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.]


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.]

The Botched Execution of Clayton Lockett: Is Lethal Injection Painless and Humane?

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

Clayton Lockett died last week, but few will mourn his death. A four-time convicted felon, Mr. Lockett was executed by the State of Oklahoma for shooting and then burying alive a 19-year-old girl. Following his death, Oklahoma Governor Mary Fallin proudly stated that, “justice was served”.

Justice indeed was served, at least if you believe in the Biblical principle of an eye for an eye and a tooth for a tooth, for Mr. Lockett suffered greatly during the 43 minutes it took him to die by lethal injection.

Twenty minutes into the execution — during which Clayton moaned, writhed and gritted his teeth — correction officials discovered that the vein used to deliver a lethal cocktail of drugs had collapsed. Instead of entering his bloodstream, drugs that were meant to render Mr. Lockett unconscious, paralyze him, and stop his heart leaked into the surrounding tissue. He was partially awake and in considerable pain.

State officials called off the execution, but it was too late. Forty-three minutes after the execution began, Mr. Lockett suffered a heart attack and died.

Although a majority of Americans support the death penalty, capital punishment remains a controversial topic. Should our system of justice be based on rehabilitation or retribution? Can a society condemn the wanton taking of life by individuals like Clayton Lockett and yet sanction the same act by government officials? Is this penalty fairly applied to all of those accused of capital crimes or do racial and ethnic minorities bear a disproportionate burden of punishment?

No matter where you fall in this debate, the horrific manner in which Mr. Lockett died should raise serious concerns about our current method of execution by lethal injection.

Execution by lethal injection was first proposed in the 19th century. It came into widespread use in the 20th century, initially as a cost-effective means of involuntary euthanasia under the Action T4 program in Nazi Germany.

It wasn’t until the latter part of the 20th century that lethal injection became a common method of execution in the United States. Oklahoma was the first state to legalize the use of lethal injection, and other states quickly followed suit. It is the preferred method of execution in the 32 states that allow the death penalty.

Until recently, the approach used in the United States has remained largely unchanged from the lethal injection protocol first proposed by Oklahoma’s state medical examiner, Jay Chapman. Known as the Chapman protocol, it involves the use of three drugs: a barbiturate like sodium thiopental to render condemned prisoners unconscious and insensate, pancuronium bromide to cause paralysis and suppress respiration, and potassium chloride to trigger cardiac arrest.

But despite claims that this approach is more humane and less painful than other execution methods, this has never been demonstrated. Chapman himself did no research in designing the lethal injection protocol that bears his name. Similarly, no one has ever collected data that shows that lethal injection prevents the “unnecessary and wanton infliction of pain” required by the Eighth Amendment to the US Constitution.

Worse yet, states that allow execution by lethal injection are now forced to deviate from the Chapman protocol due to drug shortages. Several of the drugs used to execute condemned prisoners are in short supply, largely because imports from manufacturers in Europe have stopped.

The European Union limits the manufacture and export of drugs that can be used for capital punishment under its existing Torture Regulation. Many European drug companies no longer produce and sell these compounds. Of those companies in Europe and the US that do still manufacture these drugs, most are reluctant to sell them to state Departments of Corrections.

In states like Texas and Ohio — where lethal injection is the only execution method allowed by law — this shortage has left corrections officials scrambling to find alternative sources of these drugs or to devise alternative means to carry out state-sanctioned executions. Rather than use sodium thiopental, for example, some states have started using varying doses of a different drug — sodium phenobarbitol — alone or in combination with pancuronium bromide and potassium chloride as their lethal injection cocktail.

States are also calling upon small companies known as compounding pharmacies to provide the drugs required, as Oklahoma did for Clayton Lockett’s execution. But compounding pharmacies are not FDA-regulated. Sometimes, they are even not licensed or qualified to mix these particular drug combinations. States are thus using drugs of unknown quality and potency as part of the lethal injection protocol.

