RECOMMENDATIONS

Reforms that provide for the effective documentation of torture and human rights abuses are essential in the process of reconciliation and in restoring trust in the medical profession in South Africa. Although some district surgeons, such as Dr. Wendy Orr, acted courageously and in the best interests of their patients under apartheid, most district surgeons did not.

Reforms in the medical documentation of torture and ill-treatment take on additional significance, as torture in detention is still practiced in South Africa. Moreover, it appears that district surgeons have failed to engage in the reflective process of the health sector hearings. A single submission by several district surgeons to the TRC offered little more than self-congratulations for a job well done under difficult circumstances. The magnitude of these problems calls for no less than a fundamental transformation of the present system.

In September 1996, the Ministry of Health drafted a document entitled "Proposed National Policy on the Medicolegal Services in South Africa." The document is an excellent strategic plan for reform of forensic post-mortem services in South Africa. We support the recommendations which pertain to forensic post-mortem services, including legislative reforms regarding forensic post-mortem services, transfer of medicolegal mortuary services to the health sector, improvements in resource allocation and laboratory services, centralization of post-mortem services, restructuring of personnel, establishment of quality control measures, and improved training in forensic medicine.

The Ministry of Health proposal only briefly addresses the need for reform in clinical forensic medical services. It refers primarily to victims of rape, child abuse and assault, but does not specifically mention the evaluation and care of detainees. The proposal calls for decentralization of services from district surgeons to "the same doctors who render primary health care services." It emphasizes the need for these medical practitioners to have special training in assessing and caring for such victims of violence and recommends a team approach, consisting of doctors, nurses, social workers, rape crisis workers, psychologists, and the like. The proposal also includes a warning that decentralization of clinical forensic medical services will, most probably, lower the current standard of service, and that it will take years of service for primary health care practitioners to develop the expertise that most district surgeons already have.

The prevalence of complicity among district surgeons, or equivalent personnel, in past and present human rights abuses has created an imperative to dismantle the present system of clinical forensic medical services. The Department of Health proposal effectively accomplishes this by transferring the responsibilities of district surgeons to all primary health care practitioners. However, this plan not only will be fraught with the problems of establishing and maintaining clinical standards and quality of care, it will increase the degree of fragmentation of services and render service providers even more isolated and vulnerable to coercion by perpetrators of human rights violations. In addition, displacement of clinical forensic medical services from district surgeons to all primary health care providers may indirectly compromise the delivery of primary health care services and create a disincentive for physicians to choose to work in this field. Given the need for frequent evaluations of detainees while in custody and following detention, it seems unlikely that these services will be effectively rendered by primary care providers.

Strategic planning for clinical forensic services would benefit from additional dialogue within the health sector. Such dialogue may aid in producing an extensive and coherent plan like that proposed for post-mortem forensic services.

Further dialogue on forensic clinical services in South Africa may be enhanced by the recommendations which follow. Although some of these recommendations may be specific, they are also intended to serve as points for further discussion.

(a) Reassign responsibilities for clinical forensic services

One possibility may involve replacement of district surgeons by a corps of clinical forensic specialists. These practitioners may work full-time, part-time, or on a sessional basis. However, each practitioner must be certified, or licensed, to practice clinical forensic medicine. This includes present district surgeons who may wish to participate in these services. The certification process may consist of an initial training course, followed by a proficiency examination (didactic and practical) and an oath pertaining to human rights and ethics. Clinical forensic specialists should be required to maintain their skills through continuing medical education requirements established in conjunction with the SAMDC. Their activities would be monitored by an independent health and human rights commission, or similar entity.

Alternatively, restructuring of clinical forensic services in South Africa may involve joint responsibility by forensic pathologists and primary health care physicians. This restructuring plan would be similar to that proposed by the Ministry of Health, but would also include provisions to improve centralization, standardization and quality control of services, as well as professional organization and solidarity. In this plan, primary health care practitioners would assume the responsibility for clinical forensic services. However, the responsibilities for training, certification, selection of
practitioners, establishment of clinical standards, and assessment of quality of service would fall under provincial forensic pathology services. Such a plan would require administrative links and coordination between forensic pathology services in all provinces, and within the Ministry of Health. It would also place significant demands on forensic pathologists, whose work already suffers from staffing shortages.

