What’s the Matter with Indiana?

Note: The Bioethics Program blog will be moving to its new home on April 1, 2015. Be sure to change your bookmarks to http://bioethics.uniongraduatecollege.edu/blog/

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

With all of the hoopla over Indiana’s recent enactment of its Religious Freedom Restoration Act (RFRA), a poorly-written law that gives businesses and individuals broad license to discriminate against members of the lesbian, gay, bisexual and transgender community, another travesty unfolding in that state has gone overlooked. Specifically, Indiana is experiencing the largest outbreak of HIV in the Hoosier State’s history, an epidemic sparked in part by partisan politics.

Just last week, Indiana Governor Mike Pence declared a public health emergency in Scott County after 79 people tested positive for the virus that causes AIDS, an outbreak fueled by rampant injection drug use. In past years, that rural county saw an average of only 5 new cases of HIV infection annually.

So what does partisan politics have to do with this public health emergency? Plenty. Consider, for example, Indiana’s ban on needle exchange programs.

HIV, hepatitis C (HCV), and other blood borne diseases are readily spread between drug users who share contaminated injection equipment. One of the easiest ways to prevent the spread of HIV among injection drug users (IDUs) is a needle exchange program, which allows drug users to obtain sterile syringes, hypodermic needles, and other paraphernalia without a prescription and at little to no cost.

Dozens of studies conducted in the United States and overseas have shown that needle exchange programs work extremely well. Among IDUs in New York City, for example, rates of HIV dropped four-fold when needle exchange programs were first introduced. In fact, the effectiveness of these programs in reducing rates of HIV infection among injection drug users is so great that US Office of National Drug Control Policy, the US National Institutes of Health, the US Surgeon General, the US Centers for Disease Control and Prevention, the American Medical Association, the World Health Organization and the United Nations Office on Drugs and Crime all encourage their use.

Despite this, needle exchange programs are still banned in 24 states, including Indiana. What is the argument that predominantly conservative politicians use to oppose these programs? That they encourage illicit drug use. But even this claim lacks credence. One study conducted in San Francisco found that drug use dropped three-fold among IDUs who used that city’s needle exchange program. Most of these programs also provide peer education and referrals to treatment clinics, helping participants break free of their drug addiction.

Thankfully, Governor Pence finally (sort of) gets it. He recently announced a 30-day moratorium on enforcing Indiana’s ban, stating that “I do not support needle exchanges as anti-drug policy, but this is a public health emergency. I’m going to make a decision on the best science and the best way to stop this virus and this outbreak in its tracks.” Public health officials in Indiana can now implement a needle exchange program should they want to. While it is too late for the 79 newly infected residents of Scott County, such a program may slow the spread of HIV to other Hoosiers.

Indiana’s now-suspended ban on needle exchange programs aside, politically motivated spending cuts are also to blame for the outbreak in Scott County. That county has been without a HIV testing clinic for nearly two years, the direct result of partisan wrangling about abortion.

Until 2013, the Scott County Planned Parenthood clinic was the sole provider of HIV counseling and testing in that rural community. That facility closed after Republican lawmakers cut state funding of Planned Parenthood because of their opposition to abortion. As a result, five clinics run by Planned Parenthood of Indiana & Kentucky were shuttered, including the one in Scott County.

None of those five now-closed clinics provided abortion services. Rather, like most Planned Parenthood clinics nationwide, they mainly provided other desperately needed health care services to poor men and women. Those services included family planning counseling; pregnancy testing and prenatal care; screening for breast, cervical and testicular cancer; testing and treatment for sexually-transmitted diseases; and HIV testing and education. Those services are now largely unavailable to the economically disadvantaged residents of Scott County.

In their zeal to demonize and defund Planned Parenthood over abortion, a still legal medical procedure that accounts for less than 3% of the total services that organization provides, Indiana lawmakers thus created the very conditions needed for an outbreak of HIV to occur.

