'Doctors at risk': A viewpoint from the International Committee of the Red Cross
24-03-1996 Article, by Hernán Reyes
This article was published in Healthy prisons : A vision for the future, Report of the 1st International Conference on Healthy Prisons, Liverpool, 24-27 March 1996 and reproduced with the kind authorization of the publisher *.
One of the many tasks of the International Committee of the Red Cross (ICRC) is to visit prisoners around the world, mainly in countries or areas affected by conflict. The purpose of these visits, carried out by teams of delegates and doctors, is to provide protection and try to secure adequate conditions of detention for the prisoners. ICRC doctors and nurses assess the health situation of the prisoners and the quality of all medical and related services involved in providing them with medical care. In 1995, roughly 146,000 prisoners in more than 40 countries around the world were visited by ICRC teams.
This paper will deal with doctors who work in prisons and whose task it is to provide medical care for the prison population. These are the'doctors at risk'. In the ICRC's experience, doctors who work in prisons are at risk in that they may be placed in situations where customary medical criteria and principles of medical ethics are not necessarily the top priority of the non-medical authorities under which they have to work. This may also be the case for doctors working in the armed forces and in security or police forces. In such situations, violations of medical ethics can and do occur. This is particularly true in situations o f conflict, but also, as we shall see, in countries that are not in the grip of war or open conflict.
The purpose of this presentation on these'doctors at risk'is to give an international dimension to several issues that are of general concern to, the medical profession. As will be seen, the medical issues involved can apply in varying degrees to any'risk'situation. Obviously, the worst cases will occur in countries where violence and coercion ride roughshod over notions of medical ethics and even normal legal proceedings. There are, however, general statements that can be made on such key issues as medical independence.
2. Violations of medical ethics in risk situations
Two main themes, both directly related to health, are relevant here. The first theme is precisely the'worst-case'scenario, in which physicians are forced to participate, actively or passively, in coercive procedures that are the antithesis of the medical role. Medical participation in torture is a subject in itself which has been extensively documented [1 ] . Although in some cases physicians have participated willingly in such unethical acts, in most cases they are either coerced or'persuaded', by threats or other means, to participate.
In war situations, doctors within the armed forces are theoretically protected from having to take part in any such violations by the provisions of international humanitarian law [2 ] . Although the activities of physicians who work in prisons or police stations are governed by certain ethical codes and national or international guidelines, these are most often unknown to them. In some places, their national medical associations, in line with such codes as, for example, the Declaration of Tokyo adopted by the World Medical Association in 1975, have issued codes of conduct for prison doctors. In t he extreme case of medical participation in torture, the fact is that physicians are usually in no position to refuse. They are certainly not independent from the higher non-medical authorities responsible for the actual violations committed.
It is not our purpose here to dwell on these extreme cases, nor on specific cases where doctors actually participate willingly. We shall focus rather on situations in countries where doctors working in prisons are subjected neither to violence nor to coercion, but where they may encounter ethical dilemmas because they find themselves trapped in a conflict of interests.
The second theme is precisely this issue of'divided loyalties'. The axiom that'prisoners are sent to prison as punishment and not for punishment'is well known. In the field of medical care, this leads logically to the requirement that prisoners should receive care of the same quality as that available to the outside community.
This principle is not only widely accepted today, but is also laid down in recognized national and international regulations [3 ] .
This stipulation is obviously not restricted to technical or pharmaceutical aspects. It means that prisoners should be able to benefit from the same type of confidential'doctor-patient relationship'that patients have outside prison. This is in itself already difficult, owing to the intrinsic reality of the prison situation. The relationship is flawed from the start by the fact that prisoners are not in a position to choose their doctor. Likewise, the physician cannot choose his or her patients. It is nevertheless the doctor's duty to establish a satisfactory'doctor-patient relationship'and this includes respect for the inmate/patient's dignity and privacy during consultation.
The main dilemma in the prison context arises from the fact that doctors working in prisons have divided loyalties between, on the one hand, the Prison Service that employs them and, on the other hand, the patients (prisoners) entrusted to their care.
This dilemma is found in all prison contexts, all over the world and is inherent in the prison setting. The resulting problems vary tremendously according to the country's situation. The ICRC often finds that the main concerns and worries of the Prison Service are inevitably'security and control'and that medical ethics are often last on the administration's list of concerns, if indeed they appear there at all ...
Doctors working in prisons sometimes find that their medical decisions are overruled or brushed aside for'security'reasons. The motto'security comes , first'seems to condition the attitudes of the prison administration. The doctor more often than not has to accommodate to that reality.
