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 was the creation of a set of sub-groups to address
particular issues, including the relevance of existing international codes of conduct,
the interplay between human rights and bioethics, the relationship between dual
loyalty and social, economic and cultural rights, and practice in five settings where
dual loyalty and human rights problems arise frequently.
In the two years since the Durban meeting, the Working Group has, through its sub-
groups, corresponding members and consulted experts, exchanged drafts, tested out
approaches, and ultimately produced a document containing both an analysis of the
problem and a set of proposals to address it. It is our hope that the proposals will
stimulate wide discussion and be considered by national and international standard-
setting bodies as well as organizations responsible for the structure of health
practice, including governments, associations of health professionals and licensing
and regulatory bodies.
The report and recommendations are available electronically at www.phrusa.org, and
http://caribou.cc.trincoll.edu/orgs_scialnce/SFR/Default.htm
.
The project was under the general direction of Leonard S. Rubenstein, J.D.,
Executive Director of Physicians for Human Rights (USA) in close collaboration with
Leslie London, M.D., Associate Professor, Head of the Health and Human Rights
Division, School of Public Health and Primary Health Care at the University of Cape
Town Health Sciences Faculty, and Laurel Baldwin-Ragaven, M.D., now Henry R.
Luce Professor of Health and Human Rights at Trinity College (Connecticut, USA) and
formerly research fellow of the Health and Human Rights Project in South Africa.
The Participants* in the Durban, South Africa meeting included:
Bea Abrahams
South Africa
Progressive Primary Health Care Network
Enrique Accorsi
Chile
World Medical Association and Colegio
Medico, Chilean Medical Association
Laurel Baldwin-Ragaven
South Africa
Health and Human Rights Project; Trinity
College (USA)
Solomon Benatar
South Africa
University of Cape Town Department of
Medicine
John H. Bryant
United States
President, Council of International
Organizations in the Medical Sciences
Nancy Bryant
United States Nursing Consultant
M. Gregg Bloche
United States
Percy Mahlathi
South Africa
South African Medical Association
Charles Malcolm
South Africa
Department of Psychiatry
University of Cape Town
Charlotte McClain
South Africa
Human Rights Commission of South Africa
Indres Naidoo
South Africa
Former Senator
Lungisile Ntsebeza
South Africa
University of the Western Cape
Jumana Odeh-Issawi
Palestine
Happy Child Centre
Wendy Orr
South Africa
Transformation and Employment Equity
Office
Georgetown University Law Center; Johns
Hopkins School of Public Health
John Chisholm
United Kingdom
British Medical Association
Saths Cooper
South Africa
Psychology Society of South Africa
Mahomed Dada
South Africa
Department of Forensic Medicine
University of Natal
Jeanelle de Gruchy
South Africa
Health and Human Rights Project
Marietjie de Villiers
South Africa
Health Professions Council of South Africa
Carnita Ernest
South Africa
Centre for the Study of Violence &
Reconciliation
Mary Faure
South Africa
Society of Physiotherapists
Costa Gazi
South Africa
Eastern Cape Department of Public Health
Ranaan Gillon
United Kingdom
School of Medicine
Imperial College, London
Chandre Gould
South Africa
Centre for Conflict Resolution
Paul Gready
United Kingdom
University of London &British Medical
Association
Witwatersrand University
Karrisha Pillay
South Africa
Community Law Centre
University of the Western Cape
Rachel Prinsloo
South Africa
Human Sciences Research Council
Christian Pross
Germany
Center for the Treatment of Torture
Victims
Solly Ratamane
South Africa
Department of Psychiatry
University of Free State
Norma Tsotsi
South Africa
South Africa Dental Association
Hernan Reyes
Switzerland
International Committee of the Red Cross
Leonard Rubenstein
United States
Physicians for Human Rights
Ann Sommerville
United Kingdom
British Medical Association
Hasina Subedar
South Africa
South African Nursing Council
Paul Theron
South Africa
Western Cape District
Surgeons Association
Adriaan van Es
Netherlands
International Federation of Health &
Human Rights Organizations
Sandhya Gupta
United States
Physicians for Human Rights
Thembeka Gwagwa
South Africa
Democratic Nurses Association
Erik Holst
Denmark
ICAR Foundation-Romania
Amar Jesani
India
Centre for Enquiry into Health & Allied
Themes
Kausar Khan
Pakistan
Medical School
Aga Khan University
Simon Lewin
South Africa
Medical Research Council
Leslie London
South Africa
Department of Public Health
University of Cape Town
Judith van Heerden
South Africa
Department of Primary Health Care &
Family Medicine
Joe Veriava
South Africa
Health Sciences Faculty
University of Witwatersrand
Braam Volschenk
South Africa
South African Medical Association
Shabbir Wadee
South Africa
Department of Forensic Medicine
Stellenbosch University
James Welsh
United Kingdom
Amnesty International
Zeav Wiener
Israel
Physicians for Human Rights- Israel
Boris Yudin
Russia
Moscow State University & Russian
Academy of Sciences
Others who did not attend the conference participated in various aspects of the
Working Group’s activities. These individuals included:
Anna Bizos
South Africa
Physiotherapy Society of South Africa
Debra DeBruin
United StatesUniversity of Minnesota
Sebnem Fincanci
Turkey
Department of Forensic Medicine, Istanbul
University
Tesfamicael Ghebrehiwet
Switzerland
International Council of Nurses
Delon Human
Switzerland
World Medical Association
Vincent Iacopino
United States
Physicians for Human Rights
Lungisile Ntsebeza, of the Program for Land and Agrarian Studies at the University of
the Western Cape, acted as facilitator for the meeting. Indres Nadoo, former political
prisoner in South Africa and former Senator in the South African Parliament, was
keynote speaker on the evening preceding the conference. Mahomed Dada, formerly
Professor of Forensic Medicine at the Nelson Mandela School of Medicine at the
University of Natal, acted as liaison between the working group and the Mandela
School of Medicine. Barry Kistnasamy, Dean of the Mandela Medical School, also
supported the Working Group meeting Izani Event Planners were instrumental in
negotiating the logistics for the Durban meeting in 2000.
The bioethics consultant for the Durban meeting was Catherine Myser, Ph.D., who
prepared a background paper on dual loyalty and bioethics for the meeting. The
project received support from Professor M. Gregg Bloche and the Georgetown –
Johns Hopkins program in Law and Public Health.
Members of the Dual Loyalty Working Group joined an on-line moderated list to
facilitate discussion on issues related to dual loyalty and the project. The list was
moderated by Sandhya Gupta and Nafia Tasmin Din of Physicians for Human Rights.
Drafts sections of the report were circulated for comments by members of the
Working Group. We note that not all members of the Durban meeting participated in
subsequent discussions and reviews of drafts, and some members had differing
viewpoints. Therefore, all aspects of the final product do not represent the views of
all participants in the meeting. An Editorial Review Committee reviewed all drafts.
The Committee met face to face twice after the Durban meeting and conferred
extensively in shaping the final product and in writing the introduction. The
committee consisted of:
Laurel Baldwin-Ragaven
M. Gregg Bloche
John H. Bryant
Erik Holst
Leslie London
Wendy Orr
Leonard Rubenstein
Although not able to attend these meetings, Ann Sommerville contributed
enormously to the editing of the final document.
Members of the Working Group participated in drafting and review of guidelines for
particular settings and to address difficult substantive questions. Adriaan van Es,
along with Chandre Gould and Zeav Wiener, led the work group on guidelines for
military settings. Leonard Rubenstein and M. Gregg Bloche led the group on forensic
health practice. Wendy Orr chaired the largest sub-group, on prisons, which included
Jeanelle de Gruchy, Sebnem Fincanci, Jabu Ngwane, Bidur Osti, Hernan Reyes, and
Judith van Heerden. Christian Pross led the subgroup on guidelines for health
professionals evaluating refugees or in immigration settings. Leslie London led the
subgroup on guidelines on workplace settings and drafted the section on institutional
mechanisms based on information drawn from all the settings guidelines. A subgroup
researching social and economic rights was chaired by Kausar Khan and included
Enrique Accorsi, John H. Bryant, Jeanelle de Gruchy, and Amar Jesani. Future work
of the Dual Loyalty Working Group on “toolkits” for health professionals is led by
Laurel Baldwin-Ragaven and Ann Sommerville. James Welsh compiled and
distributed existing international ethical codes and instruments. Chapter two,
describing the circumstances of dual loyalty, was written by Leonard Rubenstein,
with extensive research assistance from Sandhya Gupta and Nafia Tasmin Din. Boris
Yudin, Kauser Khan, Debra DeBruin, Gregg Bloche, Soloman Benatar, Laurel
Baldwin-Ragaven, Leslie London, and Ann Sommerville contibuted to the discussion
of the relationship betwen bioethics and human rights.
Thomas Geoghegan provided research on human rights law. Lt. Col. Eugene
Bonventre, United States Air Force, provided consultation (in his personal capacity)
on problems in military medicine as did Michael Grodin, Boston University School of
Public Health. Sandhya Gupta reviewed the products for clarity and consistency. In
addition to her editorial and research role, Ms. Gupta, along with Ms. Din, provided
invaluable support in logistics and communication. Additional research support was
provided by Genevieve Grabman and Cordelia Frewen.
Barbara Ayotte, Director of Communications of Physicians for Human Rights,
prepared the report for publication.
* Affiliations are those at the time of the Durban meeting and are for identification
purposes only
I. Introduction
• The Problem of Dual Loyalty and Human Rights
• The Concept of Dual Loyalty
• Dual Loyalty and Human Rights
• Human Rights, Bioethics and the Resolution of Dual Loyalty Conflicts
o Human Rights
o Bioethics
o Human Rights and Bioethics
• The Obligation of Health Professionals to Respect Human Rights
• Dual Loyalty and Human Rights: The Need for this Project
o The Extent of Dual Loyalty Problems
o The Lack of Education and Training
o Systemic Flaws and Limitations
o The Larger Social Context in which Dual Loyalty Occurs
• Scope of the Project and Products
o Roles of Health Professionals
o Public and Private Domains of Professional Duties to Protect Human
Rights
o Products
The Problem of Dual Loyalty and Human Rights
The problem of dual loyalty – simultaneous obligations, express or implied, to a
patient and to a third party, often the state – continues to challenge health
professionals. Health professional ethics have long stressed the need for loyalty to
people in their care. In the modern world, however, health professionals are
increasingly asked to weigh their devotion to patients against service to the
objectives of government or other third parties. Dual loyalty poses particular
challenges for health professionals throughout the world when the subordination of
the patient’s interests to state or other purposes risks violating the patient’s human
rights. Efforts to bolster ethical codes to address these challenges have only
marginally succeeded, as will be discussed in Chapter II
.
The goals of this project are to identify the dimensions of dual loyalty and to propose
guidelines and mechanisms for the prevention of complicity by health professionals
in human rights violations. This introductory chapter defines what dual loyalty is,
explains how professional ethics and human rights relate in solving dual loyalty
problems, and explores the obligations of health professionals to respect human
rights. These introductory comments provide the background for a description of the
motivation for and scope of this project.
The Concept of Dual Loyalty
Since ancient times, many societies have held healthcare professionals to an ethic of
undivided loyalty to the welfare of the patient. Current international codes of ethics1
generally mandate complete loyalty to patients. The World Medical Association
(WMA) Declaration of Geneva, the modern equivalent of the Hippocratic Oath, asks
physicians to pledge that “the health of my patient shall be my first consideration”
and to provide medical services in “full technical and moral independence.”2
The
WMA International Code of Medical Ethics states that “a physician shall owe his
patients complete loyalty and all the resources of his science.”3
In practice, however, health professionals often have obligations to other parties
besides their patients – such as family members, employers, insurance companies
and governments – that may conflict with undivided devotion to the patient. This
phenomenon is dual loyalty, which may be defined as clinical role conflict between
professional duties to a patient and obligations, express or implied, real or perceived,
to the interests of a third party such as an employer, an insurer or the state.4
The
dual loyalty problem is usually understood in the context of a relationship with an
individual patient. In many parts of the world, however, clinicians have
responsibilities to communities of patients, for prevention, health education and
clinical care. Dual loyalty conflicts can and do arise in these settings as well.
In cases where dual loyalty exists, elevating state over individual interests may
nevertheless serve social purposes often accepted as justifiable.5
Evaluations for
adjudicative purposes are a common example. A medical evaluation of an individual’s
condition that is relevant to resolution of a lawsuit or a claim for disability benefits
requires the health professional to express opinions about individuals that may result
in their exclusion from desired benefits or their being deprived of a desired outcome.
Such an evaluation is generally accepted as a justifiable departure from complete
loyalty to the individual because of the overriding need for objective medical
evidence to resolve the claim in a fair and just manner.
Such socially and legally accepted departures from undivided loyalty to the patient
are not restricted to evaluations. For example, a health professional may be required
to breach confidentiality in a relationship with a patient in order to protect third
parties from harm or to notify a health authority of communicable diseases for health
surveillance purposes. However, in all circumstances where departure from undivided
loyalty takes place, what is critical to the moral acceptability of such departures is
the fairness and transparency of the balancing of conflicting interests, and the way in
which such balancing is, or is not, consistent with human rights.
Dual Loyalty and Human Rights
Dual loyalty becomes especially problematic when the health professional acts to
support the interests of the state or other entity instead of those of the individual in
a manner that violates the human rights of the individual. The most insidious human
rights violations stemming from dual loyalty arise in health practice under a
repressive government, where pervasive human rights abuses, combined with
restrictions on freedom of expression, render it difficult both to resist state demands
and to report abuses. In addition, closed institutions, such as jails, prisons,
psychiatric facilities and the military, impose high demands for allegiance on health
professionals even in the face of often-common human rights violations against
individuals held there. But violations of human rights at the behest of the state by
health professionals also take place in open societies, for example, in cases of
institutionalized bias or discrimination against women, members of a particular
ethnic or religious group, refugees and immigrants, or patients who are politically or
socially stigmatized. Violations of people’s rights of access to health care may also
arise from policies imposed by governments, or in health systems, including privately
managed health systems, in which health professionals are called upon to withhold
treatment from certain groups of people in discriminatory ways.
The problem is compounded when the health professional’s conduct is constrained by
pressure to yield to other powerful interests, especially those of the state. The
pressure may be a product of legal requirements, threats of professional or personal
harm for non-compliance, the culture of the institution or society where the
professional practices, or even the professional’s own sense of duty to the state.6
In
repressive political regimes or in closed institutions like prisons and jails, the
personal consequences can be quite severe.
Human Rights, Bioethics and the Resolution of Dual
Loyalty Conflicts
Many health professionals are generally familiar with bioethical frameworks to assist
in resolving difficult clinical dilemmas, typically arising in end-of-life situations or in
the context of limited resources. Less familiar to health professionals is analysis of
the human rights dimensions to healthcare practice.7
This project seeks to extend
the ambit of health professionals’ decision making to include the protection of
patients’ human rights in cases of dual loyalty. The frameworks of bioethics and
human rights each present approaches to resolving competing claims in principled
ways. Where dual loyalty conflicts are associated with human rights violations, it is
essential for health professionals to recognize the contributions human rights
approaches can make. The following sections outline the respective approaches: one
based on human rights and another on bioethics, and how their complementarities
can be used to resolve dual loyalty conflicts that threaten violations of human rights.
Human Rights
Human rights have best been described as “rights of individuals in society” that take
the form of “…legitimate, valid, justified claims – upon his or her society – to various
‘goods’ and ‘benefits’” deemed essential for dignity and well-being.”8
These claims
are not abstractions or based on natural law, social contract, or political theory but
stem from international governmental consensus around moral principles considered
universal. In the modern era, they were first embodied in the Universal Declaration
of Human Rights (UDHR), adopted in the aftermath of World War II, and then
extended through international treaties. Grounded on the premise that “all human
beings are born free and equal in dignity and rights,”9
the UDHR enumerates specific
rights, many of which have been adopted in international and regional treaties that
bind states that have ratified the treaties.10
Once a treaty is ratified by a state, it
becomes law in the state and binds its conduct.
Human rights obligations generally impose duties upon the state rather than private
individuals and entities. But the state/private distinction does not fully do justice to
the scope of human rights obligations. In certain circumstances, the state has a duty
to assure that the conduct of private actors is consistent with human rights. Thus, for
example, states have obligations not merely to refrain from racial discrimination but
to “prohibit and bring to an end” to discrimination, including racial discrimination, by
“any person, group or organization”11
that interferes with “the right to public health,
medical care, social security and social services.”12
Similarly, states have obligations
to protect the rights of workers in relations with employers.
Operationalizing the UDHR, principally an aspirational document, are two
foundational human rights treaties: the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights.13
The former recognizes principally the rights to life, liberty, security of the person,
freedom from torture and cruel, degrading and inhuman treatment, freedom from
unjust discrimination, due process of law, and free expression and association. These
rights are not subject to balancing against other state interests and none may be
“derogated,” or suspended, unless the state officially proclaims the existence of a
national emergency and only to the extent “strictly necessary” to meet the
exigencies of the situation; and, any derogation cannot involve discrimination on the
basis of race, color, sex, language, birth, property,14
religion or social origin.15
Moreover, certain rights, including the right to be free from torture and cruel,
inhuman, or degrading treatment can never be subject to derogation.
The obligations not to engage in discrimination on the basis of race and gender have
been elaborated with more specificity in the Convention on the Elimination of all
forms of Racial Discrimination and the Convention for the Elimination of all forms of
Discrimination against Women. Under these conventions, states are bound not to
engage in discrimination themselves and also to take affirmative steps to eliminate
discrimination in society. Moreover, the conventions prohibit discriminatory effects of
policies and practices as well as intentional discrimination.
Nations have also adopted a treaty specific to the problem of torture, the Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment and
Punishment, which sets out both standards of conduct for states and monitoring
mechanisms by UN bodies. Other treaties also bear on health and indirectly on the
conduct of health professionals. The Convention on the Rights of the Child
systematically sets out states’ obligations to children. Another convention, dating
from 1951, sets out the requirements of states in the treatment of refugees.
In addition, the United Nations General Assembly has promulgated standards and
guidelines designed to protect human rights of prisoners, people with mental illness
and mental retardation, and other vulnerable groups.
The International Covenant on Economic, Social and Cultural Rights (1966) sets forth
obligations states have to meet people’s basic material needs, to protect the family
as an institution, and to establish rights to work, health, social security and housing,
among others. For health professionals, the most important provision is Article 12,
which provides that “Every human being is entitled to the enjoyment of the highest
attainable standard of health conducive to living a life in dignity.” In 2000, the UN
Committee responsible for interpretation of this Covenant issued a General
Comment, or explanation of Article 12 that, while not binding, does serve as a useful
guide for monitoring.16
The Committee interpreted Article 12 consistent with past interpretations of the
Covenant on Economic, Social and Cultural Rights as imposing three types of duties
on governments. The first core obligation is to respect, requiring states to refrain
from interfering directly or indirectly with the enjoyment of the right to the highest
attainable standard of health, for example, by denying or limiting equal access to
health care for all persons, engaging in state-sponsored discrimination in health
services, marketing unsafe drugs, or limiting access to family planning and
reproductive health services. The second is the obligation to protect, requiring states
to prevent third parties from interfering in the right to the highest attainable
standard of health, for example, by permitting providers to discriminate or by failing
to control marketing of medicines and harmful products like tobacco. The third is the
obligation to fulfill, requiring states to adopt appropriate legislative, administrative,
budgetary and other steps toward the full realization of the right to the highest
attainable standard of health.17
This obligation requires states to have a national
strategy for enabling all members of society to achieve the highest attainable
standard of health, to assure that marginalized groups have access to clean water,
education and essential health services, to immunize its population against
communicable diseases, to provide information to prevent the spread of disease, and
to take other steps the Committee sets out.18
Although fulfillment of the right to the highest attainable standard of health is
subject to resource limitations and of course does not require that every health
service (e.g. cosmetic surgery) be made available to all, the Committee makes clear
that the Covenant obliges “each State party to take the necessary steps to the
maximum of its available resources and failure to do so constitutes a violation.”
Moreover, the Committee sets out “core” obligations that exist irrespective of
resource constraints. These include, among others, non-discriminatory and equitable
access to health care services “especially for marginalized groups,” maternal and
child health care services, availability of immunizations against infectious diseases, a
public health strategy for the society, essential drugs and access to information
about the main health problems in the community.19
The rights described in the two foundational covenants are mutually reinforcing and
are commonly said to be indivisible. A person cannot enjoy political freedoms unless
he or she has the education to be able to exercise those freedoms. Similarly, a
person who has access to health care is nonetheless denied health and well-being if
forced to live in a repressive society. The connections are evident, too, on a macro
scale: as Amartya Sen has explained, no substantial famine has occurred in a
democratic country.20
In Chapter II, greater detail about how these human rights
apply to specific problems of dual loyalty is provided.
In sum, the most basic and fundamental purpose of human rights is to respect and
protect individual persons. For health professionals, a human rights framework
provides a steady moral compass, a blueprint of a just and humane social order that
at its core articulates the principles of the dignity and equality of every human being.
Decisions made to respect, protect, and fulfill human rights therefore seek to ensure
that a rights analysis informs how such conflicts can be resolved. Put another way, a
human rights analysis enables the health professional to resolve these conflicts by
reference to an agreed-upon, universally applicable set of moral principles. In health
care settings, consideration of human rights concerns, as elaborated through the
various instruments, conventions and treaties discussed above, should be a requisite
for resolving dual loyalty conflicts.
Bioethics
Bioethics is a discipline that enables clinicians to engage in analyses that will
determine their courses of action in particularly compelling and morally complex
clinical situations. Bioethical analysis can help health professionals address the
difficult dilemmas that arise in every day clinical work and provide guidance for
identifying rational arguments to substantiate their moral choices in ways that aim to
be reasoned and constant.
There are at least two aspects to such a bioethics paradigm: one is ethics formulated
as professional codes of conduct that seek to provide guidance to clinicians facing
ethical dilemmas21 and the other is the process of resolving clinical dilemmas
through philosophical reasoning. A widely recognized framework for resolving
morally difficult situations in health care identifies four ethical principles and
addresses their scope of application.22
It has been argued that these four principles
together with concern for their scope or coverage “encompass most if not all of the
moral issues in health care” and reflect the range of moral commitments or options
available to support the resolution of competing choices.23
These have been laid out
as:
• Respect for the decision-making ability of autonomous persons (autonomy or
self-determination);
• The duty to maximize benefit to the person or people in care (beneficence);
often taken together with
• The mandate to avoid the causation of harm (non-maleficence); and,
• Fairness in deciding competing claims, often to resources, but also to human
rights and laws or social policy (justice).
Within this framework, bioethical reasoning invokes the application of these
principles in a thoughtful and systematic way to provide guidance for appropriate
decisions when faced with a clinical or patient-management dilemma. By balancing
these principles, and taking into account the contextual factors in which the dilemma
occurs as well as the evidentiary support data, clinicians will more often than not
make decisions about what they ‘ought’ to do.
More recent developments have sought to expand the scope of bioethics to include
its application beyond the individual clinical encounter to considerations of the health
of an entire population.24
It is now widely recognized that societal factors, such as
socioeconomic inequalities, discrimination and a lack of respect for dignity have
profound effects on health status and life expectancy, 25
and that health disparities
are increasingly a matter of ethical concern.26
This provides a compelling reason for
the health sector to identify the moral basis for policies and programs that affect the
interests and well-being of groups and populations. However, there is no dominant
or presently coherent body of ethical theory, much less one that commands
international consensus, on society’s obligations in the public health domain27
—
though reliance on the principle of justice to resolve ethical dilemmas in public health
in the most fair manner remains attractive.28
While each of the four principles may
have possible application, depending on the specific nature of violations, human
rights offers a societal level framework for identifying, understanding, and
responding to the social determinants of health.29
Human Rights and Bioethics
In many ways, human rights and bioethics complement each other. The four
principles speak strongly to key human rights concepts. The interdiction against
participation by health professionals in torture, a key human rights prohibition,30
is
grounded in non-maleficence, the duty to do no harm. Respecting women’s
autonomy on reproduction promotes health and the right of access to reproductive
health care while combating gender discrimination. Acting in accord with the principle
of justice, clinicians who promote fairness in their management of patients—for
example, by eschewing racial and gender bias —also uphold human dignity.
The four principles are, in general, consistent with human rights tenets. Yet the
principles do not focus on compliance with human rights standards. Indeed, bioethics
often treats human rights compliance as just one of many competing obligations to
be considered.31
Moreover, the four principles do not provide a method for arriving
at concrete decisions – particularly decisions about how to prioritize competing
principles. Historical traditions in North America tend, in practice, to privilege
individual autonomy over other principles,32
but even there none of the principles
has inherent primacy. Various moral theories and philosophical traditions may be
invoked to give relative weights to the four principles in particular circumstances.33
As a result, there is space for enormous variability in moral decision-making. Moral
disagreements per se are not a bad thing and should not make us skeptical about
bioethical reasoning. But such disagreements become problematic when human
rights are at stake. Therefore, as stated earlier, in health care settings, consideration
of human rights concerns, as elaborated through the various international human
rights instruments, conventions and treaties should be a pre-requisite for resolving
dual loyalty conflicts.
Although not usually the case, it is possible in theory for the process of ‘ethical’
reasoning to arrive at decisions that are inconsistent with human rights. Two
examples illustrate the potential disassociation between bioethical reasoning and the
human rights approach.
• Not everyone who needs dialysis and renal transplant can receive such
treatments. In clinical practice, decisions about eligibility for renal dialysis
involve some form of explicit rationing, usually in the form of agreed-upon
criteria for entry into and/or maintenance on the program. Bioethical
reasoning is usually critical to informing the development of such criteria,
which typically balance beneficence and respect for patient autonomy with
considerations of likely capacity to benefit, based on the medical utility of
treating any given patient. Typically, patients with other risk factors who have
lower likelihood of success on a transplant program are excluded at the
outset, so that resources are allocated to those who can “most benefit” from
the program. Although some lose out while others gain, ethical reasoning can
justify the decision on the basis that all patients are subjected to the same
criteria. Unfairness would only be demonstrable if an individual was unfairly
treated in the process. Bioethical reasoning, even in its application of the
principle of justice, is weaker where criteria for program eligibility
discriminate against whole groups of people, usually those for whom social
stratification and disadvantage have created social patterning of the risk
factors that lead to the individual’s disqualification.34
As a result, group
disadvantage may be weakly addressed in a bioethics framework, and the
effects of discrimination against whole groups receive less emphasis in the
balancing of bioethical principles.
In contrast, human rights standards would view the problem through the
prism of discrimination. Analysis would focus on whether clinical protocols
were directly or indirectly resulting in unfair treatment, not only of individuals
but also of groups subjected to social inequalities.35
Less emphasis would be
placed on the capacity for individual benefit or on questions of autonomy or
beneficence. As a result, application of a human rights framework may result
in somewhat different decisions about what is fair and just in renal dialysis,
particularly because of its capacity to discern group patterning and consider
the implications of racial or other prohibited forms of discrimination in
decisions about the fairness of a policy.36
• A second example further illustrates the potential for divergence between
human rights and bioethics approaches. In 1997, the provincial health
department asked a teaching hospital in Cape Town, South Africa to
implement a policy of non-treatment for illegal immigrants, and to report all
such immigrants to the Department of Home Affairs.37
In deliberating
whether to implement this policy, the ethics committee of the institution
concluded that while containing costs in health care was a legitimate objective
for public policy and that the health services were entitled to protect scarce
resources for citizens or legitimate immigrants, it was not the health
professional’s role to be part of such gate-keeping. As a result, the hospital
issued an order that placed the onus onto hospital clerical staff to identify and
report illegal immigrants seeking health care, sparing the clinicians from such
a responsibility. The inherent discriminatory context in which such gate-
keeping was to take place, and the potential violations of human rights that
may result from mandatory reporting, did not enter sufficiently into the
ethical reasoning process. Indeed, in many ways, the policy mimicked earlier
policies implemented by the apartheid government in its attempts to arrest
anti-apartheid activists seeking medical care at state hospitals for injuries
sustained in civil disobedience protests.38
In contrast, a human rights approach starts and concludes with the issues of
discrimination and access to health care, irrespective of who conducts the
gate-keeping. Any policy that results in significant violations of human rights
that can not be adequately justified by public health criteria39
would be
deemed unacceptable.
In sum, both the human rights and bioethics approaches generally attempt to
promote morally desirable outcomes. Just as bioethics reasoning seeks to balance
contrasting principles, human rights approaches sometimes have to balance
competing rights.40
Yet, even though in recent years many professional bodies have
adopted human rights principles in their ethical codes,41
there has been insufficient
attention paid to bringing these two paradigms or discourses together conceptually.