Another possible way of restructuring clinical forensic services in South Africa would involve transferring the custodial responsibilities of district surgeons to prison health services. Under these circumstances, non-custodial clinical forensic services (sexual assault, child abuse, motor vehicle accidents, and the like) might be best handled by clinical teams located in primary health care centers, as proposed by the Ministry of Health. Responsibility for training, certification, selection of practitioners, establishment of clinical standards, and assessment of quality of service could be assumed either by prison health services or provincial forensic pathology services. In either case, control of prison health services should be transferred from the Ministry of Correctional Services to the Ministry of Health.

(b) Establish a central authority for forensic services in the Department of Health

Regardless of whether the responsibilities of district surgeons are assumed by clinical forensic specialists, primary health care practitioners, prison doctors, or some other health professionals, a central authority should be established within the Ministry of Health for all forensic services. This authority should be concerned with assuring adequate standards for forensic training, certification, selection of practitioners, clinical services, quality assurance, procedural safeguards, and accountability. The central authority should work closely with health professional organizations, statutory medical councils, forensic medicine specialists, medical academicians, provincial health officials, health and human rights organizations, and torture treatment organizations, as well as the Departments of Education and Justice.

The authority should be responsible for providing official annual reports which contain information on forensic services and the activities of the forensic authority. The authority also would be responsible for providing access to information such as autopsy reports, medical examinations of detainees, and clinical records when indicated by allegations of misconduct. Under such circumstances, measures would need to be taken to preserve the confidentiality of the patient-physician relationship.

The authority should establish an independent review board to ensure that human rights and bioethics standards are strictly maintained in forensic services (see below).

(c) Establish procedural safeguards for medical evaluations of detainees

Forensic medical evaluations of detainees should be conducted at regular intervals and in response to official written requests by a public prosecutor or an appropriate judicial official. Requests for medical evaluations by law enforcement officials should be considered invalid unless they are acting on the written orders of a public prosecutor or an appropriate judicial official.

Detainees ideally should be examined at the time of detention, after interrogations, periodically during detention, and at the end of detention.

Official forensic personnel should have unequivocal access to those in detention. In addition, physicians who provide alternative medical evaluations at the request of a detainee should be guaranteed access to the detainee.
Detainees have the right to obtain a second, or alternative, medical evaluation by a qualified physician of their choice during and after the period of detention.

Each detainee must be examined in private. Police or other law enforcement officials may not be present in the examination room. This safeguard may only be precluded when the detainee poses a serious risk to the safety of health personnel. There must be strong evidence on which to base any omission of this safeguard.

Medical evaluations of detainees should be conducted at official medical facilities whenever possible. When examinations are conducted at a police station or other place of detention, forensic practitioners must be given access to adequate examination facilities. The presence of police in the examination room, for whatever reason, should be noted in the physician's official medical report. Notation of police presence during the examination may be grounds for disregarding a "negative" medical report in court.

Medicolegal evaluations of detainees should include the use of a standardized forensic medical report form. An example is provided in Appendix B of this report.

A standardized forensic medical report form should be provided by the examining physician. The original completed evaluation should be transmitted directly to the public prosecutor and copies of each medical report should be retained by the examining physician and sent directly to an independent review committee (see below). Under no circumstance should a copy of the medical report be transferred to law enforcement officials.

