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ISTANBUL PROTOCOL II. RELEVANT ETHICAL CODES

of all clinical evaluations of alleged or suspected the complexity of understanding for a medico-legal
torture or ill-treatment and fully documented. evaluation, informing the parents and seeking their
consent will be required or recommended, however,
169. Adult patients are always assumed to be competent to parental consent will not be valid if it is given against
make decisions for themselves. Health professionals the child’s best interests. 306 Furthermore, the age under
have an obligation to recognize and respect the which parents/legal guardians must be informed about
legal capacity of all adults, including persons with any participation or procedure involving the child
disabilities and persons whose mental capacity has in their care varies among countries. 307 Therefore,
been impaired, and this encompasses respect for the there is a need to be informed about the local legal
individual’s free and informed consent. Efforts should obligations in terms of informed consent by children
be taken by health professionals to communicate in and to choose processes that are in the best interests of
a manner that is accessible and understandable for the child. It is important to remember that informed
the individual. This may entail making information consent does not absolve heath-care professionals
available in accessible formats, providing sign language from the duty to safeguard children and their best
interpretation or through the provision of supported interests. This duty requires health-care professionals
decision-making. In situations in which significant to ensure that any potential immediate and long-term
efforts have been made and it is not possible to risk to a child as a result of an assessment is identified
obtain the individual’s free and informed consent, and considered before seeking consent and carrying
health professionals should not resort to substituting out such an assessment. 308 Children who are not yet
the individual’s decision based on a determination developmentally able to understand their situation
of “best interests”, but should take as a last resort and alternatives should be given the opportunity
the standard of “best interpretation of the will and to assent to treatment or to otherwise express their
preferences”. 304 This standard implies ascertaining wishes, as part of their basic right to be heard.
what the individual would have wanted instead of
deciding on the basis of their best interests. The 171. The autonomy of individuals who refuse to provide
process should include consideration of the previously consent for an evaluation should be respected and
manifested preferences, values, attitudes, narratives under no circumstances should they be forced to
and actions, inclusive of verbal and non-verbal comply with an evaluation. In some cases, clinical
communication, of the individual concerned. 305 examinations should be presumed to be conducted
forcibly and without informed consent when they are
170. Those who are minors at the time of decision-making based on profound discrimination and criminalization
may be able to consent as consent has no specific and in situations in which victims understand that State
age at which it becomes valid. Children’s ability to officials have the power to compel them to undergo
consent develops as they learn to make increasingly an examination and non-compliance is likely to result
complex and serious decisions and as such may relate in adverse legal outcomes, ill-treatment or reprisal.
to experience rather than to age. Therefore, children Forced hymen examinations to detect virginity and
should be informed as fully as possible about the forced anal examination of individuals to detect same-
assessment and related procedures in a way that they sex activity are examples of such clinical examinations
can understand, ensuring accessible information and – they have no clinical value, represent forms of sexual
communication and adjusting the communication assault and constitute ill-treatment and may amount to
to their age and development. In many cases, given torture depending on the individual circumstances. 309

304 Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014), para. 21.
305 A/HRC/37/56, para. 31.
306 Royal College of Paediatrics and Child Health: Ethics Advisory Committee, “Guidelines for the ethical conduct of medical research involving children”, Archives of Disease in
Childhood, vol. 82 (2000), pp. 177–182.
307 Pirkko Lepola and others, “Informed consent for paediatric clinical trials in Europe”, Archives of Disease in Childhood, vol. 101 (2016), pp. 1017–1025.
308 Royal College of Paediatrics and Child Health, “Guidelines for the ethical conduct of medical research involving children”.
309 Independent Forensic Expert Group, “Statement on virginity testing”, Torture Journal, vol. 25, No. 1 (2015), pp. 62–68; and “Statement on anal examinations in cases of
alleged homosexuality”, Torture Journal, vol. 26, No. 2 (2016), pp. 85–91.

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