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.