It is possible to operate within an ethics framework in ways that focus only on the
dyadic relationship of the clinician and patient without considering the context in
which that relationship is constructed. Likewise, there is little uniformity on how to
weigh conflicting principles of bioethics or how far to extend their scope. In the case
of dual loyalty, respect for human rights (insofar as this connotes respect for human
dignity and the inviolability of personhood) is a pre-condition to engaging in ethical
decision-making. Where human rights are at stake in a dual loyalty conflict, it is
necessary to look to human rights norms to guide the resolution of these conflicts.
The Obligation of Health Professionals to Respect
Human Rights
As discussed earlier, human rights obligations generally fall to governments, not to
individuals. But the power and legal standing of human rights norms have enormous
implications for the behavior of health professionals. Most generally, the
International Covenant on Civil and Political Rights declares that all people have “a
responsibility to strive for the promotion and observance of the rights recognized” in
the Covenant.42
Beyond this general obligation, applicable to the health professional as citizen,43 are
specific obligations imposed by the nature of professionalism, reinforced by the
authority given through licensing. Professionalism entails a social pact in which
society and its institutions accord the health professional status, power and prestige
in exchange for a guarantee that he or she will meet certain standards of practice. It
is these expectations that bestow upon health professionals a particular obligation to
respect their patients’ human rights.
How might a health professional become complicit in a human rights violation? First,
when employed by or acting on behalf of the state, health professionals may become
agents through which the state commits a violation, for example, by participating in
torture of an individual at the behest of state interrogators.
Second, even in private doctor-patient encounters, health professionals can become
complicit in violations by adhering to – and thus furthering – state health policies and
practices that unjustly discriminate on the basis of race, sex, class, or other
prohibited grounds, or that deny equitable access to health care. Where the state
has failed to take necessary steps to establish a health system that affords equitable
access to health services, the health professional participating in that system has an
obligation to press for alternative policies designed to end the violations.
Third, even where no explicit state policy is involved, in circumstances where the
health professional engages in cultural or social practices that violate human rights,
for example, “virginity examinations” or genital mutilation of women, he or she
becomes the vehicle by which the violation is accomplished. Most human rights
treaties require states to take affirmative steps to end social or cultural practices that
discriminate or otherwise violate the human rights of individuals in private
relationships, thereby making it clear that tolerance of the underlying conduct is
impermissible.
For example, the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW) provides that states parties “shall take all appropriate
measures…to modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and women.”44
The Convention on the
Elimination of all forms of Racial Discrimination contains similar language. The
commitment to eliminating discrimination in the sphere of civil life thus creates a
norm that should govern the conduct of a private health professional as much as it
does the state and its citizenry.
The language of ethical codes guiding medical and nursing practice increasingly
reinforces values that derive from international human rights law.45
Indeed, many
professional associations have explicitly adopted human rights language in their own
ethical principles.46
Numerous ethical codes and declarations hold that protecting
the human rights of patients is considered within the scope of professional duty. Both
the World Medical Association and the International Council of Nurses have affirmed
the centrality of human rights in health practice.47
The WMA Declaration of Tokyo
focuses on avoiding complicity of health professionals in torture, linking a human
rights obligation to fundamental ethical norms: “a doctor must have complete clinical
independence in deciding upon the care of a person for whom he or she is medically
responsible. The doctor’s fundamental role is to alleviate the distress of his or her
fellow men, and no motive, whether personal, collective or political, shall prevail
against this higher purpose.”48
The International Council of Nurses’ Ethical Concepts
Applied to Nursing Code emphasizes that “inherent in nursing is respect for life,
dignity, and the rights of man.”49
The Code goes on to elaborate that the care
provided by nurses must not be restrained by “considerations of nationality, race,
creed, color, age, sex, politics or social status.”50
Dual Loyalty and Human Rights: The Need for this
Project
As noted above, subordinating loyalty to the patient to the interests of the state is
only permissible to serve a higher social purpose. Violations of human rights cannot
constitute permissible social purposes. Professional conduct that abets human rights
abuse is thus illegitimate. In recent years there has been increasing attention by
health professionals and professional associations to promoting, and even leading,
efforts to promote human rights. They have done this through promulgation of
standards and, even more importantly, through actions to protect the human rights
of patients. However, four sets of problems remain:
The Extent of Dual Loyalty Problems
In a wide variety of contexts, settings and clinical roles, health professionals are
subjected to demands by governments (and in certain circumstances by other
powerful third parties) to subordinate their patients’ human rights to third party
interests, usually those of the state. The structure of employment relationships,
including sources of compensation, supervision and legal authority; expectations to
defer to embedded social practices even if they violate human rights; and the state’s
ability to apply pressure to secure compliance with its demands, all render it difficult
for health professionals to maintain fidelity to patients’ human rights. As a result,
dual loyalty conflicts resulting in human rights violations are common. The variety of
circumstances and settings in which violations of human rights take place on account
of dual loyalty are described in the next chapter.
The Lack of Education and Training
In some parts of the world, awareness of the relevance of human rights to clinical
and community practice is increasing. Nevertheless, health professionals do not
usually receive training and guidance to identify situations where dual loyalty violates
a person’s human rights and even less so on how to formulate and implement
appropriate responses. Existing guidelines and ethical codes for health professionals
do not provide a firm foundation for assessment of the state’s demands. Health
professionals lack clear guidance concerning the evaluation of state and other third
party demands for subordination of patients’ interests. In many cases, the state
claims that subordinating patients’ interests serves the common good, for example,
by enhancing prison security or compelling drug-abusing mothers to receive
treatment. But existing guidelines and ethical codes do not advise health
professionals how to evaluate these claims – and how to determine when protecting
the human rights of patients requires that health professionals turn state interests
aside.51
Guidance is especially murky in cases where state complicity consists only of health
professionals doing nothing, passively accepting situations that contribute to
violations of human rights. In these cases, the protection of human rights requires
an affirmative stance by the health professional in favor of the patient or larger
community. Ethical guidance provided to health professionals is largely silent on
questions of advocacy, providing space for the state to encourage health
professionals to conceptualize their function narrowly so as not to interfere with its
priorities.
Similar gaps in guidance and training, together with pressures to conform, exist in
circumstances where health professionals confront often-embedded cultural
prejudices that, when applied to health care, interfere with human rights. Examples
include denial of reproductive health services to women and institutionalized
discrimination in health services. Yielding to these policies and attitudes makes
health professionals complicit in human rights violations, but they have few places to
turn to develop appropriate responses. To break established patterns of care requires
attention not only to general, overarching statements about health professionals’
human rights obligations, but guidance about responses in particular circumstances,
so that health professionals can assume the responsibilities a human rights-
respecting posture asks of them.
Systemic Flaws and Limitations
Institutional structures often inhibit health professionals from meeting their human
rights obligations. These structures include: the nature of employment relationships
with the state; administrative mechanisms that lack procedures for contesting state
demands; disincentives to promote human rights; and licensing and professional
organizations that play no part in providing support to health professionals when
they are challenged in meeting their human rights obligations. Especially in highly
politicized or repressive environments, institutional structures to support responses
consistent with the human rights of patients are non-existent or ineffective, forcing
the individual health professional to have to make wrenching choices that may
require him or her to risk personal safety.
To address the problem of dual loyalty and human rights, the relationship of the
health professional to the state (particularly where the health professional is an
employee of the state) must be re-structured. This relationship should protect the
independence of the health professional from state pressures, minimizing the
compulsion to succumb to the state’s demands and expectations. Administrative
mechanisms to protect whistle blowers must be established. In addition, licensing
boards and professional associations need mechanisms to support health
professionals who seek to comply with their ethical and human rights obligations in
the face of state demands to the contrary. Collective action by colleagues in the
professions may be required to enable individual health professionals to fulfill their
obligations. For this reason, medical, nursing and other organizations should protect
and advocate for colleagues who are at risk of becoming engaged in human rights
abuses.
The Larger Social Context in which Dual Loyalty Occurs
Lack of guidance and support for health professionals is especially poignant in an
environment where the health system itself violates human rights because it fails to
meet basic health needs, because distribution of existing resources is inequitable, or
because of racial, gender or ethnic discrimination. Practicing in such an environment
can lead the health professional to become complicit in human rights violations
despite the professional’s personal commitment to human rights.
For example, in some societies systematic racial or ethnic discrimination pervades
health policy. A primary care physician who denies or limits care in the service of
discriminatory policies elevates conformance to state policies over loyalty to patient
needs. In the same vein, social policies that reduce women’s ability to protect their
reproductive health may lead health professionals to deny women the means to
protect their health. The more the health professional “adjusts” his or her conduct to
the constraints and inequities built into the system, the more the professional
participates in the violation.52
The systemic nature of role conflict may constrain the power of the individual
practitioner to fulfill the human rights of individual patients and communities of
patients for whom the practitioner has responsibilities. These communities may
include diverse patient populations as well as groups of people often marginalized
and neglected, many of whom do not seek care but are in serious need of care. The
health professional will often have obligations to all members of the community
beyond those seen as patients in clinical settings that raise challenging ethical
questions, requiring them to affirm human rights.
Professional organizations and codes of conduct have begun to acknowledge the
systemic dimensions of dual loyalty problems. The Turkish Medical Association, for
example, has been active both in seeking to end torture and to protect physicians
who are pressured not to report it. The British Medical Association is addressing the
roles of physicians who practice in prisons and other difficult settings. Nevertheless,
a great deal more needs to be done. Indeed, in most countries there is typically no
connection made between institutionalized or structural discrimination, inequity, and
the ethical requirements of practice. Moreover, the codes and associations of health
professionals by and large address only the behavior of individual clinicians, giving
little attention to the obligations of the profession as a whole.
Scope of the Project and Products
Roles of Health Professionals
The work of health professionals is broad. At its core is the clinical consultation with
patients. Many health professionals also engage in non-clinical roles, for example,
public health work, and in policy-making roles as administrators or directors.
Six roles of health professionals can potentially bring about dual loyalty conflicts.
They are:
1.
clinicians providing one-on-one, direct patient care;
2.
clinicians engaged in evaluation for the state and state-approved purposes
(e.g. refugee status determination; fitness to stand trial; workplace
examinations such as for pre-employment);
3.
health professionals responsible for the comprehensive health care of a
defined practice population (or group of persons) with extended responsibility
for the health outcomes of a community (e.g. the community-oriented
primary care approach, which is not only curative care, but includes health
promotion, prevention, rehabilitation and palliation);
4.
public health workers who provide strictly non-clinical services such as health
education, outreach and promotion interventions (e.g. health inspectors,
industrial hygienists, epidemiologists, monitoring and surveillance officers);
5. health policy makers in either public or private settings (e.g. health systems
planners and administrators);
6. research involving human subjects.
Given the breadth of health professionals’ work, dual loyalty conflicts that implicate
human rights will be correspondingly broad. The focus of this project, however, is
limited to 1) dual loyalty and human rights in the context of clinical evaluation and
treatment, 2) to the evaluation function, and 3) to responsibilities for groups and
communities that are in serious need of care.
The ambit of this project does not extend to 4)public health roles that may violate
human rights or to 5)health professionals engaged in health policy and
administration. Those in this category, however, often make decisions on behalf of
public bodies and thus are subject to human rights law.
Public health roles are excluded from this project’s scope because these roles present
different issues, owing to the absence of a clinical relationship between patient and
health care provider. Moreover, as discussed above, ethics and human rights
analysis in public health is not as well developed as for clinical medicine.53
Exclusion
of public health roles does not diminish the importance of the need to respect human
rights in public health practice and policy development. Rather, it acknowledges the
complexity of these issues and the need for further work.54
We view this work as a
critical step toward aligning public health practice with promotion of human rights.
The role of health professionals in research using human subjects (category 6)
clearly raises dual loyalty concerns. These conflicts have gained an enormous
amount of attention in recent years in connection with tests of drug efficacy in
developing countries, chemical and biological weapons research, and other matters.
Because of the efforts focused specially on these concerns, in the Declaration of
Helsinki55
and elsewhere, human subject research is not addressed in this project
except in institutions like prisons and the military, where a closed environment raises
particularly acute human rights issues.
Public and Private Domains of Professional Duties to Protect
Human Rights
In defining the scope of the project, it is important to consider the roles of both
health professionals and the third parties that compete with the patient for the
loyalty of the health professional. Because human rights law generally applies to
actions by the state, the guidelines and institutional mechanisms proposed mainly
address conflicts between state’s demands on health professionals and their duties to
patients. As noted above, however, states have the obligation not only to refrain
from committing human rights violations, but also to take affirmative steps to
protect people from human rights violations by private entities. Discrimination in civil
society is an important example. The Convention on the Elimination of all forms of
Racial Discrimination requires states to take affirmative steps to eliminate racial
discrimination in health56
in both public and private spheres. Similarly, the right to
the highest attainable standard of health requires states to protect individuals by
controlling distribution of unsafe products and to assure that health plans operated
by private entities provide non-discriminatory access and do not constitute a threat
to the availability, accessibility, acceptability and quality of health facilities.57
The guidelines and institutional mechanisms this project proposes reflect the reach of
international human rights obligations. Accordingly, they apply to cases in which (a)
the health professional subordinates loyalty to the patient to the interests of the
state in a manner that violates human rights or (b) the health professional
subordinates loyalty to the patient to the interests of a private non-state third party
in circumstances where the state has an obligation to assure that private actors do
not violate human rights.
The adjacent diagrams illustrate these areas of intersection and, thus, the scope of
this project. In Figure 1, Circle A, state obligations to protect human rights,
represents the realm of human rights protection, mostly where the state itself is the
actor. Circle B, private actions, refers to activities and relationships in the private
sphere, most of which are beyond the reach of human rights protection. The two
areas overlap where the state has an obligation to assure the protection of human
rights in some private relationships, for example to eliminate discrimination on the
basis of race or sex in the workplace, in health care institutions, and elsewhere. This
area is labeled C, private action subject to human rights protection.
As represented in Figure 2, dual loyalty conflicts may or may not have implications
for human rights. The realm of dual loyalty concerns is represented by the entire
oval in Figure 2, and shows that dual loyalty may arise in either the public (e.g.,
physician employed by the state) or private (physician working privately) spheres.
The shaded area illustrates where human rights obligations apply to dual loyalty: in
the public sector and in that portion of private activity where the state is obligated to
assure the protection of human rights. It is only partially shaded to exclude those
areas of private action in which the state has no responsibility to assure the
protection of human rights. The shaded area represents the scope of professional
conduct covered by this project.
Products
Chapter II contains documented examples in a wide variety of contexts and
circumstances to illustrate the ways in which dual loyalty conflicts place health
professionals at risk of violating the human rights of patients. Chapter III provides
general guidelines for professional practice that are designed to prevent these
violations, and are applicable to all health professionals in all settings. A second set
of guidelines, in chapter IV, consists of more detailed and tailored guidelines
designed to apply in settings where dual loyalty problems are especially prevalent.
These include prisons, the military, evaluations for state purposes, refugee and
immigrant health, and the workplace. Finally, chapter V proposes institutional
mechanisms designed to support health professionals’ efforts to comply with the
guidelines.
The Working Group also encourages the development of a “toolkit” that can be used
by clinicians and practitioners to address dual loyalty human rights conflicts.
II. Dual Loyalty and Human Rights: The
Dimensions of the Problem
• Overview
• (A) Using medical skills or expertise on behalf of the state to inflict
pain or physical or psychological harm on an individual that is not a
legitimate part of medical treatment
o Participating in torture and punishment
o Participation of health professionals in administration of the death
penalty
o Participation in forced abortion, sterilization and contraception and
other violations of reproductive health rights relating to bodily integrity
o Degrading Physical Examinations that Violate Human Rights
o Female Genital Mutilation
o Use of chemical and physical restraints and intrusive examinations to
enhance security interests of a prison, detention center, or other
institution
• (B) Subordinating independent medical judgment, in therapeutic or
evaluative settings, to support medical conclusions favorable to the
state
• (C) Limiting or denying medical treatment or information related to
treatment to an individual to effectuate policy of the state in a
manner that violates the patient’s human rights
o Denial of or restrictions on care based on gender, ethnic or racial
discrimination, sexual orientation or immigration status
o Denial of care for political reasons and during armed conflicts
o Denial of appropriate care to prisoners, detainees, and institutionalized
people
o Withholding information about health or health services
o The special problem of hunger strikers
o Denial of care because of inequities in health care in society
• (D) Disclosing confidential patient information to state authorities or
powerful non-state actor
• (E) Performing evaluations for legal or administrative purposes in a
manner that implicate human rights
• (F) Remaining silent in the face of human rights abuses committed
against individuals and groups in the care of health professionals
• Conclusion
Overview
Dual loyalty conflicts in health practice give rise to human rights violations in all
societies. They do so particularly in societies that lack freedom of expression and
association, where state officials demand that health professionals contribute to the
suppression of dissent. But human rights violations stemming from dual loyalty take
place even in the most open and free societies. They occur most frequently in closed
settings like prisons and detention facilities, where there is often deliberate
ambiguity about the health professional’s role in the institution, and in settings
where individuals who are otherwise subjected to social or legalized discrimination
seek health care.
The circumstances of dual loyalty conflicts are grouped into three categories: to
further public health objectives, to serve non-medical ends such as state security or
religious or cultural values, and to evaluate individuals for social purposes ranging
from receipt of public benefits to determination of criminal responsibility.58
These
categories clarify the justifications and indeed the origins of demands for lending
clinical expertise to state or other third-party purposes.
From a health practice point of view, however, the problem of dual loyalty and
human rights may best be illustrated by the types of conduct by health professionals
that may violate the human rights of patients. This chapter thus provides examples
grouped by clinical practices that violate human rights at the behest of or to support
the state or other third party,59
rather than by the type of justification. The
examples are not meant to be exhaustive but illustrative, as an aid to understanding
the problem and pointing to solutions.
The types of dual loyalty practices that violate human rights are as follows:
(A) Using medical skills or expertise on behalf of the state or other third party to
inflict pain or physical or psychological harm on an individual that is not a legitimate
part of medical treatment.
(B) Subordinating independent judgment, whether in evaluative or treatment
settings, to support conclusions favoring the state or other third party.
(C) Limiting or denying medical treatment or information related to treatment of an
individual in order to effectuate policy or practice of the state or other third party.
(D) Disclosing confidential patient information to state authorities or other third
parties in circumstances that violate human rights.
(E) Performing evaluations for state or private purposes in a manner that facilitates
violations of human rights.
(F) Remaining silent in the face of human rights abuses committed against
individuals in the care of health professionals.
In each situation, the chapter discusses which human rights are infringed and
identifies guidelines that international medical and nursing organizations have issued
to address them. It addresses ambiguities and gaps in the codes of conduct and,
where relevant, the reasons why even explicit guidelines for conduct have not been
effective in preventing the health professional from becoming embroiled, often
reluctantly or unwittingly, in human rights violations against patients. In some cases,
health professionals are following legal requirements, in others, adhering to cultural
practices.
A. Using medical skills or expertise on behalf of the
state to inflict pain or physical or psychological harm on
an individual that is not a legitimate part of medical
treatment.
The deliberate infliction of harm on a patient at the behest of the state through the
use of medical skills,60
for political or other reasons, represents the starkest case of
health professionals participating in human rights violations. These practices violate
the rights to life, security of the person, and freedom from torture and cruel and
inhuman treatment.61
Not surprisingly, the infliction of harm is proscribed by ethical
codes as inconsistent with the most fundamental obligations of health professionals.
Nevertheless, ambiguities and gaps remain in the ethical guidance available to health
professionals faced with state abuses.
Participating in torture and punishment
The record of health professionals participating in torture, advising torturers on
methods, evaluating individuals to determine whether they can survive additional
torture, and otherwise using medical skills in the process of torture is well-
documented.62
In the most extreme cases, health professionals have acted as
torturers themselves or provided medical advice in the techniques of torture. Health
professionals in South Africa advised torturers on ways to break down the resistance
of victims and to mask the existence of torture.63
Under the Pinochet regime in
Chile, medical personnel administered overdoses of drugs that led to the eventual
deaths of detainees. Other forms of torture applied by the Chilean secret police that
required medical knowledge suggested the participation of physicians.64
Perhaps more frequently, health professionals are called upon to evaluate victims for
torture. Numerous reports have emerged from Venezuela of medical evaluations that
assisted in torture. In one case, in 1989, a 32-year-old man was detained and
tortured at the Dirección de Inteligencia Militar in Caracas. Over the course of 24
hours, he suffered attempted strangulation and beatings. He reported that a doctor
was present during his torture and recalled that he was allowed periods of rest and
was even given medication when his blood pressure was found to be too high.65
In
Chile, in 1986, the Colegio Médico de Chile found that health professionals supported
the work of the security forces, including by certifying the “good health” of detainees
before and after torture.66
In Israel, where torture during interrogation in the form
of “moderate physical pressure” has been well documented,67
physicians have been
asked to examine individuals before interrogation involving torture and provide
treatment during it.68
Even more common is the participation of health professionals in the aftermath of
torture, particularly in covering it up. The most well-documented case is that of
Turkey, where physicians working in detention facilities were pressured not only to
omit positive indications of torture from their medical reports, but also to change
reports written by other health professionals containing evidence of torture.69
In
Uruguay, a military physician was found guilty of “grave ethical fault” for signing a
misleading autopsy report in a case where a political prisoner died after having been
tortured.70
One physician in a republic of the former Soviet Union facing
circumstances of reprisals for reporting torture felt so compelled to omit signs of
abuse on official records that he kept a second, unofficial record, to be presented
when the climate of repression subsided.71
The most common form of complicity of all, however, is passive acceptance,
especially where the health professional’s own clinical findings are known by the
clinician to be used by authorities to inflict torture. In Uruguay, for example,
physicians working at the Libertad Prison were aware that the authorities sought to
make the prisoners suffer psychologically and used the clinical information provided
by physicians in routine examinations to further this purpose. But the physicians did
not object and continued to furnish the reports. As a result, the physicians became
“cogs in an apparatus of torture designed to uncover and crush all that was seen as
subversive.”72
Equally disturbing is silence by professional organizations in the face
of torture in detention facilities that is brought to their attention.73
Health professionals have also participated in inflicting punishment in settings other
than detention or interrogation, especially legally authorized corporal punishment.74
In Malaysia, a law on caning as a punishment requires medical oversight.75
Physicians in Iraq76
and Afghanistan77 have provided their surgical skills for
amputations employed as punishment. Chinese psychiatrists have subjected patients
hospitalized for “political mania,” essentially opposition to state policies, to beatings
as part of a regime of punishing dissidents and have been complicit in the state’s
persecution of Falun Gong practitioners, administering debilitating doses of non-
indicated medication, some of which have been fatal.78
Many of these practices are explicitly prohibited by the World Medical Association’s
Declaration of Tokyo, which states that “the doctor shall not provide any…knowledge
to facilitate the practice of torture or other forms of cruel, inhuman or degrading
treatment, or to diminish the ability of the victim to resist such treatment.”79
The
UN Principles of Medical Ethics specifically hold that it is a contravention of medical
ethics for a doctor to “participate in the certification of the fitness of prisoners or
detainees for any form of treatment or punishment that may adversely affect their
physical or mental health.”80
The International Council of Nurses also prohibits a
nurse’s “participation in any deliberate infliction of physical or mental suffering.”81
The World Psychiatric Association’s Declaration of Hawaii establishes guidelines to
prevent the misuse of psychiatric concepts, knowledge, and technology.82
It states,
“the psychiatrist must on no account utilize the tools of his profession once the
absence of psychiatric illness has been established. If a patient or some other third
party demands actions contrary to scientific knowledge or ethical principles, the
psychiatrist must refuse to cooperate.”83
The UN’s 1991 Principles for the Protection
of Persons with Mental Illness further prohibit diagnosis of mental illness on the basis
of a person’s political values or religious beliefs.84
Guidelines issued by the
International Council of Prison Medical Services take the same position.85
Yet these rules do not fully address the problem of complicity in torture and abuse by
health professionals. Their application is especially ambiguous where the
professional’s role in torture is not overt participation but passive acquiescence or
silence, such as where otherwise routine clinical work is used by authorities to inflict
harm on prisoners, where a health professional believes that presence during torture
can lessen the violence inflicted,86
or where professionals are aware of torture but
simply say nothing.87
Moreover, existing rules do not address the coercive
circumstances that may make it so difficult to resist state demands. Sometimes
health professionals are required by employers to take part in violations. In other
circumstances they are subject to sanction if they speak up.
In 1997, the WMA adopted a Declaration seeking organizational support for
physicians who refuse to participate in torture or who provide rehabilitation services
to its victims.88
It called for national medical associations to support physicians
under pressure to participate in torture. Unfortunately, most national medical
associations remain weak in providing this support and enforcing existing standards.
Few international supports exist to strengthen their resolve. Additionally,
mechanisms to prevent health professionals from being subjected to pressures to
cooperate in the first place, for example through employment relationships, need to
be developed.
Participation of health professionals in administration of the
death penalty
Even though the International Covenant on Civil and Political Rights does not declare
the death penalty a human rights violation per se, other human rights treaties do
outlaw its use,89
and in 1998, the United Nations Human Rights Commission called
for a moratorium on executions with a view toward its universal abolition.
Most international medical and nursing codes prohibit involvement of these
professionals in capital punishment.90
The World Medical Association’s Resolution on
Physician Participation in Capital Punishment (2000) prohibits physician participation
in any phase of the execution process.91
The World Psychiatric Association’s
Declaration on the Participation of Psychiatrists in the Death Penalty (1989) and the
Declaration of Madrid (1996), as well as the International Council of Nurses’ (ICN)
Resolution on the Death Penalty and Participation by Nurses in Execution (1998),
prohibit members of the profession from taking part in actions related to execution.
The ICN resolution holds that participation, “either directly or indirectly, in the
immediate preparation for and carrying out of state authorized executions,” is a
violation of ethical standards.92
Other medical and human rights organizations have
taken this absolutist position as well.93
Despite these resolutions, participation is relatively common, in part because the
laws of many countries still uphold the participation of medical personnel in state
executions.94
The problem is especially severe in the United States, where doctors
and nurses may be involved in administering the lethal dose of drugs, inserting the
intravenous line that carries the lethal dose, or certifying or pronouncing death.95
Disciplinary and regulatory bodies have refused to take action against health
professionals. Moreover, in a case in Illinois, after a court heard arguments that
physicians who participate in capital punishment should be the subject of disciplinary
sanctions, the state legislature declared that such participation did not involve the
practice of medicine and therefore did not fall within the jurisdiction of the licensing
agency.96
In Turkey and Japan, among other countries, physicians are required to
be present during execution by hanging. They are then required to certify that death
has occurred.97
Thailand, having proposed the introduction of death by lethal
injection, is likely to require health professionals to assess the most effective lethal
cocktail. The government of Swaziland has also indicated an interest in using this
method, with injections to be administered by doctors.98
Moreover, despite the international codes, there remains debate about what conduct
amounts to “participation.” Administering lethal injections and pronouncing death are
clearly proscribed, while providing expert forensic testimony in a criminal trial that
could ultimately lead to execution is generally considered acceptable because it is not
linked directly to an execution. But some professional organizations take the position
that assessments of competency to be executed are also permissible, even though
such assessments engage the psychiatrist quite directly in the machinery of
execution by requiring him or her to pronounce a person fit for execution.99
Thus, there remains some ambiguity in directives given to health professionals.100
Moreover, professional and regulatory bodies have not sufficiently protected health
professionals working in prisons from being ordered to participate, and have not
launched efforts to change laws mandating participation. Further, even to the extent
clear rules exist, medical discipline is not well suited to curb even universally
prohibited forms of participation practice through the disciplinary process.
Participation in forced abortion, sterilization and contraception
and other violations of reproductive health rights relating to
bodily integrity
Forced abortion and involuntary sterilization severely infringe on the rights of women
to privacy, dignity, reproductive freedom and bodily integrity. The UN committee
responsible for interpreting the Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW) has stated that “compulsory sterilization
and abortion adversely affect women’s physical and mental health and infringe on
the right of women to decide on the number and spacing of their children.”101
The
1994 International Conference on Population and Development (the Cairo
Conference) proclaims that these rights are based on the recognition of the basic
right of all couples and individuals to attain the highest standard of sexual and
reproductive health by deciding freely and responsibly the number, spacing and
timing of their children and to have the information and means to do so.102
A
human rights approach recognizes the importance of respect for diverse cultures, but
draws a line where these practices violate such fundamental guarantees.
