SECTOR ANALYSES
B. Health Professional Regulatory Bodies
Under apartheid, the South African Medical and Dental Council11
(SAMDC) and the regulatory bodies of other health professions
reinforced the institutions of apartheid and abdicated responsibility
for disciplining health practitioners for human rights violations.
Submissions to the health sector hearings of the Truth and Reconciliation
Commission and our own interviews demonstrate the existence of
a disciplinary apparatus that shielded individuals from accountability
for human rights violations they committed. These violations included
deprivation of medical care to individuals in detention, breach
of confidentiality for political reasons, racial discrimination
in health services, and filing of false or incomplete reports
of injuries or torture of detainees.
Since apartheid ended, the Interim Councils have not taken steps
that demonstrate their capacity to protect human rights against
violations by health professionals within their jurisdiction.
We believe that current proposals for changes do not go nearly
far enough in restructuring the disciplinary process to vigorously
protect human rights in the health sector.
1. The Medical and Dental Council
(a) The Council and apartheid
The South African Medical and Dental Council is the quasigovernmental
professional organization charged, among other responsibilities,
with investigating alleged breaches of medical ethics, including
neglect or abandonment of medical responsibilities, falsification
of medical records, violations of confidentiality, and other violations.12
It also advises the government on certain health policy questions,
licenses physicians and makes recommendations on medical education.
Its more recent successor, the Interim National Medical and Dental
Council [Interim Council] has the same responsibilities and is
essentially the same organization, now incorporating representatives
from the former puppet government homelands of Ciskei and Transkei.
Much of its senior staff is unchanged; its Registrar, Mr. N. M.
Prinsloo, submitted both written and oral testimony to the TRC.
Under the apartheid regime, the Council not only failed to address
human rights abuses committed by health professionals, but by
both acts of commission and by silence and inaction, it in effect
encouraged such violations. Its submission to the TRC, in our
view, constituted an appalling defense of the old SAMDC's dismal
failures to require professional accountability for violations,
and its repeated demonstrations of support for the apartheid regime
without regard for fundamental medical ethics.
The Council's submission to the Truth and Reconciliation Commission
acknowledges that the Council was part of the apparatus of apartheid
in the sense that those who were members of the Council occupied
leadership positions in government and apartheid society and believed
in and sought to implement the policies of apartheid. As the Interim
Council's submission to the TRC states:
…the SAMDC functioned in a society of which virtually every
member of the politically-dominant class was steeped in doctrine
and propaganda. The SAMDC did not act the way it did because of
direct state involvement, since governmentally appointed members
were in the distinct minority. The Council acted as it did because
of the milieu in which it functioned.
The Council never saw a conflict between the goals and policies
of the apartheid regime and the imperatives of medical ethics and
human rights. For example, in many cases, notwithstanding the principle
of confidentiality between physicians and patients, the Council
adopted a position that alleged "terrorists" who sought
urgent treatment should be reported by providers to the police.13
Similarly, it refused to take a position on whether people who received
gunshot wounds should be reported to the police.14 The
Council took no action on the operation of separate medical facilities
segregated by race or the Separate University Education bill, which
separated medical schools by race, and acknowledges even now that
no consideration of the human rights violations manifested by such
policies was ever given.15 It was not until 1989 that
the Council even "disapproved" of the practice of refusing
to treat persons of a particular race.16 But even then
it took no further action. It took until 1992 to "disapprove"
of separate waiting rooms.
The Council's descriptions of actions in 1980 and 1985 to "convey
its concern" to the Minister of Health over "apparent
deficiencies" in the treatment of prisoners and detainees,
and the later submission of a Council document asking the Minister
of Health to "ensure the standardization of care" for
prisoners and detainees, contain no mention of the effective failure
of these efforts, and no indication of any Council efforts at
follow-up.
The Interim Council's discussion of the case of the doctors implicated
in the death of Steve Biko is particularly disturbing. The details
of the abuse, medical neglect, lies and mistreatment that resulted
in Steve Biko's death are well known and need no repetition here.
