Mr Nqconde Balfour, MP
Minister of Correctional Services
Room 443, 4th Floor
120 Plein Street
CAPETOWN
8000

Dear Minister,

REPORT ON DEATH: OFFENDER "MM" 6 AUGUST 2006 - DURBAN MED B CORRECTIONAL CENTRE

1. The Correctional Services Act (hereinafter referred to as the "Act") more particularly section 15(2), places an obligation on the Department of Correctional Services (hereinafter referred to as "DCS") to report any death of a prisoner to the Inspecting Judge of Prisons who may carry out or instruct the Commissioner of correctional Services to conduct an enquiry.

2. In pursuance of its obligation i.t.o. of s15(2) the OCS reported to the inspecting Judge of Prisons Mr MM's death on 7 August 2008. It subsequently provided its report to its investigation into the death on 19 October 2006, having earlier transmitted a facsimile parts of which were illegible.

3. The OCS investigates all prisoner deaths in terms of its internal policies, in casu, "Correctional Services Order 5 Chapter 3", which policy's objective is to ascertain, determine and establish the circumstances surrounding the death of a prisoner. The report consists, inter alia, of Mr MM's medicine prescription chart (form G 335(a)), medicine prescription chart (form S 3359b), medicine administering control chart (form 335C), pathology report(s) by Lancet Laboratory, TB Laboratory reports(s) by King Edward Hospital, radiology reports by Lake Smit and Partners, records both administrative and medical, relating to the application for Mr MM's consideration for release on parole on medical grounds and various other ancillary records.

4. The Treatment Action Campaign (hereinafter referred to as the "TAC") and Aids Law Project (hereinafter referred to as the "ALP") made written submissions to the Inspecting Judge of Prisons and to the South African Human Rights Commission (hereinafter referred to as the SAHRC) to investigate Mr MM's death on 29 August 2006 and further submissions on 4 September 2006, with a request to investigate the possible culpability of the national Ministers of Correctional Services and Health and their respective responsible officials as well as the Members of the Executive Council for Health in Kwa-Zulu Natal and her respective responsible officials. The request also included an investigation of various other matters not dealt with in this request.

5. The TAC and ALP'S written submissions include Mr MM's medical records, papers filed in the Durban and Coast Local Division of the High Court of South Africa in the matter of EN and others v the Government of the Republic of South Africa and others with Case No. 4576/2006 in which Mr MM was the seventh applicant and copies of correspondence between the ALP and the various officials of the Department of Correctional Services.

6. In the TAC/ALP submission of 4 September 2006 Dr Graeme Meintjies, a Consultant Physician at GF Jooste Hospital and lecturer at the Department of Medicine at the University of Cape Town, provided a report on the medical records of Mr MM‘s for the period 27 March 1997 until 11 December 2005.

Due to the volume of the documents received and the follow-up information to be obtained there has been a delay in the finalization of this report.

Introduction

The report by Dr Meintjies gives a chronological list of events from 27 March - 11 December 2005. The investigation report and the contents thereof provides the chronological events up to the 6th of August 2006. What is apparent from these reports is the following:

a. The late Mr MM was serving a sentence of life imprisonment at Durban Medium 6 having been sentenced on 23 March 1997. He passed away on 6 August 2006. The medical certificate indicates the cause of death as respiratory failure and the underlying cause of renal failure. It is important to give the full medical history of the offender.

The following is a chronological list of medical events that are recorded in his medical notes:

Mr MM was initially seen on 27 March 1997 and was noted to be well.

On 6 May 1998 he was noted to have had 3 months of bilateral earache and discharge of pus from his ears suggestive of chronic otitis externa (ear infections). He repeatedly presented with this problem over the next year.

On 4 August 1998 he was diagnosed with piles.

Pulmonary tuberculosis was diagnosed in 2000. Sputum microscopy smears and cultures for TB were positive and he was treated with 9 months of TB treatment from 7 June 2000 until 11 May 2001.

On 28 March 2001 he was noted to have eczema involving his cubital fossae (inside of elbows) and buttocks.

On 21 January 2002 he presented with oral candidiasis (thrush). There is a note hat he was "requesting blood test for HIV". This was performed on 23 January 2002 after pretest counselling and the result was positive. There is a note that he received post-test counselling on 25 March 2002 and a high protein diet was ordered. He had recurrent episodes oral candidiasis in the years thereafter.

On 12 September 2003 pulmonary tuberculosis was again diagnosed (TB was cultured from his sputum) and he was recommended on TB treatment.

On 26 November 2003 pulmonary tuberculosis was again diagnosed (he was noted to have oral candidiasis with complaints of "retrosternal pain and pain on swallowing"). This was treated with itraconazole.

On 16 November 2004 a CD4 count and HIV viral load were performed. The results were:
o C04 count = 87 cells/u1 (normal = 800-1500)
o HIV viral load= 171 000copies/mI

During 2O03, 2004 and 2005 he was repeatedly attended to with multiple HIV related complaints including oral sores, oral candidiasis, septic sore on his buttocks pubic area. and limbs1 rectal discharge, fungal rash, painful feet and cellulitis.

