SECTOR ANALYSES

District health services, which employed the district surgeons, were local agencies administered by provincial and municipal health authorities and overseen by the national Department of Health. Among their responsibilities, district surgeons cared for prison inmates and other detainees, and performed forensic examinations on those who died or were injured while in prison or police custody. The district surgeon was usually a detainee's only health care provider and often the only connection to the outside world. Thus, the district surgeon occupied a particularly important position, and had a unique opportunity and responsibility.

1. District surgeons and South African law

The only specific regulation which deals with the medical care of detainees states that a detainee shall be examined medically by the medical officer as soon as practicable after his or her arrest or detention and as shortly as possible before his or her release from detention. The regulation also provides that the head of a prison shall ensure that any medical or dental treatment for a detainee prescribed by the medical officer be carried out promptly. Finally, medical or dental treatment by a medical practitioner who is not the medical officer may be provided only on the recommendation of the medical officer.³¹

In practice, there are no prison medical officers and the medical care of detainees has fallen to district surgeons. The district surgeon has a statutory duty to treat patients entrusted to his or her care. The common law also imposes upon the district surgeon an affirmative obligation to care for injured or ailing detainees of whose condition he or she is aware.³²

Notably, unlike the security police, district surgeons enjoy no special immunity by reason only of their statutory obligations. In other words, a district surgeon cannot defend him- or herself against the charge that he or she actively participated in torture or otherwise failed to satisfy his or her responsibilities to a detainee patient, by asserting that his or her doing so was part of a good faith effort to advance domestic security.³³

District surgeons (and prison medical officers) are employed by the Department of Health and Population Development. Yet, it is the view of a leading authority on medical law that, in their work with detainees and prisoners, these physicians fall under the control of the Commissioner of Prisons.³⁴ Regardless, the responsibilities that these doctors have to their patients are independent of the employment hierarchy in which they physician operate.

2. District surgeons' behavior during apartheid

While there was considerable variation in district surgeons' attitudes toward their patients and in the quality of care they provided,³⁵ district surgeons did, in the main, accommodate themselves to the dehumanizing system in which they were operating. District surgeons commonly participated in abuses by failing to record and investigate apparent signs of abuse, by not providing or insisting on appropriate treatment, and by not respecting doctor-patient confidentiality.³⁶

While failing to record and investigate apparent signs of abuse and not insisting on appropriate treatment are obviously violations of professional responsibility, breaching doctor-patient confidentiality is also quite serious as it further erodes the quality of care; as detainee-patients observed the frequent presence of security personnel during medical consultations and as they learned of the common release of medical records (which are the property of the health service) to prison authorities without their consent,³⁷ they understandably reacted by withholding important information about the nature and origin of their injuries.

While it appears that district surgeons did not generally participate actively in torture, they rarely spoke out against inhumane practices, and more than a few either submitted false evidence to cover up abuse or torture or failed to report any relevant findings at all.³⁸ While there were a few bright spots, those few who spoke out against the abuses received little support from their colleagues,³⁹ suggesting that the problem was not restricted to a few `bad apples.' It must also be acknowledged that the variation in district surgeons' performance also went in the opposite, less positive direction.
More than 70 political detainees died in detention between 1960 and 1990.⁴⁰ And, in some cases, medical negligence was an important contributing factor.⁴¹ Further, it should be noted that the district surgeons' silent complicity worsened the problems toward which they turned blind eyes. By overlooking the medical evidence of torture, district surgeons contributed to the myth that the government cared for those in prison. Thus, the South African problem mirrored that in the Soviet Union, where mental health professionals abused medicine and patients by saying that those individuals had diseases which, in fact, they did not, so that they could be confined to mental hospitals. South Africa's district surgeons supported the regime by abusing medicine in ways that allowed the regime to continue to abuse its citizens.⁴²

3. Factors contributing to district surgeons' inadequate performance

Internationally, the prevailing wisdom is that medical professionals who become involved in torture are typically unexceptional, and that situational factors are quite important.⁴³ Regardless of the physicians' eagerness, district surgeons' actions took place within a particular context, and context can either make it relatively easy for a physician to fulfill his or her responsibilities to his or her patient, or extraordinarily difficult for a physician to avoid culpability. Accordingly, we review below various aspects of the context within which district surgeons operated and consider the way in which these aspects contributed to gross violations of human rights. Many are discussed elsewhere in this report and we summarize them here.