The account submitted by Mr. Prinsloo made no mention of them,
nor of the behaviors of Drs. Lang and Tucker, nor offered details
of the discussions of the case by the Council's Committee of Preliminary
Inquiry, which cleared the physicians of any wrongdoing, or by
the full Council, which ratified that decision. When a second
inquiry, ordered by the Supreme Court, was held eight years after
Mr. Biko's death, Dr. Lang was found guilty of "improper
conduct" and Dr. Tucker of "disgraceful conduct";
the former was given a reprimand and the latter a suspended sentence,
later modified to become an order to suspend his license for a
limited period of time.
Despite its notorious handling of the cases of Drs. Lang and
Tucker, the Council has declined to engage in a thorough review
of its record in the case or under apartheid generally. Both in
its written submission and its oral presentation to the TRC, the
Council has, extraordinarily, even failed to acknowledge any wrongdoing
even in the cases of the Biko doctors. The written submission
is a dry and legalistic account of the Biko case that carefully
avoids its substance. When Mr. Prinsloo was asked by TRC commissioners
to explain how two such different rulings could stem from the
same set of facts, he replied vaguely that there were different
committee members on the two occasions. This is nothing less than
evasion of truth regarding the darkest moment in the profession's
history in South Africa. Physicians with first-hand knowledge
of the Council's handling of the Biko case reported to us that
at its first formal meeting to discuss the charges against the
physicians, the Council never dealt with the medical record of
the physicians' actions but spent the entire session discussing
"terrorism," "total onslaught," and other
aspects of the need to defend apartheid.17
The Council's submission to the TRC also refrains from discussing
its role in the cases of other individual physicians alleged to
have committed serious human rights violations. Instead it consists
mainly of generalizations, and even omits discussion of the disposition
of complaints against physicians concerning such violations as
complicity in torture, failure to provide medical care to detainees,
and obvious breaches of confidentiality.
The Council also professes ignorance. The Council's submission
indeed states that "[T]he members of the Interim Council
who were members of the SAMDC state that they are unaware of decisions
taken by the SAMDC or its predecessors...in order to willfully
effect discrimination on the basis of race, gender, culture, religion
or any other consideration..." Of course, the Council had
no need to vote to "willfully effect discrimination,"
since state policy already did that; the ethical failure was the
Council's refusal to oppose discrimination in health care and
to decline to discipline physicians who engaged in human rights
violations.
In short, the Council has demonstrated a willful failure to come
to terms with its past. Information about the Council's response
to complaints of discrimination and its complicity in human rights
violations, however, is not hard to find in human rights reports
and elsewhere. Lawyers who represented detainees informed us of
numerous instances in which physicians—usually district surgeons—covered
up the existence of torture by the security police or even filed
false reports involving the medical condition of detainees, but
discipline was imposed by the Council in only a handful of cases.
And when discipline was imposed, it was far lighter than the infraction
would warrant. A Dr. Niemann, for example, who falsely claimed
that a detainee's injuries were the result of smoking, not torture,
was suspended for only 6 months. Other physicians who were alleged
to have committed violations appear never to have been investigated
at all even after the cases were brought to the Council's attention.18
The violations that warranted investigation fall into many categories.
Many involved people jailed or imprisoned. The violators include
physicians who filed false reports, covered up assaults by security
police or prison officials, refused to provide medical care to
detainees or provided them with grossly inadequate care, breached
confidentiality by providing information about intimate medical
details to security officials, or examined detainees for the purpose
of assuring their suitability for torture.19 Other
human rights violations warranting investigation include turning
over or reporting individuals wounded in political violence (or
in peaceful demonstrations, attacked by the security forces) to
the police, breaching patient confidentiality in political cases,
refusing to treat black South Africans in need of medical attention,
shackling patients to hospital beds, discharging individuals who
remained in need of hospitalization to the police, and denying
access by family members to hospitalized patients.
We are not aware of any plan by the Council to review these past
violations now or in the near future. The submission says that
the Interim Council will not grant amnesty "in respect of
professional conduct of registered health practitioners"
but urges "voluntary reporting of instances of questionable
conduct" so that these can be "taken into account as
a mitigating factor." There is thus no explicit commitment
to an ongoing investigation of apartheidera violations, despite
the fact that thousands of submissions to the TRC by victims of
abuse have involved district surgeons and other physicians, the
vast majority of whom are apparently still in practice and have
neither offered testimony nor been called to account. We have
been informed by physicians, lawyers, human rights groups and
others that many of the individuals who are alleged to have committed
violations still remain in practice and, in a significant number
of cases, continue employment as district surgeons or hold positions
of responsibility in universities, government, and elsewhere.
