Hunger and thirst strikes

What is a hunger or thirst strike?

During a hunger strike, someone refuses food as a protest, not because they want to die. The aim is to change their circumstances. A hunger strike is therefore not the same as a suicide attempt, even if the person accepts death as a possible ultimate consequence.

During a thirst strike, the person refuses fluids as well as food. Their physical condition then deteriorates quickly. This can become life-threatening within just a few days. Prolonged refusal of food can also cause serious, permanent harm and eventually death.

Self-determination and consent to treatment

Self-determination means that, in principle, you decide what happens to your body. Articles 10 and 11 of the Dutch Constitution (Grondwet) protect your privacy and your body.

The Medical Treatment Contracts Act (Wet op de Geneeskundige Behandelingsovereenkomst, WGBO) also applies in detention. Under Article 7:450(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW), a healthcare provider must obtain your consent before providing medical treatment.

A written refusal for the future

You can record in writing which treatment you refuse if you later become unable to make decisions yourself. Article 7:450(3) BW requires the doctor to respect such a directive, unless there are sound reasons to depart from it.

The fact that your refusal may have serious or even fatal consequences is not, in itself, a sufficient reason to ignore the directive. A special circumstance is needed. One example is that the aim of your hunger strike has already been achieved, but you do not yet know this.

The 1985 circular Prisoners on hunger strike (Gedetineerden in hongerstaking) also places the prisoner's own wishes at the centre. You can rely on this guideline. Once you have explicitly refused food, your decision must be handled carefully, and care must aim to limit physical and psychological harm as much as possible.

Prisons: care and compulsory treatment

Right to medical care

Article 42 of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw) sets out your right to medical care. This is usually provided by doctors attached to the institution.

The prison doctor has a particular role: they treat you, but also work within the institution that may be the target of your protest. This can put the relationship of trust under strain. Police doctors or municipal public health service (GGD) doctors are usually called in for compulsory medical procedures. According to the explanatory notes to the Act, they too can act as a doctor attached to the institution.

When can Article 32 Pbw be used?

Article 32(1) Pbw provides a legal basis for treatment without consent. The governor can require you to undergo a medical procedure if a doctor considers it absolutely necessary to prevent serious danger to your health or safety, or that of others.

Serious danger may include:

• danger to life;
• danger of serious self-mutilation;
• danger of permanent disability.

According to the legislative history, administering fluids or nutrition also counts as a medical procedure. The person's own wishes remain the starting point. If someone is unable to make such a decision or understand its consequences, compulsory feeding may be possible under Article 32 Pbw. The requirement of medical necessity still applies.

A decision by the governor does not oblige the doctor to carry out force-feeding. The doctor independently assesses, using their medical expertise, whether intervention is appropriate.

Young offender institutions

Young offender institutions are governed by the Young Offender Institutions Framework Act (Beginselenwet justitiële jeugdinrichtingen). Articles 32 and 37 of that Act are relevant to this subject. The principle of consent to medical procedures under Article 7:450 BW also applies in detention. The provisions of the Pbw cannot simply be treated as rules for a young offender institution.

TBS orders and forensic care

For people subject to a hospital order (terbeschikkingstelling, tbs), Articles 21 and 26 of the Hospital Orders Framework Act (Beginselenwet verpleging ter beschikking gestelden) are relevant. Protection of the body and the rules on consent to medical treatment also play a role here. Article 32 Pbw is not the general legal basis for all forms of detention or forensic care.

Force-feeding and medical professional rules

Force-feeding means administering fluids or nutrition to someone against their will. An intravenous drip can supply fluids, minerals and medicines, among other things. A feeding tube may be used to provide complete nutrition: this is a tube that passes through the nose into the stomach.

If the person resists, inserting and keeping a tube in place may involve restraint, where the person is held or secured. Force-feeding carries risks and is a major interference with bodily integrity.

Declarations of Tokyo and Malta

The World Medical Association set out medical guidelines in the Declaration of Tokyo of 1975 and the Declaration of Malta of 1991. These declarations are not legally binding, but carry considerable international authority. The Malta declaration was revised in 1992, 2006 and 2017.

Article 6 of the Declaration of Tokyo prohibits force-feeding a hunger striker who has decision-making capacity. Here, decision-making capacity means being able to form a reasonable judgement about the consequences of the strike. At least one other, independent doctor must confirm that capacity. The Royal Dutch Medical Association (KNMG) also strongly advises doctors not to participate in force-feeding prisoners who have decision-making capacity.

The Declaration of Malta takes the same approach. If someone is unconscious and there is no advance directive, nutrition may only be administered without current consent if this is considered necessary for their health.

Unconsciousness does not automatically invalidate an earlier refusal. If someone has been properly informed, including about the risk of a coma, and continues to refuse knowingly, that earlier decision must be taken into account if they actually enter a coma.

Human rights and case law on force-feeding

Article 2 of the European Convention on Human Rights (Europees Verdrag voor de Rechten van de Mens, EVRM) requires the authorities to protect life. Article 3 prohibits inhuman or degrading treatment. These obligations must be considered together in cases involving force-feeding.

In X v Germany, the European Commission held that compulsory feeding may contain degrading elements, but is not prohibited in all circumstances. The case law of the European Court, including Nevmerzhitsky v Ukraine and Ciorap v Moldova, establishes three conditions:

• Medical necessity must be convincingly established.
• The decision must have been taken lawfully.
• The procedure must be carried out in the least burdensome way possible.

