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

UNKNOWN: Thank you Sir.  I've spent the last six months abbreviating thousands of cases with evidence into hundreds, into dozens and the 60-minute presentation has been cut down - I am pleased I've spoken before it's been cut down to ten minutes.
 I was struck by the similarity between my experiences and those of David Klatzow yesterday.  Having been subjected to cross-examination and often very, very cross-examination as an expert witness for up to three and a half weeks in human rights cases, I know what he meant about the appearance of confabulated and fake expert evidence which never ever, ever received critical attention of the courts.  I think what we often experienced were not simply miscarriages of justice, they were full legal abortions of justice.  
 I would also like to support what Francis Ames said yesterday about how some of us were harassed and discredited for speaking the truth.  We need and deserve and look to you ladies and gentlemen for proper and official rehabilitation.
 The extent to which racism and the disregard of the human rights dominated South African health care is hard to believe, even to those of us who lived through it and struggled against it. As an illustrative example, when I was the medical director of the Highway Hospice in Durban, which I think was the first non-racial hospice in South Africa based in what was classified as a White area though servicing all areas we could reach.  We insisted on providing non-discriminatory health care to anyone who qualified by the simple criterion as being a dying patient. And one day I received a telephone call from a senior government health official, saying, 
"Professors we have received complaints about your Hospice.  It is in a White area and they tell me that you are allowing Black people to live there, and this will have to stop".
Swallowing my anger and thinking quickly I said to him, 
"Sir, you are seriously mistaken, this is a hospice and palliative care programme and devoted to preserving the dignity of our patients and reducing their suffering.  I'm allowing Black people to die in this hospice and can you please tell me which law specifies where they are allowed to die?"
 There was a long silence and much rustling of paper and he finally admitted very grumpily that he could not think of any regulation that specifically forbade that and we continued caring for all who needed our help, and we didn't hear from him again.
 I think one reason I quote that sort of example is I think it is under-appreciated how much might have been achieved, perhaps in a succession of similar small victories, had anybody bothered to try to say "no" more often than most of our colleagues ever did.  
 It had been noted in all significant other historical examples of oppression, the indifference of the bystanders is critical for the success of the aggressors. It is deeply unwholesome that in the South African situation the bystanders continue in many cases and we saw some illustrations yesterday afternoon to deny, develop amnesia and ignore the essential role they played in that past process.  This is a political ointment but one that the health care sector should not accept.  It's not anyone's task to comfort the afflicted, it is sometimes necessary for us to afflict the comfortable.  
 There has been far too little genuine debate about the nature of social healing and what surely promotes it. Truth is one essential component of the needed social antiseptic which could cleanse the social fabric of the systematised habits of disregards for human rights, but it needs to be an examined truth, it needs to be considered, thought about, debated and digested and metabolised by individuals and by society.  Failure to comprehend recent suffering is too often, in the studies I have made received, the seed of future suffering.  
 Soon after my return to South Africa I began to be consulted about the problems of political violence and of political detainees.  Perhaps our first major case was the case of the detainee Surish Surnee(?) in 1985, in which we succeeded in gaining his release, as I think was entirely appropriate, on health grounds, but from that date on I and those of my colleagues who assisted in that case received consistent severe harassment, both within the university and outside it, including death threats and death attempts. Some of us were dissuaded from such work by these experiences and some of us perhaps being more congenitally stubborn continued. Cases I worked on include State v Tsele and Others in Newcastle and Utrecht which occupied much of my time over three years. The State v Tuka and Others in the last of the major Delmas trials, the matter of my colleague who has joined us today and yesterday, Ebrahim Masinya, an ANC official who was kidnapped from Swaziland and very severely treated in captivity, and the lengthy Potgietersrust inquest into the death of Donald Madisha from 1990 on in which incontrovertible evidence of gross irregularities and improprieties in this very highly suspicious death of a detainee, perhaps one of the last of the detainees to die in detention even after 1990, was so carefully and skilfully ignored by a magistrate sitting with a professor of forensic medicine as an assessor.
 There are many examples but I have, at your request, winnowed those down to a few that specifically most clearly illustrate the problems, but we do appeal, and I've discussed this with many of my colleagues from more northerly regions, appeal to you very distinctly to enable at least a further hearing at which more of these examples of which there are so many, can be examined properly because the process you have begun is one that cannot be curtailed, and if it is, the fact that you have done it, may be used by many others as an excuse not to take it further and the process has to be taken further.  
