Special Hearings — Health Sector Hearings — 1997-06-18

LESLIE LONDON: Thank you Pumla, thank you Commissioners.  The document is now down to about 10 pages so I am sure we will fit into the time allocation.
 This submission is on behalf of the Health and Human Rights Project, which is a joint initiative of the Trauma Centre for Victims of Violence and Torture, and the Department of Community Health at the University of Cape Town.  In developing this submission the Project has drawn on the experiences of a wide range of human rights activists who have been active in the field of detainee work and support for victims of repression over the past years, both in Cape Town and nationally and we want to acknowledge their contribution.
 One of the Project's key aims is to facilitate the process of documenting past involvement of health professionals and their organisations in human rights abuses so as to prevent recurrence in the future and to develop guidelines for how to operationalise that.
 The Project operates with the premise that the health professions and society cannot afford to ignore the past, and that the cost of this selective amnesia which we see so much of with regard to past human rights abuses are enormous.  It is very difficult to see how any trust, within the health sector and also between the health professionals and the broader community can be achieved until the truth is disclosed.
 We believe that only by fully acknowledging and understanding what took place in the professions under apartheid is it possible to achieve reconciliation in the health sector.   Any apologies that are made without this understanding will fail to achieve meaningful progress in moving the health sector to a human rights culture. 
 And while the TRC has played an important role in stimulating this process the real challenge that faces the health sector is for health professions to accept human rights as a fundamental responsibility. Real truth and reconciliation can only come from below, from within our institutions and should be seen as part of a larger project to rehabilitate the health sector and build a culture of human rights within it.
 After those comments I just want to digress a little bit and particularly for the benefit of the lawyers who've trooped into this hearing, I think we, as the Project, want to register our concern for this whole process which has led to a situation where many of the cases that we have brought to the attention of the Truth Commission we cannot actually name the particular health professionals involved.  We are not going to name those health professionals but we feel it is really a travesty of the process of truth to arrive at a situation where we cannot speak openly.  We fought for many years for a situation where people will be free to speak the truth and it seems that legal mechanisms have been invoked to limit the extent to which the truth could be disclosed.  We would like the TRC to take note of that, particularly the fact that as far as the Project was concerned we were able to supply the TRC with the names of the doctors as far as we understand within the required time.
 Just in that regard we can talk about the kinds of cases we would have discussed.  These cases would have included, for instance, the poisoning of political activists, the development of chemical warfare capacities for the SADF; the failure to adequately explain the death in detention of Mr Sipo Mutsi, who police claim suffered an epileptic fit and fell backward in a chair resulting in his death; the cooperation of a health professional in the torture of an ANC cadre captured in Messina in 1987 by ensuring that the detainee could survive further interrogation and assaults; a case where there was a failure to report injuries sustained by the detainee Jonas Cheshum Moataung in Johannesburg in 1980, and a host of other cases.  We won't name those. 
 What we do cover in our submission is issues of looking at complicity of health professionals in prison and police cells and that's been extensively covered.
 We also raise issues around military health personnel and we particularly want to challenge the SAMS whose presentation yesterday did not touch on any of the issues that we've raised and I think Commissioner Ramashala has certainly posed the question to them, but we have presented evidence regarding programmes which involved the re-programming, the use of aversion therapy for gay men in the military and we believe that these cases require further investigation, and the TRC, we would hope, would follow up in that regard.
 Forensic services have been covered in some detail.  We want to add to the list of cases raised the question of organ harvesting and the way in which practices in which organs were harvested appear to have been substantially racist in the past and has violated the rights of Black families in the way in which shortcuts were taken towards achieving consent for the harvesting of organs. 
 In terms of hospitals we've heard quite extensively from the Eastern Cape, and from Mark Bletcher and from others about the way in which hospitals were turned into arms of the security establishment.  I won't go into that in detail, but just to say what is of real concern is that even though the environment has changed and we don't have detainees or injured people arriving at hospitals we do believe the mindset of the hospital administrations has not changed, and I'd like to hand this in to the Commission.  It's a memorandum which was released by the Groote Schuur Hospital region as a hospital notice 12.97 dated 14 May 1997.  This memorandum deals with admission and treatment of foreign patients and it's really about questions of how the hospital should deal with patients who are foreign.  And point 2 under "Policy", he talks about 
"......refugees and illegal immigrants, i.e. people with no temporary residence document.  They may not be accepted as patients unless as in an emergency and their presence should immediately be reported to the nearest South African Police Service office or the Immigration Department by admin reception staff".