On 13 January 2005 he was treated for a psychotic episode ("patient is making a Id of noise as if he sees that we do not see'). It does not appear that this reoccurred.

Pulmonary tubercolisis was diagnosed for the third time in January or February 2005 (the exact date is not stated). He was recommenced on TB treatment and remained on TB treatment until 2 September 2005.

There is a comment on the day he completed TB treatment that his chest X-ray showed chronic changes, presumably reflecting TB lung damage.

There is an official referral letter dated 9 December 2005 to the McCord's Hospital ARV clinic.

In December 2005, he was recommended for ARV therapy, however the institution that was supposed to treat him, being McCord Hospital declined to do so. Even though it was indicated that he needs treatment on 28 February 2006, the offender applied to be treated by a private practitioner of which application was approved. Whether he was treated by the private practitioner is not apparent from the documentation.

Enquiries by the staff of the Judicial Inspectorate of Prisons could also not take this further.

Various delays before the onset of treatment occurred whilst litigation between the offender and the Department continued, it seems that besides the delays his medical condition was also of such a nature that the onset of treatment was not possible due to secondary infections. It was only in early July of 2006 that treatment on ARVs was started. By then it was apparent that his condition had deteriorated to such an extent that it has become irreversible. He was hospitalised in the Durban Medium B prison hospital for 61 days and the King Edward Hospital for 6 days. He developed Hepatitis B and Tubercolosis. The Department of correctional Services had then put into motion an application for medical release. This was recommended and forwarded to the office of the Minister of Correctional Services for finalization. However, before a decision could be made, he passed on.

Evaluation

The questions thai arises are whether:

a. the death was preventable
b. medical treatment was in accordance with the legislative framework
c. any person or institution contributed either by a commission or omission to the death.

a. Was the death preventable?

This is a difficult and highly complex question to answer in that the effectiveness or not of ARV treatment is at issue. If we accept that a comprehensive treatment regime for HIV/Aids could prevent death if started early enough, will prevent death or prolong life then the questions raised whether in this case the treatment was started early enough. There is no clear policy as to the extensive testing of offenders and it remains a voluntary process. On the facts the inmate only elected during 2002 to be tested which results were positive. It is not clear whether the onset of other infections prevented the introduction of a treatment regime or whether external factors played a role. Having regard to the comments of Dr Meintjies on the National Public Sector ARV programme one can safely assume that he would have at least qualified for ARV treatment during 2003. He was constantly ill with opportunistic diseases that could have delayed the activation of ARV treatment. The apparent refusal of the designated hospital seems to have contributed to the non-treatment of his condition. At a later stage an appointment was missed and medical reports misplaced. This could have impacted negatively on the humane treatment of the offender.

Whilst it is so that the Department of Correctional Services had facilitated he treatment, the hospital responsible, inter alia the McCords Hospital and the facts of the appointment and misplacement of records should be investigated. Having said this, it is still not clear in my view that this had contributed or has caused the early onset of death.

b. Medical treatment was in accordance with the legislative framework

DCS has a duty to facilitate medical care for offenders and should be sensitive to particular needs. It seems that the offender was given access to the primary care at the facility as and when it was needed subject to re comments I made above. A worrying factor remains as to what followed on the request for private medical treatment and the conduct of the Department of Health at their facilities. I however have no mandate to deal with the Department of Health.

An anciIIary aspect is also the medical parole and although the conduct of the officials in promoting the parole is commendable, it seems that the process is cumbersome and time consuming and might have to be reconsidered in its application.

c. Any person or institution contributed either by a commission or omission to the death.

To answer the third question will depend on ones view of the topic discussed under (a). It must be acknowledged, unfortunately so, that the final diagnosis was made at a very late stage after its apparent onset. The offender presented with a myriad of medical problems and without fully investigating the connection between the collective diagnosis and treatment. It is impossible to conclude whether any of the actions or omissions above contributed to the ultimate death. The :correspondence and affidavits in the High Court matter of EN points to various practical obstacles that were encountered at this time in the implementation of policy as this is the subject of litigation. I will decline to express an opinion on the merits thereof. The facts of this matter raise a few fundamental questions that I address hereunder in the recommendations I make.

Recommendations

1. Healthcare and more particularly the HIV/AIDS issue should be addressed on a collective basis with all the relevant stakeholder and the accreditation of correctional centres to deal therewith could be of assistance. This should be addressed as a matter of extreme urgency. The success depends largely on the willingness of other government departments and agencies to cooperate and assist.

2. The awareness of and the responses to the H1V/AIDS pandemic must be raised within the Department of Correctional Services

3 Access to medical treatment must be promoted as a matter of priority more particularly a process of counselling and testing should be promoted in order to effect early detection. Whilst it is a difficult issue to debate some form of extended testing with the necessary safe guards being built in could be promoted. The challenge that the Department of Correctional Services will continuously find is the non disclosure of a medical condition and how to apply the appropriate response thereto. This does not only relate to medical treatment but the general treatment of offenders.

4. The legislative framework relating to medical releases must be revisited.

With best regards
NATHAN ERASWIUS
Inspecting Judge of Prisons

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