RECOMMENDATIONS

The apartheid period bequeathed a legacy of pervasive violations of human rights in the health sector. Moreover, the commitment to democracy and human rights of the current regime does not automatically eliminate these problems. South Africa has only just begun the long and complex process of institutional and educational reform to promote a culture of respect for human rights in the health sector, and human rights violations in the health sector are likely to continue for the foreseeable future.

It is therefore essential to monitor the behavior of both individuals and institutions in the health sector to assess their conformity with human rights standards and to identify serious problems. By monitoring, we mean systematic and relatively comprehensive efforts to collect appropriate data to determine whether the performance of individuals and institutions conforms to international human rights standards. Systematic monitoring serves a variety of functions. The primary aim of a monitoring procedure is to assist the state in protecting enumerated rights, not to criticize the inadequate performance of the state or particular professional sectors. By enabling the state and human rights monitors to evaluate progress or lack thereof, monitoring is indispensable in identifying human rights problems that may exist and helping to determine appropriate remedies. As such, it is a necessary input for the work of regulatory bodies and the formulation of public policy. The preparation and circulation of periodic reports enhances the accountability both of the individuals and institutions that are being analyzed, as well as of the government, which is ultimately accountable for the promotion and protection of human rights.

Monitoring and reporting are necessary in all political systems, even those with long traditions of respect for the rule of law and commitment to human rights and dignity. No country is free of problems or the need to improve its performance, and monitoring can help identify ways to better protect and promote human rights. For this reason each of the major international human rights instruments establishes a treaty monitoring body, functioning under the auspices of the United Nations, to receive and evaluate reports from the countries that have ratified these documents.
Monitoring is especially helpful in periods of transition, as in South Africa. In countries in which a change in regime is accompanied by a greater commitment to human rights, the government, as well as various institutions in the civil society, requires regular "report cards" as to the progress in overcoming the legacy of lack of respect for human rights. There is also a need to fine-tune public policy on an ongoing basis so as to reduce continuing human rights violations and encourage respect for human rights. Moreover, knowledge that monitoring will take place may in itself provide incentives to comply with human rights norms. Information from monitoring can also provide valuable input for professional oversight bodies, policy makers, educators, and administrators as they work to instill a culture of human rights.

Given the legacy of pervasive human rights abuses in the health sector in South Africa, it will be important to undertake three different levels of monitoring. The first is the individual behavior of health professionals. The second type of monitoring that we are recommending is the evaluation of the institutional practices of hospitals, prisons, and teaching facilities. Additionally, to assess whether the health care system is overcoming the legacy of apartheid, it will be important to monitor structural patterns relative to the distribution of resources, public policy priorities, educational curriculum, and licensing and professional oversight in the health sector. This third dimension of monitoring is required under section 184(3) of the South African Constitution, which mandates regular reporting by organs of state in respect of the realization of the rights enumerated in the Bill of Rights, one provision of which is access to health care.

Effective monitoring has many requirements. To begin with, it is proactive rather than reactive. This means taking the initiative to investigate performance at regular intervals rather than solely responding to reports of violations. It cannot be assumed that specific human rights are being respected just because complaints of violations have not been received unless regular monitoring occurs.

Effective monitoring is systematic. The data collected need to be representative of the most important indicators of compliance with relevant human rights standards. Monitoring is best done at regular time intervals, utilizing carefully designed strategies and instruments. To be able to assess trends over time, it is necessary to collect the same data in a similar way so that the various data sets can be compared. If large amounts of data are being collected, an information system for input, analysis, and retrieval will be required. Given the complexities of the task, it is important to use scientific methodologies that will provide reliable and accurate data.

Another requirement for effective monitoring is to have independent mechanisms with sufficient legal provision, knowledge of and commitment to human rights, adequate resources, professional standing, and skills to undertake the data collection and analysis. It will be particularly important for some monitoring mechanisms to have the statutory authority to go into institutions and examine records that might otherwise be confidential, subject to nondisclosure protections.

Another prerequisite is the existence of clear human rights standards that can provide a baseline against which to evaluate performance. We call elsewhere in the report for the adoption of a binding and enforceable code of conduct for health professionals that incorporates obligations respecting human rights. To be the basis for effective monitoring, the code should be translated or "operationalized" as to what each of its provisions requires and how conduct relevant to that provision should be monitored. In developing monitoring regimes, it is particularly helpful to anticipate the kinds of violations that may occur and collect appropriate data regarding these potential problems.

The code for health professionals should be augmented by two other sets of standards. The first is the development of binding norms that incorporate human rights criteria applicable to the conduct of institutions. In addition, there should also be specific time-related goals for systemic reforms to progressively realize the constitutional right of access to health care. As in the case of monitoring professional conduct, to be useful as the basis for monitoring, it would be important to translate these norms into specific guideposts to be checked.

It will be particularly important for these human rights codes of conduct to deal with implementation of the principle of nondiscrimination. Despite changes in the law, the legacy of unequal treatment of persons depending on racial origins continues to be reflected in individual relationships, the operation of institutions, and access to health care. It is therefore particularly important to define what it means to treat individuals—patients, health professionals, other staff of health facilities, and students—in a manner consistent with international human rights norms of nondiscrimination. It may be useful to build on the U.S. experience, legislation, and professional codes as they have addressed this issue.
Institutional codes of conduct also need to set forth detailed expectations that go beyond non-discrimination and embody the full range of international human rights principles. Many of the human right abuses noted in the submissions to the TRC's health sector hearings described human rights violations that went beyond discrimination based on racial background. For example, there appeared to be a pattern of lack of respect for women's dignity and autonomy that affected women of all races, although some of these violations, such as violence in clinical settings, were more likely to be directed at black women. Patients' rights also appears to be an almost completely undeveloped area of work in South Africa.

