Asylum applicants - medical reports: guidelines for examining doctors
Joint guidelines from the British Medical Association and the Medical Foundation for the Care of Victims of Torture
January, 1993 The role of the medical expert
1. Although examination of patients is essentially the same whether they are seen for medico-legal purposes or have simply come for advice in a normal consultation, there are differences in the way patients are referred and seen. Asylum reports differ in some details from other medico-legal reports. The following guidelines describe these differences and highlight points which the doctor preparing a medical report on an asylum applicant should bear in mind.
2. Cases referred for medical examination are selected by solicitors who consider that there may be medical evidence of torture to support an asylum application. The solicitor who represents the asylum applicant's interests instructs the doctor who is, therefore, in the position of an expert witness. The doctor is asked to prepare a medical report outlining what, if any, injuries have been suffered as a result of torture, the role of other pre-existing or coincidental factors, and some form of prognosis. The role of the expert witness, as defined by the court, is to give objective, impartial advice based upon his clinical and professional experience.
3. The doctor should be aware that the solicitor is instructed to represent the asylum applicant's best interests and will be concerned to present such evidence as will assist him in advancing his client's case. The solicitor is under no obligation to inform the doctor of any facts that he knows which are adverse to his client's case. The doctor must not assume that the solicitor has related all the material facts. The onus is upon the doctor to discover and report upon any material features which he considers relevant, even if they may be adverse to the case of the party instructing him. The solicitor does, of course, run the risk of his medical expert having no credibility at all if that expert has not taken into account material features relating to the asylum applicant's history.
4. The medical report should be factual, detailed and carefully worded. It is important to be aware how easily medical evidence and jargon can be challenged and the doctor should avoid making assertions that could not be defended in court. Since the report will be read mainly by non-medical officials, abstruse medical terms should be avoided, or if they must be used, they should be defined. Descriptive terms, such as falaka, should also be defined.
5. The examination should ideally be done by a doctor with knowledge of the prison conditions and torture methods in use in the particular region, and their common after-effects.
6. All relevant sources of information, e.g. Political Asylum Questionnaire, solicitors' deposition, caseworker's report, findings by other doctors, which are available should be perused before proceeding to the medical examination. A list of these sources should be recorded in the report so that the reader will be able to judge how the report relates to them.
History
1. Before the history is taken, an explanation of the reason for the consultation should be given to the applicant, stating that it is on behalf of the solicitors who have briefed the doctor as a medical expert. The doctor should also explain that this is a medico-legal examination and say how the session will be conducted.
2. As is normal medical practice a full medical history should be taken, including relevant family and social history and previous medical and psychiatric history before proceeding to the clinical examination. The history may reveal much more about a patient's medical situation than does the physical examination.
3. It is important, as far as possible, to avoid asking leading questions, where the form of words or even the tone of voice may suggest a certain answer. Nevertheless, it is impossible to learn everything important without steering the conversation at some stage. The applicant may be inhibited by a number of factors: he may consider some facts not worth mentioning because they are taken for granted in his culture; he may have forgotten details; some items may be part of a cultural taboo; some symptoms may not seem relevant to him, for instance, hyperventilation.
4. As is common in any medical consultation, the patient may be unable to give a detailed account at a first interview. For this reason it is sometimes valuable to build up a history over more than one session. The applicant may have been blindfolded, confused, partially or completely unconscious during or after torture. Some time may have elapsed since the events, and there may be psychological sequelae. It is normal behaviour for an interviewee to be nervous, unsure and confused. It is most unusual for applicants to recall in exact detail all dates and aspects of repeated detentions. He may be reluctant to disclose details which he fears may implicate relatives back home.
5. The applicant may be in a highly complex emotional state. This may make giving a history a severe ordeal for the subject who relives experiences which are often extremely distressing.
6. Details of detentions include:
a) Prison conditions: Poor prison conditions are noted, including any withholding of food and drink or forcing contaminated food or drink; withholding toilet and washing facilities; withholding or provision of medical treatment; confinement in total darkness with intermittent exposure to bright light, in extreme heat or cold, in small or unacceptably crowded cells, or where the floor is wet, infested or covered in excrement.
b) Psychological torture: Testimony is recorded of details such as solitary confinement; sensory deprivation; mock executions; provocations, insults and threats during torture; enforced witnessing of the torture, rape or execution of family members or others.
c) Physical torture: Information is recorded on the frequency, timing and duration of any torture sessions, number and profession of assailants, e.g. police, soldiers, security guards or prison officers, and whether a doctor was involved.
