Medical Parole: discussion

Meeting report

Opening remarks
The Chairperson noted that there would not be a meeting the following week as the National Assembly would be sitting. They were to receive a briefing from the Department on the outstanding Groote Schuur Hospital incident and the Lacote escape as well as a follow up on medical parole. It was proper that the Committee be informed about the two regional commissioners that were suspended. The Chairperson was briefed before the suspension took place. There was an ongoing investigation and he understood the sensitivity of the suspension of Mr Gillingham and Mr Modise. He asked the Commissioner to provide an explanation.

Suspension of two regional commissioners. Groote Schuur Hospital incident and Lacote escape
Commissioner Vernie Petersen (National Commissioner: Department of Correctional Services) commented that when a process of discipline has been initiated it then becomes sub judica, which meant that what ever he said could prejudice the process against the two regional commissioners. He did not want to do that. The suspensions of both regional commissioners were based on independent findings. There were also additional separate incidences that required further investigation. It was of such a nature that he felt that they should be suspended for a second time, given how substantive the allegations were. The outside investigative reports allowed for a speedy process. He had obtained the services of chairpersons outside so that the process against Mr Modise could be swiftly handled. Senior counsel was requested for an evaluation before the Special Investigative Unit (SIU) to determine whether there was a basis to proceed against Mr Gillingham as speedily as possible. There were other senior managers involved and he would act against them. It was a difficult matter and he was aware that DCS staff had been taken aback by the developments. He had taken it upon himself to visit the affected regions to acknowledge the pain and confusion that the staff were experiencing.

The Chairperson thanked the Commissioner. He knew that there would be a further detailed briefing after they had completed the legal process. The Committee supported the Commissioner. The senior managers needed to be held accountable. He continued that the Commissioner written a letter to the Committee that stated why the issues should not be addressed.

Commissioner Petersen replied that he was concerned that they were covering the same ground repeatedly. The fundamental issue was the legal principle that referred to sub judice issues. They did have a civil case against the Department. The information put before the Committee might prejudice the State. There was no guarantee that the information given to the Committee was not used against the state regarding the Groote Schuur incident. In the matter of the Lecote escape, it was a serious security matter related to an escape. Arrests had been made and it was clearly a criminal case. He respectfully requested that they not present on these two matters.

The Chairperson and the Committee agreed with the conclusions of the Commissioner.

Medical parole: follow-up
The Chairperson mentioned that Section 79 of the Correctional Services Act stated that when a doctor has diagnosed an inmate with a terminal illness, the parole board could act accordingly. The Chairperson had requested a random survey to be done on medically ill inmates. The study revealed that there were at least 66 inmates who might be eligible for medical parole. He stressed that this was not the total number of inmates that were medically ill, as only a small number of prisons had been used. The Committee could not understand why it appeared that the Committee passed legislation that the Department could not implement. It was unacceptable that every time the Department appeared before the Committee, the Department raised challenges around the issue of medical parole. One of those challenges was the refusal by relatives to accept their loved ones into their homes so that they could be released on medical parole. On the 12 August the Committee asked for a list of those families so that they could assist by taking the matter to the public to help change perceptions. The Committee had not received that list.

Mr Schabir Shaik should not be singled out - yet it was cause for concern. He should be dealt with as part of the many critically ill inmates. There was a perception that Mr Shaik was not part of the broader prison population. The fact was that Mr Shaik was part of approximately 130 000 sentenced prisoners in the country. He found it disturbing that while they were free to talk about any other prisoner it was expected that they were not to talk about Mr Shaik. It had been reported that Mr Shaik had been in hospital for six months. He did not think that that the doctors in Inkosi Albert Luthuli Hospital would keep a healthy person in the hospital. They needed to talk about the matter so that they could remove the speculation. It was not good for them to see things in the newspaper and not be able to talk about it. They needed to respect the rights of every human being protected by the Constitution. Accordingly, the doctor patient confidentiality could not be compromised. He was sure that the Department would deal with it professionally.

Commissioner Petersen apologised for not forwarding the list of names of family members that had refused to accept prisoners after they were released on medical parole. This was because they had not kept such details. They would have seen medical reports but would have been unable to interpret it. They did speak of these challenges including the burden on poor people. They needed to find alternatives. There was a judge that was keen to discuss halfway houses with the Commissioner. He worked with civil society as part of coordinating criminal justice processes in Gauteng. He linked the Commissioner with an organisation that was a network of faith-based organisations. Their main purpose was to respond to the challenge of halfway houses and accommodation. Medical parole had previously been deliberated on by the Committee to identify the challenges and gaps.

