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Module 2: Istanbul Protocol Standards for Medical Documentation of Torture and Medical Ethics
Medical evidence is one of many types of substantiation given to allegations of torture and other ill-treatment, and will often be used in conjunction with other forms of evidence. These will commonly include:
- The individual’s statement
- Witness statements
- Other forms of third party evidence, such as the testimony of a forensic scientist or other expert
- Objective evidence of a widespread occurrence of torture in the circumstances referred to
- Anything else which can help to support and prove an allegation.
Medical evidence is one of many types of substantiation given to allegations of torture and other ill-treatment, and will often be used in conjunction with other forms of evidence. These will commonly include: The individual’s statement Witness statements Other forms … Continue reading
The Istanbul Protocol is a set of guidelines for the effective investigation and documentation of torture and ill-treatment. These international standards help both legal and forensic experts to investigate and document torture and ill-treatment. The medical guidelines, in particular, help forensic experts to assess the degree to which medical findings correlate with individual allegations of abuse and to effectively communicate the findings and interpretations to the judiciary or other appropriate authorities.
Medical experts involved in the investigation of torture must conform to the highest ethical standards, including obtaining informed consent before any examination is undertaken. The examination must conform to established standards of medical practise. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials. The medical expert should promptly prepare an accurate written report which includes at least the following: case-specific, identifying information; a detailed record of the subject’s allegations of torture and/or ill-treatment, including all complaints of physical and psychological symptoms; a record of all physical and psychological findings on clinical examination; an interpretation as to the probable relationship of the physical and psychological findings to possible torture and ill-treatment; recommendations for any necessary medical and psychological treatment and/or further examination; and the identify those carrying out the examination. The report should be confidential and communicated to the subject or his or her nominated representative.
According to the Istanbul Protocol, the following guidelines should be applied with due consideration to the purpose of an individual evaluation:
- Relevant Case Information
- Clinician’s Qualifications
- Statement Regarding Veracity of Testimony
- Background Information
- Allegations of Torture and Ill-treatment
- Physical Symptoms and Disabilities
- Physical Examination
- Psychological History/Examination:
- Diagnostic Test Results
- Interpretation of Physical and Psychological Findings
- Conclusions and Recommendations
- Statement of Truthfulness (for judicial testimonies)
- Statement of Restrictions on the Medical Evaluation/Investigation (for subjects in custody)
- Clinician’s Signature, Date, Place
- Relevant Appendices
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 is a set of guidelines for the effective investigation and documentation of torture and ill-treatment. These international standards help both legal and forensic experts to investigate and document torture and ill-treatment. The medical guidelines, in particular, help … 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
Health professionals who encounter survivors of torture may do so in different capacities, and they may thus have slightly different but convergent duties:
- The health professional who is asked to examine an individual expressly for the purpose of providing a medical opinion in a report for a court or other judicial body will be fulfilling a forensic (medico-legal) role.
- A health professional who is acting as a care giver to an individual and who in the course of routine work notes signs and symptoms of ill-treatment, or to whom the individual complains of being previously subjected to ill-treatment, may need to make an accurate medical record of the findings in the medical notes.
- A health professional who forms part of a team visiting places of detention may record findings of ill-treatment in individuals, but this information may be used more generally in a report on the place of detention without actually forming part of a medico-legal report.
- Health professionals in primary care or emergency departments to whom the individual complains of ill-treatment or who note signs of torture. In such cases the health professional may not necessarily have to write a report, but may just need to know how to make a proper examination and a good set of medical notes, which document the care.
- Health professionals in hospitals or clinics who may be asked by, for example, police or military, to examine a detainee.
- Health professionals examining individuals in a specialist centre for survivors of torture
The first and foremost concern for the health professional is the immediate health and well-being of the torture survivor. Health professionals may have a therapeutic role in treating the patient, or a forensic role in establishing the possible causes and origins of injuries and trauma. There are concerns that having a dual role may create the perception of bias in the reporting. The health professional should therefore ensure that the individual is receiving any necessary medical care, taking into account that:
- Care includes immediate treatment and long-term rehabilitation for survivors of torture.
