Detention – WMA – The World Medical Association

Adopted as a Council Resolution by the 203^rd WMA Council Session, Buenos Aires, April 2016,
adopted by the 67^th World Medical Assembly, Taipei, Taiwan, October 2016,
and rescinded and archived by the 72^nd WMA General Assembly (online), London, United Kingdom, October 2021

PREAMBLE

Currently, a very large number of people are seeking refuge and/or asylum; some are fleeing war zones or other conflicts, others are fleeing from desperate poverty, violence, and other injustices and abuses with potentially very harmful effects to mental and physical health.

The global community has been ill prepared for handling the refugee crisis, including addressing the health needs of those seeking refuge.

The WMA recognizes that mass migration will continue unless people are content to stay in their birth countries because they see opportunities to live their lives in relative peace and security and to offer themselves and their families the ability to live lives with opportunities for fulfilment of various sorts, including economic improvement. The global community has a responsibility to seek to improve the lot of all populations, including those in countries currently with the poorest economies and other key factors. Sustainable development will give all populations improved security, and economic options.

The WMA recognizes that warfare and other armed conflict, including continuous civil strife, unrest and violence, will inevitably lead to people movement. The worse the conflict the higher the percentage of people who will want to leave the conflict zone. There is a responsibility for the global community, especially its political leaders, to seek to support peace making and conflict resolution.

The WMA recognizes and condemns the phenomenon of forced migration, which is inhumane and must be stopped. Such cases should be considered for referral to the International Criminal Court.

PRINCIPLES

1. The WMA reiterates the WMA Statement on Medical Care for Refugees originally adopted in Ottawa, Canada in 1998 which states:

Physicians have a duty to provide appropriate medical care regardless of the civil or political status of the patient, and governments should not deny patients the right to receive such care, nor should they interfere with physicians’ obligation to administer treatment on the basis of clinical need alone.

Physicians cannot be compelled to participate in any punitive or judicial action involving refugees, including asylum seekers, refused asylum seekers and undocumented migrants, or Internally Displaced Persons or to administer any non-medically justified diagnostic measure or treatment, such as sedatives to facilitate easy deportation from the country or relocation.

Physicians must be allowed adequate time and sufficient resources to assess the physical and psychological condition of refugees who are seeking asylum.

National Medical Associations and physicians should actively support and promote the right of all people to receive medical care on the basis of clinical need alone and speak out against legislation and practices that are in opposition to this fundamental right.

2. WMA urges governments and local authorities to ensure access to adequate healthcare as well as safe and adequate living conditions for all regardless of their legal status.

Adopted by the 65^th WMA General Assembly, Durban, South Africa, October 2014
and revised by the 70^th WMA General Assembly, Tbilisi, Georgia, October 2019

PREAMBLE

In many countries, a substantial number of prisoners are held in solitary confinement. Solitary confinement is a form of confinement used in detention settings where individuals are separated from the general detained population and held alone in a separate cell or room for upwards of 22 hours a day. Jurisdictions may use a range of different terms to refer to the process (such as segregation, separation, isolation or removal from association) and the conditions and environment can vary from place to place. However, it may be defined or implemented, solitary confinement is characterised by complete social isolation; a lack of meaningful contact; and reduced activity and environmental stimuli. Some countries have strict provisions on how long and how often prisoners can be kept in solitary confinement, but many countries lack clear rules on this.

Solitary confinement can be distinguished from other brief interventions when individuals must be separated as an immediate response to violent or disruptive behaviour or where a person must be isolated to protect themselves or others. These interventions should take place in a non-solitary confinement environment.

The reasons for the use of solitary confinement vary in different jurisdictions and it can be used at various stages of the criminal justice process. It may be used as a disciplinary measure for the maintenance of order or security; as an administrative measure, for the purposes of investigation or questioning; as a preventive measure against future harm (either to the individual or to others); or it may be the consequence of a restrictive regime that limits contact with others. It can be imposed for hours to days or even years.

Medical impacts of solitary confinement

People react to isolation in different ways. For a significant number of prisoners, solitary confinement has been documented to cause serious psychological, psychiatric, and sometimes physiological effects. These include insomnia, confusion, hallucinations, psychosis, and aggravation of pre-existing health problems. Solitary confinement is also associated with a high rate of suicidal behaviour. Negative health effects can occur after only a few days and may in some cases persist when isolation ends.

Certain populations are particularly vulnerable to the negative health effects of solitary confinement. Persons with psychotic disorders, major depression, or post-traumatic stress disorder or people with severe personality disorders may find isolation unbearable and suffer considerable health harms. Solitary confinement may complicate treating such individuals and their associated health problems successfully later in the prison environment or when they are released back into the community. Prisoners with physical disabilities or other medical conditions often have their conditions aggravated, not only as a result of the physical conditions of isolation, but also as the particular health requirements linked to their disability or condition are often not accommodated.

For children and young people, who are in the crucial stages of developing socially, psychologically, and neurologically, there are serious risks of solitary confinement causing long-term mental and physical harm. A growing international consensus about the harms of solitary confinement on children and young people has resulted in some jurisdictions abolishing the practice completely.

International norms on solitary confinement

The increasing documentation on the harmful impact of solitary confinement on the health of prisoners led to the development of a range of international norms and recommendations seeking to mitigate the use and the harmful effect of solitary confinement.

