RECOMMENDATIONS

B. Adoption of Human Rights Standards
for Health Professionals

Given the record of health professionals under apartheid, a binding and enforceable code of conduct for health professionals that incorporates obligations respecting human rights is essential. The code of conduct should be enforceable both in professional disciplinary proceedings and through private actions against health professionals.

The code of conduct can build on the ethics of the health profession that have evolved since the time of the Greek physician Hippocrates. These standards represent the profession's acceptance of the responsibility and trust with which it has been invested by society's grant of a license to practice. Upon entering a profession, each practitioner inherits a measure of that responsibility and trust and the corresponding obligation to adhere to standards of ethical practice and conduct as set by the profession.

In the post-apartheid era, however, the professions alone should not be exclusively responsible for drafting such a code. Despite the commitments of professional organizations to the protection of human rights, the record of violations is so pervasive and clear that self-regulation alone is not appropriate. Indeed, in the post-apartheid era the health professions have yet to adopt comprehensive policies or codes of ethics designed to protect the human rights of South Africans. Nor are the professional regulatory Councils the appropriate bodies to promulgate such codes. Their record on human rights is even poorer than that of the professional organizations, and the Interim Medical and Dental Council shows not the slightest inclination or ability to promulgate such standards. The Council seems, even today, perfectly satisfied with its case-by-case system for deciding what counts as unprofessional conduct, and complacent with respect to the exclusion of discriminatory practices from its concept of professional misconduct.
It is, rather, for the society as a whole, expressed through Parliament or an agency designated by Parliament, to design such a code. The code should be developed with the participation of all stakeholders in the health system. This does not mean that associations of health professionals should not have a say in their own code of ethical and human rights standards, but it does suggest including groups representing the victims of human rights violations.

Regardless of the entity or entities that adopt the code, certain fundamental principles of human rights should be respected. There are a number of possible sources and models for human rights standards in health. The Commonwealth Medical Association, for example, has adopted standards that address ethical as well as human rights concerns, and may well provide an appropriate model for South Africa.⁵ Other sources include the Chilean Medical Association, the Haitian Medical Association, the International Council of Nurses' statements on the Nurse's Role in Safeguarding Human Rights, on Torture, and on Care of Detainees and Prisoners. The World Medical Association has also issued statements on human rights in medical practice.⁶

While it is not for us to draft such a code, we believe it useful to outline elements that should be included in an ethical code that includes respect for human rights. The standards should apply to both public and private facilities since human rights violations by health professionals take place in private practice and in private institutions as well as in government facilities. Given the record of the past, it is essential to assure that violations in the private sector are included. Because all elements are essential, the code should be both comprehensive and selective. These elements are:

1. The health professional must provide health care that promotes the dignity and human rights of the individual, endeavoring to treat the individual with both compassion and respect.

2. The health professional must provide health care unrestricted by considerations of nationality, race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The individual professional should adhere to this principle of nondiscriminatory health care and should respect the worth and dignity of the individual human being throughout the entire life cycle, from birth to death.

3. The health professional must safeguard the individual's right to privacy by protecting information of a confidential nature, sharing only information that is relevant to care. The client/patient relationship is built on trust. This relationship will be destroyed and the patient's welfare jeopardized by disclosure of confidential information without the individual's consent.

4. The health professional must be concerned first and foremost with the health of the patient. In the case of prisoners and detainees, the health professional must meet the health needs of the individual and refuse to withhold health interventions in order to serve the interests of state officials. The health professional must honestly report medical findings, regardless whether those findings implicate officials in wrongdoing. Detailed standards concerning the responsibilities of health professionals to prisoners and detainees should be written. Associations of professionals must endeavor to support colleagues who comply with these obligations.

5. The health professional should comply with the provisions of the Declaration of Tokyo of the World Medical Association not to condone, participate in, facilitate, or use medical skills to further the practice of torture or other forms of cruel, inhuman or degrading procedures. Health professionals who are in a position to examine persons who may be victims of torture must obtain competence in performing such examinations and submit reports that are accurate and forthcoming. Health professionals should assist victims of torture and provide support to organizations that come to the aid of such victims.

6. The health professional who participates in research activities must ensure that the rights of individuals subjects are protected. This principle was established firmly in the Nuremberg Code a half-century ago.
Professionals who undertake a research project need to protect the subject's rights to privacy and selfdetermination to ensure that fully informed consent has been obtained from the subject, and that the subject is free to leave the experiment at any time. The same obligations should apply with respect to members of the military service.

7. The health professional should work with members of other health professions and citizens in promoting efforts to meet the health needs of the public, including the establishment of a health care system that is equitable, fair, and consistent with the provisions on health care of the South African Constitution. It is increasingly recognized that the needs of all members of society for comprehensive health services can be met only through a broad and intensive effort on the part of both the community and the health professions.

8. The health professional must maintain individual competence in practice. This knowledge includes ethical and human rights standards. The nature of professional practice is such that inadequate or incompetent practice could result in the loss of health or even the life of the patient. The health professional must, therefore, be aware of the need for continuous updating and expansion of the body of knowledge on which the practice is based and must keep such knowledge and skills current.

The health professional should use individual competence, including knowledge of human rights, as a criterion in accepting delegated responsibilities and assigning activities to others. This, too, includes competence in human rights. Because of the increased complexity of health care and changing patterns in the delivery of health services, it is important that health professionals exercise judgment in accepting responsibilities as well as in assigning responsibilities to others. It should be noted that medical and nursing
practice acts are usually expressed in broad and general terms and provide minimal guidance, direction or protection to the health professional in relation to acceptance or performance of specific delegated functions.

9. The health professional should participate in the efforts of the profession to define and upgrade standards of conduct as they relate to practice and education, including the role of human rights in health practice. These standards represent not only professional goals, but also a means of ensuring a standard of care for the public.

10. The health professional acting within the professional association should participate in establishing and maintaining conditions of employment, including a prohibition on discrimination. The health professional must be concerned with conditions of employment in health care.

11. The health professional should act to safeguard the patient when his or her care and safety are affected by the incompetent, unethical, or illegal conduct of any person, including conduct that violates an individual's human rights. Inasmuch as the health professional's primary commitment is to the patient's care and safety, the professional must be alert to and take appropriate action regarding any incidents of incompetent, unethical, or illegal practice by any member of the health care team or any action on the part of others that is prejudicial to the patient's best interest. When incompetent, unethical, or illegal practice on the part of anyone concerned with the patient's care is not corrected by health professionals themselves it continues to jeopardize the patient's care and safety.

12. Health professionals and their associations must have an affirmative obligation to protect and defend colleagues who stand up for the protection of human rights. This obligation is as critical as the need to prevent those who violate human rights from practicing.
13. Health professionals have a responsibility to protect and promote human rights.

NOTES

⁵ Commonwealth Medical Association. "Medical Ethics and Human Rights: Report of a Working Group Held in London (UK), 20-24 July 1993."

⁶ Some of these sources may be found in "Ethical Codes and Declarations Relevant to the Health Professions." (London: Amnesty International). The recommendations in the British Medical Association's publication, Medicine Betrayed, Zed Books, London 1992, chapter 11, also provide useful model rules.