Experts consider whether death penalty amounts to torture
Lawyers and doctors gathered in the panelled boardroom of the Middlesex Hospital in June to consider with PHR-UK's experts the evidence that the way in which countries carry out the death penalty actually amounts to torture.
PHR-UK's Special Advisor Bernie Hamilton opened the evening by reminding everyone that the death penalty was lawful under international law. He pointed out that the courts of certain countries, such as South Africa (1) and Hungary (2), had held that the death penalty violated the right to life, and that neither the International Criminal Court nor the UN's criminal tribunals had it as an available punishment.
Bernie went on to say that international law provided an absolute prohibition of torture. He explained that human rights laws were, to paraphrase the European Court of Human Rights, considered to be living instruments that must be interpreted in the light of present-day conditions. Thus, early decisions that behaviour did not amount to torture might be viewed differently now (3). He gave as an example the changing attitude of human rights experts to psychological deprivation techniques over the last 30 years. (See Israel and Torture, in Newsletter 11.2 - Ed.)
Turning to cruel, inhuman or degrading treatment or punishment, Bernie explained that various human rights authorities had found violations through delays, death row conditions, absence of sufficient notice of the proposed time of execution and public spectacle executions. However, consensus was not certain on these issues. For example, whereas the Judicial Committee of the Privy Council regarded an extended period of time on death row as inhuman (4), the UN Human Rights Committee refused to specify what period of time on death row might amount to degrading treatment, in part, because this could lead to a rush to execute (5).
Bernie Hamilton went on to say that one area that human rights courts might be willing to entertain was the pain associated with the death penalty. He pointed out that the UN Human Rights Committee had determined as long ago as 1992 that the death penalty must be administered in the least painful way (6). In the previous year, it had determined that extradition to face gas asphyxiation, where ten to fifteen minutes of convulsions could result, would be a violation (7). In the same communication, two members of the Committee indicated that methods of execution intended to cause pain, such as stoning, would also be a violation. This, said Hamilton, was an area where medical expertise could be particularly helpful. PHR-UK was keen to ensure that those who made a study of pain, whether physical or psychological, were given a hearing by such bodies as the UN Human Rights Committee in Geneva.
Dr. Harold Hillman, a pain specialist and former Reader in Physiology at the University of Surrey discussed the physical pain experienced during methods of execution currently employed. He said that decapitation, whether by guillotine or heavy axe did not render people unconscious for several seconds or even minutes, and that axing was often inaccurate, sometimes because the executioner was drunk.
Turning to shooting, Dr. Hillman explained that the use of firing squads resulted in people bleeding to death. The use of a single shot in the back of the head results in an impact pain, but this is normally followed by rapid loss of consciousness before the pain associated with the wound is felt.
Hanging by means of a rope had been thought to sever the spinal cord and so cause death instantaneously, said Dr. Hillman. However, some sensory signals continue to reach the brain for a while. Research shows that over 30% of deaths by hanging result from asphyxiation. The prisoner can neither move, because their limbs are tied, nor shout, because the rope is above their vocal chords. They would experience headache and be unable to breathe.
There followed a discussion of a wide range of issues, including the variations i drugs and do ages revealed by research on the use of lethal injections in the USA, the health impact of deat row, the availability of mental health care for inmates and the ethical dilemmas facing health practitioners who might be asked to participate in executions or provide training for this.
PHR-UK hopes that it can develop its study of this issue and present its findings to the UN Human Rights Committee, in Geneva. Members who can contribute expertise or donations of money in support of this work are asked to contact Dr. Peter Hall, Chair PHR-UK, 91 Harlech Road, Abbots Langley, Herts WD5 0BE. Cheques should be made payable to PHR-UK, and marked Death Penalty on the reverse side.
Turning to death by electrocution, Dr. Hillman said that it probably took a prisoner twenty minutes to die, from a combination of cardiac arrest and asphyxiation. They would experience third degree burns and the associated smell during this time. Electric currents themselves cause pain, which is why electricity is used to torture people all over the world.
