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Module 2: Istanbul Protocol Standards for Medical Documentation of Torture and Medical Ethics
According to the Istanbul Protocol, investigations into torture should seek to establish the facts of alleged incidents in an effort to identify and facilitate the prosecution of perpetrators and/or secure redress for the victims. When possible, forensic experts should obtain detailed information on the following topics: 1) the circumstances leading up to the torture; 2) the approximate dates and times when the torture occurred; 3) detailed physical descriptions about the people involved in the arrest, detention and torture; 4) the contents of what was asked of or told to the victim; 5) a description of the usual routine in the place of detention; 6) details about the methods of torture and/or ill-treatment used; 7) any instances of sexual assault; 8 ) resulting physical injuries; 9) weapons or physical objects used; and 10) the identity of any witnesses.
When designing commissions of inquiry, states or organisations should be very clear in defining the scope of the investigation. By framing the inquiries in a neutral manner (without predetermined outcomes), allowing for flexibility, and being clear about which events and/or issues are under investigation, the proceedings can achieve greater legitimacy among both commission members and the general public.
Commissions should be given the authority to obtain information by compelling testimonies under legal sanction, ordering the production of State documents, including medical records, and protecting witnesses. In addition, the commissions should be granted the power to conduct on-site visits and issue a public report.
Perhaps most crucial to the legitimacy of any medico-legal investigation is their impartiality. According to the Istanbul Protocol, “…[c]ommission members should not be closely associated with any individual, State entity, political party or other organisation potentially implicated in the torture. They should not be too closely connected to an organisation or group of which the victim is a member, as this may damage the commission’s credibility.”
In addition, commissions should, whenever possible, rely on their own investigators and expert advisers, especially when examining misconduct by members of the government.
Following the inquiry, the commission should issue a public report, with minority members filing a dissenting opinion. These reports should include: the scope of inquiry and terms of reference, as described above; the procedures and methods of evaluation; a list of all testifying witnesses—except for those whose identities are protected—with their age and gender; the time and place that each sitting occurred; all relevant political, social and economic conditions that may have influenced the inquiry; the specific events that occurred and supporting evidence; the commissions’ conclusions; and finally, a set of recommendations. In response to these reports, the State should issue a public statement describing how it plans to heed the commission’s recommendations.
The Istanbul Protocol also includes obligations of governments to ensure minimum standards for the effective investigation and documentation of torture and ill-treatment as stipulated in the Istanbul Principles as mentioned above.
According to the Istanbul Protocol, investigations into torture should seek to establish the facts of alleged incidents in an effort to identify and facilitate the prosecution of perpetrators and/or secure redress for the victims. When possible, forensic experts should obtain … Continue reading
- Answer: B
The Istanbul Protocol outlines international, legal standards on protection against torture and establishes specific guidelines for the effective investigation and documentation of torture and ill treatment. The Istanbul Protocol is a non-binding document. However, international law obliges governments to investigate and document incidents of torture and other forms of ill-treatment and to punish those responsible in a comprehensive, effective, prompt and impartial manner. The Istanbul Protocol is a tool for doing this.
- Answer: True
The Istanbul Protocol outlines minimum standards for state adherence to ensure the effective documentation of torture in its Principles on the Effective Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or “Istanbul Principles.” The Istanbul Protocol represents an elaboration of the minimum standards contained in the Istanbul Principles and should be applied in accordance with a reasonable assessment of available resources.
- Answer: A
The Istanbul Protocol and its related Principles have been recognised as international standards for the effective investigation and documentation of torture and ill treatment by the UN General Assembly and the then UN Commission on Human Rights (since 2006, the UN Human Rights Council), the UN Special Rapporteur on Torture, the African Commission on Human and Peoples’ Rights, the European Union and other institutions and organizations.
- Answer: B
Conducting an objective and impartial evaluation should not preclude the evaluator from being empathic. It is essential for clinicians to maintain professional boundaries and at the same time to acknowledge the pain and distress that they observe. The clinician should communicate his or her understanding of the individual’s pain and suffering and adopt a supportive, non-judgmental approach. Clinicians need to be sensitive and empathic in their questioning while remaining objective in their clinical assessment.
- Answer: A
It is important to realize that the severity of psychological reactions depends on the unique cultural, social, and political meanings that torture and ill-treatment have for each individual, and significant ill effects do not require extreme physical harm. Seemingly benign forms of ill-treatment can and do have marked, long-term psychological effects. Although some survivors of torture may have few or no psychological sequelae, most individuals experience profound, long-term psychological symptoms and disabilities.
- Answer: B.
