Medical Experts Conclude Khieu Samphan and Nuon Chea Fit to Stand Trial
The much anticipated hearing to determine the physical and mental fitness of Khieu Samphan (age 83) and Nuon Chea (age 88), the accused in case 002/02, to continue with the trial was held today. The 270 students from Takhmao High School in Kandal province got to continue their education as the two expert doctors treated the courtroom attendees to a very interesting lesson in geriatric medicine and what vital sign readings really mean.
After the greffier reported all parties present with the exception of Nuon Chea who was following the proceedings from a holding cell, the medical experts were ushered into the court.
President Nil Nonn put on record that the hearing was being held pursuant to the Trial Chamber’s Order of December 18, 2014, to hear the results of the physical and psychiatric assessments of the accused completed on January 19, 2015, and January 20, 2015. Further, that the Order had tasked the medical experts with preparing recommendations about how the condition of the accused might affect the trial scheduling.
The President then reviewed the doctors’ qualifications and eligibility to give expert testimony.
He had Dr. HUOT Lina, a psychiatrist and the appointed National Medical Expert, confirm his birth date, that he had no relationship or affiliation with either of the accused or any civil party to the proceedings, and that he had duly sworn an Oath. Dr. Huot testified to his career experience:
He was presently on leave from hospital practice to concentrate on his own private psychiatric clinic. He also teaches at the University of Health Sciences.
Dr. CHAN Kin Ming, geriatrician and the appointed International Medical Expert, similarly confirmed to the court his birth date, that he had no relationship or affiliation with either of the accused or any civil party to the proceedings, and that he had been duly sworn in. Dr. Chan, a Singapore citizen, was educated in Singapore. He also holds a Diploma in Geriatric Medicine from the Glasgow Victoria Infirmary and is a member of the Royal College of Physicians and Surgeons of Scotland. He established that his training in geriatrics qualified him as an expert in cardiology and neurology of the aged. A Senior Consultant in private practice and at the Singapore General Hospital, he has practiced as a geriatrician since 1988.
Nil Nonn formally accepted the doctors as experts and Dr. Chan began his review of the physical medical assessments done on the accused beginning with that on Nuon Chea. He reported that Nuon Chea’s physical condition had not changed much in the year since the last assessment in March, 2014. He has back pain, good eye contact, is cheerful, speaks with a loud and clear voice and can answer questions. All his vital signs (blood pressure, pulse, respiratory rates) are normal and they were normal in the weekly reports of his attending physicians. His reflexes are normal but he does have some limitation of leg movement and stiffness in his hip and knee. Chronic back pain is confirmed by x-ray evidence of multiple osteophytes. His pain is worse when he is changing position. For example, when he moves from lying down to sitting up, but then the pain quickly dissipates. Despite a cataract, his vision is relatively good: he can tell time, read names on a map. There is some tinnitus in one ear that is associated with dizziness or head movement. This is new since the March, 2014, examination. The back pain and dizziness are age-related degeneration and may get worse. Given Nuon Chea’s age, there is also a risk of a rapid decline in physical well-being. Because of this, the doctor recommended that Nuon Chea have one to two sessions of physiotherapy a week to help maintain his muscle mass, limb dexterity and functional status.
Dr. Huot reported that Nuon Chea’s mental condition has remained stable since the March, 2014, assessment. Taking into consideration the seven Strugar criteria, nothing has changed. Dr. Huot finds Nuon Chea is “able and fit to stand trial. His mental condition is good. He can participate in the trial proceedings.”
Similarly, Dr. Huot testified that Khieu Samphan had not developed any mental problems since the last psychiatric examination in 2014. His memory is good. According to the Strugar criteria, his mental condition is stable. The doctor found nothing from the psychiatric point of view that would hinder Khieu Samphan’s participation in the trial, either.
Dr. Chan described the results of Khieu Samphan’s medical examinations of January 19 and 20, 2015. The geriatrician found the accused’s mobility adequate. Khieu Samphan had been lying down reading a book on both occasions he had visited him recently. He could sit up in bed by himself and move unassisted around the room, go to the bathroom and hold books and papers. He had recognized the doctors’ faces but not their names. He spoke loudly and forcefully with no slurring of speech. Khieu Samphan complained of some deterioration in his hearing and, on occasion, would lean forward with his left ear in front but his hearing was still adequate. He could read without a magnifying glass, but there was one on top of his book. His blood pressure and pulse rate were normal even though he had recently been in hospital for bronchitis and hypertension. X-rays showed the subject’s lungs to be clear. He was in good spirits maintaining that he was “only a little tired.” He does have chronic back ache and a history of two strokes.
