The Tortured Patient a Medical Dilemma

The Tortured Patient A Medical Dilemma

by CHIARA LEPORA and JOSEPH MILLUM

Doctors sometimes find themselves presented with a grim choice: abandon a patient or be complicit in torture. Since complicity is a matter of degree and other moral factors may have great weight, sometimes being complicit is the right thing to do.

ortures i unethical and usually counter- The medical professionals described in this ex- productive. It is prohibited by international tract might not have actually engaged in torture. But Tand national laws. Yet it persists: according by providing medical attention to prisoners subject- to Amnesty International, torture is widespread in ed to practices that the Inspector General defined more than a third of countries.1 Physicians and other as “un-authorized and inappropriate”4 and that most medical professionals are frequently asked to assist commentators consider torture,5 some were surely with torture. For example, a recently declassified re- complicit in it. port from the Central Intelligence Agency on inter- Medical complicity in torture, like other forms of rogation at Guantanamo Bay states: “OMS [Office involvement, is prohibited both by international law of Medical Services] provided comprehensive medi- and by codes of professional ethics. However, when cal attention to detainees . . . where Enhanced Inter- the victims of torture are also patients in need of rogation Techniques were employed with high value treatment, doctors can find themselves torn. To ac- detainees.”2 cede to the requests of the torturers may entail assist- Such “high value detainees” were exposed to ing or condoning terrible acts. But to refuse care to death threats with handguns and power drills, wa- someone in medical need may seem like abandoning terboarded more than 180 consecutive times, and a patient and thereby fail to exhibit the beneficence subjected to lifting “off the floor by arms, while arms expected of physicians. were bound behind his back with a belt,” a medieval In this paper, we argue that this dilemma is real form of torture known as strappado.3 and that sometimes the right thing for a doctor to do, overall, is to be complicit in torture. Though Chiara Lepora and Joseph Millum, “The Tortured Patient: A Medi- complicity in a wrongful act is itself prima facie cal Dilemma,” Hastings Center Report 41, no. 3 (2011): 38-47. wrongful, this judgment may be outweighed by

38 HASTINGS CENTER REPORT May-June 2011 other factors. We propose three cri- Punishment sets out a basic defini- extended to medical professionals. teria for analyzing how those factors tion of torture: For example, Article 3 of UN Resolu- apply to particular cases of medical tion 37 states: complicity in torture. First, doctors the term “torture” means any act should assess the consequences of by which severe pain or suffering, Its i a gross contravention of medi- the different options open to them, whether physical or mental, is in- cal ethics, as well as an offence including not only consequences for tentionally inflicted on a person under applicable international themselves and for the patient, but for such purposes as obtaining instruments, for health person- also the possible wider social effects, from him or a third person infor- nel, particularly physicians, to en- such as encouraging or discouraging mation or a confession, punishing gage, actively or passively, in acts policies that permit torture. Second, him for an act he or a third person which constitute participation in, doctors should attempt to discern has committed or is suspected of complicity in, incitement to or at- and follow the requests of the patient having committed, or intimidat- tempts to commit torture or other regarding his or her care. Finally, doc- ing or coercing him or a third cruel, inhuman or degrading treat- tors should weigh the degree to which person, or for any reason based on ment or punishment.12 the act would be complicit in torture. discrimination of any kind, when Where complicity is justified, it such pain or suffering is inflicted Medical participation in torture is should also be minimized, and we by or at the instigation of or with similarly condemned by all profes- provide some analysis of how to min- the consent or acquiescence of a sional codes of ethics, including the imize it. As with other difficult ethi- public official or other person act- World Medical Association’s Tokyo cal dilemmas, there is no formula for determining the right course of action; careful judgment must be used If the state is going to amputate a limb as to weigh these moral factors in differ- punishment, it is surely better for the victim that ent situations. Our analysis provides a way to think through such dilemmas it be done in a surgical theater under anesthesia and takes them seriously, in a way administered by a qualified surgeon than without that blanket prohibitions on medical complicity in torture fail to do. anesthetic in the public square by an untrained We should make two preliminary official. points about the scope of our argument. First, we assume that the acts of torture with which doctors are ing in an official capacity. It does and Malta declarations, the American asked to be involved are unethical. not include pain or suffering aris- Medical Association’s Resolution 10, Though there remains some debate ing only from, inherent in or inci- the American College of Physicians’ over the permissibility of torture in dental to lawful sanctions.7 conclusions and recommendations, narrowly specified, extreme cases, the a joint position statement from U.S. vast majority of real acts of torture do Torture therefore encompasses cases psychiatry and psychology associa- not fit these specifications.6 For those ranging from exposing a prisoner to tions, and the World Psychiatry As- who do think that torture could be electroshock to extract information, sociation’s Madrid Declaration.13 justified in some circumstances, we to beating or slapping to “induce sur- Legal, ethical, and medical con- ask that they restrict themselves here prise, shock, or humiliation,”8 and demnation have not been as effective to consideration of cases they believe cutting off a prisoner’s healthy ear or as their proponents hoped: torture is to be unethical. Second, while we limb as punishment.9 widespread in more than a third of discuss the role of doctors, our argu- Prohibitions on physicians partici- countries,14 and medical implication ments apply equally to other medical pating in torture are a relatively recent is described in at least 40 percent of professionals, such as nurses and psy- development. From the Middle Ages reported torture cases.15 Doctors are chologists, who may also be asked to through to the modern era, physician frequently required to be on hand involve themselves in torture. involvement in torture was a profes- for acts ranging from falsifying death sional requirement. This ended only certificates to the amputation of de- Physicians and Torture when torture itself ceased to be legally tainees’ limbs. and socially acceptable.10 nI the last Some of these doctors may simply he United Nations Convention century, international agreements be engaged in torture, or at least sym- Tagainst Torture and Other Cruel, prohibited all forms of torture.11 The pathetic to the aims and methods of Inhuman or Degrading Treatment or prohibition on torture, including the torturing regime. But others who complicity in torture, was explicitly oppose torture find themselves in a

