AMA on Torture (2): Potential Conflict Between Ethics and Law

I really didn’t know the answer to my concern regarding the opinion presented by the AMA I posed in my last post on Torture, so I wrote to a bioethics listserv to which I subscribe: “Is this opinion of the AMA applicable to physicians in the U.S. armed forces or to any physicians who might be working in the Central Intelligence Agency?” Herbert Rakatansky, M.D., a former member of the American Medical Association Council on Ethical and Judicial Affairs (CEJA) wrote back to the list the following, which is reproduced here with Dr. Rakatansky’s permission.


CEJA Opinions are standards of professional behavior. They carry a moral imperative but have no legal power. A government such as a state may adopt them as standards and apply them as it sees fit. Most states use the AMA Code as a reference standard for what constitutes professional behavior, There is a printed version of the Code which is annotated with legal decisions from state and federal courts in which the Code is cited as part of the court decision. In the latest version (2004-5) the Opinion on torture has no citations. Just for example, the Opinion on capital punishment has 41 citations. So the CEJA Opinions carry the same moral weight for all physicians regardless of who they work for. It would be very dangerous for an employer, private or governmental to assert that ethical standards do not apply to it’s employees. If the employer is a government then some physician behaviors may be legal but not ethical . (Shades of Soviet Russia, Nazi Germany, etc.) We have a situation right now in [Rhode Island] where a convicted schizophrenic violent sex offender has reached the end of his sentence. The state has ordered a physician employed by the state to keep him locked up in the hospital. The physician feels that person does not need hospital level care – though he may need to be separated from society. That doctor has resigned from his state job citing the Code as part of his reason. I wrote an op-ed published in the Providence Journal which follows. The Code applies to all – enforcement is variable but doctors have the right and perhaps the obligation to consider the Opinions as a basis for their professional behavior. Herbert Rakatansky, M.D., FACP, FACG Clinical Professor of Medicine, Brown University


Herbert Rakatansky: Patients as prisoners

01:00 AM EST on Friday, November 4, 2005

THE CASE of the Rhode Island sex offender Todd McElroy, who has reached the terminus of his sentence but will remain locked up in a state psychiatric ward, has created a controversy. There are some who think he is a risk to society if released, and others who suggest that he has paid his price and should be released into some "observational" and supervised status.
He apparently has a diagnosis of schizophrenia and perhaps other disorders. Many schizophrenics do quite well on medications. Hospitalizations tend to be short, and devoted to resolving acute situations and resuming or adjusting medications. In our Rhode Island case, then, a transfer to a psychiatric hospital might be medically indicated but of short duration.

Mr. McElroy will be in a state psychiatric ward at least until December, when a judge will determine whether he should be civilly committed for a longer time. The problem of preventing future destructive behavior would not be solved.
The proposition that doctors, at the behest of the state, commit him to hospitalization to isolate him is not acceptable; doctors cannot and should not address this problem. Only the judicial system, with appropriate due process, should have the right to deprive a person of liberty.

If the government believes that it is important to protect society from future criminal behavior, then the legislature and the judiciary must find a way to do this.
The court cannot make a medical diagnosis or prescribe a treatment; nor should it be able to order a doctor to make a specific diagnosis or prescribe a specific treatment, such as long-term hospitalization. (If the court sentences a person and that prisoner develops a physical or mental illness, the appropriate diagnosis and treatment, including hospitalization, are provided, based solely on the medical facts.)

The American Medical Association Code of Ethics addresses the issue of court-ordered treatment. It requires that the diagnosis be made by a doctor who is, in the case of a prisoner, likely to be employed by the state; another doctor, not employed by the state, must confirm the diagnosis.
The medical profession must generally accept the proposed treatment. Having the treatment approved by or included in guidelines approved by a national medical society specifically satisfies this criterion. This prevents a doctor or small group of doctors from administering "far-out," ineffective, or dangerous therapy ordered by the court.

Finally, informed consent must be obtained, to the extent possible, and confirmed by a doctor not employed by the state.
The present situation -- in which the state is asking that a doctor commit a person to an indefinite hospitalization for nonmedical reasons -- is analogous to the approval by the government of doctor participation in torture or execution. These actions may be "legal," but they are not ethical. In these situations, ethics trumps the law. If we accept this concept, there is no qualitative difference between physician participation in state-approved executions and what the doctors did in Nazi Germany. After all, the Nazi state said those experiments were legal. In the totalitarian Soviet Union, many political dissidents were committed to mental hospitals; this was legal, but I doubt that any of us would say that it was ethical.

Another danger is that the government may define such actions as being outside the practice of medicine, thus not allowing the Board of Licensure to deem them unprofessional. It has been said that these situations would never occur at this time in our society. But Illinois has decreed that physician participation in executions is not the practice of medicine. Also think about the recent revelations about doctor participation in torture of Iraqi prisoners.

Our government, at least initially, condoned and perhaps even encouraged these behaviors. Allowing the government to exclude any professional behavior from the definition of medical practice is a bright line that we should never cross!
So what should we do with our prisoner-patient? The legal system must decide whether the evidence substantiates that he is a risk to society, and, if so, deal with this problem. The role of the doctor is to provide the courts with medical data, the diagnosis, the role of treatment, and the expectation of success; the role of the courts is to afford due process and make the decision about deprivation of liberty.

I would not want to go to a doctor who accepted an order by the government to make a certain diagnosis and prescribe treatment that might not be medically indicated. And I doubt that you would want to go to that doctor, either.

Herbert Rakatansky, M.D., is a Brown University professor of medicine.