Sadly, those conditions are being replicated elsewhere. Just last week, for example, Texas lawmakers announced a plan to cut $3 million from state-run HIV prevention programs and redirect the funds to faith-based abstinence-only education projects. That state currently ranks third nationwide in new HIV diagnoses. It is now likely to claim the top spot, a rather dubious honor.

So long as conservative politicians continue their efforts to defund Planned Parenthood, continue their ideological opposition to needle exchange programs, and continue to prioritize the needs and goals of their corporate donors over the health and welfare of their own citizens, outbreaks like the one in Scott County will continue to occur. I only hope that voters finally sit up and take notice of the very real public health threat that these policies present.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on April 9, 2015, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Advertisements

Caveat Scholasticus

Note: The Bioethics Program blog will be moving to its new home on April 1, 2015. Be sure to change your bookmarks to http://bioethics.uniongraduatecollege.edu/blog/

 

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

Economists talk a lot about scarcity. Scarcity occurs when we have fewer resources than are necessary to fill our basic needs and wants. Price is usually a good indicator of scarcity. Despite the recent short-term glut of oil, for instance, increasing demand and decreasing supplies of fossil fuels means that gasoline prices will inevitably rise in the coming years.

Ethicists like myself also talk about scarcity. Medical resources are often in short supply and must be rationed. The limited number of beds in the intensive care unit means that doctors must sometimes make difficult choices about which critically ill patients are admitted to the ICU and which are not. Vaccines may also be rationed. In the event of a serious flu epidemic, for example, the New York State Department of Health has a four-tiered vacccine allocation system, with critically needed staff such as doctors, nurses, police and firefighters given priority over grocery clerks, plumbers, mechanics, and stay-at-home dads. But one thing we never thought would be an increasingly scarce resource, at least in the medical setting, was privacy.

Everyone is increasingly concerned about privacy today, and rightfully so. In a progressively wired and interconnected age, there is little about a person that isn’t public knowledge. In fact, despite all our protestations, we as individuals are largely responsible for this loss of personal privacy.

We give up our personal privacy in a myriad of seemingly innocuous ways: posting status updates on Facebook and Twitter, writing blog articles, and uploading pictures to Instagram. Everything we say or do online leaves behind a trail of personal information that can be used by public agencies and private businesses to track us, watch us, and selectively market goods and services to us.

This is true even when it comes to our personal health. As mentioned before, much of this is our own doing. We comment about our various aches and pains online, use databases like WebMD to self-diagnose and self-treat minor illnesses and injuries, and purchase over-the-counter and prescription drugs using our CVS ExtraCare card. But one thing that we would never expect is that our conversations with our physicians and psychotherapists could also become public knowledge.

If anything, maintaining patient privacy and confidentiality is one of the key ethical obligations placed upon physicians. It is an obligation that has its roots in two millennia of Hippocratic practice, and it is the foundation of the doctor-patient relationship. Patients must feel that they can share all sorts of personal information with their physician, no matter how embarrassing or stigmatizing. This information is often necessary to ensure proper diagnosis, testing and treatment.

A sixteen-year-old girl who is experiencing pain when urinating, for example, may simply have a urinary tract infection. But she may also have a more serious condition like chlamydia, gonorrhea or some other sexually transmitted infection. If she is not willing to share the fact that she is sexually active, perhaps out of fear that her parents will find out, her doctor may inaccurately diagnose and treat her.

Maintaining patient privacy and confidentiality is so important that it has been put into practice and codified into law. Following a groundbreaking observation study of what doctors, nurses and medical students shared with each other in public elevators (spoiler alert: they shared way too much), many hospitals instituted strict policies about what can and cannot be said about patients in public settings. Anyone who has been to a hospital in recent years has undoubtedly seen the signs in the hallways and elevators reminding staff of this fact. Hospital staff can reprimanded and even fired for breaching confidentiality, as happened at Cedars-Sinai Medical Center after six employees inappropriately accessed the medical records of reality television star Kim Kardashian.