May-June 2011 HASTINGS CENTER REPORT 39 difficult situation. While the tortur- indeed tantamount to torture,20 argue torturers. One psychologist reports ers may ask them to provide some about whether torture is justified in the patient’s extreme fear of spiders; form of medical attention for purpos- some exceptional cases when national the other reports only that the pa- es unrelated to the prisoner’s health, security is threatened,21 ro consider tient suffers from anxiety disorder. the prisoner may actually need that whether medical participation is nec- Although both reports are technically medical attention in order to be prop- essary and even morally required for correct, the first, by giving the tor- erly treated. In some circumstances, a some cases of torture.22 turers specific information, thereby prisoner may be better off cared for helps them more with their interroga- by a doctor, despite the complicity Complicity and Wrongdoing tion. With the information she gives entailed. If the state is going to am- them, the torturers are able to exploit putate a limb as punishment, regard- eforee w can address the specific the prisoner’s fears: confining him in less of the international prohibitions, Bproblem of medical complicity a cramped box and inserting insects. it is surely better for the victim that in torture, we need a clear analysis Such an experience was designed by the amputation be performed in a of what it means to be complicit in interrogators at Guantanamo Bay.25 surgical theater, under anesthesia wrongdoing. The most basic case of Complicitys i not just a matter of administered by a qualified surgeon, complicity in wrongdoing involves voluntarily and knowingly providing than without anesthetic in the public a principal actor who carries out a assistance to the principal’s wrongdo- square by an untrained official. Thus, wrongful act and an accessory who ing; the intentions with which the doctors may be conflicted about the does not actually perform the wrong- accessory acts are important, too. To right course of action to take. ful act but is in some way involved amend a famous example of Bernard This conflict also arises from the in it.23 Complicity comes in degrees: Williams, there is something morally international instruments and codes someone can be more or less com- better about the actions of George, of medical ethics. While they extend plicit in an act. The degree to which who takes a job at a chemical weap- a blanket prohibition on all forms of someone is complicit is a function of ons factory as a last resort to pay his participation in torture, they also ex- two factors: assistance and shared in- bills, than Henry, who takes the same hort physicians to treat the interests tention (corresponding to the Catho- job because he wants to advance the of their patients as a guiding concern. lic concepts of material and formal effectiveness of chemical warfare.26 The same U.N. resolution that con- complicity24). Assistance is a func- Focusing on whether intentions are demns medical complicity in torture tion of the complicit agent’s expected shared allows us to distinguish a case also states that “Medical and other causal contribution to the act. Shared of two people who are engaged in health personnel have a duty to pro- intention is a function of the extent the same activity (even if their ac- vide competent medical service in to which she has the same wrongful tions take place at different times) full professional and moral indepen- ends as the principal. from a case in which the accessory’s dence, with compassion and respect The idea of assistance should acts simply enable or make it easier for human dignity, and to always bear be relatively straightforward, even for the principal to engage in the in mind human life and to act in the though exactly how to measure the activity. This explains the different patient’s best interest.”16 extent of someone’s causal contribu- intuitions about the chemical weap- The tension between these two tion is complex. The intuitive no- ons employees. It can also explain directives has been neglected by the tion is that the more the complicit why simply being associated with an substantial literature addressing the agent’s acts are expected to help in activity, without causally assisting it, ethics of torture and medical com- achieving the wrongful ends, the may entail complicity. Suppose Vic- plicity. A literature search of philo- more complicit she is. (Of course, tor joins a neo-Nazi party (again, sophical, medical, and legal journals as with other cases of moral respon- voluntarily and knowingly). He may over the last ten years yielded more sibility, it must be the case that she then be judged complicit in the ra- than four hundred papers that men- acts voluntarily and that she knows, cially motivated violence it incites tioned “physicians” and “ethics” or should know, that she is assisting even if he does nothing to facilitate it along with “torture,” “interroga- the wrongful act.) Consider an arms himself. A natural explanation of why tion,” or “forced treatment.”17 But dealer who sells weapons to terror- we regard him as complicit is that his despite deep and divergent views, ists: the more weapons he sells them, membership signifies that he shares only a couple of publications pres- the greater his complicity in the acts the party’s goals. Similarly, a doctor ent the issue of medical participation they perform with the weapons. Or, who agrees to attend a waterboarding in torture as any sort of dilemma;18 to take a medical example, contrast torture session is complicit in torture the majority propose or repropose two psychologists who examine a regardless of whether she actually in- exceptionless prohibitions on physi- prisoner and record their assessment tervenes at any point in the process, cian complicity in torture,19 discuss in his medical records, knowing since her presence can be plausibly whether specific mentioned acts are that the records will be read by the

