Dual Loyalty & Human Rights In Health Professional Practice; Proposed Guidelines & Institutional Mechanisms A Project of the International Dual Loyalty Working Group A Collaborative Initiative of Physicians for Human Rights and the School of Public Health and Primary Health Care University of Cape Town, Health Sciences Faculty Table of Contents Copyright Information About Physicians for Human Rights About the University of Cape Town Preface and Acknowledgements I. Introduction o The Problem of Dual Loyalty and Human Rights o The Concept of Dual Loyalty o Dual Loyalty and Human Rights o Human Rights, Bioethics and the Resolution of Dual Loyalty Conflicts o The Obligation of Health Professionals to Respect Human Rights o Dual Loyalty and Human Rights: The Need for this Project o Scope of the Project and Products II. Dual Loyalty and Human Rights:The Dimensions of the Problem o Using medical skills or expertise on behalf of the state o Subordinating independent medical judgment, in therapeutic or evaluative settings o Limiting or denying medical treatment or information related to treatment to an individual o Disclosing confidential patient information to state authorities or powerful non-state actors o Performing evaluations for legal or administrative purposes o Remaining silent in the face of human rights abuses committed against individuals and groups in the care of health professionals III. Proposed General Guidelines for Health Professional Practice IV. Proposed Guidelines for Practice in Difficult Settings o Prison, Detention and Other Custodial Settings o Health Care for Refugees and Immigrants o Health Professionals in the Workplace o Health Professionals Engaged in Forensic Evaluations o Military Health Professionals V . Institutional Mechanisms to Promote Human Rights in Health Practice o Introduction o Objectives of the Institutional Mechanisms o Institutional Mechanisms by Strategy Employment relationships Administrative and legal arrangements to preserve professional independence Peer review, professional credibility, support Monitoring Education and Training Accountability Collective action by the professions o Institutional Mechanisms by Stakeholders/Agents Roles for Professional Organizations: National Roles for Professional Organizations: International Roles for Statutory (licensing) Bodies Roles for Civil Society Roles for Government Role of the United Nations and Related International and Regional Intergovernmental Bodies Role of Training and Research Institutions VI . Appendices o Appendix 1: Works Cited o Appendix 2: Relevant Treaties, Professional Codes and Declarations Footnotes Copyright Information © 2002, Physicians for Human Rights and School of Public Health and Primary Health Care, University of Cape Town, Health Sciences Faculty All rights reserved. Printed in the United States of America. ISBN 1-879707-39-X Library of Congress Control Number: 2003101403 Cover and report design: Glenn Ruga/Visual Communications About Physicians for Human Rights Physicians for Human Rights (PHR) promotes health by protecting human rights. PHR believes that respect for human rights is essential for the health and wellbeing of all members of the human family. Since 1986, PHR members have worked to stop torture, disappearances, and political killings by governments and opposition groups and to investigate and expose violations, including: deaths, injuries, and trauma inflicted on civilians during conflicts; suffering and deprivation, including denial of access to health care, caused by ethnic and racial discrimination; mental and physical anguish inflicted on women by abuse; exploitation of children in labor practices; loss of life or limbs from landmines and other indiscriminate weapons; harsh methods of incarceration in prisons and detention centers; and poor health stemming from vast inequalities in societies. PHR also works to protect health professionals who are victims of violations of human rights and to prevent medical complicity in torture and other abuses. As one of the original steering committee members of the International Campaign to Ban Landmines, PHR shared the 1997 Nobel Peace Prize. Along with three other organizations, at the request of the Truth and Reconciliation Commission of South Africa, PHR prepared a report, Human Rights and Health: The Legacy of Apartheid, a review of human rights and ethical violations committed by members of the South African health professions under apartheid. PHR has been at the forefront of integrating human rights and bioethics. Along with the American College of Physicians and other organizations, PHR published Breach of Trust, which analyzed the role of physicians in capital punishment. PHR has also been at the forefront of developing and sponsoring academic courses that integrate bioethics and international human rights at medical schools and schools of public health. About the University of Cape Town The University of Cape Town (UCT) is a leading academic institution in South Africa. Its Health Sciences Faculty has been deeply engaged in addressing human rights in the health sector, including research to promote human rights, sponsoring courses in health and human rights as part of its undergraduate and postgraduate programs, and its own post-apartheid institutional reconciliation process. Through these activities it is actively grappling with key transformation challenges facing training institutions for health professionals in South Africa at present. Along with the Trauma Centre for Survivors of Violence and Torture, the Department of Public Health of UCT, Health Sciences Faculty sponsored the Health and Human Rights Project, which provided technical assistance to South Africa’s Truth and Reconciliation Commission in connection with the Commission’s hearings on human rights violations in the health sector. It also prepared a comprehensive review of human rights abuses in the health sector during apartheid, entitled The HHRP Final Submission to the TRC: Professional Accountability in South Africa (1997). The HHRP was instrumental in establishing a regular series in the South African Medical Journal focusing specifically on human rights and health. Physicians for Human Rights 100 Boylston St., Suite 702 Boston, MA 02116 Tel. (617) 695-0041 Fax. (617) 695-0307 Email: [email protected] Web: www.phrusa.org UCT Health Sciences Faculty Anzio Rd. Observatory 7925 South Africa Web:www.uct.ac.za/departments/publichealth Preface and Acknowledgements This project grew out of a disturbing trend: Governments and other third parties often demand that health professionals put allegiance to their patients aside, in deference to the demands of these powerful actors — often in a manner that violates patients’ human rights. Although documentation of this ethical and human rights problem, referred to here as the problem of dual loyalty and human rights — has been most thorough in South Africa, it is unfortunately a worldwide phenomenon. However, it is little recognized and rarely discussed. Indeed, in the course of this project we were surprised to see how few materials for guiding professional practice and institutional structures exist, even in organizations where this problem is pervasive, such as the military. The report of South Africa’s Truth and Reconciliation Commission (TRC) documenting the complicity of health professionals in the apartheid regime, provides a particularly compelling illustration of the problem. The TRC report, based on hearings about human rights violations in the health sector, showed how health professionals had been complicit or silent in the face of torture as well as active participants in institutionalized racism in health services. The report urged the adoption of effective standards of conduct in situations of potential dual loyalty, as well as institutional arrangements and educational programs to ameliorate the problem. We believe the dual loyalty problem needs the urgent attention of individual health professionals, national and international organizations of health professionals, international standard-setting bodies, governments, and civil society. For that reason, Physicians for Human Rights (USA) and the University of Cape Town Health Sciences Faculty (South Africa) brought together a working group of individuals from the health community experienced in human rights, as well as scholars and practitioners in bioethics, human rights and law, from South Africa and internationally, to address the problem. We are grateful to the Greenwall Foundation for its generous support of this project. The goals of the project are: (1) to identify the problem of dual loyalty and human rights in its many dimensions; (2) develop an approach to the problem that stems from internationally-accepted human rights standards; (3) produce a set of proposed guidelines for health professionals that would apply to all professional practice and a set of specialized guidelines in settings that raise particularly troublesome human rights and ethical issues; and (4) propose institutional arrangements that can help prevent conflicts between a patient’s human rights and state or other powerful interests in the first place. The Working Group convened for a meeting in November, 2000 in Durban, South Africa to review the dimensions of the problem, to take up the role of bioethics in addressing dual loyalty and human rights and, to begin work on appropriate responses. The participants in the Durban meeting are listed below. One product of the conference in Durban