Commissioner Petersen said that they needed to keep an open mind. Mr Schabir Shaik was an inmate at Durban-Westville and that was why they had asked the Area commissioner of Durban Westville to attend the meeting. Mr Shaik’s case presented a challenge that many other inmates experience. However because those lacked the publicity, they were often not seen as a matter of focus. This provided an opportunity to find answers. They wanted to remain true to the principle of confidentiality, and in that regard they did not want to engage in a discussion about the actual the medical condition of Mr Shaik. They may also interpret the diagnosis incorrectly. They did struggle around the issues of definition and that the definition itself might prohibit medical parole. Doctors were wary to use the word ‘terminal’. It did not mean that they should shy away from using that definition. It may be necessary to revisit legislation to see how they could address the policy gaps. One of the key challenges that could not be avoided was the cost to the state when incarceration occurred. In other jurisdictions the definition was broader than ‘terminal’, and they may want to revisit the definition. There were also other provisions that enabled the state to act in similar circumstances. They really did not have to look at other jurisdictions, there was a provision in the Correctional Services Act, Section 69 that was repealed in 1998, that would enable them to act in a way that was much more responsive. If they came with policy proposals they to take into account the possibility of abuse and public opinion. He referred back to Section 69 of the Act 1995, “A prisoner serving any sentence in a prison; (a) who suffers from a dangerous, infectious or contagious disease or (b) whose placement on parole is expedient on the grounds of his physical condition or in the case of a woman, advanced pregnancy, may at any time on the recommendation of the medical officer be placed on parole by the Commissioner, provided that a prisoner sentenced to imprisonment for life shall not be placed on parole without the consent of the Ministry.” He did not know why that provision was repealed. In Mr Shaik’s case, they may want to check statistics in KZN as whole.

Mr J Selfe (DA) noted that the Commissioner drew attention to the definition of terminal disease. In fact the Act was even more restrictive in that only in the final stages of that terminal disease could the prisoner be placed on parole. There were two stages, the definition of terminal disease and then the determination of when the final stages of the terminal disease occurred.

Commissioner Petersen agreed. In the first instance, there was the determination of what was ‘terminal’ - given modern medicine - and what was the final stage was complex. Few medical practitioners would make such a statement and it was left to the Commissioners who were not trained in the medical field to make the decision.

Policy Options on Parole System in South Africa presentation
Mr Teboho Motseki (Chief Deputy Commissioner: DCS) said the focus of the Committee on parole raised important issues such as the public interest in the rights of offenders, practical challenges for the Department in its application and current policies. It highlighted the ongoing need for public engagement on rights of offenders, rights of victims, role of families and delegated persons. He then provided a comprehensive definition of parole and forms of application, a comparative analysis of parole application in South Africa and other countries.

The general definition of parole was a release on conditional basis with a return if the inmate failed to comply with the conditions. It aimed to assist the offender with transition from custody to a normal crime free life. There were various forms of release that included conditional release and forms of compassionate release. The parole practises from other countries such as the United States of America, included discretionary release that was influenced by rehabilitation which the parole board considered that included factors such as participation in treatment programmes and mandatory release that was determined on the basis of the sentence or parole guidelines. There was also parole for inmates with special needs. In the United Kingdom there was compassionate release on medical grounds with specific criteria and compassionate licence, which was a form of temporary lease designed to help offenders deal with urgent personal matters. In New Zealand the circumstances for consideration for parole before the eligibility date was home detention, compassionate release, extended supervision order, postponement order, Section 107 when the Department of Correctional Services applied to have an offender kept in custody beyond their release date and reviews. In Canada, their conditional release program included full parole, day parole and temporary absences. In Ireland there was the compassionate temporary release, temporary release for medical purposes and home visits.

In South Africa the South African Correctional Services Act 111 of 1998 provided for three kinds of parole; full parole, day parole, medical parole and temporary release. The Correctional Supervision and Parole Review Board was established from the members of the National Council of Correctional Services (NCCS) and its main function was to review any decision taken by the Correctional Supervision and Parole Boards (CSPB). The CSPB’s review was conducted based on the submission of the Minister or the Commission. Any person, however, could ask the Minister or the Commissioner to consider specific cases. The decision of the Review Board was final and may include setting aside, accepting and amending the decisions of the CSPB. The Review Boards decision set the precedent.

Graphs were provided of natural deaths in relation to average number of offenders in custody, those on medical parole and conditional placements. The policy consideration for parole were medical that included medical determination for maximum period, revocation of medical parole upon improved health conditions, conditions for release should include permanent stay in bed under 24hrs care and the capability of families to genuinely take care of loved ones. There was conditional parole that included application that could be made exceptional and the rule, a consideration body set up independent of government, defined community involvement in supervision and respect for roles and independence of the three arms of the state. The risks associated with parole included public concern about re-offending, the vulnerability of victims, public sense of injustice, diminished sense of security, inconsistent application of rules by the CSPB and allegations of undue influence.

