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Israel: Authorization to Give Forced Medical Treatment to Prisoners on Hunger Strike

(Oct. 6, 2015) On July 29, 2015, the Knesset (Israel’s parliament) passed an amendment to the Prisons Ordinance, authorizing, under prescribed circumstances, the provision of medical care to a prisoner on a hunger strike, when that action would be against his/her will, to prevent harm to the prisoner’s health. (Prisons Ordinance (New Version), 5732-1971 [PO], 2 LAWS OF THE STATE OF ISRAEL l (New Version) p. 237 (1972, as amended); The Prisons Ordinance (Amendment No. 48) Law, 5775-2015 [Amendment Law], Knesset website [scroll down to appropriate link] (in Hebrew).)

The Amendment Law authorizes the Commissioner of Prisons, with the consent of the Attorney General (AG), to request that the President of a District Court approve the provision of medical care to a prisoner who is on a hunger strike, when such care is against his/her will. Such a request must be supported by a document signed by a licensed physician who has treated the prisoner, stating that in his/her medical opinion, in the absence of specified medical care, the prisoner will face a real and imminent danger to his/her life or risk an irreversible and severe permanent disability. (Amendment Law § 5, adding § 19M(a) to the PO.)

A copy of the request must be provided by the Prison Authority to the Ethics Committee that has been established under the Patient’s Rights Law, 5756-1996. (SEFER HAHUKIM 5756 No. 1591 p. 327.) After hearing the prisoner’s arguments against receiving medical care, the Committee will issue an opinion on the prisoner’s medical and mental status, the impact on the prisoner’s wellbeing if the requested treatment is not provided, the benefits and the risks associated with the requested treatment or with alternative treatment methods, and the extent to which the treatment affects the prisoner’s human dignity. (Amendment Law § 5, adding § 19M(c) to the PO.)

In accordance with the Amendment Law, once the specified conditions are considered to have been met, the President of the District Court or his/her Deputy may authorize provision of medical treatment to a prisoner on a hunger strike. (Id. § 5, adding § 19N (a)(1) to the PO.) Such authorization is an exception to the prohibitions under the Patient’s Rights Law on providing medical care to a patient against his/her conscious will, or to an unconscious patient knowing that the patient has expressed an objection for such care or when there was no reasonable basis to assume that the patient would have retroactively provided his/her consent to the care once provided. (Patient’s Rights Law, §§ 13 & 15.)

The Amendment Law also provides that authorization for forced medical treatment will be granted only after the President of the District Court has been satisfied that efforts have been made to obtain the prisoner’s consent for the treatment, including by providing the prisoner detailed information on his/her medical status and on the impact of continuation of the hunger strike. (Amendment Law, § 5, adding § 19N(b) to the PO.) The judicial authorization for forced care will be made in consideration of medical interests as well as concerns for human life and for possible “serious harm to state security” if the care is not given based on evidence submitted to the Court. (Id. § 5, adding § 19N(e) to the PO.)

The Amendment Law requires that in a hearing concerning a request for authorization of forced medical care, the prisoner will be represented by an attorney of his/her choice, or, if such representation is not available, by a public defense attorney. (Id. § 5, adding § 19O(a) to the PO.) The hearing may be held at the hospital where the prisoner is a patient, to facilitate hearing the views of the prisoner. (Id. § 5, adding § 19(c) to the PO.)

Reactions to the Amendment

According to media reports, the passage of the Amendment Law was triggered, among other reasons, by the case of Mohammad Allaan, an Islamic Jihad activist whose military detention was suspended by the Supreme Court in August of this year due to his medical condition, caused by his hunger strike. (Ruth Levush, Israel: Supreme Court Suspends Detention of Islamic Jihad Activist, GLOBAL LEGAL MONITOR (Aug. 25, 2015).)  Allaan was re-arrested in mid-September after being released from the Medical Center where he had been hospitalized “and restarted his hunger strike, abandoning it after two days due to health concerns.” (Palestinian Hunger Striker to Be Released in November, JEWISH TELGRAPHIC AGENCY (Sept. 30, 2015).)

The Israeli Medical Association has reportedly objected to the requirements introduced by the Amendment Law and stated “it plans to challenge the law in the Supreme Court and urged physicians not to comply with it.” (Id.; see also Judy Siegel-Itzkovich, Doctors Come Out Against Bill to Force-feed Prisoners, JERUSALEM POST (June, 15,2015).)