An urgent call for reform in the post-mortem process in custodial deaths (Part 2) — Eric Paulsen

OCTOBER 25 — This is the second and final part of the opinion piece on custodial deaths by Eric Paulsen:

Are Malaysian pathologists trained to ‘think dirty’?

It is important to note that the Shipman Inquiry uncovered amongst coroners and pathologists, an ‘attitude that it will be to everyone’s satisfaction if a cause of death can be found that will enable the coroner to certify the cause of death without further delay, cost or inconvenience’, and ‘it is easy to see how this attitude can become entrenched.’ To counter this, the Inquiry recommended that pathologists should be instructed and trained to ‘think dirty’ — that is, not to approach each death with the expectation that there will be ‘something wrong’ but to keep in mind the worst possibility and actively look out for signs of non-natural death.

Do pathologists in Malaysia need instructions to ‘look out for signs of non-natural death’ though? The extraordinary post-mortem findings of some local custodial death cases lead one to question either the competence or the integrity of our pathologists. Take the case of Karuna Nithi, 42-years-old, who died in custody of the Tampin police station on 1 June 2013, in which the pathologist, Dr Sharifah Safoorah of the Tuanku Jaafar Hospital in Seremban, had concluded that the deceased had died of fatty liver change despite noting the 49 injuries on the corpse and his mild liver disease. Fortuitously in January 2015, during an inquest into his death, the Coroner rejected the post-mortem findings and held that the deceased’s cause of death was due to acts and omissions of lock-up inmates and also policemen.

The case did not end there. The Public Prosecutor subsequently requested for the case to be re-opened and introduced purported ‘new evidence’ of a report by a committee of six pathologists who were commissioned by the Ministry of Health to ‘review’ Dr Sharifah’s post-mortem report. In its report, the committee concluded that the deceased’s cause of death was ‘multiple blunt force trauma in a man with moderate fatty change of liver’ and — in an extraordinary move — attempted to explain Dr Sharifah’s inadequate post-mortem findings as the result of her being ‘falsely informed’ of certain facts concerning the deceased and not being given CCTV evidence of his being abused in the lock-up.

In April 2016, the Coroner maintained his earlier verdict. Undeterred, the Public Prosecutor applied for a revision of the whole proceeding, which was unsuccessful when the High Court affirmed the Coroner’s verdicts in October 2017.

Frequency of custodial deaths

The frequency of custodial death cases should not come as a shock as according to police statistics, the number of detainees who died while under their custody from 2000 to 2014 was 255 deaths. The number of deaths in prisons and immigration detention centres are higher — with 1,654 deaths in prisons between 2010 and February 2017 and for immigration detention centres, 82 deaths in 2015 and 35 deaths in 2016.

Out of these numbers — how many cases of death have our pathologists attributed to ‘natural causes/ diseases’, so that the detention authorities can claim that no one can therefore be held responsible?

Among the common causes of death stated by the detention authorities include sakit asma, usus, hati, penyakit kuning, ulser, paru-paru, kerongkong, masalah darah, paru-paru, tibi— all of which are generally preventable or treatable if given proper and timely medical attention.

Can the medico-legal death investigative procedure be so simplistic? If it is in fact the case that a detainee has died from a medical condition or that an inordinate number of persons are dying in that detention facility, is it not important for the pathologist to address the issue and other significant factors that have contributed or precipitated the cause of death?

It is high time the post-death forensic investigative procedure in custodial death cases be reformed, so that hospitals and pathologists are able to perform their roles competently and independently. In order to do so, there must be a process of check and balance, where post-mortem reports are audited and held to account without the need for a second post-mortem or inquest process.

There must be a serious reassessment and soul searching within the medical authorities as to why in cases like A. Kugan, Karuna Nithi and S. Balamurugan, the pathologists have been compelled to make inexplicable findings that had the effect of exonerating the custodial authorities when the medical evidence and other circumstances show otherwise.

This is an urgent call for reform for our medical authorities not to forsake their sworn and highest duty to do no harm and start taking custodial deaths more seriously. They have an indispensable role to play in bringing the truth to light, or not — if they choose to downplay or turn a blind eye to signs of injuries, neglect and other suspicious circumstances in their medico-legal death investigation.

As the Court of Appeal in A. Kugan’s civil case said, ‘Further, to state the obvious, there has been a custodial death and that should have rung “alarm bells from the word go.”’

*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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