Although there are a myriad of psychological issues that torture victims might have including C and D, PTSD and major depression are the two most common problems.
- Answer: B.
Unfortunately, it is a common misconception among evaluators, attorneys and adjudicators that psychological evidence is of lesser legal value than “objective” physical findings. The aim and effect of torture is largely psychological. The psychological evaluation is critical in assessing the level of consistency between the alleged trauma and individual psychological responses. In some cases, the symptoms may be either attenuated or exacerbated depending on the meaning assigned to individual experiences.
- Answer: B
As the Istanbul Protocol makes clear, the absence of physical and/or psychological evidence in a medical evaluation does not rule-out the possibility that torture or ill-treatment was inflicted. The Istanbul Protocol was developed to prevent torture and ill-treatment and to promote accountability. Governments must ensure that its official representatives do not engage in misuse or misrepresentation of the Istanbul Protocol to exonerate police who are accused of abuses or for any other purpose.
- Answer: B, D
Each detainee must be examined in private. Police or other law enforcement officials should never be present in the examination room. This procedural safeguard may be precluded only when, in the opinion of the examining doctor, there is compelling evidence that the detainee poses a serious safety risk to health personnel. Under such circumstances, security personnel of the health facility, not the police or other law enforcement officials, should be available upon the medical examiner’s request. In such cases, security personnel should still remain out of earshot (i.e. be only within visual contact) of the patient. Prisoners should feel comfortable with where they are evaluated. In some cases, it may be best to insist on evaluation at official medical facilities and not at the place of detention. In other cases, detainees may prefer to be examined in the relative safety of their cell, if they feel the medical premises may be under surveillance, for example. The best place will be dictated by many factors, but in all cases, investigators should ensure that prisoners are not forced into accepting a place they are not comfortable with. Requests for medical evaluations by law enforcement officials are to be considered invalid unless they are requested by written orders of a public prosecutor.
- Answer: A
If the forensic medical examination supports allegations of torture, the detainee should not be returned to the place of detention, but rather should appear before the prosecutor or judge to determine the detainee’s legal disposition.
- Answer: A
The presence of police, soldier, warden, or other law enforcement officers in the examination room, for whatever reason, should be noted in the physician’s official medical report. Notation of police, soldier, prison officer, or other law enforcement official’s presence during the examination may be grounds for disregarding a “negative” medical report.
- Answer: A.
Many of the rules and principles of medical ethics have been adopted as professional codes of conduct. While ethics must guide every action of health professionals in their work, in the process of investigating and documenting allegations of torture, there are three areas in which the health professional must be particularly cognizant of specific ethical considerations. The first is the duty to the patient, the second is the clinical independence of the health professional and the third is in the production of medical records, reports and testimony.
- Answer: A
The use of hoods or blindfolds has in itself been found to be a form of ill-treatment. In the health setting hoods or blindfolds not only impair any meaningful contact with the patient; they also prevent the identification of any health professionals and may thus add to a perception of impunity in cases of ill-treatment.
- Answer: D
A, B, and C are all provision under the World Medical Association’s 1975 Tokyo Declaration.
- Answer: F
All of the answers represent either passive or active complicity of health professionals in torture and ill treatment. Physicians and other medical personnel have the obligation not to condone or participate in torture in any way.
- Answer: F
All of the elements listed are essential to informed consent.
- Answer: A
The health professional must contemplate the risks to the patient, and indeed to themselves, in disclosing such information, and the potential benefits to society as a whole (e.g. potentially avoiding further harm to others), before acting. Whatever decision is reached, the health professional should endeavour to gain consent. In such cases, the fundamental ethical obligations to respect autonomy and to act in the best interests of the patient are more important than other considerations.
- Answer: B
In an ideal situation, an independent doctor will have explained the risks of a prolonged hunger strike, and taken instructions on what the person wants to happen if he or she ceases to be capable of rational thought. This should happen in an environment where the patient’s confidentiality can be respected, and where he or she can be protected from undue pressure from political colleagues. In cases where prison doctors have been following hunger strikers before and during the fast, and know what the patients’ positions and convictions are, physicians should respect the principles stated in the Declaration of Malta. If a physician is called upon to take care of a hunger striker already in a comatose state, he or she will have no choice and will have to provide reanimation. A physician should not rely on what amounts to “hearsay” in such cases. The opinions of the immediate family should be taken into consideration, but are not paramount. Neither the opinions of the authorities nor those of the patient’s political colleagues should be given any weight.
- Answer: B
The Declaration of Tokyo was revised in 2006 to include the following provision: “The physician shall not use nor allow to be used, as far as he or she can, medical knowledge or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or illegal, of those individuals.”
