Sticky wicket, few runs as Basson hearing rolls on

By Stephen Grootes 30 September 2011

Long legal cross-examinations have something of the five-day cricket test to them. There’s moments of drama, followed by periods of calm, the sheer horror of the question that looks like a catch but is dropped, followed by hours in which nothing happens. But it’s the times in which nothing happens that turn out to be the most important. This was the scene at day four of the Health Professions Council hearings into the conduct of Dr Wouter Basson. The council’s investigating whether Basson can be stopped from practicing as a doctor due to the fact he led the apartheid government’s biological warfare programme. STEPHEN GROOTES is in the Castle Stand.

Basson’s lawyer Jaap Cilliers is one of those hectoring, pushy, wrong side of rude advocates. He has this air of exasperation, an expression that says: if only you could see that I’m right, we could all pack up and go home, but you don’t so I’m just going to have to push you. It’s not pleasant. At the other end of the crease, Professor Steven Miles – calm, polite and seemingly unflappable. He gives every impression of relishing his time under cross-examination. We’ve suggested before that Miles is a professional at this. Scratch that. He’s world-class, first pick for anyone selecting a best of the World XI to take on the team from Mars.

One of the easier mistakes to make in a court is to speak too much, to give too much information in a bid to justify yourself. Another is to speak too soon. Like an experienced boxer who takes almost the full count before standing up again, Miles is happy to take a breath before speaking. And then in a dry twang, hits the ball into the stands.

Even when it’s a pretty good straight ball. Cilliers asked a simple but clever question: would a doctor who stabbed to death a burglar in his home in self-defence, be accused of ethical misconduct just because he happened to be a doctor. Up until now, Cilliers had concentrated on narrowing down the case his client faces. So this was the first hint of an argument of justification, that Basson didn’t actually do anything wrong. Miles saw it immediately, and responded, very much on the front-foot. “Before you go wandering off too far down this train of thought” he said, “suppose this doctor disables the thief, and then puts another 12 punches with that same knife…surely it would cross the line from self-defence to homicide…and at some point, that action would come before the (medical) board.” As an answer, it summed up Miles’s tone pretty well. Thoughtful, careful, cogent, and most importantly, prepared. Everywhere Cilliers went, he came across a similar answer.

And when Miles isn’t prepared to give an answer, he simply refuses. Cilliers spent the better part of two hours on one question, relating to preparations of the drug Scoline that Basson provided to soldiers, to help them kidnap anti-apartheid activists. Time and time again we heard the refrain, “Professor, why is it unethical to provide a drug that will knock someone out, when the alternative is that they would be killed”. It came in many variations, a throat could be slit, a gun with a silencer could be used, but the point of the question was the same: should a doctor stand by knowing that someone will die, because they refused to provide a drug that would merely incapacitate them?

Miles says simply, “The aim of medicine is help people, hence it is unethical to weaken the physical or mental health of a human being” if you are not doing it for a therapeutic basis. We heard a variation on that theme several times. The point is that Miles wasn’t shaken, no matter what the hectoring attitude was from Cilliers, he was rock solid. The one time that it seemed Cilliers may make some headway was when he asked Miles if he understood the situation in South Africa in the 1980’s, and how the SADF was used as a police force. Cilliers was trying to suggest that it would not be unethical for police to drug people to arrest them, when the alternative would be that those people would be hurt. Unfortunately for him, the panel ruled, on the advice of the retired judge advising them, that this line of questioning was irrelevant. By that stage they’d had quite enough of hearing about the ethics of incapacitating drugs.

There were times though when Miles would admit to being “astounded”. There has been some debate, and no doubt there will be some more, about why Basson is being judged for this, when scientists or engineers who work in the army or not. It’s a good point. But the council believes it can hold a doctor to a higher ethical standard than an engineer or a scientist. And as Miles put it several times, Basson used training which only a doctor would have to harm people or imperil life. In other words, Basson had special knowledge gained as a doctor, and that doctor should use only to help people. But Cilliers took everyone by surprise when he referred to Nelson Mandela. In the 1950’s, the then Transvaal Law Society tried to strike Mandela from the roll of practicing attorneys because he was inciting people to break the law. It was quite a cause célèbre at the time. Cilliers was making the point that this case is about the same principle; it’s holding someone to account within his or her profession, for actions outside that profession. That’s if you accept Basson was acting as a soldier, which Miles does not. Miles said simply: “If you’re suggesting that Mr Mandela is analogous to Dr Basson, I’m simply astounded”. Cilliers let the matter drop there – probably quite wise of him.

In 2002, Shane Warne was a leg-spinner in his pomp. He was the king of the Castle Stand. But at Newlands, he came up against a young whippersnapper. Over after over he bowled and this left-hander refused to be moved. Again and again Warne came in and nothing happened. Eventually his captain had to take him out of the attack. Those overs, that afternoon, changed the game. That youngster’s name was Graeme Smith. That afternoon was momentous in that it set him on the path to becoming the national side’s captain. This hearing will be determined, in large part, but how the panel views Miles’s testimony. He hasn’t been moved. And that could be very important for Basson’s future in the medical profession. DM