Israel’s Knesset is currently discussing a proposed amendment to the Prison Regulations. The amendment "Preventing Damage from Hunger Strikes" has passed its first reading, and will be debated, and possibly amended, pending final approval in the 2nd and 3rd readings. Artificial Nutrition
The proposed bill includes a variety of potential medical treatment. In addition to the taking of physiological measurements to assess the condition of the patient, the bill would allow the administration of nutrition artificially. It should be clear that the administration of artificial nutrition is not synonymous with forced feeding with a feeding tube.
In most cases, artificial nutrition consists of the administration of an intravenous infusion, with or without various types of supplements. It can also include TPN: total parenteral nutrition is the medical term for feeding through a vein, using a solution containing necessary nutrients, including protein, fat, calories, vitamins, and minerals. In normal medical treatment, TPN is used for patients, including children, who cannot consume a diet in the regular manner.
These measures would only be used in life threatening situations. In cases when a hunger striker is in mortal danger, minimally-invasive procedures – and even more intrusive techniques such as forced feeding – are a small price to pay for saving a life.
The Proposed Legislation and its Goal
The amendment is aimed at saving lives, and does so in a balanced and measured manner. It is the result of an extensive process of consultation designed to take into account all the relevant considerations.
The proposed amendment aims to find the correct balance between the competing values. On the one hand, it tries to respect the prisoner’s autonomy over his body and his desire to strike. On the other hand, the amendment is intended to support the value of human life and the duty to treat a person in a life-threatening situation. Just as the value of human life demands that a physician treat a suicidal patient, so too doctors may treat a prisoner in danger of dying, particularly when the declared aim of the hunger strike is not death but a protest.
Recently, over two hundred Palestinian prisoners and detainees were on hunger strike, close to 90% of whom are affiliated with extreme Islamist terrorist organizations, namely Hamas and Islamic Jihad. Their demands had nothing to do with conditions or individual requests. Rather they are demanding a complete end to administrative detention, an effective and necessary counter-terrorism measure. Therefore, other steps were considered to protect the lives of the hunger strikers, such as artificial nutrition.
Medical and Judicial Supervision
According to the proposed amendment, decisions on medical treatments would be made by the court – specifically the President of a District Court or his deputy – based on a medical opinion. A doctor who requests permission to use artificial nutrition would base his or her decision on a recommendation by the ethics board of the hospital where the prisoner is being treated. The court would take into consideration the distinctions between the different types of treatments, as well as their significance and implications, including preserving the patient’s dignity. The prisoner would have a lawyer to represent him in the proceedings.
To ensure the prisoners’ comfort and safety, only a doctor can administer an IV or gastronomy tube and these procedures may only be done in a hospital. No doctor will be compelled to perform any action that conflicts with his or her ethical beliefs.
One Israeli daily has published a number of articles claiming that the practice of compelling nutrition for prisoners who are hunger striking is a violation of international law and the ethical guidelines of the World Health Organization. This assertion is simply incorrect. The topic is disputed in international law. There is not necessarily unanimity of opinion on the illegality of force-feeding, let alone the administration of artificial nutrition.
Indeed, in this context it is important to note the European Court of Human Rights (ECHR), which in several rulings, especially in the 2005 Nevmerzhitsky ruling, determined that international law does not prohibit force-feeding of prisoners if they are liable to suffer irreversible damage unless force-fed. In fact, it rules that it is obligatory to force-feed if there is a clear danger to the person’s life:
Nevmerzhitsky v. Ukraine, Para.93: " The Commission reiterated that “under German law this conflict ha[d] been solved in that it [was] possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced-feeding [was] even obligatory if an obvious danger for the individual’s life exist[ed]. The assessment of the above-mentioned conditions [was] left for the doctor in charge but an eventual decision to force-feed [could] only be carried out after judicial permission ha[d] been obtained”.
Furthermore, the ECHR determined that when there is a genuine medical need to save a prisoner’s life, forcing nutrition does not violate the ethics of the WHO.
A similar ruling was given by the International Criminal Tribunal for the former Yugoslavia in 2006.
Both of these tribunals, in agreement with the bill currently being proposed, recognize the obligation of the state to safeguard the health and life of hunger strikers while balancing this commitment with the prisoner’s rights.
It should also be noted that the administration of artificial nutrition to prisoners against their wishes, and even forced-feeding, are legal in a number of countries. Following are examples:
Australia (at the federal level): The policies of the Department of Immigration and Multicultural Affairs (DIMA) allow ordering a physician to provide medical services without the consent of the patient. For instance, in 2001, orders of this type were given in 40 cases. The order to feed is given when a medical officer or certified physician diagnoses a situation in which non-treatment constitutes a threat to the life of the prisoner and the prisoner refuses treatment or is incapable of giving consent.
Austria: According to existing legislation, the doctor in charge can force nutrition on any prisoner who consistently refuses to eat, from the moment this becomes a medical necessity.
Switzerland: An order was given in 2010 in the Canton of Valais to force-feed a prisoner. The court did not prohibit carrying out the order and noted that if forced nutrition is permissible in local law, it is likely to be allowed under the European Convention on Human Rights as long as it is performed in a manner that safeguards human dignity.
USA (in federal prisons): When the life or health of a prisoner is in danger, the head physician of the prison has the right to recommend forced life-saving medical treatment to the prison authorities. The administration of this treatment requires a court order. The treatment is to be performed under medical, psychiatric and legal supervision and can include permission to use physical force for the purpose of giving nutrition to the prisoner.