The United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR) were first adopted in 1957, and revised in 2015 as the Nelson Mandela Rules unanimously adopted by the United Nations Assembly. The SMR constitute the key international framework for the treatment of prisoners.

Other international standards and recommendations, such as the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Sanctions for Women Offenders (the Bangkok Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the observations of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, support and complete the Nelson Mandela Rules.

The misuse of solitary confinement can include indefinite or prolonged solitary confinement (defined as a period of solitary confinement in excess of 15 days), but can also include corporal or collective punishment, the reduction of a prisoner’s diet or drinking water, or the placement of a prisoner in a dark or constantly lit cell. Misuse of solitary confinement in these ways can constitute a form of torture or ill-treatment and as such must be prohibited in line with international human rights law and medical ethics.

The WMA and its members reiterate their firm and long-standing position condemning any forms of torture and other cruel, inhuman or degrading treatment or punishment and reaffirm the basic principle that doctors should never participate in or condone torture or other cruel, inhuman or degrading treatment.

RECOMMENDATIONS

1. Given the harmful impact of solitary confinement, which can on occasion result in a form of torture or ill-treatment, the WMA and its members call for the implementation of the Nelson Mandela Rules and other associated international standards and recommendations, with a view to protect the human rights and the dignity of the prisoners.

2. The WMA and its members emphasize in particular the respect of the following principles:

In light of the serious consequences solitary confinement can have on physical and mental health (including an increased risk of suicide or self-harm), it should be imposed only in exceptional cases as a last resort and subject to independent review, and for the shortest period of time possible. The authority imposing the solitary confinement must be acting in line with clear rules and regulations as to its use.
All decisions on solitary confinement must be transparent and regulated by law. The use of solitary confinement should be time-limited by law. The detainee should be informed of the duration of the isolation, and the period of duration should be determined before the measure takes place. Prisoners subject to solitary confinement should have a right of appeal.
Solitary confinement should not exceed a time period of 15 consecutive days. Releasing the prisoner from solitary confinement for a very limited period of time, with the intention that the individual will be placed in solitary confinement immediately again to get around the rules on length of stay must also be prohibited.

Prohibitions of the use of solitary confinement

3. The indefinite or prolonged solitary confinement should be prohibited as amounting to torture or other cruel, inhuman or degrading treatment or punishment [1].

4. Solitary confinement should be prohibited for children and young people (as defined by domestic law), pregnant women, women up to six months post-partum, women with infants and breastfeeding mothers as well as for prisoners with mental health problems given that isolation often results in severe exacerbation of pre-existing mental health conditions.

5. The use of solitary confinement should be prohibited in the case of prisoners with physical disabilities or other medical conditions where their conditions would be exacerbated by such measures.

6. Where children and young people must be separated, in order to ensure their safety or the safety of others, this should be carried out in a non-solitary confinement setting with adequate resources to meet their needs, including ensuring regular human contact and purposeful activity.

Conditions of solitary confinement

7. The human dignity of prisoners confined in isolation must always be respected.

8. Prisoners in isolation should be allowed a reasonable amount of meaningful regular human contact, activity, and environmental stimuli, including daily outside exercise. As with all prisoners, they must not be subjected to extreme physically and/or mentally taxing conditions.

9. Prisoners who have been in solitary confinement should have an adjustment period, including a medical examination, before they are released from prison. This must never extend their period of incarceration.

Role of physician

10. The physician’s role is to protect, advocate for, and improve prisoners’ physical and mental health, not to inflict punishment. Therefore, physicians should never participate in any part of the decision-making process resulting in solitary confinement, which includes declaring an individual as “fit” to withstand solitary confinement or participating in any way in its administration. This does not prevent physicians from carrying out regular visits to those in solitary confinement to assess health and provide care and treatment where necessary, or from raising concerns where they identify a deterioration in an individual’s health.

11. The provision of medical care should take place upon medical need or the request of the prisoner. Physicians should be guaranteed daily access to prisoners in solitary confinement, upon their own initiative. More frequent access should be granted if physicians deem this to be necessary.

12. Physicians working in prisons must be able to practice with complete clinical independence from the prison administration. In order to maintain that independence, physicians working in prisons should be employed and managed by a body separate from the prison or criminal justice system.

13. Physicians should only provide drugs or treatment that are medically necessary and should never prescribe drugs or treatment with the intention of enabling a longer period of solitary confinement.

14. Healthcare should always be provided in a setting that respects the privacy and dignity of prisoners. Physicians working in the prison setting are bound by the same codes and principles of medical ethics as they would be in any other setting.

15. Physicians should report any concerns about the impact solitary confinement is having on the health and wellbeing of an individual prisoner to those responsible for reviewing solitary confinement decisions. If necessary, they should make a clear recommendation that the person be removed from solitary confinement, and this recommendation should be respected and acted upon by the prison authorities.

16. Physicians have a duty to consider the conditions in solitary confinement and to raise concerns with the authorities if they believe that they are unacceptable or might amount to inhumane or degrading treatment. There should be clear mechanisms in place in each system to allow physicians to report such concerns.