When forensic medical examinations are conducted at the end of the period of detention, the detainee should not be returned to the place of detention, but rather should appear before the prosecutor or judge in a proceeding to determine the detainee's legal disposition. This will reduce the possibility that torture or ill-treatment will take place after such medical examinations.
(d) Legislate structural changes in forensic services

Structural changes in forensic services should be drafted into legislation. These changes should include: (1) establishing the role and responsibilities of a forensic authority within the Department of Health; (2) reassigning responsibilities for clinical forensic services; (3) establishing procedural safeguards for medical evaluations of detainees and post-mortem examinations; (4) revising the Forensic Medical Service Postmortem Act as advised in the Proposed National Policy on the Medicolegal Services in South Africa, drafted by the Department of Health in September 1996; (5) requiring policy and procedural manuals for clinical forensic specialists and forensic medical examiners; (6) establishing regulations for law enforcement officials and security forces which ensure independent and effective forensic and clinical services for detainees; (7) requiring the South African Medical and Dental Council to improve licensing criteria for clinical forensic services and forensic pathology; and (8) establishing a legally-binding code of conduct for health professionals. (See Recommendation B.)

(e) Monitor for potential complicity in torture and ill-treatment

The monitoring authority discussed in Recommendation F should be responsible for ensuring that human rights and bioethics standards are strictly maintained in forensic services. This authority may consider establishing an independent, non-governmental review board for the purpose of monitoring human rights and ethics. In either case, monitoring may include: (1) periodic review of performance evaluations; (2) announced and/or unannounced site visits to examination facilities, including places of detention; such visits may include interviews with staff and examination of forensic documentation; (3) preliminary inquiries into reports of misconduct and referral of appropriate cases to the SAMDC; and (4) periodic quality assessments of random samples of forensic reports.
(f) Establish criteria for licensing and certification of forensic practitioners

Criteria for licensing physicians who provide forensic services, whether these services are in clinical or postmortem settings, should be established. In addition, requirements should be established for continuing medical education for recertification purposes. These criteria for licensing and certification should be established in close consultation with representatives of medical professional organizations, non-governmental health and human rights organizations, and representatives in government.

(g) Undertake administrative reform among district surgeons

District surgeons who are currently active and wish to continue providing clinical forensic services should undergo a personnel audit. This may involve review of performance evaluations, clinical service records, and complaints of any misconduct.

(h) Ensure adequate resource allocation for restructuring of forensic services

Recommendations which aim to provide effective documentation of torture and ill-treatment depend on adequate resource allocation. A formal accounting process should be rendered prior to implementation and/or legislation of any costly reform measures. In addition, clinical forensic services should be compensated at a fair level.

(i) Provide professional support for practitioners of forensic clinical services

In the past, district surgeons were very isolated from other health practitioners in the course of their daily work. The status of district surgeons in the health sector was stigmatized partly because of the nature of their work, but also because of the perception that district surgeons often engaged unsavory practices such as remuneration fraud (i.e. billing multiple payers for the same service). In addition to reassigning the responsibilities of district surgeons and making other structural changes in forensic clinical services, it is important to provide professional support for practitioners of forensic clinical services. To some extent, the absence of professional support in the past probably contributed to the problem of complicity of the district surgeons in human rights abuses and ethical misconduct.

The quality and effectiveness of forensic clinical services in the future may benefit greatly from efforts to incorporate forensic specialists into the mainstream of the health sector. Some suggestions include the following: (1) establish a forensic medical society; (2) hold annual national, and possibly regional, forensic meetings; (3) include clinical forensic specialists in medical education seminars on human rights and ethics; (4) encourage South African medical journals to solicit manuscripts from clinical forensic specialists; (5) create academic posts for clinical forensic specialists; and (6) encourage research in clinical forensic medicine through increased availability of grants.

Normative expectations of clinical forensic specialists should not tolerate complicity in abuses of human rights or ethical misconduct. These expectations should be voiced from all corners of the health sector.

Apartheid medicine violated fundamental human rights and failed to provide adequate health care to a majority of South Africans. The new South African Constitution enshrines the rights of all people in the country and affirms democratic values of human dignity, equality, and freedom. Its Bill of Rights recognizes the right to have access to health care services, including reproductive health care. Realization of these goals, however, will require overcoming the legacy of apartheid in the health sector through undertaking the reforms outlined in this report. If South Africa is able to institute a culture of human rights, it will serve the people of South Africa and provide a model for the rest of the world.