Our increasingly random approach to executing prisoners via lethal injection, using drugs obtained from poorly regulated sources, raises any number of questions about the constitutionality of this method of capital punishment. Regardless of what you might think about men like Clayton Lockett, they too have certain inalienable rights. One of these is the right to be free of “cruel and unusual punishments,” which includes guaranteeing that state-sanctioned executions are free of unnecessary and wanton pain.

There should be immediate moratorium on the use of the death penalty until we can prove that our current methods of lethal injection are indeed humane and pain free. Otherwise we are condemning thousands of inmates to a fate worse than death.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on May 8, 2014, and is available on the WAMC website. Portions are also adapted from an article written by Dr. Philpott-Jones and published in the March-April 2014 Issue of the Hastings Center Report (Philpott S. 2014. Execution by Lethal Injection: Illegal Research? Hastings Center Report 44(2): 11-12). 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.]

Hunger Games: Guantanamo Bay

by Theresa Spranger, Bioethics Program Alumna (MSBioethics 2012)

Guantanamo Bay is back in the news.  It seems that several of the inmates are currently participating in a hunger strike that began in February of this year.  It was started to draw attention to the camp and make a political statement that it should be closed as President Obama promised it would be during his 2008 campaign.

The hunger strike started with just a few prisoners and has expanded to over 100 of the 166 detainees.  About 45 of them have lost a significant amount of weight and require forced feeding to keep them alive.

So, what does “forced feeding” entail exactly?  Twice each day the prisoner is restrained at the hands, feet, and head, in a chair, a feeding tube is inserted into the stomach though the nose, and a protein shake (Ensure, or the like) fed to the prisoner through this tube.  The process can take up to 2 hours per person, per feeding.  With 45 people on feedings, each twice a day, this is no small operation for the Guantanamo Bay medical staff.

Some activist groups consider the forced feedings to be torture.  To back up their claim they look to the world of medical ethics.  The World Medical Association and American Medical Association, among other organizations, accept that patients have the right to refuse life sustaining treatment, including tube feedings.  This has been established through cases like that of Terri Schiavo, the Florida woman in a vegetative state whose story made headline news in the early 2000s.

Reprieve, a human rights group, recently released a video of Hip-hop artist/actor, Yasiin Bey (also known as Mos Def) undergoing the same forced feeding procedure that is happening in Guantanamo Bay.  In the video, Mr. Bey is unable to complete the procedure and it is stopped before the tube is even completely lowered into his stomach.  For much of the 4 minute video he is seen screaming and crying in an orange jumpsuit while being restrained in a chair, with people in white lab coats attempting to place the tube in his nose.  He continues to scream and struggle, until an off screen voice tells them to stop the procedure.

The video was made to illustrate the painful nature of the forced feeding procedure; the group considers the procedure a form of torture and has openly called for the feedings to be stopped.  The tag on the Reprieve website is, “Reprieve delivers justice and saves lives, from death row to Guantanamo Bay.”   Given their current argument about the forced feedings I find this tag line to be ironic.

It seems Reprieve has missed a major memo, so let me break it down here:

If we stop the forced feedings and the prisoners still refuse nourishment, they WILL die!

So, the question becomes: can you live with that?

If you will please look to the left of our military you will see a rock and to the right a hard place…now choose.

The military defends their decision to pursue the forced feedings saying they don’t allow suicide by any other means, so they choose not to allow it in the form of starvation.  I understand their position and that they are trying to prevent the loss of life.

My personal feelings however, are against the forced feedings.  Not because they are torturous or painful, though I’m sure the procedure is less than pleasant.  I am against them because I think our military and our country are being manipulated by the prisoners at Guantanamo Bay.  They stop eating and what has been the American reaction?

  • The New York Times printed an editorial about the horrors of Guantanamo Bay in a prisoner’s own words.
  • We discuss how the forced feedings could interfere with Ramadan, therefore violating the prisoners’ right to freedom of religion.  (Side note: The feedings are currently being performed at night to respect the religious traditions of the prisoners.)
  • Human rights activist groups, like Reprieve, take up the cause and renew the fight for the camp to be closed.