40 HASTINGS CENTER REPORT May-June 2011 interpreted as implicit endorsement function of both the extent of one’s and cigars. Until his encounter with of the procedure. complicity in that act and of how bad Itzhak Stern, a Jewish accountant, What does it mean to share inten- the act is (since the wrong of com- Schindler exhibited interest only in tions? To share someone’s intentions plicity is derived from the wrong of business. As a respected and well- is to act for the same reasons as that the act with which one is complicit). connected member of Nazi high so- person. Thus, if we are dance partners ciety, Schindler was able to hire and and you step left in order to waltz Is Complicity in Wrongdoing keep Jewish workers in his factories, and I step right in order to waltz, Always Wrong? eventually saving more than 1,200 then we share the joint intention to from deportation and death.28 His waltz. Likewise, if one person plants hen someone is complicit in workers were glad of his position and the bomb in the basement and his Wwrongdoing, she does not requested that he maintain it. partner lights the fuse, they share an herself commit the wrong. Thus, the There is no doubt about intention to blow up the building.27 wrongfulness of the primary act does Schindler’s early complicity in the Complex acts like torture involve not entail that the complicit act is it- Nazi regime and the ongoing war, a number of distinct intentions. The self wrong, all things considered. The which he fueled with the products of torturer must intend each of the act may have other features that speak his factories. But, on the commonly component acts that constitute an in favor of it; for example, it might be held assumption that the good he did instance of torture—for example, to expected to produce a greater balance by saving Jews outweighed the nega- secure the prisoner’s restraints, at- of benefits over harms than other tive consequences of his compliance tach the wires, check the circuit, turn the switch, and so on. Moreover, the same act may be performed with If the torturing authorities demand that a prisoner be multiple intentions, under different treated and the prisoner also asks for treatment, then intentional descriptions; for example, the torturer may turn the switch in the doctor, in treating, will inevitably be complicit in order to make the current flow, but the torture. But if she treats because of the prisoner’s also in order to cause the prisoner pain and in order to make him give request and not the torturer’s, the degree to which up information. This entails that, she is complicit will be low. depending on the number of component intentions that are shared, it is possible to share the intentions of acts. Alternatively, it may be the best with the Nazi regime, there is also lit- another to a greater or lesser degree. option among the choices available tle doubt that Schindler did the right Thus, as with providing assistance, to someone, all of which are prob- thing. Given the circumstances, he complicity through shared intention lematic. Moreover, as we just saw, would have been mistaken to refuse comes in degrees, depending on how complicity comes in degrees. Some- complicity and thus be unable to help many of the intentions to commit one’s actions could be only slightly his employees. wrongful acts are shared. This will complicit in wrongdoing (and so, Cases like Schindler’s show that prove important when we consider depending on the principal’s act, complicity in even the most heinous the different motivations that might only slightly prima facie wrong). It is of acts may not be wrong, all things lead a physician to be complicit in therefore possible that other morally considered. The prima facie wrong- torture. relevant features of a complicit act ness of complicity in wrongdoing can To summarize, there are two di- could outweigh the wrong of com- be outweighed by other moral reasons mensions to complicity, assistance plicity and make that act permissible in favor of the act. But this can apply and shared intention, both of which or obligatory, all things considered. to medical complicity in torture, just are a matter of degree. Most cases of This theoretical point can be il- as it did to Schindler’s complicity in complicity involve someone being lustrated with a well-known example. the Nazi war machine. In certain cir- complicit to some degree on both Oskar Schindler was a member of cumstances, patient-centered consid- dimensions, though it is possible German Military Intelligence and erations will be important enough to to be complicit only by assisting or, a businessman who took advantage outweigh complicity in torture. through acts with symbolic meaning, of the German invasion in 1939 to The following sections eluci- only by sharing intentions. Roughly acquire a bankrupt Polish factory. date the two moral considerations speaking, the further along each di- Schindler created strong and long- that we regard as most important mension one lies, the greater one’s lasting friendships with members of in the context of medical complic- total complicity. How bad it is to be the Wehrmacht and the SS, and be- ity: consequences and patient prefer- complicit in a wrongful act is then a came their trusted source of cognac ences. We then consider how these

May-June 2011 HASTINGS CENTER REPORT 41 considerations relate to a doctor’s po- risks in the service of right action. best: a doctor will often lack any real tential complicity in torture. Quite apart from the general duty evidence concerning the beneficial or that people have to accept moderate harmful long-term effects of her ac- Consequences risks to preserve the rights of oth- tions. In such cases, she should not ers, physicians are usually thought neglect someone’s immediate medical he consequences of our actions to have special duties to take risks needs. Tclearly affect their moral evalu- for the sake of their patients—for ex- ation. In Schindler’s case, the good ample, by risking exposure to nosoco- Prisoner Preferences of helping 1,200 people survive was mial infections.30 sufficient to outweigh the wrong of Whether a doctor should be tak- n considering the consequences of being complicit with the Nazis. Like- ing personal risks by refusing to Icomplicity, the interests of the vic- wise, there will be a point at which cooperate also depends on the conse- tims are of great importance. How- the beneficial consequences of an act quences of her cooperation or refusal ever, as in standard cases of medical that is complicit in torture will out- for other parties. Consider those oc- care, a physician’s judgment of what weigh the prima facie wrong of the casions when the complicit acts that is in a patient’s interests may not be complicity. However, exactly how doctors are asked to perform are also sufficient for her to decide whether and how much consequences matter in the medical interests of the pris- and how to treat him. Instead, where in moral decision-making is contro- oner being tortured. For example, a patient is competent to make de- versial. It is notoriously hard to weigh the surgeon who is asked to perform cisions about medical care, his own the importance of different states of an amputation as part of a court-or- treatment preferences should normal- affairs against each other, let alone dered punishment may rightly judge ly be respected.33 sThis i for three rea- against very different values, such