Medical Parole & Deaths in Prison: SA Human Rights Commission & Civil Society Prison Reform Initiative briefings

Correctional Services

05 August 2008
Chairperson: Mr D Bloem (ANC)
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Meeting Summary

The Chairperson noted that the Committee had been concerned about the statistics on deaths in custody that were quoted in the Annual Report of the Judicial Inspectorate of Prisons. The Civil Society Prison Reform Initiative (CSPRI) was asked to brief the Committee on their perspective of the problem. CSPRI first urged that all persons must be treated as human beings, whether in or out of prison, and irrespective of the crimes they had committed. The submission detailed prison deaths trends, medical parole releases, current legal provisions, recommendations for addressing challenges and the prevention of deaths in custody. It was noted that key problems facing those in prison were overcrowding and poor conditions of detention. Prison overcrowding had been in recent months been exacerbated by the increase in awaiting trial detainees. 

The South African Human Rights Commission (SAHRC) said that the SAHRC had an overarching mandate to promote and protect human life. Many of the points made by the CSPRI were reiterated. Overcrowding was exacerbated by the fact that many prisoners could not afford bail of even small amounts and the overcrowding posed problems for both inmates and Department of Correctional Services officials. From a human rights point of view there was much that could be done by relevant stakeholders acting in complementary fashions. It should be considered that such prisoners be released as long as their release does not pose a security risk. He also noted that officials should be empowered to deal with prisoners who may be mentally ill and know their rights to have their own medical practitioners to report on their condition.

Members raised concerns on the overcrowding in prisons, the capacity of the Correctional Supervision and Parole Review Board (CSPRB) and the inadequacies in  prison infrastructure. Concern was expressed on the lengthy delays, the lack of proposals for new correctional centers, and the lack of capacity of theCSPRB. Questions were raised as to the designation of “on the verge of death”, what would happen if there were conflicting medical reports, the need to recognise that terminally ill patients were not just those with HIV, and how public education was being conducted.


Meeting report

Medical Parole and Deaths in Prisons
The Chairperson referred to the statistics relating to the deaths in prisons due to natural causes, which was published in the Judicial Inspectorate of Prisons’ latest Annual Report. He said that the number of natural deaths that occurred in prisons had been alarming. This Report had been submitted to the President, the Minister and the Deputy Minister of Correctional Services. Interaction and effective collaboration between the Department of Correctional Services (DCS), the South African Human Rights Commission (SAHRC) and the Civil Society Prison Reform Initiative (CSPRI) was imperative to address the issues.
Civil Society Prison Reform Initiative (CSPRI) Submission
Mr Lukas Muntingh, Project Coordinator of CSPRI, delivered his submission on matters pertaining to medical parole issues and deaths in prison.

Mr Muntingh made reference to last week’s media reports about the severe state of overcrowding at Mthatha Prison and said that this level of overcrowding was unacceptable. His stance was that all persons , no matter where they find tehmeselves, must enjoy their basic rights as enshrined in the Constitution, irrespective of the crimes they had committed. He added that the Constitution must be the guiding principle. Mr Muntingh’s submission sets out figures in respect of deaths in prisons and medical parole releases. He noted that prisoners who have died in prisons due to natural causes refelcetd the general profile of the total prison population in respect of sentence status and gender, with roughly a quarter being unsentenced and just of 2% being female. .  He set out the current legislative provisions, commenting that these were in themselves problematic because of interpretational probleMs

Mr Muntingh shared the concern of the Judicial Inspectorate of Prisons (JIOP)’s concern about the sharp increase in deaths due to natural causes and the low number of releases on medical parole. He said that there was no correlation between the number of deaths in prison and the number of prisoners released on medical parole He noted that  in 2006 the JIOP had reported  8.3 deaths per 1000 prisoners and 7.0 deaths per 1000 prisoners in 2007. He added that even though there had been a decrease in the mortality rate since 2004, consistency in the administration of medical releases needed to be addressed. He referred to statistics from the JIOP noting that 37% of prisoners who had died in custody did so within the first twelve months of custody. He added that the JIOP’s Annual Report had also reflected that 62% of prison deaths had occurred within the first 3 years of incarceration. He said that manageable diseases such as diabetes and asthma have now, due to inadequate screenings upon admission and poor conditions of detention, become life threatening conditions. .  

