The custodial death of Kugan Ananthan therefore, is very worrying and needs full explanation and disclosure to the satisfaction of all fair-minded Malaysians. That this is one highly publicised case among the many other custodial deaths (1,535 from 2003 to 2007!) in recent history of our Malaysian police detention centres, must alert us to the possibility of a sustained if tacit condonement of such practices by the highest echelon of our police or even government authorities. See Dr RS McCoy's article " Kugan's death a reminder of systemic weaknesses".
No matter the circumstances of detention, every prisoner or detainee must be accorded his/her human right to be treated justly. He or she must be presumed innocent until proven otherwise in an independently constituted and respected court of law.
Because history is replete with such cynical and abhorrent cases of torture leading to custodial deaths under various authorities, it must always behoove doctors that they owe it to humanity to expose these heinous acts so that we can help prevent their continued recurrence.
It is useful to remember that despite the furore of recriminations against the Abu Ghraib and Quantanamo detention centres, the number of custodial deaths following the Afghanistan and Iraq wars, from 2001, did not reach such numbers as have been acknowledged by our own police force. (See Steve Inskeep "The Question of Torture")
Timely reminders to physicians have been shown to alert them to the dangers and possibilities of slipping down the slippery slope of expediency and collusion with authorities in such repugnant but illegal activities involving torture to extract information or forced confessions.
There can be no clearer mandate than that expounded by the World Medical Association (WMA). In its 1975 Declaration of Tokyo, which describes guidelines Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, the first article states explicitly that:
"The physician shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offense of which the victim of such procedures is suspected, accused or guilty, and whatever the victim's beliefs or motives, and in all situations, including armed conflict and civil strife."
Therefore, it must always be in the forefront of any physician or forensic pathologist's mindset that he or she must exert his/her full medical professionalism to the best of his/her knowledge and experience, without fear or favour. Of course, this is not to say that many or most doctors willingly adopt such timorous or subservient attitudes just to be on the 'right' side of the law.
It is generally recognised that in authoritarian or autocratic states, physicians can find themselves in very difficult circumstances of having to consider their own personal or family's safety and self-interests. There may be genuine fear of repercussions, harassment or threats which can and indeed had occasionally been shown to intimidate physicians who had conscientiously written medical reports which are opposed to the expectations of certain authorities.
Notwithstanding these possibilities of threats, the physician must undertake to serve out his function and duty, without falling victim to such fear and intimidation. Every physician who acts righteously will always have the strongest and most vocal and concerted support of all his fellow physicians the world over! The WMA and the MMA together with other human rights proponents including the UNHCHR (United Nations Office of the High Commissioner for Human Rights) will always stand with the physician—i.e. he or she is not alone.
Thus, being physicians, there can be no compromise: we must abide by our rigid codes of professionalism and medical ethics to put such personal interests aside in favour of our patients, and in the case of the deceased, our unbending duty to determine the forensic truth as to the cause or causes.
When anyone dies, especially unexpectedly, the cause of death must be ascertained with reasonable certainty, so that there is closure and acceptance from their loved ones and society. Forensic pathology's dictum is that it must serve as the ultimate arbiter to provide the concluding proof of science of the final truth, the final diagnosis... (See Role of pathologists in human rights abuses)
In fact, one should endeavour to go overboard to prove that no criminal action had led to the unexplained death of anyone under detention. To be too ready to attribute to natural causes when there had been overt signs which cannot be explained, can lead to accusations of collusion to obstruct the explication of the truth.
Most importantly, doctors must not allow themselves to be persuaded or intimidated by the authorities to facilitate favourable but inaccurate reports, just to placate the illegal actions of the police or military or any other persons who had so callously disregarded their responsibilities as purported guardians of law enforcement in any country.
It is understandable that clinical role conflicts between duty to the state and to the patient sometimes arise. However, there is no compromise as to where our physician duties lie: i.e. our patient's welfare must take all precedence, and "undivided commitment to patients is the sole guidepost for clinicians who face conflicting expectations." For the physician the importance of clinical fidelity is of the highest moral and ethical standpoint which should and must not be compromised. (see M. Gregg Bloche "Clinical Loyalties and the social purposes of Medicine", JAMA. 1999;281:268-274)
Attempts to subvert the truth or to cover up illegal acts are not only unethical and unprofessional but also lends such actions to possible criminal prosecution as colluding to condone torture and abetting homicide.
The World Medical Association will support, and has encouraged the international community, including all national Medical Associations and fellow physicians to support, the physician and his or her family in the face of threats or reprisals resulting from a refusal to condone the use of torture or other forms of cruel, inhuman or degrading treatment.
As physicians we will all stand with the doctor under threat—the world community is watching and will support earnestly the clinical rectitude of any doctor so implicated, if or when he or she acted in an ethically correct manner.
However, the converse is not true, we cannot and will not support any physician who choose to act to condone or cover-up any police action or actions which are cruel, inhuman or degrading, especially when this leads to death.
Unfortunately in this country, there is no mechanism to quickly look into or investigate such suggestions of medical misconduct, if indeed that is the case of the custodial death of Kugan Ananthan. As our Medical Act now stands, we still need an official complainant for us to initiate proceedings against any medical practitioner, and this will still take some time to be fairly and fully completed, even if given expedited pace in the public interests.
Nevertheless, in the light of such widespread publicity, the Malaysian Medical Council will have to be very wary not to be seen to be colored or prejudiced by public opinion, but to be as fair and just to all parties concerned, with only its necessarily circumscribed focus on what is deemed medical professional conduct or misconduct.
Thus, it is premature and unfair to expect instantaneous conviction and/or to pass judgement as to whichever aspersions of misconduct that has been cast on the first pathologist in the light of conflicting reports from a second. Differences of opinions alone cannot be the basis of professional misconduct, unless it can be proven beyond reasonable doubt that the physician concerned had unethically colluded with the law-breakers to cover-up such a dastardly act as torture and finally the unexpected death of a prisoner under detention.
For the unfortunate case of Kugan Ananthan, we will have to let the courts decide on the exact nature of his untimely death, and let all fair-minded people determine the merits or demerits of the two conflicting post-mortem reports. Dissatisfaction with whichever report or action by any medical practitioner can only be reported and lodged with the Ministry of Health and the Malaysian Medical Council, and let due process take its rightful if tardy action.
For whatever it is worth, this unfortunate but highly-publicised custodial death has put on notice that the police or any authority for that matter, cannot expect a free ride to do as it pleases with impunity.
Our rakyat demands that this cannot be allowed to recur, and that we all expect retribution or answers on those who so callously take another's life, under the guise of duty of law enforcement. The dignity of our Malaysian citizen must not be brushed aside so coldheartedly any more.
I'd like to end by paraphrasing M. Gregg Bloche's concluding remarks, that "by making a strong stand for clinical fidelity, ethical medicine in Malaysia can reanimate its sense of purpose and promote those facets of professional autonomy likely to contribute to the common good. In so doing, physicians might also contribute modestly to reducing the insecurity and incivility that appears to be escalating in Malaysia, fed by repeated collective experiences of breach of faith."
Our rakyat demands and deserves more, our rights have been awakened! Physicians must stand unequivocally on the side of progress of human rights and an unshakable and respected medical professionalism. Our authorities and police force should aspire to do the same.
A slightly abbreviated version appears in malaysiakini on 11 March 2009, Physicians must be more vigilant