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

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 which has been established. Factors which contribute to the quality of information are:

• The source of the information. Was the information obtained directly from the victim? The further away from the alleged victim or incident the information comes, the less reliable it is likely to be.
• The level of detail. Is the allegation very detailed? Are there unexplained gaps in the account? The more detail obtained, the better, because it helps others to understand what happened, and it also helps to prevent allegations of fabrication. Psychological and/or organic explanations for gaps should be kept in mind.
• The absence or presence of contradictions. Minor inconsistencies are common and should not affect the overall quality of the information, but major inconsistencies or contradictions should prompt seeking further clarification of the information.
• The absence or presence of elements which support (corroborate) or disprove the allegation. Are there witness statements, medical certificates or any other supporting information? The more supporting documentation that is provided, the more likely it is that the allegation will be found credible, but its absence is not evidence that the ill-treatment did not occur.
• The extent to which the information demonstrates a pattern. Is the allegation one of a number alleging similar facts? Where there is evidence of a practise, there may be a greater presumption that the information is true.
• The age of the information. Is the information very recent? Does it relate to facts which occurred several years previously? The fresher the information, the easier it is to investigate or verify the facts alleged.

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 →

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, as has been noted in a recent report by Physicians for Human Rights (PHR):^[1]

Recent statements by Mexican authorities to the press^[2] relating to the highly publicized case of Víctor Javier García Uribe, alias ‘El Cerillo’, demonstrate a fundamental misunderstanding of the purpose, nature and limitations of the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). The Istanbul Protocol is not a diagnostic test or tool that can be used to assure, with certainty, the presence or absence of torture, nor is it a U.N. treaty or instrument that can be ratified by member States as has been suggested by Governor José Reyes Baeza.^[3]

The Istanbul Protocol is a set of guidelines for the effective investigation and documentation of torture and ill-treatment. When used appropriately, these international standards help forensic experts to assess the degree to which medical findings correlate with the individual allegation of abuse and to effectively communicate the findings and interpretations to the judiciary or other appropriate authorities. 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.

Such misrepresentation of the Istanbul Protocol may explain why, in the PHR study, the majority of the forensic physicians working for the Federal Attorney General’s Office wrongly equated the lack of forensic findings with “proof” that the alleged torture and ill-treatment did not occur.

^[1]Forensic Documentation of Torture and Ill-treatment: An Assessment of the Implementation Process of the Istanbul Protocol Standards. Moreno A, Iacopino V. Physicians for Human Rights. December, 2008. pp. 94 and 114.

^[2] Rubén Villalpando, Rechaza PGJE de Chihuahua Tortura a Supuesto Asesino, JORNADA, Aug. 12, 2005 (“La Procuraduría General de Justicia del Estado (PGJE) confirmó que Víctor García Uribe, El Cerillo, no fuesometido a tortura en noviembre de 2001 para que se confesara culpable de asesinar a 11 mujeres, de acuerdo los criterios periciales del Protocolo de Estambul.”)[The Office of the State Attorney General confirmed that according to the expert opinion based on the Istambul Protocol, Víctor García Uribel, alias the Match, was not subjected to torture with the purpose of forcing a confesion of the 11 women murdered in November 2001]; Protocolo de Estambul no halla evidencias de tortura vs Cerillo, DIARIO , Aug. 12, 2005.

^[3] “Al afirmar que la aplicación del Protocolo de Estambul no está en entredicho, el gobernador José Reyes Baeza, indicó que ‘siempre las detenciones de cualquier presunto responsable estarán sujetas al respeto irrestricto de los derechos humanos, y con ello evitar el señalamiento, la inquietud y la molestia por parte de la comunidad, en torno a este tipo de detenciones’.” [“Confirming that there was no question about whether an evaluation according to the Istambul Protocol had been performed, the Governor José Reyes Baeza, said that ‘detentions are always subject to the utmost respect for the human rights of the person, thus avoiding questioning, uncertainty and anger within the community around such type of detentions’.”], available at www.nortedeciudadjuarez.com [1], (last visited August 17, 2005).