(a) Dual responsibilities

The relationship of health professionals in a prison system to their detainee-patients is a difficult one in any society because the health professionals' medical and ethical responsibilities to their patients may conflict with their perceived responsibilities to the prison system which controls and directs their work.⁴⁴ This conflict was especially pronounced for those charged with treating detainees. District surgeons operated in an environment of indefinite, incommunicado detention in which courts accepted confessions obtained via torture, and security forces were immune from prosecution for their role in human rights abuses as long as they acted in good faith. Such a desensitizing, authoritarian context fosters disrespect for human rights.⁴⁵

Further, South Africa's detention took place within the context of the apartheid system. The psychological distance that apartheid succeeded in placing between the white world of the district surgeons and the black world of the detainees fostered disrespect and human rights abuses.⁴⁶ The force of this factor is augmented by the fact that the government justified detention by telling its white supporters that detainees posed a threat to order. In fact, it seems that district surgeons were often fearful of their patients and sympathetic to the goals of the security police; it is far from clear that most doctors involved in human rights abuses felt that they were doing anything other than their patriotic duty.⁴⁷

(b) Workloads

Mass detentions dramatically increased the workload of already overworked district surgeons.⁴⁸ This burden encouraged them to focus less on providing adequate care and more on getting through the patient load. Although district surgeons responsible for detainee care were not unique among physicians in facing excessive patient loads, the workload encouraged district surgeons to adopt practices (such as cursory group examinations) that conveyed a lack of caring, undermined the doctor-patient relationship, and made it less likely that a detainee would disclose his injuries and discuss their origins. Thus, we believe that, in the detention context, the patient-load hardened district surgeons' attitudes and made it easier for them to fail to see or to overlook the evidence of torture.

(c) Isolation

District surgeons operated alone in this inhospitable environment,⁴⁹ and a ban on publicizing alleged abuses increased their psychological isolation. Specifically, the State of Emergency regulations prohibited the unauthorized publication of conditions in detention, the names of detainees or their whereabouts. Publishing allegations from an unconcluded judicial proceeding about detainee treatment could lead to a ten-year prison sentence.⁵⁰ Thus, a district surgeon recognizing human rights abuses likely did so alone and without knowing that the problem was widespread and was being judicially contested.
(d) Medical education

Partly as a result of segregated and unequal pre-medical and medical education, the overwhelming majority of South Africa's physicians are white. Second, training in medical ethics and human rights was inadequate. Taken together, these aspects contributed to the social distance between district surgeons and their detainee-patients, increased the physicians' sympathy for the apartheid regime, decreased physicians' understanding of their responsibilities, and contributed to a medical culture that tolerated gross violations of human rights. Thus, these two aspects of medical education contributed to district surgeons' inadequate performance with respect to detainees.

(e) Ignorance of national and international law

While the district surgeons' responsibilities under international and South African law are quite clear to us, they were, apparently, less clear to many district surgeons. For example, district surgeons apparently did not know that they could override wardens on medical matters.⁵¹ In fact, it seems that district surgeons' source of understanding of their role was often gleaned in passing from the police.⁵² Of course, there is a clear conflict of interest and genuine education is unlikely when the police are the district surgeons' source of information on his or her responsibilities to his or her patients and his or her authority to insist on treatment over the police's objections.

District surgeons' ignorance was, in another way, the product of governmental policy; the District General of the Department of Health, for example, issued an order preventing doctors from attending a lecture on medical ethics.⁵³

(f) Lack of enforced codes of behavior

While they are important guideposts, international standards are too often enforced late, or not at all. Accordingly, we look to national disciplinary bodies to set standards, investigate complaints, and exclude from professional activity those who compromise codes of conduct. As noted above, the South African Medical and Dental Council's rule-making and disciplinary procedures proved wholly inadequate to regulate district
surgeons' treatment of detainees.
(g) The fallacy of neutrality

District surgeons' sympathy for the security police's goals, their
ignorance of the law, the lack of clear, public mechanisms for accountability for their conduct, and their fear of reprisals encouraged district surgeons to accept the notion that they were merely neutral.²⁵⁵⁴⁹ Rather than being neutral, physicians have the obligation to protect their patients.