Yet medical participation in forced abortion and sterilization is relatively common. In
China, “violence against women, including coercive family planning practices that
sometimes include forced abortion and forced sterilization” is common and continues
to worsen.103
It is clear that physicians are involved in performing the abortions,
even if they feel pressured by state authorities to do so.104
Forced sterilization of
women is reported to be common in many parts of Asia and Latin America.105
In the
Indian state of Kerala, health professionals cooperated in government population
control programs that often coerced poor women into consenting to be sterilized.
Women reported being herded into clinics like animals to undergo sterilization
operations at the hands of state physicians.106
Health professionals in South Africa
prescibed injectable contraceptives for black women after childbirth as a result of
national policies that made the control of black people’s reproduction a primary
objective that did not reflect the choices made by the women.107
In many countries, physicians and nurses participate in involuntary sterilization of
people with (or believed to have) mental retardation. The practice was common in
the United States until the 1970’s, and remains in effect elsewhere. In Australia, a
1997 report commissioned by the government found that during a five-year period,
over 1,000 women and girls with mental retardation were sterilized by surgeons in
the country’s public health system. Australia’s High Court deemed such sterilizations
illegal.108
The health community’s ethical guidance counsels respect for voluntary
contraception and reproductive choice. The World Medical Association recognizes that
“the ability to regulate and control fertility should be regarded as a principal
component of women’s physical and mental health and social well-being.”109
This
and national declarations, however, appear to have had little impact on health
professionals who practice in societies where the practices occur. In the absence of
clear imperatives accompanied by training and support, they understandably tend to
follow cultural practices, some of which are built into law.
Degrading Physical Examinations that Violate Human Rights
Health professionals may also be called upon to conduct degrading or discriminatory
examinations, contravening human rights standards that require respect for dignity
and prohibit discrimination.110
In apartheid South Africa, for example, health
professionals acquiesced in a policy of conducting degrading examinations in the
mining industry, where employees were brought into a hall en masse and publicly
checked for signs of sexually transmitted diseases.111
In some societies, physicians are called upon to conduct virginity examinations on
women and girls, either for state purposes (e.g. school admission) or to reinforce
cultural values or sexual mores. A survey conducted in Turkey over a six month
period found that while 68% of the physicians interviewed believed “virginity”
examinations should only be conducted if there is a reasonable suspicion of sexual
assault, nearly one out of every three virginity examinations they conducted was
motivated by social reasons. Of the participating physicians, 58% agreed that at
least half of the women who have virginity examinations do so against their will.
Another 25% of the participating physicians believed such was the case in at least 9
out of 10 examinations.112
The Turkish Medical Association (TMA) has continued to stress that even in the face
of strong cultural beliefs about the importance of virginity in women and girls, the
physician’s most fundamental responsibility remains the health of the patient. While
the TMA, along with the Izmir Chamber, has continued to condemn the practice of
virginity examinations as “an assault to the body and mental integrity of the
person,”113
very little has changed due to the lack of regulatory mechanisms to curb
the practice. As in other areas where cultural practices may collide with human
rights, health professionals continue to subordinate their own patients’ human rights
to cultural practices.
Female Genital Mutilation
Female genital mutilation (FGM), also known as female circumcision and female
genital cutting, is another traditional practice that has been recognized to violate the
human rights of women and girls throughout the world. It has been condemned in
the 1993 Vienna Declaration of the World Conference on Human Rights as well as by
the UN Commission on Human Rights.114
The World Health Organization has taken
the position that to advance health and protect the lives of women and children,
including their reproductive and psychological health, FGM must not be
institutionalized, nor should any form of FGM be performed by any health
professionals in any setting, including hospitals or other health facilities.115
The
World Medical Association (WMA) has condemned female genital mutilation and the
participation of physicians in the practice. The WMA has also urged medical
associations to stimulate both public and professional awareness of the damaging
effects of the practice and cooperate in developing strategies to prevent it.116
Similarly, the International Council of Nurses has objected to the medicalization of
the practice and has pledged to eliminate the practice of female genital mutilation by
health professionals in any setting.117
Despite these admonitions, health professionals continue to perform the surgery, and
in some countries the government permits health facilities to be used for it. They
say, with reason, that the procedure will be far safer if performed by a health
professional in a health facility. In Kenya, health professionals continued to practice
female genital mutilation in hospitals.118
In Egypt, the Health Minister’s efforts to
ban female genital mutilation in hospitals were opposed by many physicians on the
ground that the practice was safer if performed in a hospital.119
Seen in this light,
female genital cutting does not represent a conflict, since the health professional’s
participation protects the individual’s health. But that is precisely why clearer
guidance is needed: women are better protected if the procedure is not performed at
all.
Use of chemical and physical restraints and intrusive
examinations to enhance security interests of a prison,
detention center, or other institution
Physicians and nurses are often asked or required to use medical skills to serve the
security interests of an institution by ordering physical or chemical restraints,120
or
isolation, that have a disciplinary or security rather than therapeutic purpose. These
procedures can place individuals at significant health risk. In some facilities, health
professionals must perform body cavity searches for contraband. This is as true in
psychiatric and mental retardation facilities as it is in prisons. In the United Kingdom,
for example, intimate body searches are permitted in certain circumstances, and
doctors are asked to participate if detainees are believed to be concealing drugs or
weapons.121
The use of medical skills solely to serve the security or disciplinary interests of the
state is a clear breach of the ethical duty of health professionals to be loyal to their
patients, even if the practices, when carried out by security personnel, are not in
themselves violations of human rights. In these cases it is the perversion of the
fundamental medical role that constitutes the ethical violation. For even if the state
has a rationale for the activity, it is still an interference with the obligation of a
health professional to intervene only to benefit an individual. The lack of therapeutic
purpose is an affront to the person’s dignity as well as bodily integrity.
International codes generally prohibit the use of these interventions for security
purposes, but nevertheless leave some gaps. The UN Principles of Medical Ethics
state that health professionals must not “participate in any procedure for restraining
a prisoner or detainee” unless the procedure is medically determined to be necessary
for the health of the prisoner, fellow prisoners, or guardians, and presents no hazard
to the prisoner’s mental and physical health.122
Similarly, the UN Minimum Rules for
the Treatment of Prisoners prohibit the use of physical restraints on prisoners but do
allow medical officers to authorize the use of restraints on medical grounds.123
“Medical grounds,” however, is undefined, and neither set of standards explicitly
addresses whether a health professional is permitted to authorize restraints on non-
medical grounds. The UN Principles for the Protection of Persons with Mental Illness
prohibit the use of medication “for the convenience of others” and limit the use of
physical restraints to circumstances where necessary “to prevent imminent or
immediate harm to the patient or to other persons.”124
The WMA position is more equivocal. It permits medical personnel to participate in
body cavity searches, holding that bodily harm could be done if a non-medically
trained professional does the search.125
It further provides that the physician who
performs the search should not be the one providing medical care to the patient, and
that the physician should explain his role to the prisoner, including the fact that the
usual conditions of medical confidentiality do not apply. This compromised position is
insufficient to protect human rights. As the British Medical Association (BMA) and
others have observed, allowing doctors to participate in a procedure that requires no
medical skills makes the doctor a wielder of force and thus contradicts the doctor’s
obligation to meet the medical needs of the patient. It also provokes an element of
distrust between doctor and patient. Therefore, according to BMA policy, health
professionals should only perform body searches when they can obtain consent on
the part of the patient. The International Council of Nurses’ guidelines take the
absolutist position that nurses employed in prison health services should “not
assume functions of prison security personnel, such as body searches conducted for
the purpose of prison security.”126
The co-option of health professionals for security purposes is not simply a product of
ambiguous rules. Sometimes lines of authority permit administrators to order health
professionals to engage in these practices. Moreover, even when health professionals
report to a separate agency, such as a health department or ministry, they are often
steeped in the culture of the institution. When they engage in the work full time,
they tend to be isolated from colleagues and perspectives that could help them
resist. And even when they do resist the pressure to serve institutional needs over
patient human rights, they often receive little support from peers in the health
community or from their medical associations
B. Subordinating independent medical judgment, in
therapeutic or evaluative settings, to support medical
conclusions favorable to the state
127
The principles of honesty and integrity are central to professionalism and
professional ethics. Some medical ethics codes highlight the need for honest
reporting, especially where human rights violations are taking place. The Tokyo
Declaration states that physicians should not “countenance” or witness torture and
other cruel procedures, and further says that the clinician should have full
independence when deciding on the care of the patient.128
International codes
mandate that health professionals certify only what they know to be true.129
Moreover, the WMA’s International Code of Medical Ethics stipulates that a physician
shall “certify only that which he has personally verified.”130
Yet there have been occasions when health professionals have fashioned medical
conclusions in either therapeutic or evaluative settings to favor state policy or results
sought by the state. Sometimes these practices are undertaken to mask violations of
human rights committed by the state. Health professionals may omit crucial
information on medical records, disguise findings, falsify records, or passively accept
representations of state agents when the medical evidence indicates otherwise.
A number of such cases have arisen regarding the reports of abuses or deaths in
detention. South Africa’s Truth and Reconciliation Commission’s hearings on the
health sector brought submissions on falsification of medical or autopsy reports.131
In one case, psychiatrists, colluding with security forces, gave false testimony in
order to cover up abuse of political detainees and protect security forces. In another,
a doctor allegedly advised the police to abuse an unconscious prisoner by forcing
porridge down a detainee’s nose so that in case of death, the cause would appear to
be aspiration of food during seizure rather than head injury due to torture.132
The
work and files of Dr. Jonathan Gluckman, a private pathologist, report the extensive
complicity of health professionals in falsifying death certificates and medical records
to shift responsibility away from state forces. Gluckman recorded reports that failed
to mention bullet wounds, neglect and clear indications of trauma resulting from
torture and prolonged abuse.133
The most infamous South African case concerned the death in detention of leading
political activist Steve Biko. After his arrest, two physicians failed to record or
request information about signs of brain damage as a result of police beatings. They
failed to make note of or question the fact that when they examined him, Biko was
lying naked and manacled to a grille. They falsely recorded Biko’s condition as
normal despite obvious signs to the contrary. Recording the truth would have meant
incriminating the police and also would have required the doctors to provide
appropriate treatment to Steve Biko.134
In another example of falsification, psychiatrists in China and the Soviet Union made
findings of mental illness and imposed “appropriate” interventions to suppress
political dissent or religious freedom. Soviet and Chinese psychiatrists participated in
the political use of psychiatric diagnosis to label political dissidents as having mental
illness.135
Although there remains controversy regarding the extent to which Soviet
psychiatrists believed they were employing authentic diagnosis, there exists clear
evidence that even assuming they believed in the correctness of the diagnosis, the
treatments they prescribed were especially harsh.136
The UN’s 1991 Principles for
the Protection of Persons with Mental Illness prohibit the diagnosis of mental illness
on the basis of political values or religious beliefs.137
National security interests also led to pressures to falsify reports or withhold critical
information in medical reporting. In Russia, health professionals treating patients
involved in research or testing of nuclear weapons were prohibited, until 1992, from
recording radiation sickness in patients’ medical histories.138
In other cases,
physicians gave clearance to workers to continued radiation exposure even when
they had been previously exposed to high levels of radiation.139
In the United
States, in Oak Ridge, Tennessee, because of her employment by the Department of
Justice, a physician felt obligated not to deal directly with the health problems of
workers or residents ill from exposure to nuclear waste.140
Moreover, medical
personnel working for Department of Energy contractors would “divert away” proper
treatment and attention sought by workers for symptoms and conditions caused by
workplace exposures.141
Military interests can also lead health professionals to withhold information about
health. In Russia, physicians under the supervision of military officials conducted
medical examinations of conscripts but failed to register even severe illnesses in
order to secure the required number of draftees. The practice caused a number of
deaths among soldiers.142
Although pressure to reach medical conclusions favorable to the state is typically
associated with repressive regimes or a national security apparatus, it also occurs in
open societies. For example, in 1998, Germany had an interest in repatriating
Bosnian refugees. As trauma specialists working through the Ministry of Health were
considered too sympathetic to asylum seekers, doctors with the Police Medical
Service (PMS) were called in to determine whether the refugees were “fit” for
repatriation. Lacking expertise in trauma and knowledge of human rights, the police
doctors overwhelmingly voted for repatriation, ignoring signs of trauma, failing to
use professional interpreters, and, in some cases, allowing refugees to be handcuffed
and taken to PMS headquarters if they refused to be examined. In one expert’s
judgment, “the PMS opinions were not medically oriented, but had been written for
the political purpose of overruling the expert opinions of trauma specialists and of
justifying repatriation.”143
Further, some patients “suffered severe relapses of Post-
traumatic Stress Disorder (PTSD) symptoms, including suicide attempts, after being
examined by the [Police Medical Service.]”144
Emergency room physicians in the United States have reported adhering to requests
of police to release a person to their custody rather than admitting the patient to the
hospital in accordance with their professional judgment. They have also reported that
hospital administrators would be unlikely to support their refusal to follow the wishes
of the police.
Finally, fitness evaluations for private employers can be subject to pressure to reach
conclusions favorable to the employer or to impose requirements for fitness that are
not justified by workplace requirements.145
These violations, in a variety of contexts, may be a product of identification with
state purposes, which in turn leads to abandonment of the commitment to patients
and to human rights. In these situations, health professionals may not even be
aware of the full dimensions of their departure from ethical norms. In other cases,
health professionals may be under great pressure to comply with demands from their
employer, often the state. And in some cases they face an even more complex
dilemma: by documenting abuse, they might further endanger the patient. On the
other hand, not to document is a clear betrayal of the patient and of the ethics of the
medical profession.146
C. Limiting or denying medical treatment or information
related to treatment to an individual to effectuate policy
of the state in a manner that violates the patient’s
human rights
Individuals have a right to the highest attainable standard of health and to be free
from discrimination in health services. Where state policy or practice or their own
political views calls for limiting or denying medical treatment or information on
grounds unrelated to appropriate diagnosis and treatment, health professionals again
confront a situation in which they must decide whether to uphold state policy or
uphold the rights of their patients.
Denial of or restrictions on care based on gender, ethnic or
racial discrimination, sexual orientation or immigration status
Health professionals face pressure to limit or deny care in the service of state policies
or social norms that encourage discrimination, in violation of the human right to be
free from unjust discrimination. Sometimes health professionals obey explicit
directives from the state and in other cases passively adhere to cultural or social
attitudes devaluating members of certain racial or ethnic groups, or women.
Gender discrimination in health care is pervasive throughout the world. In many
countries, women are denied access to critical health services or receive health
services of lower quality than men, or are not permitted to obtain medical care
without the consent of their husbands.147
Even in obtaining treatment for a
devastating disease like AIDS, women are less likely to gain access than men.148
Disfavored ethnic, racial and caste groups are also denied equal access to health
services due to policies enforced or adhered to at the health professional level. For
example, after the Serbian government systematically excluded Albanian Kosovar
professionals from practicing in the state health care system in Kosovo in 1989,
Serbian physicians restricted health services to Kosovar Albanian patients in crucial
ways. In defiance of their obligation to develop positive relationships with their
patients, many refused to speak the Albanian language to Albanian patients even
when they knew the language.
In South Africa, apartheid-era health professionals adhered to policies of racially
based admission to hospitals and provision of care. For instance, a “white”
ambulance could not serve black South Africans,149
and many (but not all) health
professionals adhered to government policies on segregated waiting rooms and
hospitals and acquiesced in grotesque discrimination in educating health
professionals. At a systemic level, apartheid policy required the uneven allocation of
resources so that fewer and inferior services were available to blacks. Health
professionals participated in distributing differential care in segregated facilities,
where, for blacks, beds were too few in number and treatment untimely. In
psychiatric hospitals, black South Africans were refused sheets, made to sleep on the
floor, and given inferior food. Black women were required to leave the hospital
immediately after giving birth. In these cases, the state had the resources to provide
better care, but, because of racist policies, did not. Physicians who served black
patients, then, adhered to state policy and participated in advancing the interests of
the apartheid state in violation of their patients’ human rights.150
Members of groups that face other forms of discrimination, e.g., the Dalits in South
Asia,151
the Roma in Europe, migrant workers, and refugees, all face restrictions on
access to and quality of health services. In many instances, health professionals
have little ability to control or influence discriminatory practices – although they can
often speak out against them, especially through collective action. They may also
play a role in perpetuating or passively accepting limitations in the care they offer.
Moreover, professionals may themselves reflect, consciously or unconsciously,
prevailing discriminatory attitudes and reflect them in their clinical practices. In the
United States, for example, generations of racism against African Americans has left
a legacy of discrimination in health care, and an extensive body of literature has
demonstrated continued disparities in diagnosis and treatment based on race in
clinical practice.152
Immigrants, refugees – including asylum seekers — and migrant workers are often
denied access to health care by being excluded by law from health care programs or
by prejudice against them stemming from a culture of xenophobia. These exclusions
violate the right to the highest attainable standard of health. General Comment 14 of
the U.N. Committee on Economic, Social and Cultural Rights, on the right to the
highest attainable standard of health, consistent with international treaties on the
elimination of discrimination, provides that states should not engage in “denying or
limiting equal access for all persons, including prisoners or detainees, minorities,
asylum seekers and illegal immigrants, to preventive, curative and palliative health
services; abstaining from enforcing discriminatory practices as a State policy.” 153
Violations are common. Under Proposition 187 in California, for example,
undocumented immigrants could not receive health care services, other than
emergency care, from publicly funded facilities. The law, which was overturned as
inconsistent with federal law, would have required that state employees terminate
women’s pre-natal care.154
In the Netherlands, a law proposed in 1997 would have
severely restricted medical care to undocumented immigrants. The legislation was
later revised to give “slightly less limited care.” The law was never implemented in
part because of opposition from health professionals who would have been required
to deny care.155
In both cases, many health professionals did resist compliance.
The examples above, whether involving women, immigrants, ethnic or racial groups,
or other victims of discrimination, often involve institutionalized discrimination. As
discussed in the Introduction, health professionals are not encouraged to view
practices that reflect such institutionalized discrimination as raising ethical concerns
for their own practices. As health care providers, they are often discouraged or even
repulsed by practices that prevent members of disfavored groups from having equal
access to health care, such as the allocation of fewer state resources and less than
adequate health care coverage for members of these groups (including lower
payment rates for providers). They also commonly experience the consequences of
such discrimination in their own clinical and community practices, such as higher
patient loads, less ability to provided sophisticated and clinically appropriate
interventions. But health professionals understandably often view these dimensions
of institutionalized discrimination as beyond their control and thus devoid of ethical
consequences for them; rather, they see their role only as providing the best care
they can within the frameworks they are provided, recognizing the underlying
inequitable or discriminatory nature of the health care structure. But where those
very structures are infused with racism, gender discrimination or other forms of bias,
“normal” practice, or even efforts to do one’s best under the circumstances, can
have the effect of reinforcing discrimination and can lead the provider to participate
directly in it. Ethical codes and institutional mechanisms need to address this
problem so that health professionals can escape the problem of providing
discriminatory care on account of state practices that violate human rights.
Codes of professional conduct generally prohibit discrimination based on gender, race
or other improper factors.156
But in many countries a countervailing view, that
health professionals should be able to choose whom they serve, has often
undermined the prohibition on discrimination, and in virtually every nation
disciplinary action by licensing bodies or professional associations for violations is
exceedingly rare. Moreover, even explicit prohibitions on discrimination almost never
address whether the health professional has a responsibility to address, as part of
one’s professional duty, the structural or institutional dimensions of discrimination
that prevent the professional from providing appropriate care to all even when he or
she has political space in which to challenge them.
There are exceptions. The International Federation for Gynecology and Obstetrics,
whose Committee for the Ethical Aspects of Human Reproduction places its ethical
guidance in the context of the “unique vulnerability of women because of their
reproductive function and role,” “discrimination and abuse” and “exposure to
violence, poverty, malnutrition and opportunities for education or employment.”157
The Federation therefore finds “an ethical duty to be advocates for women’s health
care.” This includes the obligation, individually and as a profession, “to monitor and
publicize indices of reproductive health and provide data to sensitize the public to
health issues and rights of women.”158
This information function should include
identifying “the social and cultural causes in each country” of the obstacles to
women’s health.159
Denial of care for political reasons and during armed conflicts
International humanitarian law – the law of armed conflict – recognizes and demands
respect for the principle of medical neutrality, which holds that in time of conflict,
medical care for wounded soldiers and civilians in the conflict region should not be
impeded. The Geneva Conventions have very specific provisions that require warring
parties to enable providers of health care to provide services to persons outside of
combat without interference, regardless of the political views or military affiliation of
the sick or wounded person.160
Human rights law also applies in that the state has
the obligation to guarantee liberty and security of the person and the right to be free
from discrimination.
These laws and principles apply to governments and warring parties but clearly have
enormous implications for health professionals as well. Simply stated, the political
views or military status of an individual should not affect the availability or quality of
health care services by a health professional. The World Medical Association’s
Declaration of Geneva holds that a physician should not allow political affiliation or
creed to affect her the duty to patients.161
The WMA’s Regulations in Time of Armed
Conflict reinforce the requirements of the Geneva Conventions by demanding the
provision of medical care irrespective of political beliefs, nationality or other non-
medical factors. Moreover, the WMA declares unequivocally, “Medical ethics in times
of armed conflict is identical to medical ethics in times of peace.”162
And the
Declaration of Tokyo by the WMA states, “A physician must have complete clinical
independence in deciding upon the care of a person for whom he or she is medically
responsible. The doctor’s fundamental role is to alleviate the distress of his or her
fellow men, and no motive, whether personal, collective, or political, shall prevail
against this higher purpose.”163
These commitments to medical neutrality often cannot withstand war or political
conflict within societies when political leaders and military commanders interfere with
medical care, often as part of a general pattern of attacks on civilians or intimidation
of opponents.164
The dual loyalty conflict arises when these impediments to
professional independence are either endorsed by or not opposed by health
professionals or their organizations, who knowingly participate in the denial of health
care to individuals associated with an enemy or political opponent. In many
circumstances, they face enormous risks in seeking to provide care without
discrimination, but at other times their conduct simply allies their medical practice
with their political views.
Military medical personnel working in occupied territories can also face demands to
withhold care. South African military doctors stationed in Namibia, whether willingly
or unwillingly, limited care to local civilian populations in the occupied territory.165
Another variation on the problem occurs within military organizations, where conflicts
between the objectives of the organizations and the health care needs of soldiers and
other personnel, especially during wartime, create dual loyalty concerns. For
example, usual principles of triage demand that in medical emergencies health
professionals attend to the most seriously injured first. But in battle commanders
may compel the physician to attend first to soldiers with less severe wounds as a
means to return them to battle quickly and maximize force strength; meanwhile, the
most seriously injured suffer or may die. Similarly, treatment of sick or traumatized
soldiers may diverge from standard civilian protocols to serve military purposes, for
example, preparing the soldier as soon as possible for new battle engagements
rather than seeking the best long term outcome for the patient.
Although the World Medical Association has sought to reinforce the application of
principles of medical ethics in all these situations, military organizations have
maintained that a conflict of loyalties is inevitable. A joint statement from the U.S.
Army and Air Force Surgeon General states that it is the position of those practicing
medicine within the armed forces that “all physicians face issues of divided loyalties
in their daily practices…the issue is real for all physicians.”166
This answer is insufficient. Rather, there must be a renewed commitment to
maintaining medical ethics in military settings and institutional supports within the
military to enable health professionals to adhere to professional ethics. They must
take proactive steps to prevent interference with medical independence and respect
human rights imperatives even in the face of military and political objectives.
Denial of appropriate care to prisoners, detainees, and
institutionalized people
Individuals have a right to appropriate clinical care as part of the right to the highest
attainable standard of health. In prison and detention settings, UN Guidelines require
no differentiation in medical care from that available to the civilian population,167
and direct that health care services must be provided at no cost. UN Principles of
Medical Ethics state, “Health personnel, particularly physicians, charged with the
medical care of prisoners and detainees have the duty to provide them with
protection of their physical and mental health and treatment of disease of the same
quality and standard as is afforded to those who are not imprisoned or detained.”168
Detailed requirements for examinations, access to health personnel and even second
opinions, and complaint procedures are designed to assure adequate health services
for prisoners. For psychiatric patients, the UN General Assembly demands that
facilities for people with mental illness receive “the same level of resources as any
other health facility,” including sufficient staff, equipment, professional care and
treatment.169
As noted in the discussions of torture and security practices, the disparity between
clearly established human rights and ethical obligations on the one hand, and day to
day health conditions and practices on the other, is nowhere clearer than in
detention facilities, prisons and psychiatric institutions. Even in the absence of
intentional abuse, human rights violations are pervasive. Throughout the world, poor
health conditions, inadequate nutrition and lack of access to health services lead to
rates of morbidity and mortality that are far higher in prisons, detention facilities,
and psychiatric and mental retardation facilities than in civilian populations. Health
professionals working in these institutions generally do not have the resources or the
authority to provide adequate medical care, much less to provide care equivalent to
standards in the larger society. The health consequences for inmates are enormous.
Tuberculosis, AIDS and mental illness in prisons are common, yet in many countries
treatment is rarely adequate or appropriate. Even in non-repressive, non-conflict-
ridden industrialized countries, health professionals often cannot provide appropriate
medical care, principally because they are not provided the resources to provide it or
because prison authorities impede their ability to provide the care. In some places,
too, the commercialization of prison care has made health professionals more
accountable to the firm running the institution than to the inmate-patient.
Like health professionals who work in settings where discrimination is common,
prisons and detention center health professionals often try to accommodate their
medical skills to the limitations imposed on them. They often need to adjust
standards of practice to institutional constraints. Health professionals outside the
institutions rarely evince interest in what goes on inside them, so clinicians working
inside prisons and detention facilities receive neither scrutiny nor support from
colleagues in civilian practice or from institutions whose mission it is to uphold
practice standards. Moreover, many health professionals working in this environment
are subject to employment arrangements that formally subordinate them to officials
responsible for institutional operation, thus compromising their ability to exercise
independent judgment. In other cases, they become part of an institutional culture
that subordinates patient interests to the financial, political, or administrative
agendas of the institution.
When ethical guidelines are brought to their attention, health professionals working
in these environments often find them meaningless in the world in which they
practice. Formal mechanisms for seeking improvements in care or protection of the
human rights of their patients are few, and speaking out to improve health care or to
change abusive conditions may jeopardize their employment. Improved guidelines
for conduct, greater professional training and support, and major changes in
structural relationships between health professionals and authorities in these
institutions is required.
Withholding information about health or health services
To fulfill individuals’ human rights, physicians and other health professionals must
share information and their judgments about health condition and health choices.
The right to the highest attainable standard of health includes the obligation of the
state to provide “health-related information, including sexual education and
information.”170
The need has become acute in the era of HIV/AIDS, and the duty is
especially crucial in the area of reproductive health, where gender discrimination,
stigma and violence against women demand an active and adequate response by
health professionals. The right of women to reproductive health information and
access to family planning services is recognized in international law. Article 10 of the
Convention to Eliminate All Forms of Discrimination Against Women states that
“States Parties shall… ensure… (h) Access to specific educational information to help
ensure the health and well-being of families, including information and advice on
family planning.”171
State policy in some countries, however, requires health professionals to withhold
information on reproductive health services, especially contraception. In several
nations in west and central Africa, such as Cameroon, Chad and Cote D’Ivoire,
“incitement to abortion” through the sale, distribution, or display of information is a
criminal offense.172
The United States places limitations on its foreign assistance by
prohibiting clinics that receive its aid from providing information about abortion. In
other countries, the state imposes no legal restrictions on the information
distribution, but inappropriately defers to cultural practices that deny women the
needed information.
There often exists little support from professional organizations and institutions to
preserve human rights in the face of these social or cultural (or legal) demands.
Except for general statements that health professionals should advance the health
and well-being of patients, international codes do not provide sufficient guidance to
them concerning their obligations to provide information to patients, and are silent
about steps to take in the face of state restrictions on information distribution. The
WMA’s International Code of Ethics holds that physicians should provide “competent
medical service in full technical and moral independence,” but does not specifically
address the obligation of doctors to provide reproductive health information to their
patients.
Only the International Federation of Gynecology and Obstetrics (FIGO) has explicitly
addressed providing adequate, accurate and relevant information as an ethical
obligation.173
Even FIGO, however, does not address the difficult problems health
professionals face where state policies restrict information distribution. Moreover,
there exists virtually no enforcement of existing guidelines, and few supports for
health professionals that seek to carry out their duty to women to inform them about
their reproductive health needs.
The special problem of hunger strikers
Forced feeding of hunger strikers does not fit naturally into the category of denial of
health care. The practice does not involve withholding medical treatment, but rather,
forcing nutrition on an individual who has freely chosen to refuse for political
reasons. One could claim that by engaging in force-feeding the health professional is
carrying out a duty to assure the physical well-being of a person, but that
perspective ignores both the bioethical principle of autonomy and the human rights
at stake, including the right to make decisions about one’s body, one’s health and
one’s choices of political strategies.