Reference

[1] Rule 43 SMR

Adopted by the 62^nd WMA General Assembly, Montevideo, Uruguay, October 2011,
and reaffirmed with minor revisions by the 218^th Council session (online), London, United Kingdom, October 2021

The WMA reaffirms its Declaration of Tokyo establishing guidelines for physicians concerning torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment, and recommends that a monitoring and reporting mechanism be established to permit audit of adherence of States to the terms of the said declaration, in particular:

Where physicians are working in situations of dual loyalties, support must be offered to ensure they are not put in positions that might lead to violations of fundamental professional ethics, whether by active breaches of medical ethics or omission of ethical conduct, and/or of human rights, as laid out in the Declaration of Tokyo.
Its constituent members should offer support for physicians in difficult situations, including, as feasible and without endangering either patients or doctors, helping individuals to report violations of patients’ health rights and physicians’ professional ethics in custodial settings. The support given must adhere to the principles put forward in the WMA Resolution on the Responsibility of Physicians in the Documentation and Denunciation of Acts of Torture or Cruel or Inhuman or Degrading Treatment.
The WMA should review the evidence available of the violation of human rights codes by states and/or the forcing of physicians to violate the Declaration of Tokyo and refer as appropriate such cases to the relevant national and international authorities.
The WMA should encourage its member associations to investigate accusations of physician involvement in torture and similar abuses of human rights reported to it from reputable sources, and to report back in particular on whether physicians are at risk and in need of support.
The WMA should provide support to its constituent members and their individual physicians members to resist such violations, and as far as realistically possible, stand firm in their ethical convictions. The medical profession and governments should also protect physicians endangered because they adhere to their professional and ethical obligations.
The WMA shall encourage and support its member associations in their calls for investigations by the relevant United Nations special rapporteur or any other standard and reliable accountability mechanism in place when valid concerns are raised.

Adopted as a Council Resolution by the 189^th WMA Council Session, Montevideo, Uruguay, October 2011 and
adopted by the 62^nd WMA General Assembly, Montevideo, Uruguay, October 2011
and rescinded and archived by the 75^th WMA General Assembly, Helsinki, Finland, October 2024

The WMA General Assembly notes that

A number of doctors, nurses and other health care professionals in the Kingdom of Bahrain were arrested in March 2011 after the civil unrest in that country and tried under emergency powers before a special court, led by a military judge. Twenty of this group were found guilty of a number of charges, on 29 September 2011 and sentenced to fifteen, ten or five years imprisonment.

These trials failed to meet international standards for fair trials, including the accused not being allowed to make statements in their own defence, and their lawyers not being allowed to question all the witnesses. Allegations from the accused and their lawyers of mistreatment, abuse and other human right violations during arrest and while in detention have not been investigated.

While various criminal charges were brought it appears that the major offence was treating all the patients who presented for care, including leaders and members of the rebellion. Other charges appear to be closely related to providing such treatment and were, in any case, not proven to the standard expected in court proceedings. In treating patients without considering the circumstances of their injury these health care professionals were honouring their ethical duty as set out in the Declaration of Geneva.

The WMA welcomes the announcement by the government of Bahrain of 6 October 2011 that all twenty will be re-tried before a full civil court.

Therefore, the WMA requires that no doctor or other health care professional be arrested, accused or tried for treating patients, regardless of the origins of the patient’s injury or illness.

The WMA demands that all states understand, respect and honour the concept of medical neutrality. This includes providing working conditions which are as safe as possible, even under difficult circumstances, including armed conflict or civil unrest.

The WMA expects that if any individual, including health care professionals, are subject to trial that there is due process of law including during arrest, questioning and trial in accordance with the highest standards of international law.

The WMA demands that states investigate any allegations of torture or cruel and inhumane treatment by prisoners against its agents, and act quickly to stop such abuses.

The WMA recommends that independent international assessors are allowed to observe the trials and meet privately with the accused, so that the state of Bahrain can prove to the watching world that the future legal proceedings follow fair process.

The WMA recognises that health care workers and health care facilities are increasingly under attack during wars, conflicts and civil unrest. We demand that states throughout the world recognise, respect and honour principles of medical neutrality and their duty to protect health care institutions and facilities for humanitarian reasons.

Adopted by the 60^th WMA General Assembly, New Delhi, India, October 2009,
And amended by the 72^nd WMA General Assembly (online), London, United Kingdom, October 2021

WHEREAS,

Physicians in the Islamic Republic of Iran have reported:

Deliberate denial of medical care in detention, withholding of essential and readily available medications by physicians and other health professionals;
Widespread use of torture and ill-treatments in detention;
Concern about the veracity of documentation related to the death of patients and physicians being forced to produce clinically incorrect documentation;
Lack of essential functioning medical equipment and supplies
Denial of the rights of hunger strikers; and
Physicians’ complicity in facilitating the death penalty for juveniles in violation of children’s rights.

THEREFORE, the World Medical Association

Reaffirms its Declaration of Lisbon on the Rights of the Patient, which states that whenever legislation, government action or any other administration or institution denies patients the right to medical care, physicians should pursue appropriate means to assure or to restore it.
Reaffirms its Declaration of Hamburg Concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman or Degrading Treatment, which encourages doctors to honor their commitment as physicians to serve humanity and to resist any pressure to act contrary to the ethical principles governing their dedication to this task.
Reaffirms its Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, which:

Prohibits physicians from participating in, or even being present during the practice of torture or other forms of cruel or inhuman or degrading procedures;
requires that physicians maintain utmost respect for human life even under threat and prohibits them from using any medical knowledge contrary to the laws of humanity.