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 … Continue reading →

Download

Download Module 2: Istanbul Protocol Standards for Medical Documentation of Torture and Medical Ethics (PowerPoint Presentation) (ppt)

National criminal courts are primarily responsible for the investigation and prosecution of crimes of torture and other criminal forms of ill-treatment. A number of ad hoc international criminal tribunals have been established in recent years – including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Crimes of torture as crimes against humanity and war crimes are included in the Statute of ICTY,^[1] ICTR^[2] and the Rome Statute of the International Criminal Court (ICC).^[3] The Statute of the ICC was agreed in 1998 and received the 60 ratifications necessary for it to come into effect in 2002. The ICC will, in future, be able to prosecute some crimes of torture when national courts are unable or unwilling to do so.

^[24] Article 5, ICTY.

^[25] Article 3, ICTR.

^[26] Articles 7 and 8, ICC.

National criminal courts are primarily responsible for the investigation and prosecution of crimes of torture and other criminal forms of ill-treatment. A number of ad hoc international criminal tribunals have been established in recent years – including the International Criminal … Continue reading →

Many health professionals have dual obligations (also referred to as ‘dual loyalties’), in that they owe a primary duty to the patient to promote his or her best interests and often a separate duty to employers. There is also a general duty to society to ensure that violations of human rights are prevented, and that the interests of . The dilemmas arising from dual obligations are particularly acute, however, for health professionals working with the police, military, and other security services or in the prison system. In these situations, either through the fact of their employment or ideological reasons, the obligations to their employer (the State) as well as the interests of their employer and their non-medical colleagues may all be in conflict with the best interests of their patients. A military doctor, for example, may belong to the very same government forces to which suspected perpetrators belong, thus interposing the loyalty to their comrades, military unit and military objectives, due to a separate obligation to the individual patient. A military or prison doctor may be under pressure to ignore allegations, or not conduct proper examinations and/or to falsify any record of their findings.

However, health professionals hold a particular duty to act impartially and to document and report any suspected ill-treatment through the appropriate channels. Health professionals must only document that which they have personally verified themselves, and they must document this truthfully, fully and accurately. Health professionals must be able to make clinical decisions independently from employers, governments, and other bodies in order to act in the best medical interests of their patients. They cannot be obliged by contractual or other considerations to compromise their professional independence.

There are various situations in which dual obligations and other ethical and legal issues may arise:

• They could be asked to perform a medical examination prior to interrogation in order to verify that the individual will be able to withstand physical torture or other ill-treatment.
• They could be asked to revive or treat an individual during an abusive interrogation to enable further interrogation.
• They may be asked to provide medical knowledge or individual medical information concerning physical health or to identify psychological weaknesses or fears, that can be exploited in order to facilitate interrogation, or to develop new methods.
• Health professionals could be asked to be complicit in the falsifying of medical reports in order to cover up any indications of abuse.

Health professionals undertaking the above tasks may be guilty of playing an active or passive role in the abuse of an individual. In all these cases the health professional must abide by the rules of medical ethics and retain their primary loyalty to the patient, refusing to participate in or condone torture or other ill-treatment, and doing all they can to end the abuse, including the full and accurate documentation of any possible psychological or physical sequelae.

It should be kept in mind that in addition to the principles of medical ethics, health professionals working for the state are also bound by the rules of international law and which could, in certain cases, lead to individual criminal responsibility of the health professional for participation in torture. Obeying the orders of a superior would not provide a defence to a charge of participation in torture.