We have little confidence that the Interim Council will have
either the political will or the investigative resources to carry
out its mission, and— above all—to function with community
participation and statutory public oversight, rather than—as
in the past—as a mechanism for exclusively self-protective
professional selfregulation. These questions are critical to the
goal of securing and maintaining ethical principles, eliminating
racism and protecting human rights in the health sector.
(b) Human rights standards for the medical profession
The Council has promulgated no standards of ethics or human rights
for physicians and other health professionals to follow. It has
no institutional knowledge of or even concern for human rights.
Indeed, it does not appear to conceive of itself as having responsibilities
in the area of human rights. In its disciplinary work, its staff
informed us that the Council only uses the statutory standard
of unprofessional conduct, and it is up to the individual investigating
committees to decide what that means in a particular context.
There are no standards for treatment of prisoners, for respect
for confidentiality, or even for protection against discrimination.
Indeed, Council staff informed us that it does not discipline
a physician or other professional within its jurisdiction for
engaging in racially discriminatory conduct. This state of affairs
is unacceptable.
(c) The Council's disciplinary procedures
As applied to human rights violations, the Council's procedures
are problematic and appear to serve the interests of doctors who
commit violations rather than the victims of human rights violations.
The Council is an unwieldy disciplinary body. It is very large,
with 53 members, and yet has only a skeleton professional staff
in the disciplinary section. Their duties are principally administrative,
and not the investigation or prosecution of cases.
The Council has little capacity to engage in a thorough and impartial
investigation of human rights violations. Developing a case of
a human rights violation against a professional is a complex process,
involving interviewing witnesses, gaining and examining records,
assessing evidence, and managing the investigation. Often it involves
non-medical as well as medical witnesses and questions to investigate.
But the Council has no investigative staff of its own and relies
on a group of practitioners (and one non-physician) appointed
as a committee to engage in the initial
investigation of a complaint. These physicians are not specially
trained in disciplinary investigations, much less in human rights.
The lack of professional staff, trained and experienced in investigations
of professional misconduct related to human rights, means that
investigations are slow and often lack thoroughness. The Council
sometimes has difficulty gaining records from those under investigation.
Other elements of the basic investigation procedures, which have
not changed since apartheid ended, impede investigation of human
rights cases. In the typical case of any allegation of professional
misconduct (including one that involves human rights violations),
when a complaint is received, it is sent to the accused doctor,
who is given a chance to respond. There is no public access to
the content of the complaint. Neither is there an emergency discipline
or suspension procedure that could be used in the case of physicians
who pose an imminent risk to the public.
There are no time limits set for the health professional to respond
to the allegations. It is not uncommon for the physician to request
and receive three or more months for a preliminary response. Complaints
can also be delayed while other proceedings against the doctor
are pending.
Most complaints end at this preliminary investigation stage.
Only a small percentage of all complaints go to a formal, public
hearing, and no record is kept of the reasons why complaints are
not pursued. Neither the complainant nor the public is provided
information about these cases. We have no data on complaints filed
by race, and it is unclear what data relevant to a determination
of its full role in apartheid are kept.
When hearings are held before members of the Council, there are
often difficulties regarding appropriate rules of procedure and
evidence.20 The public has no role in the entire process.
Complainants are not kept informed of the disposition of complaints
and are given little opportunity to participate in the hearings.
When discipline is imposed, there is no written decision or explanation
of reasons for the decision.
We express no views on whether these procedures are adequate
to address cases of professional misconduct like malpractice or
other violations of duty not involving human rights violations.
They have been demonstrated to be inadequate, however, to address
professional misconduct involving human rights violations.
2. South African Nursing Council21
The South African Nursing Council's (SANC) role in apartheid
was similar to that of the Medical Council: it was an arm of the
apartheid state. If anything, the Council was employed even more
explicitly to support the policies of apartheid than the Medical
and Dental Council.
Starting in 1957, the law prevented black nurses from serving
on the Council and required separate registers of nurses by population
group. Although black nurses were subject to the Council's jurisdiction,
they had no right to vote. In 1978, the Council composition was
designated as five white nurses, three black nurses, and one colored
and one Indian nurse.
