Special Hearings — Health Sector Hearings — 1997-06-17

NICO PRINSLOO: Thank you.  On behalf of the Interim National Medical and Dental Council of South Africa we thank you for the opportunity of making this submission.
 I will just highlight certain of the matters raised in the memorandum to put it in perspective, and by way of introduction to say that although I have been with the Council for a long time I do not have personal knowledge of all of these matters.  Some of these have been extracted from the documents and the minutes of the Council.
 The Interim Council was established in 1995 to replace the South African Medical and Dental Council, the SAMDC, the Ciskei and the Transkei Councils, and this deals more specifically with the SAMDC, not the other two Councils.
 The Council in its submission says that the activities of the SAMDC must be looked at having regard to the objects of the Council as stated in the Medical Dental Act.  And those are to assist in the promotion of the health of the population of the Republic; to exercise control over training and professional conduct; and to advise the Minister.
 The Council says that it should be noted that it does not directly render medical or health services or have jurisdiction in matters pertaining to that.
 Now although created by statute originally in 1928, the SAMDC was not an organ of the State.  It was totally funded by the health care professionals falling within its jurisdiction.  The majority of its membership was persons who were not appointed by the Minister.  We give you the breakdown of the actual membership of the Council.
 The SAMDC was created by Parliament to perform the functions assigned to it by the law that created it and the Council functioned within the framework of the laws governing the country at the time.
 The members of the Interim Council who are also members of, who were members of the SAMDC state that they are unaware of decisions taken by the Council or its predecessors having regard to the fact that members are elected or appointed for five year terms, that they are unaware of any decision which wilfully discriminated on the basis of race, gender, culture, religion or any other consideration.
 The Council, however, states that merely functioning within the law when one knows full well that some of those laws are discriminatory in nature and not going on record in opposition thereto does not withstand the scrutiny that the conduct of the regulatory body of health professionals should be able to withstand.
 The Council dealt with certain general matters and certain of those have been listed, not as an exclusive list, but to give some indication of what the Council did and what the Council didn't do.  
 In relation to the education and training facilities and medicine based on race, in 1957/58 the SAMDC was made aware of the proposed separal Universities Education Bill.  And although invited to submit evidence the Council did not take a stance on this matter.
 In relation to separate hospital facilities based on race, according to the minutes this was never formally discussed and no action was taken in this regard by the SAMDC.
 In regard to medical treatment of terrorists.  Following an enquiry from a Regional Health Authority the Council in 1979 resolved that the medical treatment of a so-called terrorist remained compulsory but in those cases the authorities must be advised of the circumstances.  
 The Council, also in relation to the treatment of prisoners in detention in 1980 resolved to convey its concern to the Minister of Health with regard to the apparent deficiencies which appeared to exist in the facilities and staffing of health service to prisoners and detainees.
 After interviews with the Ministers of Justice and Law and Order in October 1985 the Council decided that it was of the view that a practitioner treating prisoners and detainees should render the appropriate generally accepted medical assistance, and if he or she was not able to do this, for instance because the patient was removed from his care, or if his prescribed treatment was not adhered to, he should protest, indicate the condition of the patient and the probable consequences of such action and bring the matter to the attention of the district surgeon or regional health director or director of hospital services.
 Also in 1985 the SAMDC appointed an ad hoc committee to investigate existing legislation relating to the medical treatment of persons in detention.  The Committee had great difficulty in obtaining from the Department of Health its guidelines to district surgeons on the treatment of detainees.
 It also had great difficulty in meeting with representatives of the South African Police.  Eventually this meeting did take place and as a result of this and subsequent meetings the Council recommended to the Department of Health that a consolidated document be issued giving clear guidelines as to the treatment by district surgeons.  Such a document was subsequently issued by the Department of Health.
 In relation to the treatment of patients of different race groups and separate waiting rooms the Council only in 1989 adopted a policy that it was not acceptable to discriminate on the basis of these facilities in relation to different population groups.  
 Then some specific matters have been mentioned.  The obvious one being the one of Drs Lang and Tucker which relate to the death of Mr Biko.  There has been reference earlier about this, but perhaps just from the Council's perspective to put the chronology in perspective.