Mr Muntingh commented that the prison population was not being stable because of the large number of unsentenced prisoners circulating through the system annually.  The fact that so many were still awaiting trial made it impossible for the Department of Correctional Services (DCS) to do adequate health examinations, especially when it was experiencing staff shortages. He added that it remained unclear what the exact cause of death was if a prisoner had died of natural causes. He said that the DCS’s and the JIOP’s statistics did not reflect the details of deaths due to natural causes .  He noted that t
he cause of death has implications for the current debate on medical parole as different illnesses and the prognosis for recovery may require different responses from the DCS in respect of medical parole.  For example, an Aids patient who has not had access to anti-retroviral therapy (ART) may need to be considered in a different light than the cancer patient with no prospect of recovery, as was the case in Stanfield v Minister of Correctional Services. Accurate information on the cause of death will firstly establish if the DCS is indeed providing proper care to prisoners suffering from treatable, manageable or curable conditions. Secondly, it is furthermore necessary to establish the mortality profile and cause of death, if applicable, of prisoners who have been released on medical parole. It is important that policy and decisions are based on reliable information and not on isolated incidents proffered as policy anchors.

He made reference to the case Stanfield v Minister of Correctional Services case, where prisoner Colin Stanfield, who had been convicted of tax evasion, had applied to DCS for medical parole on the grounds of his terminal lung cancer. The DCS had rejected his application for medical parole and Mr Stanfield had appealed to the High Court, where he won the case.  The case of Stanfield highlighted the fact that the DCS made reference to irrelevant factors when assessing and consequently denying his application for release on medical grounds.
Mr Muntingh made a brief reference to the proposed amendment to Section 79 of the Act by the Correctional Services Amendment Bill of 2007. He said that this highlighted some of the flaws.
He then highlighted the importance of consistency with regards to all relevant stakeholders.
CSPRI submitted a number of recommendations on how consistency can be improved (please see submission for detail):
Iit is recommended that the Department critically examines and revises, where necessary, its policies and procedures to give effect to this obligation. It is furthermore recommended that the staff of the Department and CSPB chairpersons be trained accordingly to give effect to this duty.
It is therefore submitted that the Committee requests the DCS to provide it with the necessary quantitative and qualitative information pertaining to trends in deaths of prisoners and medical parole.
It is recommended that the Committee enquires from the DCS as to the possible restructuring of the CSPB system in order to create a structure that would alleviate the current probleMs
It is recommended that the Committee requests specific proposals from the DCS on how the current procedure can be streamlined and decision-making expedited.
It is recommended that the CSPRB assumes its review and policy development function assertively and provide the necessary guidance on medical parole.
It is submitted that the Office of the Inspecting be requested to actively seek out cases involving medical parole and submit these to the CSPRB for consideration.
It is submitted that the Committee in its deliberations on the incarceration framework, when it is submitted by the DCS to Parliament, be mindful of the dire need for simplification and also reflect on issues pertaining to medical parole.
It is recommended that the Department, where the case warrants it, make placement under correctional supervision and on parole for medical reasons conditional to the provisions in section 52 of the Correctional Services Act.

Mr Muntingh outlined some of the preventative measures listed in his submission. Overcrowding posed a huge problem within prisons. He added that not only were the conditions inhumane, but they had detrimental effects on prisoner health. He said that proper medical screenings and health examinations on admissions needed to be conducted, as required by the Correctional Services Act. He added that all prisoners needed to be ensured of access to adequate health care and that all prisoners who qualified for ARVs should receive them. He said that the Correctional Services Act enabled the DCS and its structures to ensure the dignity of a prisoner who was in the final stages of life. However, the removal of procedural and administrative obstacles was necessary to achieve these objectives. He added that
attitudes towards prisoners, especially those who are terminally ill, need to be addressed to ensure that their right to dignity is upheld.

Mr H Cupido (ACDP) commended the CSPRI as well as the South African Human Rights Commission (SAHRC) for their engagement in addressing the crucial issues. It was crucial that, as direct stakeholders, their comments be obtained.

Mr Muntingh acknowledged Mr Cupido’s comments.

Mr J Selfe (DA) was concerned about overcrowding in prisons as well as the large number of prisoners who had not been sentenced yet. He was also concerned about the capacity of the CSPRB and the lack of prison infrastructure.

Mr Muntingh said that a survey conducted from three metropolitan courts had indicated that roughly 50% of cases are withdrawn by the prosecution or scrapped from the roll after the accused had spent time in custody.  This indicated that their arrests had been unnecessary or there was indeed no real case for the prosecution to proceed with. If these decisions are made earlier it would bring substantial relief to the prison overcrowding situation. 

Mr Muntingh expressed concern on the amount of time it took for prosecutors to make their decisions and was concerned that the process needed to be expedited to eradicate the number of unsentenced prisoners in the system.

He was expressed concern about the proposed sites for the new prisons compared to where the worst overcrowding was experienced and that these do not necessarily overlap.

He noted that the CSPRB was a part-time structure, which had an advisory function to the National Council and the Minister and that the DCS and other stakeholders needed to collaborate to improve the CSPRB’s capacity.
The Chairperson questioned when terminally ill patients could be deemed as “on the verge of death”.

Mr Muntingh responded that, firstly, the prisoner had to be diagnosed as being terminally ill; secondly, the doctor had to confirm that death was imminent, and thirdly, it was the duty of DCS’s to protect and promote the dignity the prisoner. These three factors needed to be assessed together in order to make a decision.  He added that only God could determine the exact time when someone would die.

