human rights abuses in the health sector, create the position of "medical public prosecutor" or ombudsman, and review human rights and health concerns in the military. We understand that related proposals along similar lines are under discussion by a wide variety of stakeholders and we urge support for these efforts.

7. Addressing the legacy of apartheid: the need for mental health services

Our analysis and recommendations regarding mental health fall into two distinct areas. The first concerns the wholesale violation of the human rights of people with mental illness and mental retardation, including massive institutionalization and denial of their basic dignity. The second concerns the lasting trauma suffered by thousands of South Africans, including children, as a result of violence inflicted on them by the state and the unending deprivations and degradation to which they were subjected.

(a) Human rights, mental illness and mental retardation

South Africa's mental health law needs to be rewritten to assure that the fundamental human rights of people with mental illness and mental retardation are respected. The law should protect, among other rights, the right to be treated with respect for the inherent dignity of the person, to be free from discrimination on the basis of disability, to have access to treatment in the community in which the person lives, to be protected from harm if institutionalized, and to be treated in accordance with due process of law. The Ministry of Health should also follow up the 1995 report on human rights violations in mental health facilities with an evaluation of current human rights conditions in institutions, along with recommendations for steps necessary to address them.

People with mental retardation should be recognized as having different needs from people with mental illness and their rights should be protected as well. There is special urgency in addressing allegations that involuntary sterilization is still widespread among people with mental retardation.

The solution to the human rights violations against people with mental illness and mental retardation must include development of a full range of community-based programs to serve their needs. Despite the severe resource constraints it faces, the Ministry of Health has begun this process, and it should be encouraged to continue. The Ministry should establish a national policy and plan to move toward a community-based system of services for people with mental illness and mental retardation. As part of this process, the Ministry of Health should provide support for participation by people with mental illness and mental retardation and their families in the planning and treatment process. This should include support for advocacy.

(b) The psychological legacy of apartheid

Apartheid took a tremendous psychological and emotional toll on people subject to laws that denied liberty and freedom, to forced relocations, to family separation, to arbitrary detention, to denial of educational opportunities, to the humiliations of daily life, and most of all to the infliction of violence against them. The trauma from those violations remains, and the legacy of violence continues to inflict harm on all South Africans.

Recommendations for healing these wounds is beyond the scope of this report, but we make particular note that respect for human rights calls for encouragement of treatment approaches to healing that span cultural divides. South Africa is a country where Western and non-Western approaches to healing have been separated not only by culture and language but by apartheid. Now is the time to reach across that divide and bring the resources of social workers, particularly those versed in traditional cultures, clergy, healers and diviners, and trauma centers experienced in melding Western and non-Western approaches, to the effort to bring healing to the hundreds of thousands of people suffering from the trauma of apartheid.

8. Medical documentation of torture and ill-treatment

Under apartheid, medical investigations of torture and abuse were entirely corrupted by physicians' loyalty to the state at the expense of their patients and by structural arrangements that sought to and did compromise the independence of forensic investigations. The need for reform is made even more compelling because torture is still practiced by the police in many parts of the country, including Johannesburg. Moreover, district surgeons appear to have undergone little reflection about their roles in apartheid.

In 1996, the Ministry of Health circulated a document entitled "Proposed National Policy on the Medicolegal Services in South Africa," which proposes a reorganization of post-mortem forensic services, particularly to assure the independence of post-mortem examinations. We endorse this proposal.

The Ministry plan includes proposals for changes in clinical forensic services, including evaluation of rape victims, but not health care for detainees. It recommends removing these duties from district surgeons, and decentralizing them to the same doctors and other health professionals who provide primary health care. The change seeks to avoid the possibility of complicity of district surgeons in human rights violations by entirely removing them from the process. We are concerned, though, that the proposal increases fragmentation of services and raises concerns about the quality of evaluations. We therefore recommend further dialogue on the question of restructuring of clinical forensic services. One possibility is a corps of clinical forensic specialists, specially trained and certified. Another is an alliance between forensic pathologists and primary health care physicians such that primary health care practitioners would be responsible for evaluations, but subject to the standards and quality assurance mechanisms of forensic pathology services.

Regardless of the approach taken, these services should all be under the supervision of the Ministry of Health—for establishment of standards, training, certification, clinical services, selection of practitioners, quality assurance, procedural safeguards, and accountability. Licensing and certification requirements for individuals engaged in clinical forensic services should be established in conjunction with representatives of health professional organizations, human rights organizations, and community organizations. Current district surgeons who wish to continue to provide clinical services should be subject to performance evaluations and a review of complaints of misconduct.

Further, the Ministry should address clinical evaluation of and health services for detainees. The first step is to remove control of prison health services from agencies that run prisons and transfer them to the Ministry of Health. Second, medical and procedural standards for medical evaluations of detainees should be written to assure the integrity of evaluations and the protection of the human rights of the detainees. Our detailed recommendations outline procedural safeguards and we provide an appendix containing model standards and procedures for evaluation of torture and ill-treatment of detainees.

Finally, professionalism in clinical forensic services should be encouraged and supported. In the past, district surgeons were very isolated from other health practitioners and stigmatized by their association with people and institutions that were themselves devalued. Practitioners in the field of clinical forensic services deserve and should receive professional support.

The legacy of apartheid for the health of all South Africans is deep and grim. There is an opportunity now to plan and implement a system of health care in South Africa that is fair, non-discriminatory and based on the commitment to and observance of basic principles of human rights. The protection and promotion of human rights also promote health and well-being. Such a system would not only serve South Africa, but could be a model for other nations worldwide as we celebrate the 50^th anniversary of the United Nations Universal Declaration of Human Rights.