 In December 1977 the ombudsman of the South African Council of Churches lodged a complaint against the doctors concerned arising from the treatment of Mr Biko.  The magistrate in January 1978 referred the inquest record to the Council.  
 In terms of the regulations of Council the doctors concerned were asked for explanations of their conduct in March 1978.  In response, the attorneys acting on behalf of these two doctors, objected and indicated that the request wasn't in accordance with the regulations in terms of which complaints had to comply, and also requesting that the matter be postponed pending the civil action to be instituted by the Biko family.
 In September 1978 the executive committee of the SAMDC decided that the matter be not held over pending the civil action and also informing the doctors concerned that they should furnish their explanations and if they didn't want to do so they should approach the Supreme Court, which they did.
 It then took more than a year for the matter to be heard by the court, and the court eventually in December 1979 dismissed the application of the doctors.  
 The Council then repeated its request for the explanations in December 1979.  The attorneys on behalf of these doctors advised that their attitude unaltered, and they did not render an explanation.  The subsequent meeting of the Committee of Preliminary Inquiry of the SAMDC which is the Committee which deals with complaints initially and must decide whether there should be a formal inquiry or not, that Committee on the 24th of April 1980 considered the matter and also had before it opinions, one from a general practitioner and one from a neurologist, requested by the Committee.  That Committee decided that the documents be noted and that no further action be taken.
 Some members of the Council then requested that a special meeting of the SAMDC be held.  This took place in June 1980 when the decision of that Committee of Preliminary Inquiry was confirmed.  
 In February 1982 the SAMDC received further complaints against these two doctors as well as two further doctors mentioned earlier.  The Council at that time obtained legal opinion regarding the situation and was advised that unless new evidence was submitted regarding the specific complaint the Council was not in a position to reopen or to rescind its previous decision.
 In March 1983 the Committee of Preliminary Inquiry decided that as all material evidence had previously been submitted no further action be taken.
 The complainants then took the matter to court and this was held, and eventually in January 1985 the Supreme Court ruled that the SAMDC should hold an inquiry.  This inquiry was then held in July 1985.
 After this inquiry the Council did in fact debate the possibility of taking that decision on appeal and was advised that in law in fact the Council had a reasonable prospect of succeeding, but nevertheless the Council then proceeded with the inquiry in July 1985.  
 The one doctor was found guilty of improper conduct and cautioned and reprimanded.  The other one was suspended and at a subsequent meeting of the Council in October 1985 that was changed to an erasure from the register.
 Perhaps very briefly, just to contrast this with the case of Dr Mkwapi(?), because in that case it's been stated that the Council did not display the reluctance to hold an inquiry as it did in the previous case.  
 This doctor was registered as an intern in July 1974.  He was then convicted in terms of the Terrorism Act and at some stage the Commissioner of Police informed the SAMDC of this and enquired whether the Council was going to take action.   He was advised that as Dr Mkwapi was not registered at that time the Council did not have jurisdiction, but should he apply at a future date for the restoration of his name the matter would be looked into.  And that happened in 1983 when the Committee of Preliminary Inquiry decided that an inquiry be held.  That inquiry was held in February 1985 and at the hearing he was found not guilty.
 The Council raises the question and attempts to answer it and hopefully this may assist the Commission, and the question is why was there this apathy on behalf of the SAMDC to campaign actively against clear cases of social injustice?  The answer as implied above lies probably in the fact that the SAMDC functioned in a society of which virtually every member of the politically dominant group was steeped in doctrine and propaganda.  The SAMDC did not act in the way it did because of direct State involvement, since government appointed members were in the distinct minority.  It probably acted in this way because of the milieu in which it functioned.
 Then the Council recently, in relation to a response from Dr Orr, decided that it could not agree to any amnesty in respect of professional conduct of registered health professions in respect of any contravention.
 As far as the future is concerned, the Interim Council obviously cannot bind future Councils, it can only express the sincere hope that politically inspired acts or omissions on the part of future Councils will not be tolerated by the majority of men and women who serve on those Councils.  In this regard possibly the autonomy, the independence of a body like the Council would be very important.
 In conclusion the Council again records its appreciation for the opportunity to appear before the Commission.  It trusts that the submission will contribute towards clarifying the actions or inactions of the past, that it will promote the healing process and that it will assist in building trust and understanding between health professionals and the public.