Doctors Who Torture: Why No Punishment?

The following article I wrote for Bioethics.net is reproduced here with permission.

07/24/2013

DOCTORS WHO TORTURE: WHY NO PUNISHMENT?

Maurice Bernstein, MD

Torture has been in the United States’ “backyard” for a number of years. The forced feeding of Guantanamo detainees who are on “hunger strike” is a current example.  One issue beyond the ethics of forced feeding anyone, detainee or not, is what role a physician plays in such an activity and whether such participation should be part of the profession of medicine. Physicians have been used both in the United States and around the world to lend their “professional expertise” when it comes to virtually facilitating and monitoring the process of torture. The problem of physician complicity with torture and other war crimes has been a part of medical ethics since the trial of Nazi doctors in Nuremberg after World War II.  Most recently the forced feeding of Guantanamo detainees on hunger strike or “virginity exams” on women prisoners during the Arab Spring have shared headlines. Forced enteral feeding and pelvic exams are abusive and the participation of physicians in such acts raises special ethics issues.  In the United States case, numerous human rights groups have condemned forced feeding, citing the World Medical Association’s Declaration of Malta and also standards proposed by the American Medical Association. Nevertheless, misbehavior by the United States government continues.

With this in mind, I was greatly appreciative of the Perspective commentary in the July 11, 2013 issue of the New England Journal of Medicine by Annas, Crosby and Glantz titled “Guantanamo Bay: A Medical Ethics-Free Zone“.  In my opinion, they offer the correct ethical interpretation of the role and actions of physicians who have been participating with the U.S. military “to make torture a medical procedure” as violating their professional medical ethics.  The commentary also rightfully emphasized and encouraged military physicians to “refuse to participate  in any act which unambiguously violates medical ethics.” In addition, for those physicians who refuse, their refusal should be supported by medical organizations and medical licensing boards “should make it clear that the military should not take disciplinary action against physicians for refusing to perform acts that violate medical ethics.” The article concludes with “If the military nonetheless disciplines physicians who refuse to violate ethical norms when ordered to do so, civilian physician organizations, future employers and licensing boards should make it clear that military discipline action in this context will in no way prejudice the civilian standing of the affected physician.”

But, that’s it… and in my opinion there is something missing in that conclusion.  Shouldn’t there be subsequent civilian punishment for those physicians who do not refuse to participate and continue to violate their professional medical ethics within their military role? Shouldn’t physician organizations, future employers and particularly licensing boards affect the civilian standing of those physicians?  It is a tragedy that there appears to be no punishment for doctors who, in the military, participate in torture for the United States.  But the United States is not alone in the world with regard to ignoring civilian punishment for acts of torture as a physician.  And this is what this Bioethics.net article of mine is all about.  I want to present an important resource.  The resource is “Doctors Who Torture accountability project” web site http://www.doctorswhotorture.com/ which has been created, developed and owned by Dr. Steven H. Miles. Dr. Miles is a professor of Medicine and Bioethics at the University of Minnesota and is on the Board of the Center for Victims of Torture in the United States. Beyond writing about physicians’ participation in torture, Dr. Miles has actively participated in the judicial and legislative systems to awaken the legal and ethics community, and society-at-large, to this issue of physicians failing their professional ethical duty by participating in torture. In that website, Dr. Miles discusses physicians who fail to report observations of government agents performing torture, concealment of torture, and active physician participation in torture. He criticizes courts and professional organizations that do not take a stand and action to hold physicians who torture to task.  Dr. Miles produces an action list to create change that includes providing copies of standards, identify countries where physicians have assisted in torture, and identify countries that held physicians accountable for such actions.

I am saddened at how few countries who have experienced torture with physician participation have actually punished those physicians.  While I agree with Annas et al that physicians who behave ethically by refusing to participate in governmental ordered torture should not be subjected to penalty, I think that those who don’t refuse and contribute to that torture must find punishment in their civilian life.  If those doctors are not punished as in the United States and so many other countries, my question is “why not?”  Do you agree?

Extra-Marital Sex: Sex by the Demented in Nursing Homes

On August 8 2011, I started a thread here titled "Extra-Marital Sex: Spouse of the Demented Marital Partner" and I got some interesting visitor responses.  Today, I would like to switch the topic around a bit to consider extra-marital sex, not by the competent spouse but by the demented spouse living in a nursing home with a sex partner who is also demented.  Is this ethical? Is it even legal? Should this activity be prevented by the nursing home? Can the demented still have the capacity to make a decision regarding whether they should engage in sex with another nursing home resident? If one or both are married to a spouse living outside the nursing facility, is it marital infidelity and should be prevented?