Thus, while health professionals charged with providing care must remain attentive
to the patient’s needs, a more central ethical duty is to respect the patient’s
decisions. It is important to understand, too, that prisoners and detainees often
resort to hunger strikes in protest of poor and/or abusive prison conditions or for
other political objectives. The health professional should thus resist state demands to
supervise force-feeding that effectively end the protest.
A position paper authored by the University of Witwatersand Faculty of Medicine in
South Africa, in response to hunger strikes by activists fighting Apartheid,
emphasized that “no medical personnel may apply pressure of any sort on the
hunger striker to suspend the strike although the hunger striker must be
professionally informed of the medical consequences of the hunger strike.”174
Soon
thereafter, the World Medical Association’s Declaration of Malta on Hunger Strikers
held that ultimately, the physician should make an independent decision whether to
intervene in a hunger strike, uninfluenced by “third parties whose primary interest is
not the patient’s welfare.”175
The Declaration respects the rights of hunger strikers,
saying that if a physician decides he cannot accept the patient’s decision, the patient
is entitled to be attended to by another physician.
As in other areas of dual loyalty, health professionals may be called upon by
authorities to engage in force-feeding, and have little support in resisting based on
the primacy of the individual’s choices.
Denial of care because of inequities in health care in society
Gross inequities and inequality in health services are a violation of the right to the
highest attainable standard of health. The Committee on Economic, Social and
Cultural Rights has interpreted the Covenant on Economic, Social and Cultural Rights
as requiring “equality of access to health care and health services.”176
It goes on to
assert that “States have a special obligation to provide those who do not have
sufficient means with the necessary health insurance and health-care facilities. . . .
Inappropriate health resource allocation can lead to discrimination that may not be
overt. For example, investments should not disproportionately favor expensive
curative health services which are often accessible only to a small, privileged fraction
of the population, rather than primary and preventive health care benefiting a far
larger part of the population.”177
The General Comment goes on to hold that violations of the right to the highest
attainable standard of health include “misallocation of public resources which results
in the non-enjoyment of the right to health by individuals or groups, particularly the
vulnerable or marginalized” and “the failure to take measures to reduce the
inequitable distribution of health facilities, goods and services.”178
The right, of course, is far from realization. As the Committee recognized, “for
millions of people throughout the world, the full enjoyment of the right to health still
remains a distant goal. Moreover, in many cases, especially for those living in
poverty, this goal is becoming increasingly remote.”179
Some major states refuse to
recognize its existence.180
Policy choices that bring about gross inequities, such as
the misallocation of a state’s health resources to serve individuals of means at the
expense of universal primary care, or the exclusion of tens of millions of people from
health insurance coverage, as occurs in the United States, are easy to identify.
Health professionals are always on the front lines when states fail to adhere to the
right to the highest attainable standard of health. In some circumstances, moreover,
a state’s failure can bring about dual loyalty conflicts for health professionals, just as
a health professional who practices in a discriminatory environment adjusts the
interventions she makes to conform to discriminatory state policies and practices.
For example, in South Africa, a provincial health minister ordered a physician at a
health clinic not to provide anti-retroviral medication made available at no cost to
rape victims, despite the fact that the medication is available to the insured
population.181
The physician’s view was that adhering to the government’s policy of
denying medication to uninsured people unjustifiably subordinated his obligation to
affirm his patient’s right to the highest attainable standard of health.
In a related case, a state-employed pediatrician in South Africa advocated against
the state in support of a campaign for treatment access for the prevention of Mother-
to-Child-Transmission (MTCT) of HIV.182
Despite growing national and international
evidence for the effectiveness of antiretrovirals (ARVs) in preventing MTCT, and the
spiraling HIV epidemic among South Africa’s black female population, the South
African government throughout 2000 and 2001 persistently refused to provide ARVs
as part of a comprehensive MTCT prevention program. This treatment was, many
believed, not only affordable, but also the government’s obligation to provide, given
the requirements of South Africa’s Constitution progressively to realize the right of
access to health care.183
Faced with the ever-increasing number of HIV-infected
infants among his patients, and the intransigence of the government, the
pediatrician testified in a Constitutional Court hearing that finally led to a court
decision compelling the South African government to develop a comprehensive MTCT
program.184
The clinicians in the two cases faced inequitable policies that denied the right of
access to health care to vulnerable and marginalized populations, and both chose to
act in favor of the rights of their patients, the former by resisting state restrictions,
the latter by actively joining arms with an advocacy nongovernmental organization to
challenge state policy. Although one of the physicians suffered for his action, it took
place in the context of a political environment amenable to human rights
interventions. It is more common, however, and in many circumstances the only
apparently rational option, for physicians to adjust their medical interventions to the
constraints they face and offer the best services they can under the circumstances.
Especially in environments of scarce resources or explicit limitations on kinds of care
available to the poor, they have few options but to engage in forms of triage. For
example, physicians working in hospitals in the United States must provide
emergency care to patients, but may then be required to discharge them once the
emergency is addressed if they are uninsured or cannot pay, even though the
condition remains unresolved.
Associations of health professionals have not explicitly recognized the dual loyalty
problem in this context. Nor have they taken firm steps toward affirming the
obligation of health professionals to work individually and collectively for changes in
state policy that would ameliorate the inequality in health services.185
A full analysis
and resolution of these dual loyalty conflicts is beyond the scope of this project, but
addressing it should be next on the agenda of those seeking to advance health and
human rights.
D. Disclosing confidential patient information to state
authorities or powerful non-state actor
The duty of confidentiality is one of the most common articulated ethical obligations
to patients, but it is also the one most subject to breach on behalf of the state. This
is paradoxical, since the duty to keep patient information confidential is usually
asserted in absolute terms. The Declaration of Geneva and the International Code of
Medical Ethics, for example, state the duty unequivocally and list no exceptions.
Codes even take the position that confidentiality is sacrosanct even in prisons.186
Yet the duty of confidentiality for health professionals is replete with exceptions
designed to serve a range of accepted social purposes. These include the prevention
or control of epidemics, the protection of third parties, especially children, from
harm, the evaluation of claims to social benefits, and the collection of statistical data
about population health.
Some breaches of confidentiality are thus not considered abuses of human rights.187
But there has been little guidance for health professionals to discern circumstances
where breaking confidentiality is acceptable and where it constitutes an abuse of
human rights. Mechanisms to ensure protection of confidentiality in these
circumstances are almost entirely absent. One consequence is that by revealing
information about their patients to the state, health professionals can put the liberty
or security of their patients at serious risk.
The human right to confidentiality of medical records derives from the right to
privacy recognized in the International Covenant on Civil and Political Rights.188
Although medical records or the right to confidentiality of medical records are not
specifically discussed in the Covenant, a General Comment by the UN Human Rights
Committee to the Covenant creates a framework for evaluating breaches of
confidentiality from a human rights perspective. General Comment 16 states that
“Effective measures have to be taken by States to ensure that information
concerning a person’s private life does not reach the hands of persons who are not
authorized by law to receive, process and use it, and is never used for purposes
incompatible with the Covenant.”189
The General Comment thus has two dimensions: first, protecting private information
from going to persons unauthorized by law to have it; second, ensuring that private
information is not used for purposes incompatible with the purposes of the
Covenant.190
The second requirement is especially important, for it underscores that
while legal authority to disclose the information is an important safeguard (e.g., to
protect third parties), legal authority of itself is insufficient to demonstrate that the
individual’s human rights have been protected.191
The provision that information
“never be used for purposes incompatible with the Covenant” implies that, at a
minimum, information not be disclosed in a manner that would place the person’s
liberty or security at risk unless essential for the protection of others’ liberty and
security. Further, the “compatibility” requirement suggests that disclosure must not
be discriminatory and must not result in discrimination.
Similarly, disclosures that could subject the person to torture or cruel, unusual or
degrading treatment, or would likely result in discrimination against the person, are
also prohibited.
Yet breaches of confidentiality in these circumstances are common. Those with the
most serious consequences for human rights occur where health professionals allow
prison or police officials access to information gained in a clinical relationship that
can be used by authorities to interrogate, assault, torture or prosecute the patient or
to prevent the patient from obtaining redress for harms inflicted during incarceration.
In Turkey, officials responsible for the torture of prisoners were given access to those
prisoners’ files immediately after a doctor’s examination, raising the threat of
additional torture.192
In apartheid South Africa, prison health professionals were
known to hand over prisoners’ confidential clinical files to prison officials, often to the
very perpetrators of torture, who could use that information to detain, punish or
prosecute the prisoner.193
In other cases in South Africa, health professionals were
pressured to hand over the files of recently admitted hospital patients who had been
injured in political demonstrations to the police. Such breaches by hospital personnel
were so common that individuals, though wounded, learned to stay away from
hospitals after such periods.194
These situations, moreover, place health professionals at peril, especially when they
resist demands by the state for information, for example, under mandatory reporting
laws concerning patient abuse. In Turkey, physicians have been prosecuted for
failing to give the state access to medical records and other information about
torture victims, allegedly for the purpose of identifying perpetrators and holding
them accountable.195
Breaches of confidentiality on behalf of the state also takes place in the absence of
threat and compulsion. In the United States, physicians and nurses at a South
Carolina hospital developed a joint effort with law enforcement officials to seek
incriminating evidence of cocaine use against women seeking pre-natal or obstetric
care without informing them of the consequences or securing their consent. The
medical staff provided positive drug test results to the police. Although the ostensible
purpose of the program was to compel the women into treatment, in many cases,
the disclosures resulted in the women’s prosecution and incarceration. One woman
was jailed while eight months pregnant and was forced to wear shackles during
labor. The United States Supreme Court held the practice a violation of the
constitutional protection against warrantless searches and seizures, but did not
address the ethical question.196
It seems clear, though, that the medical staff, by
freely breaching confidentiality, had become an arm of the police in infringing the
liberty and security of the women.
In Chile, too, medical personnel have breached confidentiality to further the ends of
the prosecution of abortion, which is illegal in almost all circumstances. In certain
hospitals, the medical staff share reports of women who seek medical treatment in
public hospitals after being badly injured during unsafe abortions.197
Although
abortion law is less restrictive in Namibia, a similar reporting trend among health
workers exists.198
In Russia, during the early 1990’s, doctors were required to test
all asylum-seekers and refugees for HIV and report those found to be HIV-positive to
the immigration service for immediate internment.199
Even where the breach of confidentiality does not result in prosecution, it can have
serious adverse legal and human rights consequences for the patient. In Germany,
medical evaluations for asylum were given to the intelligence agency, which
subsequently interrogated refugees about their home countries.200
In South Africa,
domestic workers – usually, black women – tested for HIV at the behest of their
employers have been summarily dismissed when attending doctors shared test
results with employers without the workers’ consent.201
Confidentiality is especially endangered in the military and in prisons and detention
facilities, where it is not uncommon for records to be shared with non-medical
personnel for reasons unrelated to the health of the individual. In some instances,
prison health professionals have allowed security personnel to be present during
clinical examinations of patients, severely restraining the extent to which patients
can freely discuss health problems, including those caused by torture and other cruel
treatment.202
Sometimes medical evaluations are held in public areas.203
The professional response to these breaches has been made more difficult by lack of
clarity about the legitimacy of the breach. As noted above, codes have taken an
absolutist stance, the effect of which has been to fail to distinguish situations where
confidential information may be disclosed to serve crucial and legitimate state
purposes and where the disclosure violates the fundamental human rights of the
individual. The codes are also deficient in providing procedural guidance. Even where
disclosure may be warranted, consent to reveal the information should be sought
through counseling, and if the patient refuses, the decision to reveal the medical
information should be done after careful consideration and after informing the
patient.
Thus, there remains a serious gap in addressing circumstances where a breach of
confidentiality can lead to a serious human rights violation by the state and in the
guidance and support to health professionals seeking to resist state demands.
Addressing the problem will require a more realistic approach to confidentiality
generally, away from the deceptively absolutist stance, as well as a commitment to
identifying situations where breaches of confidentiality place human rights at risk.
Without such a commitment, the state and health professionals each can simply add
to the long list of exceptions.204
At the same time, mechanisms must be developed to support health professionals at
risk of state demands for patient records in situations where liberty and security are
at stake.
E. Performing evaluations for legal or administrative
purposes in a manner that implicate human rights
Evaluations for state purposes are performed by health professionals in a range of
situations. These evaluations range from assessment for competency to stand trial to
assessments for social security benefits. Although they may not be in the patient’s
interests, they often serve recognized and compelling social ends, especially in
establishing the truth, and do not violate the human rights of the individual
evaluated. The existence of legitimate purposes, however, does not end the human
rights and dual loyalty concern.205
Both the methods used and the underlying
purpose of the evaluation can violate the human right to due process of law.
Even in legitimate forensic evaluations, violations of due process of law can take
place in the manner in which the evaluation is conducted. For example, health
professionals may fail to disclose the purpose of the examination, leading the
individual to believe the professional is acting in the individual’s interest when he or
she is not. Health professionals may decline to share the results of the evaluation
with the person being examined. Because of an employment relationship with the
state, they may consciously or unconsciously show bias toward a result that would
most favor the legal position of the state. Or they may disclose confidential
information about a person irrelevant to the purpose for which the evaluation is
being evaluated.
Evaluations can also infringe the right to dignity and to the highest attainable
standard of health. Rape investigations, for example, are notorious for degrading the
victim. In other instances, health professionals fail to refer the individual being
evaluated for treatment of a medical condition identified in the course of the
evaluation that needs attention.
These problems are exacerbated, of course, in environments where human rights are
generally at stake, such as oppressive regimes and closed institutions. In recent
years, international human rights standards for forensic examinations have focused
on guidelines for effective forensic examinations of alleged violations of human
rights.206
It is appropriate now to take the next step and develop standards for the
protection of individuals whose rights are at risk of violation through forensic health
practice itself. Some national professional groups, particularly in psychiatry, have
adopted ethical guidelines, but these remain limited in scope. Given the role of the
state in virtually all forensic examination, guidance is clearly needed.
Evaluations using medical knowledge are sometimes required for purposes of
compensation or assessment of fitness for work. Failure to recognize the dual loyalty
between patient and the authority to whom the health professional is contractually
bound to provide a service (state or private insurer, corporate employer, etc.) may
give rise to situations where patient rights are violated. Pre-employment
examinations, widely used at the workplace to ascertain fitness for employment in a
particular industry, are one example where the health professional may apply a
discriminatory policy to exclude applicants. For example, the use of an HIV test by
South African Airways routinely to exclude applicants from work in cabin crews was
found to be a violation of rights and not justified by public health criteria.207
Health
professionals who regard employers as entitled to the full results of medical
examinations conducted for the purpose of recommending fitness for work may
unjustifiably breach patient confidentiality.208
F. Remaining silent in the face of human rights abuses
committed against individuals and groups in the care of
health professionals
Health professionals are often on the front lines of human rights violations. In
prisons, psychiatric hospitals, and other settings, they may witness severe abuses
that have enormous health consequences. In Kosovo, for example, while under the
supervision of health professionals, patients were beaten and interrogated, chained
to radiators on a 24-hour basis, burned with cigarettes, and kept under constant
supervision by armed Serb police guards.209
In South Africa, physicians and nurses working in detention facilities under apartheid
witnessed torture and other abuses against political detainees, the consequences of
incarcerating children, and other human rights violations. Yet, with some notable
exceptions, they remained silent. When the facts were brought to the attention of
professional organizations, they by and large declined to take a position opposing
them. One young physician, Dr. Wendy Orr, who identified and reported pervasive
abuse of detainees, not only lost her position, but received only grudging support
from the organized medical community.210
The chief district surgeon of
Johannesburg, when asked why positive steps had not been taken to avoid ill
treatment of detainees during later apartheid years, said, “This is a question that
must not be put to me, it must be put to my Department, because I merely follow
instructions.”211
In the United States, medical organizations long supported racial
segregation in medical facilities.212
Sometimes physicians have recast their own
ethical norms or interpretation of norms to avoid criticizing state policies that grossly
and systematically violate the human rights of patients.213
These are extreme examples. More commonly, health professionals believe they are
powerless to affect the abuses. Others believe speaking out about abuses by others
are not their professional concern. Health professionals sometimes are prevented
from speaking out due to the requirements of their employment. As noted above,
prison or military health professionals may have supervisors who are non-medical
administrators whose duties include security, preparedness or other functions
unrelated to health care. Even if these health professionals are not overtly pressured
to place institutional needs first, their employment relationships make complying
with duties to the human rights of patients more difficult. Speaking out against
abuse is even more difficult. In certain countries, contractual obligations prevent
prison doctors from discussing outside what goes on in the prison.214
Similar constraints may bar health professionals from speaking out to protect the
health and well-being of employees exposed to hazardous workplace agents.215
In
one well-publicized case, an occupational health practitioner based at a prestigious
U.S. university identified an epidemic of lung disease related to a newly encountered
workplace fiber exposure. He was prevented from publishing his findings, however,
under threat of litigation by the company he had researched. Despite the support of
the workforce and his colleagues, the practitioner’s university failed to stand behind
him, though his actions were designed to prevent further illness and protect the
rights of workers.216
With some exceptions, international codes generally do not guide health
professionals in situations where they might witness harm being done to a patient or
group of patients but not be involved directly in the abuse. The World Medical
Association’s International Code of Medical Ethics states that the physician shall
“always maintain the highest standards of professional conduct,” but does not
mention whether intervention for patient advocacy, or active promotion of patients’
human rights vis-à-vis the state, is included in “professional conduct.”217
Further,
while the Declaration states that the physician shall “not permit motives of profit to
influence the free and independent exercise of professional judgment on behalf of
patients,” it does not say what physicians should do when the motive is not profit,
but pressure from a third party like the state or identification with state forces.218
Guidelines of the International Council of Nurses do address the question of health
professional as witness to abuse. They provide that “nurses who have knowledge of
ill-treatment of detainees and prisoners must take appropriate action to safeguard
their rights.”219
They provide a good model for other health professions to follow.
Guidelines regarding collective professional action are developing. In 1995, the World
Medical Association enacted a resolution urging national medical associations to
provide ethical advice to doctors working in prisons, to create machinery for
investigating unethical practices by physicians in human rights, and to “protest
alleged human rights violations through communications that urge the humane
treatment of prisoners, and that seek the immediate release of those who are
imprisoned without cause.”220
Two years later, the WMA issued a Declaration
Concerning Support for Medical Doctors calling on the organized medical profession
“to support physicians experiencing difficulties as a result of their resistance to …
pressure [to act contrary to ethical principles] or as a result of their attempts to
speak out or to act against inhuman procedures.”221
This is an important step forward. The duties of an individual practitioner to speak
out, however, remain vague. The WMA’s 1997 Declaration states that physicians
have a “responsibility to honour their commitment as physicians to serve humanity
and to resist any pressure to act contrary to the ethical principles governing their
dedication to this task.”222
The WMA has not, however, clarified the duty of each
individual physician to speak out on behalf of victims of human rights violations.
Such clarification, as well as developing means for fulfilling it, remains essential.
Conclusion
The situations where health professionals, wittingly or unwittingly, subordinate the
human rights of their patients to the interests of the state are varied and wide-
ranging. Nevertheless they share some common themes: lack of awareness among
health professionals of the problem of dual loyalty and human rights, a lack guidance
on how to evaluate dual loyalty problems in human rights terms, lack of institutional
supports for those who seek to protect the human rights of their patients,
employment and others structural arrangements that prevent professionals from
resisting demands of the state or other third parties, and pressures to serve state
interests Each of these problems demands attention to address the serious and
pervasive human rights violations that result. The proposed guidelines and
institutional mechanisms that follow are designed to address all these problems.
III. Proposed General Guidelines for
Health Professional Practice
• Preamble
• Scope
• Guidelines
Preamble
These General Guidelines are designed to address how the health professional can
(1) identify situations where subordination of patient interests to those of the state
or other third party implicates human rights; (2) clarify the responsibilities of the
health professional in these situations; and (3) in conjunction with the institutional
mechanisms that follow, enable the health professional to respond appropriately,
especially where the health professional faces personal or professional risks by
adhering to obligations to the patient. Following these General Guidelines are
specialized Guidelines designed to address particular concerns in high-risk clinical
settings.
Scope
These Guidelines apply to health professionals, such as physicians and nurses, as
well as to health care personnel and health care auxiliaries who work under the
supervision of health professionals. As explained in the Introduction, they apply in
circumstances where the health professional is at risk of (a) subordinating loyalty to
the patient to the interests of the state and (b) subordinating loyalty to the patient
to the interests of a private non-state third party in circumstances where the state
has an obligation to assure that private actors do not violate human rights.
The guidelines apply to responsibilities of the health professional to individual
patients. As noted in the introduction, there are circumstances where a health
professional has responsibilities for communities of people — and these too may be
subject to dual loyalty conflicts that implicate the human rights of all members of the
community. References to “patient” or “clinical practice” in these Guidelines is meant
to encompass responsibilities to communities as well, where applicable.
Guidelines
1. The health professional should become conversant with human rights and
the implications of human rights for clinical practice through study and
training in human rights.
Commentary: The health professional’s most fundamental responsibility in relation
to the patient is to use medical skills to care for and promote the health, well-being,
and human rights of the patient. Lack of awareness of human rights and their
implications for clinical practice is one of the most significant factors leading to
human rights violations against patients.
Health professionals are not trained in human rights and generally have only the
most vague understanding of the impact human rights obligations to patients should
have on their relationships with state agents and state policies. Declarations of
medical organizations, resource materials and curricula are available to health
professionals but reach only a tiny proportion of licensed clinicians. Thus, training in
basic human rights and their relationship to medical practice is a crucially important
first step in addressing the dual loyalty and human rights problem. The scope of the
understanding should include civil and political rights as well as economic, social, and
cultural rights, and the indivisibility of such rights. This is essential so that health
professionals can understand that their ethical obligations extend to the fulfillment of
the rights to non-discrimination and to the highest attainable standard of health.
Training should encompass an understanding of rights to information needed to
protect health.
Human rights training is especially important in enabling health professionals to
understand the impact on state policies and practices in clinical relationships with
members of traditionally marginalized groups, such as refugees, racial and ethnic
minorities and women.
2. The health professional should develop skills to identify situations where
dual loyalty conflicts threaten human rights and where independent
professional judgment may be compromised.
Commentary: Training in human rights is necessary but not sufficient to guarantee
that health professionals will uphold their patients’ human rights. As the case
examples in Chapter II indicate, even when they have a general understanding of
human rights, health professionals need to recognize situations where their own
behavior toward the state and patient, including the clinical judgments they make,
puts the human rights of their patients at risk. Health professionals must develop the
skills to identify particular circumstances where dual loyalty concerns implicating
human rights arise so that “alarm bells” go off in their minds. This is as important
when they are passive bystanders to human rights abuses as when they are active
perpetrators. Though they merely observe, the human rights abuses may
nevertheless implicate them. An important aspect of the educational process is to
examine realistic case studies, including those relevant to local health care concerns
and cultural practices, in order to become familiar with real-life problems of dual
loyalty.
These skills should include the ability to understand not only where the state is itself
violating human rights, but where it has failed to comply with its obligation to protect
individuals from violations that may stem from common social practices like
discrimination or abuses against women. For example, health professionals should
understand how they may be implicated where the state has failed to protect women
from female genital mutilation.
3. The health professional must place the protection of the patient’s human
rights and well-being first whenever there exists a conflict between the
patient’s human rights and the state’s interests; this responsibility includes
affirmatively resisting demands or requests by the state or third party
interests to subordinate patient human rights to state or third party
interests.
Commentary: As noted above, the health professional has a fundamental obligation
to uphold loyalty to the patient when doing otherwise would violate the patient’s
human rights, whether the violation is committed by the state or is a result of the
state’s failure to protect individuals from practices that violate human rights.
Deference to cultural norms or social practices, such as denial of information about
reproductive health to women, is not acceptable if those practices violate human
rights. This Guideline should be applied in every dual loyalty and human rights
conflict. The health professional should, however, become familiar with
circumstances where adhering to state interests does not compromise human rights.
Such circumstances include those justified by public health considerations, as set out
in Guideline 7
.
4. In all clinical assessments, whether for therapeutic or evaluative
purposes, the health professional should exercise judgment independent of
the interests of the state or other third party.
Commentary: It is imperative that physicians and other health professionals apply
their medical competencies to the needs of patients in an independent manner,
preventing their judgments and actions from being controlled, dominated or
influenced in any way by the interests of the state or other third party. Equally
important, health professionals need to recognize circumstances where the state or
other third party, overtly or subtly, seeks to compromise the independence of their
judgments through rewards, incentives, demands, threats, or appeals to the political
beliefs of the clinician. This includes whether an evaluation should be done at all,
e.g., evaluations of women for “virginity” should be declined because the evaluation
violates the woman’s human rights.
5. The health professional should recognize how their professional skills can
be misused by state agents to violate the human rights of individuals—
especially in settings where human rights violations are pervasive—and take
appropriate steps to avoid this misuse.
Commentary: The health professional who cooperates with a regime in which
human rights violations are pervasive may breach loyalty to the patient even if not
an intentional perpetrator of abuses. Health professionals cannot insulate themselves
from responsibility by turning aside from human rights violations that are often
furthered by the state’s reliance on their competencies, such as in involuntary
sterilization or female genital mutilation.
Circumstances of indirect complicity in human rights violations include, but are not
limited to, situations where the health professional’s evaluations or treatment
interventions are used by the state to assist in inflicting harm on individuals. For
example, where torture is common, the torturers may rely on what seem to be
otherwise independent clinical findings. Under this Guideline, a clinician has an
obligation to assure that his or her professional skills are not misused, and if they
are, to take actions set out in Guidelines 11
and 12.
6. The health professional should recognize that passive participation, or
acquiescence, in violations of a patient’s human rights is a breach of loyalty
to the patient.
Commentary: Circumstances and environments where human rights violations are
institutionalized present the most difficult challenges to health professionals. Where,
for example, women are denied access to birth control or immigrants are denied
access to medical care, acquiescence by the health professional is the means by
which the state achieves its objective of violating human rights. This Guideline
means that passivity in the face of state requirements that violate patients’ human
rights is not excused.
7. The health professional should only depart from loyalty to the patient
within a framework of exceptions established by a standard-setting
authority competent to define the human rights obligations of a health
professional; any such departure should be disclosed to the patient.223
Commentary: There exist many circumstances where strong state interests permit
a health professional to subordinate patient interests to those of the state. These
generally fall into the categories of promoting public health, serving important non-
medical interests of the state or society (such as protecting third parties), and
evaluating individuals for legitimate state purposes such as social benefits or criminal
responsibility. For example, all three rationales have been invoked to breach patient
confidentiality in particular circumstances.
These exceptions to the duty of absolute loyalty should be established only through
legitimate processes and should be incorporated into ethical guidance provided to
health professionals by national and international standard-setting bodies competent
to define the ethical obligations of a health professional. “Competent” authorities are
bodies that are both knowledgeable about medical ethics and free of undue state
influence; a national medical organization operating under constraints of pressure
from a repressive state is not considered competent. Similarly, “legitimate” implies
appropriate mixtures of transparency, consultation and broad-based input in the
formulation of such guidance by bodies that are sufficiently diverse in their
constituencies, skills, and perspectives to capture adequately the implications of such
policies for human rights.
In the absence of explicit Guidelines setting out the exceptions, the health
professional should not engage in a process in which he or she weighs the interests
of society or the state against the human rights of the individual. Rather, the
clinician should only depart from loyalty to the patient when bona fide medical
authorities authorize the departure.
This Guideline also means that the existence of a law requiring the health
professional in a given circumstance to favor state interests over patient human
rights does not absolve the health professional of the responsibility to uphold human
rights. State demands reflected in law are only subject to deference if they are
enacted in a procedurally appropriate way and if they are substantively consistent
with human rights requirements and ethical standards. Health professionals have an
obligation to be critical and vigilant of any legislative requirements that result in
infringement of the rights of patients, and should seek guidance from appropriate
authorities to resolve such conflicts.
It should also be noted that, in exceptional circumstances, a health professional may
face a conflict where the rights of third parties are threatened by a state policy that
mandates fidelity to the patient (such as proscribing notification the patient’s partner
be of the patient’s sexually-transmitted diseases). Ethical considerations under these
specific circumstances may justify departure from the principle of patient fidelity, and
here the professional’s conflict with the state is of a different nature. Again, any
decision to depart from fidelity to the patient should be within a recognized
framework of exceptions. Where such guidance is unavailable, or does not stem from
legitimate processes by bodies competent to develop such Guidelines, the health
professional should seek to stimulate appropriate professional action to develop such
Guidelines before undertaking any departure.