- Answer: G
The primary goal of documenting allegations of human rights violations is to create an accurate, reliable and precise record of events. All of the forms of information listed are essential to the effective medical and legal investigations of torture and ill treatment.
Answer: B The Istanbul Protocol outlines international, legal standards on protection against torture and establishes specific guidelines for the effective investigation and documentation of torture and ill treatment. The Istanbul Protocol is a non-binding document. However, international law obliges governments … Continue reading
Torture and other ill-treatment are prohibited in international law and are likely also to be a crime under national law. International law requires not only that torture not be used, but also that any allegation of torture be investigated, and that those responsible be brought to justice.
Effective investigation, including the aspect of medical documentation, is a vital component in the struggle to eradicate the practise of torture. Legal bodies, domestic and international alike, rely on factual evidence to reach their conclusions and uphold justice.
By shedding light on cases of torture and other ill-treatment, effective investigation and documentation can assist in the achievement of a number of important goals:
- Raising awareness of the infliction of torture and its absolute prohibition
- Battling impunity: bringing torture into the public eye assists in calling states to account for their actions and having them fulfill their legal obligations. On a different level, torture reporting can also help to cast light on the individuals who carry out such practises, to make sure that they cannot continue to engage in such behaviour without negative consequences.
- Redress for the survivor: there are a number of remedies and objectives that may assist the individual survivor of torture, for example:
- Preventing and ending ongoing abuse: in certain cases, allegations of torture may be raised by a person who is still in custody of the authorities. Effective and swift investigation can help put an end to the suffering. In other cases, the individual may be seeking protection from abuse in another country, and the determination of whether the individual was a survivor of torture and is personally at risk can prevent the person being deported back into the hands of their torturers.
- Compensation and other forms of restitution: survivors of torture may, for example, be able to claim compensation for monetary loss, physical and mental harm, and other damage caused by the torture
- Rehabilitation: many torture survivors are in need of rehabilitation services, including medical treatment, both physical and psychological, legal assistance, and social services. Effective investigation and documentation can assist in diagnosis, treatment (including rehabilitation) and prognosis of the patient.
- Official and public acknowledgement of their suffering can also be important in the recovery process of survivors of torture.
- Reform: drawing attention to a situation is not just about seeking condemnation or holding a state accountable. Even more importantly, it is about seeking constructive and long-term improvements in a country, which will contribute to the ultimate elimination of torture. This will often require changes both in the legislative framework and in official attitudes to torture. The eradication of torture is a fundamental and necessary step for any society aspiring to protect human rights and care for its people.
Torture and other ill-treatment are prohibited in international law and are likely also to be a crime under national law. International law requires not only that torture not be used, but also that any allegation of torture be investigated, and … Continue reading
(i) To take effective legislative, administrative, judicial or other measures to prevent acts of torture, for example by:
- Establishing effective monitoring mechanisms to prevent torture in all places of detention;
- Ensuring that any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made;
- Ensuring that the prohibition of torture is included in training of law enforcement and medical personnel, public and other relevant officials;
- Not expelling, returning, extraditing or otherwise transferring a person to a country when there are substantial grounds for believing that the person would be tortured (non-refoulement).
(ii) To ensure that general safeguards againt torture exist in places of detentions such as:
- Granting detainees prompt and unrestricted access to a lawyer and a doctor of their choice;
- Informing family members or friends about the person’s detention;
- Providing detainees access to family members and friends;
- Not holding persons incommunicado detention;
- Enabling detainees to promptly challenge the legality of their detention before a judge.
(i) To take effective legislative, administrative, judicial or other measures to prevent acts of torture, for example by: Establishing effective monitoring mechanisms to prevent torture in all places of detention; Ensuring that any statement that is established to have been … Continue reading
The term, ‘medical ethics,’ broadly describes the moral framework in which health professionals are bound to carry out their work. Many of the rules and principles of medical ethics have been adopted as professional codes of conduct. While ethics must guide every action of health professionals in their work, in the process of investigating and documenting allegations of torture, there are three areas in which the health professional must be particularly cognizant of specific ethical considerations. The first is the duty to the patient, the second is the clinical independence of the health professional and the third is in the production of medical records, reports and testimony.
There are certain ethical issues which are more likely to come to the fore depending on the various situations in which health professionals may encounter those alleging or showing signs of torture. This section points out the particular ethical considerations raised by situations such as the examination of an individual who is brought to a hospital or clinic still in the custody of the police, military or other security forces, and difficulties encountered by health professionals employed by the police, military or prison authorities.