Commissioner Petersen added that the latest information showed that since his last hospitalisation, Mr Shaik, was placed in the Intensive Care Unit (ICU) twice. Since there was no ICU within their own hospital facilities, it proposed a challenge.

Mr Zeblon Monoma (Area Commissioner: Durban-Westville: DCS) remarked about the difficulty that the DCS would have to access the actual medical details of Mr Shaik, precisely because of constitutional obligations, unless they were free to do so with the express permission given by the person or family concerned. Mr Shaik had been in hospital for most of his incarceration since sentencing. He has been kept at the Inkosi Albert Lutulhi Hospital for the past six months this year. In 2007 he spent five months in hospital. The cost incurred between the five months from last year up until July 2008 amounted to R219 650,50. They had not calculated further from the 2nd July. This costing was purely hospitalisation and did not include any other costs such as additional staffing and services.

Commissioner Petersen added that the explanation was given not to avoid direct questioning, but that there was a clear policy issue that needed to be addressed.

Discussion
Mr Selfe asked for a list of requirements that allowed those inmates to go on parole. He thought that the information would be useful.

Mr Motseki replied that a list of illnesses could be provided but that the names would be omitted from the list. Medical practitioners were very hesitant to give details. When the Committee received the information they should note these considerations.

Mr Selfe noted that one of the inhibitors in releasing offenders on medical parole was the public’s concern about re-offending. It came back to the question of how certain were they that those offenders would not re-offend. The Department did not provide enough skilled resources to the community corrections arm to ensure that people were correctly supervised. It did not help to have high profile parolees who flagrantly broke their parole conditions and parked in disabled parking bays and so forth and apparently nothing happened to them. This fuelled public concern that parole was a soft option. In that respect, a few months ago the Committee was briefed on some sort of tagging device. He would like an update on the tagging device.

Commissioner Petersen replied that parking in a disabled bay was not one the DCS issues and he hoped that it was reported to the relevant authorities. On the allegations about abuse of alcohol, he had spoken to the regional commissioner and they were dealing with it but there was due process that had to be followed.

Mr Motseki replied that there was an issue with the management of community corrections. They were running an audit of the offices and infrastructure of community corrections to make a determination of the ideal infrastructure and offices. They were also making an evaluation of the work that community corrections did in respect to monitoring, and how to optimise the personnel that they did have. They did not have a tool that would differentiate the most risk from the least risk and therefore they were not distributing the staff optimally. In terms of their project plan they would be done in November with the definition and specification of the business case of the electronic devices then they would make a determination about the methods of procurement. 

Mr Nkosinathi Nhleko (Regional Commissioner: DCS) replied that the issue of re-offending was a societal issue. They should try to lessen the conditions that created criminality. Once again it was a broader policy issue that would have to be attended to.

Mr Selfe respected what the Commissioner said about not delving into the medical condition of Mr Shaik. However, he would like to know if the prisoner had applied for release on medical parole.

Commissioner Petersen replied that they had received submissions from Mr Shaik’s lawyers based on medical reports provided by various medical practitioners both in the employ of the State and others. They did place more emphasis on what was being said by doctors in the employ of the State. On the basis of those submissions he had consulted with the regional commissioner and had come to the decision that Mr Shaik should get the applicable treatment. As the State there was an obligation to ensure that he was receiving medical treatment. They did not believe, given the definitional issues, that Mr Shaik was a candidate for medical parole.

Mr Nhleko congratulated the Committee on revealing critical issues in policy engagements. There was no standard to define the term ‘terminally ill’. Terminally ill had been linked to the assurance that one would die. It was further complicated by sections of the Act. He asked that the Committee ask him questions on perceptions on Mr Shaik and his illness in a different setting. The perception of Mr Shaik’s treatment arose from different circumstances. In KZN, natural deaths alone was a number exceeding 125, on average March and August, he processed four applications of offenders that wanted to be transported home after death. The challenge was to ensure that if a person was terminally ill there should be an instrument of intervention to ensure that the person died at home rather than in the DCS facility. The Committee received briefings on the capacity challenges that they were experiencing. It would be interesting research to compare what the policy and Constitution said on the matter.

The Chairperson disagreed that the subject of Mr Shaik should be discussed elsewhere. They should discuss it in the meeting as he was part of the other inmates.

Mr Nhleko clarified that they did not want to be seen as treating any inmate preferentially, just because it was a valid question did not make it factual.

Ms V Ngwenya (ANC) was concerned that families would not take in those that were medically dependent. It seemed as if the department was not doing their work effectively since there was no other mechanism.

Mr Nhleko replied that they should ask themselves what type of family rejected their own. There were fractured family units. They should not state that because they had this problem therefore medical parole system did not work.

Ms Ngwenya noted that of the 63 on medical parole only 13 passed in 2007. It did not give any assurance that policies were being implemented. She asked for clarification why the others were not passed.

