[This article was published in the Norwegian Ombudsman’s annual report 2015. Read the report here.]
People who are deprived of their liberty have the same rights to physical and mental health care as the rest of the population. In some cases, however, they may have special health care needs. The deprivation of liberty in itself and the health services provided can represent risk factors for ill-treatment. In order to ensure a good health care basis for the NPM’s work, the interdisciplinary visiting team includes a doctor, and, from 2016, a psychologist. Every visit report includes a section on health care, with findings and recommendations aimed at both the health authorities and the detaining authority. Reports from visits to mental health care institutions also look at what effect it has on the conditions for those deprived of their liberty that the detaining authority is also the health authority.
“The deprivation of liberty in itself and the health services provided can represent risk factors for ill-treatment.”
Ethical rules for doctors derive from the Hippocratic Oath, and are incorporated in Norwegian legislation and international human rights conventions. These ethical principles are based on the idea that a doctor primarily has a responsibility to his/her patients (from the Hippocratic Oath), but also to the general welfare of society, to other health personnel and to him/her self. Medical ethics are based on values such as autonomy (the patient has the right to choose or refuse treatment), benefice (the doctor should have the patient’s best interests in mind), non-maleficence (based on the principle ’first, do not harm’) and justice (fairness and equal treatment in the allocation of limited resources).
Doctors shall seek to establish trust, protect integrity, respect privacy and the duty of confidentiality, promote welfare and provide treatment based on the patient’s informed consent. A doctor may also serve in a role as expert, however. In this role, the doctor acts on behalf of the state, not the patient. The two contradictory roles, so-called ’dual loyalty’, can challenge each other, and handling these roles requires clarity and transparency in relation to the patient. The patient is entitled to be informed when the doctor is acting in the role of expert.
“The patient is entitled to be informed when the doctor is acting in the role of expert.”
Health personnel’s relationship to detainees in police custody
Detainees are often escorted to municipal accident and emergency units by the police. This may be due to alcohol and drug problems or other health matters that it may be important to investigate. As the detainee will continue to be deprived of his/her liberty during the medical examination, the accident and emergency unit becomes a temporary place of detention. This is why the NPM conducts visits to the municipal accident and emergency unit during visits to police custody facilities. During these visits, the NPM has found that some doctors at accident and emergency units perform their professional role in relation to detainees in an unclear, and, in part, unfortunate manner. If, for example, a detainee is brought to the accident and emergency unit after being arrested for driving under the influence, the doctor at the accident and emergency unit performs work as an expert on behalf of the police when he/ she collects blood and urine samples. In this type of situation, the patient’s right to privacy and the duty of confidentiality will not be upheld in the same manner as when the doctor is working for the patient, because, among other things, the police are generally present. In such case, it is important that the doctor informs the detainee about his/her role as expert. The same detainee may also have sustained an injury or have health issues that require medical treatment. When the doctor treats the detainee for an injury, he or she acts in their capacity as health personnel and is then obliged to safeguard the doctor-patient relationship, which includes protecting the patient’s right to privacy and respecting the duty of confidentiality. The patient is entitled to speak alone and in confidence with the doctor, unless the doctor for security reasons asks for the police to be present.
The NPM has visited police custody facilities where detainees have been brought to the accident and emergency unit to be ’cleared for remanding in custody’. In several custody logs, wording has been used describing the detainee as having been ’cleared’ or ’approved’ for custody by the doctor, and ’clearance for remanding in custody’ has even been documented in patient records at the accident and emergency unit. This is problematic. The doctor’s role is to assess a patient’s health status and provide treatment, not to give his or her seal of approval to the detention. If a patient’s health is such that it will deteriorate significantly as a result of deprivation of liberty, the doctor has a responsibility to protect the patient’s welfare. However, a doctor should never contribute to a decision to approve depriving a person of his/ her liberty. This could potentially destroy confidence in the doctor-patient relationship.
“The doctor’s role is to assess a patient’s health status and provide treatment, not to give his or her seal of approval to the detention.”
Health personnel’s relationship to inmates
Health personnel in the prison health service are generally aware of the risk of dual loyalty, and are aware of the need to put the patients’ needs and interests fi Nonetheless, the health personnel – whether they are organised as municipal health services or specialist health services – have to act efficiently within the prison walls. They must cooperate with the correctional services with respect to making appointments, arranging admission interviews, patient transport, the health department’s physical location, HSE measures, suicide prevention and health-promotion work, among other things.
One particularly challenging aspect of the work of health personnel is the medical supervision of inmates who have been placed in security cells or restraint beds by the correctional services. These inmates are entitled, by law, to be seen by health personnel at least once a day. On the one hand, this supervision is important because the inmates are in a vulnerable situation in which they have very limited opportunity to control their own access to health services. On the other hand, inmates in a security cell or restraint bed can perceive regular visits from health personnel as implicit approval of the use of coercive measures, which can harm the doctor-patient relationship. Health personnel are therefore urged in such circumstances to state their role and specify their duty.
Health personnel’s relationship to detainees at the police immigration detention centre
The Parliamentary Ombudsman has also expressed concern relating to dual loyalty issues at the police immigration detention centre at Trandum. The doctors and nurses at Trandum work for the National Police Immigration Service (NPIS), which means that they are not employed by the health authorities as is the case in other places of detention in Norway. Since the health service at Trandum is not independent of the detaining authority, prioritising the detainees’ medical needs and interests can be challenging. The doctors at Trandum provide medical help to the detainees, but they also prepare fit to-fly declarations for enforced deportation of detainees out of Norway. The nurses at Trandum are the same nurses that accompany the detainees when they are deported from Norway by plane. The health service at Trandum’s lack of independence creates a grave risk of harming the doctor-patient relationship and compromising patient care. The NPM therefore recommends that the NPIS organises independent health services for the detainees.
Health personnel’s relationship to patients in mental health care
In contrast to other places of detention the NPM has visited, where there is – or should be – a clear distinction between the detaining authority and the health authorities, the health authorities are the detaining authority for patients in mental health care. The doctor has the power and authority to admit patients to involuntary mental health care institutions, shield them from other patients and practitioners, use means of restraint and other coercive measures and administer medication without the patient’s consent. The NPM is closely following national and international developments with respect to health care for people with psychosocial disabilities.
Crucial to focus on the role of health personnel
In its endeavours to fulfil its mandate, the NPM continues to focus on health during deprivation of liberty. On each visit to a place of detention, the health care services provided are thoroughly assessed, including a review of the role of health personnel. Health services for people who have been deprived of their liberty are an important part of any society’s overall public health services, as most of them will eventually return to their local community, bringing with them their health issues and their experience of the health service from their period of detention. It is therefore crucial that everyone involved recognises and addresses the challenges health personnel can experience while fulfilling their different roles at places of detention. This will have a health-promoting effect, not only for the people deprived of their liberty, but also for society as a whole.