Dr. Chan recommended that his blood pressure be monitored as hyper pressure and age are risk factors for another stroke. The expert concluded that he found nothing in his examination of Khieu Samphan that would affect his ability to stand trial.
Judge Fenz was appointed by the President to ask questions on behalf of the Trial Chamber. She began by referring to the incident yesterday, January 22, 2015, when the court had to adjourn early because Khieu Samphan was no longer able to follow proceedings. She asked the doctors if they had seen the report the attending physician had made at the time. When they answered negatively, she asked that they be supplied with a copy as she would like them to include it in their overall assessment of the accused. This was done and Judge Fenz said she would return to it later after they had had time to read it.
Dr. Chan testified that they had looked at the medical histories. That of Nuon Chea showed hypertension since 1995 and moderate kidney insufficiency. He had had a stroke in 1998.
Physicians at the Khmer Soviet Friendship Hospital detailed that he had occasional dizziness, slow in walking, and that he was weaker when he walked. The doctor said Nuon Chea, himself, reported that he is physically weaker now than a year ago. Dr. Chan said his concentration is normal and he has no specific memory problems. But, it is expected that with age he will deteriorate so regular assessments are recommended. Wanting to know how often there should be reviews of his mental health, Judge Fenz asked “How often is regular?”
Dr. Huot said the Khmer Soviet Friendship Hospital was doing weekly reports but only of the physical condition of the accused. He recommended an expert review cognitive function once every two to three months, with an assessment annually. The reports done every one to three months will act to back up the annual assessment. Answering affirmatively to the judge’s question, he said that there were specialists at the hospital who had the capacity to do the examinations. He recommended “ideally, a monthly assessment but every three months is a good start.”
Attention was next turned to Khieu Samphan but Defence Counsel for Khieu Samphan interrupted Judge Fenz to voice her concerns about making public her client’s health condition. She asked that instead the findings be summarized. She put the court “on notice that (she) may submit a request to hold hearings in camera because of the privacy issues involved.”
Notwithstanding the objection, Khieu Samphan’s medical history was outlined next. Khieu Samphan has high blood pressure and a problematic thyroid gland. He has had stroke, a respiratory infection, cataract surgery, and three hospitalizations since the last assessment: in March and May, 2014, and just released January 15, 2015. On his last admission to hospital, he was suffering fatigue, fever, high blood pressure and bronchitis. He has no other specific difficulties other than the above. Khieu Samphan is committed to exercising. His own assessment was that his memory was fine although sometimes he could not remember what he did yesterday or last week.
The Judge asked if the doctors could comment on the incidents causing adjournments using their present findings.
Dr. Chan had reviewed the daily records of the January 12th admission to hospital. Khieu Samphan’s blood pressure had been higher than normal (150), his pulse (at 112) was “much higher by any standard,” and his oxygen saturation was insufficient at 93-94. He was given antibiotics by IV and his vital signs normalized. The doctor said that blood pressure was not the cause of this problem, a sub-acute chest infection was. He suspects the infection was present at the start of the trial but with no rise in temperature or breathlessness. It showed up in the vitals.
That the good doctor is also at teacher at heart was most evident in his next explanation, that of the January 21, 2015, incident. Khieu Samphan normal vitals are: blood pressure: 115/70, pulse: 76 and oxygen saturation: 98%. When the doctors interviewed him on January 21, 2015, the readings were blood pressure: 140/70 and pulse: 82. The vital readings in the duty doctor’s notes show blood pressure: 140/70, pulse: 82, oxygen: 95%. Dr. Chan stated that these result are within normal range for Khieu Samphan’s age and could not cause him to be so symptomatic as to cause an adjournment. He added that on January 22, 2015, Khieu Samphan, himself, said his teeth were his “strongest complaint.” The accused had told the doctor that if the morning court session could end by 11:30A.M., he would then have enough time to eat and rest, and be in condition to complete the afternoon session. The doctor felt this was not an unreasonable request given the man’s age and history.
