Policy Tag: Prison

Adopted by the 43rd World Medical Assembly, St. Julians, Malta, November 1991
and editorially revised by the 44th World Medical Assembly, Marbella, Spain, September 1992
and revised by the 57th WMA General Assembly, Pilanesberg, South Africa, October 2006
and revised by the 68th 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 45th World Medical Assembly, Budapest, Hungary, October 1993
editorially revised by the 170th WMA Council Session, Divonne-les-Bains, France, May 2005
and revised by the 67th 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 52nd WMA General Assembly, Edinburgh, Scotland, October 2000
Revised by the 62nd WMA General Assembly, Montevideo, Uruguay, October 2011
and by the 73rd 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.