PATTERNS OF HUMAN RIGHTS VIOLATIONS

Nondiscrimination is one of the most central human rights principles and as such it is enshrined in all of the international human rights instruments. Using language repeated in the text of other of the international conventions, Article 2 of the International Covenant on Civil and Political Rights requires each state party to the Covenant to respect and to ensure to all individuals within its territory the rights enumerated in the text "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

1. Failure to grant true personhood and autonomy to blacks as patients and professionals

The Universal Declaration of Human Rights states that, "[a]ll human beings are born free and equal in dignity and human rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."⁶¹ The international conventions on human rights, likewise recognize the dignity of the individual. Listed below are just a few examples of direct assaults or the results thereof on this concept.

· Excerpts from South African Medical Journal articles during apartheid purport to document inherent differences in "races" and the inferiority of black "races" to European "races." One article from 1960 stated, "the most striking traits of the African are the recognition of the importance of physical needs (nutrition and sexuality), and a liveliness of the emotions counterbalanced by their short duration. The African essentially lives in the present (in a sense, like a child) and his behavior is largely motivated by influences and impulses of the moment."⁶²

· Nursing councils created specifically for black nurses were established in the homelands without consulting the affected nurses. "This tended to undermine the professional status and international recognition of these nurses…These councils commenced without any financial support to assist them."⁶³

· The Medical Association of South Africa "probably was insensitive and indifferent to the lot of its black members such as when branch meetings were scheduled at venues where they were legally barred."⁶⁴

· "Despite equitable qualification between white and black personnel, for most of the period under review discriminatory salaries were paid to blacks. This includes nursing, medical and other professionals. In addition facilities and conditions were separate and unequal. Personnel working in the same facility and with the same qualification had separate toilets, separate tea rooms and separate accommodation. In such ways the Department of Health ensured that blacks `knew their place' and whites maintained their superiority."⁶⁵

· The Democratic Nursing Organization of South Africa has stated that racial discrimination led to mistreatment of the nurse as a trained professional, with consequences for the quality of care to patients, for instance, when a nurse was instructed by a white doctor to remove an intravenous infusion from a dehydrated black man, or when a nurse was instructed by a pharmacist and doctor to ignore the recall of a batch of medicine that she located in a high-care nursery of a black community mission hospital.⁶⁶

· In the mining industry, "[e]mployees were regularly brought into a hall, en masse and naked, where they were systematically and publicly checked for any signs of [sexually transmitted diseases]."⁶⁷

· In response to discriminatory salaries, some black nurses, in order to receive increased earnings, would have to try to pass as colored by straightening their hair, lightening their skin and modifying their speech.⁶⁸

· "Despite black health personnel sometimes having better qualifications and experience, white personnel were promoted above them. It was seen as unacceptable for blacks to have positions of authority over whites."⁶⁹

· There was little chance of advancement for black nurses. When serving black patients they functioned as nurses and when they served white patients they functioned as auxiliaries, "limited to caring for personal needs of patients (tea, bed-pan, etc.)." "Many black nurses retired after a lifetime of service to the State, still in the most junior professional nurse's post."⁷⁰

· Black medical students were given strict rules to obey when entering "European" hospitals. They had to stay away from white patients, or dead white bodies, leave by separate exits and disguise the fact that they were medical students by not wearing doctors' coats or stethoscopes.⁷¹

· "Doctors' [offices] had separate waiting areas and consulting areas. Whites had a waiting room which was usually fairly comfortable with chairs, magazines and possibly a potted plant. The black patients' waiting area was usually more uncomfortable and inadequate_a
verandah which may or may not be covered, with hard wooden benches." While the white patients had a consulting room where there was privacy, the black consulting area was not private and "created a feeling of a depersonalized `production line.'"⁷²

· The Nursing Act 69 of 1957, Section 49, made it a criminal offense for a white nurse to be put under the supervision of a nurse belonging to another race group.⁷³

