On Hunger Strikes

by Jacob Dahlke, Bioethics Program Alum (MSBioethics 2012)

“We will not allow a detainee to starve themselves to death and we will continue to treat each person humanely.” Lt. Col. Samuel House.

Under what circumstances can physicians treat their patients over their objections? Do prisoners (or more accurately in this case detainees) have a right to refuse medical intervention? How might a military physician reconcile a situation in which the two professional obligations directly conflict with each other?

Questions like these have arisen in the news recently in which military officials have dispatched medical officers to manage the treatment of detainees at Guantanamo Bay. I personally am troubled by my initial reading of these headlines, but upon my realization that it may have been a purely visceral response, I decided to evaluate the situation a bit more objectively, if possible.

Good ethics begins with good facts; one way to organize those facts is to compile them into four quadrants: medical indications, patient preferences, quality of life considerations, and other contextual features.

Lt. Col. House has indicated that 100 of the 166 current detainees are participating in the strike, although lawyers for some of the detainees said that the number was around 130. Let’s be clear on this: the lowest estimate is that 60% of the detainees are voluntarily withholding nutrition, or nutrition and hydration. The high estimate indicates 78% participation.  21 detainees are currently being fed with nasogastric tubes over their objections. Five of the participants are currently hospitalized, likely due to side effects of malnutrition.

The detainees have not been evaluated for decisional capacity. In a case where that has not taken place, one would presume that a person has the capacity to make their own decisions. Regardless of a person’s capacity to make medical decisions, all persons retain the right to refuse treatments. If a person refuses a treatment, then the physician (or other medical professional) has two choices: they can honor the person’s refusal and manage the person’s side effects of the refusal (malnutrition in this case), or the professional can treat the person over their objection. This is technically medical assault or battery, so a special provision must be made in order to ethically justify it. That provision is that the person is suffering from a psychological, psychiatric, or somatic illness that is interfering with the person’s ability to properly evaluate the medical decision. That is, if the person is too ill to appropriately refuse (they lack capacity), then we can be justified in treating this person over their objection in order to achieve their greater goal of survival or life prolongation. (Since they have not be sufficiently been evaluated for their capacity, one cannot determine whether their goal is to prolong their lives.)

If we cannot make a definitive assessment based upon the first two categories, we must use the latter two. First, a caveat: I am making assumptions and judgments. I try to make them as objectively as possible, but due the general lack of good facts in this case, it will likely be overall inadequate.

These persons are currently detained in a military prison. They have been there for the better part of a decade (many for longer). While they are technically in a legal limbo of awaiting a trial, there are many indications that there is no intent to ever do that. Translated: this is their life, for the rest of their life. The only other prospect is that they get transferred to another prison. For all other practical purposes, they can be considered prisoners convicted of any other crime: they are treated for illness, provided limited access to personal belongings, etc.

There are likely many cultural biases at play in this case, and probably too many to begin to consider. To some Americans the detainees represent the antagonists to our global goals and achievements. “They” attacked “us”, and therefore in this course “we” captured “them”. To others, the detainees represent all that is wrong with America’s relationship with the rest of the world. Muslim v. Christian. American v. the “Middle East”. Us v. them. I contend that all of these cultural biases, while real and present in this case, are irrelevant. What I find interesting instead is the cultural clash among the health care professionals. There is a culture associated with being a health care professional, one that highlights a fiduciary responsibility to reduce suffering, treat illness, and respect individuals. There is a culture associated with being in the military, one that highlights a fiduciary responsibility to provide security, to reduce or eliminated harm or threat of harm. The structures, processes, and outcomes of these two cultures directly conflict here. It is relevant to note that the news has indicated the arrival of Navy medical personnel included “nurses, specialists, and hospital corpsmen who are trained to provide basic medical care“, which indicates to me that the medical personnel did not include physicians. This is an important distinction, particularly if one wanted to criticize AMA president Lazarus’s letter to Secretary of Defense Hagel on the subject. Translated: Lazarus is opposed specifically to treating over objections if it is physicians who are asked to do it, but will not commit to objecting to the practice in general, since the medical personnel are not technically physicians (and therefore technically beyond the AMA’s scope). Classy. But I digress.

One partial justification for the feeding tubes is that some of the detainees (being force fed) have occasionally voluntarily eaten, when removed from the general population of other detainees participating in the hunger strike. A relevant question then is at what point does peer pressure- which still represents an individual’s autonomous decision- change to coercion, which includes a threat of harm to the person? And what if the situation were reversed, and there was peer pressure on detainees to stop their hunger strike? Would the military intervene in that case of ‘peer pressure’? Likely no, because it’s not the peer pressure that matters; it’s that the detainees are doing something (hunger strike) that the military doesn’t want them to.

Ethical principles to consider

For me, this situation abounds in contrasting ethical principles. The first surrounds the right of a patient to express their autonomy, balanced with the health care professional’s obligations to beneficence (doing good- like treating illness or reducing suffering) and non-maleficence (avoiding doing harm, such as standing idly by while a person’s decisions reduces the quality of their health). I repeat my interest in noting that the military personnel are not physicians. (It is surely worth exploring the professional ethical codes for the personnel, but not for this dialogue.)

There is an apparent conflict between beneficence and non-maleficence. This is only perceived however, because we don’t actually know what the detainee’s goals are. If the goal is to minimize suffering, and if living this way is worse than death itself, then it would be beneficent to allow this and harmful to prevent it. It would thus be an ethical violation to treat this patient over their objection. Thus, the military is keeping these people alive, against their wishes… do what with them? Keep them in this limbo state, presumably.

If however, the detainee’s goal is to protest their treatment, to highlight the numerous abuses and illegal that are being imposed upon them, then the detainee’s goal is indeed life prolongation. Their refusal of food and overall nutrition and hydration, then, represents an irrational decision. How can one want to live, and yet refuse nutrition which will prolong your life? Here is a well-written article on the perceived noble explanation by the military that they are preventing suicide.

There is additionally the role that justice plays in this case. If the goal is to prosecute these individuals for their presumed crimes, then I can see an argument to treating them over their objections in order to see them through their course of justice.

In a strictly medical setting, if a patient refuses a treatment, there is a medically ethical obligation to pause and reconsider patient’s goals; if he has capacity, we should honor patient’s right to refuse. To treat the patient with capacity is to violate his rights, thus conducting battery on the person (doing something to him that he doesn’t want). If the patient doesn’t have capacity, we still can’t do something to someone that doesn’t want it. We must go to court, and get special permission to break the law (do something to someone that they don’t want us to do).

But let’s face it, it won’t. This is Guantanamo Bay. The whole place is one big quagmire of questionably dubious if not full-on illegal activity. Its very existence is questioned by the UN as a breach of international law. But I have drawn enough breath for tonight, and clearly I am not the only one thinking about this.

[This blog entry was originally posted on Mr. Dahlke’s blog on May 2, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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