(h) Lack of peer leadership—the role of medical associations

It is very important that doctors receive institutional support to stand against the pressure to participate in abuse.⁵⁵ Yet, South African medical organizations did not support physicians when they were at risk of becoming compromised in unethical practices. Until the 1980s, MASA took the view that, because the SAMDC bore responsibility for regulation and because MASA was a private organization, it had no medico-ethical responsibilities. Accordingly, MASA's official journal, the South African Medical Journal, curtailed publication of critical comment and documentation on detention.⁵⁶

Further, while MASA did remind district surgeons of their duties to patients, it did not provide clear guidelines as to the specific course of action they should follow if faced by evidence of torture or other forms of abuse of detainees,⁵⁷ and it declined to criticize the practice of indefinite, incommunicado detention, asserting that this was a political question beyond its sphere of authority.⁵⁸ Yet, neutrality did not block MASA from asserting that "to date no conclusive evidence has been submitted that any assault in fact took place [against Steve Biko]," and that "the use of violence, from whatever source, cannot be condoned but it must be realized that the police have a duty to perform, frequently under very difficult circumstances."⁵⁹

While using its purported neutrality to justify its not condemning the practice of indefinite, incommunicado detention, MASA urged reform of the detainee health care system. But even here its effort was underwhelming. For example, in 1983, MASA's Ad Hoc Committee to Institute an Inquiry into the Medical Care of Prisoners and Detainees issued a report calling for a legislative guarantee of prison doctors' clinical independence; criminalization of police interference with a district surgeon's access to a detainee; an active program for peer review of the medical treatment district surgeons gave to detainees; and allowing detainees the right to an examination by an independent practitioner. Yet, the report did not give district surgeons specific guidance as to what steps they should take to protect their detainee patients, and the report did not pledge the organization's support to a district surgeon who encountered difficulties in his or her efforts to fulfill his or her obligations. Further, nothing came of the report for two and a half years. Then, when the government's only concession was to allow detainees to request medical care from alternate doctors who had been approved by MASA and the security police, MASA hailed this as a "major breakthrough" which would prevent incidents like the one involving Steve Biko. MASA did little when it was clear that detainees were reluctant to use doctors who had been approved by the security police as a prerequisite to their eligibility.⁶⁰ Further, in 1985 and 1986, the Association did little to support district surgeon Wendy Orr when she sought to protect her patients against from torture.⁶¹

(i) Persecution of outspoken health care workers

In any society where violations of human rights are prevalent, complaints to the police of mistreatment of detainees may endanger the very people the health professionals are trying to protect.⁶² In addition, health professionals may fear that the complaint will not be considered seriously or without bias by the investigating body. The experience of then-district surgeon Wendy Orr, who was victimized for her efforts to protect detainees, points to the validity of these fears.⁶³

Further, health professionals may themselves be at risk if they report violations of human rights.⁶⁴ In fact, members of the health professions did not escape the general suppression of dissent in apartheid South Africa; health professionals have suffered harassment for offering medical treatment to former detainees and victims of violence and for speaking out on behalf of human rights. They themselves were banned, restricted, detained without trial, tortured, and murdered.⁶⁵

NOTES

³¹ Marcus, Gilbert. "Liability for the Health of Detainees." South African Medical Journal, November 1988. p. 456.

³² Id., p. 457.

³³ Id., p. 456-7.

³⁴ Jenkins, p. 5..

³⁵ AAAS, p. 77. Also see van Heerden. Prison Health Care in South Africa: A Case Study Of Prison Conditions, Health Care And Medical Accountability For The Care Of Prisoners, 1996, p. 103-4 for an illustration.

