Module 2: Istanbul Protocol Standards for Medical Documentation of Torture and Medical Ethics

General Guidelines for Gathering Evidence and Documenting Findings

The primary goal of documenting allegations of human rights violations is to create an accurate, reliable and precise record of events. The uses to which this record may be put are varied, but all rely on the quality of the record that has been established. A description of a typical documentation team is given, detailing the different roles and functions carried out by each member. A general overview of documentation is provided, to illustrate for the health professional how the medical evidence fits into the wider picture of documentation and evidence. It also covers essential information needed in any investigation of allegations, including types of evidence which the health professional should attempt to gather when the lawyer is prevented from doing so. General guidelines are given on the types of evidence needed, what essential information should be collected, how to ensure the quality of information, and various considerations to be taken into account in the gathering of evidence.

The primary goal of documenting allegations of human rights violations is to create an accurate, reliable and precise record of events. The uses to which this record may be put are varied, but all rely on the quality of the … Continue reading

Role of the lawyer in the team

Lawyers are key interlocutors for survivors of torture seeking justice and other forms of reparation. Equally, they may play a vital role in persuading governments to comply with their international obligations to refrain from acts of torture and to implement preventative measures. If lawyers are familiar with the applicable international standards, they may seek to interpret and apply domestic law in light of these standards, and may cite such standards in their legal argument, pleadings and complaints.

The Istanbul Protocol states that lawyers have a duty in carrying out their professional functions to promote and protect human rights standards and to act diligently in accordance with law and recognised standards and ethics of the legal profession. Other human rights instruments, such as the “UN Basic Principles on the Role of Lawyers”,[1] set out the duty of lawyers to assist clients “in every appropriate way” and to take legal action to protect their interests.

International standards to investigate torture are primarily formulated as obligations of States, as reflected in Chapter III of the Istanbul Protocol. However, lawyers play a crucial and active role in the documentation and investigation of torture, in particular by:

(i) documenting torture for use in legal or other proceedings, including future proceedings where national mechanisms at the time are unavailable or ineffective;

(ii) collecting evidence of torture that may prompt authorities to open or reopen an investigation;

(iii) providing evidence of torture that supports ongoing investigations or prosecutions at the national or international level;

(iv) recording the failure to investigate in spite of the availability of evidence or the shortcomings of any investigations undertaken with a view to prompting further investigations, including by taking cases to regional or international human rights bodies;

(v) collecting evidence to support reparation claims brought at the national or international level before judicial or administrative bodies.

The Istanbul Protocol highlights the important role of medical professionals in the documentation of torture and sets out detailed guidelines on methodology for obtaining medical evidence, including the recommended content of medical reports.

It is important for lawyers working with torture survivors to know how torture can be medically documented and how to recognise the physical and psychological symptoms of torture. This will not only help them to better understand their clients and assist them but equally, such insights are extremely important when lawyers lodge complaints of torture or other forms of ill-treatment on the survivors’ behalf. As recognised in the Istanbul Protocol, lawyers and doctors need to work closely together to effectively investigate and document acts of torture. Medical evidence may convincingly demonstrate that torture has occurred. It will also assist lawyers to determine victims’ claims for reparations (e.g., restitution, compensation and rehabilitation). Similarly, lawyers will need to assess whether the official investigation undertaken by the police or other competent body took into account proper medical evidence or whether they need to arrange for independent medical examinations to attest to the victim’s version of the events.


[1] See UN Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, 27 August-7 September 1990.

Lawyers are key interlocutors for survivors of torture seeking justice and other forms of reparation. Equally, they may play a vital role in persuading governments to comply with their international obligations to refrain from acts of torture and to implement … Continue reading

Module 2: Istanbul Protocol Standards for Medical Documentation of Torture and Medical Ethics

Objectives

  • To familiarize students with the purpose, history, significance of the Istanbul Protocol
  • To review the overall content of the Istanbul Protocol
  • To be aware of the limitation and possible misuse of the Istanbul Protocol
  • To understand Istanbul Protocol standards for procedural safeguards relevant to the medical documentation of torture and ill-treatment
  • To understand the medical ethical principles relevant to the medical investigation and documentation of torture and ill-treatment
  • To identify the duties of health professionals in the process of investigating and documenting torture and ill-treatment
  • Review current, country-specific rules and regulations regarding medical documentation of torture and ill-treatment [to be provided by Instructors]
  • To identify country-specific challenges in applying international ethical standards to the effective investigation and documentation of torture and ill-treatment

