Psychiatry and Hunger Strikes

\\server05\productn\H\HLH\23-1\HLH103.txt unknown Seq: 1 25-MAR-10 6:36 Psychiatry and Hunger Strikes Marlynn Wei, MD, JD* Rebecca W. Brendel, MD, JD** Psychiatrists play an instrumental role in the evaluation of hunger strikers in correctional and detention facilities. This article focuses on the role that psychiatrists play in evaluating the capacity of an individual who is voluntarily fasting. It examines theoretical and legal definitions of hunger strikes, including the criteria applied in federal and state prisons, as well as in the detention center at the U.S. naval base at Guantánamo Bay. The article discusses the limitations of psychiatric involvement, including professional values on death and suicide, limited access to information, normative judgment, and the use of psychiatry for non-treatment government purposes. Despite these limitations, the article concludes that psychiatrists should play a critical role in hunger strikes, particularly in circumstances where hunger strikers have very limited rights and require ongoing mental health care. I. Introduction ............................................ 76 R II. Definition of Hunger Strikes .............................. 78 R A. International Red Cross Definition ..................... 78 R B. World Medical Association Definition .................. 80 R C. U.S. Federal Prison and Detention Definitions ........... 80 R D. Assessment of Other Factors ............................ 81 R 1. Situational Factors .............................. 82 R 2. Individual Factors ............................... 87 R 3. Evaluator Factors ............................... 89 R III. Existing Models ......................................... 89 R A. Medical Model ...................................... 90 R B. Rights Model ....................................... 90 R C. Ethics Model ....................................... 92 R IV. The Psychiatric Model.................................... 93 R A. The Role of the Psychiatrist in the Evaluation of Hunger Strikes ............................................. 94 R * Clinical Fellow in Psychiatry, Harvard Medical School, Massachusetts General Hospital, McLean Hospital. ** Associate Director, Forensic Fellowship Program, Law & Psychiatry Service, Massachusetts General Hospital and Assistant Professor of Psychiatry, Harvard Medical School. \\server05\productn\H\HLH\23-1\HLH103.txt unknown Seq: 2 25-MAR-10 6:36 76 Harvard Human Rights Journal / Vol. 23 B. Justification of Psychiatric Involvement .................. 95 R C. Capacity Evaluation of Hunger Strikers ................. 96 R V. Limitations of the Psychiatric Model ........................ 97 R A. Psychiatrist as Health Care Provider or Consultant ....... 99 R B. The Problem of Indirect Participation ................... 100 R C. Subverted Use of Psychiatry for Non-treatment Government Purposes ........................................... 101 R D. Professional Values on Death and Suicide ................ 102 R E. The Problem of Access to Information ................... 105 R F. The Problem of Normative Judgment .................... 107 R VI. Conclusion ............................................. 108 R I. INTRODUCTION From the hunger strikes of the English suffragettes in the early twentieth century to the public hunger strikes of Mohandas Gandhi in India, individuals have undertaken hunger strikes in both custodial and non-custodial settings as a means of conducting political protest and communicating dis- tress.1 Hunger strikes by detainees at the Guantánamo Bay Detention Camp at the U.S. naval base at Guantánamo Bay (“Guantánamo Bay”) are a contemporary example that has aroused increased scrutiny from the general public, medical and legal organizations, and human rights groups, both in the United States and internationally. As early as 2002, detainees protested alleged mistreatment of copies of the Koran by guards and interrogators by refusing to eat.2 These early hunger strikes at Guantánamo Bay were resolved after military officials released new guidelines on treatment of the Islamic holy book.3 Since 2002, however, allegations of isolative and inhumane detention conditions and abuse by guards resulted in multiple additional strikes by Guantánamo Bay detainees,4 notably in 2005,5 2007,6 and 2009.7 Re- ports based on statements to a British newspaper by a U.S. military lawyer 1. See generally, SHARMAN A. RUSSELL, HUNGER: AN UNNATURAL HISTORY (2005). 