ICRC experience has shown that there are several variations on the theme of independence among doctors working with prisoners. On the one hand, there is the true-blue'prison doctor', i.e. the physician who is employed directly by the Prison Service and who therefore owes not only his or her loyalty but also his or her livelihood and salary to that Service. At the other end of the spectrum are doctors who are indeed independent in that they are employed by the Health Service and are only'on loan', so to speak, to the prisons. In between are doctors who work in prisons only on a part-time basis and have other medical activities as well and here again there are different arrangements as to which service actually pays the doctor's salary. The UK is a good example of the possible divergencies, even within one country, with different arrangements in the prison systems in England and Wales, Scotland and Northern Ireland .
Advocates of medical independence for doctors working in prisons are obviously defending medical ethics, as opposed to non-medical considerations they feel may not always be in the best interests of their patients. This position is, however, not unanimous even among physicians. Many are the doctors working in prisons who feel that there is a definite advantage in being within the prison system. The arguments here relate to the complexities of the prison environment and the specific characteristics of the inmate/patient population. Many doctors feel that the best way to convince prison governors and the administration in general of medical needs is to work together within the system. In this way, the argument goes, they can build up a working relationship with the administration and gain its confidence.
In the ICRC's experience, however, problems always arise because of the conflict of interests between the custodial administration and the medical service. Many examples can be given, drawn from direct field experience with a great number of prison medical services in many countries. All these cases show how breaches of medical ethics, both minor and major, can result when a doctors has to cope with divided loyalties.
In many countries, prison rules do not permit any direct communication between prisoners and the medical officer. All requests for medical attention have to go through the prison officer of the wing, who may or may not decide to allow the prisoner access to the consultation. This may, of course, be contrary to clear instructions stating that there should be no'triage'at this level. Inmates consid ered troublesome, dangerous or both may have great difficulty in seeing the doctor [4 ] .
The way the medical consultation takes place will, of course, vary considerably from one country to another. It can happen that patients are seen and treated by the prison doctor while blindfolded and handcuffed and are not allowed to say a word during the consultation. This does not necessarily occur only under dictatorial regimes. In some countries, local medical associations have issued strict guidelines to their members, instructing them to refuse to treat any patient who is blindfolded, or who is not allowed to speak during the consultation [5 ] . Similarly, doctors should, be allowed and indeed required to-identify themselves to the patient and likewise be permitted to speak freely to him or her.
While such examples may seem extreme, they are not rare in the ICRC's experience. There are also less extreme cases which are nevertheless on the same slippery slope leading in the same direction.
The most straightforward cases are those when, for'security'reasons, prisoners are examined while handcuffed or subjected to other forms of restraint. This should not be allowed. Doctors should insist that any form of restraint be removed before beginning to examine and treat the patient. The argument it then becomes the doctor's responsibility if the prisoner escapes is not acceptable. Any exceptions, for example involving a patient very likely to either harm himself or injure staff, should be fully discussed and documented in writing.
There are other instances in which prison officers'listen in'on the consultation. Again, the official argument is that this is a'security'requirement. It is, however a clear violation of the confidentiality of the consultation, as well as of the privacy necessary for the actual examination.
Granted, there may be many cases where the presence of a prison officer during the consultation may not be a real problem. Some patients, particularly when there is a language or other communication difficulty, may actually prefer a familiar prison officer or hospital officer to be present. The principle still remains that privacy during the consultation should be the rule and not the exception. The fact that it is often the other way around can lead to anomalies, such as where a prisoner's medical history is taken from the accompanying prison officer and not directly from the patient. It can happen that the entire dialogue takes place between prison officer and doctor, the patient not being more than a mere'bystander'.
It is interesting to note that there is always a tendency to step up general security procedures, understandably enough, after prisoners escape. Medical facilities, particularly outside hospitals, are notorious for lax security. This is, however, no excuse for blanket restrictions on the way doctors should treat their patients.
The issue of medical confidentiality is also adversely influenced by the conflicts of interest within a prison setting. Prison governors sometimes tend to think that there is'no such thing as medical confidentiality in a prison'[6 ] . This is certainly not justified. Patients'medical files should be confidential and kept separately from custodial files. They should be under the sole responsibility of the doctor. Medical secrecy should be respected to the same extent as in the outside community. The prison administration should receive only such public health information as it needs to know, the decision being made by a higher medical authority and should not be allowed access to individual files.
This issue is all the more relevant to the situation in Western Europe with the advent of the HIV epidemic, particularly in prisons. With the spread of the infection and the e ver increasing use of illicit (injectable) drugs in prisons, it becomes more important than ever for prisoners to be able to trust their physicians within the system.
