AAAS Scientific Responsibility, Human Rights and Law Program

Truth and Reconciliation: Examining Human Rights Violations in South Africa's Health Care Sector

Submission to the Truth and Reconciliation Commission Concerning The Role of Health Professionals in Gross Violations of Human Rights  

Introduction
In 1989, the American Association for the Advancement of Science (AAAS) conducted a medical mission of inquiry to South Africa. A six-member delegation, representing four U.S. medical and scientific organizations, visited South Africa from 9 to 16 April, 1989 to examine health and human rights issues. The mission team's report, Apartheid Medicine, summarized their findings. The report examined how legal structures and the culture of apartheid denied the majority of South Africans decent health care and contributed to massive human rights violations by individuals and institutions in the health care sector.

The report also examined the role South African health professionals played in helping or hindering the promotion of human rights. Members of the health profession may be among the first witnesses of violence and human rights violations. They may care for persons injured during civil unrest. They may be called upon to provide medical care to victims of torture or to investigate suspicious deaths in custody. They themselves may experience violations of human rights because of their personal or professional beliefs or activities. And they may be compelled to participate in health care arrangements that systematically discriminate against people who are members of certain racial or ethnic groups.

During apartheid, health professionals had the unenviable challenge of working in a system that attempted to subordinate their ethical responsibilities to political decisions about appropriate health care for each legally defined racial group. While some health professionals acted with great courage and conviction to uphold ethical standards, the majority did not. A great many health professionals acted to reinforce apartheid even when not legally required to do so.

In late 1996, the Truth and Reconciliation Commission (TRC) invited the AAAS to participate in their evaluation of human rights violations in the health care sector. The invitation came from the TRC's appreciation for the Apartheid Medicine report, and from ongoing collaboration between the AAAS Science and Human Rights Program and the TRC. To fulfill the TRC's request, the AAAS assembled a consultative team including the U.S. based non-governmental organization (NGO) Physicians for Human Rights as co-sponsor. Other participating NGOs include the Committee for Health in Southern Africa (CHISA), the American Psychiatric Association (APA), the American Public Health Association (APHA), and the American Nurses’ Association (ANA).

The team composed by AAAS and the co-sponsoring organizations sees three phases to our contribution to the TRC:

1. To suggest a series of themes to frame specific questions for those making submissions to the TRC health sector hearings; these themes were given to the TRC in March, 1997.

2. To make a submission to the TRC health sector hearings based on the Apartheid Medicine volume, and to highlight one area of especially clear problems.

3. To conduct investigative interviews in order to produce recommendations to the TRC on overcoming the legacy of apartheid-era abuses and fostering a human rights culture in the health care sector.

As mentioned, the first task was completed in March, 1997. This document comprises our work for the second task. The interviews for the third task will be conducted in June, 1997, during the weeks surrounding the TRC health care sector hearings. We will present our report for the third task, providing our recommendations, in September 1997.

The interviews to be conducted to gather information for recommendations will build on twenty-nine interviews conducted in March, 1997 by a representative of AAAS and a representative of PHR, and on the data presented during the TRC's June hearings on the involvement of the health care sector in gross human rights violations. Our team's June interviews will consider the following broad issues:

A. What is the legacy of apartheid for health care in South Africa? This question has a number of dimensions. At one level, it concerns the ways in which the culture and legal structure of apartheid continue to influence current health practices. At another level, we plan to explore whether the institutions controlling health care services, both in government and in the professions, are equipped to prevent abuses in the future, and to hold accountable those who have violated human rights in the past.

B. How can a culture supporting health and human rights be nurtured in South Africa? The team will explore how to build such a culture within the health professions, government, and community-based organizations through education directed toward the promotion of health and human rights, professional ethics, in-service training, and other means.

C. How can institutions of oversight and control be developed to support human rights within the health care sector in South Africa? For example, to what extent can professional societies, clothed with enormous power over members of the profession, be restructured to assure respect for human rights? How can representatives of groups that have been systematically excluded from such oversight in the past be included now?

