Unhealthy justice: it could be you

 Speech given by Nooshin Erfani-Ghadimi:

Public Interest Law Gathering 2013

Health and Vulnerable Populations Panel: Health Management in Police Custody and in Remand

11 July 2013

girl behind bars


I want to tell you about the Leping family. The Wits Justice Project first met sisters Josephine and Margaret Leping in February last year. They came to tell us about their brother, Bobby. He had been acquitted and released from prison, but he was dying. They told us of their elation when they had heard that Bobby was finally being released. But their elation had quickly changed to desperation as they entered the prison compound to pick him up.

Josephine said: “He passed out on a patch of grass in front of Pretoria Local Prison. He was thin, his skin was yellow and he had a rash all over his face. A stranger had watched over him until we arrived and told us he was still breathing. Our brother went into prison a healthy man, but he came out deadly sick. He was innocent and should never have been imprisoned in the first place.”

Their brother died two weeks after his release.

Bobby Leping was sentenced in 2009 and acquitted in 2012 of possession of illegal firearms. The police were called to a family tiff and they found a gun behind his TV set. On appeal, his lawyer proved it was not his gun and all charges were dropped.

“Bobby didn’t have to die,” said Margaret. “He had a curable disease. No one will tell us how he contracted TB.” So, Josephine and Margaret decided to visit Pretoria’s Local Prison to find out what had killed their brother.

It was not hard to imagine disease spreading through that overcrowded prison, the sisters said. Clothes and towels hung from bedposts and windows in the communal cells, where it was common for three men to share a bed, and some ended up sleeping on the floor. One toilet was shared by 60 men.

Bobby told his family that everyone in his cell was smoking and coughing. Soon, he himself was coughing blood. He lost a lot of weight and at one point could hardly walk. Finally, Bobby was admitted to hospital for treatment. His health improved but a few weeks later he was sent back to prison, where his health relapsed. “He was really scared. I told him to have faith in God. There was not much else I could suggest,” said Josephine.

When his request for medical parole—which allows terminally ill inmates to die in peace and dignity in their homes – was also rejected, his lawyer successfully appealed his sentence. But by that time it was too little too late.

I wanted to share the story of the Lepings with you today because it is a typical story, of what happens to thousands of people in our systems. Tuberculosis is listed by the Judicial Inspectorate as the biggest killer in our detention centres. I am sure my colleagues on this panel will talk about TB in particular today and with a lot more expertise than I have.

But I want you to imagine that you are wrongly arrested, just like Bobby was. Just say that you, like most of us, have some kind of medical condition: diabetes, high blood pressure, HIV or TB. What are the safeguards for your health whilst you are in custody and awaiting your bail outcome?

If you are lucky, if you are rich enough to afford a lawyer who will come to the police station in the middle of the night, or on the weekend, you never have to find out.

But if, like the majority of the people in this country, you cannot afford your own private lawyer, or you need to wait a few days for your family to scrape together their savings to pay outlandish fees for one, then you are stuck in police custody until your bail hearing.

And sometimes, the bail hearing itself takes time to be finalised. Sometimes, the police will ask the magistrate for postponements, because they need to verify your address, for instance. And back into custody you’ll go for another week.

And in the meanwhile, you haven’t had access to your diabetes medication, your heart pills, your ARVs. If you are lucky, your family members will try and get your medication to you. But often, they can’t. The Wits Justice Project receives many requests for assistance from people who were denied or not given access to their medication whilst in police custody. The health impacts of not having prescribed medication for any period of time are evident, leading to deterioration of the condition and even death.

The 2011/2012 report of the IPID – the Independent Police Investigative Directorate – said that there were 932 deaths in police custody, a figure which has risen dramatically. For example, there were about half that many deaths – 408 – over two years in 1997 and 1998.

For an excellent analysis of deaths in police custody, I recommend the CSVR report entitled “A lonely way to die”[1], co-authored by Amanda Dissel and Kindiza Ngubeni. Although it was written in 1999, its detailed look at a sample of reported deaths gives us a better understanding of what could be going wrong.