Announcing that he would like to make a general statement on hypertension, Dr. Chan got very interesting. He began by explaining that hypertension actually has no symptoms. There is no correlation between it and dizziness and headaches; that a blood pressure reading of 140/70 does not account for Khieu Samphan’s symptoms. But, his physical fatigue does. Khieu Samphan had just been discharged with a chest infection requiring antibiotics. The doctor outlined that although parameters may show normalization and that the infection has cleared, the toll on the body persists. “The older take a week or two to fully recover.” Dr. Chan said that when he saw Khieu Samphan around 9:15 A.M yesterday, his readings were 140/70 for blood pressure, pulse was 82, and respiration: 18. Later in the day, around 3:00 P.M., when he was feeling unwell, his blood pressure went up to 160/90, pulse to 84 and respiratory rate to 28 (much higher than normal). Dr. Chan said even a blood pressure reading of 160/90 is symptomatic for most people, that 180/110 is the “symptomatic range,” and cautioned that different people have different reactions to blood pressure rises. The respiratory rate of 28 was a better indicator of what caused the incident. The doctor explained that when Khieu Samphan gets “passionate,” he hyperventilates in his excitement. It was what was going on at the time that caused the incident. When excited, the arteries constrict…which causes dizziness. The blood is more alkaline causing tremors and muscle cramps. The doctor opined that “it is likely that the process of physical fatigue and being excited developed the cramps and tremors Khieu Samphan was experiencing.”
Judge Fenz asked Dr. Chan to give the normal ranges of the four vital signs. Firstly, Dr. Chan qualified “normal” saying that “what is high blood pressure depends on the sensitivity of his own body to the individual. Blood pressure may be high but asymptomatic.” In another example, he stated that there might be breathlessness but “breathlessness is subjective and might not mean that oxygen saturation is low.” That noted, the doctor related that the cut off for “normal” blood pressure is 140; 140-160 is stage 1, mild hypertension; 160-180 is moderate and 180 severe. 190 is a maximum. Saturation is hyper at 90-95, moderate at 95-100 and severe above 120. He cautioned that is was most informative to take three readings of “resting” blood pressure taken after the subject has been at rest for fifteen minutes. Dr. Chan said that he would expect Khieu Samphan’s blood pressure to be higher after court “as a normal response to circumstances.”
The court moved on to pragmatic considerations of scheduling. After stating that as none of the conditions will improve, Judge Fenz asked if it would make more sense to shorten the days or to have fewer sitting days in a week? In Dr. Chan’s opinion, it makes more sense to give Khieu Samphan “more rest during the days of trial rather than three days of activity and four days of rest.”
After the morning break, Pich Ang, National Lead Co-Lawyer for Civil Parties, had a pertinent question. He wanted to know “if people with high blood pressure are shocked, unhappy or upset, will the individual with a history of hypertension be affected and, if so, how?” Dr. Chan replied that a further rise in blood pressure could be expected. Depending on the intensity of the shock or unhappiness, it might trigger severe hypertension or crisis (a reading above 180/120). The doctor explained that in such a situation, a person might develop hypertensive encephathopy (swelling of the brain). Symptoms are acute confusion, inability to recognize people and stroke. In short, it is a medical emergency.
Pich Ang wanted to know the blood pressure level that could trigger such an emergency but Dr. Chan was not able to be more definitive. He said it was “very individualized. Some people are resilient and others sensitive ,and anything could trigger high blood pressure.” He explained that not all high readings would lead to hypertensive encephathopy, that it probably had a genetic basis.
Answering counsel’s question about prevention, Dr. Chan replied that “first and foremost, it is important to have usual blood pressure well-controlled.” If the subject’s blood pressure is high when he is in a relaxed state, it is easier for it to rise on provocation. So, developing a hyper emergency must be avoided. Secondly, basic health care precautions are important: a low salt diet, adequate exercise and rest.
Co-Prosecutor Koumjian wanted to know if, in preparing their report, the doctors had had a chance to observe Khieu Samphan and Nuon Chea’s court appearances in 2013 when each addressed the court on their views as to the evidence and the trial. The doctors had not and neither had they heard the accused’s statements made in October and November, 2014, when each explained that he had instructed his counsel to boycott the trial proceedings and why he had done so.
Ms. Guissé objected to Mr. Koumjian’s line of inquiry stating that there was no link between the experts and the accused’s ability to attend proceedings, that “they have never said they were unable to follow the proceedings.” She went on to assert that “even the accused, no one, has said the accused are unfit for trial.” Ms. Guissé also objected to the Co-Prosecutor’s next question asking the doctor to compare the Khieu Samphan and Nuon Chea’s access to medical care to the doctors’ own patients. She called the question “inappropriate.” Mr. Koumjian argued that his question went to the “amount” (sic) of reviews to be done; the President ruled in his favour.
Dr. Huot said he recommended an annual review. The duty doctors were filing weekly medical reports but not mental assessments although they have not noticed any changes mentally, generally. He disagreed with Mr. Koumjian’s thesis that “counsel who regularly interrelate with the accused are best able to judge whether they are able to understand the proceedings.” Dr. Hout was emphatic that “other parties’ opinion is not independent or biased. It may be prejudicial”. He forcefully recommended that an independent body should make the assessments.