The term, ‘medical ethics,’ broadly describes the moral framework in which health professionals are bound to carry out their work. Many of the rules and principles of medical ethics have been adopted as professional codes of conduct. While ethics must … Continue reading
Medical documentation may be critical to legal investigations of torture through the following means:
- Producing a contemporaneous record (a record as close in time as possible to the event) of signs and symptoms of ill-treatment when an individual presents to any health professional for treatment after the event – the examining health professional may not be called upon to produce a report, but in the future an expert may be asked to use this record to form an opinion of events at the time
- Providing detailed understanding of the case so that the person can be referred for the appropriate treatment and rehabilitation in a specialised centre or by other specialists
- The production of a medico-legal report for submission to a judicial or administrative body:
- for judicial enquiries or court cases aimed at the prosecution of perpetrators
- for a judicial process which decides on the responsibility of the state
- for a judicial process which decides upon compensation/reparations for survivors
- in individual cases where a medico-legal report may be used as part of a court application to end on-going abuse while the person is still in detention
- for the case of asylum seekers when medical evidence may be used as part of the evidence (e.g. in hearings) to show a history of ill-treatment in another country and the physical and psychological consequences thereof.
- The documentation of patterns of widespread abuse. Courts, NGOs, and inter-governmental mechanisms, can all have need for knowledge of the existence of widespread abuse. Assessment of the prevalence of torture and other ill-treatment, relies upon well-documented individual allegations
- The production of supporting material during visits to places of detention. Medical documentation may not necessarily lead to the production of a medico-legal report on specific cases, but the medical findings can be used more generally to support allegations of conditions and treatment amounting to torture or other ill-treatment.
Medical documentation may be critical to legal investigations of torture through the following means: Producing a contemporaneous record (a record as close in time as possible to the event) of signs and symptoms of ill-treatment when an individual presents to … Continue reading
The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, outlines international, legal standards on protection against torture and sets out specific guidelines on how effective legal and medical investigations into allegations of torture should be conducted.
The Istanbul Protocol is an important source as it both reflects existing obligations of States under international treaty and customary international law and aids States to effectively implement relevant standards. It became a United Nations official document in 1999. The Istanbul Protocol is intended to serve as a set of international guidelines for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body. The investigation and documentation guidelines also apply to other contexts, including human rights investigations and monitoring, assessment of individuals seeking political asylum, the defence of individuals who “confess” to crimes during torture, and assessment of needs for the care of survivors of torture. In the case of health professionals who are coerced to neglect, misrepresent, or falsify evidence of torture, the manual also provides an international point of reference for health professionals and adjudicators alike.
The documentation guidelines apply to individuals who allege torture and ill-treatment, whether the individuals are in detention, applying for political asylum, refugees or internally displaced persons, or the subject of general human rights investigations. The guidelines provided cover a range of topics including:
- Relevant international legal standards
- Relevant Ethical Codes
- Legal Investigation of Torture
- General Considerations for Interviews
- Physical Evidence of Torture
- Psychological Evidence of Torture
Many procedures for a torture investigation are included in the manual, such as how to interview the alleged victim and other witnesses, selection of the investigator, safety of witnesses, how to collect alleged perpetrator’s statement, how to secure and obtain physical evidence, and detailed guidelines on how to establish a special independent commission of inquiry to investigate alleged torture and ill-treatment. The manual also includes comprehensive guidelines for clinical examinations to detect physical and psychological evidence of torture and ill-treatment.
The Istanbul Protocol also outlines minimum standards for state adherence to ensure the effective documentation of torture in its Principles on the Effective Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or “Istanbul Principles” The guidelines contained in the Istanbul Protocol are not designed to be fixed, rather, they represent an elaboration of the minimum standards contained in the Istanbul Principles and should be applied in accordance with a reasonable assessment of available resources.
The Istanbul Protocol is a non-binding document. However, international law obliges governments to investigate and document incidents of torture and other forms of ill-treatment and to punish those responsible in a comprehensive, effective, prompt and impartial manner. The Istanbul Protocol is a tool for doing this.
The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, outlines international, legal standards on protection against torture and sets out specific guidelines on how effective … Continue reading
The Istanbul Protocol outlines some specific guidelines for forensic examiners to use when conducting evaluations. The purpose is to elicit information in a humane and effective manner. During the evaluation, examiners should pay attention to the psychosocial history of the alleged victim. Relevant psychosocial history may include inquiries into “…the person’s daily life, relations with friends and family, work or school, occupation, interests, future plans and use of alcohol and drugs.” Information about any prescription drugs is important, since the discontinuation of any medications during custody could affect the detainee’s health. Health professionals should be aware of the following considerations in the course of conducting their medical evaluations (see Module 3 for a detailed discussion):
- Informed Consent: Health professionals must ensure that individuals understand the potential benefits and potential adverse consequences of an evaluation and that the individual has the right to refuse the evaluation.
