ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES care staff to advise the prison administration on a harmful practice for so long as it persists and until it is phased out. à O n the tension between medical ethics and the specific duty of care towards prisoners see also Chapter 5, Restrictions, discipline and sanctions – Role of medical personnel Documentation of Signs of Torture Rule 34 requires medical staff to ‘document and report (…) any signs of torture or other cruel, inhuman or degrading treatment or punishment’ that they become aware of and to report these signs ‘to the competent medical, administrative or judicial authority’. The Rule requires that ‘proper procedural safeguards are followed in order not to expose the prisoner or associated persons to foreseeable risks of harm’. The Essex Group noted that health-care staff must record all signs and traces of torture and other ill-treatment in a prisoner’s medical file. The Committee against Torture has stated that medical ‘examinations should be carried out in private by a health professional trained in the description and reporting of injuries, include an independent and thorough medical and psychological examination, and the results be kept confidential from police or prison staff, and shared only with the detainee and/or the detainee’s lawyer, in accordance with the Istanbul Protocol’.273 The Essex Group suggested that it would also be desirable for the health-care team to compile periodic statistics on the types of injuries observed in prison and to submit this to the prison administration and ministry of justice.274 However, such statistics should anonymise the data and ensure that re-identification is not possible to prevent further harm to prisoners. The Essex Group noted that health-care professionals should systematically ask prisoners for their consent to report signs of torture or other ill-treatment. On its face, the obligation to report any signs of torture or other ill-treatment conflicts with the principles of informed consent and confidentiality in situations in which documentation and reporting is contrary to the prisoner’s wishes, for example, for fear of reprisals. For this reason, the Essex Group recommended that the Rule should be interpreted as prohibiting automatic or systematic reporting of torture or other cruel, inhuman or degrading treatment or punishment without the informed consent of the prisoner.275 The absence of informed consent would violate basic principles of medical ethics and the confidentiality and trust of the doctor-patient relationship. This approach has also been taken in Rule 7 of the Bangkok Rules, which underscores the requirement of informed consent to report signs of torture and other ill-treatment. It states that if sexual abuse or other forms of violence before or during detention is diagnosed, the woman prisoner shall be informed of her right to seek recourse from judicial authorities and of the procedures and steps involved. However, it clarifies that the case can only be referred to the competent authority for investigation ‘if the woman prisoner agrees to take legal action’. The Istanbul Protocol provides that where the prisoner has not consented to reporting, the healthcare professional is in a position of dual loyalty between the individual prisoner concerned and society at large ‘which has an interest in ensuring that justice is done and perpetrators of abuse are brought to justice’276. In such a situation, the Istanbul Protocol suggests that, ‘[t]he fundamental Kyrgyzstan CAT/OP/KGZ para. 57 273  CPT Standards para. 62 p. 44 274  Bangkok Rule 7 275  paras. 69 and 72 276  Penal Reform International and the Essex Human Rights Centre | 75