TRUTH AND RECONCILIATION COMMISSION

SPECIAL HEARINGS - PRISONS

 

DATE: 21st JULY 1997

NAME: DR JUDITH VAN HEERDEN

HELD AT: THE FORT - JOHNNESBURG

CASE: JB04508

DAY 1

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DR BORAINE: I gather lunch was a little late therefore we are starting a little late but we are very pushed for time so Iíd be grateful for your cooperation, thank you. We are departing slightly from the format that we had this morning and Iím very please to welcome Doctor Judith van Heerden of the University of the Western Cape who has written a thesis on Prison and Health. You can relax sheís not going to give you the entire thesis but she is going to make a presentation and I will ask her to do that now and Tom Manthata will facilitate the presentation. We wish we could give you more time but twenty or twenty five minutes is our maximum, thank you.

MR MANTHATA: Judith you are welcome, can you please do your presentation fairly relaxed and the only thing will be the question of time so can you please go on?

DR BORAINE: Could I just interrupt you right away and say my apologies, youíre from the University of Cape Town and not the University of the Western Cape. I was given the wrong information but I donít want you to feel in any way that Iím parading you as someone you are not. All those Universities are good so we are very pleased to welcome you, please go on.

DR VAN HEERDEN: I would to thank the TRC for this opportunity to present aspects of the physical care of inmates in prison and in this presentation I shall contextulise my submission and discuss my research findings but in the interest of time I will leave out the case studies that were to illustrate conditions of incarceration.

To start with the background, on behalf of society the state locks offenders away in prisons so we the taxpayers therefore have a stake in the well-being of inmates. The public should be aware that persons in closed institutions like prisons, asylums, orphanages, old age homes are prone to abuse that torture only occurs in secret. There is currently a demand that criminals be treated more harshly to make them suffer the consequences of their vile deeds. This refutes the principle that convicts go to prison as punishment and not for punishment.

The reality is that when convicts are treated brutally they are released into society more angry than ever and the cycle of violence is perpetuated. The alarming recidivism rate in South Africa as high as 90% at Pollsmoor can be linked to violence often gang related in our prisons. This cycle will only be broken by finding more creative and humane ways of dealing with those in captivity, by restoring their self esteem and dignity.

Human Rights Watch claims that until 1990 the three most striking features in South Africa in prisons were strict secrecy, all information including personal exchanges at visits or in correspondence were forbidden by law. Segregation where racial groups were housed in separate blocks to prevent Blacks and Whites from being within view of each other and corporal punishment sanctioned by law. For prison offences, whipping was an arbitrary imposed on inmates. Due to strict media control the public only had access to prison information related to court evidence or at trials and inquests.

The death in custody of world renowned activist Steve Biko in Ď77 followed by that of the trade unionist Neil Agget in Ď82 exposed negligent conduct of district surgeons to the world. Failure of the SAMDC to discipline the questionable conduct of the Biko doctors had international repercussions resulting in the academic isolation of the South African Medical Profession. After Bikoís death the Medical Association appointed itís first ad-hoc committee to examine the ethical issues related to his case. It recommended legislation to enforce the complete clinical independence of district surgeons, free from interference by detaining authorities.

A few months after Neil Aggetís death a second ad-hoc committee was appointed in May of Ď82 to enquire into the medical and ethical care of prisoners and detainees. A year later itís report recommending safeguards was submitted to the Minister of Health and included access to a private doctor, pure review including examination of the inmates records, weekly assessments of individuals in solitary confinement and procedures for examining and recording assaults. One and a half years later the Government accepted only one of these recommendations. The MASA was given permission to establish a panel of doctors to whom detainees would have recourse if they were dissatisfied with prison medical care.

Gradually itís limitations became clear, only MASA members qualified subject to security clearance, only district surgeons could refer detainees and all treatment prescribed was subject to approval by the district surgeon. By 1989 the MASA admitted that detainees were not gaining access to the panels. Had the MASA and the Department of Health been more assertive and insisted that a date and procedures of implementation be made public, the findings of my research may have been very different.

Security clearance for all doctors who worked in prisons was one of the thorny issues related to clinical independence. Over fourteen months many attempts to gain personal experience of health care services inside prisons were subject to obtaining security clearance. There it is but all these attempts were futile. Repeated requests notwithstanding the Director of Community Health Services of the Cape, of the CPA evaded questions about the introduction and the later withdrawal of security clearance for prison doctors. In more recent correspondence the Deputy Director of Surgeons of ... replied that security clearance is a police matter. It raises serious questions about the proclaimed independence of district surgeons and the collusion of hospital administration with the previous dispensation.