Content

  • Review of the International Standards for the Effective Investigation and Documentation of Torture and Ill-treatment, the Istanbul Protocol
    • Purpose
    • History
    • International recognition of the Istanbul Protocol
    • Overview of Istanbul Protocol content
    • Misuse of the Istanbul Protocol
  • Medical Ethics relevant to the investigation and documentation of torture and ill-treatment
  • Duties of the health professional
    • International codes
    • Ethical rules prohibiting torture
    • Primary loyalty to the patient
    • Dual Obligations
    • The treatment of prisoners and detainees
    • Issues surrounding examinations of individuals in the presence of security forces
    • Abusive medical treatment
    • Consent and Confidentiality
    • Security
    • Involvement of health professionals in torture
    • Seeking further information and support
    • UN Committee against Torture
  • Country-specific legal responsibilities of the health professionals for forensic documentation of torture and ill-treatment [to be provided by instructors]
  • General guidelines for gathering evidence
    • The aims and goals of investigation
    • The role of health professionals, defense lawyers and NGO workers
    • The role of judges and prosecutors
    • Documenting the allegations
    • The aim of medical documentation
    • Types of evidence
    • Medical evidence
    • Gathering of evidence
    • Essential information
    • Comparing records

Discussion Topics

  • Discuss the value of the Istanbul Protocol for the effective medical investigation and documentation of torture and ill-treatment and its potential for misuse
  • Compare and contrast international medical ethical standards for torture documentation and country-specific legal responsibilities of the health professionals for forensic documentation of torture and ill-treatment and provide recommendations for any conflicts identified
  • Discuss international and country-specific strategies to address potential personal risks to health professionals who document torture and ill-treatment
  • Discuss how health personnel in international and national professional organisations, academics and governmental and non-governmental organisations can work together for the effective investigation and prevention of torture
  • Discuss the role of alternative (non-governmental) medical reports. Discuss how have they been used internationally and locally and what their effect has been.
  • Discuss the relationship between health and human rights and whether health professionals have a duty to protect and promote human rights, including freedom from torture and ill-treatment

Teaching Formats

  • Group Activity:
    • Divide the class into several groups and assign each group with one or more (or all) of the Discussion Topics.
    • A facilitator should be identified to moderate the discussion and rapporteur should be identified to record the group’s findings and report them when the class reconvenes.
    • After 20-30 minutes of group discussion, the entire class should reconvene
    • Rapporteurs should briefly report on their group’s findings
    • Open class discussion
  • Individual Research/Assignment:
    • Conduct literature research on the complicity of medical personnel in torture and write a 2-page essay developing a series of country-specific policy recommendations for the government, medical licensing board and national medical association.
    • Develop of country-specific list of organisations and bodies relevant to torture and ill-treatment
    • If not discussed in class, research the legal status of alternative (non-governmental) forensic medical reports. Indicate how have they been used internationally and locally and what their effect has been.
  • Journal Entry: (Instructor to assign Write a few paragraphs — no more than a page)
    • Respond to one or more of the Discussion Topics
    • Do health professionals have a duty to protect and promote human rights? Explain why or why not.
    • How can and should health professioinals document torture and ill treatment when they (or their family members) face the risk of reprisals?

Primary Resources

  • The Istanbul Protocol, Chapter II- Relevant Ethical Codes
  • Medical Investigation and Documentation of Torture: A Handbook for Health Professionals
  • Trainers’ Guidelines for Health Professionals: Training of Users
  • Psychological Evaluation of Torture Allegations: An International Training Manual
  • Action Against Torture: A Practical Guide to the Istanbul Protocol for Lawyers

Objectives To familiarize students with the purpose, history, significance of the Istanbul Protocol To review the overall content of the Istanbul Protocol To be aware of the limitation and possible misuse of the Istanbul Protocol To understand Istanbul Protocol standards … Continue reading

Ethical rules directly prohibiting involvement in torture

A number of international ethical standards deal directly with the obligations of health professionals with regard to torture and other ill-treatment. The World Medical Association’s 1975 Declaration of Tokyo, Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, contains an unequivocal prohibition on any form of active or passive participation of a doctor in torture or other ill-treatment. According to the Tokyo Declaration:

  • The doctor shall not countenance, condone or participate in the practise of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accused or guilty, and whatever the victim’s belief or motives, and in all situations, including armed conflict and civil strife.
  • The doctor shall not provide any premises, instruments, substances or knowledge to facilitate the practise of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment.
  • The doctor shall not be present during any procedure during which torture or other forms of cruel, inhuman or degrading treatment are used or threatened.

Tokyo Declaration was revised in 2006 to include the provision that:

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.

