Chapter II of the Istanbul Protocol on Relevant ethical codes, Section B highlights the ethical responsibility of doctors and draws from United Nation documents and international bodies representing health professionals such as the World Medical Association (WMA), the World Psychiatric Association (WPA) and the International Council of Nurses (ICN).
The central tenet of all health professional ethics is the fundamental duty to respect human dignity and act in the best interest of the patient, regardless of other constraints, pressures or contractual obligations. Core ethical obligations of health professionals are beneficence, non-maleficence, confidentiality and respect for patient autonomy apply equally in all times.
Doctors’ involvement in torture, of whatever form and degree, is always contrary to medical ethics.
This is stated clearly in the UN Principles of Medical Ethics
Health professionals, like all other persons working in prison systems, must observe the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which require that medical, including psychiatric, services must be available to all prisoners without discrimination and that all sick prisoners or those requesting treatment be seen daily. The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) complement the Nelson Mandela Rules and articulate specific ethical duties to protect women deprived of their liberty. These requirements reinforce the ethical obligations of physicians and other health-care professionals, discussed below, to treat and act in the best interests of their patients. Rule 32 (1) of the Nelson Mandela Rules states that “the relationship between the physician or other health-care professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community”. This includes the “duty of protecting prisoner’s physical and mental health”; “adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship”; “confidentiality of medical information, unless maintaining such confidentiality would result in a real and imminent threat to the patient or to others”; and the “absolute prohibition on engaging, actively or passively, in acts that may constitute torture or other cruel, inhuman or degrading treatment or punishment”. Health professionals are also prohibited from having any role in the imposition of disciplinary sanctions or other restrictive measures. This includes solitary confinement (22 hours or more a day without meaningful human contact), prolonged solitary confinement (15 consecutive days), placement of a prisoner in a dark or constantly lit cell, corporal punishment or the reduction of a prisoner’s diet or drinking water and collective punishment. Furthermore, rule 34 of the Nelson Mandela Rules requires health-care professionals who “become aware of any signs of torture or other cruel, inhuman or degrading treatment or punishment” to“document and report such cases to the competent medical, administrative or judicial authority”. Regarding women who are deprived of their liberty, rule 10 of the Bangkok Rules states that “all women are entitled to treatment and care equivalent to that of community standards for their gender specific health-care needs” and the right to medical confidentiality. In addition, rule 6 (5) of the Bangkok Rules establishes the duty of health personnel to document “any signs of ill‑treatment or torture” in health screening examinations. Health professionals also have a duty to support colleagues who denounce human rights violations related to torture. Failure to do so risks not only an infringement of patient rights and a contravention of the declarations listed above, but also brings the health professions into disrepute. This is elaborated by other WMA policies supplementing the Declaration of Tokyo. For example, the WMA Recommendation on the Development of a Monitoring and Reporting Mechanism to Permit Audit of Adherence of States to the Declaration of Tokyo recommends support for doctors and national medical associations in their efforts to report violations of patients’ health rights and physicians’ professional ethics in custodial settings. WMA has also established the ethical obligation of doctors not to engage in other abusive practices that constitute cruel and degrading treatment and possibly torture, including prolonged solitary confinement, forced body searches, force-feeding competent individuals, such as hunger strikers, forced anal examination to substantiate same-sex activity and female genital mutilation surgery.
According to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, Section 6.6, the physician shall not aid or abet torture nor shall he be a party to either infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human rights. As per section 7.7, Registered medical practitioners are in certain cases bound by law to give, or may from time to time be called upon or requested to give certificates, notification, reports and other documents of similar character signed by them in their professional capacity for subsequent use in the courts or for administrative purposes, etc. Any registered practitioner who is shown to have signed or given under his name and authority any such certificate, notification, report or document of a similar character which is untrue, misleading or improper, is liable to have his name deleted from the Register.
The principles of medical ethics make it clear that the primary loyalty of the health professional is to the patient ‘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.’ 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’.
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.
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.
For instance, if a person who has been in custody presents with an infected leg, signs of acute kidney failure and confusion, but also gives a history of torture in custody, the HCP cannot ignore that the torture could have caused the clinical symptoms and signs. If the HCP does not make this connection, then the torture can be easily denied. e.g. he slipped and fell in the bathroom, he had kidney disease even before he came into custody and he was confused because he heard that his grandmother passed away.
Forensic doctors may have a different relationship with individuals they examine. In their usual function, the main duty of the forensic doctor is 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. They must not falsify their reports but provide impartial evidence, including making clear in their reports any evidence of ill-treatment.
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