· Nursing Amendment Act 69 of 1957 and Nursing Act 50 of 1978 prohibited black nurses from being on the board of the South African Nursing Association and the South African Nursing Council. This exclusion resulted in the failure of professional associations and regulatory bodies to investigate inconsistencies in health care provision; represent and defend black nurses; and provide leadership, guidance and protection.⁷⁴

· It was a longstanding policy of the South African Medical and Dental Council that a practitioner be free to decide to whom he or she wanted to render a service in non-emergency situations. It was only in 1989 that the South African Medical and Dental Council expressly disapproved of the attitude of a practitioner in not rendering services to a particular "population group" and 1992 when it clarified that differentiation on a racial basis in the provision of waiting rooms for patients was wrong.⁷⁵

2. Systematic differences in the provision of health care

Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination calls for the elimination of racial discrimination in all its forms, and specifies the "right of everyone, without distinction as to race, color, or national or ethnic origin," to enjoy economic, social and cultural rights, among them "the right to public health, medical care, social security and social services."⁷⁶ A 1989 AAAS medical investigation to South Africa concluded that apartheid was "the prime cause of the unequal appropriation of funds for medical services; overcrowding in black hospitals and underutilization of white hospitals;...and poor or non-existent health care in the homelands and rural areas."⁷⁷
· About four times more was spent on health care for whites than for Africans by the government. The Department of Health has acknowledged that "[T]he allocation of inequitable resources is probably the most important factor for which the Department can be held responsible for past illness and death." Per capita expenditure on health was as follows:

1985 1987

Africans R115 R137

Coloreds R245 R340

Indians R249 R356

Whites R451 R597⁷⁸

· "Rather than allowing `health' to be the driving force of its policies, [the Health Department] concentrated most of its efforts and resources on only part of the population, in line with the political objectives of the Apartheid State. The Department also became part of the oppressive apparatus of the State by not taking stands and intervening when medical ethics were being violated - even by their own employees."⁷⁹

· "Because admission to hospitals was racially based, patients were forced to go to hospitals which were not necessarily the nearest or most accessible. In terms of ambulances they were dispatched to emergency situations based on race. As a result, if an ambulance serving the black population was in use, a patient would have to wait rather than use an ambulance reserved for whites being dispatched."⁸⁰

· In April 1984, treatment was delayed to a colored television announcer who was injured in a car accident. He was denied treatment in the colored section of the hospital because he was thought to be Indian and was denied treatment in the Indian section because he was thought to be white. The delay in treatment contributed to his death.⁸¹

· In December 1984, treatment was delayed to an African-American dancer who was injured in an accident. He was left on the side of the road by the ambulance that took his companion to a hospital. When a black passerby took him to a "white" hospital he was refused treatment. After 24 hours he finally received treatment in the white section of another hospital, which admitted him as an "honorary white." The delay in treatment resulted in paralysis of his arms and legs.⁸²
· No disciplinary action was taken by the South African Medical and Dental Council with regard to the differential health care provided by the separate hospital facilities established for each race.⁸³

· The Medical Association of South Africa's "official stance was that doctors did have the `right' to choose their patients for themselves . . . It was not until 1994 that the organization unequivocally made the policy statement that separate waiting rooms based on race as well as separation of State versus private patients is unethical."⁸⁴

· According to an American Psychiatric Association report of 1979, government-funded private psychiatric facilities, such as Smith Mitchell (now called Life Care), provided racially segregated care on a per diem basis for chronic psychiatric patients transferred from state institutions. Racially disparate treatment by Smith Mitchell included refusing sheets to black patients, despite the fact that a significant number were incontinent; having a number of black patients sleep on the floor, citing overcrowding and the lack of beds, while white wards had extra beds; and providing inferior quality food to black patients on the grounds of cultural preference, despite the complaints made by black patients. Furthermore, black patients were civilly committed in the early stages of mental illness, when they were still treatable. Epileptics may have been unnecessarily confined.⁸⁵

