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ISTANBUL PROTOCOL II. RELEVANT ETHICAL CODES

by a third party, they retain a clear duty to respect jurisdictions, this is also a legal requirement. In some
their core ethical obligations. They must refuse to cases, however, patients may refuse to consent to
comply with any procedures that may harm patients being examined for such purposes or to having the
or leave them physically or psychologically vulnerable information gained from examination disclosed to
to harm. They must ensure that their contractual others. They may be fearful of the risks of reprisals
terms allow them professional independence to make for themselves or their families. In such situations,
clinical judgments. Health professionals must ensure health professionals have conflicting responsibilities:
that any person in custody has access to any medical to the patient and to society at large, which has an
examination and treatment needed. In situations interest in preventing torture and ill-treatment and
in which the detainee is a minor or a vulnerable ensuring perpetrators of abuse are brought to justice.
adult, doctors have additional duties to act as an
advocate. Health professionals retain a general duty 177. As previously stated, rule 32 (1) (c) of the Nelson
of confidentiality so that information should not be Mandela Rules requires the confidentiality of medical
disclosed without the patient’s knowledge. They must information “unless maintaining such confidentiality
ensure that their medical records are kept confidential. would result in a real and imminent threat to the
Health professionals have a duty to monitor and patient or to others”. In addition, rule 34 states
speak out when services in which they are involved that any signs of torture or ill-treatment should be
are unethical, abusive, inadequate or pose a potential reported to the “competent medical, administrative
threat to patients’ health. In such cases, they have or judicial authority” and that: “Proper procedural
an ethical duty to take prompt action as failure to safeguards shall be followed in order not to expose
take an immediate stand makes protest at a later the prisoner or associated persons to foreseeable risk
stage more difficult. They should report the matter of harm.” Rule 71 requires prison directors to report
to appropriate authorities or international agencies torture and ill-treatment to a “competent authority
who can investigate, but without exposing patients, that is independent of the prison administration and
their families or themselves to any foreseeable serious mandated to conduct prompt, impartial and effective
risk of harm. Health professionals and professional investigations into the circumstances and causes of
associations should support colleagues who take such cases”. It has been noted that the exception to
such action on the basis of reasonable evidence. confidentiality in rule 32 (1) (c) should be understood
narrowly and not as applying to the whole medical
2. Dilemmas arising from conflicting obligations file. Rather, it requires an assessment of which specific
pieces of information need to be communicated
175. Dilemmas may occur when ethics and law are in and at what level on a “need to know basis”. 313
contradiction. Circumstances can arise in situations WMA has provided guidance to physicians on the
in which the ethical duties of health professionals circumstances in which breaches in confidentiality
oblige them not to obey a particular law, such as may be considered, for example when harm is
a legal obligation to reveal confidential medical believed to be imminent, serious (and irreversible),
information about a patient or participate in harmful unavoidable except by unauthorized disclosure, and
practices. There is consensus in international greater than the harm likely to result from disclosure.
and national declarations of ethical precepts that In determining the proportionality of these respective
other imperatives, including the law, cannot oblige harms, the physician needs to assess and compare the
health professionals to act contrary to medical seriousness of the harms and the likelihood of their
ethics and to their conscience. In such cases, health occurrence. In cases of doubt, WMA recommends
professionals must decline to comply with the that physicians seek expert advice. It also recommends
law or a regulation rather than compromise basic that disclosure should contain only the information
ethical precepts or expose patients to harm. necessary to prevent the anticipated harm and should
be directed only to those who need the information
176. In some cases, two ethical obligations may be in in order to prevent the harm, that the physician
conflict. International codes and ethical principles inform the patient of the disclosure of information,
require the reporting of information concerning explain the reason for the disclosure and seek the
torture or ill-treatment to a responsible body. In some patient’s cooperation if possible. Reasonable steps

313 Penal Reform International and the Human Rights Centre at the University of Essex, Essex Paper 3: Initial Guidance on the Interpretation and Implementation of the UN Nelson
Mandela Rules (London, 2017).

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