D. Finally, how and by what methods should health professionals who participated in human rights violations under apartheid be held accountable? This is especially important with respect to those who may not fall within the scope of the TRC's jurisdiction, but nevertheless have committed serious human rights violations that cry out for redress. What bodies, with what composition, should conduct inquiries into these violations? What are appropriate sanctions? In answering these questions, what lessons can be applied from the experience of other countries?

These questions will be addressed in detail by the team during the June visit. The team plans to interview a wide range of respondents in the health care system, government, and communities. With this information, the team will prepare a report to the TRC to be delivered in September, 1997.

This submission specifically focuses on the failure of district surgeons to perform their duties in compliance with agreed-upon national and international codes of professional ethics. We adopted this focus because district surgeons’ treatment of their detainee-patients is a particularly illuminating example of a range of human rights violations pervading health care during the apartheid regime.

The focus on district surgeons is in keeping with the TRC’s mandate. The legislation bringing the TRC into existence mandated the TRC to investigate "gross violations of human rights" that were committed by people "acting with a political motive." And the actions of district surgeons too often involved such gross violations.

To emphasize, our focus on district surgeons’ treatment of their detainee-patients is not intended to suggest that they are deserving of particular censure or that the problem of health and human rights in apartheid South Africa was limited to their failings. On the contrary, Apartheid Medicine emphasized that human rights violations in prisons and in the health care sector more generally must be seen in the wider context of apartheid.

Accordingly, we begin by reviewing the conceptual relationship between health and human rights. We then consider international human rights standards protecting health and the right to health; these were widely violated under apartheid. Then, we take up physicians’ responsibilities under international medical codes and South African law. We present a summary of the Apartheid Medicine volume in the penultimate section. And finally, we consider district surgeons’ conduct in relation to their detainee-patients.

 
Health and Human Rights: The Role of Health Professionals
Throughout history, society has charged healers with the duty of understanding and alleviating causes of human suffering. As we enter the twenty-first century, the nature and extent of human suffering has compelled health providers to redefine their understandings of health and the scope of their professional interests and responsibilities. In the past century, the world has witnessed ongoing epidemics of armed conflicts and violations of international human rights, epidemics which have devastated and continue to devastate the health and well-being of humanity.

Health professionals have a responsibility to protect and promote all human rights not only because human rights violations have devastating health consequences, but because protecting and promoting human rights (civil, political, economic, social and cultural) may be the most effective means to providing the conditions for health and well-being in a global civil society, a society that recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.

However, health professionals throughout the world have been ill-equipped to address suffering caused by armed conflicts and human rights abuses. Medical and health concerns in the twentieth century have dealt almost exclusively on the diagnosis, treatment and prevention of disease. Traditional disease concerns fail to recognize the physical, psychological and social health consequences of violations of human rights and humanitarian law. In contemporary medical practice, rational and empirical traditions which form the basis of scientific thought largely reduce the complex phenomenon of suffering to the concern of disease: its diagnosis, treatment and prevention. By decontexualizing and thereby reducing suffering, health providers marginalize their roles in society and consequently neglect social conditions which affect the health and well-being.

Furthermore, medical codes of ethics focus narrowly on the provider-patient relationship, thereby neglecting the institutional context in which health professionals function. Principles of bioethics, such as beneficence, non-maleficence, confidentiality, autonomy and informed consent aim to regulate the conduct of physicians in their encounters with individual patients. Such principles do not provide a conceptualization of health, nor do they help health professionals to understand causes of human suffering.

In South Africa, as in the United States and other countries, narrow conceptualizations of health and the ethical responsibilities of health professionals have contributed greatly to silence and inaction in the face of the suffering caused by human rights violations. Although some progressive health professionals in South Africa worked for the protection and promotion of human rights during apartheid, most did not. Political repression and violations of human rights in South Africa have had devastating health consequences, which are detailed in the summary of the Apartheid Medicine report (below).

