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Imprisonment and Human Rights
Discuss the appropriate response to a prisoner who goes on hunger strike. Is it ever justified to force feed a prisoner who refuses to eat?
Hunger strike is a dilemma for prison authorities. It is like two sides of a coin, they have to make a choice, to save the life of the prisoners or to let them die. Prisoners’ hunger strike has been conducted for years in many parts of the world aimed to reach certain goals, solidarity, political struggle and to express opinions. States have the responsibilities to maintain prison security while at the same time preserving the health and well-being of prisoners on hunger strike.
The relevant legal framework on state responsibility in the issue of hunger strike and force feeding is the European Convention on Human Rights, Article 2 on the Right to Life and Article 3 prohibition of torture, and for the United Kingdom Human Rights Act 1998 under the same articles. Other related provision would be Article 8 on the right to private life (ECHR).
The duty of the prison authorities to preserve prisoner’s health and life, including conducting force administering food best described in Leigh v Gladstone (1909). During that period of time the Home Secretary had the obligation and the power to prevent prison suicide including force-feeding prisoners who went on hunger strike. Suicide, abetting and aiding of ‘suicide’ was considered a criminal act.
Lord Alverstone CJ states that “it was the duty of prison officials to preserve the health of prisoners in their custody and that duty extended to force feeding” In this case Article 2 prevails under the condition that suicide is an act of crime. In the case of R. , S. , A. and C v. Portugal, the European Commission on Human Rights found that it was “certainly disturbing that such along time could have elapsed without the applicants being put under medical supervision”
There is a fine line to distinguish hunger strike from suicide, and it is not an easy task. Most philosophers argue that “suicide can be accomplished by passive means, such as refusal to eat” As hunger strike could lead to the possibility of death, it is still a question whether it is an act of suicide or merely an exercise of right of self determination. John Williams’s hunger strike categorizations may give a clear description on the motive and the type of hunger striker.
However, he also realizes that placing a prisoner within one of the categories is difficult particularly in analysing the situation when “death is a possibility, although not an objective” and “death is the desired objective”. Thus Annas observes that the courts have concluded that a refusal of treatment that inevitably leads to death is not a suicide.
The most important example is the 1981 Irish hunger strike where it was carried out to achieve certain objectives and realizing that the result could lead to death. It was clear that the objective of the Irish hunger strikers was to get the political status which they desire, and the primary motive is not suicide.
Dolores Dooley-Clarke pointed out an interesting question, if death resulted from prisoner political protest, could it be a suicide or murder? She elaborates that none of the above fits hunger strike categorisation. In the case of Irish hunger strike and other similar prisoner political protest, Dolores Dooley-Clarke suggests that “the capacity to plan a hunger strike and state one’s intention (…) is not characteristics of all suicide attempts-some suicides depend on impulse or diminished awareness of the full implications of the act. “
Thus, many psychiatrists support the statement that suicide does not fits to the categorisation of hunger strike. Robert Daly, professor of psychiatry at University College, Cork, believes that nothing is achieved or clarified by simply equating hunger strikers with attempted suicides related to schizophrenia or chronic drug addiction. In line with the above statement, British Medical Association states that a hunger strike lead to death cannot be regarded as suicide.
Thus, it is tricky to implement the correct treatment to the prisoner who goes on hunger strike where motive could be deceitful. As Annas elaborates, “motivation is the most crucial distinction between patients who refuse treatment and prisoners who refuse to eat. Because the latter generally seek either to manipulate the prison system for their own benefit or to commit suicide. “
If the motive is solely to die due to there is no other alternative method of suicide other than starving himself to death, than the suicidal motive is clear. If that is the case, the prison authorities have the power to intervene and save ones life. This responsibility to prevent prisoner suicides was considered by the House of Lords, in the words of Lord Hope: “The duty of those who are entrusted with his custody is to take reasonable care for his safety while he remains in their hands.
