RECOMMENDATIONS

The abysmal record of the statutory councils under apartheid, their refusal or inability to investigate or come to terms with the past, the absence of human rights standards, and the lack of structures for individual accountability for human rights violations committed by practicing health professionals are all factors pointing to the need for structural reform of the mechanisms for disciplining health professionals in the area of human rights. The fact that institutions that were supposed to protect the integrity of health practice in South Africa instead became instruments of apartheid and shields against accountability for human rights violations is all the more reason now to reform the process of health professional discipline regarding human rights.

The reform of the disciplinary process for health professionals is, we believe, but one step toward the development of a culture of human rights among health professionals and a means of assuring that human rights are protected in South Africa's health care system. It is, however, an essential one. Without it, the public can have no faith and no guarantee that individuals with the enormous authority of health professionals will respect human rights and, if they engage in violations, be held accountable for them. With such a step, human rights values in health can become established and reinforced time and again.

Our recommendations for reform of the disciplinary process are designed exclusively to address human rights violations by health professionals. They do not address procedures and standards for professional discipline unrelated to human rights and we express no view on those standards and procedures.

In our view, the keys to reform are to assign an independent professional staff to investigate and prosecute complaints of human rights violations against health professionals before disciplinary bodies, assure the existence of articulable human rights standards by which to judge cases, establish procedures for the effective and fair presentation of cases, and establish appropriate sanctions. We also believe it important now to investigate cases that arose during apartheid. By enacting such reforms, moreover, South Africa can provide a model for the world of how health professionals can be held accountable for the human rights violations they commit.

In addressing these concerns, it may be necessary to break new ground since few countries have had to address human rights violations by health professionals on the scale that occurred in South Africa. On the other hand, South Africa also has the opportunity to become a model for human rights enforcement in the health sector. We believe that current proposals for reform do not sufficiently address the structural problems in health professional discipline that have impeded accountability for human rights violations. Increasing public participation is a worthwhile goal, but it must be accomplished in a manner that will be effective. Similarly, decentralization of discipline will have no impact if the procedures under which discipline is performed, particularly for human rights violations, are not improved. Indeed, decentralization could impede accountability for human rights violations if each decentralized board lacks the resources for independent investigators and the procedures needed for effective action.

We therefore make the following recommendations for reform, which should be considered as a package:

1. The record of the Councils must be thoroughly and
independently examined

The search for truth can never be completed without a full exploration of the Councils' past records. Unlike some other entities, the Councils have not made or presented to the public a serious review of their record in cases with human rights dimensions.

We therefore recommend a review of the record of the Councils, based on their minutes, internal memoranda, and other documents that will reveal the full role the Councils played in apartheid. This review of the Councils' records should be undertaken by an independent body and published, so that the truth can truly emerge. The report should be a thorough, well-documented, public report that covers the Councils' role in the maintenance of an oppressive system, their complicity in apartheid policies, and their role in covering up wrongdoing. The report should not be confined to the gross violations that are the TRC's concerns, but should also include the Councils' failures to protect and promote human rights.

2. Members of the Councils who advanced the policies of apartheid should be replaced and all members should receive training in human rights

Individuals, whether Council members or staff, who took actions to advance the interests of the apartheid state through the work of the Councils, for example, failing to investigate charges against physicians who were complicit in or covered up the existence of torture by security forces, should no longer serve on the Councils or their successors.

In addition, because human rights education is so essential to fostering humane values in the medical profession, and because the Councils play such an important role in reinforcing medical values, human rights education should be mandatory for all members and staff of the Councils.

3. Legislation should be enacted to increase community participation in the work of health professional
regulatory bodies and assure the Council's commitment
to human rights

The Councils are currently structured to be an organ of the "establishment," with representation from universities, government agencies, medical societies and the like. There is very little representation of the public or of constituency groups that are broadly representative of the South African community. Restructured Councils should include representatives of labor unions, social welfare agencies and others with strong ties to community-based organizations. They should also include representatives of each major population group. These representatives should be able to speak as the consumers of health services, and have as great a stake in the profession as the professionals themselves. They should be more than tokens, and must be included in a manner to make their voices effective.

Legislation should also establish criteria for membership on the Councils that include a demonstrated commitment to human rights.

4. Legislation should be enacted to create special procedures for the investigation and prosecution of human rights violations by health professionals

As explained above, the Councils are not presently structured to be effective in disciplining professionals within their jurisdiction for human rights violations. Special investigatory procedures should be established for complaints of human rights violations committed by health professionals and a special unit to engage in such investigations. We believe this separation is essential, first, because human rights violations may differ in many respects from traditional ethical violations. Second, as our interviews have demonstrated, those in the business of enforcing traditional standards lack familiarity with human rights, even to the point of not recognizing when a human rights violation takes place. Third, establishing a special procedure for investigation of human rights violations sends a very important signal to the nation that human rights violations in the health sector will be taken very seriously. Finally, separating human rights enforcement from other issues in professional discipline avoids becoming embroiled in a debate about the proper methods of professional discipline in general.

The following recommendations thus apply only to allegations of human rights violations by physicians and other health professionals. This approach, of course, means that rules must be established to distinguish more typical matters of professional misconduct, such as malpractice, from human rights violations. Legislation should therefore define human rights violations in professional behavior, so the professional and the public alike can understand which conduct falls into each category.

We recommend statutory change to create a special unit to engage in the investigation and prosecution of human rights violations by health professionals and to establish procedures for human rights violations.