4. Reaffirms its Resolution on the Responsibility of Physicians in the Documentation and Denunciation of Acts of Torture or Cruel or Inhuman or Degrading Treatment, which states that physicians should attempt to:

ensure that detainees or victims of torture or cruelty or mistreatment have access to immediate and independent health care;
ensure that physicians include assessment and documentation of symptoms of torture or ill-treatment in the medical records using the necessary procedural safeguards to prevent endangering detainees.

5. Refers to the WMA International Code of Medical Ethics, which states that physicians shall be dedicated to providing competent medical service in full professional and moral independence, with compassion and respect for human dignity.

6. Reaffirms its Declaration of Malta on hunger strikers which prohibits force-feeding of hunger strikers as “degrading and inhuman,” even when this is the only way to save their lives.

7. Refers to the United Nations Nelson Mandela Rules, which emphasizes that the provision of health care for prisoners is a State responsibility, and that the relationship between health-care professionals and prisoners is governed by the same ethical and professional standards as those applicable to patients in the community.

8. Refers to the WMA Statement on Access of Women and Children to Health Care, which categorically condemns violations of the basic human right of women and children, including violations stemming from social, political, religious, economic and cultural practices.

9. Refers to the WMA Statement on Natural Variations of Human Sexuality, which condemns all forms of stigmatization, criminalization and discrimination of people based on their sexual orientation.

10. Urges the government of the Islamic Republic of Iran to respect the International Code of Medical Ethics and the standards included in the aforementioned declarations to which physicians are committed.

11. Stresses that physicians who adhere to the professional and ethical obligations outlined in the entire WMA policy apparatus, including the aforementioned declarations, must be protected

Adopted by the 43^rd World Medical Assembly, St. Julians, Malta, November 1991
and editorially revised by the 44^th World Medical Assembly, Marbella, Spain, September 1992
and revised by the 57^th WMA General Assembly, Pilanesberg, South Africa, October 2006
and revised by the 68^th WMA General Assembly, Chicago, United States, October 2017

PREAMBLE

1. Hunger strikes occur in various contexts but they mainly give rise to dilemmas in settings where people are detained (prisons, jails and immigration detention centres). They are usually a form of protest by people who lack other ways of making their demands known. In refusing nutrition for a significant period, prisoners and detainees may hope to obtain certain goals by inflicting negative publicity on the authorities. Short-term food refusals rarely raise ethical problems. Prolonged fasting risks death or permanent damage for hunger strikers and can create a conflict of values for physicians. Hunger strikers rarely wish to die but some may be prepared to do so to achieve their aims.

2. Physicians need to ascertain the individual’s true intention, especially in collective strikes or situations where peer pressure may be a factor. An emotional challenge arises when hunger strikers who have apparently issued clear instructions not to be resuscitated reach a stage of cognitive impairment. The principle of beneficence urges physicians to resuscitate them but respect for individual autonomy restrains physicians from intervening when a valid and informed refusal has been made. This has been well worked through in many other clinical situations including refusal of life saving treatment. An added difficulty arises in custodial settings because it is not always clear whether the hunger striker’s advance instructions were made voluntarily and with appropriate information about the consequences.

PRINCIPLES

3. Duty to act ethically. All physicians are bound by medical ethics in their professional contact with vulnerable people, even when not providing therapy. Whatever their role, physicians must try to prevent coercion or maltreatment of detainees and must protest if it occurs.

4. Respect for autonomy. Physicians should respect individuals’ autonomy. This can involve difficult assessments as hunger strikers’ true wishes may not be as clear as they appear. Any decisions lack moral force if made by use of threats, peer pressure or coercion. Hunger strikers should not forcibly be given treatment they refuse. Applying, instructing or assisting forced feeding contrary to an informed and voluntary refusal is unjustifiable. Artificial feeding with the hunger striker’s explicit or necessarily implied consent is ethically acceptable.

5. ‘Benefit’ and ‘harm’. Physicians must exercise their skills and knowledge to benefit those they treat. This is the concept of ‘beneficence’, which is complemented by that of ‘non-maleficence’ or primum non nocere. These two concepts need to be in balance. ‘Benefit’ includes respecting individuals’ wishes as well as promoting their welfare. Avoiding ‘harm’ means not only minimising damage to health but also not forcing treatment upon competent people nor coercing them to stop fasting. Beneficence does not necessarily involve prolonging life at all costs, irrespective of other determinants.

Physicians must respect the autonomy of competent individuals, even where this will predictably lead to harm. The loss of competence does not mean that a previous competent refusal of treatment, including artificial feeding should be ignored.

6. Balancing dual loyalties. Physicians attending hunger strikers can experience a conflict between their loyalty to the employing authority (such as prison management) and their loyalty to patients. In this situation, physicians with dual loyalties are bound by the same ethical principles as other physicians, that is to say that their primary obligation is to the individual patient. They remain independent from their employer in regard to medical decisions.

7. Clinical independence. Physicians must remain objective in their assessments and not allow third parties to influence their medical judgement. They must not allow themselves to be pressured to breach ethical principles, such as intervening medically for non medical reasons.

8. Confidentiality. The duty of confidentiality is important in building trust but it is not absolute. It can be overridden if non-disclosure seriously and imminently harms others. As with other patients, hunger strikers’ confidentiality and privacy should be respected unless they agree to disclosure or unless information sharing is necessary to prevent serious harm. If individuals agree, their relatives and legal advisers should be kept informed of the situation.