The TRC's mandate is to determine "as complete a picture as possible the causes, nature and extent of the gross violations of human rights." Gross violations include killing, abduction, torture, and severe ill treatment. In order to understand the causes and nature of such gross violations of human rights, we believe that it is important to consider the interdependence and indivisibility of these rights with other civil and political rights and economic, social and cultural rights. The apartheid context in which district surgeons functioned reflected the following:

1) gross violations are greatly facilitated by legal abridgments of rights to free expression, association, movement and due process;

2) grievous discrepancies in economic and social status, education, housing, work opportunities, access to health services, basic nutrition and public health programs in and of themselves constitute severe ill-treatment;

3) systematic violations of economic, social and cultural rights represent a fundamental disregard for the inherent dignity of fellow members of the human family and thus may be antecedent causes of civil and political rights;

4) enforcement of discrepancies in economic, social and cultural rights depend largely on abridgment of civil and political rights; and

5) moral disengagement by perpetrators of violence often hinges on the view that their victims are somehow less human than they are because of the political culture under which they live.

Systematic disparities in economic, social and cultural rights represent a form of structural violence that had become so ingrained in South African society that the relationship between these human rights violations and more "gross violations" of human rights deserve special attention. The Apartheid Medicine report documents disparities in equity and access to health care, education, and health status as well as segregation of medical education and the delivery of health services.

Increasingly, health professionals are recognizing the importance of protecting and promoting human rights as necessary preconditions for individual and community health. When health is defined as the "complete physical, mental and social well-being, and not just the absence of disease or infirmity," health professionals recognize an ethical responsibility to protect and promote human rights in order to provide the conditions for health and well-being. In this regard, progressive health professionals in South Africa who have worked for the protection and promotion of human rights have made important contributions to establishing a culture of human rights in the health sector. However, human rights concerns have not yet been formally integrated into the curricular studies of health professionals.

Health professionals in South Africa and around the world face immense challenges in addressing human rights concerns and engaging in human rights education. The extent of human rights violations, the complexity of their causes, and enormity of their consequences make for extraordinarily difficult and emotionally challenging work. Despite such challenges, and the intransigent financial and ideological interests of the present health care system, evolving international standards demand that health professionals adopt adherence to human rights as a fundamental component of health care.

Health and International Human Rights Law
Beginning with the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, the international community has drafted a series of instruments that recognize the inherent dignity and the equal and inalienable rights of all members of the human family. The Universal Declaration, broadly considered to be a common standard of achievement for all peoples and nations, enumerates some two dozen specific rights to which all persons are entitled without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Two of the most fundamental protections are the right to life, liberty and security of person (article 3) and the right to freedom from discrimination (article 7). Other basic civil and political rights that are articulated include freedom from torture and cruel, inhuman, or degrading punishment (article 5), freedom from arbitrary arrest and detention (article 9), and the right to a fair trial (article 10). In addition, the text of the Universal Declaration sets forth a series of social and economic rights among them (article 25) that "everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services."

The principles enumerated in the Universal Declaration are further developed in a series of human rights conventions. States which ratify these instruments and thereby become states parties are legally bound by their provisions. Well over 130 countries, including virtually all major nations, have ratified the two most important of the instruments: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Among its provisions, the International Covenant on Civil and Political Rights incorporates protections for the right to life, security of the person, and freedom to seek, receive, and impart information, all of which are relevant to the health care sector. In addition, Article 7 of the International Covenant on Civil and Political Rights incorporates protections against torture and cruel, inhuman and degrading treatment or punishment. These latter provisions are further amplified in the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Among its protections, Article 10 instructs states parties to ensure that education and information regarding the prohibition against torture are fully included in the training of medical personnel.

Of the major international human rights instruments, the International Covenant on Economic, Social and Cultural Rights provides the fullest and most definitive conception of the right to health. Article 12 of the International Covenant on Economic, Social and Cultural Rights "recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." To achieve this goal, it mandates states parties to undertake the following steps:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Also relevant to the health sector, under the terms of the the International Convention on the Elimination of All Forms of Racial Discrimination, states parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee, without distinction as to race, color, national or ethic origin, the enjoyment of the right to public health, and medical care. The Convention on the Elimination of All Forms of Discrimination Against Women directs states parties to take all appropriate measures to eliminate discrimination against women in the field of health care and to ensure equality of access to health care services, including those related to family planning, pregnancy, confinement, and the post-natal period, granting free services where necessary. Similarly, the Covenant on the Rights of the Child extends provisions of the right to health enumerated in the International Covenant on Economic, Social and Cultural Rights to the child and mandates that states parties take appropriate measures to diminish infant and child mortality, ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary care, combat disease and malnutrition, provide clean drinking water, and combat the dangers and risks of environmental pollution.