7. The record of the torture itself includes:
a) Type of weapons used, parts of the body attacked, posture, physical restraints, suspension and the use of blindfolds, hoods or "Apollo" helmets, etc.
b) The immediate effects: whether the applicant could see his assailants and the weapons they used; whether he became confused or disorientated or partially or completely unconscious; whether he used protective devices such as hyperventilation; whether he could walk unaided at the end of the torture session.
c) The after-effects: the presence of bruising, bleeding, open wounds or other injuries immediately after abuse, the length of time taken for healing; other physical symptoms such as vomiting, internal pain, dizziness or disturbance of sight or hearing; whether or not any medical assistance was offered at once or after release and the presence or absence of permanent after-effects, physical or mental.
d) The applicant's emotional reactions during and after torture and any beliefs that helped him to survive.
8. The history should be checked against other documents such as PAQ. Discrepancies of fact are noted and explanations sought from the applicant.
9. Suspicion may arise that the story is fabricated or embellished. It is often possible to explore this possibility by asking more detailed questions, especially about the way in which specific weapons were used and the immediate effects such as bruising, cuts, etc. and how long the wounds took to heal. The answers to such questioning could not have been previously rehearsed and can be assessed in relation to long-term evidence such as scarring or loss of function.
10. It is important to try to distinguish between the applicant who is embellishing his story with each retelling, and the one who genuinely recalls more details each time.
11. If the true history cannot be satisfactorily established, if there is lingering doubt about credibility, or if the patient has difficulty in speaking about his experiences, a caseworker may be asked to interview the applicant. Details can then be discussed with the caseworker or solicitor before the report is written.
Present condition
1. The applicant is questioned and details recorded about his present general physical and psychological condition, especially in relation to the pre-detention state, and including changes in weight, appetite, energy and general well-being. Special emphasis is placed on physical symptoms attributed to detention, ill-treatment or torture. Symptoms suggestive of psychological stress, such as sleep disorder, nightmares, loss of concentration, hypervigilence, mood changes, panic attacks, asthma, hyperventilation or indigestion or susceptibility to external stimuli such as sudden noises or the sight of uniforms, should be recorded.
2. Many applicants will include complaints that the doctor may think irrelevant but should nevertheless be recorded. Applicants will often be socially isolated, uncertain of their future and grieving for lost or missing family members and so may focus on these concerns rather than on scars and physical pains.
Examination
1. The examination should follow the usual routine, but with special emphasis on any abrasions or scars, bruises, lacerations, tenderness, abnormality or limitation of movement of joints and neurological changes such as weakness, sensory change or wasting.
2. Every scar and other lesion detected must be measured and recorded. It is sometimes helpful to illustrate scars, etc. on an outline diagram.
3. Throughout the interview and examination the applicant's emotional response and mental state should be observed closely. Abnormalities often include loss of affect or garrulous or tearful behaviour, hyper alertness, lack of concentration or heightened response to sudden movement, touching, noise or bright light. In this way, both an assessment of credibility and an estimate of the psychological after-effects of torture can be made. It is best simply to describe the mood and behaviour rather than to apply a psychiatric diagnostic label such as "post-traumatic stress disorder".
Interpretation
1. In writing the report, the objective listing of positive findings under the heading "on examination" should precede and be separate from the section of "interpretation" in which the applicant's explanation and the examiner's interpretation is listed for each lesion.
2. The applicant may attribute some scars to childhood or other accidents. These should be detailed, together with the applicant's explanations, thus distinguishing them from those scars which are attributed to torture.
3. Scars which appear in patterns or in certain parts of the body may have been caused by tribal rituals, traditional remedies, stretch marks or disease. It is important to recognise these alternatives in order to make an informed assessment of possible causes other than torture.
4. Consistency and credibility are continuously assessed as the interview and examination proceed. In coming to a conclusion, the doctor must make a series of judgments, assessing the applicant's demeanour as well as the history and physical signs.
5. In only a few instances the "scars speak", i.e. the physical traces could not have been caused in any way but by the torture described. In such cases, it is essential to state why the possibility of a natural explanation cannot be entertained.
6. Where scars are present they are almost always non-specific, with many possible causes. If other causes are a real possibility, this may be stated and the likelihood assessed. (An example would be an applicant with scars on the shins who claims that he was repeatedly kicked by guards and denies ever having played contact sports such as football). All the participants in the asylum process inevitably need to make some estimate of the applicant's credibility. The examining doctor is not excluded from this process of assessment, and is assisted by having all possible documents, especially those recording previous medical examinations, at his disposal.