Effective monitoring also requires community participation and commitment to human rights. Human rights are not entitlements that can be successfully conferred "from above" by benevolent governments. To be more than theoretical guarantees, human rights need to be supported, perhaps even demanded, and protected "from below" by citizens intent that the rights be realized. For this reason human rights education that reaches potential patients, as well as health care providers, is critical. The various public awareness campaigns and grassroots initiatives conducted by the Progressive Primary Health Care Network are an important beginning. These efforts need to be given sufficient resources so as to reach out to all areas of the country on an ongoing basis.

Monitoring can and should use a variety of approaches and strategies. These include the following:

· Conducting a review of relevant legislation, regulations, and codes of various types to assess their conformity with international human rights standards, whether the international standards are reflected in domestic law and professional codes of practice or whether there are laws or regulations that contravene standards. In the case of South Africa, there are still many apartheid-era laws and regulations in place in the health sector that are inconsistent with a transition to a culture of human rights.

· Undertaking regular site visits to assess human rights compliance in particular localities or institutions, especially those that have a history of human rights problems. Given the pervasive problems in the past, police stations and prisons constitute obvious foci for monitoring to assess whether prisoners' rights are being respected and to evaluate whether prisoners are being subjected to torture or denied appropriate medical care. Custodial and mental health institutions are another priority site requiring regular inspections. The situation in the military health service is another. It would also be important to visit a sample of other hospitals, medical facilities, and even practitioners' offices to observe whether apartheid abuses are being repeated or corrected.

· Requiring and evaluating written reports. Many national human rights monitoring bodies require institutions to submit regular self-reports utilizing a specified format as the basis for assessing their compliance with relevant human rights standards. Some of the issues to monitor within the medical sector are whether: the institution has adopted an ethical or human rights code of conduct, personnel are receiving some form of training in respect for human rights, patients are being made aware of their rights and safeguards, or the institution has some form of a complaints procedure, and if so, the number and types of complaints that have been received.

· Reviewing records. Financial auditors regularly spot-check the records of institutions for which they have jurisdiction. In some locales, educational officials appear unannounced to review the records of schools. With necessary legal authorization, human rights monitors could also audit the records of providers, insurers, and regulatory bodies.

· Interviewing practitioners and patients. Like social science researchers, human rights monitors can develop formal interview protocols, identify representative samples, and conduct research to evaluate the current status of respect for human rights in the health sector. These methods can also be used on a more informal and less systematic basis.

· Analyzing complaints and allegations of human rights violations. Some institutions and medical societies have an ombudsperson or procedure through which victims can submit formal complaints and requests for remedies. Where such mechanisms exist, it is possible to set up an information system that would keep the complainants' identities confidential but provide demographic information as well as data on the nature of the alleged violation, the circumstances, and the site at which it took place. Researchers could then analyze the data to ascertain the nature, source, frequency, and seriousness of the problems that are reported.
Finally, monitoring has a public reporting dimension that reinforces the accountability of health care professionals and the health sector as a whole. It is essential that the data collected through monitoring be analyzed and the results shared through the publication of periodic reports at specified intervals, usually on an annual basis. The reports enable the public to scrutinize the record and evaluate the extent of progress. This is essential if health care professionals and the health sector as a whole are to remain accountable for their conduct.

All too often primary emphasis is given to data collection without sufficient sensitivity to the importance of analysis and reporting. However, the collection of data is not an end in itself. Data collection is a means to assess the status of what is being studied, in this case progress in developing a health sector whose institutions and professionals operate in a manner consistent with human rights principles. Reporting provides a kind of report card on how far the health care system has progressed and where significant problems still remain.

Non-governmental organizations have made proposals for several types of monitoring mechanisms in South Africa. We understand that the Truth and Reconciliation Commission is considering a recommendation that a Commission on Health and Human Rights be established, consisting of health professionals, human right experts, consumer representatives and legal experts. We consider the establishment of such an institution an important step forward. The proposed responsibilities of this Commission are:

· implementing the recommendations related to the health sector adopted by Parliament in response to the TRC report;

· monitoring institutional health care;

· advising on educational curricula on health and human rights;

· receiving and dealing with reports and complaints about human rights abuses in the health profession;

· creating the position and overseeing the work of a "medical public protector" or ombudsperson; and

· undertaking an inquiry into the legal, ethical and professional position of health personnel in the military, with the development of clear guidelines to avoid conflict between military law and professional ethics.

It is also important that an independent health complaints mechanism be established, possibly within the Commission on Health and Human Rights. This would allow for ongoing confidential reporting of human rights abuses by health professionals.

The TRC's recommendations run parallel to a proposal by the Health and Human Rights Project to establish a national health and human rights "watchdog" body to promote and monitor health and human rights among South Africans. A task force of South African health professionals is establishing a process of national consultations culminating in a national meeting to be held later in 1998. The initiative provides a unique opportunity for health professionals to build on the momentum generated by the TRC's health sector hearings and operationalize their stated commitment to reorient the health professions toward a greater focus on human rights. This process is very important because stakeholder involvement is likely to be key to the success of efforts to establish monitoring mechanisms.

Whatever form such national monitoring mechanisms assume, however, there will be a need for continued monitoring at many levels of the health sector. The effectiveness of a Commission on Health and Human Rights and/or an independent "watchdog" body will be dependent on the quality and type of data it receives.