Dr. Hillman concluded that intravenous lethal injection was the least painful method of execution, if carried out correctly. There was wide room for error though, if the drugs were not used in appropriate quantities or clogged in the tube. Also, it might not be possible to locate a suitable vein, especially if the prisoner habitually injected themselves with addictive drugs. If the prisoner refused to co-operate or struggled, then it would be very difficult to carry out the procedure.
Bob Ferris, a forensic psychiatrist from Oxford, discussed the mental pain associated with the death penalty. He pointed out that mock executions were often used as a method of torture, and explained that human beings displayed a strong desire to live and to control the manner of their death, as evidenced by the high rate of suicide among prisoners awaiting execution.
Dr. Ferris said that studies of mental illness among the prison population yielded diverse findings. He thought that the lack of recreation, social interactions, exercise or visits undermined inmates' attempts to cope with their punishment and that much psychopathology lay beneath the outward quiet of death row. While it may be that some inmates were dysfunctional or disordered before their conviction, there was little doubt that a period of incarceration under the conditions of death row, and where the only exit resulted from execution, was likely to worsen their condition.
Dr. Peter Hall, spoke of his work with patients who were terminally ill. He said that those who were concerned to execute people in the least painful way could learn much from hospices, if they wished to approach human rights from the perspective of present-day conditions.
1. State v Makwanyane (1995) 1 LRC 269
2. Decision No. 23/1990 (X.31).
3. Selmouni v France (2000) 29 EHRR 403.
4. Pratt v AG Jamaica (1993) 2 LCR 349
5. Johnson v Jamaica (Communication No. 588/1994)(1996)1 BHRC 37.
6. HRC General Comment 20 (1992) Para. 6.
7. Ng v Canada (1991)
PHR-UK initiatives in the Right to the highest attainable standard of health
PHR-UK is making great strides in its work on the Right to Health. Bernie Hamilton discussed this with colleagues in Washington, DC, in April, and Geneva, in May, where he attended a workshop organised by the WHO on right to health indicators. Others attending included Audrey Chapman, Director of the AAAS Science and Human Rights Program and Sofia Gruskin, Director of the International Program on Health and Human Rights at Harvard University, Prof. Eibe Riedel a member of the UN Committee on Economic, Social and Cultural Rights [CESCR], Prof. Paul Hunt, the UN Special Rapporteur on the Right to Health, and Miriam Maluwa from UNAIDS as well as a number of WHO staff. The workshop clarified a number of issues in the development of indicators.
Sir Kenneth Stuart, a Patron of PHR-UK and former delegate to the World Health Assembly (WHA), has been advising us on how to promote the Right to Health at the WHA. There is a growing recognition within the developing world that human rights provide a way of ensuring various social and cultural rights. The use of human rights in the courts of South Africa, for example, has obtained improvements in housing and health care for poor people, including those born to HIV positive mothers. PHR-UK hopes to strengthen the WHA's appreciation of the value of the human rights approach to securing the best attainable physical and mental health. [See Newsletter 13.2 for more on HIV/AIDS and the South African Constitutional Court's decision. Ed.]
PHR-UK has continued to concern itself with the implementation of its Right to Health commitments by the UK Government. In particular, it has been looking at the Government’s obligations to the UN human rights treaties on discrimination against women, the rights of the child and on social rights. These obligations are also a concern of the UK Parliament’s Joint Committee on Human Rights, and we have been liaising with this Committee, particularly on the way in which the Government is responding to the dialogue it had with CESCR in May 2002. Copies of our written submission to the Joint Committee, or any of our other reports, are available from the Chair, whose address is at the end of this article.
An important initiative that PHR-UK has taken is to set up a series of discussions with lawyers about possible litigation strategies to protect our patients’ right to health. Although the UN covenants are not currently justiciable in UK courts, they might carry some weight on the basis that the government would not wish to pursue policies that did not accord with their treaty obligations. In A & Ors R v East Sussex County Council & Another (18 February 2003), Justice Munby pointed out that Article 26 of the EU Charter of Fundamental Rights, which concerns State obligations towards disabled persons, "…can properly be consulted insofar as it proclaims, reaffirms or elucidates the content of human rights that are generally recognised throughout the European family of nations…" [See Newsletter 11.4 for an overview of the EU Charter of Fundamental Rights Ed.]