State and federal laws restrict the types of information that can be shared about patients. One key federal law, the Health Insurance Portability and Accountability Act (HIPAA), places strict limits on who can access or share your medical records or your health insurance and billing information. Doctors, hospitals, and insurance companies bound by HIPAA regulations can face severe civil and criminal penalties for violating this law, including fines of $1.5 million and prison sentences of up to ten years.

Unfortunately, this privacy law is rife with loopholes. HIPAA only applies to so-called ‘covered entities,’ such as health providers and health insurance companies. It does not apply to others who may have private health information, such as life insurance companies, employers, workman’s compensation programs, law enforcement agencies, or schools. This is a significant problem, as highlighted by a recent case involving a student at the University of Oregon.

That student was allegedly raped by three University of Oregon basketball players. In a Title IX lawsuit filed against the school, she claims that the school deliberately delayed its investigation so that the men could play in an important NCAA tournament.

So what does this case have to do with medical privacy? The University is using the student’s own medical records to defend itself in court. Because the student sought clinical treatment and psychological counseling at the University health clinic, her medical record belongs to the school. A federal law known as the Family Educational Rights and Privacy Act (FERPA), ironically meant to the protect the privacy of a student’s educational records, exempts campus medical records from HIPAA’s privacy rules.

Sadly, as morally repugnant as this is, the University is well within its legal rights to do this. Until laws like HIPAA and FERPA are amended to close these loopholes, we all should be more than a little wary. Students, for example, may wish to seek off-campus counseling or treatment in order to protect the privacy of their records, even if this means that they or their families may be forced to shoulder the cost. Meanwhile, the rest of us should be a little more diligent about the types of medical information we share with agencies and organizations not covered by HIPAA, and to pause for a moment before we complain about our neck aches and back pains on social media.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on March 12, 2015, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

The Carter v. Canada Conundrum: Next Steps for Implementing Physician Aid-in-Dying in Canada

by Sally Bean and Maxwell Smith (Bioethics Program Alum, 2010)

We applaud the February 6, 2015 Supreme Court of Canada’s (SCC) unanimous ruling in Carter v. Canada (Attorney General), 2015 SCC 5. The Court found the criminal prohibition of assisted death to be in violation of section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. The ruling has been suspended for 12 months to enable time for a Parliamentary response. In the wake of this landmark ruling, we identify and briefly discuss three issues that require serious attention prior to the implementation of Physician Aid-in-Dying (PAD) in Canada.

The legal prohibition on assisted dying in Canada dates back 22 years to the SCC’s 1993 ruling in Rodriguez v. British Columbia (Attorney General). In a 5-4 decision, the majority of the Court held that, although prohibiting aiding and abetting a person in committing suicide (section 241(b) of the Criminal Code) did deprive a patient (Rodriguez) of her security of person under section 7 of the Canadian Charter of Rights and Freedoms, this violation was justifiable because the infringement was in accordance with “the principles of fundamental justice.”

Reflecting a changing legal and moral landscape, the Carter v. Canada SCC ruling again addressed Criminal Code section 241(b), in addition to section 14 (prohibiting persons from consenting to death being inflicted on them). Specifically, the ruling held that these sections of the Criminal Code are void if they prohibit PAD for a competent adult who “(1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring physical or psychological suffering that is intolerable to the individual in the circumstances of his or her condition.”

Competent Adults

The SCC Carter ruling will now require subsequent legislation or regulations to delineate who counts as a competent adult. Like most jurisdictions that permit PAD, the ruling limited it to competent adults. Importantly, this may preclude patients suffering from advanced dementia or other diseases that render a person incapable of making their own treatment decisions. The legal standing of an advance directive authorizing PAD, made while an individual possesses decision-making capacity, remains to be seen and warrants further consideration.

Some Canadian jurisdictions, such as Ontario, do not have a legal age of consent for healthcare treatment decisions. Rather, under Ontario’s Health Care Consent Act, decision-making capacity is based on an individual’s ability to both understand the relevant information and appreciate the reasonably foreseeable consequences of the decision. Therefore, in jurisdictions without an age of consent for treatment, the Carter ruling could potentially require clarification if a determination of being an “adult” is based on the legal age of majority as determined by each province or territory (and is either 18 or 19 years of age across Canada), or if it is based on a capacity to make treatment decisions.