Any departure from loyalty to them should be disclosed and the role the health
professional is playing on behalf of the state as well as the reasons for it should be
fully explained.
8. The health professional should maintain confidentiality of medical
information except where the patient consents to disclosure or where an
exception recognized by competent authorities in medical ethics permits
disclosure.
Commentary: An essential principle of medical ethics is that medical information
about a patient shall be kept in strict confidentiality. This is particularly important
with respect to disclosure to law enforcement agencies. There are, however,
important exceptions to this principle—for example, where the health of a larger
population or the well-being of an innocent third party could be affected. The health
professional should not seek to determine the validity of such exceptions alone but
instead should rely only on competent authorities in medical ethics, as provided in
Guideline 7
.
9. The health professional should take all possible steps to resist state
demands to participation in a violation of the human rights of patients.
Commentary: Although difficult to carry out when the environment is repressive
and punitive, this Guideline is essential. When the health professional will suffer
financial, psychological, or physical consequences for carrying out the duty of loyalty,
medical authorities and peer organizations should provide the necessary aid and
support (see chapter V on Institutional Mechanisms).
10. The health professional should act with an understanding of health
professionals’ collective obligation to uphold and promote the human rights
and well-being of the patient.
Commentary: In many clinical environments, there will be teams of health
professionals, all of whom have a duty of loyalty to the patient. The success or
failure of clinical consultation and consequent medical action often depends on the
competencies and commitment of the range of health professionals. A key obligation,
therefore, is solidarity among the health personnel to protect human rights.
Delegation of decision-making to avoid dual loyalty conflicts that implicate human
rights is inappropriate.
This ethical solidarity also applies with respect to other health professionals at risk of
reprisal for complying with their ethical and human rights responsibilities. Each
health professional should cooperate with peers and colleagues to protect those
subject to retaliation for protecting the human rights of patients.
11. The health professional should take advantage of opportunities for
support from local, national and international professional bodies to meet
their ethical and human rights duties to the patient.
Commentary: When individuals or local groups of physicians and other health
professionals are confronted with demands by the state to violate the human rights
of patients on its behalf, they may be unable to counter that influence effectively on
their own. They may be subject to reprisals in employment and, in extreme cases, to
legal harassment or even physical threats. As described in Chapter V, Institutional
Mechanisms, it is the responsibility of associations of health professionals, locally,
nationally and, when necessary, internationally, to protect health professionals at
risk of such reprisals.
The responsibility of the health professional to invoke the action of professional
bodies is described further in Guideline 14
. Recommendations for implementation of
action by the professional bodies are contained in the chapter on institutional
mechanisms.
12. The health professional should report violations of human rights that
interfere with their ability to comply with their duty of loyalty to patients to
appropriate authorities, both civil and medical.
Commentary: A duty to report violations of human rights is necessary because a
health professional cannot fulfill his duty of loyalty to patients if they are being
subject to human rights violations that interfere with the medical service the
professional provides or if the professional’s services are being misused or
manipulated by the state. Reporting the violations is often the only means by which
the professional can end them so as to be able to fulfill ethical and human rights
duties.
Wherever possible, the health professional should consult with the patient before
reporting information to assure that the patient is not further abused as a result of
reporting. If the patient does not agree to be identified, the health professional
should consider reporting abuses in a manner that does not identify individuals. Also,
the health professional should have confidence that the report is submitted to
persons or entities that are in a position to stop the abuse or influence authorities to
stop it. Depending on the circumstances, these may include state authorities,
medical organizations, and colleagues. Before reporting such sensitive information to
colleagues or medical associations, health professionals need to ensure the security
of the information they entrust to others and have some clear picture about what
they expect the recipient to do with it.
Chapter V outlines steps to deal with these situations.
13. The health professional should act individually and collectively to bring
an end to policies and practices that prevent the health professional from
providing core health services to some or all patients in need. These
practices include, among others, a state’s failure to take steps needed to
achieve the highest attainable standard of health for all; inequity in
allocation of health resources or benefits; discrimination (or tolerance of
discrimination) in health based on sex, race, ethnicity, class, sexual
orientation, refugee and immigrant status, religion, language, caste or class
or disability; denial of health information (such as information about
reproductive health). This Guideline also applies in private settings where
the state’s obligations extend to ending discrimination and assuring the
highest attainable standard of health.
Commentary: Health professionals have an obligation to bring to an end practices
that effectively lower the extent and quality of health services they provide to certain
individuals. When the professional denies or limits appropriate care to an individual
because of constraints caused by unfair or inequitable allocation of public resources,
institutionalized discrimination, or state failure to address the needs of vulnerable
groups, the professional becomes a vehicle or instrument by which a violation of the
protection against discrimination or the right to the highest attainable standard of
health takes place. Rather than adjust one’s behavior to the constraints imposed by
discrimination or the state’s failure to develop a fair and equitable allocation of
health resources, the health professional should act to change it.
Health professionals can carry out this obligation in their own practices by being
attentive to the standard of care they provide to their patients and acting to assure
that their own practices do not reflect institutionalized discrimination or policies that
otherwise violate the human rights of some or all of their patients. Thus, for
example, they should never accede to state or cultural policies of racial or ethnic
segregation in health, denial of appropriate clinical treatment of women (including
reproductive health services), or refusal to offer care to undocumented workers.
There are obvious limits to protecting patients’ human rights, however, where the
violations are structural and pervasive. In these instances the only means by which
health professionals can protect, respect and fulfill the human rights of their patients
is through collective action or through organizations of health care professionals,
working to bring about a fairer and less discriminatory system.
14. The health professional should support colleagues individually and
collectively—through professional bodies—when the state acts to impede or
threaten their ability to fulfill their duty of loyalty to patients.
Commentary: As noted above, there are many circumstances where individual
health professionals are subject to pressures or threats, or even sheer indifference,
by the state, when they act in ways that fulfill their duties to patients but contradict
state policy. Collective action is necessary to provide redress, and each individual
health professional has the responsibility to support colleagues at risk.
IV. Proposed Guidelines for Practice in
Difficult Settings
• (A) Prison, Detention and Other Custodial Settings
• (B) Health Care for Refugees and Immigrants
• (C) Health Professionals in the Workplace
• (D) Health Professionals Engaged in Forensic Evaluations
• (E) Military Health Professionals
A) Guidelines for Prison, Detention and Other Custodial
Settings
Preamble
The problem of dual loyalty and human rights is particularly challenging for health
professionals who are responsible for providing health care services to prisoners. On
the one hand, such professionals are subject to professional ethics and mores
governing their conduct; on the other, they work within institutions primarily
concerned with state and/or public security. It is inevitable that these dual
obligations will at times seem to be, or actually will be, opposed to each other.
Health professionals working in prisons often willingly and knowingly comply with
policies that violate one or more aspects of medical ethics, and may even participate
in drawing up separate codes of ‘medical ethics’ specifically for use in such
institutions. Others may be unsure of how to cope with situations where their ethical
responsibility to the patient seems to be in conflict with state or prison policies and
practices. They tend to be passive participants in unethical practices, rather than
willing perpetrators of ethical violations.
In some situations, subordination of patient interests to the requirements of the
state undeniably serves legitimate purposes. For example, a prison health
professional who becomes aware of sexual or other abuse among prisoners
themselves may in certain cases have to intervene and breach confidentiality in
order to protect others from harm. Under some circumstances, particularly when
public health is at risk, a health professional may have to consider betraying
confidentiality for the wider public interest, for example, in combating contagious
diseases. More frequently, however, elevating the interests of the state over those of
the patient leads to violations of that patient’s human rights. As noted above, in
Chile, as well as in other South American countries, physicians participated in torture
under orders from the military; in South Africa, as well as in many other countries,
prison health professionals routinely failed to record or report torture and abuse of
political detainees.
Numerous international codes and declarations address (directly and indirectly) the
responsibilities and obligations of prison health professionals. The fact that such
health professionals still find themselves facing apparently irresolvable ethical
dilemmas, or even acting unethically, indicates the complexity of these situations, for
which existing codes may be inadequate or incomplete. This set of guidelines intends
to reinforce the principles already stated in existing codes and declarations, while
specifically addressing the dual loyalty concerns experienced by health professionals
working in prisons and other closed institutions.
The Dual Loyalty Working Group has thus attempted to address the almost inevitable
ethical conflict that will confront prison health professionals, by developing guidelines
that build on and add to existing codes, and by suggesting ways in which institutional
support mechanisms can be strengthened.
Scope and context
The following guidelines apply to health professionals who are responsible for
providing health care services to persons in custody, whatever their legal situation —
whether they are awaiting trial or already sentenced, detainees being held without
charge or in any other form of custody. The rules apply wherever the health
professional is called upon to provide medical treatment or any other form of medical
expertise, whether that be in a prison itself, a police station, a holding cell, a health
care facility or any other place where people are held in custody.
Guidelines
In addition to being required to adhere to the principles outlined in relevant World
Medical Association, World Health Organization, United Nations, and other guidelines,
health professionals who are responsible for providing health care services to those
in custody should follow the following guidelines.
1. The health professional should act in the best interests of his or her
patient at all times.
Commentary: While this precept may seem to conflict with others, it is the basis for
medical ethics outlined in such documents as the World Medical Association’s
Declaration of Geneva and International Code of Medical Ethics, as well as other
declarations such as the Malta Declaration on Hunger Strikes. It must continue to be
the primary goal of health professionals caring for prisoners, even in situations of
dual loyalty. Acting in the best interests of patients does not necessarily preclude
taking steps to prevent harms to, or violations of the rights of other parties, where
the health professional has information that could prevent such harms. However, the
Guideline does imply that actions that are not in the interest of the patient should be
considered only within a framework of exceptions described in General Guideline 7
.
2. The health professional is responsible for ensuring physical and mental
health care (preventive and promotive) and treatment, including specialized
care when necessary; ensuring follow-up care; and facilitating continuity of
care— both inside and outside of the actual custodial setting— of convicted
prisoners, prisoners awaiting trial, and detainees who are held without
charge/trial.
Commentary: Health professionals face an ethical conflict when they are called
upon to limit or deny care to prisoners, as well as when they are called upon to
engage in or passively accept practices that harm the physical and mental health of
the patient. This guideline makes clear the responsibility of the health professional to
provide care, regardless of outside pressures, and to advocate for the health
interests of the patient. This guideline goes beyond Principle 1 laid out in the UN
Principles of Medical Ethics Relevant to the Role of Health Personnel in the Protection
of Prisoners, which states that health personnel have a duty to “provide [prisoners]
with protection of their physical and mental health and treatment of disease of the
same quality and standard…afforded to those who are not imprisoned or detained.”
It is recognized that not all health professionals will be able to ensure follow-up and
continuity of care outside the custodial setting, but to the extent they can, they
should.
3. The health professional must be ensured, and must insist on, unhindered
access to all those in custody.
Commentary: Health professionals may unknowingly deny care to prisoners when
custodial officials deny them access to prisoners, often to manipulate which prisoners
get care. This practice may be undertaken for a variety of reasons, including
corruption, harassment or enforced discrimination. This guideline makes clear the
health professional’s responsibility to ensure his or her duties are not neglected or
impeded because of the actions of prison officials.
4. The health professional should examine a detained or imprisoned person
as soon as possible after incarceration, and thereafter should provide
medical care and treatment to such persons whenever necessary, and
consistent with the principle of informed consent for such treatment.
Commentary: This guideline, building on Guideline 3, ensures that health
professionals are able to provide care to all prisoners within the custodial setting,
especially ones who may have experienced abuse. This guideline reinforces Principle
24 of the UN Body of Principles for the Protection of All Persons Under Any Form of
Detention or Imprisonment. Furthermore, even though incarcerated, prisoners do not
lose their right as patients to be consulted on any treatments they receive consistent
with the principle of informed consent.
5. The health professional must regularly inspect and report on sanitary,
living and general health conditions to the custodial authority and an
independent medical authority; and should, when necessary, advocate for
better custodial conditions with custodial authorities and/or an independent
medical authority.
Commentary: Health professionals in prison settings face an ethical conflict when
their duty is to protect the health of the prisoners, yet the material and/or
psychological living conditions of those prisoners, whether through lack of resources
or deliberate neglect on the part of prison authorities, make that impossible. In such
cases, health professionals can uphold the best interests of their patients by
reporting on sanitary and living conditions. This guideline is more specific than those
of other medical codes, which do not address the responsibility of health
professionals to monitor living conditions in prisons.
6. The health professional should report to the custodial authorities and,
where appropriate, to an independent medical authority any situation in
which he or she becomes aware of allegations or evidence that those in
custody are being subjected to torture or cruel, inhuman or degrading
treatment. The health professional must, however, weigh this action against
any reprisal or further punishment to the prisoner that may result. When
appropriate, the health professional should gain the consent of the prisoner
before making such a report.
Commentary: This guideline builds on current principles barring complicity in
torture outlined in the UN Principles of Medical Ethics and the WMA’s Declaration of
Tokyo, but goes further by calling on health professionals to report the abuses they
may witness. When there is potential for reprisal, however, health professionals must
take care to report only to those who will not misuse the information. Bearing in
mind Guideline 1
, they should take into account the need to protect the safety of the
patient. This guideline requires that there be strong institutional mechanisms to
support the health professional who blows the whistle, including an independent
medical authority and a supportive national medical association.
7. The health professional should certify only that which he or she has
personally verified; should not falsify evidence and should ensure that
complete and accurate medical records are kept for all patients.
Commentary: Health professionals are often called upon by the state, or another
powerful third party, to omit, falsify, or disguise crucial information in medical
records. The WMA International Code of Medical Ethics holds that health
professionals should certify only what they have personally verified, but it and others
do not address the specific problem of omitting or falsifying information for the
benefit of a party that does not have the best interest of the patient in mind. This
guideline goes further than existing codes in addressing this omission brought on by
dual obligations. The guideline requires strong institutional mechanisms to support
the health professional who maintains complete and accurate records as well as to
support his or her patients.
8. The health professional should abstain from participating, actively or
passively, in any form of torture.
Commentary: This guideline is basic to medical ethics and is supported by
international human rights covenants, as well as by the WMA Declaration of Tokyo
and by the UN International Code of Medical Ethics. A health professional passively
participates by permitting his or her clinical findings or treatment to be used by
authorities to aid the process of torture.
9. The health professional should not provide any means or knowledge to
facilitate the practice of torture or cruel, inhuman, or degrading treatment
or punishment; should not authorize, approve, or participate in punishment
of any form, in any way, including being present when such procedures are
being used or threatened.
Commentary: Health professionals, while they may not participate directly in
torture or punishment, may be called upon to participate indirectly, by providing
instruments to facilitate torture, by using medical knowledge to monitor torture, or
by authorizing punishment. This indirect participation includes examinations to
declare an individual “fit” for caning, shackles, solitary confinement or any other type
of abuse, and dietary restrictions. It also includes being present while the
punishment is being administered, for example, observing caning, or examining a
patient in solitary confinement to declare him or her “fit” for continuation of the
punishment. This guideline does not prevent a health professional from providing
necessary medical care to an individual in solitary confinement; nor does it prevent a
health professional from intervening to seek removal of a prisoner from solitary
confinement on medical grounds.
10. The health professional should not participate in capital punishment in
any way, or during any step of the process. This includes an examination
immediately prior to execution and one conducted after the execution has
been carried out.
Commentary: Health professional participation in capital punishment continues to
occur, despite the World Medical Association’s resolution prohibiting physician
participation and the many codes that prohibit physician involvement in other cruel,
inhuman, and degrading treatment. Health professionals are called upon to
participate in a range of activities – from preparing intravenous lines for lethal
injection to certifying the death of executed prisoners. This guideline goes beyond
existing codes to hold that health professionals should not participate in any part of
the process, including the certification of death. We are aware, however, that in
some countries, prisoners facing execution may prefer to have death certified by a
health professional to ensure, for example, that organs for donation are not removed
prior to death or that the individual is not buried alive. In these situations, the health
professional should obtain explicit informed consent from the prisoner who is to be
executed, stipulating that he or she wishes that health professional to certify death.
Strong institutional mechanisms are needed to support health professionals in these
positions, as many countries’ laws require that health professionals do participate.
11. The health professional should respect medical confidentiality; should
insist on being able to perform medical duties in the privacy of the
consultation, with no custodial staff within earshot; should divulge
information strictly on a need-to-know basis, when it is imperative to
protect the health of others.
Commentary: Confidentiality is a cornerstone of medical ethics and is upheld in the
WMA’s Declaration of Geneva, among other codes. Yet health professionals are often
called upon to divulge patients’ confidential medical information to authorities, or
may perform examinations with authorities present, constraining the extent to which
a patient can speak openly with the healthcare provider. When the health of other
prisoners is at stake, however, the health professional has an obligation to balance
their needs with the confidentiality due the patient, for instance, in circumstances of
contagious disease or prisoner-to-prisoner abuse. When confidentiality in such
circumstances is breached, care should be taken not to disclose any information
beyond that which is needed for the asserted purpose. Such balancing of cases
should be openly discussed with peer supervisors from medical authorities/bodies
outside of the custodial setting in order to guard against abuses.
12. The health professional should have the unquestionable right to make
independent clinical and ethical judgements without untoward outside
interference.
Commentary: Health professionals in prison settings are often called upon to
subordinate their sound medical judgment in order to support conclusions or
outcomes favorable to the state. This includes situations of falsifying or omitting
information, but it also includes recommending treatment or action that is not in the
best interest of the patient, for example, allowing an ill patient to be transferred
when the transfer will lead to further harm, or not hospitalizing an ill patient because
authorities believe he is a security threat. Existing codes call for complete clinical
independence. This guideline reinforces those codes and further requires that health
professionals actively insist on and be granted this right. There may, however, be
situations where legitimate restrictions are put on the health professional’s
independent judgment. For instance, a physician may be asked to prescribe
medication from an essential drug list, with medicines not on the list requiring
particular motivation. In such instances, the physician may legitimately accept the
restriction, if it is indeed for the greater benefit of the larger community— as long as
that restriction does not bring harm or untoward consequences to the patient.
13. The health professional should not perform any medical duties on
shackled or blindfolded patients, inside or outside the custodial setting. The
only exception should be in circumstances where, in the health
professional’s judgment, some form of restraint is necessary for the safety
of the individual, the health professional and/or others, and treatment
cannot be delayed until a time when the individual no longer poses a
danger. In such circumstances, the health professional may allow the
minimum restraint necessary to ensure safety.
Commentary: Health professionals in prisons are often expected to ignore or
passively accept the physical restraints imposed on their patients. Many codes
outline the duty of health professionals not to participate in any form of restraint
except when medically determined to be necessary for the health of the patient and
others (UN Principles of Medical Ethics, UN Minimum Rules for the Treatment of
Prisoners, UN Principles for the Protection of Persons with Mental Illness). This
Guideline goes beyond the others by permitting only a narrow exception, that health
professionals should not treat a patient in restraints unless an urgent situation
requires immediate action that cannot be performed safely without restraints — and
even then with the minimum possible restraints.
14. The health professional should not perform medical duties or engage in
medical interventions for security purposes.
Commentary: Health professionals should never engage in medical interventions
that are not in the individual’s therapeutic interests, even when requested to do so
by authorities for security purposes. Principle 3 of the UN Principles of Medical Ethics
states that the purpose of the professional relationship must be “solely to evaluate,
protect or improve … physical and mental health [of prisoners and detainees].” For
individuals in psychiatric hospitals, the UN Principles for the Protection of Persons
with Mental Illness and the Improvement of Mental Health Care state that medication
“shall only be used for therapeutic or diagnostic purposes and shall never be
administered as a punishment or for the convenience of others.”224
15. The health professional should not participate in police acts like body
searches or the imposition of physical restraints unless there is a specific
medical indication for doing so or, in the case of body searches, unless the
individual in custody specifically requests that the health professional
participate. In such cases, the health professional will ascertain that
informed consent has been freely given, and will ensure that the prisoner
understands that the health professional’s role becomes one of medical
examiner rather than that of clinical health professional.
Commentary: This guideline follows from Guideline 14. The World Medical
Association’s Statement on Body Searches holds that health professionals should
participate in body cavity searches as they have the medical knowledge and skills to
ensure that the prisoner is not harmed. The BMA and others, however, assert that
such participation makes the doctor a wielder of force, which contravenes basic
medical ethics. The British Medical Association holds that only if the doctor can
ascertain true informed consent should he or she perform the search. This guideline
goes beyond the WMA Statement and the BMA policy to say that the prisoner must
request the participation of the health professional. Any breach of confidentiality will
concern only the search and no other confidential medical information that the
prisoner may confide to the health professional.
16. The health professional should, if prepared to treat a hunger striker,
respect the rights and freedom of choice of a detained hunger striker
regarding medical intervention and intravenous feeding without the
intervention of a third party whose primary interest may not be the
patient’s welfare.
Commentary: Health professionals treating detained hunger strikers are challenged
to uphold the sanctity of life while respecting the rights and choices of their patients.
The WMA Declaration of Malta addresses this issue far more thoroughly than it is
within the scope of this document to do. For the purpose of guidance in cases
involving dual loyalty, where authorities may pressure health professionals to force
feed hunger strikers, the health professional must not submit to the wishes of a third
party whose primary interest may not be the patient’s welfare.
17. The health professional should not engage or participate in any form of
human experimentation amongst prisoners, unless the research will provide
significant health and other benefits for prisoners and facilitate promotion
of their human rights.
Commentary: The Working Group is aware that this is a controversial issue and that
some existing guidelines do allow for research on prisoners, provided that voluntary
informed consent is given. It is the view of the Working Group that true “voluntary
informed consent” is almost impossible to obtain in the prison setting, because of the
various overt and covert factors which govern the relationship between prisoner,
prison staff and health professional. There may however, be some particular
circumstances when research with prisoners may provide significant health and other
benefits and facilitate promotion of their human rights. The Group acknowledges,
moreover, that research issues are not strictly part of its mandate; it would thus
welcome further discussion with and guidance from those directly involved in the
ethics of research.
B) Guidelines on Health Care for Refugees and
Immigrants
Preamble
States often explicitly discriminate against refugees and immigrants. As countries
seek to restrict the entry of refugees, they also limit state welfare services, including
health care. Even in countries with strong traditions of state services, refugees are
often denied equal access to health care. State policies restricting entry to the
country and restricting access to care can bring about severe dual conflicts for health
professionals.
Ethical codes of the UN and the WMA focus on the health of vulnerable groups such
as torture victims, prisoners, the mentally ill, the mentally retarded, the handicapped
and women. However they contain no provisions on refugees. Some human rights
treaties address rights of refugees to health services. Article 24 of the UN Convention
on the Rights of the Child states that every child has a right “to the highest degree of
health and to access to health care” and calls on all states to assure that no child is
prevented from access to health care institutions. Article 22 clarifies that refugee
children have the same rights.
The European Convention on Social Rights recognizes, in Article 11, everybody’s
right on protection of health, and calls on states to remove the causes of health
hazards, to create health counseling and education facilities and to prevent epidemic
diseases. The attachment to the Convention (item 2) holds that refugees must be
treated as favorably as possible and in no case less favorable than defined in the
preceding articles of the Convention.
For the health professional, guidelines are needed in two circumtances: in the
evaluation of claims for asylum and in state restrictions on access to health care.
Scope and context
The following guidelines apply to health professionals who are responsible for
providing health care services to refugees or immigrants and for evaluating claims
for asylum. In the latter case, reference should also be made to the Guidelines for
Forensic Evaluations.
Guidelines
1. The health professional should recognize that refugees and immigrants
have a human right to equal access to health care.
Commentary: The health professional should be guided by two fundamental human
rights principles, that everyone has the right to the highest attainable standard of
health and that health services should be made available on a non-discriminatory
basis. When state policies limit access to health care, either through legal
requirements or limitations on reimbursement for services, the individual health
professional should not acquiesce.
It is unreasonable, however, to place the full responsibility for equal health care of
refugees on individual health professionals facing legal or financial impediments to
equal care however. Most often collective action will be required. For example, the
British Medical Association’s guidelines for refugee health care demand that doctors
offering an extended range of services to this group of patients get additional
payments. Medical organizations can also organize voluntary medical services for this
group.
2. Health professionals should not report immigrants who lack legal status
to government authorities.
Commentary: The state has the responsibility for immigration matters and law
enforcement. It is not part of the health professional’s function to participate in law
enforcement activities, and the health professional should resist where a breach of
confidentiality amounts to a violation of human rights that could result in
incarceration, prosecution, deportation or all three.225
In immigration and refugee
matters, where there exists no likelihood of harm to a third party in the absence of
disclosure, the principle of confidentiality and of making health services available to
people in need should take precedence over the state’s interest in using health
professionals to assist in enforcement of immigration laws. Health professionals must
therefore decline to report undocumented immigrant to state authorities. It may be
particularly difficult for health professionals working in state institutions or on a
government payroll to resist pressures to report. Strong institutional mechanisms
must be in place to support them.
3. Health professionals should not disclose information gained in the course
of treatment of refugees to state authorities.
Commentary: Doctors may face pressure from immigration authorities to disclose
information about patients for planning, administrative, law enforcement and other
purposes. Disclosing confidential information in these circumstances, however, can
have potentially severe human rights consequences for the patient. By contrast,
assuring refugees and immigrants that confidentiality will be respected will also aid
the therapeutic mission, since it can gain trust from refugees and immigrants who
may be very anxious and reluctant to give information on their health background
and may be fearful of examination. Fears that information disclosed to a health
professional may reach authorities should be addressed directly.
Where the health professional is engaging in examination for state authorities for
purposes other than treatment, the health professional must clearly disclose the
purpose of the examination and the limits on confidentiality to the person being
examined.226
Proper counseling should be given to the patients regarding the uses
of the information obtained by state immigration authorities.
4. Health professionals should not participate in medical examinations on
behalf of the state for the purpose of determining a refugee’s eligibility for
entry into the country except in cases where public health and preventive
measures are needed to counter the risk of epidemic. Screening or testing is
only permitted with prior informed consent. In case of repatriation the
results of medical assessments and necessary treatment programs should
be provided to the refugee.
Commentary: In some countries immigration authorities rely on medical techniques
such as X-ray or dental screening to seek to determine the age of the refugee or
immigrant. They may also engage in examinations purporting to engage in “fitness
to travel” when forced repatriation is likely. These examinations are often superficial
and misused and rarely include an assessment of the overall health of a refugee e.g.
a psychotrauma caused by war atrocities or other kinds of violence. This high
potential for serious abuse should lead health professionals to avoid participation.
5. Health professionals should insist that medical services for refugees and
immigrants, and examinations for determination of status include
interpreters.
Commentary: Health care services usually do not provide interpreters. They rely
upon relatives or friends (often children) for translation. This practice violates
medical confidentiality and the principle of neutrality. The enormous stakes for the
individual in cases of examinations also supports the need for interpreters.
6. Health professionals acting as evaluators in asylum procedures and court
procedures should be aware of potential dual loyalty conflicts if providing
treatment to refugees as well.
Commentary: Although this separation of function would provide the greatest
protection of the human rights of refugees, in practice it is rare, either because there
are few health professionals with specialized knowledge in transcultural medicine,
refugee health and refugee trauma, or because the state does not take adequate
steps to avoid role conflicts. Health professionals should urge that the separation of
function be instituted.
C) Guidelines for Health Professionals in the Workplace
Preamble
Health professionals frequently provide a range of services at the workplace to
employed persons. Such services may include direct clinical care such as periodic
health examinations, curative and rehabilitative care, preventive education, and
health promotion interventions directed at high-risk individuals. In addition, health
professionals at the workplace are frequently called on to provide services where the
primary motivation is neither therapeutic nor clinical, but evaluative. These may
further a legitimate administrative or institutional purpose. For example, medical
personnel are frequently called upon to provide medical reports in support of
compensation claims, to evaluate a candidate’s fitness for a particular job, or to
provide expert opinion on the sickness record of a particular employee in the context
of a perceived absenteeism problem. At other times, health professionals have the
responsibility of conducting measurements of potential hazards to workers’ health as
part of industrial hygiene programs.227
In such circumstances, the health professional is subject to expectations from a third
party, usually an employer. At the same time, the health professional has ethical
obligations towards his or her patient. As a result, he or she is faced with the
problem of dual or divided loyalty.
Dual loyalty conflicts at the workplace may be exacerbated by potential conflict
generated by adversarial employer-employee relations.228
Usually such conflicts
arise out of a contractual relationship between the health care provider and the
company, which is also the employer of the worker-patient. Conflicts also arise vis-à-
vis non-business employers, however, for instance, workers’ trade union, or the
government safety department, which may seek confidential information for
purposes of addressing a perceived health hazard at a workplace.
