GOVERNMENT PROPOSALS FOR REFORM

Medico-legal services are necessarily linked to the state provision of health care services generally. Health care in South Africa, like all other aspects of life, was historically arranged to benefit the white population the most, with South Africans of purely African descent at the bottom of the heap. This legacy is a difficult one to overcome: services currently enjoyed by a small section of the population cannot, for financial reasons, be extended to all; yet the government is committed to ending the extreme inequality of access to health (and education, welfare, legal, and other) services that characterized the apartheid state. The policy debates over medico-legal services reflect this dilemma.

With the coming of a new, democratically elected government in April 1994, South Africa's four provinces and ten homelands were rearranged into nine, geographically logical regions.119 The allocation of responsibilities between provincial and national government is set out in the constitution, which provides that health services are designated one of the "Functional Areas of Concurrent National and Provincial Legislative Competence."120 In practice, the division of responsibilities is that health care policy is set at national level, but service delivery is organized at provincial level. The different provincial administrations are at very different points in their efforts to reorganize medico-legal services (and health services in general).

National Level

At the national level, a "proposed" national policy on medico-legal services was published by the Department of Health in September 1996.121 The "draft document" concentrates very heavily on the medico-legal investigation of death, at the expense of clinical medico-legal services related to the living - of eleven pages dealing with the proposed organization of a new medico-legal service for South Africa, for example, just over one refers to the examination of live rather than dead patients. While not wishing to deny the importance of the arrangements for control of mortuaries and carrying out of post mortems, clinical medico-legal services deserve the same attention and should not be regarded as less important.

With respect to clinical forensic medical services, the document proposes that district surgeons - discredited over many years because of their failure, for example, to speak out in cases of police torture of political activists - be renamed, probably to become district medical officers. Its recommendations for the reorganization of these services state (in their entirety) that:

Clinical forensic medical services and ex officio duties should be rendered on a provincially organized basis by the same doctors who render primary health care services. All the functions are of a clinical nature and should be easily accessible and available to patients at the nearest primary health care centre or hospital. This includes clinical forensic medical services such as the examination of victims of rape, child abuse, assault and so forth, as well as clinical ex officio duties such as assessing a person's fitness to stand trial, clinical care of persons in detention, and so on. The examination of victims and the accused should take place in appropriate premises, preferably in a primary health care facility.

There is no question that these medical practitioners must have special training in assessing and caring for the above cases. The clinical evaluations of cases and inevitably the subsequentinvolvement in judicial proceedings, require particular skills and experience. Shortcomings in the physician will be ruthlessly exposed by the judicial process, to the detriment of the physician and justice in society. Possibly worse, it can even cause a miscarriage of justice and implicating innocent persons in crimes they did not commit. Physicians will be under great pressure in this regard, since these cases are usually time-consuming and require utmost diligence in examination procedures and note-keeping. Furthermore, a high percentage of these cases result in complaints being lodged with the Interim National Medical and Dental Council of South Africa. It is therefore not surprising that there is a reluctance in clinicians to render these services, which may in itself present very real problems at this interface.

Teams consisting of doctors, nurses, social workers, rape crisis workers, psychologists, and so forth, should be involved in the management of the above cases. As this is such an important topic, all students in the mentioned fields should be exposed to district medical practitioners as they currently lack the latter inputs in their training.

In the United States of America the shortage of suitably qualified and interested medical practitioners has resulted in authorities using Forensic Nurses to examine cases of rape, assault and child battering, and even persons suspected of driving under the influence of alcohol. In addition to bringing the service closer to the community, in some of the cases, especially child abuse cases, nurses have more success with the children than the doctors. It must be emphasized, however, that this is a specially trained group of forensic nurses.

A warning must be sounded that the implementation of the clinical forensic medical service as set out above, i.e. being rendered by all medical practitioners involved in primary health care services on a sessional and full-time basis, and even nurses, will most probably lower the current standard of work acquired over many years of rendering the service by designated medical practitioners (district surgeons). When this (new) system is implemented, all available doctors will participate and it will take years for them to develop the expertise most district surgeons already have. This view is supported by the Public Service Commission, the Attorney-General of the Eastern Cape and the Head of Forensic Medicine at Medunsa. The new incumbents of clinical forensic medical services will have to be trained as a matter of dire urgency.122

Although the document recognizes, briefly, many of the problems with the existing system and proposes alternatives (acknowledging some disadvantages associated with them), it has not (possibly because of the composition of the committee that drafted it, which was dominated by forensic pathologists rather than district surgeons) fully engaged with the demands of a successful clinical medico-legal service. Even though the basic framework proposed for the reorganization of medico-legal services - that is, that they should be rendered at all primary health care facilities - is highly desirable, the danger is, as the document acknowledges, that the effect may be a deterioration rather than an improvement of services to those who have been assaulted and need medico-legal examination to pursue their case in the courts, unless safeguards are built in to prevent this from happening. Yet, while the document makes detailed proposals for specialist structures for the medico-legal investigation of death (admittedly not a function for which accessibility to communities is such an issue), it has not made equally detailed recommendations to address the problems facing clinical medico-legal services, and in particular clinical medico-legal services in a transition period before adequate numbers of trained practitioners are available to provide services at primary health care level.