PAD Application beyond Terminally Ill Patients

The SCC left open the possibility that PAD should not be confined only to the terminally ill but also “persons with a grievous and irremediable medical condition that causes enduring physical or psychological suffering.” As Sean Philpott-Jones notes, “[b]y including references to disability and psychological suffering, the Court potentially opened the doors not only to those with terminal illnesses, but also those with chronic but not life threatening illness or disabilities, as well as those suffering from mental illness.” Further thought will have to be given to how we determine that a person’s condition is in fact “grievous and irremediable.” For example, will someone with treatment resistant depression be required to have attempted all reasonable treatment options, regardless of associated side effects?

Physician Conscientious Objection

The ruling also broaches the issue of which physicians will provide PAD. Just one month before the ruling, a member survey by the Canadian Society of Palliative Care Physicians found that 74% of its members reported they would not provide PAD. Similarly, a member survey conducted by the Canadian Medical Association indicated that more than one-quarter would be willing to provide PAD. Jurisdictions with PAD legislation, such as Oregon’s Death with Dignity Act, recognize that physicians have the ability to conscientiously object to participating in PAD. As a harbinger to the Carter ruling, in August 2014, the Canadian Medical Association softened its stance on PAD and in a released statement noted that the CMA “supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding to provide medical aid in dying.” Before PAD is implemented in Canada the issue of who will provide assistance in dying must be addressed at the very least to avoid inequities in access.

Now that the ruling has been handed down, the more difficult task of defining the legal and ethical parameters of who can consent to PAD and what obligations physicians have to honor such requests must begin.

[The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Physician, Torture Thyself

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

Last week, the US Senate Intelligence Committee released its long awaited report describing the techniques that the Central Intelligence Agency (CIA) used to interrogate suspected terrorists and other combatants captured during our long running War on Terror.

The so-called Torture Report, the product of a five-year investigation by the Democrat-led Senate, described in harrowing detail the methods used by CIA agents to extract information from detainees, including: waterboarding; sleep deprivation; light deprivation; threats to physically harm or sexually assault individuals, their children or their adult relatives; and “rectal feeding”. Many of these techniques blatantly violated the Geneva Conventions and other international agreements on humanitarian treatment of prisoners of war.

Not surprisingly, the political firestorm that release of this 6,700-page report ignited has been fierce. Many Republican politicians and conservative pundits have condemned the investigation as flawed, biased, and potentially damaging to US interests.

Others, including former Vice President Dick Cheney and key architects of the War on Terror, have defended the use of enhanced interrogation techniques, claiming that countless lives were saved and disputing allegations that any US laws or international treaties were violated. Only a few politicians and pundits on the right, most notably Arizona Senator John McCain (himself a former POW who was tortured), have stood up to defend the report.

On the other side of the political aisle, the response has been fairly muted. While progressive organizations and advocacy groups like Human Rights Watch have called for criminal investigation of senior Bush Administration officials and CIA operatives involved in the interrogation of prisoners, Democratic politicians and the Obama Administration have largely rejected calls to prosecute those involved. This is, I believe, a rather shrewd and calculated political move.

For this commentary, however, I don’t want dwell on the issue of whether or not the activities described in the Senate’s report question long-standing notions of American exceptionalism: the idea our country stands as a moral exemplar for the rest of the world. Instead, I want to focus on a more practical question: what does the fact that hundreds of doctors, nurses, and psychologists participated in the interrogation of CIA prisoners say about the healthcare profession as a whole?

We now know that CIA staff physicians and psychologists were involved in almost every interrogation session. This is in direct violation of all known codes of medical ethics, including the Hippocratic Oath, the American Medical Association’s (AMA) Code of Medical Ethics, the American Psychological Association’s (APA) Ethical Principles of Psychologists and Code of Conduct, and the World Medical Association’s Declaration of Tokyo. Despite a primary duty to “do no harm” (primum non nocere), a number of medical professionals have been directly involved in helping the US government, the CIA, and other military and intelligence agencies come up with new and creative ways of torturing prisoners.