It is however the 1998 Human Rights Act that offers guarantees in a number of areas, and doctors can use these to ensure that their patients receive the best possible health care. There have been a number of health related cases in UK courts brought under the 1998 Act. Possible areas covered by the Act include public health powers in the context of communicable diseases, powers regarding persons with mental disorder, the treatment of prisoners, women's reproductive rights, and the allocation of healthcare resources. PHR-UK would like to hear from you if you have a concern about these or any other area now that we are developing litigation strategies. We only require a general picture of the problem and not any material that might identify the patient or authority concerned.
Please contact Dr. Peter Hall, Chair PHR-UK, 91 Harlech Road, Abbots Langley, Herts WD5 0BE, [Tel 07770796609; Email firstname.lastname@example.org] by Friday 12 September, so that we will have the information in time for our next litigation strategy meeting.
Riding out the economic downturn
In Newsletter 14.1 that PHR-UK, we discussed the economic downturn and the impact this would have on human rights organisations whose normal donors suffered decreased returns on their investments. We predicted that some NGOs might not be able to renew their office leases. However, the downturn has also impacted many businesses, and NGOs are now likely to be able to obtain leases at favourable rates in such areas as London's Spitalfields. We also said that PHR-UK could probably ride out the economic downturn. Unfortunately, we have suffered a setback in that the UK Foreign Office has failed to come up with the final tranche of the £40,000 we needed to fund a follow-up visit to Armenia. The trip was to train health professionals from Armenia and neighbouring Azerbaijan and Georgia, in torture diagnosis and reporting; but the Foreign Office preferred instead to fund a similar project to train lawyers in that region on the use of the European Convention on Human Rights. This means that the awards announced in Newsletter 12.1 are no longer available to us, and must be returned to their donor. As we reported in Newsletter 13.2, long term member Chris Burns-Cox has been working on an appeal campaign and leaflet, and Chair, Peter Hall sent a letter to eighty selected foundations asking for core funding. Chris Burns-Cox is now following this up with further letters and phone calls, as well as approaching other individuals and organisations about possible funding. Peter Hall is also exploring ideas, including the possibility of getting a prominent person to make an appeal on our behalf in the BBC's this week's good cause slot.
Because of this setback, your ideas are even more important than ever. If you have an idea about fundraising, could you for example host a dinner or similar event to raise funds, or know someone with experience in this area, please contact the Chair, Dr. Peter Hall now.
Refugee doctor training scheme
Refugee doctors share the problems of all asylum seekers and refugees in the UK. Many refugee doctors are professionally trained in their own countries. Yet only a very small percentage will ever return to medicine and their skills and experience are wasted. The NHS undoubtedly needs more doctors and most refugee doctors are desperate to work. The obstacles facing them however can appear huge and many end up living on benefits and doing work for which they are vastly overqualified. The prospect of taking on clinical and English examinations in addition to the housing difficulties, immigration cases and financial worries they have may seem overwhelming.
Over the last few years a number of schemes have been piloted to help refugee doctors overcome some of these hurdles. The London Deanery along with the Workforce Development Confederations is one organisation that has set up a successful clinical attachment and training scheme.
The aim of the scheme fundamentally is to enable refugee doctors to be successful in obtaining SHO posts, rotations on G.P. vocational training schemes or as G.P. registrars. To do this a twelve week clinical attachment has been offered that runs alongside ongoing language development, interview skills and IT training. The clinical attachment is divided into six weeks in primary care and six weeks in secondary care. As well as providing a forum for clinical learning the huge bonus of this scheme is the opportunity for the doctor to have a chance to gain some experience of the “intricacies” of the NHS and the interface between primary and secondary care in this country. In addition the opportunity to work as part of a multidisciplinary team within the primary care setting may well be a new experience for many.
For those of us who have had a career break to travel, have a family or due to ill health we can probably remember the daunting prospect of feeling confident back in the workplace and keeping abreast of the constant changes that are occurring both clinically and within the system. Refugee doctors will face all these doubts but also have the challenge of adapting to a new culture and style of practice. For refugee doctors who want to return to the profession they trained for, this scheme provides a great starting point in which to improve confidence and self worth and a platform for further professional development.
Dr Helen Bygrave will be starting as a GP tutor for refugee doctors in January 2004