9. Establishing trust. Fostering trust between physicians and hunger strikers is often the key to achieving a resolution that both respects the rights of the hunger strikers and minimises harm to them. Gaining trust can create opportunities to resolve difficult situations. Trust is dependent upon physicians providing accurate advice and being frank with hunger strikers about the limitations of what they can and cannot do, including situations in which the physician may not be able to maintain confidentiality.

10. Physicians must assess the mental capacity of individuals seeking to engage in a hunger strike. This involves verifying that an individual intending to fast is free of any mental conditions that would undermine the person’s ability to make informed health care decisions. Individuals with seriously impaired mental capacity may not be able to appreciate the consequences of their actions should they engage in a hunger strike. Those with treatable mental health problems should be directed towards appropriate care for their mental conditions and receive appropriate treatment. Those with untreatable conditions, including severe learning disability or advanced dementia should receive treatment and support to enable them to make such decisions as lie within their competence.

11. As early as possible, physicians should acquire a detailed and accurate medical history of the person who is intending to fast. The medical implications of any existing conditions should be explained to the individual. Physicians should verify that hunger strikers understand the potential health consequences of fasting and forewarn them in plain language of the disadvantages. Physicians should also explain how damage to health can be minimised or delayed by, for example, increasing fluid and thiamine intake. Since the person’s decisions regarding a hunger strike can be momentous, ensuring full patient understanding of the medical consequences of fasting is critical. Consistent with best practices for informed consent in health care, the physician should ensure that the patient understands the information conveyed by asking the patient what he or she understands.

12. A thorough examination of the hunger striker should be made at the start of the fast including measuring body weight. Management of future symptoms, including those unconnected to the fast, should be discussed with hunger strikers. Also, the person’s values and wishes regarding medical treatment in the event of a prolonged fast should be noted. If the hunger striker consents, medical examinations should be carried out regularly in order to determine necessary treatments. The physical environment should be evaluated in order to develop recommendations for preventing negative effects.

13. Continuing communication between the physician and hunger strikers is essential. Physicians should ascertain on a daily basis whether individuals wish to continue a hunger strike and what they want to be done when they are no longer able to communicate meaningfully. The clinician should identify whether the individual is willing, in the absence of their demands being met, to continue the fast even until death. These findings must be appropriately recorded.

14. Sometimes hunger strikers accept an intravenous solution transfusion or other forms of medical treatment. A refusal to accept certain interventions must not prejudice any other aspect of the medical care, such as treatment of infections or of pain.

15. Physicians should talk to hunger strikers in privacy and out of earshot of all other people, including other detainees. Clear communication is essential and, where necessary, interpreters unconnected to the detaining authorities should be available and they too must respect confidentiality.

16. Physicians need to satisfy themselves that food or treatment refusal is the individual’s voluntary choice. Hunger strikers should be protected from coercion. Physicians can often help to achieve this and should be aware that coercion may come from the authorities, the peer group, or others, such as family members. Physicians or other health care personnel may not apply undue pressure of any sort on the hunger striker to suspend the strike. Treatment or care of the hunger striker must not be conditional upon suspension of the hunger strike. Any restraint or pressure including but not limited to hand-cuffing, isolation, tying the hunger striker to a bed or any kind of physical restraint due to the hunger strike is not acceptable.

17. If a physician is unable for reasons of conscience to abide by a hunger striker’s refusal of treatment or artificial feeding, the physician should make this clear at the outset, and must be sure to refer the hunger striker to another physician who is willing to abide by the hunger striker’s refusal.

18. When a physician takes over the case, the hunger striker may have already lost mental capacity so that there is no opportunity to discuss the individual’s wishes regarding medical intervention to preserve life. Consideration and respect must be given to any advance instructions made by the hunger striker. Advance refusals of treatment must be followed if they reflect the voluntary wish of the individual when competent. In custodial settings, the possibility of advance instructions having been made under pressure needs to be considered. Where physicians have serious doubts about the individual’s intention, any instructions must be treated with great caution. If well informed and voluntarily made, however, advance instructions can only generally be overridden if they become invalid because the situation in which the decision was made has changed radically since the individual lost competence.

19. If no discussion with the individual is possible and no advance instructions or any other evidence or note in the clinical records of a discussion exist, physicians have to act in what they judge to be in the person’s best interests. This means considering the hunger strikers’ previously expressed wishes, their personal and cultural values as well as their physical health. In the absence of any evidence of hunger strikers’ former wishes, physicians should decide whether or not to provide feeding, without interference from third parties.

20. Physicians may rarely and exceptionally consider it justifiable to go against advance instructions refusing treatment because, for example, the refusal is thought to have been made under duress. If, after resuscitation and having regained their mental faculties, hunger strikers continue to reiterate their intention to fast, that decision should be respected. It is ethical to allow a determined hunger striker to die with dignity rather than submit that person to repeated interventions against his or her will. Physicians acting against an advanced refusal of treatment must be prepared to justify that action to relevant authorities including professional regulators.

21. Artificial feeding, when used in the patient’s clinical interest, can be ethically appropriate if competent hunger strikers agree to it. However, in accordance with the WMA Declaration of Tokyo, where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a decision, he or she shall not be fed artificially. Artificial feeding can also be acceptable if incompetent individuals have left no unpressured advance instructions refusing it, in order to preserve the life of the hunger striker or to prevent severe irreversible disability. Rectal hydration is not and must never be used as a form of therapy for rehydratation or nutritional support in fasting patients.

22. When a patient is physically able to begin oral feeding, every caution must be taken to ensure implementation of the most up to date guidelines of refeeding.