Commissioner Petersen corrected the impression. It was 13 that had died, not passed for medical parole.

Ms Ngwenya noted that according the Victim Charter, victims had a right to be represented when offenders applied for parole and asked to what extent were the rights of victims being implemented.

Mr Motskei replied that they had finished building 11 parole boards offices. It was to ensure that the victims were taken care of. They had improved the Complainant Involvement Regulations. The difficulty had been the capacity to manage the involvement of victims. Therefore they were developing a business agreement whereby they could contract a service provider to provide that service on the DCS’s behalf.

Ms Ngwenya noted that it was the duty of the Committee to ensure that policies were applied nationally not only for Mr Shaik. If they skirted the issue for Mr Shaik then they could find themselves in trouble. He should not be treated separately.
 
Bishop L Tolo (ANC) wanted to know what was the difference between a seriously ill inmate and a very sick inmate.

Mr Nhleko replied that they were not able to state the difference because they were not equipped.

Bishop Tolo noted that Mr Shaik had been to ICU yet his name did not appear on the list for medical ill inmates.

Bishop Tolo asked if offenders, that had been released on medical parole and were receiving treatment, continue to receive such treatment even when they had been granted parole.

Commissioner Petersen replied that upon release, it then became the responsibility of the health care sector and included those that have completed their sentences.

Ms S Seaton (IFP) asked if they had their own medical specialist examine Mr Shaik.

Mr Nhleko replied that when Mr Shaik was admitted he was kept within the internal medical facilities and therefore had their own medical personnel attend to him. He was removed to the hospital because of their own internal challenges. It had to do with how certain issues were handled.

Ms Seaton had numerous complaints from people who had seen Mr Shaik roaming the gardens at Albert Lutulli hospital, smoking and unguarded. She was concerned that he was being treated differently. It was not something that they should be seen doing since he was a high profile criminal.

Commissioner Petersen replied that it might mean that he was responding to treatment. That was one of the difficulties they were facing that - given the nature of his illness - that might be part of his treatment. They could not respond to administrative issues based on public opinion. Many inmates were not sent to the facilities to die but to serve their sentence. He asked that they be allowed to do their work.

The Chairperson asked how many guards were guarding Mr Shaik at the hospital.

Mr Monoma replied that there was one guard per shift. They only placed two guards if the inmate was a flight risk.

The Chairperson commented that when he started the meeting that there was a lot of perception out their and that the Department was there to respond he did not agree that they were treating Mr Shaik different from other people. If it were the case then they would have visited KZN to see Mr Shaik.

Ms Seaton noted that she said that they should not be seen as treating him differently.

Mr Monoma added that policy dictated that an inmate usually had to serve half of his sentence before he was eligible for parole. Mr Shaik has not served half his sentence as yet. The question was if they kept Mr Shaik in hospital for the rest of his sentence until he reached eligibility for parole then the hospital bill could reach approximately R3 million. Another option was for Mr Shaik to apply for early release. They had to analyse which option would be the best. The doctors stated that they needed to consider medical parole, but it did not concur with the policy

The Chairperson noted that the fact that the doctors were recommending medical parole should be considered. The leadership had to take a decision. The Act was clear that if the doctor recommended medical parole how could the Department refuse that issue? If there was a problem in the Department then they should approach the Committee.

Commissioner Petersen thought that it had been a useful debate. The important issue was to listen and to note what was discovered. He reminded the Committee that the DCS was under severe strain for various reasons such as overcrowding, issues of HIV/AIDS and resource constraints. He believed that effective monitoring was part of building confidence in the correctional system. They needed to address some of the policy gaps. It was not a place for those who were chronically ill. They did find that courts often sent people to correctional facilities that were not suitable for those offenders as they had some form of mental illness. Perhaps it was a subject that the Department of Social Development should be involved in. People with mental illness were out there and committing crimes and were sent to facilities that were inefficient. Many inmates such as Mr Shaik who were chronically ill were not candidates for medical parole because of the narrow definition of the medical parole in their policy.

The Chairperson noted in the survey statistics that there were inmates who were not even aware that they were in prison. Inmates who were blind and paralysed.

Mr Xolo mentioned a blind inmate that, in his view, was not a danger to society and asked for the Commissioner’s comment.

Commissioner Petersen replied that if an offence was committed the consequences had to be faced. If there was a basis, such as mental illness, assessment needed to be made. The issue regarding family should be engaged on. He had had a meeting with staff of the office of the traditional leaders, that was postponed, to look at the issues of culture re-integration.

The Chairperson noted that medical parole was an important and sensitive issue that had to be addressed. He was pleased that the department had come to present on the difficulties that they were facing. They should not discriminate against any person. He was amazed that no one had raised the issue of financial implications. They needed to find a solution to the problem.

The Chairperson adjourned the meeting.