International Medical Codes of Ethics
International medical ethical principles unequivocally provide that physicians have the professional duty of care to patients. This applies to the treatment of detainees regardless of whether a physician has an obligation to a third party such as a state institution. This section reviews three aspects of medical ethics often violated under apartheid, especially in the care of detainees: physicians' duties regarding torture, non-discriminatory provision of medical care, and confidentiality.

Physicians' Duties Regarding Torture

Under circumstances where doctors are employed by the government or a third party, they retain a duty 1) to provide care to the patients they examine or treat, 2) not to participate in torture in any way, and 3) to document acts of torture, cruel, inhuman or degrading treatment. Following the Convention Against Torture, 1984, in this report torture will be defined as:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The duties and obligations are clear - physicians must not collaborate in any way with state-sponsored torture.

The obligations of physicians treating prisoners and detainees are set forth under the Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment. These principles specifically address the obligations of physicians under internationally accepted standards of medical ethics. The Principles are intended to prevent any direct or indirect participation by physicians in torture:

Principle 2: It is a gross contravention of medical ethics, as well as an offense under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.

Principle 3: It is a gross contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not to solely evaluate, protect or improve their physical and mental health.

The Declaration of Tokyo not only prohibits physician complicity in torture, but also calls for complete clinical independence in caring for the person for whom the physician is responsible, and support for doctors who face threat of reprisals resulting from a refusal to condone the use of torture: Article 1: The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhumane, or degrading procedures.

Article 2: The doctor shall not provide any premises, instruments, substances or knowledge to facilitate torture or other forms of cruel, inhumane, or degrading treatment.

Article 3: The doctor shall not be present during any procedure during which torture or other forms of cruel, inhuman or degrading treatment is used or threatened.

Article 4: A doctor must have complete clinical independence in deciding upon the care of a person for whom he or she is medically responsible. The fundamental role is to alleviate the distress of his or her fellow men, and no motive, whether personal, collective or political shall prevail against this higher purpose.

Article 5: Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent doctor. The consequences of the refusal of nourishment shall be explained by the doctor to the prisoner.

Article 6: The WMA will support, and should encourage the international community, the national medical associations and fellow doctors, to support the doctor and his or her family in the face of threats or reprisals resulting from a refusal to condone the use of torture or other forms of cruel, inhuman, or degrading treatment.

 

The Standard Minimum Rules for the Treatment of Prisoners and Procedures for the Effective Implementation of the Standard Minimum Rules place many obligations upon physicians who come into contact with prisoners. The prison medical officer has the obligation to report to the director of the institution whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by the conditions of imprisonment. He has the obligation also to report any cruel, inhuman or degrading punishments, as these are completely prohibited. It is further indicated that where it is beyond the competence of those in charge to alter the adverse conditions, the medical officer should then submit his own report to a higher authority for action. Physicians who examine detainees are, for the purposes of the Declaration, considered to be Prison medical officers.

Article 25 (2): The medical officer shall report to the director whenever he considers that a prisoner's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.

Non-Discriminatory Provision of Medical Care The fundamental principles of non-maleficence and beneficence articulated in the Hippocratic Oath and similar pledges clearly establish the physician's role as healer of human suffering and the professional responsibility to do no harm. These concepts are reinforced by the Declaration of Geneva, which states that: "I will maintain the utmost respect for human life from its beginning even under threat... I will not use my medical knowledge contrary to the laws of humanity...[and]... I will not permit considerations of religion, nationality, race, party politics, or social standing to intervene between my duty and my patient."

Furthermore, the International Code of Medical Ethics provides that: "A physician shall give emergency care as a humanitarian duty..." The World Medical Association's "Regulations in Time of Armed Conflict," states that: "Under all circumstances, every person, military or civilian, must receive promptly the care he needs without consideration of sex, race, nationality, religion, political affiliation or any other similar criterion...[and that]... The fulfillment of medical duties and responsibilities shall in no circumstance be considered an offense."