as that the prisoner will be better off if sons: first, because people are usually avoiding complicity. Here we have she complies than if she refuses and knowledgeable about what is in their space only to indicate the types of leaves the punishment in the hands own interests; second, because what consequences that ought to be taken of someone with no medical training. people value partly determines what into account. Benefits to the prisoner should count is in their interests; and third, because Three broad classes of relevant in favor of doing as the authorities re- respect for autonomy extends to re- consequences may be distinguished: quest. However, what counts as being specting a patient’s decisions about personal consequences, consequences in the prisoner’s interests is a compli- what is or is not done to his body. for the prisoner, and social conse- cated question: medical benefit does Consider the following case. A quences. Personal consequences are not exhaust what constitutes well- doctor is called to provide treatment those that affect the doctor herself being, and frequently, what someone to a prisoner who has been severely (or other people who are significant subjectively values makes a difference beaten during interrogation. The pris- in her life). Some should clearly not to what is good for him. oner’s current prognosis is quite poor be given moral weight. For example, A doctor’s complicity in torture but could be significantly improved if a doctor stands to profit or to be may also affect the interests of people with immediate, expert treatment. promoted as a result of her complicity outside the doctor-prisoner dyad, and However, if the prisoner’s health im- with a torturing institution, this is no doctors should also take into account proves sufficiently, then the doctor justification for complicity at all. On these broader social consequences. expects that he will be tortured again. the other hand, credible vital threats This point is not about the possible Should she treat him or leave him? It to the doctor or her family might ex- social benefits of torture—we assume seems to us that this question can- cuse her complicity. The Iraqi doc- that torture is wrong and also that it not be answered without finding out tor who was executed for refusing is not socially beneficial.31 Instead, what the prisoner wants. Only he can to participate in torture might have the issue is about the possible politi- decide whether it is preferable to sur- done a noble thing,29 but many peo- cal consequences if doctors refuse to vive and be tortured, or to avoid fur- ple would judge his action beyond be complicit. For example, one might ther torture but increase his chances the call of duty—where someone is argue that an effective physician boy- of dying. Further, by soliciting and threatened with death, his complicity cott of all forms of association with following his decision, the doctor al- in acts he cannot prevent is excusable. torture might limit a government’s lows the prisoner some degree of con- Such reasoning should not be tak- ability to torture.32 fI a doctor’s refusal trol over what happens to him, and en too far, though. The fact that we to comply can have a foreseeable im- thereby respects his autonomy. excuse people who assist in wrongdo- pact on whether torture occurs, then Doctors might wonder how stan- ing when they are under great pres- she ought to take this consequence dards of care and informed consent sure should not be taken to excuse all into account. In many cases, how- can possibly be respected in a setting actions taken under any pressure at ever, the social benefits of noncoop- such as a prison, where obvious viola- all. Doctors should accept moderate eration are likely to be speculative at tions of rights are being perpetrated

42 HASTINGS CENTER REPORT May-June 2011 and where open complaints about of U.S. case law reaffirm that com- prisoner. If the doctor wishes to carry torture may be punished. Several eye- petent prisoners should be afforded out the prisoner’s will (which is what witness accounts of doctors involved the same rights to refuse treatment as is involved in respecting someone’s in torture report the presence of secu- patients outside a prison.38 Further- autonomy), then she must do what rity guards at medical examinations. more, doctors and other medical per- the torturers request. Inevitably, then, Nonetheless, in most cases, doctors sonnel have a duty to provide care to she will be complicit in the torture. remain able to talk to their patient- prisoners at the same standards as for However, if that the doctor treats the prisoners, and they are able to ask nonprisoner patients.39 prisoner just because it is the prison- whether they wish to receive medical Finally, one might object that er’s request, then the degree to which care.34 For instance, in the case quoted talk of autonomy is misplaced in the she is complicit will actually be quite at the beginning of the article, a doc- context of torture. If the patient is low. This is because her intention is tor is reported to have examined the not only a prisoner, but a prisoner not to have the prisoner tortured, but prisoner more than twenty-five times who has been or will be tortured, to follow his health care wishes. (This and conversed with him on more then one might argue that she faces assumes that if the prisoner asked for than half of those occasions.35 Admit- too much coercion to be capable of treatment that differed from what the tedly, eliciting treatment preferences autonomous action. However, this authorities had requested, then the from prisoners in places where they objection conflates autonomy with doctor would follow that course in- are tortured is unlikely to reach the liberty. Someone is autonomous—in stead, and if the authorities requested same standards for informed consent the sense that his choices should be treatment contrary to the patient’s that we aim for in more typical clini- cal care. But it is still far better for doctors to seek their patients’ views to Codes of professional ethics give physicians the best of their ability than to ignore duties to act in their patients’ interests, to respect them entirely. What should a doctor do if the their patients’ autonomy, and to refrain from any prisoner is unconscious? In such a association with torture. But sometimes fulfilling all case, she should follow the same principles laid out in guidelines for emer- of these duties at once is not possible. gency rooms and for the treatment of hunger strikers: in the absence respected—when he is capable of rea- wishes, then the doctor would re- of an expressed preference from the soning about what to do in the light fuse.) Thus, in these cases, the doc- patient, the doctor should promote of his values and making decisions on tor may provide some assistance to what is in the presumed best medical that basis. This is a capacity that does the torturers, but, not sharing their interests of the patient.36 