³⁶ Apartheid Medicine; van Heerden; Terence L. Dowdall, "Repression, Health Care and Ethics Under Apartheid," Journal of Medical Ethics, 1991; Michael A. Simpson, "What Went Wrong?: Diagnostic and Ethical Problems in Dealing with the Effects of Torture and Repression in South Africa," In Beyond Trauma: Cultural and Societal Dynamics. Rolf J. Kleber, Charles R. Figley, and Berthold P. R. Gersons (Eds.). 1995; South Africa interviews #9 and #18.

³⁷ AAAS, p. 83.

³⁸ Ibid, South Africa Interview #18.

³⁹ Orr, Wendy. "Medical Treatment of Prisoners and Detainees in South Africa in the 80s—My Experience." Available on-line at: <http://www.masa.co.za/shr/orr.html>.

⁴⁰ Human Rights Commission Fact Paper, FP7. Deaths in Detention.. Braamfontein: August 1990.

⁴¹ Apartheid Medicine. p. 64.

⁴² Michael A. Simpson, "What Went Wrong?: Diagnostic and Ethical Problems in Dealing with the Effects of Torture and Repression in South Africa," In Beyond Trauma: Cultural and Societal Dynamics. Rolf J. Kleber, Charles R. Figley, and Berthold P. R. Gersons (Eds.). 1995. p. 208.

⁴³ British Medical Association, Medicine Betrayed, 1992. p. 35-58; For a discussion specific to South Africa see Michael A. Simpson "What Went Wrong?: Diagnostic and Ethical Problems in Dealing with the Effects of Torture and Repression in South Africa," In Beyond Trauma: Cultural and Societal Dynamics. Rolf J. Kleber, Charles R. Figley, and Berthold P. R. Gersons (Eds.). 1995.

⁴⁴ AAAS.

⁴⁵ AAAS, p. 69. See also Michael A. Simpson, "What Went Wrong?: Diagnostic and Ethical Problems in Dealing with the Effects of Torture and Repression in South Africa," In Beyond Trauma: Cultural and Societal Dynamics. Rolf J. Kleber, Charles R. Figley, and Berthold P. R. Gersons (Eds.). 1995. p. 203.

⁴⁶ South Africa interview #10.

⁴⁷ Simpson, p. 201-202. See also South Africa interview #9.

⁴⁸ Orr.

⁴⁹ Solomon R. Benatar, "Ethical Responsibilities of Health Professionals in Caring for Detainees and Prisoners," South African Medical Journal, November 1988. p. 454.

⁵⁰ Rayner, p. 6-8, 34.

⁵¹ Id., p. 29-31, 53-54.

⁵² Id., p. 31, 54.

⁵³ Ibid, p. 57.

⁵⁴ Simpson, p. 209.

⁵⁵ British Medical Association. Medicine Betrayed, 1992, p. 182. Also see "Role of National Medical Associations," in Medical Ethics and Human Rights; Report of a Working Group on the Role of Medical Ethics in the Protection of Human Rights, Commonwealth Medical Association, July 1993.

⁵⁶ van Heerden, p. 16-17.

⁵⁷ Silove, Derrick. "Doctors and the State: Lessons from the Biko Case," Social Science and Medicine, 1990.

⁵⁸ Le Roex, R.D. "The Health of South Africa," South African Medical Journal editorial. August 2, 1986. p. 131.

⁵⁹ Le Roex, R.D. and C. E. M. Viljoen, British Medical Journal, 292, (February 22 1984), p. 560, emphasis added.

⁶⁰ AAAS, p. 81-82.

⁶¹ Given MASA's de facto non-neutrality and the failure of SAMDC's disciplinary procedure to police improper and disgraceful conduct, we believe that research into MASA's filtering of complaints and SAMDC's enforcement record would advance the Truth and Reconciliation Commission's goal of establishing the origin and nature of gross violations of human rights.

⁶² AAAS, p. 77. Also see Silove, 1990.

⁶³ Rayner, p. 77-79.

⁶⁴ Id., p. 76-77. See also Silove.

⁶⁵ Rayner, pp. 63-64.