Confidentiality International standards of medical ethics uniformly call upon physicians to maintain confidentiality as a fundamental obligation to patients and to disclose information only with the patient's consent. When a doctor is required by the State or another third party to release information, the patient must be informed before the examination.

The World Medical Association has, in various codes of conduct for health professionals, stated the physician's obligation to maintain confidentiality:

Regulations in Time of Armed Conflict: "A physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died."

Declaration of Geneva: "I will respect the secrets which are confided in me, even after the patient has died."

International Code of Medical Ethics: "A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences."

Breaches in medical confidentiality may be justified on the basis of compelling health concerns such as the spread of infectious disease, or safety of the public. Codes of conduct for health professionals prescribe safeguards for confidentiality. The World Medical Association's Regulation in Time of Armed Conflict states "The physician must never be prosecuted for observing professional secrecy."

Summary of Apartheid Medicine
The 1989 AAAS mission took place under very limiting conditions: delegates were permitted only one-week visas to visit South Africa. Nonetheless, the report offered a useful snapshot of the state of health and human rights in 1989, made by experienced outside observers. Here we reproduce the executive summary of the report, highlighting what we believe to be the key elements of the historical context for our discussion of the case of the district surgeons.

Overview

Decades of apartheid policies adversely affected the provision of health and mental health care to many South Africans. At the time of their visit, the delegates found that most public hospitals were segregated, with the exception of Groote Schuur Hospital in Cape Town, and that more government funds were allocated to hospitals for whites than to hospitals that treat blacks (i.e., mixed race, Africans, and Asians). In addition, black hospitals were generally overcrowded, and white hospitals were underutilized. Efforts were made to desegregate the provision of health care, but they competed with simultaneous efforts to maintain segregation.

Health care delivery was complicated by the migration of thousands of blacks from rural areas seeking work in urban centers. As a result, shantytowns arose on the outskirts of black townships. These areas often had little access to water, electricity, adequate housing, hospitals, or schools. Overcrowding, poor waste treatment, and pollution posed health hazards in these townships.

In the last twenty years of apartheid, general improvements in the health of all South Africans, such as declining infant mortality rates, were recorded by the Ministry of Health. The apartheid government, however, failed to give appropriate attention to combatting preventable diseases, particularly those that affected the black population. The multiplicity of health authorities from the local to the national level, including fourteen different ministries of health (one each for whites, Asians, mixed race, all "races," and the ten homelands), resulted in inefficient provision of health care nationwide. Government health officials claimed in 1989 that they planned to replace the government's emphasis on tertiary health care with a primary health care focus. But at the same time, government officials worked to privatize health care.

The 1989 delegation found that organizations such as the Progressive Primary Health Care Network, the Centre for Health Policy at the University of the Witswatersrand, the National Medical and Dental Association, and the South African Health Workers Congress, had thoughtful recommendations for implementing a responsive and non-racial national health policy, particularly in the public sector. The expertise present in these and other organizations suggested that South Africa had the capacity to eliminate the serious health problems that exist among the black population. But the first step towards achieving that goal had to be the abolition of apartheid.

Medical Education

Black children in South Africa received an inferior quality of elementary and secondary education when compared with white children. In a period before the 1989 visit, the government had also limited black enrollment in universities, including medical schools. Legislative changes before the 1989 mission permitted a greater number of blacks to seek such education. The English-speaking medical schools and the Medical University of Southern Africa then initiated programs that provided education assistance for black medical students. The English-speaking medical schools began accepting increasing numbers of mixed race, Asian and African students, while the Afrikaans-speaking universities had only begun to drop the color bar. De facto segregation in medical education still existed at the time of the 1989 mission: black medical students at certain universities were not allowed to work in white hospitals, and students at most universities still worked in segregated hospitals.

Health and Human Rights

Security measures imposed in South Africa during the 1985-1991 States of Emergency resulted in thousands of arrests and detentions without charge or trial of both adults and children, the frequent assault and torture of detainees, and the imposition of restrictions limiting the civil liberties of South Africans. These repressive measures created enormous physical and mental stress on the affected individuals and their families. Psychiatrists who treated detainees found that it was often the conditions of indefinite detention that created or contributed to the psychological problems detainees experienced. In early 1989, hundreds of detainees conducted hunger strikes to protest their indefinite detention. The government responded by releasing many of the strikers, some of whom had spent more than two years in detention. The vast number of detentions during 1985-1991, as well as the deaths in detention, strained the prison health system and challenged the medical profession to provide ethical and responsible health care. Many former detainees reported that they had limited or no access to medical care, or that they obtained such care only at the discretion of non-medical prison authorities.