They identified 3 broad categories into which deaths were reported: deaths as a result of the deceased’s own action; deaths as a result of the deceased’s medical condition; and deaths where another person’s actions may have been associated with the death. This latter category includes possible injuries pre- and during arrest.

In analysing the cases, the authors looked to see if officers knew to look for indicators of possible suicidal intentions, mental health issues, or indeed indicators of physical illness.

Part of their description of the issues is as follows:

Although there are obviously occasions when people die suddenly and without warning, in most cases there is some indication that a person is not well. If he is sufficiently fit, mentally and physically, the detainee should be able to advise the police of his situation, and obtain medical treatment. It is also disconcerting that the police may mistake a prisoner’s apparent drunkenness, or the fact that he is acting ‘mad’ for a real problem with his health, or a head injury.

One of their recommendations picks up on the issue of capacitating officers to be able to identify mental and physical health issues. They say:

The SAPS must develop procedures, or instruments to identify people who are at risk of harming themselves or others. They should also become aware of symptoms of illness or injury, and make careful note of them. Part of the screening process is placing greater emphasis on complaints or statements made by the detainee that would alert the police to this risk factor. Once these instruments have been developed, the police should be trained on their implementation.

This issue of health screening is a vital one facing those who continue on in the correctional system, as remand detainees. That’s what happens to you if you are not given bail, or you cannot afford to pay your bail. You are taken to a remand detention facility to await the conclusion of your trial. About a third of South Africa’s prison population – that’s approximately 45,000 people – are in remand detention.

One of the major factors contributing to the high number of remand detainees is the unreasonable delays in bringing trials to a conclusion. The Wits Justice Project has written a series of articles highlighting the various ways in which such delays occur, including arbitrary arrests by the police, unreliable chains of evidence, missing files, dockets and transcripts, over-stretched court resources, and unnecessary postponements and adjournments.

And these kinds of delays lead to our prisons being unable to cope with the numbers. In 2011 the average level of over-crowding in South Africa’s correctional centres was 137%.  and 18 centres were overcrowded by 200% or more.

This is why putting resources into proper health screening of new remand detainees is important, especially if we want to impact the spread of communicable diseases.

The screening must be thorough and it must be rapid. There is not much point in being taken out of general population because you tested positive for MDR-TB on your admission two weeks ago. The infection has already had the potential to spread in these typically overcrowded settings.

But it is easy to say that “every inmate should be screened within a few hours of admission”. But do we have enough medical personnel and resources to carry out this vital task? From what the Wits Justice Project has seen and been told, we don’t. Often the nurse-inmate ratio makes it physically impossible for that nurse to screen every new inmate, and provide ongoing medical treatment for other inmates at the same time.

We have been told of “hospital” cells which are completely under-resourced, with no equipment or medicines on hand. One inmate told us that he would rather die in his overcrowded cell than be taken to the hospital cell because there are rats there.

There are two other issues I want to bring to your attention: addiction and mental health.  People who are in detention face unique mental health challenges. They may have had some form of mental illness before their detention, but even the most robust mind is challenged by being incarcerated. A study by the World Health Organization showed that that those in remand are more prone to committing suicide than convicted inmates, due to “confinement shock” a sense of hopelessness and because of the violence and rape they are now exposed to.

Whether you have a mental illness at the time of your detention, or you develop one as a result of incarceration, we need to have systems in place to identify and manage the illness. We need to train our correctional services officials, including non-medical personnel, to be able to identify risk factors and symptoms and be able to provide some form of assistance.

And what about inmates who are addicted to drugs and are forced to go into sudden withdrawal? The physical and mental dangers of unsupervised and sudden withdrawal is well documented, and it affects not just the inmate, but those around him. Just last week the Wits Justice Project was told of a heroin addict cutting his own throat, in a communal cell, as he went through withdrawal in his 6th day of detention.  Again, proper identification and handling of addiction needs to be implemented in our detention facilities.

The issues I’ve highlighted here today are not easily resolved. But they do point to the need for a rational, independent, expert analysis of health management in the criminal justice system as a whole. We need to try to understand why our existing health management laws, guidelines and procedures do not work, despite being – for the most part – quite thorough. I believe we will find that what we need is a change in mind-sets, rather than more or new sets of rules.

Thank you.


About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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