· Hospital bed availability differed quite markedly by race. According to data of the Department of Health (no date given) on the average bed availability in the major regions, there were 6.05 beds per 1,000 whites and 3.29 beds per 1,000 blacks. This is made more compelling with average bed occupancy rates of 54.75 percent for whites and 88.60 percent for blacks. In two regions, Transvaal and Cape, the bed occupancy for blacks was 103 percent while bed occupancy for whites never exceeded 60 percent in the five regions surveyed.⁸⁶

· "[T]he number of white patients receiving dialysis in 1977 was one of the highest in the world - around 107 per million - whereas the number of black South Africans was around 4 per million."⁸⁷

· "There are still relatively few [specialists] in black hospitals, resulting in heavier clinical loads and less time for research and preparations for teaching duties. The pressure under which doctors were
compelled to work at the hospitals for black patients must have resulted in less satisfactory care for the patients."⁸⁸
· In 1987, the ratio of white dentists to the white population was 1:2,000. For blacks it was 1:2,000,000.⁸⁹

3. Race bias in health research

Accurate data are essential for health policymaking. Under apartheid, the type of data collected reflected political considerations and their quality was poor.

· According to a World Health Organization report of 1981, "[N]o research was available looking at the effects of living under apartheid. Little was known of the consequences of the enforced breakup of families, of the migrant labor force system or the mass uprooting of millions of people under the Homelands policy."⁹⁰

· Vital statistics, i.e. data on births, deaths, and population size and structure, are critical for public health planning. Under apartheid there was very little attempt to collect valid and reliable data on births and deaths for blacks.⁹¹

· Kwashiorkor, a disease that almost exclusively affected blacks, was delisted as a notifiable disease in 1968.⁹²

· Since 1990, research in the Johannesburg hospital remains preoccupied with the affluent. This is because of constricted access to the Johannesburg hospital by working class patients and increased usage by the well-to-do.⁹³

4. Inadequate and discriminatory training of black health workers

Contrary to the right to education as recognized in Article 26 of the Universal Declaration of Human Rights and Article 13 of the International Covenant on Economic, Social and Cultural Rights, segregation at all levels of the educational system during the apartheid period made it difficult for black students to receive the requisite science background and to gain admission to medical schools. The small numbers of non-white medical students were then subjected to indignities and not allowed to rotate to hospitals for white patients. This system resulted in a serious imbalance in the number of blacks trained as health professionals relative to their numbers in the population.
· Although whites made up approximately 17 percent of the population from 1968-73, they made up a mean annual percentage of 85 percent of medical school graduates. Blacks, on the other hand, during the same period made up approximately 70 percent of the population, but represented a mean annual percentage of 3 percent of medical school graduates.⁹⁴

· In 1985, 83 percent of all doctors and 94 percent of all specialists were white. ⁹⁵

· In 1990, of the nearly 155,000 nurses in South Africa, slightly over half were African, a third white, and over 21,000 colored.⁹⁶

· "Most training institutions were attached to white hospitals which refused black trainees from examining and treating white patients. Because most of the professorial units were situated at white hospitals, black students did not get the opportunity to attend professorial ward rounds. Also for many years black students at `white universities' were not allowed to attend post-mortem examinations of white bodies."⁹⁷

· The training at black hospitals was inadequate. The more skilled and experienced doctors taught at the white teaching hospitals. The black teaching hospitals were located farther away from the university. When Johannesburg Hospital began to provide a bus service in 1952 between the teaching hospitals, only whites were allowed to use the service.⁹⁸

· In the mid-1970s around 93 percent of doctors were white. In 1978, 83 percent of Indian and 95 percent of colored applicants were granted the Ministerial permission required under the Extension of University Education Act. However, only 29 percent of black applicants were granted such permission.⁹⁹

· Postgraduate training and academic advancement was limited for black doctors. "In order to become a cardiologist, black doctors in the sixties and seventies had to leave their province or the country to receive training in this subspecialty."¹⁰⁰

· "Whereas white nurses were trained within well-equipped hospital schools and, later, nursing colleges, black nurses were exposed to harsher conditions within hospital settings and nursing homes and educational settings which were poorly resourced."¹⁰¹
· "Black nurses were limited or not able to pursue on-going education in a general or specialized field of courses as courses were not available to them."¹⁰²