- Confidentiality: Health professionals and interpreters have a duty to maintain confidentiality of information and to disclose information only with the alleged victim’s consent.
- Setting: The location of the interview and examination should be as safe and comfortable as possible, including access to toilet facilities. Sufficient time should be allotted to conduct a detailed interview and examination.
- Control: The professional conducting the interview/examination should inform the alleged victim that he or she can take a break if needed or to choose not to respond to any question or to stop the process at any time.
- Earning Trust: Trust is an essential component of eliciting an accurate account of abuse. Earning the trust of one who has experienced torture and other forms of abuse requires active listening, meticulous communication, courtesy, and genuine empathy and honesty.
- Translators: Professional, bicultural interpreters are often preferred, but may not be available.
- Preparation for the Interview: Health professionals should read relevant material in order to understand the context of the alleged abuse and to anticipate regional torture practises.
- Interview Techniques: Initially, questions should be open-ended, allowing a narration of the trauma without many interruptions. Closed questions are often used to add clarity to a narrative account or to carefully redirect the interview if the individual wanders off the subject.
- Past Medical History: The health professional should obtain a complete medical history, including prior medical, surgical or psychiatric problems. Be sure to document any history of injuries before the period of detention or abuse, and note any possible after-effects.
- Trauma History: Leading questions should be avoided. Inquiries should be structured to elicit a chronological account of the events experienced during detention. Specific historical information may be useful in corroborating accounts of abuse. For example, a detailed account of the individual’s observations of acute lesions—and the subsequent healing process—often represents an important source of evidence in corroborating specific allegations of torture or ill-treatment. Also, historical information may help to correlate individual accounts of abuse with established regional practises. Useful information may include descriptions of torture devices, body positions, and methods of restraint; descriptions of acute and chronic wounds and disabilities; and information about perpetrators’ identities and place(s) of detention.
- Review of Torture Methods: It complements the trauma history to explore abuses that could have been forgotten or avoided by the alleged victim due to their nature (e.g. rape). The review is not intended to be an exhaustive checklist; it should be individually tailored according to the trauma history or to the relevant regional or local practices.
- Pursuit of Inconsistencies: An alleged victim’s testimony may, at first, appear inconsistent unless further information is gathered. Factors that may interfere with an accurate recounting of past events may include: blindfolding, disorientation, lapses in consciousness, organic brain damage, psychological sequelae of abuse, fear of personal risk or risk to others, and lack of trust in the examining clinician.
- Nonverbal Information: Include observations of nonverbal information such as affect and emotional reactions in the course of the trauma history and note the significance of such information.
- Transference and Counter-transference Reactions: Health professionals who conduct medical evaluations should be aware of the potential emotional reactions that evaluations of trauma may elicit in the interviewee and interviewer. These emotional reactions are known as transference and counter-transference. For example, mistrust, fear, shame, rage, and guilt are among the typical transference reactions that torture survivors experience, particularly when asked to recount details of their trauma. In addition, the clinician’s emotional responses to the torture survivor, known as counter-transference (eg, horror, disbelief, depression, anger, over-identification, nightmares, avoidance, emotional numbing, and feelings of helplessness and hopelessness), may affect the quality of the evaluation. Considering survivors’ extreme vulnerability and propensity to re-experience their trauma when it is either recognised or treated, it is critical that health professionals maintain a clear perspective in the course of their evaluations.
The Istanbul Protocol also provides a series of guidelines to ensure procedural safeguards for medical evaluations of detainees alledging torture and ill-treatment (see Procedural Safeguards for Detaines below).
The Istanbul Protocol outlines some specific guidelines for forensic examiners to use when conducting evaluations. The purpose is to elicit information in a humane and effective manner. During the evaluation, examiners should pay attention to the psychosocial history of the … Continue reading
Although straightforward allegations of torture can be documented by a health professional on his or her own, the investigation and documentation of torture is ideally a joint effort to be carried out by a number of actors with expertise in different fields. These usually include a lawyer, health professional and human rights monitor. Others who play an important part in the effort are judges, the police, the media, and of course the individuals and their families.
Although straightforward allegations of torture can be documented by a health professional on his or her own, the investigation and documentation of torture is ideally a joint effort to be carried out by a number of actors with expertise in … Continue reading