(a) The first and most critical procedural recommendation is to establish a staff of independent professionals with the training and resources to investigate human rights violations

Investigators would work full-time and, to maintain independence, would not report directly to the members of the Boards or other entity that would ultimately adjudicate cases. The investigators' duty would be to investigate, develop and prosecute cases of alleged human rights violations before the members of Boards or other entity designated to hear cases.

We believe that existing proposals for change, which allocate professional discipline to each board, could make this process quite difficult, since they would require duplication of functions in each board. An alternative would be to establish one body to handle all complaints of human rights violations by health professionals.

(b) The investigators should have the authority to engage in a full investigation of allegations of human rights violations among health professionals

(c) The complaint-filing process should be made accessible

Community-based organizations, clinics, churches and other local institutions should be informed about the role of the Councils and encouraged to assist members of their communities in filing complaints. Posters and other communication devices should be made available to help communicate the role of the Councils.

The Councils should encourage the filing of complaints in languages other than English or Afrikaans.

The process of filing a complaint should be made relatively simple and straightforward.

(d) The investigation branch would present cases to adjudication panels consisting of a designated number of members of the Council, health board or other designated entity as provided in law (for example, the law might provide for a panel of three members, including a physician, a lawyer, and a community member). The panel should have the assistance of a professional hearing officer.

Diversity of background is critical because human rights in health is not an exclusively medical question. While members of this unit should gain familiarity with medical issues, the emphasis should be placed on representatives of the greater South African community judging whether a human rights violation has taken place. Racial diversity in the panels should also be assured.

Professional hearing officers should be provided because conducting a hearing is a complex task, requiring ruling on evidence, maintaining an appropriate pace for the hearing, protecting witnesses, and other judge-like functions that require training and experience.

(e) In such proceedings, the health professional subject to investigation should be entitled to counsel and due process of law

(f) The complainant should be entitled to receive notice of and be given the opportunity to participate in the proceedings before the panel

The complainant may have critically important information and in any event deserves to be treated with respect. The complainant thus should be informed of the progress of the investigation and be encouraged to participate if he or she wishes. The panel should also protect the complainant from reprisal.

(g) Once the investigation staff has made a preliminary assessment to determine whether the complaint has a sufficient basis in fact, it should be made available to the public

This would at once protect health professionals from a public airing of frivolous complaints and assure that serious allegations of human rights violations are known. Proceedings of the disciplinary entity would be a matter of public record. Only a full, public record of these allegations can assure that the complainant as well as the physician is treated fairly, that the process is not biased in favor of the physician, and that a cover-up becomes impossible.

(h) The adjudication panel should state reasons for its decisions and publish the names of and findings relating to people who are found culpable

(i) Except in extraordinary cases, such as when it would interfere with a criminal prosecution, disciplinary actions involving human rights should not be deferred pending the resolution of other proceedings

(j) The unit should have the authority to engage in emergency discipline pending the outcome of the adjudication when the action is necessary to prevent imminent harm to individuals or groups of individuals

Standards for emergency discipline, such as immediate suspension, should be established.

(k) The decisions of the unit should be reviewable in court, including appeals by the physician or the complainant

The latter should encompass the right to appeal a failure to prosecute. The law should establish standards for such appeals.

5. Legislation should establish effective sanctions for human rights violations by health professionals

There must be effective sanctions in addition to license revocation, probation, suspension and censure. Sometimes a person's actions should preclude him or her from working in a particular setting, e.g., as a district surgeon, or from exercising certain responsibilities. These intermediate sanctions can be extremely effective in enabling the community to protect its human rights norms.

The sanctions available to the disciplinary unit could include the following:

(a) Barring from positions

The disciplinary entity could have the power to strip individuals found culpable from positions in government and from certain kinds of medical jobs, e.g., working with prisoners. This sanction should be tailored to the type of violation found.

(b) Human rights training

The disciplinary entity could have to power to require individuals found culpable to engage in rehabilitation by attending educational programs tailored to address the human rights violations they committed, with monitoring of their performance thereafter.

(c) Fines

The disciplinary entity could have the power to impose fines on individuals found culpable. Legislation could provide that a portion of the fines be used as restitution for victims.

(d) Period of community service

The disciplinary entity could have the power to require a period of charitable or community service in health.

6. Human rights violations of the past that the Councils failed to address must be addressed now

It was apparent to our delegation that the desire for human rights accountability of health professionals is strong and compelling. Individuals who are supposed to be concerned with an individual's health and well-being, and who continue to hold themselves out as committed to those values, should not escape responsibility for the human rights abuses they committed—and for the deep sense of violation among those who are victims of these abuses—because the Councils condoned or ignored these violations. We learned that almost without exception, individuals concerned with the future of health and human rights in South Africa believe it necessary to ensure that physicians who committed human rights violations during apartheid be held accountable for them.

Accountability of health professionals who engaged in human rights abuses can be had through a reformed disciplinary process, as described above. It should be permanent, appropriately staffed, and charged to engage in precisely the sort of investigation needed to address such violations. Thus, we recommend that legislation establishing a reformed disciplinary process for human rights violations include a directive to investigate human rights abuses of the past.

7. Data collection procedures should assure an accurate record of the work of the Councils or their successor organizations

The Councils or their successors should keep complete and accurate records of 1) complaints filed, at least including source of the complaint, geographical location, type of health professional against whom filed, and nature of the violation; 2) disposition of complaints; 3) disciplinary actions taken. The Councils should file an annual report to Parliament and to the public containing relevant statistical data as well as highlights of the Council's work for the year.