Principles of medical ethics apply not only to doctors, but to all health care professionals. Nurses may also find themselves faced with patients who are survivors of torture or other ill-treatment, and the Position Statement on Nurses’ Role in the Care of Prisoners and Detainees, of the International Council of Nurses, has stressed the fundamental obligation of the nurse to restore the health and alleviate the suffering of the patient, including prisoners, and to protect them from abuse and ill-treatment. Similarly, the World Psychiatric Association has issued specific guidance which prohibits any participation of psychiatrists in torture (Declaration of Madrid 1996).

‘Participation’ in torture refers to some action at the time of the abuse or later, or by omission. It includes evaluating an individual’s capacity to withstand ill-treatment; being present at, supervising or inflicting ill-treatment; resuscitating individuals for the purposes of further ill-treatment; providing medical treatment on the instructions of those likely to be responsible for torture (rather than on the basis of clinical judgement); or providing professional medical knowledge or individuals’ personal health information to torturers. Omission includes the deliberate withholding of medical treatment so as to aggravate suffering intentionally or neglecting evidence. The failure to report cases of ill-treatment or torture that a health professional has noted is, at the least, acquiescence in torture, and the falsifying of medical notes or reports is a form of complicity in the abuse.

A number of international ethical standards deal directly with the obligations of health professionals with regard to torture and other ill-treatment. The World Medical Association’s 1975 Declaration of Tokyo, Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or … Continue reading

Gathering of evidence

The medical evidence will be used in combination with the other types of evidence mentioned above. Detailed guidelines on gathering medical evidence, including the interviewing of alleged victims, physical and psychological examinations, and writing medical reports, are addressed in the following Modules.

Health professionals engaged in the documentation and investigation of torture ought also, however, to be aware of certain non-medical aspects of evidence gathering. In ideal circumstances, there will be a number of people responsible for collection of evidence, and other members of the team, particularly the lawyers or NGO professionals, will coordinate the collection and ensure that all requisite details have been gathered. However, in some circumstances not all members of the team will have access to the alleged victim, and it is therefore crucial that each member is aware of the necessary details essential for the substantiation of alleged abuse. In other circumstances, health professionals may participate in human rights investigations and monitoring. The level of proof and detail may vary depending on the purpose of documentation: for example, a criminal trial requires higher standards of proof than a civil hearing or administrative procedures determining potential risk in case of deportation. If the health professional is the only person with access to the alleged victim or other source of information, it is vital that he or she attempts to collect, or ensures that others collect, key information, beyond the purely medical evidence.

The medical evidence will be used in combination with the other types of evidence mentioned above. Detailed guidelines on gathering medical evidence, including the interviewing of alleged victims, physical and psychological examinations, and writing medical reports, are addressed in the … Continue reading

Psychological Evidence of Torture

According the to Istanbul Protocol, the psychological impacts can vary depending on a variety of factors: “…the psychological consequences of a mock execution are not the same as those due to a sexual assault, and solitary confinement and isolation are not likely to produce the same effects as physical acts of torture. Likewise, one cannot assume that the effects of detention and torture on an adult will be the same as those on a child.” Despite this variation, certain psychological reactions have been documented in torture survivors with some regularity, and these evaluations remain key by “…provid[ing] useful evidence for medico-legal examinations, political asylum applications, establishing conditions under which false confessions may have been obtained, understanding regional practises of torture, identifying the therapeutic needs of victims and as testimony in human rights investigations.”

Although there may be considerable variability in psychological effects, torture and ill-treatment often result in profound, long-term psychological trauma. According to the Istanbul Protocol, the most common psychological problems are posttraumatic stress disorder (PTSD) and major depression, but may include the following:

  • Re-experiencing the trauma
  • Avoidance and emotional numbing
  • Hyperarousal symptoms
  • Symptoms of depression
  • Damaged self-concept and foreshortened future
  • Dissociation, depersonalisation, and atypical behaviour
  • Somatic complaints
  • Sexual dysfunction
  • Psychosis
  • Substance abuse
  • Neuropsychological impairment

As with physical injuries, the absence of a definite mental health syndrome or condition, such as PTSD or depression, does not rule out torture and/or ill-treatment. Whether an individual presents with mental health problems depends on multiple factors, including but not limited to age, gender, mental preparedness, personality traits, degree of psychological trauma, and cultural/religious values.

Such psychological symptoms and disabilities can last many years or even a lifetime. 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.

The psychological examination should elicit background information about the victim’s life both preceding and following the alleged torture or ill-treatment. Components of the psychiatric evaluation should include: a) history of torture and ill-treatment, b) current psychological complaints, c) post-torture history, d) pre-torture history, e) medical history, f) psychiatric history, g) substance use and abuse history, h) mental status examination, i) assessment of social function, j) psychological testing and the use of checklists and questionnaires, and k) clinical impression. Such information enables examiners to assess the presence of significant psychological symptoms and its relationship to the alleged trauma and other possible causes.