To learn a bit more on this subject, the issue was presented yesterday on NPR "All Things Considered".  The audio and text is available at NPR .

 Bryan Gruley, reporter-at-large for Bloomberg News, talks with Melissa Block about his two-part feature story on sex and nursing home patients with dementia. One key question is whether those with dementia are truly able to consent. How nursing homes deal with this, or not, is increasingly becoming an issue as baby boomers enter nursing homes.

Is such apparently consensual sexual activity between the demented an ethical issue? Is it a legal issue? So, if you were operating a nursing home, what would be your responsibilities in this matter? Would you stop it or allow it to continue, considering it would be humane and even therapeutic?  ..Maurice.

Graphic: From Google Images.

ADDENDUM 7-26-2013:
Here are the links to the two Bloomberg News articles by Bryan Gruley

Article One     Boomer Sex With Dementia Foreshadowed in Nursing Home
Article Two  Sex in Geriatrics Sets Hebrew Home Apart in Elderly Care

Are Clinical Ethicists Looking in Wrong Directions?

Clinical ethicists are those who perform ethics consultations regarding patient care and who also may teach and write about a host of issues that pertain to that care.  These ethicists are often physicians but also may be philosophers, social workers, ministers, lawyers, nurses and other occupations but whatever their primary professions, doing ethics they tend to follow some consensus often developed amongst themselves to explain and define what is happening and what is ethical.  Issues that are considered are often as basic and as important in clinical ethics decision-making such as "what is life" and "what is death" which are, for example, related to terminating life support and organ procurement.  It may be that those ethicists who originate concepts which others will consider to follow develop explanations and decisions based on theory and limited, perhaps isolated experiences, rather than in the direction of the common everyday experience of the meaning and consequences of life and death.  Are clinical ethicists actually looking for and presenting answers to society in the wrong direction?  Do you think what you read and hear from ethicists really represent the life which you are experiencing?

I thought an excellent presentation of this topic was that written to a bioethics listserv today by Steven Miles MD, who is a professor of medicine and bioethics at the University of  Minnesota and has written to this blog in the past.  I have reproduced, with his permission, his writing.  ..Maurice

Personally, I think clinical ethics has accepted a paradigm of priestly rationalism that is alien to the experienced phenomenon of life. When my father dies, it is not a biological event, it is a personal one. It is a social one--the Procrustean constructions of clinical ethics simply do not fit the dimensions of that experience.

 Our rationalism and pursuit of objectivity estranges us from life. This estrangement is compounded by the fact that most bioethicists write from the most extreme technological enclave of medicine--tertiary care treatment centers. In this environment and from this experience, life becomes flattened--two dimensional in the words of Jacques Ellul. And we would export those expensive and scarce technological redefinitions of diagnosis and treatment to the broader community despite the fact that they can not be widely implemented, are unaffordable, and would be inherently unjustly available or applied.

 There is a further problem--call it the Godel (or What is the square root of -1?) problem. Bioethics' hubristic and extreme embrace of mastery by rationalism must generate endless cascades of new paradoxes which in turn spur more extreme rationalism and defy resolution. As we attempt to  rationally subjugate the ever expanding tiers of paradoxes created by our  hyperrefined art--we become both more estranged from lived and experienced  phenomenon and we must necessarily declare that those who are closest to the phenomenon lack the expertise to understand or address it. In this sense, we expropriate lived-life from those living it.

 The resolution to this problem in bioethics is not clear and certainly not easy. Certainly we need a phenomenological ethics--one which puts the experience of persons and social units like families at the forefront, one which constrains machines and machine-logic to the ebbs and flows of quotidian conversations.

 I hope this clarifies matters or at least shows how muddled I have become.

Graphic: From Google Images

"As a Patient: I Am My Own Doctor. Trust Me"

Could there be the possibility that medicine and the medical system including the schools that teach medicine and the organizations and governmental agencies which set standards all have become paternalistic toward the patient as a person and toward the patient's diagnostic workup and treatments?  Could it also be that the patient is currently struggling to become more autonomous in terms of their individual  various self interests but also self-diagnosis and self-therapy but is being hindered by regulations and laws or established standards limiting these opportunities? Shouldn't the patient have more clout in setting standards which are more in the patient's own best interest, but from their own point of view and not that of some politician or regulator?  These are questions that could be considered in view of the current public discussion and debate about the role of governments in medical care and payment for medical services.  Further. current discussions, for example, deal with the restrictions to ready availability to those in need of anti-cancer drugs , restrictions  of drug availability by denying "over the counter"purchase without a physician's prescription or how life-saving organ transplants are allocated. In addition, there are a number of states in the United States which set regulations  potentially limiting the activities of practitioners of alternative medical treatments and thus limiting access by the patient.