2. Carol D. Leonnig, More Join Guantánamo Hunger Strike, WASH. POST, Sept. 13, 2005, at A3, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/09/12/AR2005091201690_ 2.html. 3. Id. 4. Tim Reid, One in Five Guantánamo Bay Detainees Is on Hunger Strike, TIMES ONLINE, Jan. 15, 2009, http://www.timesonline.co.uk/tol/news/world/us_and_americas/article5518812.ece. 5. See, e.g., Mike Mount, Hunger Strike at Guantánamo Grows, CNN.com, Sept. 13, 2005, http:// cnn.com/2005/WORLD/americas/09/13/gitmo.strike; Charlie Savage, 46 Guantánamo Detainees Join Hunger Strike, BOSTON GLOBE, Dec. 30, 2005, at A2; Jane Sutton, 75 Prisoners Join in Hunger Strike at U.S. Base at Guantánamo Bay, WASH. POST, May 30, 2006, at A7 (reporting that the recent hunger striking detainees join a few who have been refusing food since August 2005); Letta Taylor, “People Will Definitely Die”: Guantánamo Inmates Resolute in Second Month of Hunger Strike, NEWSDAY (Melville, N.Y.), Sept. 10, 2005, at A14. 6. Tim Golden, Guantánamo Detainees Stage Hunger Strike, N.Y. TIMES, Apr. 9, 2007, at A12, available at http://www.nytimes.com/2007/04/09/us/09hunger.html. \\server05\productn\H\HLH\23-1\HLH103.txt unknown Seq: 3 25-MAR-10 6:36 2010 / Psychiatry and Hunger Strikes 77 who represents one of the detainees indicate that nearly one in five detainees at Guantánamo Bay were on hunger strike as of early 2009, corresponding to an estimated forty-four to fifty of the 248 to 260 detainees held in Guan- tánamo at that time.8 In addition, some reports suggest that in early 2009 approximately thirty-three detainees were being force-fed through nasogas- tric tubes.9 Medical ethicists have pointed out the complex medical and ethical problems facing physicians who participate in the evaluation and force- feeding of detainees; they have thus cautioned against10 and heavily criti- cized11 physician participation in force-feeding. However, little attention has been given to the critical role that psychiatrists play in the evaluation of fasting individuals, particularly since psychiatrists are commonly called upon to assess competence for medical and related decision making.12 This article focuses on the role that psychiatrists play in evaluating the competence of an individual who is voluntarily fasting. Inherent in defin- ing a hunger strike are assumptions of legitimacy and mental capacity for decision making. Part II sets forth several theoretical and legal definitions of hunger strikes used by a variety of organizations, including criteria used in federal and state prisons as well as at Guantánamo Bay. This Part also articulates essential factors to consider in capacity evaluations of fasting individuals in order to illustrate why psychiatric evaluations cannot be done in a vacuum. In subsequent sections we explain the psychiatric model and show how psychiatrists are uniquely advantaged and simultaneously limited by their training and skill set when evaluating a hunger striker. We de- scribe capacity evaluations and demonstrate that although psychiatrists may not be involved directly in the forced treatment of these individuals, they play an instrumental role in determining the legitimacy of the hunger striker’s decision to fast and therefore may be seen as indirect agents of resulting force-feeding. Finally, we discuss several barriers to accurate capacity evaluations and the ethical dilemmas associated with psychiatric evaluations of fasting individuals. We assert that the psychiatric commu- 7. Reid, supra note 4, at A12; see also Mark Townsend & Paul Harris, Top U.S. Lawyer Warns of R Deaths at Guantánamo, OBSERVER (London), Feb. 8, 2009, at 14, available at http://www.guardian.co.uk/ world/2009/feb/08/binyam-mohamed-torture-Guantánamo-bay; Amnesty Int’l, 50 Guantánamo Detain- ees on Hunger Strike, Feb. 10, 2009, http://www.amnesty.org.nz/archived_news/50_detainees_on_hun ger_strike. 8. Tim Reid, One in five Guantanamo Bay detainees is on hunger strike, THE TIMES, Jan. 15, 2009, available at http://www.timesonline.co.uk/tol/news/world/us_and_americas/article5518812.ece. 9. Townsend & Harris, supra note 7, at 14. R 10. George J. Annas, Hunger Strikes at Guantánamo—Medical Ethics and Human Rights in a “Legal Black Hole”, 355 N. ENGL. J. MED. 1377, 1377 (2006). 11. David J. Nicholl et al., Forcefeeding and Restraint of Guantánamo Bay Hunger Strikers, 367 LANCET 811, 811 (Mar. 11, 2006). 12. There is currently no article in the psychiatric literature on the role of psychiatrists in evaluating hunger strikers in Guantánamo, in contrast with the literature examining the participation of medical physicians in the force-feeding of hunger strikers. See, e.g., Annas, supra note 10; Nicholl, supra note R 11. R \\server05\productn\H\HLH\23-1\HLH103.txt unknown Seq: 4 25-MAR-10 6:36 78 Harvard Human Rights Journal / Vol. 23 nity should be aware of the moral implications of a psychiatric determina- tion of capacity in hunger strikes, particularly in the case of Guantánamo Bay. Other models exist in response to hunger strikes—including

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