 We need to recognise the roles of those that were played by, not only by those who actively assisted in the abuses that occurred, but also the essential role played by those who so deliberately and skilfully ignored what was going on.
 Bystanders in the health sector were not as they claimed being neutral in a conflict with regard to item issues involving torture and repression.  Doing nothing or behaving as if nothing untoward was happening is not neutral.  It is highly effective and often essential assistance to the primary perpetrators and renders one a secondary perpetrator.  No doctor expects to be neutral in dealing with cancer or aids and we should not consider our task or our role any different in dealing with torture and repression which are merely cancers and infections of freedom.  
 When doctors, as so many whom I am naming to the Commission in my more detailed submissions, when doctors and other experts were actively involved in helping to disguise the evidence of abuses that occurred, they were actively assisting in the survival of evil as much as if they had allied themselves with the virus.  
 It is also important to realise that none of the major institutions, including the Medical and Dental Council, ever took action including cases I didn't mention in their submission yesterday, as in the Soni case where one of the psychiatrists who had examined him announced in his affidavit, both that he had advised this man to end the suffering which was essentially self-imposed because all he needed to do was to tell the Security Police what they wanted, and of course he would then be released.  Who actually, I am told by the detainee himself, was advised by the psychiatrist of the details of the witness protection programme that he might have access to then and who, in his affidavit stated that he would advise the interrogators to finish their work by whatever means they saw fit as soon as possible.  We, myself and other colleagues at the University of Natal at that time reported this case with documentary evidence to the Medical and Dental Council.  They sat on it for over 18 months.  They came up with ridiculous delays like writing back to us to ask if this was actually a complaint and we couldn't imagine what else it might have seemed like to anybody, and eventually decided that there was absolutely no case to take beyond even the preliminary investigation phase.
 Let me give some other brief examples.  A doctor from a department of psychiatry at a major university took part in the treatment of a political detainee suffering from PTSD following his interrogation in solitary confinement, a patient who had been referred to him by the prison doctors and by a colleague at another medical school, without revealing his intentions to his patient and without obtaining the patient's consent, the doctor then worked very closely with the State prosecutor advising him, even in court, whispering into his ear during the prosecution of his patient in a case in which the State was challenging the diagnosis and the necessary management of that patient, yet without himself testifying, which enabled him to do this without having to stand cross-examination about his extraordinary contact.
 Another psychiatrist, who worked very extensively with the Security Police, and there were some who boasted of their earnings, and I suggest it would be very profitable and fruitful for the Commission to enquire with the Department of Justice and other relevant bodies about the amounts that were paid to certain individuals, I'd be very interested to know on the principle of Faust's experience what the cost of a doctor's soul is.  I'd like you to find out how much some of these people were paid and for how long. If what they boasted to us are true, it is astonishing.  
 Another psychiatrist who worked very extensively with the Security Police provided opposing evidence uniquely and consistently in case after case where there was clear evidence of damage to and abuse of political detainees.  In various trials he asserted in his testimony to a number of very highly eccentric and idiosyncratic opinions entirely unrelated to international expert and professional consensus, but all characterised by absolutely perfect convenience to the needs of the State's defence of the Security Forces against the complaints of detainees and prisoners. 
 Amongst his opinions he testified under oath, for example, that at interrogation conducted with the subject kept standing for up to 10 to 14 hours at a stretch without rest, would not be highly stressful, and he stood there lounging against the witness box and remarked impertinently that he had been standing for some time answering the questions of the defence counsel and he felt fine.  
 He testified that PTSD can never be diagnosed without absolute external, independent, irrefutable and objective proof of the facts and nature of the trauma, which would not only invalidate almost every example of the diagnoses certainly made on earth in the last 20 or so years since the diagnosis exist, but would mean that in the case as was needed in this case of political detainees, in the case of rape victims and so on, the diagnosis could never be made without the active approval, consent and assistance of the rapist and the torturer. 
 He testified that it was impossible for the defence psychiatrist, in this case myself, to have conceivably diagnosed PTSD after examining a patient for a mere total of 12 hours and without a 30 days period of in-hospital investigation and observation including a host of investigations, everyone of which have been shown by international research to be irrelevant in making that diagnosis.  