One could argue that in these days of accessibility of medical information on the internet and other forums, both in terms of symptoms, diagnosis and approaches to therapy, that individual patients, for a host of medical conditions, reasonably could and should, saving time and money, be able to diagnose themselves (having diagnostic testing available on their request) and be able to treat themselves and not depend on obtaining a physician's office visit, wait and then ask the doctor for a prescription.  That means that all medication could be obtained from  a pharmacy without a physician's prescription.  That argument could also include that the patient should have the freedom to  access any and all alternative  medicine practitioners with the use of their full armamentarium of  offered therapeutic tools, unhindered by bureaucratic laws or regulations.   One could argue: let the patient be fully responsible for themselves as they should be and be fully able to use the services of a licensed physician or surgeon as part of the patient's  own selection from a host of other opportunities for diagnosis and treatment. One could argue that there are limits to the excuse of protecting the patient from themselves or from those who they consult.  And in the final analysis, it should be the patient who sets the course for their own diagnosis and treatment and for that course all patients should have freedom to obtain and use whatever tools are available.

Would you make the, perhaps Libertarian argument I presented above or do you think that the status with regard to a patient's medical care is just fine now with adequate autonomy presented to the patient?   Let me read your opinion.  ..Maurice.

Graphic:  From  The U.K. Guardian via Google Images

Patient Modesty: Volume 56

I am sure that everyone can spot the "chaperon"  for the patient in this classic photograph of the operating room used at Johns Hopkins Hospital from 1892 to 1927.  And I am sure that everyone can find the "gawkers"  who are present in the photograph. But do you really think that some patient chaperon, if one was actually present, in this operating room would have any clout? Regardless of the validity of our assumptions, I think that this photograph is pertinent to the many years of discussions on this blog thread. 

In my opinion, the photograph suggests the challenges that face the patient particularly within a hospital or particularly a teaching hospital today if the patient expects his or her modesty issues to be strictly attended.  What do you think? ..Maurice.

Graphic:  Photograph  from U.C.L.A. library website  obtained through Google Images.

NOTICE: AS OF TODAY AUGUST 26, 2013  "PATIENT MODESTY: VOLUME 56" WILL BE CLOSED FOR FURTHER COMMENTS. YOU CAN CONTINUE POSTING COMMENTS ON VOLUME 57.

Moses' Basket: Not the Right Basket for Professional Support

This is an apparently supportive advice delivered to one who is in some emotional or physical distress. And though one may find this advice displayed on numerous church boards for the public's humorous consideration, it "Have hope, don’t give up – remember Moses was once a basket case, too"  provides an example, in my opinion, of how clinical advice if given from a physician to a patient should not be expressed.  I believe the patient deserves such communication of advice be based upon facts which are presented with clarity and free of ambiguity and, in fact, free of humor. To me, humor can degrade any empathy by the physician that is appropriate  to be transmitted to a patient in distress. I think it says to the patient, what you are experiencing is, to me, partly a joke.

In contrast, the example, I selected, while attempting to convey some sort of a supportive message for those who read it and need it, there is a derogatory but also that humorous tone, along with the use of non-factual ambiguity in order to make the point of the message.  The facts which are missing are that "basket case" as defined by Merriam-Webster in its original World War I expression represented "a person who has all four limbs amputated" or it's more modern use "a person who is mentally incapacitated or worn out (as from nervous tension); also : one that is not functioning well or is in a run-down condition." Obviously, this does not apply to Moses, in the biblical description of his relationship to a "basket".

 Trust is an essential part of the doctor-patient relationship, trusting the doctor's decisions and intentions is critical for the acceptance by the patient of the doctor's advice. While there are some patients who, on questioning, may not want all the facts of their condition displayed to them in one sitting and a few actually desiring others to know but not themselves, I doubt that any want the doctor to finally tell untruths, misleading information or add humor related to the patient's emotional and physical distress.  Now I suspect that some of my visitors here may disagree with my commentary and may find some value to the patient for the doctor to present the advice in the form found written on those church displays.  If so, I would like to read your view.  ..Maurice.

 Graphic: Photograph taken by me today at a neighborhood church and modified with Picasa3.