The issue of medical confidentiality is a sensitive one, as it may be difficult for the doctor to ensure privacy. It must be remembered that even if doctors (medical officers) respect this principle, hospital officers in many countries are not bound by any code of ethics and are essentially prison officers with a smattering of medical training [7 ] . It is essential, therefore, that the medical or health service issue strict guidelines on medical confidentiality.
A final example of conflicting loyalties can be given. In many countries, doctors have to perform certain duties that are certainly not in the interest of their patients. One case in point is medical certification of'fitness to undergo adjudication'.
Prison regulations in many countries stipulate that the prison doctor has to examine any prisoner before he or she can be punished by, for example, three days of cellular confinement. This puts the doctor in a very uncomfortable, if not untenable, position as he is rightly seen as being involved in an act (adjudication) which can in no way be regarded as beneficial to the prisoners health! Doctors are furthermore required to fill out an official form certifying such'fitness for punishment'.
This requirement certainly impinges on the true medical role. The argument that it can be in the patient's benefit, since prisoners undergoing such confinement have daily access to a physician, is fallacious. In fact, the procedure is somewhat of a throwback to the days when prisoners had to be certified'fit for flogging'before being whipped. (This is still the case in many countries today where flogging and other forms of corporal punishment are still in use.)
Medical certification is, in fact, merely a way for the prison administration to wash its hands of any responsibility, should cellular confinement have any untoward effects on a particular prisoner. (it could be argued that punishments with possible untoward effects should not be inflicted in the first place.) The important point to be made here is that doctors are obliged to perform a duty that is disastrous for the doctor-patient relationship, already so difficult to establish in a prison.
All these examples come from systems where the medical service is directly under the authority of the Prison Service. In worst-case scenarios, there may be some form of coercion to make doctors comply. Even where actual coercion is not an issue prison doctors are not only faced with the dilemma of divided loyalties, they often have no direct line of appeal to any higher medical authority. Moreover, they are conscious of the fact that their jobs may be at stake if they do not abide by Prison Service rules. The crux of the matter is the issue of lack of medical independence.
To sum up what can only be a brief overview of a sensitive subject, doctors working with prisoners are at risk of having their ethical behaviour dictated to them unless they can be truly independent from the custodial system.
If physicians are to respect fundamental principles of medical ethics such as confidentiality and always working in the best interests of their patients, they have to be guaranteed some form of independence from the Prison Service. Ideally, doctors working in prisons should be attached to an outside medical body, which they could then appeal to and consult on any controversial issues regarding medical ethics. Doctors should furthermore not be expected to perform duties which impinge upon their role as healers. If there are cases where a medical expert is needed for some other purpose, such an expert should be brought in from outside.
Working in the prison setting is a difficult task for physicians. Building up a proper'doctor-patient relationship'is often a long process. If the physician is and is seen to be, a part of the Prison Service, then the relationship will be compromised at the very least.
The Committee for the Prevention of Torture (CPT), the Council of Europe body which visits prisons, summed up its conclusions on the topic of medical independence in its Third General Report in 1993. The document states the following:
'The health-care staff in any prison is potentially a staff at risk. Their duty to care for their patients (sick prisoners) may often enter into conflict with considerations of prison management and security....'
'In order to guarantee their independence in health-care matters, the CPT considers it important that such personnel should be aligned as closely as possible with the mainstream of health-care provision in the community at large....'
'Whatever the formal position under which a prison doctor carries out his activity, his clinical decisions should be governed only by medical criteria... .'
'In the interests of safeguarding the doctor/patient relationship, [the doctor] should not be asked to certify that a prisoner is fit to undergo punishment.'
[paragraphs 71 - 73 ]
Among the many recommendations of the British Medical Association publication'Medicine Betrayed', on violations of medical ethics, was the key one that medical associations should do their utmost to support physicians in countries where such violations occur. This should apply even more to'doctors at risk'who work, by whatever arrangement, in prisons in their own countries.
* Published by the University of Liverpool, Department of Public Health
© with contributors unless stated otherwise. Editors: Neil Squires & Judith Strobl
1. See British Medical Association. Medicine Betrayed. London. Zed Books. 1992.
2. such as the Geneva Conventions of 1949 and their Additional Protocols of 1977.
3. United Nations Standard Minimum Rules for the Treatment of Prisoners; 1955, revised 1975; and: Council of Europe, European Prison Rules, 1987.
4. Even in many Western European countries, use of a'patient's confidential mailbox', which allows direct communication with the medical officer, is not general practice in prisons.
5. In the case of a medical emergency treatment can be given, but the case should be reported.
6. An actual quote from a prison governor in Australia in 1994.
7. Very few are trained nurses, with a corresponding code of ethics.