For some healthcare professionals, torture is also a lucrative business. Two psychologists, Jim Mitchell and Bruce Jessen, helped the CIA develop its interrogation program. In exchange, they received more than $80 million from the US government.

Consider a few examples of physician involvement in torture outlined in the Senate report: Clinicians with the CIA’s Office of Medical Services, which provides healthcare to Agency employees, decided when detainees’ injuries were sufficiently healed such that agents could again interrogating them. A team of physicians determined which prisoners should be waterboarded, an interrogation technique that simulates drowning.

At one detention site, even though a prisoner’s feet were badly broken, the examining doctor nevertheless recommended that he be forced to stand for nearly 52 hours in order to extract information. Nurses and doctors also used rectal feeding and hydration — forcible injection of water, saline and even a pureed mix of hummus, nuts and pasta through the anus — despite the fact there is no physiological benefit or medical purpose to rectal feeding.

Few of these healthcare professionals are likely to face any consequences. To date, only one clinician has ever been sanctioned for their involvement in torture: a Navy nurse who refused to force-feed prisoners who were on an extended hunger strike at Guantanamo. He will probably be discharged from the military. He may also face criminal prosecution for failing to obey orders.

He will likely be the only medical professional prosecuted. The Obama Administration has largely given a “Get Out of Jail Free” card to everyone involved. In a briefing given by the White House following the release of the Torture Report, for example, a senior official with the US Department of Justice concluded that the CIA’s enhanced interrogation activities were “authorized” and “reviewed as legal” at the time they occurred.

While the AMA and the APA have condemned the actions of the clinicians and psychologists mentioned in the report, as professional organizations with no legal or licensing authority, there is little they can do to punish those involved. State medical licensing boards could suspect or revoke permission to practice, they probably won’t.

It is sad that the perpetrators of these crimes will face no sanction. It is sadder still that politicians, policymakers and the general public will largely ignore the Senate’s report. I can only hope that outrage in the medical community over these and other acts (such as physician involvement in state-sanctioned executions) leads to a change in the way healthcare workers treat suspected terrorists and other prisoners.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on December 18, 2014, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Tackling the Problem of Domestic Violence

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

The National Football League is in for a rough season, both on and off the field. In the past month, for example, America’s most popular sport has been rocked by allegations that league officials and team owners willfully ignored evidence that the Baltimore Raven’s star running back Ray Rice beat his then-fiancée unconscious in an Atlantic City elevator.

All-pro defensive end Greg Hardy of the Carolina Panthers and defensive lineman Ray McDonald of the San Francisco 49ers face similar allegations. Most recently, Minnesota Vikings’ Adrian Peterson was charged with criminal child abuse after whipping his four-year-old son with a wooden switch and a leather belt.

In response, beleaguered NFL Commissioner Roger Goodell promised to overhaul the organization’s policies on personal conduct, making it easier to penalize players harshly for egregious off-field behaviors, including domestic violence and child abuse. Commissioner Goodell also introduced a new initiative that would require all players and league staff to participate in regular educational programs on domestic violence and sexual abuse.

Unfortunately for Mr. Goodell, much of this is “too little, too late.” A growing number of women’s organizations and domestic violence advocacy groups are calling for his resignation. A number of commercial sponsors are also distancing themselves from the NFL, which makes Roger’s continued tenure as NFL Commissioner increasingly unlikely.

A number of pundits have also weighed in, not just on the question of Mr. Goodell’s career prospects but also on whether or not the recent spate of domestic and child abuse causes is directly linked to misogynistic and violent culture of professional football. Some of these armchair quarterbacks have linked the so-called “epidemic” of domestic violence in the NFL to increasing awareness of the physical and mental toll that football takes on professional (and even amateur) athletes.