I now turn to the findings and discussion of my research on prison health care. This is the TRCís Prison Hearing, there are however compelling reasons for me to include police stations in this submission on prison health. The concept of the lay public and health providers is that prisons and police stations donate buildings. In fact the Act of 1959 defines prisons as all places of custodial care that is prisons, police stations and holding cells at courts. The soon to be released Draft Bill broadens this definition to include places of safety, juvenile facilities, industrial schools and the future remand centres. The Act also describes the forces as the army, the police and the correctional services.

In the declarations of the states of emergency the concept was reinforced by the forces being given full powers of search and seizure. It led to confusion about the allegiance of prison health care staff and their clinical independence. At prisons an entire infrastructure is in place to provide health care. All prisons by law have a rudimentary hospital even if it is little more than a sickbay. Since 1994 regional prison hospitals were introduced where among other things regular specialist consultant clinics are held. At police stations on the other hand, are manned solely by officials without medical training. All health care is provided by a district surgeon and depends on the concern of the policeman who calls him out. Police stations also lack health care facilities, consulting rooms, examination couches, equipment, nursing care, supplies, storage and distribution of drugs.

To provide proper care for all inmates in custody a strong argument can be made for the complete separation of health care from custodial care. The Department of Health should take on responsibility for custodial health care. It will also do away with the confusion about the role nurses. Their present custodial role undermines the trust and confidentiality which should exist between patient and nurse. Abuse and the seventy three deaths of political detainees during the three decades of repression occurred mainly outside prisoner police stations or at interrogation centres. More alarming are the two hundred and sixty deaths in custody during the first fifteen months of democratic rule.

Last week we heard that in the three months from April to June this year fifty six people died in police custody. My study concentrated exclusively on health care at the point of delivery. Information was obtained from Human Rights Activists detained for their political aspirations in the Eastern and Western Cape between Ď86 and 1990. They were predominantly the educated and politically informed Black leadership who committed to improve living conditions for all citizens inside and outside of prison. Until June 1992, all prison information was restricted by law. The field work done in 1991 was subject to this law. Random sampling was not possible, it was too risky. All the respondents were self selected. Confidentiality and mutual trust were essential.

A major advantage was those that came forward had a clear understanding of human rights, the value of the project and the risks they were taking. Several, particularly in the Eastern Cape had Robben Island experience, well schooled they used every opportunity in detention to form Committees, to workshop and agitate for their rights, for better prison conditions, visiting, exercise, education, food and health care. They submitted several detailed petitions to the Commissioner of Prisons and one to the South African Medical and Dental Council. Their contribution was invaluable.

A semi-structured questionnaire was designed to explore how the laws and regulations governing health care were applied. The Prisons Act states that after a rest the prisoner be informed of his rights. Emergency regulations further stipulated that detainees be examined as soon as possible after a rest or before release. That treatment prescribed be carried out promptly and that only the District Surgeon could refer for outside treatment. Section 29, isolation for the purpose of interrogation stipulated that detainees alleging assault be examined forthwith and that the District Surgeon and Magistrate visit Section 29 detainees every fourteen days.

The results will be discussed under the following headings of Medical Rights, Medical Screening, Screening for Illness, you can read it yourself.

The Findings: A picture of poor quality care and service emerged. Overall the quality of care was better at prisons than at police stations. One hundred and twenty three interviews were completed between February and August of 1991, fifty three in the Western Cape and seventy in the Eastern Cape including the Karoo. It covered experiences in a variety of police stations and prisons in cities and towns around the Cape Province.

Demographics: The ages varied from fifteen to sixty, the largest number fifty four fell in the twenty to twenty nine age group. It reflected the general age distribution of detention pattern in the Eastern and Western Cape during the emergency ...

Duration : Repression in the Eastern Cape was more severe than in the Western Cape. The light figures are the shorter periods and the darker columns the longer periods. A greater proportion in the Eastern Cape were detained for longer periods that elsewhere. In the Western Cape 96% spent less than twelve months in detention. In the Eastern Cape 42% spent twenty four to thirty six months in detention. An advertisement placed in the Eastern Province Herald on the 24th of December 1988 listed the name of eighty seven detainees who were spending their 3rd Xmas in prison, later three more names were added.

Transfers: Disrupted prison routine increased the anxiety and insecurity of imprisonment. In the Western Cape 90% were held in one to three places. In the Eastern Cape 23% were held in four to seven and another 23% in seven to twelve places. There seems to be a link between the period of detention and the number of moves, possibly the political profile and ability of certain individuals contributed to this. The many unannounced moves of leaders broke the solidarity amongst detainees. Moving prisons frequently through the prison system is known as ghosting, it was used to discipline the so-called disruptive prisoners. Prison monitoring organisations condemned this practice and an intimidation tactic.