The presence of a dual loyalty conflict at the workplace does not inevitably result in
violation of workers’ rights. It can, however, if inadequately managed. Health
professionals may, for instance, subordinate independent therapeutic judgment in
order to promote an objective of the employer, thus placing workers at further risk of
injury. The Dual Loyalty Working Group has attempted to address such ethical
conflicts by drawing on recognized human rights standards in developing guidelines
which build on and add to existing ethical codes.
Scope and Context
These Guidelines apply to health professionals responsible for providing occupational
health services to employed persons. Occupational health service provision is taken
to cover the full range of preventive, promotive, curative and rehabilitative services
for persons at the workplace, and includes both direct health care and occupational
hygiene services. These Guidelines are a particular application of the Guidelines for
Forensic Health Professionals and apply to clinical care as well as to health
professionals’ non-clinical obligations, such as monitoring workers to meet statutory
requirements.
Guidelines
Health professionals responsible for providing occupational health services should
adhere to the following guidelines, in addition to the principles outlined in relevant
national and international professional ethical codes.
1. Health professionals should exercise independent judgment229 in their
clinical management and non-clinical assessment of the worker/patient.
Commentary: This is a particular application of General Guideline 4. Generally,
independent judgment requires the health professionals to act in the best interests of
patients at all times and ensure that occupational health service provision remains
focused on the promotion of the health of the workforce, regardless of the role
(therapeutic or non-therapeutic) he or she is asked to play. Cost may be regarded as
a legitimate consideration if the occupational health service is seeking to identify the
most cost-effective way to attain a health objective. However, it is not ethically
acceptable to subordinate independent judgment to cost considerations nor to trade
off a health objective as too costly to achieve based upon a company’s concerns
solely to minimize costs or maximize profits.
Third party requests for clinical judgments that benefit their interests are, in the
occupational setting, common but misguided. Requests to limit sickness
absenteeism, or favor a particular conclusion in a medical assessment should not
influence the clinical judgment of the health professional. Occupational health
professionals should not be party to the misuse of a clinical examination as a means
to dismiss workers.
Where requests from third parties pose irreconcilable ethical and human rights
conflicts, the occupational health professional should consider withdrawing his or her
services, as long as this does not disadvantage the patient unreasonably.
Occupational health professionals should avoid any judgments, advice, or activities
that may endanger trust in their integrity and impartiality. Treating all workers in a
non-discriminatory manner, basing judgments on scientific knowledge and technical
competence, and respecting diversity and equity at the workplace will help to
establish a relationship of trust and confidence in the health professional among all
stakeholders.
2. Even when acting in a non-therapeutic role in relation to the patient, such
as that of independent evaluator, a health professional cannot ignore the
ethical obligations to the individual patient, to which he or she would be
subject in a typical clinical encounter.230
Commentary: Even when acting in a non-therapeutic role, such as assessing
employees for purposes of fitness for work, disability, or compensation, the health
professional must conduct the assessment in a manner that complies with ethical
and human rights norms.
Importantly, the health professional should inform the patient before the assessment
that he or she is acting in a non-therapeutic role and should make sure the patient
understands the implications of this role. This gives the worker-patient the
opportunity to take responsibility for choosing another health care provider or
refusing the examination.
If the employee consents to the examination, the health professional should conduct
the examination with respect for the patient’s dignity and autonomy, using his or her
independent judgment and knowledge of the workplace to reach a considered
assessment of the worker’s fitness. The findings of the examination and tests and
the contents of the report should be discussed with the worker prior to submitting
the report, which, again, should only contain details relevant to the purpose of the
examination.
Of note is that in assessing employees with recurrent absence due to illness, the role
of the health professional is to provide advice to both the employer and the
employee. Other than providing advisory information, however, the health
professional should not be involved in absenteeism control, which is the job of
management.231
3. Health professionals should maintain confidentiality of medical
information, and not disclose clinical information not directly germane to
the purpose of evaluation.232
Commentary: No medical information about a worker should be revealed to a third
party, including employers, without the express consent of the worker concerned
unless the following apply. 1) Revealing such information is clearly in the interests of
the worker concerned; 2) The information required is germane to the specific
determination of the worker’s fitness for the job, and is consonant with the precise
requirements of the job; 3) Release is required by overwhelming public health
considerations and is mandated by law.
Confidential medical information obtained in the course of periodic or pre-placement
examination should not be revealed to an employer except to the extent it is relevant
to the worker’s fitness to do the job and any limitation of function. Thus, for
example, medical tests should only be permitted as part of a fitness examination if
they are relevant to the requirements of the job. On the other hand, the health
professional should reveal anonymous group data from biological monitoring, as part
of his or her responsibility to bring any workplace risks to the attention of
management.233
4. Health professionals must release information regarding workplace
hazards to affected workers or the appropriate authorities, where definable
harm – either existing or threatened – to the worker-patient, other workers,
or third parties outweighs the right of the company and of the patient to
privacy.
Commentary: As in normal practice, health professionals are obligated to share the
results of medical testing and examinations with the worker-patient, and to counsel
the patient on the implications of such findings. Health professionals may come
under pressure to omit certain information from reports that have statutory or
financial implications for the employer, so as to protect the company from legal or
financial liability. Under no circumstances, however, should such considerations
induce the health professional to alter his or her judgment in determining the best
course of action with regard to hazard or risk communication for the worker-patient
or worker-patients.234
General Guideline 12 requires that health professionals report violations of human
rights that interfere with their ability to comply with their duty of loyalty to patients
to appropriate authorities. Where wider knowledge about the existence of hazards or
of occupational disease or disability in a workplace may help to reduce health risks to
workers, the health professional has a responsibility to act upon such information to
the best of his or her capacity.235
The health professional’s action should be aimed
at ensuring that communication of the data prompts removal or control of such
hazards. The first step is to inform workplace management, stressing the need for
timely remedial action. If attempts to address the hazard through routine
management channels fail, the health professional should ‘blow the whistle’ on the
existence of such hazards to an appropriate body (professional, employer,
governmental, trade union, or other) that can take action to remedy the hazard.
These considerations also apply where a health professional is aware of hazards
posed to families of workers or to neighboring communities as a result of workplace
processes.
Companies often invoke commercial secrecy to prevent disclosure of information
about hazardous workplace conditions. This appeal is unjustified, however. The
specific hazard posing a health risk rarely reveals proprietary agents or processes.
Even where it might do so, considerations relating to the prevention of disease and
disability should take precedence over commercial secrecy. As mentioned above, in
such a circumstance, the occupational health professional should urge the company
to release the information. If this fails, he or she should “blow the whistle” and
consider resorting to court action to secure legal protection. Occupational health
professionals should, as a preventive measure, make sure that health considerations
override secrecy clauses in their employment contracts.
Occasionally, an occupational health professional may identify information relating to
the fitness of a worker that places fellow workers or third parties at risk of harm or
injury. In such circumstances, the health professional is justified in breaking
confidentiality, but only after he or she has counseled the patient carefully and
sought the patient’s informed consent, and such counseling does not itself compel
voluntary disclosure.
5. Health professionals should ensure that any audit or regulatory
monitoring undertaken to ascertain risks to workers, their families, or the
neighboring community, is undertaken with the highest standard of
scientific integrity.
Commentary: The inspection or monitoring of workplaces for potential hazards
(such as dust or chemicals), whether by outside agencies or by in-house
professionals, is critically important to detect the presence of conditions that may
threaten the health of workers, their families, or the neighboring community. It is
well recognized that advance knowledge of such inspections often prompts
management to clean up the workplace in advance of the inspections.
Health professionals should avoid participating in actions designed to create a false
impression of safe conditions at the workplace, and should draw any such action to
the attention of inspecting authorities. If possible, the health professional should
prevent selective monitoring from taking place, rather seeking to ensure that
representative monitoring provides a true picture of the extent of any workplace
hazards. Similarly, where possible, the health professional should maintain medical
and environmental monitoring records intact, accessible for statutorily mandated
inspection.
6. Health professionals should support other occupational health
professionals facing conflicts arising from dual loyalty conflicts.
Commentary: Occupational health professionals have collegial obligations to fellow
professionals facing pressure to compromise ethical standards. Not only is this
obligation part of one’s professional identity, but it is also necessary to strengthen
the ability of the profession collectively to establish ethical and human rights norms
and standards that protect others. Experience has shown that such support from
peers is among the most powerful counters to pressures on occupational health
professionals to abandon ethical principles. See General Guideline 15
and
Institutional Mechanisms
.
7. Health professionals should identify and declare any conflicts of interests
before helping disseminate research findings or formulate policy for the
control of occupational health hazards.
Commentary: Occupational health professionals should seek to disseminate existing
health and safety knowledge, support research to identify and control new hazards,
and publish such findings.236
Additionally, they should participate in policy
formulation for the promotion of workers’ health and the control of occupational
hazards, through serving on expert committees, regulatory reviews, and other policy
structures. In doing so, however, they should be explicit about the existence of any
conflict of interests, for instance, financial, that may burden independence.237
Declaration of existing or potential conflicts of interests establishes transparency in
research dissemination and policy formulation.
D) Guidelines for Health Professionals Engaged in
Forensic Evaluations
Preamble
The job of a forensic health professional is to document, obtain, preserve or interpret
evidence. Forensic health professionals are often called upon to engage in
evaluations for courts or administrative bodies. In criminal cases, forensic health
professionals238
may be asked to evaluate whether a person is criminally
responsible for his or her conduct, whether a person is competent to stand trial, and
even whether an element of an offense has been established, e.g., intoxication.
Forensic health professionals may also examine victims of crimes, e.g., rape or
assault victims, for the purpose of gathering evidence. In civil cases, they may
engage in evaluations in divorce, child custody, disability benefits, workers’
compensation and other cases.239
In applications for political asylum, health
professionals may be asked to establish medical evidence of torture. Health
professionals engaged in treatment may also be called upon to provide evidence
about a person to a court or other adjudicative body. For instance, a physician may
be asked to provide information about a person’s medical condition in connection
with an application for social benefits.240
All these functions are designed to assist the state in gathering and presenting
evidence to decision-making bodies, rather than to assist or treat the person subject
to evaluation. As a health professional, however, the evaluator retains a duty to
respect the human rights of the person being evaluated and to adhere to ethical
standards of the profession, including the duty to inform the person about the nature
and objectives of the examination.
There exists an inevitable tension between a health professional’s role as forensic
evaluator contributing to the development of evidence in a legal proceeding and his
or her role as a health professional with a duty of loyalty to the individual241
. This
tension is magnified when loyalty to the state or a third party contradicts medical
ethics and implicates the human rights of the person being evaluated, e.g., medical
evaluations for corporal punishment. The health professional cannot resolve this
tension by claiming that the evaluative role frees him or her from ethical duties to
the individual being evaluated.242
Rather, the tension must be resolved by
performing the evaluative role consistent with the human rights of the individual.
Human rights standards have been established regarding the health professional’s
role in torture and participation in the death penalty.243
More general standards for
forensic evaluations, however, are needed.
Scope and Context
The following guidelines apply to health professionals engaged in forensic evaluations
on behalf of the state or other third party. They apply wherever the forensic
professional is called upon to evaluate – whether in a criminal setting or a civil
setting. Additional, more particularized guidelines have been drafted for evaluations
of refugees and asylum seekers as well as evaluations in the workplace. These
guidelines do not apply to forensic evaluators retained by the person, for example,
for his or her criminal defense.
Guidelines
1. The judgment of the forensic medical evaluator must be completely
independent of influence by the state or other third parties.
Commentary: The single most serious threat to the human rights of individuals
being evaluated comes from forensic medical evaluators who fashion medical
judgment to serve state or powerful third-party interests. Although the function of
the medical evaluator may result in findings that are not in the interests of the
individual (e.g., to support a criminal conviction or to support the denial of benefits),
the medical evaluator must never distort documentation or tailor findings to achieve
outcomes desired by state or private actors on whose behalf the professional is
making the evaluation, no matter how worthy the evaluator believes these outcomes
to be. These distortions can occur by making findings or interpretations that are not
supported by the facts, or by refraining from making or failing to disclose fully
findings that are warranted by the facts.
Although this guideline appears self-evident, there are many examples of medical
evaluators permitting their allegiance to a state or state policies to distort their
findings, either by making determinations favorable to the state or, more commonly,
by failing to make or disclose findings. In doing so, medical evaluators become
complicit in the violation of the human rights of the person being evaluated. For
example, German doctors examining Bosnian refugees, seeking to support a
government interest in excluding the refugees from the country, failed to include
evidence of Post-Traumatic Stress Disorder in their reports despite ample evidence of
its existence.244
In Turkey, health professionals failed to record evidence of torture
or abuse in detention.245
In South Africa, medical cover-ups were very clearly
documented in the “Gluckman files.”246
2. The medical evaluator should disclose to the person being evaluated the
purpose of the evaluation, the fact (where applicable) that the examination
is not confidential with respect to the entity seeking the evaluation, and the
findings. In the event the evaluatee is mentally incompetent to understand
the purposes and findings, disclosure should be made to the person
authorized to act on the evaluatee’s behalf. Individuals being evaluated
should also be informed of any oversight mechanisms that exist.
Commentary: Any individual examined by a health professional has legitimate
reason to expect that the information will be used for the benefit of that individual,
not for some other purpose, and will be held in confidence. It is therefore incumbent
upon the health professional engaged in a forensic evaluation to explain when these
assumptions, valid in other circumstances, do not apply.
Disclosure of the purpose of the examination and the findings is required by the
human right to due process of law. It is also the responsibility of the institution to
give a hard copy of the forensic evaluation to the individual being evaluated, his
personal doctor outside the institution and/or another individual (family member)
chosen by the subject.
3. In any report, the medical evaluator should explain the reasons for his or
her conclusions and indicate where the evidence is insufficient to support
certainty concerning these conclusions. The medical evaluator should
indicate or make note of alternative interpretations of his or her findings.
Commentary: In many cases, the findings of the evaluator lend themselves to
alternative explanations. In other cases, the findings are themselves equivocal.
Medical evaluators working for prosecutors or other state agents are often under
pressure to provide an interpretation of findings that is most favorable to the state.
The forensic health professional should resist these pressures and instead provide his
or her best judgment about the proper interpretation of findings, including the
limitations of the findings. This can often be accomplished by providing alternative
explanations of the findings in the report that the health professional believes are
supportable.
4. Forensic evaluators cannot ignore the obligation to treat a person in
distress and must take steps either to offer treatment or to refer the person
to another clinician for therapy when the person’s condition requires.
Commentary: This guideline is consistent with the principle that a health
professional does not forego the therapeutic role and concomitant obligations simply
because the professional’s skills are used in a particular instance for evaluation. The
health professional should offer emergency treatment when qualified to do so and in
all cases make an appropriate referral for medical care when the person’s condition
warrants.
5. A forensic evaluator should not include clinical information about the
person being evaluated that is not germane to the purpose of the
evaluation.
Commentary: The forensic evaluator may ascertain that the information he or she
obtains from the history, physical and additional examination of the evaluatee
includes matters that are irrelevant for the party on whose behalf he or she performs
the forensic evaluation. This clinical information is within the boundaries of
professional confidentiality.
6. The forensic medical evaluator must not engage, directly or indirectly, in
practices that aid or support torture or cruel or inhuman treatment or
punishment.247
Commentary: Health professionals should absolutely not participate in evaluations
whose purpose or effect is to facilitate torture or cruel or inhuman treatment. Such
participation extends not only to engaging in acts that themselves amount to torture
or cruel or inhuman treatment, but also to evaluations that can help the torturer
determine the individual’s “suitability” for torture, ability to withstand torture, or
medical condition as a session of torture continues. A health professional can, of
course, provide medical attention to a victim of torture where treatment does not
amount to a de facto involvement in an interrogation to allow continued torture.
7. The forensic health professional should not participate in evaluations
incident to legally sanctioned executions and corporal punishment.
Commentary: International norms against medical participation in legally-
sanctioned executions are well-established.248
Evaluations used for executions
include competency for execution and certification of death. With respect to corporal
punishment, the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment excludes pain or suffering arising from lawful
sanctions from the definition of torture, but the Declaration of Tokyo prohibits
physician participation even if the person is guilty of an offense. Accordingly, health
professionals should not participate in assessments of medical condition before
corporal punishment or in monitoring medical condition during the course of and
after punishment.
Existing guidelines prohibit indirect as well as direct participation, since furthering
the infliction of pain without therapeutic purpose and the taking of life249
violate a
health professional’s duty. For example, a forensic medical professional may be
asked to assess a person’s “suitability” or competence or tolerance for torture,
isolation, or aversive treatment, without actually participating in the event. But the
assessment is a crucial dimension of the process and thus is prohibited.
8. The forensic health professional who, while acting in an evaluative role,
witnesses (the sequelae of) torture and cruel, inhuman and degrading
treatment or punishment, should proactively report these cases.
Commentary: Forensic reports are commonly produced upon request of certain
parties, for example, the prosecution. Forensic medicine is in this respect a reactive
or responsive discipline. However, the health professional may witness torture or
other abuses, which should be reported even when there is no request for forensic
reporting. Examples are child abuse, domestic violence, torture, and police abuse.
E) Guidelines for Military Health Professionals
Preamble
Health professionals working in institutions that serve state interests, where human
rights are easily at risk, are most likely to be confronted with dual loyalty conflicts.
Among these, military health professionals face unique conflicts. They must navigate
their way between very different and sometimes antagonistic or even irreconciliable
goals: on the one hand, to preserve life, attend to the sick, and reduce suffering (the
obligation of the health professional), and on the other, to support killing and
inflicting harm on the enemy (the obligation of the military officer or soldier).
As long as the interests of the patient and the military organization are in line with
each other, dual loyalty conflicts can be avoided. As one military physician put it:
“What’s good for the patient is good for the military, and you want a fit, happy
troop.” But even in peacetime the two objectives may conflict. The military health
professional is a member of civil society’s health professions subject to ethical and
human rights standards and goals. As such, the military health professional attends
to the soldier who is sick, wounded, or in need of other medical attention and who,
like any other patient, seeks the expertise, counseling, and support of his doctor or
nurse in privacy and confidentiality. Indeed, this medical function is protected by
international humanitarian law, which forbids warring parties from interfering or
obstructing efforts by medical personnel to care for the sick and wounded, regardless
of affiliation.
From the military’s point of view, however, even treatment goals can be
subordinated or reinterpreted to reinforce military objectives. For example, usual
principles of triage demand that in medical emergencies health professionals attend
to the most seriously injured first. But in battle the commander may compel the
physician to attend first to soldiers with less severe wounds as a means to return
them to battle quickly and maximize force strength; meanwhile the most seriously
injured suffer or may die. Similarly, treatment of sick or traumatized soldiers in both
physical and mental health may differ from standard civilian protocols in order to
serve military purposes, for example, preparing the soldier as soon as possible for
new battle engagements rather than seeking the best long term outcome for the
patient. Soldiers are often not entitled to exercise informed consent regarding
medication and vaccines. Indeed, even interventions to promote the health and well
being of soldiers are designed to further the fitness of troops for battle or other
military tasks.
In more extreme circumstances, the ethical medical role can be even more severely
compromised. A military health professional may be requested to declare troops fit
for engagement even when they are not. The health professional may be called upon
to participate or advise in interrogation of suspects of terrorism, insurgency, or
espionage to an extent that may amount to torture or cruel and inhuman treatment,
to prepare (and be present at) executions, or to administer pharmaceutical
substances or vaccines to soldiers (own or enemy) without medical justification. He
or she may be called on to participate in biological, chemical or pharmaceutical
research and experimentation where civilian protocols, regulations and supervision
are reduced or absent. When such research takes place in secrecy – often for
legitimate reasons of national security – the military health professional may be
required or asked to yield to security interests and forego medical ethical principles
and professional codes of conduct.
These dual loyalty conflicts place the health professional in an untenable position. In
some of the above examples the practitioner is put in a situation where the
underlying conduct violates human rights. In other cases the health professional may
be called upon to support a violation of the laws of war, such as supporting acts of
violence against a civilian population. Further, during engagements and missions,
military health professionals are likely to witness human rights violations on the
battle field or in peace-enforcing actions. Yet their duty to report these violations
may be inconsistent with the perceived needs of the combat unit.
A complex dual loyalty problem may arise in jurisdictions where military service is
voluntary and members of the armed forces are generally held to have voluntarily
waived some of their rights by choosing to join the armed services. As patients, they
take some responsibility in advance for deciding the extent to which they are willing
to “give up” their rights, including, for example, the right to doctor-patient
confidentiality. However, this agreement does not mean all of a military patient’s
rights are neccessarily waived and health care providers should therefore not exceed
what is “necessary” in any disclosure. Indeed, it is debatable whether the waiving of
rights by conscripts could be reasonably accepted as voluntary.
Health professionals engaged in peacekeeping face other dual loyalty conflicts. In
such operations, military health professionals confront the medical needs of civilian
populations in the area of their assignment; yet they may be subject to rules and
regulations preventing them from providing professional assistance to these civilians.
Military health professionals – being members of the troops and placed in the
hierarchical chain of command250
– thus face an extraordinary set of medical-ethical
and human rights conflicts. The following Guidelines are meant to address these
conflicts. The Guidelines follow the World Medical Association’s Regulations in Time of
Armed Conflict in insisting that the health professional in the military is bound by the
same standards of practice as civilian health professionals.
Scope and Context
The following Guidelines apply to military doctors and other military health
professionals, both in times of combat and in peacekeeping and peace-enforcing
operations. These guidelines apply both to the individual health professional and to
the military institutions and civil authorities and organizations related to the services
of the military health professional.
Guidelines
1. The military health professional’s first and overruling identity and priority
is that of a health professional.
Commentary: Although this guideline appears self-evident, many military
organizations teach physicians that they are officers or soldiers first and physicians
second. As such, they are supposed to make their medical skills available exclusively
for military purposes. In some countries, such as France, the military physician is
trained in a separate miltary medical school, rather than trained as a military doctor
after graduating from civilian medical school. Even where such training takes place,
the primacy of the medical function should always be reinforced, even if there exist
circumstances where the needs of the military prevail over the needs of the soldiers.
2. Civilian medical ethics apply to military health professionals as they do to
civilian practitioners.
Commentary: The starting point for the conduct of military health professionals
should be the ethical and human rights standards of civilian professionals, with
exceptions only for absolutely essential military purposes. These exceptions should
be reviewed on a regular basis. Where deviations from normative (“regular”) medical
ethics are proposed, such deviations should be subject to careful review and
oversight by a suitable structure such as a medical ethical commission with
membership that includes an adequate number of civilian health professionals skilled
in ethical issues.
Upholding medical ethics includes the obligation to obtain informed consent for
treatment. The health professional should consider his or her relationship to the
individual under treatment or evaluation as comparable to a civilian health
professional-patient relationship rather than as part of a military hierarchy. In
considering modes of treatment, a health professional should engage in the same
kinds of dialogue with a patient about medical procedures as he or she would in
civilian practice. Adherence to civilian informed consent practice does not imply that
there will never be circumstances where consent is not required, but rather that the
same standards should apply as in civilian health practice. For example, compulsory
vaccinations should only be administered without consent in the military to the
extent that such vaccinations can be administered in the absence of consent in
civilian practice. Even though joining the armed forces may imply ‘voluntary’ waiving
of some patient rights, this does not relieve the health professional of responsibility
to apply general rules of obtaining informed consent.
3. The military health professional should adhere to the principle of
confidentiality in a manner consistent with practice in civil society.
Commentary: Many military organizations consider the health professional as part
of the chain of command who must thus disclose information concerning patients to
his or her commanding officer, whether that officer is a health professional or not.
This blanket abrogation of the confidentiality principle is not always necessary to
achieve military objectives, however. Information about a person’s medical condition
may be needed to make a determination for fitness to serve, but this function is no
different from fitness to work determinations in the civilian employment context
(except that soldiers are not permitted to withhold consent and leave the position).
Military health professionals can provide their opinions and disclose their medical
judgments about fitness for duty, extent of disability (and projected length of
disability), or required restrictions in a soldier’s scope of responsibilities without
providing detailed medical information and without sharing the information with
personnel not directly involved in the assignment decision. The information disclosed
should be made known to the soldier.
Divulging confidential information simply on the basis of command interests should,
as in civilian society, be regarded as unethical behavior. Exceptions to this general
rule should be reviewed by a mechanism similar to that applicable in civilian life as
described in General Guidelines 7 and 8
.
4. The military health professional is a member of the national and
international health professionals’ community.
Commentary: In many, if not most, countries the military medical community
identifies itself with the military rather than with the larger medical community. This
identification may be due in part to training and organzation, but it is also
psychological. Military health professionals sometimes feel that they are not an
accepted part of the civilian medical society. In other circumstances they do not
separate their role from that of the military generally. The supremacy and priority of
the military health professional’s identity as a professional can be promoted by this
Guideline as well as by the membership of military health professionals in national
and international associations.
5. The military health professional should treat the sick and wounded
according to the rules of medical needs and triage.
Commentary: The Geneva Conventions require medical attention according to usual
medical practice for persons outside of combat, whether civilians or wounded enemy
soldiers. Thus, a guideline requiring adherence to the usual rules of triage should not
be controversial. Because this principle is so often breached, it warrants repetition.
Existing international human rights and humanitarian law and international
professional codes of conduct support the responsibility to follow the rules of triage.
The military health professional should ensure on the basis of a pre-engagement
agreement that he or she will be able to treat civilians of his or her “own side” and
civilians and military (POW and otherwise) of the “enemy side” or those caught in
between, with the understanding that medical need and triage be the exclusive
criteria for selection. A similar guideline should apply in peacekeeping operations
where emergency medical care is needed.251
Finally, the usual rules of triage should apply with respect to soldiers within a health
professional’s own unit. As indicated above, the military’s goal in returning the
maximum number of wounded soldiers to battle as quickly as possibly often results
in different rules of triage than those applied in civilian life. In the military context,
the least wounded may receive treatment first, while treatment for the most
seriously wounded is delayed. The delay in treatment increases the risk of death to
the more severely wounded. This practice should be considered unacceptable.
6. Health professionals should not participate in research or development of
chemical or biological weapons (CBW) that could be used for purposes of
killing, disabling, torturing or in any way harming human life.
Commentary: Military health professionals may be called upon to apply their
specific expertise for offensive chemical and biological weapons research. Such
projects to develop weapons of mass destruction against civilian populations are
often shielded by formal or informal secrecy and immunity. Military health
professionals have participated in horrific chemical and biological weapons
experimentation252
on human beings, hidden behind a wall of secrecy and
immunity. This guideline prohibits such participation because it is fundamentally
inconsistent with human rights.
Any research involving methods to protect human beings from the effects of CBW
weapons, or with materials that could directly or indirectly contribute to CBW
weapons, must be subject to systems of ethical review and scrutiny. Such systems of
ethical review and scrutiny, even when conducted in secrecy due to national security
concerns, should have built into them mechanisms for civilian participation in the
oversight of research.
7. The military health professional should refrain from direct, indirect and
administrative forms of cooperation in torture and cruel, inhuman and
degrading treatment and punishment at all times, including in wartime and
during interrogation of prisoners.
Commentary. The Guideline prohibiting civilian health professionals from
participating in cruel and unusual treatment and punishment applies to military
health professionals as well. Military health professionals have been called upon to
assist in interrogation of prisoners and, in some cases, domestic dissidents. Despite
their military status, however, these professionals are bound by existing prohibitions
on medical participation in torture and cruel and inhuman treatment. Special
attention should be given to practices such as certifying fitness of individuals to
undergo intensive forms of interrogation, to be punished for non-cooperation, or to
be subjected to medical and/or pharmaceutical ‘treatment’ after such interrogations
or punishments.
8. The military health professional should refrain from direct, indirect,
preparatory and administrative participation in capital punishment, both
within the military court martial system and elsewhere.
Commentary: Many countries that have abandoned capital punishment for criminal
offenses permit its use in military courts. In such cases the military health
professional is likely to be involved when he or she is requested to declare the
sentenced prisoner fit for execution. International codes prohibiting the participation
of medical personnel in capital punishment and contain no exceptions for the military
setting. It is never justified for health professionals to participate, directly or
indirectly, in capital punishment.
9. Military health professionals should report violations of human rights that
interfere with their ability to comply with their duty of loyalty to patients to
appropriate authorities and report human rights violations perpetrated by
their own troops as well as by others.
Commentary: Military health professionals should maintain their independence and
report human rights violations as civilian health professionals do (see General
Guideline 12). The military health professional should especially take steps to report
violations of the Geneva Conventions.