Many players, for example, use anabolic steroids illicitly in order to get a competitive boost. It is well known that abuse of these drugs can lead to uncontrolled aggression and violent behavior (colloquially called ‘roid rage’).

Similarly, head injuries – particularly concussions – are also a common occurrence in high-speed contact sports like football. Players with a history of repeated concussive head injuries are at increased risk of developing a progressive neurodegenerative disease known as chronic traumatic encephalopathy (CTE), symptoms of which include mood and behavioral changes, dementia, tremors, impaired speech, and deafness. Actuarial experts hired by the NFL itself now estimate that as many as one-in-three professional football player will develop CTE or other long-term cognitive problems in their lifetime.

But it is important to remember that correlation is not causation. For instance, there is no definitive link between CTE and domestic violence in the NFL or other sports leagues. More importantly, despite the current spotlight on Ray Rice and Adrian Peterson, there is no link between professional football and domestic violence.

This is not to say that domestic violence is not a big problem in the NFL. Since 2000, nearly 100 players have been arrested or changed with domestic violence or child abuse. But this rate is actually slightly less than the US national average.

So despite what most Americans think, the NFL is not suffering from a “widespread epidemic of domestic violence”. Rather, it is the country overall that is in the midst of an outbreak.

At some point in their life, nearly a quarter of all women and 8% of all men will be the victim of a physical or sexual assault by a romantic partner or personal acquaintance. Many more will be the victim of more insidious forms of violence, including verbal, emotional and psychological abuse. Rates of abuse are particularly high among racial, ethnic and sexual minorities.

Similarly, over 10% of children will be abused or neglected by the time they are 18 years old. Over 6% will be raped or sexually assaulted by a family member. An estimated 1,500 children in the US die annually as a result of abuse or neglect.

This is the real tragedy, and the one that we need to address. In many ways, the spotlight on the NFL may do just that. In the past couple of weeks we’ve seen an increase in public discussion and debate about the problem of domestic violence. Victims of abuse – including celebrities like Meredith Vieira and Sarah Hyland – have also gone public with their stories on television, in the press, and via Twitter chats using the hash tags #WhyIStayed and #WhyILeft.

But increasing public awareness and discussion of the problem is just the start. We also need to reform relevant local and state laws to make the perpetrators of domestic violence or child abuse more accountable for their crimes. In many states, for example, a man can go to jail for up to five years for abusing his dog, but spend less than a month in jail for beating his wife, girlfriend or daughter. Existing abuse laws also often lack protections for gay, lesbian or transgendered individuals, even though these groups are at higher risk for physical abuse or sexual assault.

The epidemic of domestic violence and child abuse in the US will not end until the nation as a whole tackles this rampant problem head on.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on September 25, 2014, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Living With HIV/AIDS Should Not Be A Crime

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

It went largely unnoticed by the public and the press, but last month Iowa’s Senate and House of Representatives did something groundbreaking. With broad bipartisan support, that state became the first in the country to repeal and replace its existing HIV criminalization law.

Prior to this repeal, Iowa was one of 34 states to have a law that explicitly criminalized exposing an uninfected individual to HIV through sex, shared needles or other routes of transmission. Those of us who reside in the Northeast — particularly those living with HIV/AIDS — are fortunate in that the states in this region of the US do not criminalize HIV. Others are not so lucky.

States such as Iowa, Michigan and Texas passed these criminalization laws in response to the 1990 Ryan White Comprehensive AIDS Resources Emergency (CARE) Act. That Act, which proved public funds for treatment and care of those living with HIV/AIDS, also required each state to certify that it had laws that could be used prosecute those who knowingly exposed others to HIV.

The states already had adequate criminal laws to prosecute the malicious transmission of HIV, usually through existing assault statutes. Despite this, in accordance with the requirements of the Ryan White CARE Act and in response to several high-profile transmission cases (including the 1996 incident when Nushawn Williams was charged with intentionally infecting 13 women and girls with HIV in New York), legislators were quick to pass laws that explicitly focused on persons living with HIV/AIDS.

