Spring, 2005
This article was adapted from the transcript of a forum presented by the Harvard Medical School, Division of Medical Ethics, in March 2005. The forum was moderated by Mildred Z. Solomon, EdD, Associate Clinical Professor of Social Medicine, Medical Ethics and Anaesthesia, who is Director of Clinical Research for the Division of Medical Ethics and Director of the HMS Fellowship in Medical Ethics. Panelists included Steven Miles, MD, Professor of Medicine at the Center for Bioethics at the University of Minnesota Medical School; Leonard Rubenstein, JD, Executive Director of Physicians for Human Rights; and Robert Jay Lifton, MD, Lecturer in Psychiatry, Harvard Medical School/Cambridge Health Alliance and Distinguished Professor Emeritus of Psychiatry and Psychology, City University of New York.
Mildred Solomon: In May 2004, photographs taken at the Abu Ghraib Prison revealed shameful abuses of prisoners and tarnished the image of the United States worldwide. Subsequently, it became apparent that military medical personnel had been complicit with these behaviors. Although these revelations are deeply disturbing, they are not unique events. Medical professionals often find themselves in circumstances of “dual loyalty,” where they must choose between responsibility for individuals in need of care and demands placed upon them by the state or another entity.
With Abu Ghraib and Guantanamo as case examples, this forum explores the problem of “dual loyalty” and its implications for medical professionalism and human rights. Our panelists will address three questions: How were military medical professionals involved at Abu Ghraib and Guantanamo? What guidelines currently exist to guide health care professionals when they are in situations of dual loyalty? What makes it difficult for individual physicians and health care providers to abide by such guidelines?
Steven Miles: The information I am going to share with you is based on approximately 14,000 pages of government documents, including Congressional testimony and military investigations which became public, thanks to a Freedom of Information lawsuit filed by the American Civil Liberties Union and other organizations. These reports and investigations show how military medical professionals acted in ways that are prohibited by the Geneva Conventions and violated medical codes of professional conduct.1-2
The Geneva Conventions prohibit violence to life and person, murder, mutilation, cruel treatment and torture, outrages upon personal dignity, humiliation and degrading treatment at any time and any place. Coercion may not be used to secure any information. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.3-4
The “counter-resistance” techniques employed by the guards at Abu Ghraib and Guantanamo included the use of dogs, nudity, stress positions, exposure to heat and cold, and isolation. These coercive techniques are all disallowed by Geneva. The guards’ behavior may be directly traced to the policies of senior US officials. The founding Presidential Directive says, “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”5 The operative phrase here is “to the extent appropriate and consistent with military necessity,” which creates the loophole the Administration was seeking. The Secretary of Defense essentially took this language, and it flowed down the chain of command to guide behavior at Guantanamo and then in Iraq and presumably in Afghanistan.
The Geneva Conventions also say that the detaining authority has to provide adequate medical care and sanitation services for detainees and must maintain adequate records. The Army Inspector General’s own investigation6-7 found that authorities at detention centers throughout Iraq failed to insure proper treatment of persons with disabilities, injuries and illnesses. Food was poor, and in some instances debasing, including for example, the provision of jambalaya to Islamic prisoners. There were no monthly health inspections, no weights were measured to assess whether diets were adequate. There were no TB screenings, even though active cases were discovered. In Iraq and Afghanistan, the military often failed to create internment cards, which are medical records that both protect detainees’ health and serve as a method of accountability in subsequent investigations of abuse. Families were not notified of the fact that a loved one was incarcerated. Families were not told if their loved one had been transferred to another medical facility, nor, if someone died, what had happened to the remains.
Department of Defense policy also actively involved medical personnel in designing and supervising coercive interrogations. Secretary of Defense Rumsfeld and Abu Ghraib policy called for medical clearance of wounded or medically burdened detainees prior to interrogation and medical supervision of coercive “diet manipulations” and “sleep management.” In addition, clinicians who were treating prisoners shared medical information about the detainee with military intelligence, so that presumably physically coercive interrogations could be tailored to that individuals’ psychosocial and medical assessment. Such complicity violates principles established in numerous medical ethics codes and international treaties.8-10
When injuries were noted, physicians often failed to investigate or report their true cause. Sometimes physicians and nurses failed to sign their notes, so that when criminal investigators went back to evaluate a torture-related injury, they were not able to identify the clinician who had seen the patient.