- Forms of torture may be used that are psychological or otherwise leave no persisting physical signs. It must always be emphasised that the absence of physical or psychological findings can never be considered to be evidence that ill-treatment did not occur.
- A psychological assessment of the individual should take place, noting any psychological effects that may be the result of torture or other ill-treatment.
- The strongest evidence supporting the allegation of torture is often of a medical or psychological nature. The health professional should record any external or physical evidence of injury or abuse and any psychological symptoms and signs.
Health professionals who encounter survivors of torture may do so in different capacities, and they may thus have slightly different but convergent duties: The health professional who is asked to examine an individual expressly for the purpose of providing a … Continue reading
Many UN documents address the specific ethical obligations of doctors and other health professionals, for example in Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Standard Minimum Rules for the Treatment of Prisoners; and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol). These documents stress that it is a gross contravention of health care ethics to participate, actively or passively, in torture or other ill-treatment, or condone it in any way. Medical services must be provided for all patients without discrimination. They reinforce the ethical obligations of health professionals to act in the best interests of patients.
Many UN documents address the specific ethical obligations of doctors and other health professionals, for example in Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and … Continue reading
The Istanbul Principles have been recognised by a number of human rights bodies as a point of reference for measuring the effectiveness of torture investigations. Such recognition represents a significant factor in the widespread use and acceptance of Istanbul Protocol standards in medico-legal contexts.
Both the UN General Assembly and the then UN Commission on Human Rights (since 2006, the UN Human Rights Council) have strongly encouraged states to reflect upon the Principles in the Protocol as a useful tool to combat torture in their resolutions 55/89 on the 4th of December 2000, following the recommendation of the United Nations Special Rapporteur on Torture during the fifty-sixth session, on the 2nd of February 2000.
The UN Special Rapporteur on Torture stressed in his General Recommendations of 2003 the importance of the Istanbul Principles in the context of establishing independent national authorities for investigation; promptness and independence of investigations; independence of forensic medical services by governmental investigatory bodies and obtaining forensic evidence.
On the 23rd of April 2003, the UN Commission on Human Rights, in its resolution on human rights and forensic science, drew the attention of governments to these principles as a useful tool in combating torture. Likewise, reference was made to the Istanbul Protocol in the resolution on the competence of national investigative authorities in preventing torture.
In addition to recognition by the UN system, the Istanbul Protocol has also been adopted by several regional bodies.
The African Commission on Human and Peoples’ Rights deliberated on the importance of the Istanbul Protocol during its 32nd ordinary session in October 2002 and concluded that investigations of all allegations of torture or ill-treatment, shall be conducted promptly, impartially and effectively, and be guided by the Istanbul Principles.
The European Union has referred to the Istanbul Protocol in its Guidelines to EU Policy towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Affairs Council in 2001. The EU guidelines mention that states should “conduct prompt, impartial and effective investigations of all allegations of torture in accordance with the Istanbul Rules annexed to CHR resolution 2000/43” and should “establish and operate effective domestic procedures for responding to and investigating complaints and reports of torture and ill-treatment in accordance with the Istanbul Rules.”
Other institutions and organisations have reiterated the UN and other bodies’ recommendations in their reports, statements, and comments (including the Advisory Council of Jurists and the Asia Pacific Forum of National Human Rights Institutions). These references can roughly be summarised into three categories”
- References that cite the Istanbul Protocol as a useful tool in the efforts to combat torture and strongly encourage governments to reflect upon the principles contained in the Protocol;
- References that stress that all investigations and documentation of torture allegations should be conducted promptly, impartially and effectively, and be guided by the Istanbul Principles;
- References that say that states should establish and operate effective domestic procedures for the investigation and documentation of torture allegations in accordance with the Istanbul Protocol.
The Istanbul Principles have been recognised by a number of human rights bodies as a point of reference for measuring the effectiveness of torture investigations. Such recognition represents a significant factor in the widespread use and acceptance of Istanbul Protocol … Continue reading
Medical evidence is a very important type of evidence as it can add strong support to witness testimony. It is rare for medical evidence to be conclusive – prove with certainty that torture occurred – because:
- Many forms of torture leave very few traces, and even fewer leave long-term physical signs that they ever occurred.