Torture, both physical and psychological, took place in South African police cells and detention facilities. Under the state of emergency, security officials were able to behave with impunity. The courts were limited in their power to address the problem of torture. And the burden of proof of ill-treatment or abuse was on the victim.

Some medical societies and medical schools condemned the practice of torture and detention, and some instituted lectures in medical ethics that included discussions of health and human rights issues. Apartheid Medicine looked at the responses of some of those groups to the human rights situation in South Africa.

During the 1980s and early 1990s, South African health professionals formed several progressive health organizations in an effort to develop programs in the area of health and human rights that the professionals perceived as inadequately addressed by the government or the medical establishment. These groups supported and provided guidance to health professionals who worked in difficult or ethically compromising circumstances. They empowered local communities to address their specific health needs. They offered medical and psychological help to persons who have been detained or tortured. They also sponsored conferences on issues related to medical ethics and health care in South Africa (as have several medical faculties). Because of these activities, members of these organizations were harassed, threatened, detained, and even murdered.

In conclusion, the delegates of the 1989 mission recommended that those South African health professionals and health organizations who opposed apartheid and the repressive practices of the South African government, and those who searched for alternatives to apartheid medicine, deserved the recognition of their colleagues worldwide. We who are participating in this consultative visit consider our participation an honor. We are pleased to have this opportunity to recognize what efforts were made to promote better health, and a greater respect for human rights, even during South Africa's most difficult moments.

The Case of District Surgeons
This section evaluates the failure of district surgeons to perform their duties in compliance with agreed-upon national and international codes of professional ethics. We adopted this focus because district surgeons’ treatment of their detainee-patients is a particularly illuminating example of a range of human rights violations pervading health care during the apartheid regime.

As we wrote in the introduction, our focus on district surgeons’ treatment of their detainee-patients is not intended to suggest that they are deserving of particular censure, or that the problem of health and human rights in apartheid South Africa was limited to their failings. On the contrary, Apartheid Medicine emphasized that human rights violations in prisons and in the health care sector more generally must be seen in the wider context of apartheid. This section first discusses the relationship between district surgeons and their detainee-patients; next it reviews available material on district surgeons' behavior; finally it suggests some factors contributing to district surgeons' inadequate performance of medical responsibilities.

District Surgeons and Their Detainee-Patients -- Overview of data

Background 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. Data Comprehensive, reliable data on human rights violations data is often hard to find, and the situation regarding detainees and district surgeons is no exception. For example, it is not possible to study district surgeons’ activities solely by studying their patient records because, as noted below, we are concerned that often patient examinations were insufficient and that patient records were inaccurate. Further, during the apartheid era, research and publication into detainee health care was proscribed.

Nonetheless, a number of human rights, medical, and detainee support organizations with considerable experience and expertise doing this sort of research persisted in their work throughout the period. In addition, the collapse of apartheid has made it easier to study and discuss these issues. As a result, while there are real limits to our knowledge, it is possible to conclude reasonably about some aspects of the situation.

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 arrest or detention and as shortly as possible before his release from detention. The regulation also indicates that the head of a prison shall ensure that any medical or dental treatment for a detainee prescribed by the medical officer is 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.

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

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

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 (p. 5). Regardless, the responsibilities that these doctors have to their patients are independent of the employment hierarchy in which the physician operates.
 

District Surgeons’ Behavior

While there was considerable variation in district surgeons’ attitudes towards their patients and in the quality of care they provided, 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 insisting on appropriate treatment, and by not respecting doctor-patient confidentiality.

While failing to record and investigate apparent signs of abuse and not insisting on appropriate treatment are obviously serious, breaching doctor-patient confidentiality is also quite serious as it further erodes the quality of the 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, 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. While there were a few bright spots, those few who spoke out against the abuses received little support from their colleagues, suggesting that the problem here was not restricted to a few ‘bad apples.’ Also, it must be acknowledged that the variation in district surgeons’ performance also went in the opposite, less positive direction.