What this means to us is that the thinking in the health services has not changed.  Ten years ago it was detainees, it was people injured in gunshot injuries, today it is another form of social deviant, it's the illegal immigrant without papers.
 We make these points because we believe that even though the health sector at a micro level was complicit in abuses, these were not isolated, these were not events involving a few bad apples, as the term has already been used, rather these abuses arose in a context in which the entire fabric of the health sector was permeated by apartheid and in which human rights were profoundly devalued.  
 We have heard much about the training institutions, and we would support the notion that by the internalisation of apartheid policies and the way they treated Black students and Black patients the health training institutions created the environment where professionals would qualify and be more amenable to the bending of professional ethics to suit the exigencies of security force priorities. 
 We want to also state that the lack of attention to ethics in human rights in undergraduate and postgraduate curricula, notwithstanding all the words said today, has changed very little since apartheid days. And particularly that there is a substantial difference between human rights and ethics and the institutions need to consider this in their developments.
 Underpinning this also was a form of medical science that was devoid of considerations of the implications of human rights for the health professions.  Under apartheid we saw a scientific discourse that justified the use of racist terminology and that promoted a research agenda that harmonised with the needs of apartheid.  Scientific data were misused or neglected to support apartheid policy objectives and we give various examples of that. 
 Where research findings did present a different view of reality the authorities and hallowed research institutions, such as the Medical Research Council, in medical journals in State departments wasted little time in suppressing this research.  And in particular there's an extensive and very well researched documentation included in our submission of the work by George Ellison and Theo de Wet on material published in the South African Medical Journal over the period 1950 to 1990 which reflected how scientific papers, how editorial policies' letters reflected and reinforced discriminatory policies in the country at the time.
 We've also examined the impact of State policies and we won't go into that in much detail.
 We also want to make the point that health administrators and civil servants under apartheid had considerable leeway as to how vigorously they operationalised the grand plan of apartheid and at what cost to individuals.  I'd like to quote, this is correspondence from the Minister, it's quoted in Federal Council Minutes in the South African Medical Journal and is in relation to correspondence where the Medical Association wrote to the Minister in connection with the question of Black doctors in hospitals.  At that time Black doctors were effectively being precluded from working in hospitals because they were not allowed to give orders to White nurses.  The Minister's response to the MASA is the following, and the translation from Afrikaans is mine so you must bear with me. 
"On the first aspect, in other words the question of the patient choosing the doctor, the State has controls because the State provides the facilities and equipment for the treatment of the patients.  For reasons, that are not to be discussed now, the government's policy states that separate facilities will be provided for different race groups in so far as practical.  The general policy permits the provision of facilities and equipment for such patients, in others words White patients who were going to be treated by Black doctors at public hospitals, only, where in the opinion of the hospital authorities, it is practically feasible".
And this is the point, the Minister goes on to argue,
"I am not aware of the norms applied by directors of hospital services and because the Minister and the Department have no control over the way the Provinces apply their practices within the overall national policy.  I unfortunately cannot give any information as to whether the directors apply their policies in a uniform manner".
 We believe this means that the directors of hospital services in all the provinces of the country need to answer very explicitly to the Truth Commission to what extent they applied their own discretion in implementing apartheid policies in health care. 
 We also want to make the point that the private sector, which has enjoyed relative freedom from the constraints of public bureaucracy was also complicity in applying apartheid.  Even to this day, less than three years from the turn of the century, we are still aware of racist discrimination in private practices.  We've heard it today.  We see it documented in the papers.
 I think perhaps for time we would like to go on to probably the most important issues in the health sector, and that's the issue, the failures of the organisations representing the health professions to distance themselves from the policies of the apartheid government.  The neglect of Black health professionals was a common theme to all the disciplines and is symptomatic of the profound inability of the professions under apartheid to come to terms with their role as advocates for human rights.  And as we have heard today these organisations covered up abuse, they acted as apologists for government policies, they actively vilified colleagues who were prepared to stand up for justice and human rights.
 For example the language and concerns of the Medical Association, as they acknowledge, reflected a world view that believed in maintaining the security of the State above human rights considerations.  But we also want to say that it was not only that, there were also issues of placing international esteem and status above the recognition that much was not well with the health of South Africans.
 Notwithstanding the failure of MASA to take action against the doctors who treated Steve Biko; the MASA's failure to condemn apartheid and detention without trial; the abuse of the South African Medical Journal for its own political agenda, perhaps the most fundamental criticism of MASA is that it definitely was an organisation that was permeated with an anti-human rights culture.  