He was supported in this by Dr. Chan who explained that an assessment of cognitive status was determined through as many independent, unbiased facts as possible. He pointed out that it was necessary to look at different domains of the brain such as memory and long term memory, personality change, language aphasia, dementia and trial capacity. Dr. Chan felt these were complex issues beyond simple interaction with counsel.
The Co-Prosecutor asked Dr. Chan how frequently he examined his own patients and what such an assessment involved. Dr. Chan began by saying that you have to be practical and look at what the health issues were. He gave as an example, if a patient had diabetes and no medical-legal issues, then he would just look at them on initial contact. If there were medical-legal issues, then he would use different assessment means over time as there is a learned effect in regular examinations.
Dr. Chan confirmed that both the length of day and length of the court sessions can affect the medical issues of the accused. He confirmed Mr. Koumjian’s proposition that both accused could attend hearings four days a week if they had the lunch break extended an extra half an hour for rest. The Co-Prosecutor stated as preamble to his next question that as “the health of the elderly is a dynamic situation that has the possibility of health worsening in a year, a day lost now may not be make up in a year.” Dr. Chan confirmed that if Khieu Samphan and Nuon Chea both got more rest and the longest sitting session reduced, they could both participate four days a week.
Khieu Samphan’s Defence Counsel, Anta Guissé raised concerns that, since the doctors only examined her client on two occasions, they had not adequate information to assess the impact of four hearing days a week on the accused. She felt the experts needed more data taken after several consecutive days of court to make such an assessment. Dr. Chan explained that, based on the weekly medical reports to date, there has not been a significant change in resting vital signs except for incidents when vitals went up. “Unfortunately, there are no medical instruments for measuring the affect of trial on a person,” he said. Khieu Samphan only request was to reduce the morning session, that then he would be “refreshed.” Dr. Chan felt that the physical monitoring he was receiving now was adequate.
After Dr. Chan said normal speaking speed was adequate for Khieu Samphan to understand court proceedings, Kong Sam Onn, Co-Lawyer for Khieu Samphan wanted to know if complexities in translation were difficult for his client to understand. The doctor felt there was no negative impact as the interpreters are well qualified.
Nuon Chea’s Defence Counsel, Son Arun asked if the backache and headache symptoms were related but Dr. Chan said there were not, “from a medical point of view.” Son Arun said he had noticed deterioration from year to year in his client’s physical and mental condition. As an example, he said Nuon Chea’s backache kept him from sitting for more than 20 minutes, which meant he could not sit in the court room and, therefore, could not communicate “with parties” during the hearings. The lawyer also felt that a duty doctor should be observing Nuon Chea.
With that, and after the President’s most courteously thanking the medical experts for their services, the constructive and instructive morning of testimony ended for the mid-day adjournment.
After lunch, Judge Fenz began the proceedings by clarifying with Anta Guissé her thoughts on how the medical reports and emails should be classified given the privacy concerns. Ms. Guissé
agreed that the court’s emails requesting additional information did not need to be “strictly confidential” but that the medical reports did. She also wanted the doctors’ emails on the January incidents to be so marked on the basis that today’s discussions should be sufficient for public purposes.
President Nil Nonn then turned the proceedings over to (Michael) Yiqiang Liu, Civil Party Co-Lawyer, to continue with the examination of his client, Oum Sophany.
Ms. Oum Sophany gave testimony concerning her experiences during the Khmer Rouge regime.
It is not a pretty story. When her sister died in hospital, she learned about it from a villager because the medical staff had not allowed Ms. Oum to stay with her sibling. She “wept quietly alone in the middle of the rice field” when she got the tragic news. Her life generally since leaving Phnom Penh during the evacuation and going to stay with her parents-in-law in Tram Kok district was not a happy one. At first she could live with relatives, but then Angkar had her move to a house with other “new” people so Angkar could control them. It was not so much a house as a framed structure with coconut leaves for walls and no furniture. She had to live with “base people” with whom she could not discuss her experiences out of fear of repercussions from Angkar. She pretended to be deaf: “We only used our eyes to watch the road ahead, our mouths were for talking about only serious things.” When she was sent to Farm 160, she had to eat communally. The rations, a plate of rice and some water lily soup, were inadequate. Angkar ordered the living and eating arrangements. She became tired and sick; she could not sing or laugh loudly. Her activities were sleeping, working and eating.