Twenty-four states, for example, passed legislation that required people with HIV to notify their sexual partners of their serostatus. Fourteen states also passed laws requiring disclosure of HIV status to needle-sharing partners. Other states also make it a crime for an HIV infected person to spit or to touch another person with their blood or saliva.

Until last month, Iowa had one of the strictest laws on the books. Iowans living with HIV/AIDS faced up to 25 years in prison and inclusion on the state’s sex offender registry if they could not prove that they had disclosed their HIV status to a sexual partner. This was true even if they practiced safer sex and even if that person remained uninfected.

Moreover, the burden of proof was on the accused. Iowans living with HIV/AIDS were ‘guilty until proven innocent,’ as persons charged with violating the transmission statute had to show that they disclosed their status to the sexual partner rather than the other way around.

Thankfully, that law has been replaced. Iowa’s new statute takes into account such important factors as whether or not safer sex precautions were used, whether or not transmission of the virus actually occurred, and whether or not the person intended to transmit HIV. The names of those convicted under the old law have also been expunged from the sex offender registry.

Hopefully, the 33 other states that still have HIV criminalization laws will soon follow suit. This is because such criminalization statutes do little to prevent the spread of HIV. In fact, they may even exacerbate the very problem they were intended to prevent.

Currently, the only successful defense to prosecution under most HIV criminalization statutes is either a claim of disclosure (often hard to prove given the one-on-one nature of most sexual encounters) or ignorance of one’s HIV-positive status. Seeking voluntary HIV testing can make a person criminally liable for normally legal conduct: consensual sexual activity. This not only adds to the still rampant discrimination and stigmatization of those living with HIV/AIDS, but also discourages at-risk individuals from seeking testing because of fears of legal prosecution.

Those who know they are HIV-infected become legally obliged to disclose their HIV status to long-time, casual and even anonymous sexual partners. By contrast, people who frequently engage in unsafe sexual encounters but who do not know that they are HIV infected — even if they have a strong reason to assume so, based on behavior — are under no legal obligation to disclose this information to a sexual partner.

There can be no doubt that is a deterrent to HIV testing. Many at risk-individuals may be discouraged from seeking HIV testing because of fears of legal prosecution, despite the fact that testing and treatment could not only preserve the lives of those with HIV but also reduce the likelihood that they will transmit the virus to others.

We know, for example, that treatment of those living with HIV/AIDS is as effective in terms of reducing the risk of HIV transmission as using condoms. New antiretroviral drugs can essentially render a person non-infectious, but that can only achieved if people seek testing and treatment. HIV criminalization laws discourage this.

This is not to say that particularly egregious, intentional and malicious cases of HIV transmission shouldn’t be prosecuted, but existing criminal assault laws cover that. But it is unreasonable to continue to require HIV-infected people to disclosure their serostatus to sexual partners if they have undertaken the necessary precautions — practicing safer sex and seeking treatment — that makes transmission exceedingly unlikely.

It is ironic that these criminalization laws actually encourage the very act that they were designed to prevent: the wanton and callous spread of HIV.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on June 5, 2014, and is available on the WAMC website. Portions are also adapted from an article written by Drs. Udo Schüklenk and ean Philpott-Jones and published in the August 2011 Issue of the International Journal of Law in Context. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Will Bioethicists Support Hunger Strike Death? A response to Wesley J. Smith

by Jacob Dahlke, Bioethics Program Alum (MSBioethics 2012)

I came across a post from Wesley J. Smith at National Review Online regarding a recent ruling about force feeding prisoners at Guantanamo Bay. (Credit to Art Caplan for the tweet that brought this to my attention.) I would like to take some time and craft a reply to his question.

In short my position is this: Bioethicists ought not support the forced feeding of prisoners engaged in hunger strikes. Note that this does not directly answer Mr. Smith’s question, which is deftly written to bait someone who is opposed to his view into supporting the death of these prisoners. That is at best an inaccurate characterization of the opposing view. This is an attempt to more accurate characterize that view, with full acknowledgement that there is likely room for many disparate views.

