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The Tortured Patient a Medical Dilemma

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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 ac- tion; 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 argu- ment. 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 n I 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 r o 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.
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