The state must improve accessibility to medico-legal services if it is to fulfill its responsibilities to ensure that the criminal justice system responds effectively to violence against women. Primary health care facilities, the most accessible part of the health care system, are logical places to locate these services. But a simple decision to move medico-legal responsibilities to primary health practitioners cannot be the whole answer. Medico-legal services are specialized, and the skills and knowledge needed are different from those needed by general primary health care practitioners. Moreover, because of the lag time between examination of a complainant and the appearance of a case in court, there is a strong need for stability of staffing; a stability which will not necessarily be available in primary health care facilities likely to be staffed by junior medical practitioners. The training of specialist forensic nurses might address the question of staff stability, but time would be needed to investigate the possibilities for such training, and then for qualified nurses to be trained. There is a need to revisit this issue, with wider consultation among current service providers and users, to ensure that the proposed reforms do not "lower the current standard of work." As this report has argued, there is rather an urgent need to improve the current standards of service as well as to make the service more widely available.

The proposed policy also fails to consider the issues surrounding the medico-legal treatment of violence against women, or indeed other gender- or race-specific questions such as the predominance of white male doctors practicing as district surgeons. Violence against women (indeed violence generally) is a public health issue as well as a legal one. Specific knowledge and skills are necessary for doctors who examine or treat women who have been abused by their partners or sexually assaulted. In particular, doctors need training in the types of injuries that may result from rape, including the most subtle injuries that may disappear after a few hours, and the appropriate treatment; they need training to be aware of the psychological consequences of sexual assault and to ensure that the examination does not cause further trauma; and they need information on referral services, such as women's organizations offering counseling. The national policy document should consider some of these issues in order to devise the best ways of ensuring that such training and information are given to doctors engaged in medico-legal practice. Additionally, recruitment practices and conditions of service should be examined in order to consider ways of increasing the number of women doctors, black doctors, and doctors speaking African languages in medico-legal practice.

In April 1997, the government published a "White Paper for the Transformation of the Health System in South Africa."123 The white paper does not include a section on medico-legal services, nor does it mention violence against women - or violence generally - as a health issue. The section on "Maternal, child and women's health" concentrates on the provision of health services to children and mothers, rather than to adult women (apart from reproductive health).

Provincial Level

Even as the national policy debate is continuing, individual provinces, responsible for service provision on the ground, are proceeding at different speeds to introduce reforms in practice. Since reforms are urgently needed, it is difficult to insist that their implementation wait for the national consultation process to be completed, but the effect may be to introduce conflicting policies at the provincial and national levels. In most provinces, the individuals in charge of medico-legal services within each department of health do not have specific medico-legal experience and are therefore not aware of the particular problems and difficulties that have faced medico-legal examination of death and assault under the previous policies.

There are exceptions to this rule. In KwaZulu-Natal, the director of forensic services is herself a forensic pathologist, who is also committed to reform of clinical medico-legal services. The provincial Department of Health is aiming to create "one-stop" centers throughout the province attached to hospitals and community health centers, where clinical medico-legal services will be offered. These centers would have an independent registration process,be open twenty-four hours, and have a range of professional staff permanently available, including a district medical officer and a police officer, with gynecological and pediatric services on call. There would be bathing facilities and a room which could be used for an overnight stay if necessary. Both examination for legal purposes and treatment for any medical condition would be offered. The province will be divided into six districts for medico-legal purposes (corresponding with the police and justice districts), each to have the services of a forensic pathologist (ideally)124 and a clinical forensic medical officer, who should form a committee with representatives of the police, justice department, and NGOs in order to coordinate services in each district. In urban areas, trained forensic medical officers will deal with rapes, assaults, and some post mortems, although in general post mortems will be assigned to specialist forensic pathologists. In rural areas, it will not be possible for all health facilities to have medico-legal services, but the aim is to make such services more accessible than at present. The exact number of "one-stop" centers will be determined once plans are further advanced. Curricula for training both nurses and doctors in clinical medico-legal practice are in development at the University of Natal, as well as courses in forensic medicine for law students. A provincial forensic biology laboratory is also being developed at the University of Natal, to take over from the police laboratory beginning in 1999.125

In Gauteng, the province including the major urban areas of Johannesburg, Soweto, and Pretoria, 1997 has seen rapid advances in planning and implementation of an improved medico-legal service. In order to improve accessibility of medico-legal services, the number of district surgeons, now under new contracts as district medical officers, has been increased greatly, and all district medical officers provide services at designated clinics, which are open on a twenty-four hour basis, rather than at private doctors' surgeries as was usually the case before. Detailed protocols have been developed for distribution to district medical officers to assist them in conducting medico-legal examinations and referring patients for assistance elsewhere. Training of the new district medical officers, whether or not they were previously district surgeons, has also commenced, including lectures by expert medico-legal practitioners brought to the clinics where the doctors and nurses involved in medico-legal practice are working.

One of the problems faced by the government in the process of reform is the status of the existing contracts held by district surgeons. The current incumbents have strongly resisted the idea of restructuring, especially district surgeons in rural areas whose income depends largely on the state work. While resignations have been negotiated in many cases, with the commitment to rehiring under a new system although not necessarily on the same terms, in other cases contracts have been unilaterally terminated by the provincial government, and court cases have resulted.