 In the 1980's, as Barry earlier pointed out, it sought and received advice from military officers.  In our submission we also point to the fact that the 1977 MASA annual congress which was held in Bloemfontein in that year, ironically a city from which Indians would be forbidden to be present in for more than 24 hours without a permit, had a session focusing exclusively on military medicine, and this was hailed as a great innovation.  We want to ask why in the year following the Soweto uprisings, with the bloodbath that swept the country, there was not a mention of the costs to human health and human rights of this uprising, and yet the Medical Association chose to make military medicine a feature of its congress in that year.
 We think it's not only in the formal links with SAMS that an association with security concerns can be built, but it was very much within the culture of the organisation. 
 To this point we also want to refer MASA to the book, the Super Afrikaners, in which it is fairly easy to identify members who were Broederbonders.  In fact the general secretary of the - the former general secretary at the time was a Broederbonder and as far as we could tell at least three of the publications committee members in the eighties were members of this organisation.  We have no idea to what extent the Broederbond membership permeated other leadership structures of the organisation.
 Now we do acknowledge that the MASA of the nineties has clearly undergone major changes, but it's not apparent whether these changes involve a change in the fundamental culture of the organisation.  It appears, and certainly from the submission made today, that an assumption that increasing Black membership of the MASA is going to solve the problem, but it's not clear to us whether MASA is really able to appreciate and operationalise a commitment to human rights.  
 For example the comment made earlier that MASA's commitment to self-examination was only possible because of the TRC process is profoundly disturbing to us.  We cannot see why a professional organisation that would seek to maintain the standards of the profession could not have embarked on this process long ago through mechanisms and structures that it could have developed entirely independent of the TRC.
 Secondly, we are not quite clear why the organisation has to wait for a complaint about members who practice apartheid medicine.  One simply has to go, drive to De Doorns in the Boland and see the farm workers standing outside the garage in the rain while the paying patients, most of whom are White, but some of whom are Black, are inside in a comfortable waiting room.  
 And many of the MASA leadership live in Cape Town and would have had the benefit of a Cape Times supplement examining the state of the Nation in which an advice office worker in Coligny in the Free State says very explicitly the local general practice is racially segregated.  There is no reason why one has to wait for a complaint to reach the organisation before one acts on that.
 I do believe that the MASA is genuinely committed to addressing these issues but it needs to demonstrate that in practice.  I think many of these issues apply to other professional organisations as well.
 Further, we need to examine the role of the Councils, and that's been touched onto some extent.  I think yesterday's presentation by the Council confirmed our greatest concern that we don't understand why the Council cannot be pro-active about defending human rights in this country.  We want to know what part of legislation actually precludes the Council from establishing a commission or from doing an investigation, or from commissioning a university or an NGO from doing some work to defend human rights, or to establish human rights in the health professions.  I don't think that has been adequately answered and it points to a critical issue in the need for fundamental reform to the Councils.
 We do want to make the point that not all health professionals chose to comply with abusive practices.  There were many health professionals who actively defended human rights under apartheid repression and many who paid dearly for their actions.  The point we wish to make is that notwithstanding the context, the overwhelming plethora of security legislation and power, individual doctors and other health professionals could and did make choices.  And when we consider the history of the health sector we need to be clear that there were choices that could be made.
 In terms of common themes the one issue that emerges all the time is clinical independence of health professionals being compromised, either by a plethora of legal and institutional frameworks or by the active complicity of health professionals.  There obviously were cases where health professionals may have unwittingly participated in human rights violations, but there were also cases where health professionals have been more than active in taking steps which have led to the violations of individual human rights.
 We also want to make the point that even though there was a plethora of health legislation, a plethora of security legislation, there were a whole stratum of regulations and administrative practices in hospitals in the district surgeonancy that emerged out of dark offices that were simply borne out of the culture of the health services service to the apartheid security forces.  So hospitals would gag their own staff, district surgeons would be subject to certain internal directives which prevented them from taking steps to protect their patient's health.  These institutions reproduced the apartheid states' intentions at local level to ensure that health professionals were compliant.
 However, when we highlight the power of the contextual constraints we do not argue that individual health professionals can be absolved of responsibilities.  To do so would be to introduce the degree of de-construction that is not grounded.  Quite simply one cannot say, for example, that district surgeons can be absolved of any responsibility for complicity in detention or the death penalty, or corporal punishment; military doctors who received orders to assist in torture by applying medical skills were not devoid of choices.  Psychologists who were drawn into devising better ways of interrogation cannot simply rationalise their contributions as technical.  The toxicologists whose skills were put to use in covert operations cannot argue as the Nazi doctors did that they were simply doing their job.  