· Nursing education was Eurocentric, and nurses didn't understand what remedies were available to rural patients. For instance, a nurse prescribed a high protein diet of eggs and cheese to a severely malnourished black child from a rural setting. The nurse was not trained to know that the prescribed diet was unavailable, unaffordable and culturally inappropriate.¹⁰³

· As of 1990 it was estimated that there were only four black psychiatrists out of the total of 200 trained psychiatrists serving South Africa.¹⁰⁴

· The Extension of University Education Act 45 of 1959, Proclamations 221 and 223, limited the universities that Bantus could enter. "[W]ith effect from 1 January 1960 no Bantu person or non-white person other than a Bantu person that was not registered as a student of a university established by Act of Parliament, other than the University of South Africa, on or before the said date, shall register with or attend any such university as student without the written consent of the Ministers of Bantu Education or of Education, Arts and Science, respectively: Provided that this Proclamation shall not apply to Bantu persons or non-white persons other than Bantu persons in respect of their registration and attendance as students at the medical school for Non-Europeans of the University of Natal."¹⁰⁵

5. Differential health outcomes

With regard to the Covenant on Civil and Political Rights, the UN's Human Rights Committee issued a General Comment stating that the right to life, enunciated in article 6 of the Covenant is "the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation."¹⁰⁶ The Committee further stated that "it would be desirable for States Parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics."¹⁰⁷ Apartheid medicine had a deleterious effect on the health of the non-white majority. The following data provide some insight into the disparities in health outcomes.
· The infant mortality rate is generally considered a useful indicator of the level of health in a country. "It is evident that the Infant Mortality Rate of Africans and coloreds is almost five times higher than whites. Rural Africans had [infant mortality rates] approximately 2.6 times higher than those living in urban areas."¹⁰⁸ This means that African and "colored" children have been disadvantaged from birth.

· From 1965-70, the life expectancy for black males was 51 and 60 for females. For whites, they were 65 and 72. In 1985, life expectancies for blacks were 55 and 61 for males and females respectively and 68 and 76 for whites.¹⁰⁹

· Various regional and national studies conducted by the Department of Health in 1980 established that one third of non-white children were malnourished.¹¹⁰

· "In 1989 there were 2.3 million people in South Africa who could be considered in need of nutritional assistance. Of these 87 percent were African and 2 percent white."¹¹¹

· In 1978, typhoid fever was 48 times more common in blacks than whites; in 1971, deaths from diarrhea were 100 times more common among black children than white children.

· As of 1983 it was estimated that there was a shortage of housing for rural and urban blacks in the amount of 724,000. The result was overcrowding and lack of ventilation, which facilitated the transmission of air-borne infections. Furthermore, the absence of proper sanitation and lack of clean water resulted in spread of enteric diseases.¹¹²

· In 1989, eleven times more measles were reported among blacks than whites.¹¹³

· In 1987, African women had 3.5 times higher rates of cervical cancer than whites.¹¹⁴

· The HIV epidemic has progressed rapidly in South Africa, with a doubling of infection every 11 to 13 months. While HIV affects all population groups, the infection is more common among Africans. In 1993 the prevalence was 0.52% among whites, 0.76% among coloreds, and 5.5% among Africans. The epidemic is at its most advanced stage in KwaZulu-Natal. Moreover, the epidemiology of HIV infection demonstrates the link between individual vulnerability to infection and the socio-economic context within which this occurs. The low status of women in society, economic pressures that result in the disruption of families and conjugal instability caused by men seeking employment away from their families have influenced the nature of the HIV/AIDS epidemic.¹¹⁵

NOTES

⁶¹ Universal Declaration of Human Rights. Article 1.

⁶² Health and Human Rights Project. "Re-examining the Content of the SAMJ"…p. 10-12.

⁶³ South African Interim Nursing Council, p. 3.

⁶⁴ Medical Association of South Africa. "Third Draft of the Submission by MASA to the TRC," p. 30, June 1997.

⁶⁵ Department of Health, p. 20.