Physicians collaborated in completing and releasing false, delayed and misleading death certificates. Death certificates fail to give detainee identification numbers, city locations, the institution where death occurred or the deceased’s age. Major findings and circumstances of death are missing from many death certificates. The autopsy records and photographs are classified. Next of kin are not listed, although such data are easily obtainable upon admission. Failure to note next of kin was part of a system of not notifying families that loved ones had died. The dates and signatures of many death certificates suggest that they were prepared as a batch for a military press conference rather than as part of an orderly forensic investigation.
Finally, there was wholesale failure to report injuries due to torture. Even though these abuses did not become public until mid-2004, they had been going on since 2002. They were well known to human rights organizations, yet I cannot find a single report by any military medical professional protesting these events, prior to the mid-2004 public controversy.
Leonard Rubenstein: The problems raised for military physicians at Abu Ghraib and elsewhere concern the problem of dual loyalty. Dual loyalty means that there is a role conflict between a physician’s obligations to the patient and an obligation to some third party, usually the state. The third party could be an employer, a health plan or some other entity. Clinicians sometimes experience this conflict when managed care organizations restrict the kind of care they can offer. Problems of dual loyalty are especially vexing when it is the state making the demand for adherence to its objectives and providing external pressure to accomplish them.
Dual loyalty is not always prohibited or a violation of ethical obligations. Under certain circumstances, it can serve a legitimate social purpose. That’s the problem with dual loyalty: It’s not simple. In the case of a patient who threatens to harm a third party or where the clinician suspects a patient is engaging in child abuse, the obligation to report supersedes the obligation of confidentiality. Why? Because there is a strong social interest in protecting innocent people from harm, even if it results in harm, even incarceration, to the patient. In these instances, there’s a clear and legitimate social interest that overrides a physician’s loyalty to his or her patient.
The problem is not that dual loyalty exists. The problem is that legitimate and illegitimate social interests are not distinguished from one another in any cohesive, rigorous or consistent way.
The most serious dual loyalty conflicts are ones that lead to violations of human rights and involve health professional complicity in those violations. So the bright line is this: If the social purpose involves using the medical role to further a violation of someone’s human rights, the physician should not yield to the state’s interests.
There are many kinds of inappropriate conduct where the health professional becomes an instrument or facilitator of a violation of the human rights of an individual in one’s care, and physicians often find themselves in these situations. I will describe four.
Pressure to compromise one’s medical judgment. In Turkey, in Mexico and in many other parts of the world, doctors who examine detainees are under very severe pressure from authorities not to record medical evidence of torture in the medical record. So they don’t do it; they just leave it out.
Imposition of medical procedures to serve state interests. Sometimes, and this is more common than you might think, medical procedures are imposed on people solely to serve state or social interest, not patient interest. For example, health professionals have become involved in imposing punishments. In Iraq, under Saddam, physicians amputated the ears of political prisoners; in the United States, physicians have performed lethal injections. Elsewhere, physicians perform forced sterilizations or engage in “virginity examinations.”
Lower quality of care. Sometimes, a segment of the population consistently and systematically receives lower quality of care than that available to other groups within the same society. In apartheid-era South Africa, blacks were explicitly given less care than whites, and physicians participated in those lower standards of care, adopted and abided by them.
Formal and informal gag rules. Medical professionals are sometimes prohibited by law, or hindered by culture or the pressures of the social setting, from providing necessary information, essential for supporting a person’s health. The most common example is the denial of information to women about reproductive health. In other cases, physicians are asked not to report injuries or not to document the cause of injuries.
All four of these dual loyalty circumstances involve violations of human rights, and that is why they are unacceptable.
Part of the problem in trying to sort out where social interests are legitimate—and thus can result in a compromise of loyalty to the patient—and when they are not derives from the traditional ethical framework that has been used to guide the professional behavior of physicians and other health care providers. Typically, clinicians are taught to balance four competing principles (beneficence, non-maleficence, autonomy and justice) in order to figure out how best to handle the ethical dilemmas they face. Yet, these four principles rarely consider conflicts with the state or potential human rights violations.