Forensic doctors may have a different relationship with individuals they examine. In their usual function, forensic doctors have a duty to the courts, to which they provide independent medical expert opinion, even though they may be paid by one or other party. Before beginning any examination, forensic doctors must explain their role to the individual and make clear that medical confidentiality is not a usual part of their role, as it would be in
a therapeutic context, as their primary duty is to objectively document evidence that can be presented to a court. However, forensic doctors should not examine individuals without making clear the nature of their role and gaining specific consent. If consent is refused, this must be noted and respected. Depending on the jurisdiction, following such refusal by the subject, a court order may be required before any examination or taking of samples can
proceed. The forensic doctor should seek to include in their findings and report, only that medical information that is relevant to the case, and should leave out that medical information which can remain confidential to the patient (e.g. if HIV status is not relevant to the case, then it should not be raised in the findings). They must not falsify their reports but provide impartial evidence, including making clear in their reports any evidence of ill treatment.

There is consensus in international and national declarations of ethical precepts that other imperatives, including the law, cannot oblige health professionals to act contrary to medical ethics and to their conscience. In such cases, health professionals must decline to comply with the law or a regulation rather than compromise basic ethical precepts. Whatever the circumstances of their employment, all health professionals owe a fundamental duty to care for the people they are asked to examine or treat. They cannot be obliged by contractual or other considerations to compromise their professional independence. They must make an unbiased assessment of the patient’s health interests and act accordingly.

Many health professionals have dual obligations (also referred to as ‘dual loyalties’), in that they owe a primary duty to the patient to promote his or her best interests and often a separate duty to employers. There is also a … Continue reading →

Different members of the team might have notes or memories that emphasise different aspects of the individual’s account. This is particularly true when the team comprises members with different professional backgrounds. Interviews should be reviewed and notes compared before one member is delegated to write up the relevant interview. All notes should be retained. It is important to note that a team approach may be more appropriate for documentation in a therapeutic context than a medico-legal context. In the case of medico-legal documentation, it is advisable to discuss with the client’s attorney potential benefits and liabilities before proceding with a team approach.

As the team comes together, it may be able to identify patterns of a general nature, especially if several teams are working together, and not every team member is aware of the information gathered by the others. Evidence that appeared incomprehensible or implausible might be clarified by the understanding of evidence gathered by other team members or teams. They can then discuss how to take the work forward, for example by de-identifying data and analysing them in groups.

Different members of the team might have notes or memories that emphasise different aspects of the individual’s account. This is particularly true when the team comprises members with different professional backgrounds. Interviews should be reviewed and notes compared before one … Continue reading →

