An Urgent Call for Reform

in the Post-Mortem Process in Custodial Deaths

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 medicolegal 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% 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.


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 medicolegal 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 medicolegal 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.