There are also process concerns with the traditional approach. Consider the situation of health professionals being asked to advise interrogators about a person’s medical condition for the purpose of interrogation. These interrogations aim, presumably, to stop terrorism. Even putting aside the question of whether a health professional should ever aid a particular interrogation, how is a clinician supposed to have the competence to know whether the information needed is so important as to warrant a breach of confidentiality?
We can resolve these problems through a human rights framework, based on international humanitarian law, as articulated in the Geneva Conventions, as well as on human rights law. We take it as a given that physicians and other health personnel should not be instruments of human rights violations. Moreover, in cases where human rights may be at stake, clinicians should not attempt to evaluate the strength of the social purpose or try to balance competing obligations, as one would in a clinical case. The default position should be loyalty to the patient. Clinicians have neither the information nor the competence to assess the legitimacy or relative weight of the state’s demands. Only a competent standard-setting body, which can also take into account the human rights at stake, should authorize a departure from loyalty to the patient.
Ethical requirements alone, moreover, won’t assure that health professionals avoid complicity in human rights violations. We need to build mechanisms that protect clinicians from the pressures the state places on them.
The International Dual Loyalty Working Group, jointly convened by Physicians for Human Rights and the University of Cape Town in South Africa, developed both general guidelines and ones tailored to five particularly vexing areas: prisons, the military, refugees, forensic evaluations and the workplace.11
The guidelines call for training health care professionals in human rights and for developing the skills necessary for recognizing situations of dual loyalty. Instead of asking the individual clinician to make his or her own assessment as to whether state interests should supercede loyalty to the patient, there should be a standard-setting authority competent to define human rights obligations. Any deviations of loyalty to the patient should also be disclosed.
The proposed military guidelines start with the premise that a military doctor is a doctor first. Military physicians should follow civilian medical ethics, including confidentiality, and shouldn’t participate in torture or cruel, inhuman or degrading treatment. Violations must be reported.
To support health professionals in these situations, we recommend appeals mechanisms and protective mechanisms for clinicians who speak up against abuse.
It’s not that health care professionals can never play any role in advising military personnel about the process of interrogation. Some methods of interrogations do not violate human rights or result in harm to the person. For example, psychologists could contribute to the design of non-coercive techniques to encourage cooperation. But even in that role, the question is who decides. The Working Group’s position is that these decisions should not be left to individual clinicians nor should the command authority make them. There should be a special military ethics commission, which is an independent third party that can develop the necessary competence for assessing the competing demands and determine the human rights at stake.
It is not easy. We need clarity about the roles and responsibilities of people in different positions; we need reporting relationships that deny command authority to interrogators, custodians and base commanders; we need an independent source of authority for ethical guidance, and we need protection of independent professional judgment. That way we can avoid medical complicity.
Mildred Solomon: Our next speaker is best known for his work on Nazi medicine.12 However, we did not invite Professor Lifton because the actions of US military physicians are in any way equivalent to the actions of Nazi physicians. None of us, including Dr. Lifton, believe that to be the case. Rather, Professor Lifton’s research on the very extremity of Nazi doctors’ violations can help shed light on less extreme violations, which are nonetheless troubling.
Robert Jay Lifton: As physicians, we are heirs to shamans and witch doctors, and we still carry about us something of an aura of magic, omnipotence and power over life and death. We can be seen as gatekeepers to the other side, so to speak, and that can create a temptation on the part of demagogic groups to utilize this magic or omnipotence. It can also create a temptation within ourselves to be so used.
There is plenty of evidence of a perverse tradition of medical misbehavior. We see this in physicians serving as torturers in Chile, Soviet psychiatrists incarcerating political dissidents in mental hospitals and idealistic American physicians involved in cultic behavior, including mass killing by The People’s Temple in Guyana. This perverse tradition, the reversal from healer to killer, is also evident in the roles that physicians played in the fanatical Japanese cult Aum Shinrikyo, which released sarin gas into the Tokyo subways in 1995. And physicians associated with the CIA were involved in harmful, sometimes fatal experiments, with drugs and mind control. Physicians are capable of these things, often for ostensibly patriotic or spiritual or idealistic reasons.