fHowever, i not rely on having the ability to carry wrongful intentions, she is minimally and when the patient is conscious and out his decisions—that is, on hav- complicit. competent, his preferences trump the ing sufficient liberty. So long as the This case can be helpfully con- principle of medical beneficence. prisoner is capable of making an au- trasted with an alternative motiva- Once he has been revived, these pref- tonomous choice about his care, that tion. Consider a second doctor, who erences should be elicited. choice should be respected; the fact does as the torturers request and treats Someone might object that pa- that his liberty is very constrained is the prisoner because that is what she tients who are also prisoners do not no reason to deny him this piece of is paid to do. Imagine this doctor de- have medical rights as extensive as control over his life. fending her actions by pointing to her those of other patients, and so their benign intentions: “I was just doing preferences should not always be re- Patient-Centered Reasons and my job—I didn’t want the prisoner spected even when they can be elic- Complicity in Torture to be tortured!” Such a defense would ited. For example, prisoners may not seem fake, and our earlier analysis refuse treatment for a medical condi- n working out the ethics of a par- of complicity can explain why. This tion such as active tuberculosis—a Iticular complicit act, it is impor- doctor may indeed have the ultimate condition that poses a risk to other tant to note the relationship between goal of being paid. But a necessary inmates or to the security of the insti- respecting the prisoner’s welfare or proximate intention for reaching this tution. But such limits on the right to preferences and a doctor’s degree of goal is that she carries out the orders refuse treatment are no different than complicity in torture. To return to of her superiors, and this requires that limits that also apply to nonprisoners the previous example, if the prisoner she intentionally facilitate torture. living in confined settings.37 Both the asks for treatment, the same action is Thus, she intends a wrongful act: Geneva Convention on the rights of simultaneously the one requested by helping people carry out torture. Our war prisoners and the preponderance the torturing authorities and by the first doctor, on the other hand, need

May-June 2011 HASTINGS CENTER REPORT 43 not intend anything of the sort. She A related possible objection is that Second, even in a case in which we does what the torturers request, but complicity in torture could require can make sense of someone appealing not because they request it, and so doctors to sacrifice their personal in- to her integrity in spite of our argu- need not share any of their wrongful tegrity. Here the objection is not that ments, it does not follow that she is intentions. Her contribution is only complicity in torture is inconsistent ethically permitted to refuse to be instrumental. with the values that make up the role complicit. Even those philosophers These are fine distinctions, but morality of a physician, but that it who defend the importance of integ- important: with them we can sepa- may be inconsistent with the deeply rity acknowledge that there can come rate hypocritical doctors who are re- held values of individual physicians. a point when other factors outweigh ally part of the torturing institution Arguments like this have been devel- the importance of maintaining in- from doctors who are struggling to oped to defend limited forms of con- tegrity and that an agent therefore serve their patients under difficult scientious objection for physicians,42 ought to act contrary to her personal circumstances. and to argue against moral theories values.45 Hence, integrity becomes that require individuals to sacrifice just another of the considerations Potential Objections their personal projects whenever do- that must be factored into the com- ing so could attain a greater good.43 plex moral calculus and weighed with omeone might accept the analysis In both cases, the form of argument the disvalue of complicity, the conse- Sgiven so far, agree that ordinary is the same: to ask someone to act in quences of different courses of action, people faced with difficult dilemmas a way that is inconsistent with her and the patient’s preferences. like the ones we describe sometimes deeply held values threatens her iden- Moral integrity is an important ought to be complicit in wrongdo- tity as a moral agent. Hence, people concern, and one that should not be ing, but deny that the analysis applies have a prerogative not to act in such dismissed out of hand. But the appeal to physician complicity in torture. ways. Might a physician legitimately to integrity in the face of another’s Physicians have general ethical du- refuse to be complicit in torture on wrongdoing is neither always applica- ties like everyone else, but they have the grounds of personal integrity in ble nor decisive where it is applicable. additional special duties in virtue of cases like the ones we describe? May- being physicians. (Similarly, nurses, be, but such a refusal is neither eas- Dealing with Medical psychologists, and so forth each have ily defended nor morally decisive if Complicity in Torture their own role-based duties.) Some defended. commentators believe that these du- Note first that an appeal to person- ther things being equal, it is bet- ties imply that they should never be al integrity must cite more than the Oter for a physician not to be com- complicit in torture.40 For example, doctor’s moral opposition to torture. plicit in torture. But other things are some argue that the physician’s role The arguments of this paper start rarely equal, and as we have argued, a as healer entails that she has a spe- from the premise that the torture we physician ought sometimes to accept cial duty to refrain from actions that are considering is immoral, and we complicity in torture for other moral cause harm, and this includes any assume that the physicians we address reasons. Even in such cases, however, form of support for torture.41 agree with this judgment. We have ar- she should do what she can to mini- We believe that such objections gued that even if this is true, there are mize her complicity in wrongdoing. miss the force of the problem with cases in which a physician ought to This can be achieved by assessing and which we began. The dilemmas we act in a way that is complicit in acts minimizing the two component parts describe arise because different prin- of torture. Someone who rejects this of complicity: shared intentions and ciples, all of which are internal to conclusion on the grounds of integ- assistance. the role of the physician, come into rity must therefore argue that there is The first important way to mini- conflict. Codes of professional ethics something particular about her values mize complicity is to ensure that give physicians duties to act in