Medical Rights: Only 8% were informed of their medical rights, they were told they could see a doctor if they were ill.

Screening: Seventy were examined after their arrest, forty nine of them within 48 hours. The law which states that every detainee shall be examined as soon as possible after arrest makes provision for individuals who are either in at the time of arrest of are injured during arrest. Sixteen of the respondents who were on treatment, sixteen were on treatment at the time of arrest and only three got treatment within 48 hours. Of the nine who waited three days to three months for treatment, seven were held at police stations, four never got any treatment. Only eight of twenty eight who were injured received treatment within seven days. Respondents were very skeptical about the so-called screening process, they perceived it as a fitness certificate which left them vulnerable to assaults from outside scrutiny. When screeners were grouped they were lined up with their tops off and a District Surgeon marched past, past like a policeman to inspect eyes and oral cavities. One complained that his TB treatment had been taken away and the District Surgeon told him that detainees were not allowed their own medicine and that his lawyer could take the matter up. What astounded him was that the District Surgeon was the same doctor who had treated him at SANTA.

Seeking Help for Illness: Ninety six reported physical symptoms and this bar chart shows the frequency and the severity of the physical symptoms. Eighty seven reported psychological symptoms and Iíd like to go into a bit more detail about this. The most common psychological symptoms were due to stress. Imprisonment scores the fourth highest on the stress impact scale. Appeals of prisoners with vague complaints for health were often ignored when they should have been taken more seriously.

A woman who asked for help because solitary confinement was psychologically damaged said that the District Surgeon did not see solitary as a problem as she had no physical sign, he said she was fine. She was later admitted to Groote Schuur Hospital. A schoolgirl of seventeen was depressed and slept badly, the District Surgeon said he could not diagnose, record or treat depression because he was not a psychiatrist. She rejected the sleeping pills that he could provide by recording sleeplessness.

Access to Medical Care: Altogether ninety four were seen by a District Surgeon. Of the eighty three who requested medical attention only ten were seen. A certain routine had to be followed before the patient reached the District Surgeon. Requests could be made to the officer of complaints at the early morning round or to the medical orderly who did the round with the medicine trolley. This was of course in prisons. If approved, the prisonerís name was put on the waiting list to be seen by the District Surgeon hopefully at his next visit.

Some complained that the nursing sisters intervened during consultation, thus influencing the District Surgeonís final diagnosis and management and that they unlimited powers and regularly overruled the District Surgeons. They said that their complaints were read off a prison card and that the District Surgeon never spoke to them.

Attempts were made to determine the quality of care of the ninety four seen. In two out of three cases the history was a variation of whatís wrong and only fourteen were asked in some detail and fifteen said the doctor did not speak to them, three were called malingerants.

Presenting for the third time with abdominal pain the District Surgeon said, not you again to a man who was later investigated and diagnosed of suffering from peptic ulcers.

Medical Examination: Fifty seven said that the examination was superficial or rushed, if it occurred at all. Only twenty two reported satisfactory examinations. Detainees referred to large numbers that had to be seen in a limited time about standing in queues and tut, tut, tut on the chest wall or having their tummies prodded while standing. Doctor Orr herself complained about having to see eighty to a hundred patients in two to three hours and she spoke about it amounting to no more than waving a stethoscope around.

Detainees also queried diagnosis made by merely asking a few questions. Examinations done down the line were obviously not private, only thirty three said they were alone with the District Surgeon and were able to speak privately. Without consulting space examinations on occasion took place in the open.

The Sections of Management: When asked about the attitude of the District Surgeon, one in three found him caring and several compared the behaviour to "Doctor Good" to that of "Doctor Bad". In the Eastern Cape "Doctor Bad" was mentioned by name. Detainees demonstrated their disapproval by boycotting sick parade when he was on duty. They took this action because he wore a gun to the parade. He was also the doctor who withheld treatment prescribed by "Doctor Good" for more than three months because the Section 29 detainee refused to divulge the name of his assailant.

In terms of care one in three were satisfied with management, one in five were given a diagnosis yet nine out of ten were given scripts. In accordance with the law the treatment shall be carried out promptly. Ninety five received their medication within forty eight hours.

MR MANTHATA: Doctor van Heerden could I please request something, we have got the submission and time being of essence, is it possible for you to answer a few questions?