They may come to this misbehavior because they find themselves in what I have called atrocity-producing situations.13 An atrocity-producing situation is one in which ordinary people become capable of committing atrocities. These situations are structured militarily and psychologically to evoke that kind of behavior in people socialized to those groups. In Vietnam, atrocity-producing situations were created first by military policies, such as “free-fire zones,” where soldiers were encouraged to fire at anything, and “body counts” as a means of gauging success; and then by soldiers’ experience of angry grief in response to buddies killed. In Iraq, the military environment is different from that of Vietnam, but there are certain parallels. There is a counter-insurgency war on alien terrain with considerable hostility from much of the population, which is non-white, and the enemy is difficult to find or track down. The situation is highly dangerous. There is also an exaggerated focus on interrogation in order to uncover the enemy or perhaps other secrets, including hidden weapons that haven’t been found.
At Abu Ghraib these conditions created a three-tiered dynamic. At the lowest tier are the foot soldiers, the MPs and civilian contractors who did the dirty work and whom you see in the photographs. At the next tier are the intelligence personnel and officers who organized and conducted the interrogations, and the medics, doctors and nurses who became involved. At the third and highest tier are the war planners, who created the policies and who were ultimately responsible for the events.
The group pressure can be overwhelming and extremely difficult to resist, and the very presence of physicians or psychologists tends to legitimate such situations. Physician involvement brings the trappings and symbolic power of medicine to a criminal event, making it easier for people to accept.
There also is the special matter of being a military doctor. Years ago, when I was an Air Force physician assigned to Japan and Korea, I had to decide whether or not men I examined were sick enough to be sent to the rear for psychiatric treatment and sent home eventually, or whether they should be required to go back to duty. I could feel the conflict between my medical self, which felt a given man needed more treatment, and my military self, which felt the pressures of command to keep people at duty.
I had another experience in working with Vietnam veterans in the early 1970s, when they expressed considerable antagonism toward chaplains and “shrinks,” as they put it. They explained that they would often find themselves feeling extreme anxiety and revulsion in connection with the atrocity-producing situation of the Vietnam War. They would seek out either a chaplain or a psychiatrist, only to discover that he or his assistant would try to help them to be strong enough to return to duty. The vets felt that the very people who, by virtue of their professional commitments, should be providing spiritual or psychological support, were actually serving to undermine their own resistance to bad behavior. The authority figures were sabotaging what these soldiers saw as finest in their own sensibilities.
A person in an atrocity-producing situation is responsible for what he or she does, but one also wants to look at the psychological and historical conditions that are conducive to violations of this kind. The Nazis “nazified” German medicine through an explicit process they called Gleichschaltung, or “regearing” of the profession. First physicians-in-training were socialized to medicine, a profound transformation in itself; then the Nazis socialized these physicians to the military and ultimately to the death camps.
Once the physician is in one of these extreme, isolated, atrocity-producing environments, other mechanisms help to complete the transformation from healer to killer. One mechanism is something I call doubling, or the formation of what is functionally a second self. Nazi doctors involved themselves in Auschwitz in the killing process from 9 to 5, five or six days a week, and then would go home to Germany over the weekends and be ordinary fathers and husbands. The self can do that; it can split off in that way. Doubling is a form of dissociation, which can be a way of adapting to evil or destructive behavior.
In fact, one of the defenses for doctors being involved with interrogators has been that they were not functioning as doctors therapeutically. This stance is an invitation to doubling. It’s wrong, of course, because they were physicians and that is why they were asked to do this specialized work. Other forms of dissociation include psychic numbing and a diminished capacity to feel. There can be a lot of dissociation, numbing and doubling, in environments like Abu Ghraib.
Discussion
Question: One might argue that there was a moral impulse behind the military’s desire to involve medical personnel. Such reasoning would rely on a principle of harm reduction, arguing that the presence or involvement of physicians might make these situations less bad. Perhaps the panelists have been making a professional integrity argument, saying physicians’ hands shouldn’t get dirty. Yet, there might be a consequentialist argument that the presence of physicians reduces the harm to detainees.
Leonard Rubenstein: The argument has been made frequently that the physician can ameliorate the harm to an individual during interrogation. One way, people suppose, is that the clinician’s very presence may act as a constraint. Another is by saying “Stop, you’re going too far.” However, the track record is quite different, because the flip side is that the health care professional’s presence legitimates the use of coercion and encourages the interrogator to go as far as possible. For that reason, most ethical authorities have condemned all forms of medical participation in coercive interrogation.