I don’t think the men of Guantanamo Bay actually want to die the miserable death of starvation, but rather they have found a captive audience for this new game of theirs.  If the feedings continue the hunger strike will never end.  The only way I can see to convince the men to start eating again is to let them see their decisions play out in some of their comrades.

I understand that my opinion is probably not a popular one, I don’t even like it myself to be honest, but what choice do we have?  Many will certainly say, “Close Guantanamo Bay…there is your choice.”  To them I say:

Whether you choose to believe it or not, there is a reason these men are being held in Guantanamo Bay and a reason that our current President, like the last one, has not closed the facility.

[This blog entry was originally posted in a slightly edited form on Ms. Spranger’s blog on July 15, 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.]

Of DNA and Databases

by Theresa Spranger, Bioethics Program Alumna (MSBioethics 2012)

You have the right to remain silent, but your DNA can and will be used against you…

On Monday. The United States Supreme Court decided to allow DNA to be taken at the time of arrest from those accused of “serious” crimes. The DNA sample is taken by a cheek swab and the information is then held in a database. The sample is run against others in the database, some of which are unknown samples that were collected at crime scenes. Occasionally, there is a match and the new DNA sample can help the police to solve one of their cold cases.

The case that went to the Supreme Court is that of Alonzo King. Mr. King was arrested on an assault charge and his DNA swabbed at the time of arrest. The DNA matched that of an unsolved rape case and King was charged with this rape. The problem arose when King pled guilty to a lesser crime than the assault. Under current Maryland law, the police would not have been allowed to take his DNA for the crime for which he pled guilty. King’s attorneys argued that because he was convicted of a lesser crime the DNA evidence should not be permissible in the rape case.

In a 5/4 decision that rocked party lines, King’s rape conviction was upheld. Kennedy, the notorious swing vote on the court, wrote the majority opinion. This opinion was that collecting DNA was like fingerprinting upon arrest and not a violation of the person’s rights. He was joined by Justices: Roberts, Thomas, Alito, and Breyer.

The dissenting justices were Ginsberg, Kagan, Sotomayor, and Scalia. Scalia wrote the dissent and argued that the ruling was too vague, the precedent the court was setting was dangerous, and collection of DNA has high potential for future misuse.

I agree with the dissent and believe the court made a mistake with this decision. It’s not that I would like Mr. King roaming the streets to rape again, but I think some of the justices neglected to look at the bigger picture. My main issue is with the saving of information, DNA information is not like having your fingerprints on file. Your DNA is a map of you and we have no idea how this information could be used in the future. We learn more and more about DNA and genetic makeup every day and the more we learn the more cautious I become about sharing my genetic information.

What about the DNA sample itself? Is this retained along with the database of information? It would be one thing to have a database, but another entirely to have the physical sample. Scientists can do amazing things and all indications point to more incredible discoveries in the world of genetics. This should give us pause when discussing the creation of a central database for anyone.

A further issue with this ruling is its vagueness. The court states that DNA gathering is permissible in cases of “serious” crimes. What does this mean exactly? What must someone be accused of to lose their right to control the use of their DNA? Drunk driving, shoplifting, protesting? Or is it truly for violent criminals? Murderers, rapists, etc.?

Taking the sample upon arrest however, flies in the face of our nation’s presumption of innocence. Keep in mind that not all of those arrested are criminals. Who knows, perhaps one day you will be in the “wrong place at the wrong time” and your genetic information will be on permanent file without your consent.

Making decisions based on what we know about DNA today is never a good idea, genetics and manipulation of genes is an ever changing field and we need to be making decisions into the future. I certainly want to give the police every advantage when catching dangerous criminals, but not at the risk of my or other innocent American’s personal privacy or freedom.

[This blog entry was originally posted in a slightly edited form on Ms. Spranger’s blog on June 6, 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.]

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.]