DR VAN HEERDEN: Sure.

MR MANTHATA: From your submission you have case studies and I find in your case studies that most of the cases are of common-law prisoners nature except this one of ... (interrupted)

DR VAN HEERDEN: No, no youíre making a mistake. The case studies were all of political people and they were young people who were put in amongst common-law criminals which was against the Declaration of the State of Emergency.

MR MANTHATA: They were political prisoners themselves?

DR VAN HEERDEN: They were themselves political prisoners.

MR MANTHATA: Thank you. It is not too clear to draw this distinction between health care and custodial care, more especially in a situation where it seems those who are doing custodial care seem to be more influential and they seem to direct terms on those who do health care and in the end it becomes a little confusing, how health care can be seen as perhaps independent of custodial care.

DR VAN HEERDEN: It is my belief that the only way that health care will be practiced as it should be practiced, is that health care must be separated completely from custodial care and that everybody that has any role to play as a health care provider, whether that be a so-called medical orderly and theyíre now called nursing assistants or a nurse or a doctor should be appointed, paid and responsible to the Department of Health. In actual fact the Department of Health should take full responsibility for all health care in places of custodial care and in that I include police stations as I think thatís crucial that the police stations be included.

MR MANTHATA: Where do you place private health care that is, where a prisoner can, like itís sometimes said that when you want care from outside from private doctors it becomes so expensive that most of the prisoners may not be able to afford that and yet it is very important because thatís to me the only way we can have the prisons be as transparent as possible.

DR VAN HEERDEN: I think that it should be a prisonerís right to ask for a private doctor. In actual fact as you mention, itís very difficult for prisoners to get private care because the majority of them donít have the finances. Once a person sees his private doctor and one assumes that they have some sort of relationship with their doctor, I donít think in this instance the custodial authorities interfere if it is practiced in the way where people see their doctors in private. I actually think if one wants transparency there are other ways of obtaining transparency. I think that the prisons should be opened to scrutiny and visits by the lay public. I think that there should be independent bodies appointed to visit and monitor prison conditions like for instance Her Majestyís Inspector of Prisons I Britain, that that person be appointed by and responsible to Parliament. Definitely an independent monitoring body must not be responsible to the prison authorities.

MR MANTHATA: My last question, I donít know whether in this case we confining ourselves largely to political prisoners or are we talking about prisons as a whole because one of the biggest problems we are faced with in South African Prisons is this gangsterism.

DR VAN HEERDEN: Beg your pardon?

MR MANTHATA: Gangs, gangsterism in prisons.

DR VAN HEERDEN: Well I agree with you, the work the guy did was with political prisoners because I think that the information that one got from the political prisoners was better digested information, they had workshops on these things, they had written petitions, they had thought about the whole human rights issue which is not something that common-law prisoners normally do. The information that I gathered was used to make recommendations for all people in custodial care. What did you want me to answer?

MR MANTHATA: Gangsterism.

DR VAN HEERDEN: I canít speak for the other Provinces, I really just know the Cape Province and I know especially in the Western Cape that gangsterism rules the prisons, it rules the prison authorities, it rules the people that come in, it rules what happens outside of prisons and I think one of the only things one could try and do, is to treat people better so that they go out of prison and perhaps to train them better so that when they leave prison, they leave prison with more self esteem and an ability to maintain themselves and work for themselves rather than to be sucked into the prisons. The whole issue of breaking the cycle of control of gangs inside and outside of prisons of which both the police at times and certainly the prison warders are part, is going to be very, very difficult to break and itís been functioning in our country now for over a century, so itís not something weíre going to change overnight.

MR MANTHATA: The more we seem to liberalize the prisons, the more we see prisoners breaking out of prisons and this seems to be on the increase lately.

DR VAN HEERDEN: I donít whether treating people decently, what I mean by decently is by greeting people, giving them your name, speaking to them politely, whether listening to their complaints and giving them care when theyíre ill as we heard this morning people werenít given, whether that in actual fact makes it easier for people to escape from prison. I myself canít see it, I think there are other things about the criminal justice system that one needs to look at but I donít think it has anything to do with peopleís rights to health care and to decent treatment or humane treatment.

MR MANTHATA: Thank you, over to the Chairperson.

DR BORAINE: Doctor van Heerden thank you very much indeed for your presentation, I know that you havenít even finished what you had hoped to say but unfortunately we have even gone over the time and there are other people we have to hear today because they were promised they would be. We have your complete submission that will be incorporated in our report, in our final report and it just remains for me to thank you for doing an impossible job extraordinarily well, thank you very much for your help.