If it is known that he may engage in self mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remains free from harm until he is set at liberty. This duty is owed to the prisoner if there is at risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from the act that he is being detained by them in custody and is known to be at risk of engaging in self-mutilation or of committing suicide. “
However, it became a complicated issue since most of hunger strikers have a specific objective, to protest or to change policy and demand their request to be heard or fulfilled by the competent authorities.
Prison authorities rely on doctor or medical officer to decide whether the prisoners should be fed artificially, on the other hand, doctors have certain medical ethics not to force-feed them and must respect “prisoner’s autonomy and right to accept or refuse medical care”. World Medical Association Malta Declaration declared that force-feeding is a form of inhuman and degrading treatment.
Article 5 of the 1975 World Medical Association Tokyo Declaration states that doctors must not undertake force-feeding under any circumstances: “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner. ” Prisoner’s right to be informed on the risk that may cause from such treatment is protected by Article 8 ECHR.
Force-feeding likely to be seen as inhuman degrading and amount to torture due to the painful method carried out in its procedures. During the Greek civil war force-feeding caused horror and led the prisoners to stop the hunger strike, not only it is terrifying but it could also result to death. In recent case, the horrific image of force-feeding again could be seen on the hunger striker prisoners in Guantanamo Bay.
As Lawrence Altman stated, “force-feeding is likely to involve “dragging” the prisoners to the site of feeding, and using physical restraints to present the removal of the feeding tube. Placing the tube may also be “tricky” and could result in fatal complications should it enter the trachea” Taking into account the high stakes place into the shoulder of the medical officer, their ethical integrity must also be protected. The relation between prisoner hunger striker patient and the medical authorities thus become complicated.
State has the obligations to preserve ones life and to prevent suicide, and at the same time to respect absolute right of freedom from torture. In the case of Nevmerzhitsky v Ukraine, it was held that there had been a violation to Article 3 of ECHR, “the force feeding of the applicant, without any medical justification (…. ), constituted treatment of such a severe character warranting the characterizations of torture. ” The medical necessity of force-feeding emphasized in this case.
Looking into the judgement, it seems that force-feeding indeed can be justified in certain way. The term medical necessity amounted to a way for the prison authorities to place the burden on the medical officers to make the decision. This could be portrayed in the response of Home Secretary, Roy Jenkins (1975) in the case of force-feeding against Ian Brady: “The responsible medical officer has decided, on the basis of his professional judgment that Ian Brady should be fed artificially. (…) I could not interpose myself between the clinical judgment of a doctor and his patient. “
The court found that there has been no violation to Article 3 of ECHR in the case of A v Germany. In A v Germany, the commission underlined that “force-feeding is even obligatory if an obvious danger for the individual’s life exist. ” Given the obligations of states parties to secure the right to life under Article 2 of ECHR, the commission justified the act of force-feeding.
Personal mentality of the hunger striker thus become a focal point for doctors and physician to determine whether the person has the mental capability to make his own judgment and decision to hopefully end his actions in a reasonable time. In Herczegfalvy v Austria, force feeding of a prisoner was justified on the basis of therapeutic and medical necessity.
Mr Herczegfalvy was diagnosed suffering from paranoia querulans, in the view of medical judgement he was incapable to make the decision for himself. Regardless his refusal to consent any medical treatment and examination that would be conducted upon him, the court on the above circumstances found no violations to Article 3 of ECHR against force administering food. Article 3 on prohibition on torture and Article 2 on the right to life (ECHR) conflicted with one another in this matter.
In the case of hunger strike, medical treatment plays a key role, it has dilemmas when the treatment contrary to the patient’s wish, no consent given from the patient, and how far is such treatment could be amounted to violate one person dignity thus subject to inhuman, degrading treatment, and torture. Doctors have freedom to engage clinical judgment to its patients, however as Dolores pointed out, it becomes a dilemma as “the freedom of clinical judgment is a two-edged sword: the ethical beliefs of the doctor may conflict with a prisoner’s patient expressed wishes not to be treated. “
Prison authorities and medical officers must in any way approach the hunger striker and inform them on the risk for pursuing hunger strike or the risk on force-feeding, here the right to respect the private life (Article 8) should be “clearly engaged in situations concerning disclosure of information that will enable individuals to make decisions that may have an impact on their health”.