Citizens, within the context of healthcare, are afforded particular rights with regards to medical treatments. One such right is that to refuse such treatments, a violation of which could constitute battery. There are landmark legal (and ethical) cases that highlight this right, most notably Nancy Cruzan and Dax Shephard. They provide a framework for discussing other persons, free or imprisoned, who decide to refuse medical treatments that may or will result in their deaths. The person at the center of this discussion, Jihad Ahmed Mujstafa Diyab, has an otherwise ambiguous role in American society.

To see Mr. Diyab as a prisoner – and thus eligible for a comparison to a prisoner in Kentucky who died following a purported hunger strike – ignores the fact that he has not actually been convicted of any crime to consider him as a criminal or felon. (It also ignores that the Kentucky death was not a clear hunger strike in protest, but rather a possible suicide or, even worse, a result of untreated mental illness.) Indeed, Mr. Diyab has not even been charged with any crime, he has only been detained (for an incredible 12 years). Were he charged, tried, and convicted, we would likely have a very different discussion on our hands. But this man is not yet a convicted criminal, so we are left to consider him ‘something else’. We must also leave Mr. Smith’s assertion that since Mr. Diyab is a criminal he is eligible to lose such rights as other convicted criminals, such as in the Kentucky prisoner death.

If we ignore all of the above, however, and presume that Mr. Diyab is actually a prisoner then we can ask what I assume is at the heart of Mr. Smith’s question: is a prisoner permitted to risk their health and potential life by undergoing a hunger strike? And, do medical ethical principles support the actions of the involved physician to treat only the symptoms associated with malnutrition and dehydration, fully aware that failing to treat the cause will eventually lead to death?

I will begin with the latter question. Mr. Smith wrote in a previous post that physicians who do not intervene to reverse the effects of the hunger strike are engaging in political activism, not medical ethics, and that “helping hunger strikers strike is not a doctor’s job.” He also writes that such an “intervention is only necessary because of self-inflicted harm and the feeding seeks to prevent death and destruction of health, not cause it. In this sense, it is not the same thing at all as a cancer patient refusing chemotherapy.” On this I  disagree. This implies several professional obligations of a physician, including:

  1. intervening in the health-altering behavior of a patient (“helping hunger strikers strike”, and the “destruction of health”). If this were actually a physician’s professional obligation, then physicians would be compelled to intervene to keep patients from knowingly risking their health and life from smoking cigarettes, eating high calorie diets, and leading sedentary lives. All three of these behaviors are known to put a person’s health at risk, albeit drawn out over a longer period of time than a hunger strike. Instead, I propose that the physician’s obligation in this case is to ensure that the patient is aware of all of the risks to their behavior, and to offer alternatives with better known benefits. To say that the physician decides that a patient with full autonomy is simply making the wrong choice and that the physician will instead make a ‘better’ decision on behalf of the patient smacks of paternalism.
  2. the prevention of death. While the avoidance of death can be celebrated as an outcome of medical interventions, it is only the byproduct of the underlying professional obligation of minimizing harms. It should be self-evident that minimizing harm can include avoiding death, but they are not synonymous. If they were identical, a single professional obligation, then the entire field of hospice and palliative care would not exist, since those professions (employed by physicians) do not seek to prevent death even though it may be a known prognosis, and instead it seeks to manage pain and other symptoms associated with the dying process.

Regarding the former question, regarding whether the rights lost by prisoners include that of medical autonomy, that should also be an irrelevant point since the status of the patient within the physician-patient relationship should not be a determinative factor. That is, a prisoner, detainee, or inmate should not receive an alternative level of care once that relationship has been begun, lest we begin a tiered system of patient and physician interactions.

Physicians that manage the health of detainees, whether on hunger strike or not, are working to maintain patient autonomy while still attempting to manage a balance between promoting patient benefits and minimizing harm. They are not engaging in political discourse; rather, they are simply doing their jobs as outlined by their profession.

[This blog entry was originally posted in a slightly different form on Mr. Dahlke’s blog on May 19, 2014. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]