23. All kinds of interventions for enteral or parenteral feeding against the will of the mentally competent hunger striker are “to be considered as “forced feeding”. Forced feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting.

THE ROLE OF NATIONAL MEDICAL ASSOCIATIONS (NMAS) AND THE WMA

24. NMAs should organize and provide educational programmes highlighting the ethical dimensions of hunger strikes, appropriate medical approaches, treatments, and interventions. They shall make efforts to update physicians’ professional knowledge and skills.

NMAs should work to provide mechanisms for supporting physicians working in prisons/jails/immigration detention centers, who may often find themselves in conflict situations and, as stated in the WMA Declaration of Hamburg, shall support any physicians experiencing pressure to compromise their ethical principles.

NMAs have a responsibility to make efforts to prevent unethical practices, to take a position and speak out against ethical violations, and to investigate them properly.

25. The World Medical Association will support physicians and NMAs confronted with political pressures as a result of defending an ethically justifiable position, as stated in the WMA Declaration of Hamburg.

Portuguese translation

Adopted by the 29^th World Medical Assembly, Tokyo, Japan, October 1975
Editorially revised by the 170^th WMA Council Session, Divonne-les-Bains, France, May 2005
and the 173^rd WMA Council Session, Divonne-les-Bains, France, May 2006
and revised by the 67^th WMA General Assembly, Taipei, Taiwan, October 2016

PREAMBLE

It is the privilege of the physician to practise medicine in the service of humanity, to preserve and restore bodily and mental health without distinction as to persons, and to comfort and to ease the suffering of his or her patients. The utmost respect for human life is to be maintained even under threat, and no use is to be made of any medical knowledge contrary to the laws of humanity.

For the purpose of this Declaration, torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.

DECLARATION

1. The physician shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offense of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife.

2. The physician shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment.

3. When providing medical assistance to detainees or prisoners who are, or who could later be, under interrogation, physicians should be particularly careful to ensure the confidentiality of all personal medical information. A breach of the Geneva Conventions shall in any case be reported by the physician to relevant authorities.

4. As stated in WMA Resolution on the Responsibility of Physicians in the Documentation and Denunciation of Acts of Torture or Cruel or Inhuman or Degrading Treatment and as an exception to professional confidentiality, physicians have the ethical obligation to report abuses, where possible with the subject’s consent, but in certain circumstances where the victim is unable to express him/herself freely, without explicit consent.

5. 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.

6. The physician shall not be present during any procedure during which torture or any other forms of cruel, inhuman or degrading treatment is used or threatened.

7. A physician must have complete clinical independence in deciding upon the care of a person for whom he or she is medically responsible. The physician’s fundamental role is to alleviate the distress of his or her fellow human beings, and no motive, whether personal, collective or political, shall prevail against this higher purpose.

8. Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially, as stated in WMA Declaration of Malta on Hunger Strikers. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.

9. Recalling the Declaration of Hamburg concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman or Degrading Treatment, the World Medical Association supports, and encourages the international community, the National Medical Associations and fellow physicians to support, the physician and his or her family in the face of threats or reprisals resulting from a refusal to condone the use of torture or other forms of cruel, inhuman or degrading treatment.

10. The World Medical Association calls on National Medical Associations to encourage physicians to continue their professional development training and education in human rights.

Adopted by the 45^th World Medical Assembly, Budapest, Hungary, October 1993
editorially revised by the 170^th WMA Council Session, Divonne-les-Bains, France, May 2005
and revised by the 67^th WMA General Assembky, Taipei, Taiwan, October 2016

1. The World Medical Association adopts this statement for the purpose of providing guidance for National Medical Associations as they develop guidelines for their members.

2. Physician participation in body cavity searches for purposes of law enforcement or public safety involves complex issues of patient rights, informed consent, physicians’ fiduciary obligations (dual loyalty matters) and their responsibilities to contribute to public health. A request to conduct a body cavity search puts the physician in the untenable position of potentially violating the ethical standards of his/her profession. Physician participation should be in exceptional cases only.

3. There are several types of searches of prisoners carried out within the detention system. These will include searches for contraband and searches for items immediately dangerous to the prisoner and those around him/her. Searches range from the least invasive “pat-down” searches to the most invasive strip searches (including examination of the mouth) and body cavity searches.

4. The prison systems in many countries mandate body cavity searches of prisoners. Such searches, which include rectal and pelvic (vaginal) examination, may be performed when an individual initially enters the prison population and thereafter whenever the individual is permitted to have direct personal contact with someone outside the prison population. They may also be undertaken when there is a reason to believe a breach of security or of prison regulations has occurred. For example, when a prisoner is taken to Court for a hearing, or to the hospital for treatment, or to work outside the prison, the prisoner, upon returning to the institution, may be subjected to a body cavity search that will include all body orifices. Where prisoners have direct contact with visitors – family members or otherwise – prison rules may also require body cavity searches. The purpose of the search is primarily security-related, to prevent contraband, such as weapons or drugs, from entering the prison.

5. These searches are performed for security reasons and not for medical or health-related reasons. They should only be done by someone with appropriate training. In most cases this will mean someone working within the detention system who has been trained to perform safely such searches. This person should not be a physician except under unusual and specific circumstances.

6. A physician’s obligation to provide medical care to the prisoner can be compromised by an obligation to participate in the prison’s security system. A physician should seek to be as far removed from performing body searches as possible. Any directive to search should be separated from the physician’s broad general medical care duties in order to protect the patient/physician relationship.

7. In exceptional cases the detaining authority, may indicate that a search be performed by a physician. The physician, will decide whether medical participation is necessary, and act accordingly and ethically.

8. If the search could, if carried out by someone with lesser skills, cause harm, for example if the prisoner is a pregnant, or has severe haemorrhoids, then this non-medical procedure may be performed by a physician to protect the prisoner from harm. In such a case the physician should explain this to the prisoner. The physician should also explain to the prisoner that s/he is performing this search not as a physician caring for the patient, but for patient safety and as required by the detention authorities for which the normal patient/doctor relationship does not exist. The physician should inform the prisoner that the usual conditions of medical confidentiality do not apply during this procedure and the results of the search will be revealed to the authorities. If a physician is properly mandated by an authority and agrees to perform a body cavity search on a prisoner for reasons of patient safety, the authority should be informed that it is necessary for this procedure to be done in a humane manner.

9. If the search is conducted by a physician, it should not be done by any physician who will subsequently provide medical care to the prisoner.

10. Forced examinations are not ethically acceptable, and physicians must not perform them. If the prisoner acquiesces to a search, the doctor, or other individual carrying out the body cavity search, should ensure that the prisoner is fully aware of what will be done, including the facilities in which the search will be performed.

11. Searches should be performed humanely, and, where possible, in a private, confidential setting respecting the prisoner. The person performing the search should be of the same gender as the prisoner being searched. When applicable, transgender persons should be asked first with which gender they identify.

12. The World Medical Association urges all governments and public officials with responsibility for public safety to recognize that invasive searches are serious assaults on a person’s privacy and dignity, and they also carry some risk of physical and psychological injury. The World Medical Association urges that, to the extent feasible without compromising public security, the following recommendations be followed:

Alternate methods be used for routine screening of prisoners, including ultrasound and other scans, and body cavity searches be used only as a last resort;
Squatting over mirrors to examine the anus while making the prisoner bear down, a degrading procedure with questionable reliability, must be banned;
If a body cavity search must be conducted, the responsible public official must ensure that the search is conducted humanely by personnel who are of the same gender as the prisoner and who possess sufficient medical and skills to safely perform the search;
The same responsible authority must ensure that the individual’s privacy and dignity be guaranteed.
Physician participation in body cavity searches should be in exceptional cases only. In these cases, the duty to search should be separated from the physician’s delivery of medical care.

13. Finally, the World Medical Association urges all governments and responsible public officials to provide body searches that are performed by a qualified physician whenever warranted by the individual’s physical condition. A specific request by a prisoner for a physician shall be respected, so far as possible.

14. In specific cases, it may be the detaining authority, which requires a search be performed by a physician, for the well-being of this prisoner. The physician, in such a case, will decide whether medical participation is indeed necessary, and act accordingly and ethically.

Adopted by the 53^rd WMA General Assembly, Washington, DC, USA, October 2002,
revised by the WMA General Assembly, Bangkok 2012,
and reaffirmed by the 217^th WMA Council Session, Seoul (online), April 2021

The World Medical Association (WMA) notes with concern evidence from a number of countries that political dissidents, practitioners of various religions and social activists have been detained in psychiatric institutions and subjected to unnecessary psychiatric treatment as a punishment and not to treat a substantiated psychiatric illness.

The WMA:

Declares that such detention and unwarranted treatment is abusive, unethical and unacceptable;
Calls on physicians and psychiatrists to resist involvement in these abusive practices;
Calls on member NMAs to support their physician members who resist involvement in these abuses, and
Calls on governments to stop abusing medicine and psychiatry in this manner, and on non-governmental organizations and the World Health Organization to work to end these abuses; and
Calls on governments to uphold the United Nations International Covenant on Civil and Political Rights, which states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

Adopted by the 52^nd WMA General Assembly, Edinburgh, Scotland, October 2000
Revised by the 62^nd WMA General Assembly, Montevideo, Uruguay, October 2011
and by the 73^rd WMA General Assembly, Berlin, Germany, October 2022

PREAMBLE

The WMA Declaration of Lisbon on the Rights of the Patient states ‘Every person is entitled without discrimination to appropriate medical care’.

The Constitution of the World Health Organization states that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”.

Persons deprived of liberty (“prisoners”) should receive the same standard of health care as people outside prisons. They have the same rights as all other people. This includes the right to humane treatment and appropriate medical care. The standards for the treatment of prisoners have been set down in a number of United Nations Declarations and Guidelines, in particular the Standard Minimum Rules for the Treatment of Prisoners – known as the Nelson Mandela Rules in its 2015 revised version, they are supplemented by the UN Bangkok Rules on women.

The term “persons deprived of liberty” refers to all regardless of the reason for their detention as well as of their legal status, from pre-trial detainees to sentenced persons.

It is the responsibility of the states to guarantee the right to life and health of persons deprived of liberty. This implies caring for them with the aim that prison does not become a determining factor of communicable disease.

The relationship between physician and persons deprived of liberty is governed by the same ethical principles as that between the physician and any other patient. However, the particular prison setting can lead to tensions within the patient/physician relationship as a result of the physician potentially being subject to pressure from authorities and seeming to be hierarchically subordinate to his/her employer, the prison service, and of the general attitude of society towards persons deprived of liberty.

Beyond the States responsibilities to treat all persons deprived of liberty with respect for their inherent dignity and value as human beings, there are strong public health reasons for ensuring the adequate implementation of the Nelson Mandela Rules. The high incidence of tuberculosis and other communicable diseases amongst prisoners in a number of countries reinforces the urgent need to consider public health as a critical element when designing new prison regimens, and for reforming existing penal and prison systems.

Individuals facing imprisonment are often from the most vulnerable sections of society. They may have had limited access to health care before imprisonment, may suffer worse health conditions that many other citizens and as a result may have a high risk of entering prison with undiagnosed, undetected and untreated health problems.

Overcrowding, lengthy confinement within tightly enclosed, poorly lit, badly heated and consequently poorly ventilated and often humid spaces are all conditions frequently associated with imprisonment and all of which contribute to the spread of communicable disease and ill-health. Where these factors are combined with poor hygiene, inadequate nutrition and limited access to adequate health care, prisons can represent a major public health challenge.

Keeping persons deprived of liberty in conditions that expose them to substantial medical risk, poses a serious humanitarian challenge. The most effective and efficient way to reduce disease transmission is to improve the prison environment.

It is the responsibility of states to dedicate sufficient resources to ensure adequate prison conditions, that prison health care is appropriate in relation to the size and needs of the prison population, and to define and implement sustainable health strategies to prevent communicable diseases transmission. The organization of health care in prison requires a suitable team of health personnel capable of detecting and treating communicable diseases as part of its essential mission to provide care and treatment to their patients in detention.

The increase in active tuberculosis in prison populations and the development of resistant, especially “multi–drug” and “extensively-drug” resistant forms of TB, as recognised by the World Medical Association in its Resolution on Tuberculosis, is reaching very high prevalence and incidence rates in prisons in some parts of the world. Likewise, the Covid-19 pandemic has severely impacted prisons with outbreaks reported around the world. Other conditions, such as hepatitis C and HIV disease, pose transmission risks from blood-borne spread, exchange of body fluids. Overcrowded prison conditions also promote the spread of sexually transmitted diseases, while intravenous drug use contributes to the spread of HIV as well as hepatitis B and C.

RECOMMENDATIONS

Recalling its Declaration of Lisbon on the Rights of the Patient, the World Medical Association calls on all relevant actors to take the necessary measures to guarantee the highest attainable standard of health for persons deprived of liberty, in particular:

Governments, prison and health authorities

1. To protect the rights of persons deprived of liberty according to the various United Nations instruments relating to conditions of imprisonment, in particular the Nelson Mandela Rules for the Treatment of Prisoners.

2. To allocate the necessary resources to health care in prisons, proportionate to the number and needs of the persons deprived of liberty and including adequate funding for health personnel and appropriate level of staffing of such personnel.

3. To define and implement robust health strategies that ensure a safe and healthy prison environment, through vaccination, hygiene, surveillance and other measures to prevent transmission of communicable diseases.

4. To guarantee that persons deprived of liberty with an infectious illness are treated with dignity and that their rights to health care are respected, in particular that they are not isolated, or placed in solitary confinement, as a response to their infected status, without adequate access to health care and the appropriate medical treatment.

5. To ensure that the conditions of detention, at any stage from arrest to sentencing or once sentenced, do not contribute to the development, worsening or transmission of diseases.

6. To ensure that diagnosis and treatment of non-communicable chronic disease and acute non-communicable illness and/or injury is reasonably and adequately treated so as to not cause undue burden on health personnel or increase risk of communicable disease spread due to prisoners with decompensated illness or injury.

7. To ensure the appropriate planning for and provision of continuing care as essential elements of prison health care, coordination of health services within and outside prisons facilitates, including continuity of care and epidemiological monitoring of prisoner patients when they are released.

8. To ensure that, upon admission to or transfer to a different prison, individuals’ health status is reviewed within 24 hours of arrival to ensure continuity of care.

9. To avoid disruption of care within the institution, particularly when the prisoner is receiving opiate substitution treatment by continuing the prescribed treatment.

10. Imprisonment is unacceptable in cases where infection or the risk of transmission is the cause of deprivation of liberty. Imprisonment is not an effective way to prevent the transmission of infectious diseases, and further, it is a cause of concealment of the diagnosis due to fear, leading to greater aggregate dissemination.

11. To respect autonomy and responsibilities of physicians working in prisons who must observe principles of medical ethics to protect health of persons deprived of liberty.

12. To conduct independent and transparent investigations to prevent denial of health care to inmates in prison.

WMA constituent members and the medical profession

13. To work with national and local governments, and health and prison authorities to prioritize health and health care, including that for mental health issues, in prisons and to adopt strategies that ensure a safe and healthy prison environment.

14. In accordance with the ethical principles of the medical profession, to encourage physicians to report and document any deficiency in health care provision, leading to ill-treatments of persons deprived of liberty.

15. To support and protect physicians encountering difficulties as a result of their attempts to denounce deficiencies in prison health care provision.

16. To support improving prison conditions and prison systems from a viewpoint of health of persons deprived of liberty.

Physicians working in prisons

17. To report duly to the health authorities and professional organisations of their country any deficiency in health care, including that for mental health issues, provided to the persons deprived of liberty and any situation involving high epidemiological risk.

18. To follow national public health guidelines, where these are ethically appropriate, particularly concerning the mandatory reporting of infectious and communicable diseases.