Fundamentally, district surgeons failed to honor the responsibilities that they had to their detainee patients under international and South African law. Medicine is an educated and esteemed profession. Yet, despite that fact that these physicians were in a unique position to help their patients, they failed to do so. Instead, they aided those who were actively engaged in committing gross violations of their patients’ human rights.

Over 70 political detainees died in detention between 1960 and 1990. And, in some cases, medical negligence was an important contributing factor. 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 was the mirror of that in the Soviet Union, where mental health professionals abused medicine and patients by saying that these 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.

Factors contributing to district surgeons inadequate performance

Overview Internationally, the prevailing wisdom is that medical professionals who become involved in torture are typically unexceptional, and that situational factors are quite important. Regardless of the physicians’ eagerness, district surgeons’ actions took place within a particular context, and context can make it relatively easy for a physician to fulfill his responsibilities to his patient, or it can make it extraordinarily difficult for a physician to avoid culpability. Accordingly, below we review various aspects of the context within which district surgeons were operating and we consider the way in which these aspects conduced to gross violations of human rights. 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. But this conflict was especially pronounced for those charged with treating detainees. District surgeons were operating in an environment of indefinite, incommunicado detention where courts accepted confessions obtained via torture, and where security forces were immune from prosecution for their role in human rights abuses so long as they were acting in good faith. Such a desensitizing, authoritarian context fosters disrespect for human rights.

Further, South Africa’s detention took place within the context of the apartheid system, and 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. 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 security police’s goals; though some did, it is far from clear that most doctors involved in human rights abuses felt that they were doing anything other than their patriotic duty.

To take the most important example, it seems that, in dealing with the charges against the doctors attending Biko, the Medical and Dental Council allowed itself to be influenced by external and irrelevant considerations. Although the issues before it were relatively clear and simple problems of medical ethics, the Council allowed political considerations (and, possibly, what they considered to be state security) to cloud their professional judgments. All that the Preliminary Committee of Inquiry (and, then, the Council) had to decide was whether there was prima facie evidence that Dr. Lang had issued a false medical certificate and that Dr. Tucker had shown a disregard for the seriousness of the situation when he sanctioned the transport of Biko to Pretoria. Yet, much of the discussion during the special meeting held on June 17 to consider the recommendations of the Preliminary Committee of Inquiry into the conduct of the doctors, was devoted to the Communist threat and the ‘total onslaught’ being waged against South Africa. To varying degrees, individual district surgeons confronted with conflicts between the needs of their detainee-patients and the demands of security police played out a similar debate.

Workloads Mass detentions dramatically increased the workload of already overworked district surgeons. This burden encouraged district surgeons to focus less on providing adequate care and more on getting through the patient load. Though district surgeons responsible for detainee care were not unique among physicians in facing excessive patient loads, the workload encouraged district surgeons to adopt practices (like cursory group examinations) that convey a lack of caring, undermine 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. Isolation District surgeons operated alone in this inhospitable environment, 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. Also, publishing allegations from an unconcluded judicial proceeding about detainee treatment could lead to a 10 year prison sentence. Thus, a district surgeon recognizing human rights abuses likely did so alone and without the knowledge that the problem was widespread and was being judicial contested. 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 were 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 the medical community’s inadequate performance regarding detainees.

Enforced 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. In fact, it seems that district surgeons’ understandings of their role was often gleaned in passing from the police. Of course, there is a clear conflict of interest and genuine education is unlikely when the police are a district surgeons’ information on his responsibilities to his patients and his 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 issued an order preventing doctors from attending a lecture on medical ethics.

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 set standards, to investigate complaints, and to exclude from professional activity those who compromise codes of conduct.

The South African Medical and Dental Council (SAMDC) was vested with quasi-judicial powers to license and to uphold ethical standards for the members of the medical and dental professions. Specifically, the Council had the power to define appropriate conduct, to investigate charges of improper and disgraceful conduct against any person the council licensed as a practitioner, and to strike offending practitioners from its roles.