7. Accurate dating of scars is virtually impossible unless they are very recent. Examination may be made many months or years after the alleged torture, and so it is not usually possible to state categorically whether or not the age of the scars coincides with the dates given in the history, except to say whether or not they are compatible.
8. In many cases, there are few or no physical signs, since only injuries which cause full thickness destruction of the skin leave scars. Bruises and abrasions nearly always disappear without trace, occasional exceptions being subcutaneous fat necrosis or, in deeply pigmented races, hyperpigmentation or depigmentation of an area of skin.
9. Abnormal psychological responses may indicate a state of severe stress. This is seldom referable specifically to torture, but if the account of nightmares, daytime flashbacks etc. includes details e.g. of pursuit, capture, beating or confinement which accurately re-enact events given in the history, this may lend support to the credibility of the history and the causal relationship of the torture to the present psychological state.
10. If the balance of the medical evidence does not support torture, or there is significant inconsistency, the doctor should state this in the report and consult with the solicitor. If the report does not appear to assist the claim, the solicitor will probably not submit it to the Immigration Authority.
11. If any item of the evidence is equivocal or inconclusive but not contradictory, the report should state that it is compatible with the applicant's story and not in conflict with it.
Opinion
1. The purpose of the medical report, commissioned by the applicant's solicitor, is to provide supporting evidence for the asylum application. The doctor is asked to give his opinion as to whether the available medical evidence supports the applicant's allegation of torture or other ill-treatment. It is no part of the doctor's function, however, to give an opinion as to whether asylum should or should not be granted.
2. The doctor's opinion is reached by taking into account the applicant's medical history, amplified by reference to as many other documents as are available, together with signs elicited by physical examination, with the interpretation of these signs by the applicant and the doctor. Reaching a definite diagnosis, just as in clinical work, may be difficult or impossible. If no clear decision can be made, it may be helpful to order special investigations or call for a second opinion by a psychiatrist, neurologist, or other specialist.
3. It is essential to emphasise in the report that absence of scars does not vitiate a claim of torture unless the description given of the nature or severity of the injury is such that scarring or deformity would be inevitable.
4. It can seldom be proved that the commonly-reported pains in the joints, neck and back, and the shoulder girdle damage thought to follow "Palestinian hanging", are certainly the result of torture. However, it can be stated that such symptoms and signs are most unusual in a young, healthy adult, that they could be explained by a history of serious physical abuse, or by specific forms of suspension such as "Palestinian" hanging or that they could be accounted for by long incarceration in cramped, damp, cold conditions. Many elements are evaluated and summated, some of them positive, others negative or indeterminate, before a final opinion is reached.
5. In deciding on the wording of the report, the doctor should test and assess the validity of his views by considering whether he would be prepared to be cross-examined under oath as an expert witness.
6. In giving an opinion it is helpful, if relevant, to mention the factors which may have inhibited the applicant. Inconsistencies in a history should be thoroughly checked and, if necessary, the solicitor consulted to correct any discrepancies in the history-taking. Any mistakes which had arisen through causes such as mis-translation can then be corrected. It is important to realise that a history with gaps or inconsistencies does not necessarily invalidate a claim that the applicant did indeed suffer ill-treatment.
7. An applicant who has given false evidence in other aspects of his asylum application may still have suffered the ill-treatment described. Untruthfulness does not rule out torture.
8. When histories are taken from several refugees from the same country or region, their accounts of torture are often very similar. This may be because police and prison guards have a limited and repetitive repertoire of torture methods. If appropriate, it is valuable to note in the report that the history is consistent with known techniques for that region (sometimes detailed in reports from independent bodies such as Amnesty International).
9. Some patients have been receiving ongoing treatment before a report is requested. In such cases, an extra heading, such as "Response to Ongoing Treatment", may be included in the report, giving a description of the applicant's progress and new details of history which have come to light in successive interviews.
10. If, after a medical report has been submitted, new evidence arises which could affect the doctor's opinion, the doctor may offer to make a further examination and furnish a supplementary report.
Requests for further information and all enquiries should be directed to:
Medical Ethics Committee Secretariat
British Medical Association
BMA House, Tavistock Square, London WC1H 9JP
Tel: 020 7383 6286
Fax: 020 7383 6233
E-mail: ethics@bma.org.uk