In 1981 Irish hunger strike, the British Government decided not to force-feed the hunger striker. Margaret Thatcher refused to give any concessions and stated “We are not prepared to consider special category status for certain groups of people serving sentences for crime. Crime is crime is crime, it is not political”. 10 hunger strikers died to defend their “five demands”.
In Robb v Secretary of State for the Home Department, the wish of the hunger striker, who had a sound of mind and the capacity to understand the risk and the consequences of his decisions, to refuse the medical treatment should be respected. J Thorpe stated: “The first principle is that every person’s body is inviolate and proof against any form of physical molestation. (…) Secondly, the principle of self-determination requires that respect must be given to the wishes of the patient.
So that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged the doctors responsible for his care must give effect to his wishes even though they do not consider it to be in his interest to do so. ” In contras to Leigh v Gladstone (1909) case, in Robb case the secretary of state was granted the declarations that medical and prison staff could lawfully abstain from their responsibility from taking force artificial food or prolonging the life of the patient in the basis of the patient’s refusal to the medical treatment. Here, Andrew Grubb suggested that in view of the above resulted to the decision in Robb case that there’s no obligation for the prison authorities to intervene.
State has the interest in preventing suicide and preservation of life. In Airedale NHS Trust v Bland refusal of a medical treatment is not a suicide or aiding a suicide. Sir Thomas Bingham M.R pointed out “when the patient was adult and of sound mind, a doctor discontinues artificial feeding after three years and the patient dies. Has the doctor aided and abetted suicide? I think the answer plainly is that he has not. ” In Re:’W’, the prisoner patient concern with a sound mind has the mental capacity to make decisions on his behalf and therefore his refusal to medical treatment will be respected even if it would lead to his death. As elaborated in the above cases, it was found that “the right of an individual to refuse treatment strongly outweighs the interest in the preservation of life”.
Similar to the above cases, in the United States, Supreme Court of California in the case of Thor v Superior Court held that a competent patient (prisoner) has the right to accept or to refuse medical treatment even at the risk of death. Here, the right to exercise self-determination prevails in a condition of a competent patient. In R. v.Collins and Ashworth Hospital Authority ex p. Brady, Brady argues that the force-feeding was unlawful taking into account that he is mentally competent. As mentioned on the above case laws, a “competent prisoner cannot lawfully be force-fed”. However, in Brady’s case, the hospital expert’s observation on his mental incapacity justified the lawfulness of the force-feeding conducted upon him.
Personal motivation, mental capacity, and the consent of the prisoner hunger strikers is the main points that would be taking into account for the prison authorities and the medical staff to make their decision. Force-feeding of the prisoner who goes on hunger strike should be carried out in accordance to the points above. Motivation and sound of mind of the hunger striker determine the objective of such actions to differentiate it from suicide.
As in Robb case, the prison authorities and medical staff are avoid from unlawful act for being abstain of conducting a medical treatment in the basis of refusal of prisoner with a sound mind. While in Brady‘s case, force-feeding was conducted in concern of the prisoner’s motivation to commit suicide by starving himself to death. In regards to the patients with a sound of mind, the right of self determination prevails, and therefore to administer food in force is not justified. However, in certain cases such as Brady’s, force-feeding is justified in the basis of preserving ones life.