Mildred Solomon: There is also evidence that coercive and degrading treatment yields exceedingly unreliable data. The way to unnerve a detainee is to surprise them with the humanity of the detaining authorities. This creates cognitive dissonance and calls into question the belief structures that many detainees hold with respect to the United States. Developing alignment over time is likely to yield better information than torture or abuse.
Question: We’ve talked a lot about the importance of individuals resisting inappropriate behavior. What about medical societies and professional organizations?
Steven Miles: When organized medicine acts as part of a global community, the result can be very effective. For example, a South African medical society had not signed the Tokyo accord and did not have a position on professional sanctions against physicians who participated in torture. They were a sister society of the American College of Physicians, and when they came to the annual ACOP meeting in California, they were challenged. As a result, they immediately endorsed the Tokyo convention and then proceeded to “out” the physicians who were collaborating with the security police in concealing torture.
Leonard Rubenstein: Professional societies are important, but individual doctors acting as part of a social movement can be very effective as well. For example, politicians really listen to physicians, and we like to bring members of the medical community to meetings with members of Congress. We are planning to mobilize people, and we hope physicians will play a leadership role in this campaign.14
Question: I am interested in dual loyalty outside the military context in more every day circumstances, when physicians are pressured to do things by their employers or simply by dint of exhaustion and overwork. I often see clinicians acting as though they are numb to the suffering around them.
Robert Jay Lifton: Selective professional numbing is sometimes necessary. A surgeon can’t afford to experience the full emotions of a family member. There is always a struggle that we have as physicians between feeling and not feeling. Often, unfortunately, we allow ourselves to go too far toward numbing or not feeling. We can be blinded by the fact that we identify ourselves as healers. We are healers, and we should identify ourselves this way, but it doesn’t mean that everything we do has a healing effect. We have to look at the institutions we are serving. We have to ask: What is the nature of the project of which we are a part?
Footnotes
1Miles, S. Abu Ghraib: Its legacy for military medicine. Lancet. 2004; 364:725–29.
2See American Civil Liberties Union website: www.aclu.org.
3Geneva Convention relative to the Treatment of Prisoners of War (also known as the Third Geneva Convention). http://www.hri.ca/uninfo/treaties/92.shtml.
4Singh, JA. American physicians and dual loyalty obligations in the “war on terror.” BMC Medical Ethics 2003; 4:4. Available at http://www.biomedcentral.com/1472-6939/4/4.
5Bush, G. Memorandum for the Vice President: Humane Treatment of Al Qaeda and Taliban Detainees. Available at http://www.washington-post.com/wp-srv/nation/documents/020702bush.pdf.
6Senate and House Armed Services Committee. Transcripts of Open Hearings. May 7, 11, 19, 2004. Available at http://wid.ap.org/transcripts/iraqfront.html.
7Taguba Testimony U.S. Senate. Transcribed by eMediaMillWorks, Inc. Available at http://wid.ap.org/transcripts/040511iraq_senate.html.
8The 29th World Medical Assembly, Tokyo, Japan, October 1975. Available at http://www.cirp.org/library/ethics/tokyo/; AMA Codes of Ethics (Professionalism) E-2.067 Torture. Available at http://www.ama-assn.org/ama/pub/category/8421.html; United Nations Gen-eral Assembly, Thirty-Seventh Session. Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. UN Doc/A/res/37/ 194. 18 December 1982. Available at http://www. un.org/documents/ga/res/37/a37r194.htm.
9International Dual Loyalty Group. Dual Loyalty and Human Rights in Health Professional Practice: Proposed Guidelines and Institutional Mechanisms. New York and Cape Town, South Africa: Physicians for Human Rights and the School of Public Health and Primary Health Care, University of Cape Town, Health Sciences Faculty, 2002. Available from Physicians for Human Rights at http://www.phrusa.org.
10See American Civil Liberties Union website: www.aclu.org
11International Dual Loyalty Group. Op cit., 2002
12Lifton, RJ. The Nazi Doctors: Medical Killing and the Psychology of Genocide. New York: Basic Books, 1986.
13Lifton, RJ. Doctors and torture. New England Journal of Medicine. 2004; 351(5):415–16.
14See Physicians for Human Rights website: www.phrusa.org
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