⁶⁶ Democratic Nursing Organization of South Africa, p. 9.

⁶⁷ Id., p. 10.

⁶⁸ Id. p. 13.

⁶⁹ Department of Health, p. 20.

⁷⁰ Democratic Nursing Organization of South Africa, p. 8.

⁷¹ University of Witwatersrand, p. 10.

⁷² Janet Giddy and Steve Reid. Submission to the Truth and Reconciliation Commission, at section 3.1, May 1997.

⁷³ South African Interim Nursing Council. Submission to the Truth and Reconciliation Commission, May 1997, p. 4.

⁷⁴ Democratic Nursing Organization of South Africa. "Preliminary Submission to the Truth and Reconciliation Commission", May 1997, p. 13-14.

⁷⁵ Interim National Medical and Dental Council of South Africa. Submission to the Truth and Reconciliation Commission, May 1997, p. 6.

⁷⁶ Id, art. 5, § (e)(iv), 5 I.L.M.

⁷⁷ AAAS.

⁷⁸ Department of Health, p. 4

⁷⁹ Department of Health, p. 23.

⁸⁰ Id., p. 18.

⁸¹ Islamic Medical Association of South Africa. "Report on an Overview of Violations of Health & Human Rights in South Africa." Submission to the Truth and Reconciliation Commission, May 1997, p. 6.

⁸² Id., p. 7.

⁸³ Id., p. 4.

⁸⁴ Medical Association of South Africa, p. 42.

⁸⁵ Society of Psychiatrists of South Africa, appendix 2, "Am J Psychiatry `Report of the Committee to Visit South Africa'", p. 1502-05.

⁸⁶ Department of Health, p. 6, table.

⁸⁷ Id. p. 22.

⁸⁸ University of Witwatersrand,, p. 13.

⁸⁹ Health and Human Rights Project, appendix "Quintessence International Editorial: Beauty and The Beast. Reactions," p. 589.

⁹⁰ Society of Psychiatrists of South Africa, p. 4.

⁹¹ HHRP, p. 47.

⁹² HHRP, p. 47.

⁹³ Cara Jeppe, employee of Tertiary Medical Institutions. Submission to the Truth and Reconciliation Commission, June 1997, p. 2.

⁹⁴ HHRP. At Training and Treatment of Health Professionals, p. 1, Table.

⁹⁵ Kale, R.. "South Africa's Health: New South Africa's Doctors: A State of Flux." British Medical Journal, 1995, 310: p. 1307-11.

⁹⁶ Id.

⁹⁷ Department of Health, p. 19.

⁹⁸ University of Witwatersrand, p. 11.

⁹⁹ Department of Health, p. 19.

¹⁰⁰ HHRP. My Career in Apartheid Medicine, p. 8.

¹⁰¹ Democratic Nursing Organization of South Africa, p. 11.

¹⁰² Id. p. 11_12.

¹⁰³ Id. p. 12.

¹⁰⁴ Society of Psychiatrists of South Africa, appendix 25. "The Report to the President on the Preliminary Visit to South Africa of a Team on Behalf of the Royal College of Psychiatrists" p. 10.

¹⁰⁵ University of Pretoria Faculty of Medicine. Submission to the Truth and Reconciliation Commission. June 1997, Section 1.1, paragraph 5. Hereinafter "University of Pretoria".

¹⁰⁶ General Comments of the Human Rights Committee. International Human Rights Report Vol. 1, No. 2, comment 6, paragraph 1, 1994.

¹⁰⁷ Id. Comment 6, paragraph 5.

¹⁰⁸ Department of Health, p. 3.

¹⁰⁹ Id. p. 2.

¹¹⁰ HHRP, appendix, "Socio-Medical Indicators of Health in South Africa" p. 174.

¹¹¹ Department of Health, p. 4.

¹¹² Health and Human Rights Project, appendix, untitled _ Dept of Medicine, p. 18, table 12.

¹¹³ Department of Health, p. 4.

¹¹⁴ Ibid.

¹¹⁵ South African Health Review 1995. Durban, Health Systems Trust 1995, p. 71.