the in- that makes acts complicit in torture wrongful intentions are not shared terests of their patients (even at some worse for her than for other similarly with the wrongdoers. In the case of risk to themselves), to respect patient situated people. Further, she must ar- medical complicity in torture, this autonomy, and to refrain from any gue that complicity in torture would may be achieved primarily through form of association with torture. But violate her integrity more than would the doctor taking as her intentions sometimes it is not possible to fulfill abandoning a patient in need. After just those reasons that justify her all of these duties at once. Reference all, another doctor may be equally ap- complicit actions. If, for example, the to the role morality of physicians palled by torture yet believe that she reason that she should provide im- therefore does not resolve these di- ought to act in a way that minimizes mediate supportive care is that this lemmas; rather, it shows why they are the damage torture causes, whether is in the medical interests of an un- so difficult. that makes her complicit or not.44 conscious patient, then she should be resuscitating him only because it is in

44 HASTINGS CENTER REPORT May-June 2011 his interests. Or, if the reason that she occurrence of torture and to provide suggests that proper enforcement of should treat a condition that would them to investigative bodies as soon the prohibition on medical participa- otherwise preclude the patient from as possible. Where physicians have tion in torture is very unlikely. From interrogation on medical grounds been coerced into assisting with tor- the Nuremberg trial to the present, is that this is exactly what the pa- ture, they have often been among the only thirty-five physicians are known tient requested, then she should be first sources of essential information to have been held accountable for treating him because it is what he for international tribunals pursuing involvement in torture—a trivial requested. The physician and tortur- justice.46 number compared to the number of ers may then share some of the same Medical associations also have a physicians reported as being involved, subsidiary goals, such as keeping the role to play in dealing with medical and even more trivial compared to patient/prisoner alive, but will have complicity. Medical participation in the number of physicians who have quite different ultimate goals, whose torture is blankly condemned by all been involved in torture but have moral evaluations are diametrically associations, all professional codes of not been reported at all.48 But even opposed. ethics, and a majority of legal codes if enforcement were possible, and so The second feature of complicity worldwide. Should these codes be physicians who were involved with concerns the assistance provided by changed, given the arguments in torture could expect to be excluded the physician to the torturer. Con- this paper, to reflect the complexi- from the medical community, this sider the example of a doctor who ties faced by physicians working in would not fully solve the problem. is asked to provide a certificate of extreme conditions? Alternatively, Excluding from the medical com- fitness for a prisoner. The doctor is aware that her certificate will be used to tailor the torture to the prisoner’s Excluding from the medical community any health condition, so that it will be as physician who assists with torture penalizes “effective” and “safe” as possible. She also knows that refusing to write the those who must work in countries where torture certificate would put the patient at is widespread and is unfair to doctors willing to undue risk because (let’s say) of a pre- existing heart problem. In the course compromise themselves for their patients. A more of the doctor’s routine examination nuanced, case-by-case approach would be much in the prisoner’s cell, with a guard waiting outside, she asks the prisoner preferable. whether he wants to receive medical care. When the prisoner expresses should these codes be strongly en- munity any physician who assisted a strong preference to be kept alive forced in every case, despite the ethi- with torture, no matter what the jus- despite the torture, the physician ac- cal reasons some doctors may have to tification, would penalize physicians cepts her complicity and writes the be complicit in torture? We believe who have to work in countries where certificate mentioning the heart con- that both of these options would be torture is widespread and would be dition. In this case, however, in order mistaken. unfair to doctors willing to compro- to minimize complicity, the physician First, we do not think that these mise themselves for the sake of their should not write a standard certifi- arguments provide sufficient reason patients. These considerations sug- cate, which would cover all aspects of to alter the clear, simple rules cur- gest that a more nuanced, case-by- the patient’s health and might there- rently promulgated in the codes. The case approach to enforcement would fore unnecessarily expose weaknesses value of these rules is threefold. First, be much preferable and have a greater to the torturers. Instead, she should they constitute a powerful condem- prospect of being effective. focus her report on the risks of death nation of torture. Second, they have One possible option would be to the patient would be exposed to, and an aspirational character: they look create an international self-reporting avoid any additional information that forward to a world in which there is system—a sort of “ethical ombuds- might abet the torture, such as the never a reason for a medical profes- man” whom physicians could con- patient’s fear of death. sional to be associated with torture. fidentially approach to report cases A physician can further reduce her And third, they provide a defense for of coercion or special circumstances complicity if, while complicit, she doctors who should not be involved that prompted medical complicity carries out acts that mitigate, prevent, in torture, and should be able to cite in torture. Such a system could pro- or help redress acts of torture. For binding rules that forbid them from vide the necessary support for physi- example, one way to compensate for being involved.47 cians who face complex choices and complicity is to secretly collect data However, the enforcement of the strengthen their witnessing capacities that can be used for reporting the codes is a different matter. History for international tribunals. It would