10.The health professional should not engage or participate in any form of
human experimentation among members of military services unless the
research will provide significant health and other benefits for miltary
personnel and facilitate promotion of their human rights.
Commentary: It is the view of the Working Group that true “voluntary informed
consent” is extremely difficult to obtain in the military setting, because of the various
overt and covert factors which govern the relationship between military personel,
their chain of command and the health professional. There may however, be some
particular circumstances when research with military personnel may provide
significant health and other benefits and facilitate promotion of their human rights.
The Working Group acknowledges, moreover, that research issues are not strictly
part of its mandate; we would thus welcome further discussion with and guidance
from those directly involved in the ethics of research.
V. Institutional Mechanisms to Promote
Human Rights in Health Practice
• Introduction
• Objectives of the Institutional Mechanisms
• Institutional Mechanisms by Strategy
o Employment relationships
o Administrative and legal arrangements to preserve professional
independence
o Peer review, professional credibility, support
o Monitoring
o Education and Training
o Accountability
o Collective action by the professions
• Institutional Mechanisms by Stakeholders/Agents
o Roles for Professional Organizations: National
o Roles for Professional Organizations: International
o Roles for Statutory (licensing) Bodies
o Roles for Civil Society
o Roles for Government
o Role of the United Nations and Related International and Regional
Intergovernmental Bodies
o Role of Training and Research Institutions
Introduction
Developing and strengthening institutions to address the problem of dual loyalty at a
systemic level is critical to promoting high standards of professional practice among
health professionals and protecting patients’ human rights. Institutional mechanisms
may serve either to protect the practitioner from being placed in the conflict in the
first place or to help the practitioner address it effectively once it arises. In many
cases of dual loyalty conflicts, particularly in repressive societies, the absence of
institutional mechanisms to support an ethical response leaves the individual health
professional isolated and facing extremely difficult decisions, sometimes regarding
loyalty to the patient and personal safety. In addition, the absence of institutional
mechanisms to hold health professionals accountable for the human rights
consequences of their actions or inaction encourages violations of human rights when
conflicts arise.
Experience worldwide has confirmed that these two factors — health professional
vulnerability and lack of oversight and support from professional organizations and
administrative institutions — create a lethal combination that, under the
circumstances of dual loyalty, may easily give rise to human rights violations on a
wide scale. Thus, how key institutions both within and outside the health sector
operate is central to the effective implementation of the Guidelines.
The term “Institutional Mechanisms” is used to capture the full spectrum of agencies,
organizations, social and administrative structures and functions that work to achieve
an agreed social objective. In relation to dual loyalty and health professionals, such
institutional mechanisms include activities and policies of professional organizations
and disciplinary bodies, educational institutions, and stakeholder groups, regulation,
consumer action, administrative and legal structures and procedures, and
employment arrangements.
Some of these institutional mechanisms, such as education and training, are
straightforward. Others require changing the manner in which health professionals
relate to the state, such as in the structuring of employment relationships, and, as
important, augmenting the role of health professional organizations in promoting
human rights and preventing dual loyalty conflicts. This is critical because in many
cases individual practitioners are not in a strong position to resolve conflicts on their
own – and in some cases put themselves in serious jeopardy if they try. Under these
circumstances, only collective action will enable individual health professionals to
fulfill their human rights obligations towards their patients. Organizations of health
professionals must therefore play an active role in speaking out against practices
that compel individual practitioners to ally with the state against the human rights of
their patients. They should also advocate for systemic changes that end or
ameliorate discriminatory practices and structural violations of the right to the
highest attainable standard of health. Such actions will help prevent health
professionals from becoming instruments of human rights violations.
Objectives of the Institutional Mechanisms
Institutional mechanisms to address the problem of dual loyalty have seven key
functions:
• To structure the relationship of the health professional to the state in a
manner that will protect the independence of the health professional from
state demands or pressures, ameliorating both the sense of obligation to the
state and the pressure to succumb to them.
• To support health professionals who seek to comply with their ethical and
human rights obligations in the face of state demands to the contrary.
• To hold professionals accountable for violations of human rights where
adherence to state interests prevail unjustly over their fidelity to the patient.
• To provide an avenue to challenge state practices or policies that impede or
prevent a health professional from acting to protect the human rights of
patients.
• To increase awareness among health professionals of the problem of dual
loyalty and human rights through training and ongoing peer discussion.
• To bolster the role of health professional organizations in preventing human
rights abuses that stem from dual loyalty.
• To minimize the secrecy that can mask dual loyalty conflicts.
Broadly speaking, the institutional mechanisms may be described both in terms of
the agency or stakeholder responsible and in terms of the purpose of the
mechanism. These are set out in the table below. Different agencies may play
complementary roles in attaining the same objective and many of the mechanisms
described below can therefore be construed as existing in a two-dimensional (or
even multi-dimensional) matrix, in which an agency is represented on one axis while
the activity is represented on the other axis (see Annex).
Table 1. Institutional Mechanisms – Functions and
Responsibilities
Functions
• Monitoring violations
• Speaking out against violations and advocacy
• Lobbying
• Problem solving, advisory service
• Legal proscription of undesirable practices
• Legal encouragement of best practices
• Victim redress
• Education and Training
• Protection from reprisal
• Holding professionals and their organizations accountable
Agency and Stakeholders
• Professional Association
o National (local)
o International
• The State and its sub-divisions:
o Health services
o Military
o Police and security services
o Prison services
o Judiciary:
Parliaments and legislative bodies
Multinational and Transnational governmental agencies
Patients and patients organized as consumer groups
Professional licensing and disciplinary bodies
Universities and Training institutions
Private corporations
• Human Rights NGOs
o National
o International
The following discussion details a range of institutional mechanisms applicable to
settings and situations in which dual loyalty conflicts are likely to lead to human
rights violations. This section describes generic mechanisms relevant to a range of
settings, not only those “high-risk” settings singled out for detailed examination.
These institutional mechanisms are presented in a way that maximizes the
generalizability of the underlying strategy of the mechanism, first by approaching
mechanisms by what they intend to achieve (by strategy) and second, by where the
institutional responsibility lies (by stakeholder/agent).
Institutional Mechanisms by Strategy
1. Employment relationships structured to avoid role conflicts
and reduce interference with professional independence
In a wide range of settings, the independence of the employed health professional
from overt or implicit pressures by his or her employer must be assured. This is as
true of the primary care practitioner in a prison as it is of the forensic specialist
dealing with highly vulnerable populations such as those who are incarcerated or who
belong to a group that is subjected to pervasive discrimination. Whether health
professionals are employed by the state or by private companies, it is important that
institutional lines of accountability facilitate compliance with ethical obligations and
protect human rights. Agencies that employ or use services of health professionals
should ensure:
1.1. That in settings with a high potential for human rights abuses, state agencies
structure employment relationships such that health professionals do not report
directly to superiors in agencies under whose authority the violation may take place.
For example, forensic health professionals should report to management structures
other than the police or prosecuting authorities and prison doctors should not report
to prison administrators. Even where independent lines of accountability may not be
completely feasible (e.g., in the military), health professionals should report to other
health professionals rather than to administrators responsible for operations.
1.2. That health professionals do not receive their salaries from the department or
agency for which their services are provided, but rather from an independent source,
even if that source is another government department, for example, a health agency
rather than a prison agency. Similarly, forensic health professionals conducting
evaluations for the criminal justice system should not receive their salaries from the
police or prosecutor’s offices.
1.3. That employment agreements and job descriptions in settings posing high risks
of human rights violations such as prison, police, the workplace serving vulnerable
populations or the military have explicit clauses stressing the responsibility of the
health professional to uphold patients’ human rights and adhere to ethical and
human rights standards. The clauses can be effective in dissuading state authorities
from seeking the allegiance of health professionals to the state, and can
institutionalize access to an independent ombudsman.253
In the military setting,
pre-engagement agreements should be an essential part of contracts and regular
contract review. Pre-engagement agreements should cover issues such as
monitoring and reporting human rights violations as well as triage and
confidentiality.
1.4. That adherence to human rights standards is made part of job descriptions for
health professionals. These standards should include non-discriminatory standards of
care, including protector of women’s health. Performance standards incorporating
human rights should be established for health professionals and non-professionals
and should reward behavior that creates positive role models for newer employees.
1.5. That employment agreements for health professionals explicitly recognize the
ethical and human rights obligations of health professionals to report human rights
violations, and subordinate any secrecy provisions (e.g., related to commercial or
military secrecy) to the professional’s ethical and human rights obligations where
these may conflict with secrecy. In other words, contracts should neither gag nor
hold the threat of retaliation over health professionals where human rights are at
stake. Rather, such contracts should actively encourage reporting of abuses. As
noted in 1.3 above, pre-engagement agreements may serve this function in the
military context.
1.6. That conditions of employment, such as restrictions on time spent with prisoner
patients, do not compromise the capacity of the professional to exercise his or her
independent judgment. Care should also be taken that a professional is not indirectly
influenced by conditions of employment to “turn a blind eye’’ to human rights
violations. At the least, conditions of service should be equal to that of colleagues in
other settings.
1.7. That some method of rotation or alternative employment arrangement exists to
address the threat of over-identification with an employer. Rotation may promote a
greater sense of objectivity on the part of the professional and bring a non-
institutional perspective to practice in closed environments, and thus limit
identification with the state. Forensic specialists, for example, may benefit from
dividing their professional time performing evaluations between working on behalf of
the state and working on behalf of individuals. Similarly, wherever possible, health
professionals should rotate periodically out of settings like detention facilities where
they are likely to face pressures to subordinate patient human rights to state
interests. In the workplace setting, where rotation is more difficult, alternative forms
of employment, for example, professionals employed by different levels of
government or by collective organizations of workers, may “balance” occupational
health professionals employed solely by industry.
1.8. That agency leadership at the highest levels ensures that administrators of state
institutions understand and defer to the ethical and human rights responsibilities of
health professionals. Leaders should ensure that health professionals are recruited
and selected for positions in high-risk settings without conditions that would
compromise their independent clinical judgment in favor of state policies.
1.9. That education and awareness-raising is provided to policymakers, employers,
health services users, the public, and health professionals regarding the relationship
between empowerment relationships and human rights.
2. Administrative and legal arrangements to preserve
professional independence
Administrative and legal mechanisms to preserve professional independence include:
2.1. Administrative and legal systems that assure the availability of professionals
whose judgment is not compromised by loyalty to the state. For example, states
should put into place policies and procedures to permit individuals (or their families)
who may have been a victim of a human rights violations at the hands of police,
prisons or detention facilities to have access to an independent health professional to
conduct examinations. Registers of specialists with necessary skills should be made
publicly available.
2.2. Provisions for independence of professional associations and licensing bodies,
guaranteed in these organizations’ enabling legislation (where applicable),
constitutions, composition, and reviewed through audit of their practices.
2.3. The issuance of ongoing guidance to health professionals from professional
organizations on the problem of dual loyalty and human rights, including the
identification of circumstances where subordination of patient interests to a social or
state objective is acceptable to further legitimate public health, non-medical
interests, or evaluative needs. This guidance can be issued both categorically and in
specific cases. The guidance should be sufficiently detailed to enable a health
professional to judge whether a particular behavior is acceptable.
2.4. An independent source of advice and support for health professionals, through
peers and respected colleagues, in settings where a high risk of human rights
violations exists.
2.5. The establishment of an independent “ombudsman” body to which violations
and potential violations and potential violations of human rights stemming from dual
loyalty can be reported. The body may also act in an advisory role to practitioners,
offering skills and resources through which problems and questions can be discussed
(see also monitoring below under Mechanism 4
).
2.6. Policies and charters (e.g. Patients’ Bills of Rights, Public Service Charters,
occupational health and safety policies) to create a framework where dual loyalty
conflicts are recognized, prevented or resolved before they lead to human rights
violations. Such frameworks should not only address rights of users and
communities, but also address how best to solve human rights problems generated
by dual loyalty conflicts. Policies can also make use of recognized private sector
standards to ensure consonance with best human rights practice.
2.7. Establishment of accountability for violations of patients’ human rights through
mechanisms of professional discipline. In most countries, the existing licensing and
disciplinary entities do not consider violations of the human rights of patients as a
basis for discipline and do not have effective means to hold health professionals
accountable for human rights violations. See Mechanism 6
.
2.8. Administrative procedures available to health professionals in the event they
seek to protect themselves from pressures to act in ways that subordinate the
human rights of the patient. The procedures must also guarantee freedom from
reprisal if a health professional chooses to take advantage of them.
2.9. Whistle blowing provisions to protect health professionals from reprisals if they
resist pressure to subordinate patient human rights to state interests or if they
report violations. Whistle blowing protections are especially important where
administrative procedures to protect professional independence do not exist or fail to
function adequately. Whistle blowing legislation has been introduced in various
countries with varying degrees of success254
and should apply in all sectors
including high-risk sectors such as the military and security environment.
3. Establishment of an ethos of peer review, professional
credibility, support and inclusiveness in the profession that
addresses the problem of dual loyalty
Because many of the most egregious dual-loyalty-related violations of human rights
are accompanied — indeed, facilitated — by isolation and lack of oversight,
cultivating awareness, professional review, and cohesion among health professionals
at risk should be at the center of restructuring professional relationships. A culture of
support and peer review in the health professions, based on transparency and
professional acceptance, can play a critical role in constraining the potential for
abuse, and in supporting professionals at risk. Measures to foster such a culture
include:
3.1. The development and adoption of practice standards that have wide
acceptability in the profession, and that address the human rights of patients. Such
standards should be uniformly applicable, without exception, to all settings where
health professionals deal with patients, including settings at high risk for human
rights violations (e.g., military, police, health clinics serving vulnerable populations).
They should also address areas where professional obligations may conflict with state
policy or cultural norms and reinforce understandings of human rights, such as, the
right to reproductive health services for women, rights of immigrants and refugees.
See also 2.3
regarding promulgation of guidance interpreting standards.
3.2. Establishment of appropriate professional structures for peer review such as
case conferences, grand rounds, and journal club discussion among health
professionals working in high-risk settings, and professional sub-groups for relevant
disciplines, e.g. prison medicine, military medicine, and workplace and forensic
services within existing professional associations. National professional associations
should actively recruit members from high-risk settings, such as the military, to end
the isolation that facilitates complicity in human rights violations.
3.3. Professional audits and/or quality assurance mechanisms that focus on
compliance with obligations to uphold the human rights of patients.
3.4. The creation of newsletters and other media (e.g., web-based) aimed at
professionals in particularly isolated settings (e.g., prisons, military).
3.5. Financial and other incentives for students and trainees to undergo training in
high-risk settings such as prisons, military, workplace, and forensic health care.
3.6. Continuing education, clinical case conferences, and other mechanisms of
ongoing training that support the practitioner’s professional development in human
rights, especially in high-risk settings.
3.7. Regular discussion of human rights issues at professional meetings.
3.8. Ongoing mentoring and peer support, especially from senior colleagues.
3.9. Support from professional organizations for health professionals threatened with
or experiencing reprisals for respecting or defending human rights. Support in the
form of public denunciation of the harassment and offers of professional, moral and,
where necessary, material support are critical. Having chapters, committees or other
structures within professional associations dedicated to support for health
professionals defending human rights encourages those in high-risk situations to
defend ethical principles and human rights.
3.10. Membership of national associations in international professional bodies. By
making membership contingent on the establishment of support, accountability and
mentoring structures (as demonstrated in organizational constitutions), international
bodies can encourage national professional organizations to set up those structures.
3.11. Removal of impediments, legal or otherwise, preventing health professionals in
the military, police, or prison services from belonging to the same professional
associations as civilian health professionals; indeed, such arrangements should be
encouraged. Even in the military, where pressures to close ranks may be strong,
structures should be put in place to make sure that health professionals in the
security environment are fully engaged with colleagues in the civilian sphere, and
that non-military health professionals participate in relevant professional structures,
such as ethical bodies established to provide oversight of research and practice.
4. Monitoring
Independent oversight and reporting structures must be established to monitor and
respond to practices in the health sector that threaten human rights. These
structures should support audit activities undertaken by health professionals and
should enable professionals to make independent reports of potential or actual
violations of the human rights of patients or other victims. These structures would
also have the capacity to refer appropriate cases to professional disciplinary
structures. These structures may or may not be linked to an independent
ombudsman to whom violations can be reported without fear of reprisal and with
whom problems and questions can be discussed.
Monitoring the complicity of health professionals in human rights abuses, moreover,
should also be linked to monitoring the underlying human rights violations.
Monitoring can take place at the local or national level (by national professional
associations, statutory bodies, or human rights organizations) and may often be
done as well by international bodies, including United Nations agencies, professional
bodies, and human rights organizations. Such monitoring should aim to:
• Identify countries, locales or settings where violations of human rights within
the health sector or in connection with health services are common.
• Provide an accessible means by which individuals subject or potentially
subject to a human rights violation as a result of the actions of a health
professional can receive advice and guidance how to proceed and can file
complaints about conduct of health professionals that violates their human
rights with appropriate agencies with protection from of reprisal.
• Monitor trends in relation to new legislation or policies, including health
policies, so as to identify points of intervention to address the compromise of
human rights by dual loyalty conflicts.
• Identify weaknesses in the organization or facilities which are supposed to
help individual health practitioners to report violations and to recommend
improvements.
Mechanisms for monitors include:
4.1. A monitoring body empowered to gain access to all facilities, including closed
institutions (psychiatric facilities, prisons, and military), including staff and records,
to allow comprehensive and unbiased evaluations of adherence to human rights
standards. Internal monitoring structures to promote quality assurance may be
effective, but should not be used as a substitute for, or as an obstacle to, access to
external monitoring. Justified concerns for security may impose certain restrictions
on how publicly the information obtained can be divulged but should never be used
to prevent scrutiny of ethical and human rights practices. Health personnel working
in such settings should have no unreasonable obstacles placed in the way of
submitting information to such monitoring bodies.
4.2. Legislation to support the monitoring function. In establishing or recognizing a
monitoring body, appropriate administrative, investigative and financial powers and
duties should be established in law. While the exact placement of such a body as a
statutory, quasi-governmental or non-governmental body remains a matter for local
determinations the independence of the monitoring body must be established by law.
4.3. A clearly articulated purpose for the monitoring and protocols establishing
methods and procedures.
4.4. Effective access to the monitoring process for patients or the public through an
effective complaint procedure and access to assistance in filing complaints. Patients
and the public should be informed about the availability of such a mechanism. They
should be protected from reprisal for filing complaints.
4.5. In monitoring by professional bodies, inclusion of non-professionals, including
patients or consumers in setting priorities, criteria for evaluation, systems to monitor
and monitoring activities.
4.6. National professional association membership of international bodies contingent
on demonstrated commitment to implementing monitoring for human rights
violations arising from dual loyalty.
4.7. Take into account international conventions and human rights agencies, such as
UN Rapporteurs (including Special Rapporteur on the Right to the Highest Attainable
Standard of Health) as well as information contained in shadow reporting255
by
NGO’s, professional organizations and civil society bodies.
4.8. Promoting and safeguarding prioritized provisions for the active participation of
the organized profession (such as National Medical Associations ) and their members,
and of specialized health and human rights organizations, in the preparation and
production of alternative (“shadow”) reports for the supervising committees of
relevant UN treaties and conventions such as the Convention on Civil and Political
Rights,Convention on Economic, Social and Cultural Rights, Convention on Rights of
the Child, Convention on the Elimination of Racial Discrimination, Convention on the
Elimination of Discrimination Against Women, as well as the networking and
advocacy work that is related to the production of alternative reports.
5. Education and Training
Lack of specific skills in ethical and human rights concerns contributes to the
vulnerability of health professionals to pressures that will result in the violation of
their patients’ human rights. Education and training in human rights, including in
identifying dual loyalty conflicts, should be integrated into professional training at all
levels.
Educational content should address at least the following concerns:
• Understanding the human rights of patients, including the right to be free
from discrimination and the right to the highest attainable standard of health,
and implications for health practice.
• Education on ethical and human rights standards that inform the Guidelines,
including distinguishing situations where serving state interests is legitimate
from those where it is not.
• Education on ethical and human rights reasoning.
• Identification of the elements of a dual loyalty conflict and how to address it.
Mechanisms for education and training include:
5.1. Specific focus in undergraduate and graduate health professional training in
understanding ethics and human rights in the education of health professionals so
that graduates have the competencies to deal with potentially rights-compromising
situations. The objectives should include an understanding of human rights and
ethics, the skills to identify a dual loyalty conflict, and the problem-solving skills to
identify an appropriate resolution of the conflict, either independently or by
consulting peers or other resources.
5.2. Incorporation of respect for human rights as part of mandatory ethics training
for health professionals. This should include exposure to areas of human rights
concern such as prison health care, immigrant and refugee health, practice in the
workplace, women’s health, mental health, and the military and forensic
examinations. It should also address obligations to communities of patients. In
addition to the identification of the human rights concerns in these areas, the
training should aim to engender positive experiences among students about the
challenges in these areas as a means to counter the low prestige these practice
areas may be held in the eyes of peers
5.3. Requirements for continuing professional development or education to include
ethical and human rights knowledge and competencies across all practice sectors,
and be used to upgrade specific clinical skills needed for particular settings.
5.4. Investment in postgraduate training in key competencies at national or local
levels to ensure that there are sufficient skilled professionals available in settings
where the risks of human rights violations are greatest and where communities are
in greatest need. In many countries, forensic skills should be a priority. Where
professionals are working in at-risk settings, particular attention should be paid to
ethics, human rights, humanitarian law, and dual loyalty conflicts (including these
guidelines).
5.5. National and international conferences and workshops that focus on settings at
high risk of human rights violations, such as prisons, refugee health care, immigrant
and refugee health, the workplace, the military and forensic evaluations.
5.6. Educational activities directed at professional staff other than health
professionals whose conduct can have important impacts on patient human rights
(e.g. custodial staff in total institutions; non-health personnel in the military; state
administrators, private employers, trade unions). Employers of health professionals
should be educated on the ethical and human rights responsibilities of health
professionals.
5.7. Accreditation of training of health professionals by national ministries,
professional councils that includes requirements for knowledge in ethics and human
rights, particularly as they affect the problem of dual loyalty, as a core competency.
In setting standards for health professional training curricula, these core
competencies should be reflected in curricula content and outcomes criteria.
5.8. Training in efficient and professional monitoring and reporting procedures, such
as the preparation and production of alternative (“shadow”) reports for the
supervising committees of relevant UN treaties and conventions, as well as the
networking and advocacy work that is related to the production of alternative
reports.
5.9. National professional organizations develop programs to address these
recommendations.
5.10. International professional bodies encourage training and education by
supporting activities consistent with these mechanisms undertaken by national
members and by putting pressure on those national members who fail to engage in
them.
6. Accountability
Although many of these institutional mechanisms seek to provide incentives and
support for health professionals in protecting the human rights of their patients in
the face of conflicting demands by the state or employer, it is necessary to
complement such mechanisms with effective means of holding health professionals
accountable for violations of human rights. To do so will require a commitment to
end the long record of inadequate disciplinary procedures and standards within the
health professions and neglect of human rights violations as a basis for discipline. It
will also require a commitment to apply ethical and human rights standards to health
professionals in all settings equally. Steps include:
6.1. Professional codes that establish violations of the human rights of patients as a
subject for discipline. The codes should be supported as appropriate in national
practice by legislation.
6.2. Disciplinary and licensing bodies institute measures to ensure the independence
of professionals in health practice.
6.3. Disciplinary and, where appropriate, professional organizations have effective
systems in place to discipline members for ethical and human rights transgressions.
6.4. Standards for discipline are consistently applied to health professionals in all
settings equally, including the military.
6.5. Victims of a human rights abuse arising from a dual loyalty conflict have
appropriate access to, and support in, complaint mechanisms in a disciplinary
process.
7. Collective action by the professions
Ethical conflicts are typically conceptualized as matters for the individual health
practitioner to resolve. But in many cases dual loyalty human rights conflicts arise in
an environment of state demands or threats on the practitioner to comply. These
may be accompanied by legal barriers to professional independence or circumstances
where structural arrangements or institutionalized human rights violations preclude
the individual practitioner from avoiding the conflict or changing the practice
environment. For this reason, mechanisms of collective action are needed. They
include:
7.1. Support for individual health professionals who are subjected to reprisals,
threats, or demands by the state for subordinating patient human rights to state
interests, through every means possible, including speaking out publicly.
7.2. Advocacy to change laws and regulations that prevent or impede health
professionals from meeting their human rights obligations to patients.
7.3. Proactive steps to prevent health professionals from being placed in positions
where they will be at risk of participating in a violation of a patient’s human rights.
7.4. Advocacy to end state policies and practices that prevent health professionals
from providing health care to some or all patients in need, including communities of
patients, consistent with professional standards of care. These practices include,
among others, a state’s failure to take adequate steps needed toward the attainment
of the highest standard of health for all, inequity in allocation of health resources or
benefits, and discrimination (or tolerance of discrimination) against women, refugees
and immigrants and ethnic, racial or religious groups or on the basis of disease or
disability.
7.5. Advocacy for policies to promote, protect and fulfill human rights that avoid dual
loyalty conflicts, such as Patient Rights Charters, workplace occupational health
policies and Public Service standards.
Institutional Mechanisms by Stakeholders/Agents
Different stakeholders and agents may share responsibility for many of the above
strategies, while others may be highly specific to particular constituencies.
Institutional mechanisms are detailed below particular to each category of
stakeholder/agent identified in the analysis.
1. Roles for Professional Organizations: National
1.1. Establish professional practice standards that address the problem of dual
loyalty and human rights for across a wide spectrum of practice settings and
situations. These may include adoption of international standards on human rights
and professional practice. These practice standards can also help identify situations
for health professionals where furthering state interests is legitimate and does not
violate a patient’s human rights. By clarifying the relationships between human
rights and state interests, standard-setting bodies can promote compliance where
loyalty to the patient is essential. Such standards should be promoted so as to
ensure widest professional acceptance and adoption by state and other agencies and
by health professionals themselves. Associations should provide ongoing attention to
standards and practices through a high-level committee.
1.2. Where violations of professional standards take place, hold members
accountable to these standards through appropriate disciplinary action. This will
require that professional organizations have effective systems in place to discipline
or, where appropriate, expel members for ethical and human rights transgressions.
To do so will require a commitment to end the long record of inadequate disciplinary
procedures and standards within the health professions and neglect of human rights
violations as a basis for discipline. It will also require a commitment to apply ethical
and human rights standards to health professionals in all settings.
1.3. Facilitate adoption of self-audits by health services to complement application of
standards. Special audits can be commissioned in various settings.
1.4. Make available advisers and counselors skilled in human rights and ethics to
health professionals practicing in circumstances where problems of dual loyalty and
human rights arise.
1.5. Provide direct support for health professionals in high-risk situations, for
example establishing sectoral groups of professionals (e.g. prison health care,
occupational health, military medicine) under the auspices of the professional
association to discuss dual loyalty problems that arise and how to address them.
Moral, material, and professional support should be provided to colleagues placed at
risk by the state for upholding human rights. Support should always include
advocating on behalf of a colleague who is placed in career or legal jeopardy on
account of upholding the human rights of patients. This support may include
establishing the capacity to come to the aid of health professionals under threat for
protecting human rights in other countries (e.g. a committee of the association
specifically dedicated to collegial support around victimization for human rights).
1.6. Establish or facilitate an independent oversight and reporting structure to play a
monitoring and/or ombudsman role. Ombudsman services should aim to provide
clear advice to health professionals at risk.
1.7. Issue newsletters and create web sites to raise awareness in the professions
and the public, and conduct ongoing debate on dual loyalty problems in a range of
vehicles, such as journals and professional meetings. Hosting of conferences and
workshops on ethical and human rights issues inherent in high-risk areas may also
be used for this purpose.
1.8. Initiate and support ongoing ethical and human rights training that addresses
the problem of dual loyalty and human rights and support other groups doing such
work.
1.9. Ensure that constitutions of national professional organizations establish the
organization as independent of the state and of state policy and that the organization
can exercise this independence in voicing concerns or criticisms of state policies that
infringe medical ethics and human rights.
1.10. Submit shadow reports on national reports to United Nations treaty monitoring
bodies for human rights treaties such as the Convention Against Torture and the
Covenants on Civil and Political Rights and Economic, Social and Cultural Rights on
issues concerning dual loyalty and human rights.