According the to Istanbul Protocol, the psychological impacts can vary depending on a variety of factors: “…the psychological consequences of a mock execution are not the same as those due to a sexual assault, and solitary confinement and isolation are … Continue reading

Role of the NGO member in the team

Experience over the past decades has shown that human rights NGOs vary in mandate, focus, and methods, but some can contribute in important ways to the documentation of torture and subsequent legal action:

  • They can assist individuals to gain advice, services and treatment, from the legal and medical professions, through lawyers and health professionals who are part of the NGO or by referral to others.
  • NGOs are often best placed to handle the case of the individual in the international arena, for example by assisting and advising in making complaints to international courts and other mechanisms.
  • The information held by the NGO on other similar cases and the research conducted on torture and other ill-treatment domestically and internationally, can provide valuable support to the case of the individual. Their knowledge of local circumstances can be very important. In certain cases it may be possible to combine a number of cases into joint complaints and petitions.
  • NGOs often have the expertise for any necessary work to be done through public advocacy or with the media.
  • NGOs can assist in the prevention of abuse, for example, by circulating information about those who have been recently arrested.

Although the circumstances vary considerably between countries, generally it is better for an NGO to be open about its activities in helping survivors of torture and to develop links with relevant regional and international bodies; this makes it easier to seek protection from intimidation by the national authorities.

Experience over the past decades has shown that human rights NGOs vary in mandate, focus, and methods, but some can contribute in important ways to the documentation of torture and subsequent legal action: They can assist individuals to gain advice, … Continue reading

Primary loyalty to the patient

The principles of medical ethics make it clear that the primary loyalty of the health professional is to the patient. While the health professional may feel bound towards the state as an employer or for ideological reasons, their first and foremost obligation is always to the patient. According to the Tokyo Declaration “…the doctor’s fundamental role is to alleviate the distress of his or her fellow men, and no motive whether personal, collective or political shall prevail against this higher purpose.”

In fact, according to the World Medical Association’s Declaration on the Rights of the Patient, “whenever legislation, government action or any other administration or institution denies patients these rights, physicians should pursue appropriate means to assure or to restore them.”

The principles of medical ethics make it clear that the primary loyalty of the health professional is to the patient. While the health professional may feel bound towards the state as an employer or for ideological reasons, their first and … Continue reading

Documenting the allegations

Essential information

In all cases, in addition to the medical evidence and information, the following non-medical details should be viewed as useful and often crucial information regardless of the purpose of documentation:

  • Identity of the victim. This should include full name, gender, age, occupation, and address. Date of birth is a useful identifier when the name is a common one; often the year is known although it might not correspond to the age given. Additional useful information would be a description of appearance, a photograph, and any relevant records that may exist on the individual, such as medical files from the time before the alleged abuse.
  • Identity of the perpetrators. This might include the identification of a particular individual or individuals. However, to establish responsibility of the state for a violation, it might be enough to show the connection with the state. Relevant information would detail whether they were members of a specific security force such as police or military and, if possible, their names and rank. If unsure, then a description of uniforms, vehicles, weapons or any identifying characteristics will assist in the determination. Note, for legal and human rights reasons, great care should be taken in making allegations that particular individuals have been involved in torture. These are, after all, allegations of serious criminality.
  • Description of how the individual came into the hands of the perpetrators. This should include whether the person was officially arrested, what reason was given for taking the person into custody, the time and date this took place, and whether there was use of violence or restraints.
  • Description of the location where the abuse took place. This may have been a prison, a police detention facility, a military installation, or any other institution or location, even an outdoor space. Additional useful information would be a description of the conditions in which the individual was held, including size, content of the room, lighting, hygiene, presence of others, and access to lawyers, visitors, and medical care.
  • Description of the form of abuse. Where did it occur? What happened? When? By whom? How often? How long did it last? And what effects did it have on the immediately and later? There should be a detailed description of exactly what occurred, and how frequently. Presence of anyone else in the room during the interview, whether detainees, security personnel or others, should be mentioned. Any instruments used should be noted. What were the immediate and long-term effects of the abuse? If the alleged victim received medical attention, or requested it and the request was denied, directly before, during, or after the abuse, this should all be detailed.
  • Possible witnesses. Were there others present at the time of the abuse. Who were they? What was their role (for example, other detainees)? Did others see the individual immediately after the ill-treatment (for example, cellmates or prison medical staff)?

In all cases, in addition to the medical evidence and information, the following non-medical details should be viewed as useful and often crucial information regardless of the purpose of documentation: Identity of the victim. This should include full name, gender, … Continue reading