Shaik down

Convicted fraudster Schabir Shaik has been re-arrested, according to news reports. He was released on medical parole in 2009 after being convicted of fraud and corruption and jailed for 15 years. The dust just won't settle on the issue of Schabir Shaik's early release on medical grounds. Why the ongoing furore?

The ongoing debate on Schabir Shaik's release on medical parole means only one thing: the grounds for medical parole need urgent clarification, according to CyberShrink.

Understandably, there's widespread concern about the early and sudden release from prison, on what were claimed to be impeccable medical grounds, of Schabir Shaik, convicted of fraud in a highly politically charged matter.

Predictably, the matter was being handled really badly at the time, and so as to produce the maximum negative effects in all directions.

And now, several months later, the matter has flared up again, after Shaik was seen driving around Durban, apparently in good health.

Why all the suspicion?
There are so many really obvious reasons for people to suspect that the release was originally engineered for political convenience or out of favouritism, that rendering the process transparent would be to the benefit of everyone: the government, the prisons system, other prisoners who may seek and deserve a medical parole, the three doctors who apparently signed the recommendations (who have subsequently been cleared) and, perhaps most of all, Mr Shaik himself.

If he really is as grimly and perilously sick as these doctors originally said, he deserves to have all nasty suspicions laid to rest, and be left, for the rest of his apparently greatly shortened life span, in peace.

Patient confidentiality not justified
At the time of his release, it was being defensively argued that though his release was on a "medical parole", the content of the medical documentation and recommendations had to remain wholly secret in order to protect patient confidentiality. I very strongly disagree.

If you are sick, under normal circumstances, the details should properly remain confidential between you and your doctor(s) and anyone else with whom you may choose to share the information. That's fine. But when you insist on claiming very special and rare privileges on the basis of your precise health condition, this absolute confidentiality must fall away.

If you want to be boarded from your work, you are required to reveal details of your illness, treatment, disability and prognosis, and submit, if requested, to examination by an expert hired to ensure that everything is as you state in your application.

No secret mitigation pleas
Much more relevantly, if you are engaged in a court case, convicted of a significant crime, and you wish to raise your state of health in mitigation of sentence, to ask to receive a lighter than usual sentence, or even to evade a jail sentence, you have absolutely no right to privacy.

You have to provide all relevant evidence to court, open to reporters and a filled public gallery, and if necessary, your experts must not only reveal their identity and the reasons for their recommendations, but be subject to a fierce cross-examination by the prosecutor, with the assistance of other experts hired to examine the evidence and to challenge the recommendations if this is reasonable.

Surely exactly the same should apply to a medical parole, which is so very analogous to a medical argument in mitigation of sentence.

Essentially, when the health card is played in prison, the system is being asked to overlook the crime and the sentence imposed after a rigorous legal process and in public/open court, and to lift the sentence and set the guilty person free. This should never be done secretly, but should be as open to public scrutiny as the same arguments would have been had they been raised in court.

One may consider it very highly suspicious that neither Mr Shaik's blood pressure nor any other health matter seems to have been considered important in this context until after his conviction and sentence, and after the opportunity for cross-examination had passed.

Luxury hospital vs jail
Soon after reaching the prison, it was announced that his health was seriously compromised by captivity and he was transferred to, and spent a long time in a luxury hospital rather than in jail. When he was released, he had spent 220 of his 304 prison days in hospital.

One has to wonder why such a serious medical condition and state of physical fragility would not have been discussed during the trial when it would have been open to expert challenge, and why it was revealed only when it was highly convenient to do so without fear of contradiction. He surely did not only develop blood pressure problems only after reaching prison.

To avoid the proper scrutiny of such claims for clemency on medical grounds simply by crafty timing would surely be improper.

There are many brilliant and honourable doctors, but many who are both less brilliant and less honourable, and whose opinion is presumable readily swayed by a suitable fee. When their opinions are not open to proper expert analysis and cross-examination - it is not reassuring that a minister or other political appointees have satisfied themselves that everything is in order. They are not qualified to assess the weight of medical evidence, or even to decide whether the three doctors were sufficiently expert or objective.

HPC gets involved
The Health Professions Council investigated the conduct of the doctors concerned, but in a manner that was itself be secretive and beyond scrutiny, and apparently with carefully limited range. It looked more like the sort of investigation designed to put an end to complaints, rather than to be sure of finding all the relevant truth.

We have not even been told what the exact medical condition or conditions are which form the basis of this parole.

• Depression, which was mentioned earlier in his hospitalisation, cannot be relevant here - it is not in itself fatal, it can be competently treated in jail, and the risk of suicide should be much lower in a high-profile prisoner than in the same person at home.
• Hypertension. Well, there are indeed some forms of what was called malignant hypertension, which are resistant to treatment, and do indeed raise the risk of death from heart attack or stroke. But that too can be treated as well as it can be, in prison, and it's hard to see how the risks would be any lower if the patient were released and went home. Such risks, and this disorder itself, is not caused by merely being upset at finding oneself in jail, nor relieved by release from prison.

If the requirement for a medical parole is literally a terminal illness, with no chance of survival beyond a few months, this could apply to a number of forms of cancer, but not to high blood pressure. Even with severe malignant hypertension, a person might live for years. If the requirement is that the person suffers a disease recognised as terminal and to be in the final phases of that disease, I don't see how that could apply to hypertension.

Mr Shaik spent lengthy periods in hospital both before and after his conviction. A deteriorating blood pressure problem, and 'suspected organ failure' were variously given as explanations. It was interesting to note, however, that Discovery Health, the medical scheme to which he belonged, apparently failed to cover the costs for his stay, saying that they would only cover what was 'clinically appropriate'.

Someone with malignant hypertension and near death, would surely not be allowed to wander to the hospital coffee shop, nor to eat unhealthy take-away food, rather than a proper dietician-supervised diet.

Shaik up
It is perfectly clear that the majority of seriously ill people in South African prisons do not receive the specially privileged treatment Mr Shaik has received, nor is a medical parole so readily available to them.

It is also clear that the rules and regulations and procedures relating to such paroles must be reviewed, clarified, and the process be rendered more transparent, fair, and justifiable. If this happens, then in his odd way, Mr Shaik may at last have made a significant contribution that benefits South Africa.

(Professor M.A. Simpson, aka CyberShrink, Health24, updated March 2011)