However, the Council’s rule-making and disciplinary procedures proved wholly inadequate to regulate district surgeons’ treatment of detainees. First, the Council did not define a practitioner’s responsibilities to detainee-patients. Thus, district surgeons were deprived of clear guidance. Second, the Council’s disciplinary record similarly failed to provide appropriate guidance.

The latter problem was most obvious in the Council’s handling of complaints against the district surgeons responsible for Steve Biko’s care. The magistrate responsible for the Biko inquest forwarded a part of the inquest record to the SAMDC, indicating his belief that the record reflected prima facie evidence of improper or disgraceful conduct. Yet, SAMDC’s inquiry committee found no such evidence, and the SAMDC confirmed the committee’s finding.

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. Rather than being neutral, physicians have the obligation to be advocates for their patients. 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. Yet, South African medical organizations did not provide clear and unambiguous ethical standards and support physicians when they are at risk of becoming compromised in unethical practices. Here, we would highlight the failure of the Medical Association of South Africa (MASA).

Although we look to National Medical Associations to provide leadership, the Medical Association of South Africa, confronted with the evils of detention, asserted its neutrality. Until the 1980s, MASA took the view that, because the SAMDC bore responsibility for regulation and because MASA is 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.

Further, MASA asserted its neutrality in a non-neutral manner. For example, 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, and it declined to criticize the practice of indefinite, incommunicado detention, asserting that this was a political question beyond its sphere of authority. 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."

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; criminalizing 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 efforts to fulfill his obligations. Further, nothing came of the report for two and a half years, and 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 that involving Steve Biko. Then, MASA did little when this reform collapsed. Further, in 1985 and 1986, the association did little to support Wendy Orr when she sought to protect her patients against torture.

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 ones the health professionals are trying to protect. In addition, health professionals may fear that the complaint will not be considered seriously and without bias by the investigating body. The experience of then-district surgeon Wendy Orr points to the validity of these fears.

Further, health professionals may themselves be at risk for reporting violations of human rights 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, or for speaking out on behalf of human rights. They were banned, restricted, detained without trial, tortured, and murdered.

The Slippery Slope District surgeons faced a moral conundrum; by merely serving in prisons where gross violations of human rights were taking place, they may bear some responsibility for silently assisting in the violation of human rights. For example, health professionals working in prison systems may find themselves implicated in the ill-treatment or torture of detainees or prisoners by offering medical care to abused detainees, only to have them returned to authorities for further abuse. Further, constraints imposed by doctor-patient confidentiality and district surgeons’ compulsory security clearance undermined district surgeons’ rights to advocate for better conditions for detainees. On the other side, consideration of the health care needs of prisoners and detainees argued for doctors working within the prison service, regardless of its controlling forces.

Conclusion

The lack of clear, public standards for district surgeons’ conduct, their sympathy for the goals of the security police, their isolation, their workloads, their fear of reprisals, and their operating in an apartheid system where blacks commonly received substandard care, contributed to district surgeons’ participation in human rights violations. Still, while there were few profiles in courage, a good number of district surgeons were trying within the limits of their capabilities to provide adequate health care to detainees under an apartheid system that did not support that effort. It is unfortunate that these individuals were not more outspoken.

We would distinguish between these violations and the participation of doctors in medical activities connected with torture. In addition to direct participation in torture (which was apparently quite limited), we would put falsifying medical reports to conceal acts of brutality, and designing or changing rules and routines intended to undermine the (mental or physical) health of detainees in this more serious category.

While we recognize the genuine constraints confronting district surgeons treating detainees, we note that failing to report to the proper authorities any signs of abuse or torture and falsifying medical or autopsy reports cannot be in the interests of patients; rather, such actions amount to a dereliction of care for the benefit of the state. Further, we note that the generally inadequate care was often not the result of resource constraints.

In addition to being an important failing in its own right, the district surgeon example raises questions about the accountability of the individuals who engaged in the violations and the problematic role of medical societies in failing to respond to those violations. It also raises another, and even more pressing question: what mechanisms of control can be put into place to oversee the very individuals and institutions who committed or allowed such violations and who remain active in health care oversight today? As noted, we shall address this broader question in a report to be prepared after our fact-finding.