 On the other hand he was able with absolute confidence, absoluut beslis to testify that he could authoritatively diagnose that this man suffered from absolutely no psychiatric condition whatsoever, actually one of the more difficult diagnoses to make reliably, on the basis of not having examined the man, having deliberately avoided even hearing the man testify in court, but having watched from across the court room, the man's face while the man listened to my testimony.  On that basis, he of course, without the 30 days observation, not even the 12 hours, could diagnose that there was nothing wrong with the man.
 There's much evidence that this man, for example, among others worked closely together with the Security Police.  On one occasion in a break in the court case, I flew from Natal to the Cape to talk to a group of doctors and on the first day back in court this witness, who had a habit of having tea with the magistrate in the absence of the members of the defence team, strolled up to me and said, well what was the weather like in the Cape over the weekend, in order to let me know that I was under surveillance.  He had full access to the results of that surveillance. 
 In the case of another political prisoner kidnapped in another country and brought to South Africa under duress, the man developed very severe psychiatric symptoms after interrogation and torture.  A prison doctor wisely decided to arrange to transfer his patient to the psychiatric department of the local university hospital for observation and expert treatment, but his clinical decision, and we can prove this from affidavits and from court transcripts, was intercepted and countermanded by a more senior district surgeon who had never examined the patient and later showed spectacularly little knowledge of the man, but admitted under oath that he had discussed the case with a senior security police official and decided, and I quote,
"....in collaboration with this police official to instead transfer the ill man not to a university hospital for observation and treatment but to another solitary confinement cell, simply in a different city where he would have access to a forensic psychiatric specialist who worked exclusively with the Security Police in almost every case, who no longer treated patients but simply produced reports that were used in court cases and as in this case was used to oppose an application for the release of the patient".
 There's another similar doctor whose diagnosis, so far as I can discover, in every single case of every detainee and torture victim he saw, was an adjustment disorder. The most trivial diagnosis he could give in such circumstances, when he was not for some reason able to diagnose nothing, his preferred diagnosis.   
 In this case this psychiatric forensic specialist saw the man who had been tortured and who described having been kidnapped and having been tortured, impatiently made a note in his handwritten notes of the consultation, that the patient he said rather waspishly was giving, "many irrelevant details".
 A professor of forensic medicine and author of a standard text book in the topic was appointed as the assessor in an inquest into the sudden and deeply suspicious death of a political prisoner. Amongst the evidence given to the court which he never challenged or questioned in any way and which he allowed the magistrate to accept without question, and to reach a verdict in which no one was found in any way responsible for the death, include such fascinating facts as the fact the patient had received a very substantial intravenous injection of valium some 12 hours before he was found dead of asphyxia, yet no trace of any drug had been found in his blood at death and valium should have been found detectable for weeks afterwards.  
 The police surgeon had claimed to have ascertained on examining the dead man that he had been dead for exactly 20 minutes, a figure that was actually very important in order to exonerate certain of the police who were believed by the family to be responsible for the death.
 Now I keep as good a touch as I can with modern developments in forensic science and I know that there is no way known to human science to determine the time since death as accurately as to within 20 minutes, particularly within the first hour or so of death.  We speculated in the defence team as to what miraculous scientific tool he may have used to try to achieve this and eventually he admitted under cross-examination that the brilliant tactic he had used was to lay his hand against the forehead of the dead man and guess.  But this fact, this testimony, this expert testimony was accepted without challenge by the professor of forensic medicine and by the court.
 In the same case we had evidence from a police surgeon, a very old man who testified that he was responsible for the "care" of all the security detainees within a substantial area in the Northern Provinces.  He had noted in the medical records that were kept in the Section 29 File and had provided in his affidavit a statement that this detainee had never had any complaints and had received no treatment.  When in an enquiry, because his handwriting was even more disgusting than mine and completely illegible, he suddenly produced to our amazement, a duplicate set of notes, the clinical equivalent of double bookkeeping for the same patient but which he kept in his personal and private files, which revealed that the man had had many health complaints, had been treated by him on a number of occasions, and he had diagnosed and probably genuine and some rather strange diagnoses such as chronic appendicitis in the same patient.   A local district surgeon called to the man on the night before his death found him acutely disturbed and shouting that "they" were going to kill him and his family.  Something which we know well and you on the Commission know especially well, often did happen, at least not necessarily an indication of paranoia.  
 According to his sworn statement he diagnosed immediately schizophrenia, an impossible diagnosis to make competently under those circumstances and treated the man with intravenous valium which is not even the treatment for schizophrenia.
  After reading my preliminary...(intervention).