The law reached deeply even into day-to-day clinical practice.
Section 49 of the Nursing Act of 1957 made it a criminal offense
to place a white nurse under the supervision of a black nurse.
This legal structure, combined with the leadership role the Council
was expected to play in society, led to a role very similar to
that of the Medical and Dental Council. For example, like the
Medical and Dental Council, the Nursing Council was perfectly
well aware of segregation in health treatment, but accommodated
it instead of protesting against it. And like the Medical and
Dental Council, it remained a cog in the apartheid state rather
than a defender of the ethics of a profession. In its submission
to the TRC, the Interim Nursing Council acknowledges that it was
far less concerned with health or professional standards than
with the maintenance of power and privilege. For example, the
Council admits22 that it:
· Ignored the denial of treatment, even for emergency care,
on the basis of race.
· Accepted without protest gross inequalities in nurses'
training by race.
· Failed to take any steps to improve health care facilities
for blacks.
Its record in investigating gross human rights violations is
as appalling as that of the Medical and Dental Council. It concedes
that it failed to engage in proper inquiries when former political
prisoners or detainees alleged violations of human rights by nurses
in prison or jail hospitals.
Some episodes go unmentioned in its submission to the TRC, however.
In 1985, 800 black nurses went on strike to protest discrimination
in pay and working conditions as compared to white nurses and
to demand an end to apartheid health policies. The strike was
prohibited under the 1978 Nursing Act. In response, over a period
of two and a half years, more than 800 nurses appeared before
the Nursing Council and many were disciplined for "disgraceful
conduct."
There is, however, one major difference between the posture of
the Nursing Council and that of the Medical and Dental Council
as apartheid neared its end. By the end of the 1980s, the nursing
profession, under severe international pressure, began to move
toward non-racial policies. In 1988, the Council issued a statement
on medical neutrality in treating prisoners, including political
prisoners. The policy required nurses to provide care in saving
lives and relieving pain and suffering regardless of the political
beliefs of the patient, to refrain from restraining a prisoner
on other than medical grounds, and forbade nurses from participating
in torture.
In 1989, the Council petitioned to remove all racial references
from the Nursing Act. This change did not take place until 1992.
Finally, the Interim Council states in its submission to the
TRC: "We therefore wish to apologize unreservedly both for
the conscious and unconscious activities that could have had the
effect of undermining human rights from time to time."23
It commits itself to a future course of action to advocate and
protect the human rights of all nurses and patients and, importantly,
advocates reparations for victims of violations by the former
Council.
Welcome as the Council's commitment is, it does not go far enough.
It must establish procedures that assure that human rights violations
will be adequately investigated and decided, and make a commitment
to re-open cases from the past so that nurses who violated human
rights can be held accountable by their professional regulatory
body. Moreover, its composition must better reflect the racial
composition of the nation.
NOTES
11 References to the Council refer to the Interim
National Medical and Dental Council or the former South African
Medical and Dental Council, as is appropriate in the context.
12 In providing an overview of SAMDC conduct, we
caution that we had no access to the minutes of Council meetings,
internal memoranda, or other documents that would reveal the
entire record of the Council with respect to wholesale violations
of the right to confidentiality, participation of health professionals
in torture (or in complicity in abuses) or other human rights
violations. We did, however, speak to people knowledgeable about
the Council's work, and to staff of the Council, as well as
review submissions made to the TRC. We believe the information
to which we did have access provides a sufficient basis for
our analysis and recommendations.
13 Interim National Medical and Dental Council of
South Africa, June, 1997.
14 Id.
15 Id.
16 Id.
17 Jenkins, Trevor. "The Health Care of Detainees:
The Law, Professional Ethics and Reality," 1988.
18 HHRP, p. 31.
19 These types of violations are described in great
detail in the submission of the HHRP to the TRC, §3.11.
20 Strauss, SA. Doctor, Patient and the Law,
2d ed. p. 420. Strauss explains the procedures in some depth.
21 This section is drawn from several sources, including
the South African Interim Nursing Council's Submission to the
Truth and Reconciliation Commission, May 1997, and interviews
conducted by the AAAS/PHR team.
22 "Submission by the South African Interim
Nursing Council to the Truth and Reconciliation Commission,"
June 1997, p. 2-3.
23 Id., p. 2.
|