May-June 2011 HASTINGS CENTER REPORT 45 also constitute a body that could Service, or the Department of Health and the extraction of information from one help differentiate cases that require and Human Services. another: the same act may serve all these and deserve support from the plainly functions. References 10. G. Maio, “History of Medical In- criminal cases of willing or careless volvement in Torture—Then and Now,” participation in torture. 1. Amnesty International, “Doctors and Lancet 357 (2001): 1609-1611. This is just one suggestion; the key Torture,” Amnesty International annual 11. Geneva Conventions, Convention report (New York: Amnesty International, (IV) Relative to the Protection of Civilian point is that whatever system is used, 2002). it should be designed to take into ac- Persons in Time of War, 1949. 2. Pentagon’s Joint Task Force at Gitmo, 12. United Nations, Principles of Medical count the ethical complexities of the “Interrogation Log Detainee 063 in SE- Ethics (1982): Resolution 37/194 (Geneva, situations in which doctors can find CRET ORCON—Classified Army Docu- Switzerland: United Nations, 1982). themselves when they work in con- ments,” 2002–2003, Guantanamo: U.S. 13. World Medical Association, “Dec- Army, p. 83. laration of Tokyo: Guidelines for Medical texts where torture takes place. While 3. “On another occasion *** said he had it may be unflagging in its denuncia- Doctors,” World Medical Journal 22, no. 6 to intercede after **** expressed concern (1975): 87-90; World Medical Association, tion of torture, it should provide sup- that Al Nasihiri’s arms might be dislocated World Medical Association Declaration on port to doctors who want to do the from his shoulders. *** explained that, at Hunger Strikers, November 1991 (revised right thing in difficult circumstances. the time, the interrogators were attempt- in 1992 and 2006), http://www.wma.net/ ing to put Al Nasihiri in a standing stress en/30publications/10policies/h31/index. Physicians who assist in torture position. Al Nasihiri was reportedly lifted without regard for its victims may html; American Medical Association, “Op- off the floor by his arms while his arms posing Cooperation of Physicians and rightly be condemned. However, were bound behind his back with a belt.” Health Professionals in Torture,” Resolu- doctors sometimes find themselves C.I.A. Inspector General, “Special Review; tion 10 (amendment, A-05), June 18, 2005; presented with the grim choice of Counterterrorism Detention and Interroga- American College of Physicians, “The Role tion Activities (September 2001–October of the Physician and the Medical Profession either abandoning a patient or be- 2003),” Central Intelligence Agency, docu- ing complicit in torture. Such doc- in the Prevention of International Torture ment number 2003-7123-IG, p. 44. and in the Treatment of Its Survivors,” An- tors face a genuine ethical dilemma. 4. Ibid., 77. nals of Internal Medicine 122, no. 8 (1995): Here, we have outlined the factors 5. L.S. Rubenstein and S.N. Xenakis, 607-613; American Psychiatrists Associa- that should be considered when de- “Roles of CIA Physicians in Enhanced tion and American Psychologists Associa- Interrogation and Torture of Detainee,” tion, “Against Torture: Joint Resolution of ciding how to respond to these dilem- Journal of the American Medical Association mas: the expected consequences of the American Psychiatric Association and 304 (2010): 569-70; O.V. Rasmussen et al., the American Psychological Association,” the doctor’s actions, the wishes of the “The Ethical and Legal Responsibilities of 1985 Position Statement, http://www.apa. patient, and the extent of the doctor’s the Medical Profession in Relation to Tor- org/news/press/statements/joint-resolu- complicity with wrongdoing. Since ture and the Implications of Any Form of tion-against-torture.pdf; World Psychia- Participation by Doctors in Torture,” Medi- complicity is a matter of degree and trists Association, “Madrid Declaration on cine and War 8, no. 1 (1992): 44-47. Ethical Standards for Psychiatric Practice,” other moral factors may have great 6. D. Luban, “Unthinking the Ticking August 25, 1996 (revised in 1999, 2002, weight, sometimes the right action Bomb,” in Global Basic Rights, ed. C.R. and 2005), http://www.wpanet.org/detail. involves medical complicity in tor- Beitz and R.E. Goodin (New York: Ox- php?section_id=5&content_id=48. ture. Consequently, the problem of ford University Press, 2009), 181-206; on 14. Amnesty International, “Report extreme cases: M. Gross, “Doctors in the medical involvement in torture will 2009: The State of the World’s Human Decent Society: Torture, Ill-Treatment and Rights,” Amnesty International annual re- not be resolved by blanket denuncia- Civic Duty,” Bioethics, 18, no. 2 (2004): port, 2009. tions of complicity. Instead, associa- 181-203. 15. O.V. Rasmussen, “The Involvement tions of medical professionals should 7. United Nations, Convention against of Medical Doctors in Torture: The State- take into account the circumstances Torture and Other Cruel, Inhuman or De- of-the-Art,” Journal of Medical Ethics 17, grading Treatment or Punishment (Geneva, we have described and provide more no. 4 (1991): 26-28. Switzerland: United Nations, 1984). 16. United Nations, Convention against supportive and efficacious systems of 8. J.S. Bybee, “Interrogation of al Qaeda Torture and Other Cruel, Inhuman or De- reporting for medical professionals Operative—Memorandum for John Rizzo, grading Treatment or Punishment. who face such dilemmas. Acting General Counsel of the Central In- 17. C. Lepora, “Meta-Analysis of the telligence Agency,” U.S. Department of Jus- Literature on Medical Participation in Tor- Acknowledgments tice, 2002, p. 18. ture,” personal communication to Michael 9. D. Allbrook, “Medical Participation We gratefully acknowledge helpful Gross, 2009. in Flogging and Punitive Amputation in 18. R.M. Hare, “The Ethics of Medical comments from Marion Danis, Mi- Pakistan,” Medical Journal of Australia 1, Involvement in Torture: Commentary,” chael Garnett, Christine Grady, Alan no. 10 (1982): 411. Although interroga- Journal of Medical Ethics 19, no. 3 (1993): Wertheimer, and an anonymous re- tion and punishment have quite different 138-41; M.L. Gross, Bioethics and Armed functions, both can involve torture. In both Conflict: Moral Dilemmas of Medicine and viewer for the Hastings Center Report. cases, what is wrong about the act is the The opinions expressed are the view of War (Cambridge, Mass.: MIT Press, 2006), same—it is the unjustified infliction of se- 211-44. the authors. They do not represent any vere pain or suffering. Moreover, in practice 19. S.H. Miles, Medical Ethics and the position or policy of the U.S. National it is normally difficult to separate the inflic- Interrogation of Guantanamo (New York: Institutes of Health, the Public Health tion of punishment, intimidation, coercion, Routledge, 2007), 5-11.

