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ISTANBUL PROTOCOL VII. HEALTH PROFESSIONALS DOCUMENTING TORTURE AND ILL-TREATMENT

602. The involvement of health professionals in the have an obligation to respect and protect everyone’s
investigation and documentation of torture and right to freedom from torture and ill-treatment.
ill-treatment is not limited to comprehensive This includes the obligation to prevent, investigate
clinical evaluations for legal purposes. Torture and document incidents of torture and other
and ill-treatment may also be discovered by health forms of ill-treatment and to hold perpetrators
professionals in non-legal 518 contexts, such as the accountable. 520 States also have a duty to take
routine delivery of health care and health inspections effective legislative, administrative, judicial or other
or examinations. This chapter seeks to clarify the measures to prevent acts of torture in any territory
role of health professionals in both legal and non- under its jurisdiction. 521 These State obligations are
legal contexts and provide guidance on the effective elaborated in international human rights instruments
investigation and documentation practices 519 in as discussed in chapter I. Furthermore, specific
these contexts. While the guidance in this chapter obligations of health professionals working in
primarily aims to help health professionals working custodial settings, to document and report torture
in non-legal contexts fulfil their obligations to and ill-treatment, are elaborated in the Nelson
investigate and document torture and ill-treatment, Mandela Rules 522 and in regional human rights
it is not intended to serve as comprehensive guidance instruments 523 as discussed in chapter II. The Istanbul
for clinical evaluations of torture and ill-treatment. Protocol and its Principles provide guidance on
Health professionals working in non-legal contexts how to effectuate State obligations to effectively
should be familiar with all the relevant chapters in investigate and document torture and ill-treatment.
the Istanbul Protocol and its annexes, particularly
chapters II, IV, V and VI and annexes I–IV. This 604. International associations of health professionals, such
chapter further aims to clarify the role of health as WMA, WPA and ICN, have also established ethical
professionals in the contexts of monitoring and obligations that are intended to elaborate the core
prevention, in which the primary purpose of clinical universal duties of their respective health professionals
encounters is often the prevention of torture and to document and report torture and ill-treatment (see
ill-treatment rather than evaluating a specific allegation paras. 147 and 155 above). As stated in paragraphs
of abuse or the delivery of health care. The guidance 177–182 above, regardless of employer status (State or
in this chapter is based on a review of relevant non-State) or work setting (custodial or non-custodial),
considerations, including: relevant State obligations all health professionals have an ethical obligation to
and ethical obligations of health professionals, a document and report alleged and suspected cases of
review of different documentation contexts and torture and ill-treatment. This obligation should be
special challenges that health professionals may considered in light of other core ethical obligations (do
face in different documentation contexts. no harm, confidentiality and respect for autonomy)
and careful consideration should be given to the
conditions necessary to document and report torture
A. State obligations and ethical and ill-treatment in the absence of consent (see
obligations of health professionals paras. 177–178 above). As stated in paragraph 155

above, when alleged victims provide their informed
603. The obligation of health professionals to document consent to health professionals for a clinical evaluation
and report torture and ill-treatment in all contexts is and report torture and ill-treatment, the clinician
based on the obligation of States under international has an unequivocal duty to document and report
law, as well as the ethical obligations of health the torture or ill-treatment, if substantiated – failing
professionals. As stated in chapters I and III, States

518 The term “non-legal” contexts is used to refer to clinical encounters in which the evaluation of possible torture and ill-treatment are not the expressed or implicit purpose of the
patient encounter, even though information collected in such non-legal contexts ultimately may be entered into evidence in legal cases as often happens in cases of domestic
violence, sexual assault and child and elder abuse.
519 Investigation and documentation in non-legal settings typically require health professionals to first identify the possibility of torture and/or ill-treatment based on the clinician’s
observations (e.g. injuries and/or psychological distress) and a history of contact with possible perpetrators, and then to proceed with a clinical evaluation in order to
document and subsequently report clinical evidence of torture and/or ill-treatment.
520 Convention against Torture, art. 12.
521 Ibid., art. 2.
522 While the Nelson Mandela Rules are not treaty-based obligations of States, they provide universal guidance for health professionals working with persons deprived of their
liberty.
523 European Committee for the Prevention of Torture, 23rd General Report of the CPT (see chap. III, para. 71 et seq.); Inter‐American Commission on Human Rights, Principles
and Best Practices on the Protection of Persons Deprived of Liberty in the Americas; and African Commission on Human and Peoples’ Rights, Guidelines and Measures for the
Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines).

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