Case Number
HCJ 5304/15
Date Decided
9-11-2016
Decision Type
Original
Document Type
Full Opinion
Abstract
Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is presented to the court”. The Petitioners were the Israel Medical Association and human rights organizations.
The High Court of Justice (per Deputy President E. Rubinstein, and Justices M. Mazuz and N. Sohlberg) denied the Petitions for the following reasons:
The Law meets the constitutional tests. Ultimately the Law comprises an element of saving a life and prioritizing the principle of the sanctity of life. It is where it begins and where it ends. This is reinforced by the fact that the person concerned is in the custody of the State, which is duty-bound to provide him with proper medical treatment.
The Deputy President addressed the different components of the constitutionality tests and the Limitations Clause in detail, and reached the conclusion that the Law, including section 19N(e), passes the constitutionality tests by delicately balancing the sanctity of life, the State’s responsibility toward prisoners in its custody, and national security, against the right of the individual to dignity, including autonomy and freedom of expression. This is the case given the graduated procedure established by the Law, which includes several medical, judicial and legal mechanisms of supervision.
Inter alia, it was held that the dominant purpose of the Law is protecting the life of a hunger striking prisoner, subject to the exceptions designed to ensure protecting the dignity of the prisoner, with close supervision and monitoring by medical and judicial bodies. This is an indisputably proper purpose. The secondary purpose is security based. Its concern is preventing risk to the lives of others aside from the hunger striking prisoner, or preventing serious harm to national security. This purpose is expressed in section 19N(e) of the Law, under which the court may consider non-medical considerations in making its decision whether to permit involuntary medical treatment. Had the security purpose been an exclusive or primary purpose, there may have been doubt as to whether it would be proper for the purpose of permitting forcible feeding. However, this secondary purpose, too, is largely grounded upon the principle of the sanctity of the life of the innocent who may be harmed as a result of the consequences of a hunger strike by prisoners or detainees. Given that the former is the dominant purpose and that the latter is secondary to it, Justice Rubinstein held that both purposes are proper.
It was also noted, inter alia, that the arrangement in section 15 of the Patient Rights Law, addressing a situation of a patient who refuses to accept treatment, does not sufficiently and fully respond to situations of hunger strikes in general, and to such strikes by prisoners or detainees in particular, in terms of the State’s responsibility for them, the complexities of autonomous will in cases of hunger strikes by prisoners who are willing to die, or in regard to such cases where the group circumstances of those on strike prevents them from ending the strike, as well as in terms of the consequences of the hunger strike for national security. Therefore, this is a specific, supplementary arrangement for the purpose of addressing situations where the arrangement established in the Patient Rights Law is to no avail.
In terms of the proportionality stricto sensu test, it was found that the amendment provides a graduated, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life through mechanisms of close supervision and monitoring – both medical and legal – of the proceedings and its employment as a last resort. This arrangement represents a proper relationship between the benefit which may derive from the Law and the potential harm to constitutional rights due to its implementation.
In this context, it was noted that the procedure commences with the medical opinion of the treating physician. The request is to be submitted by the Prisons Commissioner with the approval of the Attorney General or an appointee on his behalf – as a last resort meant to prevent risk to the life of the of a prisoner on hunger strike, or the risk of severe, irreversible disability – and only after the procedural process has been exhausted. As a general rule, the ethics committee will provide its opinion on the matter, the President of the District Court or his Deputy will determine the request, and the decision is subject to appeal to the Supreme Court. The treatment provided shall be the minimal treatment required. The caregiver is not required to provide the treatment permitted by the court. The Law presents a structured, organized arrangement that involves – alongside doctors – very high levels of the legal and judicial system, and is constructed in strict stages, and as a last resort. It was also emphasized that before the court may be approached, the treating physician must make “significant efforts” to persuade the prisoner to give his consent to treatment. Thus, the doctor must explain the legal process and its possible implications to the prisoner. The court must hear the prisoner, and it is authorized to hold the hearing on the request at the hospital. Even when permission for involuntary treatment is granted, the caregiver must again attempt to persuade the prisoner to consent to treatment, and as noted, the treatment to be provided must be the minimal required, and must be provided in a manner that would ensure the greatest protection of the prisoner’s dignity, while preventing, to the extent possible, causing pain or suffering.
Section 19N(e), which focuses on the security purpose, also meets constitutional requirements. Moreover, it must be employed extremely sparingly and in extreme cases, given the proper evidentiary foundation. The security consideration itself cannot justify commencing proceedings under the Law, and certainly cannot itself enable authorization for treating a prisoner against his will. The security considerations according to the Law can be considered only when the treating physician has determined that the prisoner’s medical condition is extremely severe and that there is real risk to his life, or that he will suffer severe, irreversible disability, and for the purpose of saving his life, which is the main purpose of the Law. In any event, the treatment that is provided in practice, if and to the extent it is provided, in accordance with the physician’s discretion, will be a result of medical considerations alone. Implementing section 19N(e) must be extremely sparing and exceptional, where the State provides evidence pointing to a near certainty of serious harm to security, and all this following the medical journey, which is primary.
Justice M. Mazuz concurred in the result as to the constitutionality of the Law. He reiterated, inter alia, that the employment of the procedure was designed for extreme cases where other means were not successful, and it is restricted to the necessary minimum required in order to save the life of a prisoner at mortal risk due to a hunger strike, or to prevent severe, irreversible harm. Nevertheless, Justice Mazuz expressed concern that too great a weight might be given to considerations of security and public order at the expense of the medical considerations and the right to autonomy. Therefore, he proposed establishing guidelines and restrictions for the implementation of the provisions in section 19N(e), which would address the security consideration, in the form of a “procedural separation” between the examination of the medical and security considerations.
Pursuant to the opinion of Justice Mazuz, the Deputy President clarified that the best approach is one of first things first – first the medical issue, and a discussion of the security issue only thereafter. In order not to tie the hands of the trial court completely, the Deputy President suggested a formula whereby the court would begin by examining the medical issue as the basis of determining the matter, while the security issue – to the extent it may be necessary – would be left to be addressed last.
Justice Sohlberg concurred in the opinion of the Deputy President and added, inter alia, a few comments on the question of the proper place and role of the security considerations under section 19N(e) of the amendment.
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Freedom of Expression, Constitutional Law -- Prisoners’ Rights, Constitutional Law -- Right to autonomy, Health -- Patient’s Rights