Bishop L Tolo (ANC) displayed concern towards overcrowding and inhumane living conditions in prisons.

Mr Cupido requested that the people should start looking at the need for the DCS to test prisoners on admission for HIV as a compulsory mechanism to control and monitor diseases in prisons.

Mr Muntingh said that from a human rights perspective, compulsory HIV screening upon admission would be deemed as unconstitutional. He added that Voluntary Counseling and Testing (VCT), preventive and promotive health care are more acceptable from a rights perspective.  Compulsory testing raises a number of difficult ethical and legal questions. 

South African Human Rights Commission (SAHRC) Submission
Mr Danzel Van Zyl, South African Human Rights Commission, made a presentation and made references also to the JIOP’s Annual Report for 1 April 2007 to 31 March 2008. He quoted former SA President Nelson Mandela’s stance on how the moral fibre of a society could be measured by the way it treated its prisoners, and added that the way society treated its prisoners was indicative of its maturity. 

Mr Van Zyl said that the SAHRC had an overarching mandate to promote and protect human life. He then proceeded to highlight some of the challenges the SAHRC was facing. He echoed Mr Muntingh’s concern of the number of deaths in prison as per the JIOP’s latest Annual Report. His stance was the need to ensure constitutional values to promote human life.

Mr Van Zyl agreed that overcrowding posed a huge problem. He noted that South Africa had the highest incarceration rate in the world and that Nigeria had the lowest. The overcrowding was exacerbated by the fact that many prisoners could not afford bail even of small amounts of less than R200. He said that this applied to 4 443 inmates. That overcrowding in prisons posed problems for both inmates and DCS officials. Even if the DCS were to have the best rehabilitation programmes in the world, then would still fail because of this overcrowding. He questioned how many deaths in prison there were of people who simply could not afford bail.

He referred to Section 38 of the Criminal Procedure Act and said that prisoners needed to have a speedy trial so that they could be released where appropriate, as their safety and human dignity was being comprised while they remained incarcerated. 

He also encouraged the training of DCS officials on how to deal with prisoners who had mental illnesses. He added that this could possibly lower suicide rates in prisons. He added that an integrated approach was vital and that the issue of medical parole was not as clear cut as it seemed. He posed the rhetorical question as to whether medical parole could be seen as a right or a privilege.

Mr Van Zyl was concerned that Section 79 of the Act was not clear, and that it implied room for debate. He added that South Africa should other countries’ precedents for medical parole issues. He noted that Section 35 of the Constitution allowed those arrested had the right to bring in their own medical practitioner.

He said that victims of crime needed to be educated within communities about parole procedures.

He said that there were so many ways that relevant stakeholders could complement each other to secure human rights in South Africa. He added that although public perceptions, fuelled by the high crime levels, were possibly weighted in favour of keeping people incarcerated, human rights in the Constitution needed to be observed.

Mr Bloem said that the issue of prisoner’s right to access a medical practitioner of their choice had been referred to in the Committee’s previous meeting with the DCS.

Mr Van Zyl noted Mr Bloem’s stance and added that there was indeed corruption with Workers Compensation Act (WCA) doctors who produced fake medical reports.

Ms L Chikunga (ANC) displayed concern about various mindsets. She said that the term “terminally ill” must not be automatically equated in the minds of people with HIV, pointing out that Colin Stanfield had been diagnosed with lung cancer.

Bishop Tolo asked if the SAHRC had targeted the rural areas on human rights education issues. He was concerned whether SAHRC was only using English or other relevant African languages. He said that English was not a predominant language, but was only placed fifth on the South African language usage scale.

Mr Van Zyl responded that extensive SAHRC training had been taking place in all of the country’s nine provinces and that the SAHRC was building capacity all the time. He added that education within the nine provinces took place in the community’s languages of choice. He added that there were extensive radio education programmes aired throughout the country in many different languages.

Ms S Rajbally (MF) was concerned about conflicting medical diagnoses. She wanted to know what steps the SAHRC took when it encountered something to that effect. She wanted to know if a specialist could then be called in. 

Mr Van Zyl responded that the courts would adjudicate on the matter if there were conflicting medical diagnoses.

Mr Bloem displayed concern regarding convicted fraudster Schabir Sheik’s five month long stay in hospital. He added that, according to weekend reports from the DCS, Mr Sheik’s condition was not improving. He added that he did not know if the DCS was acting rightly or wrongly, but that at he would consult further with the DCS and set up a proper meeting with them. Mr Bloem added that the issue of medical parole did not only pertain to Mr Sheik but to all who were terminally ill.

Mr Van Zyl added that from a human rights perspective, equality needed to be promoted and that there should be no differential treatment of prisoners.

The meeting was adjourned.


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