46 HASTINGS CENTER REPORT May-June 2011 20. M. Nowak, “What Practices Con- Repression,” Journal of Medical Ethics 17, plications of Any Form of Participation by stitute Torture? US and UN Standards,” suppl. (1991): 33-34. Doctors in Torture.” Human Rights Quarterly 28, no. 4 (2006): 33. W.J. Kalk and Y. Veriava, “Hospi- 42. D. Brock, “Conscientious Refusal by 809-841. tal Management of Voluntary Total Fast- Physicians and Pharmacists: Who Is Obli- 21. Gross, “Doctors in the Decent ing among Political Prisoners,” Lancet 337 gated to Do What, and Why?” Theoretical Society.” (1991): 660-62; T.L. Beauchamp and J.F. Medicine and Bioethics 29, no. 3. (2008): 22. F. Allhoff, “Physician Involvement in Childress, Principles of Biomedical Eth- 187-200; M. Wicclair, “Conscientious Ob- Hostile Interrogations,” Cambridge Quar- ics, 6th ed. (New York: Oxford University jection in Medicine,” Bioethics 14, no. 3 terly of Healthcare Ethics 15, no. 4 (2006): Press, 2009), 99-149. (2000): 205-227. 392-402. 34. As reported in personal correspon- 43. Smart and Williams, Utilitarianism. 23. Our use of “accessory” is related to, dence and in the literature. See J. Pagaduan- 44. Compare Thomas Nagel, who writes: but should not be conflated with, legal Lopez, “Medical Professionals and Human “First, it is a confusion to suggest that the concepts with the same name. For a com- Rights in the Philippines,” Journal of Medi- need to preserve one’s moral purity might prehensive analysis of the legal notion of cal Ethics 17, suppl. (1991): 42-50; Brennan be the source of an obligation. For if by complicity, see L. May, “Complicity and the and Kirschner, Medical Ethics and Human committing murder one sacrifices one’s Rwandan Genocide,” Res Publica 16, no. 2 Rights Violations”; V. Iacopino, “Turkish moral purity or integrity, that can only be (2010): 135-52. Physicians Coerced to Conceal Systematic because there is already something wrong 24. M.T. Brown, “Moral Complicity in Torture,” Lancet 348 (1996): 1500. with murder. The general reason against Induced Pluripotent Stem Cell Research,” 35. Pentagon’s Joint Task Force at Git- committing murder cannot therefore be Kennedy Institute of Ethics Journal 19, no. 1 mo, “Interrogation Log Detainee 063 in merely that it makes one an immoral per- (2009): 1-22. SECRET ORCON – Classified Army son. Secondly, the notion that one might 25. “You would like to place Zubaydah Documents,” Guantanamo: U.S. Army, sacrifice one’s moral integrity justifiably, in in a cramped confinement box with an in- 2002–2003, p. 83. the service of a sufficiently worthy end, is an sect. You have informed us that he appears 36. World Medical Association, “World incoherent notion. For if one were justified to have fear of insects. In particular, you Medical Association Declaration on Hun- in making such a sacrifice (or even morally would like to tell Zubaydah that you intend ger Strikers”; B. Arda, “How Should Physi- required to make it), then one would not be to place a stinging insect into the box with cians Approach a Hunger Strike?” Bulletin sacrificing one’s moral integrity by adopting him. You would, however, place a harmless of Medical Ethics 181 (2002): 13-18. that course: one would be preserving it”; T. insect in the box”; Bybee, “Interrogation of 37. F.R. Parker and C.J. Paine, “In- Nagel, “War and Massacre,” Philosophy and al Qaeda Operative,” 18. formed Consent and the Refusal of Medi- Public Affairs 1, no. 2 (1972): 123-44, at 26. J.J.C. Smart, and B.A.O. Williams, cal Treatment in the Correctional Setting,” 132-33. Utilitarianism: For and Against (Cambridge, Journal of Law, Medicine and Ethics 27, no. 45. Smart and Williams, Utilitarianism, U.K.: Cambridge University Press, 1973), 3 (1999): 240-51. 117; Wicclair, “Conscientious Objection in 87-100. 38. “Every human being of adult years Medicine,” 218. 27. C. Kutz, Complicity: Ethics and Law and sound mind has a right to determine 46. Brennan and Kirschner, “Medical for a Collective Age (Cambridge, U.K.: what shall be done with his own body; Ethics and Human Rights Violations: The Cambridge University Press, 2000), 74-81. and a surgeon who performs an operation Iraqi Occupation of Kuwait and its Af- 28. T. Keneally, Schindler’s Ark (London, without his patient’s consent commits an termath”; Seelmann, “The Position of the U.K.: Hodder and Stoughton, 1982). assault, for which he is liable in damages”; Chilean Medical Association with Respect 29. C.A.A. Reis et al., “Physician Par- Court of Appeals of New York, Mary E. to Torture as an Instrument of Political ticipation in Human Rights Abuses in Schloendorff, Appellant, v. The Society of the Repression.” We should point out that it Southern Iraq,” Journal of the American New York Hospital, Respondent 1914; Ge- is not a physician’s primary duty to collect Medical Association 291 (2004): 1480-86; neva Conventions, Convention (IV) Relative evidence against torture, and no physician T.A. Brennan and R. Kirschner, “Medical to the Protection of Civilian Persons in Time would be “excused” for participation in tor- Ethics and Human Rights Violations: The of War; D. Bertrand and T. Harding, “Euro- ture on the grounds that she did it only to Iraqi Occupation of Kuwait and Its After- pean Guidelines on Prison Health,” Lancet collect evidence. Reporting could be a com- math,” Annals of Internal Medicine 117, no. 342 (1993): 253-54. pensatory practice only for physicians who 1 (1992): 78-82. 39. “Principle 1: Health personnel, par- have been coerced into assisting torture, 30. For instance, Norman Daniels ar- ticularly physicians, charged with the medi- or who were justifiably complicit on the gues that, in the years when HIV was still a cal care of prisoners and detainees have a grounds we have suggested. deadly condition, doctors and dentists had duty to provide them with protection of 47. P.B. Polatin, J. Modvig, and T. Rytter, a duty to treat HIV-positive patients. The their physical and mental health and treat- “Helping to Stop Doctors Becoming Com- “moderate risk” of contracting the disease ment of disease of the same quality and plicit in Torture,” British Medical Journal they undertook was not different from sim- standard as is afforded to those who are not 340 (2010): c973. ilar risks they agreed to expose themselves imprisoned or detained”; United Nations, 48. S. Miles and A. Freedman, “Medical to when they become doctors; N. Daniels, Principles of Medical Ethics (1982): Resolu- Ethics and Torture: Revising the Declara- “Duty to Treat or Right to Refuse?” Hast- tion 37/194. See also C. Lepora, M. Danis, tion of Tokyo,” Lancet 373 (2009): 344-48. ings Center Report 21, no. 2 (1991): 36-46. and A. Wertheimer, “No Exceptionalism 31. S.H. Miles, “Torture: The Bioethics Needed to Treat Terrorists,” American Jour- Perspective,” in From Birth to Death and nal of Bioethics 9, no. 10 (2009): 53-54. Bench to Clinic: The Hastings Center Bioeth- 40. S.H. Miles, “Doctors’ Complicity ics Briefing Book for Journalists, Policymakers, with Torture—Time for Sanctions,” British and Campaigns, ed. M. Crowley (Garrison, Medical Journal 337 (2008): a1088. N.Y.: The Hastings Center, 2008). 41. Rasmussen et al., “The Ethical and 32. G. Seelmann, “The Position of the Legal Responsibilities of the Medical Pro- Chilean Medical Association with Respect fession in Relation to Torture and the Im- to Torture as an Instrument of Political

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