Co-Prosecutor Seng Leang drew the witness out more. The hospital in which she gave birth was a makeshift facility in a school. She did not know whether it was the responsibility of the commune or the district. She did not know if there was any distinction in medical treatment between the base people and the new people but said there was in meals. The wife of a committee member received wild meat with her meals while the ordinary patients got rations of commune meals. Shortly after she gave birth, hospital policy was changed and only serious patients were allowed visitors. Her husband was no longer allowed to come in and help her.
One day, she was shocked to see several people tied together. They were walked away towards the south, towards the Kraing Ta Chan security center.
Co-Prosecutor Dale Lysak asked her about the disappearance and death of some of her relatives during the troubled times. Ms. Oum said two of her brothers-in-law (a pilot and a doctor) were taken away and killed by the regime.
Nuon Chea Defence Counsel Suon Visal wanted to know more about Ms. Oum Sophany’s work duties. She related that after resting for four or five days after arriving at her parents-in-law’s home, she was instructedby the team chief to dig dirt to make a pond. Later she worked making a dike, carrying fertilizer to the fields, transplanting and harvesting rice. There was no official distinction between base people and new people but those who were weak were allowed lighter work duties. There was no right to choose what you did but, as she only weighed 36-37 kg. and was not strong, she was able to do less arduous work. Leave from work could only be granted by the chief. She tried her best because she “was afraid of these people.” During the Khmer Rouge years everyone belonged to a group or a team and did the assigned work. From February 9, 1976, they ate communally.
Mr. Koppe, Nuon Chea’s Defence Counsel, carefully reviewed Ms. Oum Sophany’s testimony with her looking for discrepancies. He started by asking her if she had sent her book (“When Will We Never Meet Again”) to DC-Cam in the framework of a literary contest. She had and had won third prize for it in 2004. She said the center wanted people’s accounts of that era. She also won a prize in 1989 for “Under the Drops of Falling Rain.”
There ensued a joust between Mr. Koppe and Yiqiang Liu over Mr. Koppe’s request that she lend him a copy of the book as the bookstores were telling him it was out of print and he was interested in the Civil Parties’ stories. The objection to Mr. Koppe’s request was sustained and Mr. Koppe’s subsequent question on a book prize called the South-East Asian Writers’ Award was ruled irrelevant to the facts in the case as the question went beyond the facts of the case.
Mr. Koppe’s next line of questioning revolved around Ms. Oum’s literary statement that “writing is the only way to let out the suffering and the sorrow I kept inside.” He wanted to know “why, if (she) wrote down everything that came into her heart and mind,” she had made no mention in her diary of seeing dead bodies on the road from Phnom Penh during her journey to Tram Kok. She explained that she only made brief notes in her diary but “expanded on (her) recollections” in the first of the aforementioned books. “It was so tragic” she could not write about the dead bodies at the time, but it “stuck in her mind” and she put it in the book.
Mr. Koppe moved on to delve into why, when she decided to leave Phnom Penh, it took Ms. Oum a month to go the 68 kilometers to Tram Kok and the house of her parents-in-law. She explained that she walked as there was no transportation, sometimes on the road, sometimes cutting across rice fields. When a family member was ill, they stopped to rest. Her lawyer objected to the questions concerning the evacuation on the basis that they do not apply to Case 002/02. The President agreed stating that “the facts were far from the facts before us now.” Mr. Koppe shot back that it was an “interesting decision,” demanded a decision of the whole bench and asked if he was not to be able to ask any questions after April, 1975. The President told him that his question was repetitive as well and that such questions are not allowed because they delay the proceedings and “lead to contradictions in responses.” At this last, the irrepressible Mr. Koppe voiced his signature comment, “Very interesting,” implying his distaste for the President’s reasoning.
Mr. Koppe switched topics to clarify matters concerning the marriage of Ms. Oum, an exploration that may have coughed up a contradiction in the testimony. After reviewing Ms. Oum’s memories of her wedding day and determining that she was still married to the same man, a man she married because she loved him, Mr. Koppe asked her to recall an interview she had given to the Phnom Penh Post in May, 2013. Yiqiang Liu was fast to object on the basis that that was specific information when he had not seen the document. Mr. Koppe retorted: “Counsel do your homework.” He followed up by asking Ms. Oum if she had told the reporter that she had a forced marriage.
Civil Party Lead Co-Lawyer Marie Giraud entered the fray objecting to the fact the document Mr. Koppe was relying on had not been given to the other parties as per protocol. Mr. Koppe denied he was “relying on the document,” stating that he was only asking questions “and all the answers have been yes.” On that dramatic cliff hanger possibly affecting witness credibility, the President announced an adjournment to Monday, January 26, 2015.