An urgent call for reform in the post-mortem process in custodial deaths (Part 1) — Eric Paulsen

OCTOBER 24 — It has long been established at common law that deaths that occur while a person is in the custody of the state are of particular concern as they occur behind closed doors and involve persons who are exceptionally vulnerable. All such cases must be investigated carefully and thoroughly, and the burden is on the detention authorities to account for the treatment of the deceased.

This is an urgent call for reform of the medico-legal death investigative procedure in cases of custodial death, as police lock-ups, prisons, and immigration detention centres must be a safe place for every human being and should not be turned into a potential crime scene. All such deaths are extremely serious and affect families and society. Custodial death strikes at the very heart of the rule of law and is one of the most heinous human rights violation imaginable.

Pathologists who conduct post-death forensic investigations and prepare the post-mortem reports have an obligation to ensure that their medical observations and conclusions are valid and do not breach the trust and confidence of families and society.

However, the lack of accountability in the preparation of the post-mortem report — which is the most crucial consideration, the deal-breaker in the investigating authorities deciding whether to treat the death as suspicious and criminal in nature — has allowed the detention authorities in some cases to dodge liability. Whenever such a case arises, it is not uncommon to find the post-mortem report citing ‘heart attack’ or other natural causes as the deceased’s cause of death — thereby exonerating the detention authorities from any blame even if there are injuries on the body and other suspicious circumstances.

Post-mortem irregularities in custodial death cases

On 8 February 2017, S. Balamurugan was found dead in police custody at the North Klang police district headquarters. The 44-year-old suspect had been taken to the Magistrate’s Court the day before for a remand order, where he was seen to be badly bruised, in a weakened state, and unable to walk. When offered a sip of water by his lawyer, he had blood flowing out of his mouth and nose. Upon seeing this, the Magistrate ordered Balamurugan to be released and taken to the hospital. However, the police took him back to the police station, where he later died.

The next day, the pathologist from the Tengku Ampuan Rahimah Hospital in Klang, Dr Kartini Md Arif concluded that the deceased had died from ‘heart problems’. After much public uproar and protest — and an application by the deceased’s family to the Shah Alam High Court — a second post-mortem was conducted at the Kuala Lumpur General Hospital, which concluded that the cause of death was ‘coronary artery disease with multiple blunt force trauma’.

A similar pattern of events may be found in the case of A. Kugan, arguably the most infamous custodial death case to date. On 20 January 2009, the 22-year-old died while in the custody of the Taipan police station in Subang Jaya. The initial post-mortem conducted by Dr Abdul Karim bin Haji Tajudin at the Serdang Hospital stated that Kugan had ‘22 categories of external wounds’ but concluded rather dubiously that the cause of death was acute pulmonary edema (fluid accumulation in the lungs).

Once again, after much public uproar and protest, a second post-mortem was conducted at University Malaya Medical Centre, which revealed Kugan had ‘45 categories of external injuries’, a wide range of internal injuries, and the cause of death was stated to be ‘acute renal failure due to rhabdomyolsis due to blunt trauma to skeleton muscle.’ In other words, he was beaten so badly until the skeletal muscle damage resulted in acute kidney failure, causing his death.

It should also be noted that Dr Abdul Karim, the pathologist who conducted the initial post-mortem was subsequently found guilty of professional misconduct by the Malaysian Medical Council for the preparation of the post-mortem report and was reprimanded.

Introducing accountability to the post-mortem process

Over the years, there have been many requests from deceased’s family for a second post-mortem to be conducted when the initial post-mortem report makes inexplicable conclusions that ignores the injuries and warning signs of the custodial death, and gives instead a natural cause of death.

It must be emphatically stated that this state of affairs cannot be allowed to become an established pattern. The protracted process in determining the true cause of death, the public outrage and the demand for second post-mortems — speak volumes of the credibility of the post-death forensic investigative procedure. It is also a waste of time and resources on all fronts, and unnecessarily extends the victim’s family’s period of grief and sense of injustice.

One way to maintain the integrity and credibility of the post-mortem reports is to subject them to an audit process as recommended by the UK Harold Shipman Inquiry (concerning a doctor who was convicted of murdering his patients in 2000, the Inquiry’s investigation of which prompted reforms of the coroners’ system including the death certification process). One could consider, the establishment of a panel of qualified doctors, who could be recruited on a part-time or sessional basis to act as second-level certifiers in dealing with custodial death cases. The panel doctor should also be from a different hospital to ensure that they are independent of each other.

Panel doctors may also be tasked to perform retrospective checks on documentation relating to custodial deaths. It is feasible, for example, to audit at least one death among the deceased of every prison, lock-up facility, and immigration detention centre, every two to three years, and up to 10 per cent of deaths occurring in each institution. Checks may be targeted, for instance, where certain institutions record an unusually high number of deaths.

One crucial issue revealed by the Shipman Inquiry was that pathologists were often supplied with inadequate information to allow them to place their findings in context. The Inquiry thus recommended that adequate background information about the death should be made available to the pathologist, who is also encouraged to liaise with the family of the deceased and persons who saw the deceased last. In short, the post-death forensic investigative procedure should be made in light of the surrounding circumstances, not just what is being told ‘officially’ has happened to the deceased.

*Part 2 will be published tomorrow (October 25, 2017).

**Eric Paulsen is the executive director of Lawyers for Liberty. LFL lawyers have represented the families of A. Kugan, Karuna Nithi and S. Balamurugan in civil claims and inquiries into their deaths.

**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.

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