1. The Istanbul Protocol can best be described as:
   1. The duties of states to ensure the effective investigation and documentation of torture and ill treatment
   2. Guidelines for the effective investigation and documentation of torture and ill treatment
   3. International Legal obligations of states to respect The intentional infliction of severe mental or physical pain or suffering
   4. International standards that enable medical and legal experts to prove or disprove allegations of torture and ill treatment
2. 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.
   1. True
   2. False
3. The Istanbul Protocol has been recognised by UN and regional human rights bodies as the international standard for the effective investigation and documentation of torture and ill treatment.
   1. True
   2. False
4. A forensic medical evaluator should avoid conveying empathy during evaluations of alleged torture victims because it may compromise his or her objectivity in the collection of physical and psychological evidence.
   1. True
   2. False
5. Although there may be considerable variability in the psychological effects of torture and ill-treatment, the effects are often profound and result in long-term psychological disability.
   1. True
   2. False
6. According to the Istanbul Protocol, what are the most common psychological problems that torture victims suffer from?
   1. There are no common psychological problems
   2. Posttraumatic stress disorder (PTSD) and depression
   3. Paranoia
   4. Sexual dysfunction
7. Physical evidence of trauma is always of greater legal value than psychological evidence.
   1. True
   2. False
8. In addition to providing medical evidence of torture and ill treatment, the Istanbul Protocol can be used to exonerate police who are accused of torture and ill treatment of detainees.
   1. True
   2. False
9. Which of the following are procedural safeguards for detainees?
   1. Police may be in the presence of the detainee when s/he is being examined
   2. The detainee’s lawyer should be present during the request for examination
   3. Prisoners should be examined at the most convenient location
   4. A copy of the examination should not, under any circumstances, be transferred to law enforcement officials
   5. Requests for medical evaluations by police should be considered valid
10. If the forensic medical examination supports allegations of torture, the detainee should not be returned to the place of detention.
    1. True
    2. False
11. The presence of police, security forces, and/or other third parties during the examination may be grounds for disregarding a negative medical report.
    1. True
    2. False
12. The term “medical ethics” refers to the moral framework that each health professional is bound to in their work.
    1. True
    2. False
13. The use of hoods or blindfolds during any contact between a detainee and a health professional is absolutely unacceptable under any circumstances.
    1. True
    2. False
14. Which of the following is not a provision under the World Medical Association’s 1975 Tokyo Declaration?
    1. Doctors shall not be present during any procedure during which torture is used
    2. The doctor shall not countenance, condone or participate in the practise of torture or other forms of cruel, inhuman or degrading procedures
    3. The doctor’s fundamental role is to alleviate the stress of his or her fellow man and no motive whether personal, collective, or political shall prevail against this higher purpose
    4. None of the above
15. Which of the following is not an example of a role that a health professional may play in the participation of torture and ill treatment?
    1. A health professional might be asked to resuscitate a torture victim after he/she has become unconscious
    2. A health professional might provide certain instruments to the torturers/perpetrators
    3. A health professional might be asked to falsify or misrepresent a medical report
    4. A health professional might perform a medical evaluation in order to assess that the victim will be able to withstand torture
    5. A health professional might provide confidential medical information to interrogators
    6. All of the above
16. Which of the following are essential elements of informed consent?
    1. Mental competence
    2. Full disclosure regarding risks and benefits
    3. The individual understands the information provided
    4. Consent is voluntary and not coerced in any way
    5. The individual provides verbal or written authorization of consent
    6. All of the above
17. When health professionals are pressured or required by law to disclose information to third parties about patients without consent, they should make clear to any authority requesting information that they are bound by professional duties of confidentiality.
    1. True
    2. False
18. Under which of the following circumstances would it be appropriate for a physician to feed a hunger striker?
    1. When the physician’s moral beliefs compel him or her to do so
    2. If the hunger striker is already in a comatose state and no prior directives have been established
    3. Immediate family members insist on feeding after the hunger striker became comatose, even though the attending physician documented that the detainee was competent, rational and understood the risk of his actions
    4. None of the above
19. The ethical duties of medical personnel do not apply in non-clinical encounters with detainees, such as interrogation.
    1. True
    2. False
20. Effective medical and legal investigations of torture and ill treatment requires obtaining the following essential information?
    1. Identity of the victim
    2. Identity of the perpetrators
    3. Description of how the individual came into the hands of the perpetrators
    4. Description of the location where the abuse took place
    5. Description of the form of abuse
    6. Possible witnesses
    7. All of the above

The Istanbul Protocol can best be described as: The duties of states to ensure the effective investigation and documentation of torture and ill treatment Guidelines for the effective investigation and documentation of torture and ill treatment International Legal obligations of … Continue reading →

Ensuring procedural safeguards for detainees is essential in conducting effective medical investigation and documentation of torture and ill-treatment. Failure to ensure such safeguards may, in fact, result in the possibility of administrative and/or criminal santions againse the medical expert responsible for forensic documentation of torture and ill-treatment. The Istanbul Protocol provides a series of guidelines to ensure procedural safeguards for medical evaluations of detainees alledging torture and ill-treatment as follows:

Forensic medical evaluations of detainees by all clinicians should be conducted in response to official written requests by public prosecutors or other appropriate officials. Requests for medical evaluations by law enforcement officials are to be considered invalid unless they are requested by written orders of a public prosecutor. Detainees themselves, their lawyer or relatives, however, have the right to request a medical evaluation to seek evidence of torture and ill-treatment. The detainee should be taken to the forensic medical examination by officials other than soldiers and police since torture and ill-treatment may have occurred in the custody of these officials and, therefore, that would place unacceptable coercive pressures on the detainee or the physician not to effectively document torture or ill-treatment. The officials who supervise the transportation of the detainee should be responsible to the public prosecutors and not to other law enforcement officials. The detainee’s lawyer should be present during the request for examination and post-examination transport of the detainee. Detainees have the right to obtain a second or alternative medical evaluation by a qualified physician during and after the period of detention.

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. Medical evaluation of detainees should be conducted at a location that the physician deems most suitable. In some cases, it may be best to insist on evaluation at official medical facilities and not at the prisoner jail. In other cases, prisoners 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.

The presence of police officers, soldiers, prison officers or other law enforcement officials in the examination room, for whatever reason, should be noted in the physician’s official medical report. The presence of police officers, soldiers, prison officials or other law enforcement officials during the examination may be grounds for disregarding a “negative” medical report. The identity and titles of others who are present in the examination room during the medical evaluations should be indicated in the report. Medico-legal evaluations of detainees should include the use of a standardized medical report form.

The original, completed evaluation should be transmitted directly to the person requesting the report, generally the public prosecutor. When a detainee or a lawyer acting on his or her behalf requests a medical report, they must be provided with the report. Copies of all medical reports should be retained by the examining physician. A national medical association or a commission of inquiry may choose to audit medical reports to ensure that adequate procedural safeguards and documentation standards are adhered to, particularly by doctors employed by the State. Reports should be sent to such an organisation, provided the issues of independence and confidentiality have been addressed. Under no circumstances should a copy of the medical report be transferred to law enforcement officials. It is mandatory that a detainee undergo a medical examination at the time of detention and an examination and evaluation upon release.^[1] Access to a lawyer should be provided at the time of the medical examination. An outside presence during examination may be impossible in most prison situations. In such cases, it should be stipulated that prison doctors working with prisoners respect medical ethics, and they must be capable of carrying out their professional duties independently of any third party influence. 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.^[2]

^[1] See the United Nations Standard Minimum Rules for the Treatment of Prisoners (chap. I, sect. B).

^[2] “Health care for prisoners: implications of Kalk’s refusal”, TheLancet, vol. 337 (1991), pp. 647-648.

Ensuring procedural safeguards for detainees is essential in conducting effective medical investigation and documentation of torture and ill-treatment. Failure to ensure such safeguards may, in fact, result in the possibility of administrative and/or criminal santions againse the medical expert responsible … Continue reading →

The ICRC is an independent and impartial humanitarian body with a specific mandate assigned to it under international humanitarian law, particularly the four Geneva Conventions. It actively provides many forms of protection and assistance to victims of armed conflict, as well as situations of internal strife. In cases of international armed conflict between states party to the Geneva Conventions, the ICRC is authorised to visit all places of internment, imprisonment and labour where prisoners of war or civilian internees are held. In cases of non-international armed conflicts, or situations of internal strife and tensions, it may offer its services to the conflicting parties and, with their consent, be granted access to places of detention. Delegates visit detainees with the aim of assessing and, if necessary, improving the material and psychological conditions of detention and preventing torture and ill-treatment. The visit procedures require access to all detainees and places of detention, that no limit be placed on the duration and frequency of visits, and that the delegates be able to talk freely and without witness to any detainee. Individual follow-up of the detainees’ whereabouts is also part of ICRC standard visiting procedures. Visits and the reports made on them are confidential – although the ICRC may publish its own comments if a state publicly comments on a report or visit.

The ICRC is an independent and impartial humanitarian body with a specific mandate assigned to it under international humanitarian law, particularly the four Geneva Conventions. It actively provides many forms of protection and assistance to victims of armed conflict, as … Continue reading →