No more force may be used than necessary. Carrying out the procedure in a painful and degrading manner is not permitted.

In Ceesay v Austria in 2018, a prisoner on hunger strike died from a particular medical condition, not from the hunger strike. The Court found no violation of Article 2 or 3 of the Convention. The authorities had done what they could to prevent the death. There had been no signs of the condition, and the prisoner had not known about it either.

Medical support in the institution

Many institutions use protocols based on guidelines from the Johannes Wier Foundation (Johannes Wier Stichting). Its 2000 manual was replaced in 2019 by separate documents on the independent doctor, medical support and legal aspects. The procedures described below concern such protocols; a protocol does not replace the legal requirements for a measure.

Reporting and information

Staff must promptly report any refusal of food or fluids to the medical service. The doctor and management must also be informed as soon as possible. The supervisory committee (commissie van toezicht) is often notified, but this is not legally required.

The reason for the refusal must be established. The nurse records the refusal of food, fluids and, where applicable, medication. The information provided covers health risks, possible placement under observation and possible hospital admission. A colleague or security officer is present during this explanation.

After the explanation, you are asked to sign a form about your informed refusal and the risks discussed. If you refuse to sign, a staff member and a colleague sign the form.

Consultations and checks

Under the procedure described, the doctor speaks with you the following day, together with a nurse or medical assistant and, if necessary, an interpreter. The doctor assesses risk factors and explains the consequences in language you can understand.

Your blood pressure, pulse and weight are recorded on the day the refusal is reported. Staff on your unit record what you eat and drink each day; the nurse adds this to your medical record. Under this procedure, if you refuse food, you are called in to see the nurse every week.

During a thirst strike, nurses carry out several observations each day. These include checks of blood pressure, pulse, weight, temperature, mental state and other symptoms. The doctor and governor discuss transfer to an observation cell, prison hospital or another institution.

The procedure described provides for placement in an isolation cell with camera monitoring after 24 hours of refusing fluids. The legal requirements for this still apply. Staff must offer food and drink several times a day. Food is removed after half an hour; drinks remain available.

Independent doctor and advance directive

A person on strike has the right to an independent doctor they trust (vertrouwensarts). This doctor can be arranged through MedTzorg and must be able to act independently and obtain information. It is essential that you trust this doctor.

In a written advance directive (wilsverklaring), you record:

• why you are refusing food or fluids;
• whether your family or lawyer should be notified;
• that you are deciding voluntarily and understand the consequences;
• your wishes if you lose consciousness.

The doctor regularly discusses whether the directive still reflects your current wishes. If you refuse to sign this directive, the doctor and another staff member sign it. This does not automatically resolve all questions about your treatment wishes.

Recovery and aftercare

Medical support remains necessary after the strike ends. For a hunger strike lasting more than three weeks, the Johannes Wier Foundation's guideline allows for a recovery period of three months.

Starting to eat again too quickly can cause refeeding syndrome: a condition that can occur when someone who is severely malnourished suddenly receives nutrition again. Medically supervised recovery is therefore necessary. Daily checks of pulse, blood pressure, weight and fluid balance are recommended. Weekly support should continue for several more months.

A high-quality protein product, such as Nutridrink, may be important during recovery. Aftercare must be documented in the medical record. The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) also addressed support and recovery in decisions of 20 December 2013.

Complaints about treatment or measures

Complaints about the prison doctor's medical actions follow the procedure in Articles 71b and 71c Pbw. You first submit a written request for mediation to the Medical Adviser (Medisch Adviseur). The adviser tries to reach an acceptable solution within four weeks. If this is unsuccessful, you can appeal to the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ).

The complaints committee (beklagcommissie) of the supervisory committee (commissie van toezicht) handles complaints (beklag) about organisational aspects, not about the medical actions themselves.

For camera monitoring, the legal requirements are decisive. In the decision of 24 January 2022, R-20/8147/GA, no advice had been sought in advance from a behavioural specialist or prison doctor. As there was no indication that it had been impossible to wait for this advice, Article 24a(2) Pbw had been breached. The wrong legal basis had also been used: the prisoner was in a punishment cell, not a segregation cell.

What does this mean for you?

Report any refusal of food or fluids to the medical service and discuss your reasons, health risks and treatment wishes. If necessary, ask for an independent doctor you trust or an interpreter. If you are refusing fluids, do not delay asking for a medical assessment: your physical condition can deteriorate quickly.

Make sure your wishes if you lose consciousness are clearly recorded, along with whether your family or lawyer should be informed. Discuss any changes with the doctor. An advance directive needs careful explanation, precisely because its consequences may be far-reaching.

If you are placed under observation or camera monitoring, or given compulsory treatment, ask for the reason and legal basis. When making a complaint, it matters whether you are challenging medical actions or an organisational decision. Continue to ask for medical support after the strike ends so that you can recover safely.

This page draws on the expertise of Mr. S.P.C. (Stan) Broekmans, a specialist in detention law at Hameleers Antonides Advocaten. Do you have a question about your own situation? Please get in touch; an initial assessment is free.

Other topics

• Arrestant detainees
• Belongings
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment