Module 2 Answers

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

A, B, and C are all provision under the World Medical Association’s 1975 Tokyo Declaration.

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.

All of the elements listed are essential to informed consent.

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.

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.

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.”

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.