 I think Wendy, as a Commissioner, in her case, it's a clear example where action could have been taken, but we need to ask why there were not more district surgeons like Wendy who refused to comply with these practices.
 The evidence presented in our submission supports the notion that many health professionals acted more freely in abuses.  They never attempted to offer assistance to tortured and injured, they effectively really covered up the footprints of the torturers.  
 And one way of looking at this is in terms of parallels with other countries. In his reinterpretation of the Nazi holocaust Daniel Golhargen(?) suggests in his book that the traditional theories for explaining the complicity of ordinary Germans in the Jewish genocide cannot be entirely plausible any longer.  He argues it is difficult to attribute participation in mass killings to the fact that Germans lacked a voice or options or that they were responding to social psychology of group dynamics that compelled them to commit atrocities against their will.  To the contrary he argues that the Germans participated willingly in the abuse, torture and killing of Jews because of the annihilationist anti-Semitism that permeated German society. 
 We believe that similar arguments could be made for the complicity of health professionals in human rights violations in South Africa.  The implication of this is that we must reject the bad apple notion of complicity.  It is insufficient and indeed misleading to argue that it was only a few deviant professionals who led the whole profession into disrepute, and rather than identifying a convenient number of scapegoats we need to look at the profession as a whole and understand what made the profession so inherently amenable to cooption by an ideology that denied human rights.
 It's particularly in the area of the lack of professional accountability that this emerges.  The statutory institutions, professional organisations abdicated their responsibilities and in particular they failed the profession and the South African people by refusing to hold individuals accountable for human rights abuses.  We have little doubt that if the organised health professions had sent a stronger message to doctors, namely that unethical conduct would not be tolerated and would result in severe disciplinary action, the history of complicity by health professionals in human rights violations would have been very different.
 In closing this off we also want to remind the Commission about the private sector.  Our contention is that health care providers and corporate interests in the private sector have roles and responsibilities that require examination and redress.  We believe this is a big gap in the current approaches to achieving reconciliation through the TRC and we would like to believe that the TRC shares our concerns related to the need for redress of violations of socio-economic rights.  
 As part of the reconciliation process and of reestablishing trust in the profession we argue that, for instance the environmental and occupational health impacts of activities in the private sector, should be subjected to the same process of scrutiny as initiated by the TRC.  In the long term reconciliation can only be achieved by disclosure of what went on in the private sector as well and a genuine commitment to facilitating redress.
 In conclusion, the challenge is for the health sector, and that is the whole health sector, the institutions, those of training, of research, of professional regulation, for the organisations of the profession and for the State health services and the private sector to embark on some process of serious self-examination.  What could have been done differently?  Why could it have not been achieved?  Did we know enough as to why it wasn't achieved?  Where were the role models?  Has enough been made public to understand what went wrong?  
 There are many other questions that arise in this process, to answer them effectively, honestly and openly is the challenge facing us.  Abuses continue to occur in the health sector.  The process is then not only about digging up the past but about creating an ethical framework to guide health professions in the future.
 We have made extensive recommendations, I am just going to mention some of them, perhaps the most important ones.  We believe a legally binding code of conduct for all health professionals that specifically prohibits participation in human rights violations should be adopted.  There should be a special commission on health and human rights established to implement the recommendations that arise from these hearings and others.  The commission should be comprised of, but not limited to, members of health professions, should include human rights experts, legal advisors and community input.  The commission should have the confidence and support of key stakeholders in the health professions.
 There is a great deal of archival material which we believe is still available if it hasn't been shredded.  The TRC should  use its legal powers to obtain this material in relation to human rights violations in health, in particular copies of district surgeon reports, reports from the International Committee  of the Red Cross, Health Department memoranda and security force records.
 There should also be ongoing documentation of past and current health and human rights abuses.  Cases of abuse should be fully investigated, and we are particularly calling for the reopening of past cases where evidence of complicity exists.
 We also put a challenge to the institutions responsible for training of health professionals to look seriously at the question of human rights education and to make it a fundamental component of curricula.  That institutions are to be transformed to create a culture that respects and promotes human rights and produces graduates who are capable of seeing advocacy for human rights, advocacy for their patients as being part of their responsibilities.
 We believe this hearing will begin a process that will help all of us reach a common understanding to establish a culture of accountability, of respect for human rights and a re-adoption of the notion of health professionals being advocates for the vulnerable.  This we believe is part of the healing calling of the health professions and should be reasserted as an indisputable and inseparable element of the profession's ethos.  Thank you.