- Injuries or marks which are alleged to have resulted from torture cannot always be distinguished with a high degree of certainty from the effects of other causes.
What medical evidence usually can do is demonstrate that injuries or other clinical findings recorded in the alleged survivor are consistent with or highly consistent with the torture described. Where there is a combination of physical and psychological evidence compatible with an allegation, this will strengthen the overall value of the medical evidence.
When obtaining medical evidence, it is important to be aware of the difference between therapeutic (treating a patient’s symptoms) and forensic (legal) medicine. The objective of forensic medicine is to assist the courts and other appropriate authorities in medico-legal matters, for example, by establishing the causes and origins of injuries. Sometimes both therapeutic and forensic functions are carried out by the same health professionals but, where possible, they should be separated to avoid a possible conflict between the two roles. Failing that, the possible conflict should be recognised and discussed by the clinical evaluator.
Medical evidence is a very important type of evidence as it can add strong support to witness testimony. It is rare for medical evidence to be conclusive – prove with certainty that torture occurred – because: Many forms of torture … Continue reading
Indispensable to compliance with the guidelines prescribed in the Istanbul Protocol is an understanding that “the absence of…physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars.” As a matter of fact, survivors of torture and/or ill-treatment often to not have physical evidence of torture as most lesions heal in approximately 6 weeks. As stated in the Istanbul Protocol, “a detailed account of the patient’s observations of acute lesions and the subsequent healing process often represent an important source of evidence in corroborating specific allegations of torture or ill-treatment.” (IP, §171) Physical manifestations of torture may involve all organ systems. Some effects are typically acute while other may be chronic. Symptoms and physical findings will vary in a given organ system over time, though psychosomatic and neurologic symptoms are typically chronic findings. Musculoskeletal symptoms are commonly present in both acute and chronic phases. A particular method of torture, its severity, and the anatomical location of injury often indicate the likelihood of specific physical findings. For example:
- Beating the soles of the feet (falanga) may result in subcutaneous fibrosis and a compartment syndrome of the feet.
- The use of electricity and various methods of burning may also leave highly characteristic skin changes.
- Whipping may also produce a highly characteristic pattern of scars.
- Different forms of body suspension and stretching of limbs may result in characteristic musculoskeletal and nerve injuries.
- Other forms of torture may not produce physical findings, but are strongly associated with other conditions. For example, beatings to the head that result in loss of consciousness are particularly important to the clinical diagnosis of organic brain dysfunction. Also, trauma to the genitals is often associated with subsequent sexual dysfunction.
Before conducting the physical examination, the Istanbul Protocol states that health professionals should interview individuals in an effort to compile background information, asking individuals to describe both acute and chronic symptoms and/disabilities. Health professionals should ask examinees about any injuries resulting from the alleged abuse, documenting instances where the examinees’ ability to describe injuries may be compromised by any after-effects of the torture. Typical acute symptoms include bleeding, bruising, burns from cigarettes, heated instruments or electricity, musculoskeletal pain, numbness, weakness, and loss of consciousness. Some common chronic systems are headache, back pain, gastrointestinal symptoms, sexual dysfunction, and muscle pain. In addition, many alleged victims suffer from chronic psychological effects, which can include depression, anxiety, insomnia, nightmares, flashbacks, and memory difficulties. Physicians should inquire about the intensity, frequency, as well as duration of each reported symptom.
After gathering background information, forensic experts should conduct a physical examination looking for findings or the lack of them that correlate with the allegations of torture and/or ill-treatment.In general, these examinations include an assessment of the following organs or systems: a) skin, b) face, c) chest and abdomen, d) musculoskeletal system, e) genitourinary system, and f) central and peripheral nervous system. The examiner should note all pertinent positive and negative findings, using body diagrams and photographs to record the location and nature of all injuries. Although genital exams can provide crucial corroborating evidence, these are to be performed only with the alleged victim’s consent. In the case that the physician differs in gender from the alleged victim, a chaperone must be present in the examination room. While diagnostic tests are not an essential part of the clinical assessment, there are some circumstances in which such tests may provide valuable supporting evidence.
Indispensable to compliance with the guidelines prescribed in the Istanbul Protocol is an understanding that “the absence of…physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no … Continue reading