In view of prohibition of torture, it is clear that force-feeding is so horrific thus lead to inhuman and degrading treatment, therefore prison authorities and medical officers should inform the hunger striker patients on the risk of such action. Article 2 on the right to life would only prevails Article 3 on prohibition of torture if there’s a definite reason on the basis of medical necessity and the inability of the patients to make a decision for them. In regards of cases where death is the primary objective, such as Brady‘s, preserving ones life comes first before self determination. The prisoners’ right to refuse any medical treatment or force-feeding should be respected, nevertheless it should be noted that medical necessity and mental incapacity would play a key role on making the decision to outweigh that right.
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Human Rights Watch, Prison Conditions in the Soviet Union: A Report of Facilities in Russia and Azerbaidzhan (New York: Human Rights Watch) (1991)
Kieran McEvoy, Paramilitary Imprisonment in Northern Ireland: Resistance, Management, and Release (New York: Oxford University Press) (2004)
Human Rights Watch, Africa Watch Prison Project, Prison Conditions in South Africa (New York: Human Rights Watch) (1994)
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John Wadham, Helen Mountfield, and Anna Edmundson, Blackstone’s Guide to The Human Rights Act 1998 (Oxford: Oxford University Press) (2003), p. 49.
Barbara Harvey and John Marston, Cases and Commentary on Tort (4th Edition) (Essex: Pearson Education Limited) (2000)
European Convention on Human Rights and its Five Protocols, available at http://www.hri.org/docs/ECHR50.html#C.Art8
As cited in R v Secretary of State for the Home Department v Robb  1 All ER 677, available at http://www.lexisnexis.com/uk/legal/results/pubTreeViewDoc.do?nodeId=TAANAAEACE&pubTreeWidth=23%
Office of the High Commissioner for Human Rights in cooperation with the International Bar Association, Professional Training Series No, 9 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers(New York: United Nations Publications) (2003), p. 345
Norman L. Cantor & George C. Thomas, The Legal Bounds of Physician Conduct Hastening Death in the USA, in Yoram Distein (eds), Israel Yearbook on Human Rights (The Hague: Martinus Nijhoff Publishers) (2000)
John Williams, Hunger-Strikes: A Prisoner’s Right or a ‘Wicked Folly’, The Howard Journal vol. 40 no. 3 (2001)
George J. Annas, Law and the Life Sciences: Prison Hunger Strikes: Why the Motive Matters, The Hastings Center Report vol.12 no. 6 (1982), p.21-22.
Dolores Dooley-Clarke, Medical Ethics and Political Protest, The Hastings Centre Report vol. 11 no.6 (1981)
British Medical Association, Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (London: Zed Books) (1998)
George J. Annas, Loc. cit
British Medical Association, Loc. cit
World Medical Association Declaration on Hunger Strikes (1991) (1992) (2006), Article 21, available at http://www.wma.net/e/policy/h31.htm
The World Medical Association Declaration of Tokyo, Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (1975), Article 5, available at http://www.wma.net/e/policy/c18.htm
Polymeris Voglis, Becoming a Subject: Political Prisoners during the Greek Civil War (New York: Berghahn Books) (2002), p. 193.
David Rose, Scandal of force-fed prisoners, The Observer, January 8, 2006, available at http://www.guardian.co.uk/world/2006/jan/08/usa.guantanamo
Lawrence Altman as cited by George J. Annas, Law and the Life Sciences: Prison Hunger Strikes: Why the Motive Matters, The Hastings Center Report vol.12 no. 6 (1982), p.22
Nevmerzhitsky v Ukraine , available at >http://www.westlaw.co.uk
Jenkins, as cited by John Williams, op. cit, p.285 A v Germany, available at http://www.westlaw.co.uk
Herczegfalvy v Austria, available at http://www.westlaw.co.uk
Dolores Dooley Clarke, op. cit, p.7
Jane Wright, Tort Law and Human Rights (Oregon: Hart Publishing) (2001), p. 66
R v Secretary of State for the Home Department v Robb , op. cit
Ibid. see http://medlaw.oxfordjournals.org/cgi/reprint/3/2/189.pdf
As cited in Rosamund Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict (Portland Oregon: Hart Publishing) (2002), p. 136
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