1.11. Advocate for legal, administrative, and social changes that will enable health
professionals to respect, protect and fulfill the human rights of their patients. This
includes advocacy to bring an end to practices where state agents demand or
threaten the practitioner to subordinate patient human rights to state interests;
where there exist legal barriers to professional independence; where structural
arrangements or institutionalized human rights violations preclude the individual
practitioner from avoiding the conflict or changing the practice environment; and
where discrimination or structural inequity preclude health professionals from
providing equal care to patients or communities. Associations should advocate to
develop, implement and monitor policies that prevent human rights violations
resulting from dual loyalty conflicts in the health sector. Associations should establish
formal components and have adequate staffing to engage in human rights advocacy.
1.12. To implement many of the above mechanisms, national associations may have
to develop plans and invest resources to increase members’ support for these
organizational actions.
2. Roles for Professional Organizations: International
2.1. Develop standards and guidelines on the problem of dual loyalty and human
rights, to be disseminated internationally and applied at country level. The
organization should incorporate such standards within or coordinated them with
other existing policy guidelines and ongoing working groups or committees to
oversee further development of standards and guidelines to address current
concerns.
2.2. Support national professional associations or other health professional or human
rights groups and bodies that are threatened or experience reprisals as a result of
speaking out in favor of human rights.
2.3. Support individual professionals at risk of reprisal for their actions in promoting
human rights through international publicity and other mechanisms such as support
to local professional organizations supporting the victim.
2.4. Facilitate and encourage international monitoring, through UN Rapporteurs,
including the Special Rapporteur on the Right to the Highest Attainable Standard of
Health, and international human rights organizations, of high-risk environments.
2.5. Establish or expand sectoral interest groups of professionals (e.g. prison health
care) under the auspices of the international body in order to develop standards for
wider application and to facilitate support, networking and monitoring.
2.6. Monitor national professional associations to ensure that they remain
independent of the state in structure, as shown in their constitutions; in actions, as
shown by their compliance with international humanitarian law and international
professional declarations; and by their activities, as shown in their response to dual
loyalty human rights conflicts. International professional organizations need to have
their own systems of certification and sanctions in place to put pressure on member
associations.
2.7. Urge policies and practices that promote the protection of human rights,
including the right the highest attainable standard of health and facilitate
development of such policies at international, regional, national and local levels as
appropriate.
2.8. Host conferences and workshops on ethical and human rights issues inherent in
high-risk areas.
3. Roles for statutory (licensing) bodies
Licensing bodies have enormous power over the health professions and on the
institutions in society that use them. The licensing bodies can establish standards
and requirements, discipline offenders, and demand respect by other entities for
their professional independence. Mechanisms include:
3.1. Where educational standard setting is part of a statutory function, set standards
for undergraduate and postgraduate training in the health professions that ensures
competency in basic skills in and sensitivity to ethical and human rights aspects of
practice. If graduates will be expected to perform forensic evaluations, ensure that
training provides the necessary technical and conceptual skills required.
3.2. Maintain a register of health professionals with specific expertise (e.g. forensic)
who are available for independent evaluations where human rights violations at
stake.
3.3. Establish mechanisms for providing guidance to practitioners in high-risk
settings.
3.4. Establish or facilitate an independent oversight and reporting structure to play a
monitoring and/or ombudsman role.
3.5. Apply ethics and human rights standards to health professionals in all settings
equally, including the military. Where indicated, hold members accountable to these
standards through appropriate disciplinary action. Systems must be in place to
discipline professionals for ethical and human rights transgressions and to allow
victims of abuse to have appropriate access to and support in the complaint process.
3.6. Extend continuing professional education requirements to all settings and
establish special programs for professionals working in high-risk settings.
3.7. Consider requiring that knowledge of human rights obligations be a condition of
practice in high-risk settings.
3.8. Review and make recommendations for the structuring of employment
relationships in high-risk settings.
4. Roles for civil society
Civil society organizations can promote professional independence and the protection
of patients’ human rights. They can:
4.1. Establish or facilitate an independent oversight and reporting structure to play a
monitoring and/or ombudsman role for individuals who are subjected to human
rights violations by health professionals. Use such information to lobby, publicize,
prompt independent investigations, and seek redress.
4.2. Protest any failures by national professional associations and international
professional associations to prevent violations or to fail to take action in the face of
violations.
4.3. Encourage participation of community, trade union and consumer groups in
developing policies and standards to protect human rights by all relevant entities.
Raise awareness among health service users and the public about their rights in
situations of dual loyalty and what the role of health professionals should be.
4.4. Write shadow reports on national reports to United Nations treaty bodies
monitoring human rights conventions.
4.5. Promote the independence of health professionals from the state. Organize
skilled professionals to conduct independent examinations in settings where human
rights are at stake. Assert the rights of patients or families to a reasonable degree of
choice of health professional. Advocate for systems that enable forensic evaluators to
divide their time between service to the state and service to individuals and family
members so as to improve their sensitivity to human rights.
4.6. Advocate for health and human rights and for appropriate policies to protect
human rights in the health sector, such as Patient Rights’ Charters or Bills of Rights
and workplace health and safety policies. Civil society organizations should also press
for performance standards for service providers to specifically include human rights
standards and encourage self-regulation mechanisms in the private sector (such as
employer codes of practice) to include attention to human rights standards.
4.7. Support health professionals who face reprisals for defending human rights.
4.8. Facilitate training of non-professional staff in the health sector to ensure respect
for ethical and human rights standards. This should include training of employers of
health professionals, both state agencies and private companies, as well as employer
associations, on the ethical and human rights responsibilities of health professionals.
5. Roles for government (other than statutory bodies)
Government can also show leadership in embracing and promulgating policies that
reinforce the importance of human rights protection in health care environments.
Government ministries also play a key role in establishing mechanisms to protect
health professionals from the role conflicts that often lead to complicity in human
rights violations. Government action is especially important in structuring
employment and reporting relationships in high-risk settings. Government policy is
also central to ending discrimination and inequity in health. Mechanisms include:
5.1. Legislation and administrative regulations and practice that commit the state to
respect, protect and fulfill human rights. This includes explicit policies on equal
access to heath care, recognition of women’s right to reproductive health services,
the protection of immigrants and refugees, non-discrimination, and the right to the
highest attainable standard of health. They should require health professionals to
respect, protect and fulfill the human rights of their patients, in whatever setting
they practice, including closed institutions. These provisions should outlaw contracts
that gag or subjugate ethical and human rights responsibilities to other concerns in
all settings, including the military. An entity within government Ministries of Health
should be responsible for overseeing these standards.
5.2. Legislation and administrative regulations and practice that prohibit state
employers from compelling or influencing health professionals to violate human
rights. Contracts with all health professionals employed by the state should recognize
the primacy of their ethical and human rights obligations. In the military setting, pre-
engagement agreements are best included as an essential part of contracts and
regular contract review. Pre-engagement agreements cover issues such as
monitoring and reporting human rights violations and treatment of non-military
casualties and sick.
5.3. Legislation and administrative regulations and practice that explicitly permit
and, where possible, encourage, all state health professionals (including those in the
military and police) to belong to and participating in civilian associations of health
professionals. At the very least, legislation should outlaw rules or practices that
prevent health professionals employed by the state or private bodies from joining
their own professional bodies.
5.4. Legislation and administrative regulations and practice to structure employment
and conditions of service for health professionals in high-risk settings in a manner
most likely to protect human rights. Provisions should allow for lines of professional
accountability to professionals and for independent reporting to professional or
human rights oversight bodies, without fear of reprisal. Where health professionals
provide a service to patients at risk due to their detention, a government department
other than the one responsible for holding the patient should pay and oversee the
work of health professionals. For example, health professionals in detention facilities
should not be employed by the facility and forensic evaluators should not be paid by
the police or prosecution authorities. Regulations should also not act as barriers to
rotation of staff, nor to establishing alternative form of employment relationships in
high-risk settings that facilitate adherence to human rights standards.
5.5. Legislation and administrative regulations and practice to protect health
professionals who are employed by the state from serving victims of human rights
abuses to protect whistleblowers from reprisal. These provisions should apply to all
sectors, including the military.
5.6. Legislation and administrative regulations and practice to assure that state-
employed or contracted health professionals are able to maintain professional
standards that protect human rights and have incentives to receive training when
practicing in high-risk settings. Performance appraisals should routinely include
reference to health professionals’ record in meeting human rights standards in their
practice and reward behavior that creates positive role models for newer employees.
Responsible agencies should respect the obligation to maintain ethical and human
rights standards in the recruitment and selection procedures for posts in settings
where human rights may be under threat and should allow state-employed
practitioners in high-risk settings to undertake work on behalf of victims of human
rights violations and their families. Agencies should also encourage state-employed
health professionals to belong to non-statutory professional associations.
5.7. Legislation and administrative regulations and practice to establish, empower,
and fund a monitoring entity for human rights violations in health that includes
access to closed institutions. Such entities should have adequate representation of
civilian/ patient sectors.
5.8. Legislation and administrative regulations and practice that provide funding for
independent medical assessments where human rights violations may have occurred.
Such policies should also facilitate forensic examiners being able to conduct
evaluations for individuals, so that their professional time is spent in service of both
state and individuals (or families).
5.9. Legislation and administrative regulations and practice to encourage
development, implementation and monitoring of policies to promote, protect and
fulfill human rights that avoid dual loyalty conflicts, such as Patient Rights Charters
or Bills of Rights, workplace occupational health policies and public service
standards.
5.10. Legislation to ensure that human rights violations are not permitted in the
private sector as a result of dual loyalty conflicts in health care. Such legislation may
range from preventive measures such as regulating the structure of employment
relationships to holding employers accountable for intentionally exploiting dual
loyalty conflicts to the detriment of the rights of their employees.
6. Role of the United Nations and Related International and
Regional Intergovernmental Bodies
Mechanisms include:
6.1. Use of international monitoring bodies such UN Special Rapporteurs (including
the Special Rapporteur on the Highest Attainable Standard of Health) and treaty
body monitoring mechanisms to address the problem of dual loyalty and human
rights.
6.2. Use of existing and future International Labour Organization Conventions to
establish practice standards in workplace occupational health that protect human
rights from potential dual loyalty conflicts.
6.3 Draw on, and provide input on dual loyalty issues facing health professionals to
guidance issued by the International Committee of the Red Cross, whose role is to
develop and uphold humanitarian law in armed conflict.
7. Role of Training and Research Institutions
There is a significant role for academic training and research institutions to establish
standards, to identify circumstances where dual loyalty problems are acute, to
provide initial and ongoing training, and to provide support for health professionals.
Mechanisms include:
7.1. Establishment of support systems for health professionals in high-risk settings
such as military, prisons, forensic evaluations, and workplace services, including
involving them in academic activities, peer review, and the development of and
provision of relevant postgraduate training opportunities.
7.2. Participate in structures established for human rights oversight and monitoring.
7.3. Undergraduate training of health professionals should include specific skills
required to deal with potentially human rights-compromising situations of dual
loyalty. Quantity and quality of training devoted to ethics and human rights should
be auditable and examinable. Competencies should include the ability to identify a
dual loyalty and human rights conflict and to develop an appropriate resolution of the
conflict, either independently or by consulting peers or other resources, as well as
specific technical skills to the competency level expected of undergraduates. For
example, if medical graduates are expected to be able to perform post-mortem
examinations, their training should equip them to do so adequately, and to be
mindful of the human rights challenges. Post-graduate training should extend such
competencies into relevant specialist fields, ensuring both ethical and human rights
sensitivity, and technical skills such that there are sufficiently trained personnel with
high level skills in high-risk settings In addition to skills competencies, curricula
should give strong attention to training methods aimed at attitudinal change and
values, such as self-reflective techniques, peer discussions, and role modeling.
Sufficient time should be allocated to providing students at all levels with exposure
to services in high-risk settings.
7.4. Host conferences and workshops on ethical and human rights issues inherent in
professional practice. Link such awareness-raising education to requirements for
continuing professional education.
7.5. Collaborate with other agencies to develop training for non-professional staff
working in the health sector to protect patients from human rights violations arising
from actions by non-professionals. Provide education and training to employers of
health professionals, including state agencies and private companies, and
organizations of employers on the ethical and human rights responsibilities of health
professionals.
7.6. Include attention to dual loyalty and human rights conflicts in research
management through, for example, conflict of interest provisions in research
contracts. Develop capacity to train researchers and others in monitoring and
documentation skills in human rights.
7.7. Promote research to inform policies and legislation and to implement systems to
prevent human rights violations arising from dual loyalty conflicts, including research
to redress structural and systemic violations of the right to the highest attainable
standard of health. Conduct research to support the dissemination of best practices
in the management of dual loyalty conflicts and human rights in high-risk settings.
View Annexure - Matrix of Institutional Mechanisms by Agency/Stakeholder and by
Function Note: The references in the Table refer to numbers contained in
Institutional Mechanisms by Strategy
VI. Appendices
• Appendix 1: Works Cited
• Appendix 2: Relevant Treaties, Professional Codes and Declarations
o General
o Prisoners
o Refugees
o The Workplace
o Forensic Evaluations
o Military
Appendix 1: Works Cited
American Association for the Advancement of Science (AAAS) and Physicians for
Human Rights (PHR). 1998. Human Rights and Health: The Legacy of Apartheid.
Washington: AAAS.
American College of Physicians, Human Rights Watch, National Coalition to Abolish
the Death Penalty and Physicians for Human Rights. 1994. Breach of Trust: Physician
Participation in Executions in the United States. Available in PDF format
.
American Medical Association (AMA) Committee on Ethical and Judicial Affairs. July
1980. Code of Medical Ethics. “E-2.06: Physician Participation in Capital
Punishment."
American Occupational Medicine Association. Code of Ethical Conduct for Physicians
Providing Occupational Medical Services. Adopted in July 1976.
Amnesty International. 2000. Ethical Codes and Declarations Relevant to the Health
Professions. 4th revised edition. London: Amnesty International. AI index: ACT
75/005/2000.
———. 1996. Iraq. State Cruelty: Branding, Amputation and the Death Penalty. AI
Index: MDE 14/03/96. Available in PDF format
.
———. 1994 (January 1). Turkey: Possible Imminent Resumption of Executions. AI
Index: EUR 44/01/94.
———. 1993 (December 1). Malaysia: The Cane to Claim More Victims. AI INDEX
ASA 28/08/93.
Baldwin-Ragaven, Laurel; de Gruchy, Jeanelle; and London, Leslie. 1999. An
Ambulance of the Wrong Colour. Cape Town: University of Cape Town Press.
Baleta, A. 2002. “South African Judge Reaffirms Judgment to Expand Access to AIDS
Drug.” The Lancet. 359 (9310): 954.
Beauchamp D.E., and Steinbock, B. 1999. New Ethics for the Public’s Health. New
York: Oxford University Press.
Beauchamp, Tom L., and Childress, James F. 2001. Principles of Biomedical Ethics.
4th edition. Oxford: Oxford University Press.
Blank, Ronald R., Surgeon General, LtGen (US Army), and Roadman, Charles H.
Surgeon General, LtGen (US Air Force). 1998 (June 13). Statement on “Divided
Loyalties of Military Physicians.”
Bloch, Sidney, and Reddaway, Peter. “Psychiatrists and Dissenters in the Soviet
Union,” in The Breaking of Bodies and Minds, edited by Eric Stover and Elena O.
Nightingale, 153-157. New York: W.H. Freeman and Co. 1985.
Bloche, M. Gregg. 2001. “Caretakers and Collaborators.” Cambridge Quarterly of
Healthcare Ethics. 10 (3): 275-284.
———. 1999. “Clinical Loyalties and the Social Purposes of Medicine.” Journal of the
American Medical Association. 281 (3): 268-274.
———. 1993. “Psychiatry, Capital Punishment, and the Purposes of Medicine.”
International Journal of Law and Psychiatry. 16: 301.
———. 1986. “Uruguay’s Military Physicians: Cogs in a System of State Terror.”
Journal of the American Medical Association. 255: 2788-2793.
British Broadcasting Corporation. 1998 (15 May). “Israel Defends Torture in
Interrogation Methods.”
(BMA) British Medical Association. 2001a. Access to health care for asylum seekers.
Available on-line from: www.bma.org.uk
.
———. 2001b. The Medical Profession and Human Rights: Handbook for a Changing
Agenda. London: Zed Books.
———. 1993. Medical Ethics Today: Its Practice and Philosophy. London: BMJ
Publishing Group.
———. 1992. Medicine Betrayed. London: Zed Books.
Bundeszentrale für politische Bildung, ed. 1999. Menschenrechte, Dokumente und
Deklarationen. Bonn.
Carlson, Peter. “Witnesses For the Execution.” Washington Post. 11 April 2001.
Center for Reproductive Law and Policy. Reproductive Rights 2000 Moving Forward.
Available on-line at: www.crlp.org/pub_bo_rr2k.html#online
.
Chapman, A., and Russell, S., eds. 2000. Core Obligations: Building a Framework for
Economic, Social and Cultural Rights. Antwerp: Intersentia.
Cook, Rebecca. “Gender, Health and Human Rights,” in Health and Human Rights. A
Reader, edited by Jonathan M. Mann, Sophia Gruskin, Michael A. Grodin and George
J. Annas, 253-264. New York, Routledge. 1999.
Daniels, Norman. 1985. Just Health Care. Cambridge: Cambridge University Press.
Detels, Roger; McEwen, James; Beaglehole, Robert; Tanaka, Heizo, eds. 2002.
Oxford Textbook of Public Health. 3 vols. Oxford: Oxford University Press.
De Ville, K. 1995. “Parties to the Social Contract? Justice, Proposition 187 and Health
Care for Undocumented Immigrants.” Trends in Health Care, Law and Ethics. 10 (1-
2): 113-118.
“Dramatic Ruling on Job for AIDS Sufferers.” Mail and Guardian. (South Africa). 28
September 2000
Elofson-Gardine, Paula, and Hurst, Susan. “EIN Open Letter to DOE Sec’y Richardson
for Meeting on 10/02/98 at Rocky Flats.” 29 September 1998.
Epstein, A.; Ayanian, J.; Keogh, J.; Noonan, S.; Armistead, N.; Cleary, P., et al.
2000. “Racial Disparities in Access to Renal Transplantation – Clinically Appropriate
or Due to Underuse or Overuse?” New England Journal of Medicine. 343 (21): 1537-
1544.
Evans, D.B.; Tandon, A.; Murray, C.J.; Lauer, J.A. 2001. “Comparative Efficiency of
National Health Systems: Cross National Econometric Analysis.” British Medical
Journal. 323 (7308): 307-310.
Evans, D.B.; Tan-Torres Edejer, T.; Lauer, J.A.; Frenk, J.; Murray, C.J.L. 2001.
“Measuring Quality: From the System to the Provider.” International Journal for
Quality in Health Care. 13 (6): 439-446.
Evans, Timothy; Whitehead, Margaret; Diderichsen, Finn; Bhuyia, Abbas; Wirth,
Meg, eds. 2001. Challenging Inequalities in Health. From Ethics to Action. New York:
Oxford University Press.
Fabienne, Peter, and Evans, Timothy. “Ethical Dimensions of Health Equity.” In
Challenging Inequalities in Health. From Ethics to Action, edited by Timothy Evans,
Margaret Whitehead, Finn Diderichsen, Abbas Bhuyia, Meg Wirth. 24-33. New York:
Oxford University Press.
Faculty of Occupational Medicine of the Royal College of Physicians. 1999. Guidance
on Ethics for Occupational Physicians. 5th ed. London: Royal College of Physicians.
Farber, N.; Davis, E.B.; Weiner, J.; Jordan, J.; Boyer, E.G.; Ubel, P.A. 2000.
“Physicians’ Attitudes About Involvement in Lethal Injection for Capital Punishment.”
Archives of Internal Medicine. 160 (19): 2912-2916.
Farrar, Alice C. 1993. “Industrial Hygiene Ethics in the 90’s: A Professional
Challenge.” American Industrial Hygiene Association Journal. 54 (7): 403-407.
Ferguson v. City of Charleston, 532 U.S. 67. (2001).
Flüchtlingsrat Berlin, Ärztekammer Berlin, Pro Asyl, eds. 1998. Gefesselte Medizin.
Berlin.
Frank, Martina W., et. al. 1999. “Virginity Examinations in Turkey.” Journal of the
American Medical Association. 282 (5): 485-490.
Frumkin, H. 1998. “Right, Wrong, and Occupational Health: Lessons Learned.”
International Journal of Occupational and Environmental Health. 4 (1): 33-34.
Gillon, Raanan. 1994. “Medical Ethics: Four Principles Plus Attention to Scope.”
British Medical Journal. 309 (6948): 184-188.
Gillon, Raanan, and Lloyd, Ann, eds. 1994. Principles of Health Care Ethics. London
and New York: John Wiley and Sons.
Gostin, Lawrence, and Mann, Jonathan. “Towards the Development of a Human
Rights Impact Assessment for the Formulation and Evaluation of Public Health
Policies.” In Health and Human Rights. A Reader, edited by Jonathan M. Mann,
Sophia Gruskin, Michael A. Grodin, George J. Annas, 54-71. New York: Routledge,
1999.
Groote Schuur Hospital Notice #12/97, cited in the Health and Human Rights Project.
1997. Final Submission to the Truth and Reconciliation Commission, Special Hearing
on the Health Sector. Cape Town: HHRP.
Gruskin, Sophia, and Tarantola, Daniel. “Health and Human Rights,” in Oxford
Textbook of Public Health, 4th ed. 3 vols., edited by Roger Detels, James McEwen,
Robert Beaglehole, Heizo Tanaka, 311-335. Oxford: Oxford University Press, 2002.
Henkin, Louis. 1990. The Age of Rights. New York: Columbia University Press.
Heymann, S. Jody, and Sell, Randall L. 1999. “Mandatory Public Health Programmes:
To What Standards Should They Be Held?” Health and Human Rights. 4 (1): 195-
203.
Health and Human Rights Project. 1997a. Final Submission to the Truth and
Reconciliation Commission, Special Hearing on the Health Sector. Cape Town: HHRP.
———. 1997b. “Professional Accountability in South Africa.”
Human Reproduction and Women’s Health. 1999. The Role of the Ob/Gyn as
Advocates for Women’s Health. London. Available on-line at:
www.figo.org/default.asp?id=6087
.
———. 1997. The Ethical Aspects of Sexual and Reproductive Rights. Basle. Available
on-line at: www.figo.org/default.asp?id=6086
.
———. 1994. Ethical Framework for Gynecologic and Obstetric Care. Available on-
line at: www.figo.org/default.asp?id=6044
.
Human Rights Watch. 2001. Caste Discrimination: A Global Concern. New York:
Human Rights Watch.
“Illegal Sterilizations Are Reported in Australia.” New York Times. 16 December
1997.
Institute of Medicine. 2002. Unequal Treatment: Confronting Racial and Ethnic
Disparities in Health Care. Washington: National Academy Press. Available on-line at:
http://www.nap.edu/books/030908265X/html
.
“An International Code of Conduct (Ethics) for Occupational Health Professionals.”
International Journal of Environmental and Occupational Health. 2001. 7(3): 230-
232.
International Committee of the Red Cross. Rights and Duties of Nurses under the
Geneva Convention of August 12, 1949. Geneva ICRC, 1970.
International Commission on Occupational Health. 1992 (updated, 2000).
International Code of Ethics of Occupational Health Professionals
. Singapore.
International Committee of the Red Cross. Fourth Geneva Convention. Adopted on
12 August 1949 by the Diplomatic Conference for the Establishment of International
Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12
August, 1949. Entry into force 21 October 1950. Also at
www.unhchr.ch/html/menu3/b/q_genev1.htm
.
———. Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol 1).
Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law applicable in Armed Conflicts. Also
at www.unhchr.ch/html/menu3/b/93.htm
.
———. Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol
II). Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law applicable in Armed Conflicts. Also
at www.unhchr.ch/html/menu3/b/94.htm
.
International Council of Nurses. Elimination of Female Genital Mutilation. Adopted in
1998. Available on-line at: www.icn.ch/psgenital.htm
.
———. Nurses and Human Rights. Adopted in 1998. Available on-line at:
www.icn.ch/pshumrights.htm
.
———. The Nurse’s Role in the Care of Prisoners and Detainees. Adopted in 1998.
Available on-line at: www.icn.ch/psdetainees.htm
.
———. Torture, Death Penalty and Participation by Nurses in Executions. Adopted in
1998. Available on-line at: www.icn.ch/pstorture.htm
.
———. Code for Nurses, Ethical Concepts Applied to Nursing. Geneva, ICN. Adopted
1973, reaffirmed in 1989.
International Council of Prison Medical Services. The Oath of Athens. Adopted in
1979. In Ethical Codes and Declarations Relevant to the Health Professions, compiled
by Amnesty International, 53. London: Amnesty International, 2000.
International Federation of Gynecology and Obstetrics. Committee for the Ethical
Aspects of Human Reproduction and Women’s Health. 1999. The Role of the Ob/Gyn
as Advocates for Women’s Health.
International Federation of Red Cross and Red Crescent Societies and the François-
Xavier Bagnoud Centre for Health and Human Rights. “The Public Health – Human
Rights Dialogue.” In Health and Human Rights. A Reader, edited by Jonathan .M.
Mann, Sophia Gruskin, Michael A. Grodin, George J. Annas, 46-53.
International Labour Organization. Convention 161: Convention concerning
Occupational Health Services. 1985. www.ilo.org/ilolex/english/convdisp1.htm
———. Recommendation 97: Recommendation concerning the Protection of the
Health of Workers in Places of Employment. 1953.
www.ilo.org/ilolex/english/recdisp1.htm
———. Recommendation 112: Recommendation concerning Occupational Health
Services in Places of Employment. 1959. www.ilo.org/ilolex/ english/recdisp1.htm
———. Recommendation 143: Recommendation concerning Protection and Facilities
to be Afforded to Workers’ Representatives in the Undertaking. 1971.
www.ilo.org/ilolex/english/recdisp1.htm
———. Recommendation 164: Recommendation concerning Occupational Safety and
Health and the Working Environment. 1981.
International Instruments, Resolutions, Declarations and Statements on Torture
compiled by the International Rehabilitation Council for Torture Victims.
Johannes Weir Foundation for Health and Human Rights. 1995. Assistance in hunger
strikes: a manual for physicians and other health personnel dealing with hunger
strikes. Amersfoort: JWFHHR, 1995.
Kass, Nancy. 2001. “An Ethics Framework for Public Health.” American Journal of
Public Health. 91 (11): 1776-1782.
Kawachi, Ichiro, and Kennedy, Bruce P. 2002. The Health of Nations: Why Inequality
is Harmful to Your Health. New York: The New Press.
Kerns D.G. 1998. “The Unexpected Result of an Investigation of an Outbreak of
Occupational Lung Disease.” International Journal of Occupational and Environmental
Health. 4 (1): 19-32.
Kessel, A.S. In press. “Public Health Ethics: Teaching Survey and Critical Review.”
Social Science and Medicine.
Larin, Vladislav. 1999. “Mayak’s Walking Wounded.” The Bulletin of Atomic
Scientists. 55 (5): 20-27.
“Lethal Injections Next Year.” Bangkok Post. 11 January 2002.
LeGraw, Joan M., and Grodin, Michael A. 2002. “Health Professionals and Lethal
Injection in the United States.” Human Rights Quarterly, 24 (2): 382-423.
London, Leslie. In press. “Human Rights and Public Health: Dichotomies or Synergies
in Developing Countries? Examining the Case of HIV in South Africa.” Journal of Law,
Medicine and Ethics.
———.2000. “The Challenge of Ethics in Occupational Health: Part 1.” Occupational
Health Southern Africa. 6: 10-13.
Lowe, M.; Kerridge, I.H.; and Mitchell, K.R. 1995. “These Sorts of People Don’t do
Very Well: Race and Allocation of Health Care Resources.” Journal of Medical Ethics.
21 (6): 356-360.
Mailman, Stanley. 1995. “California’s Proposition 187 and Its Lessons.” New York
Law Journal (online). p. 3, col. 1. Available on-line at: www.ssbb.com/article1.html
.
Mann, Jonathan M. “Medicine and Public Health, Ethics and Human Rights.” In Health
and Human Rights. A Reader, edited by Jonathan M. Mann, Sophia Gruskin, Michael
A. Grodin, and George J. Annas, 439-452. New York, Routledge. 1999.
Mann, Jonathan M.; Gostin, Lawrence, et. al. 1994. “Health and Human Rights.”
Health and Human Rights: An International Journal. 1 (1): 7-23.
Mann, Jonathan M.; Gruskin, Sophia; Grodin, Michael A.; Annas, George J., eds.
1999. Health and Human Rights. A Reader. New York: Routledge.
MS v. Sweden. The European Court of Human Rights. 28 EHRR 313. 27 August 1997.
Munro, Robin. 1999. “Judicial Psychiatry in China and its Political Abuses.” Columbia
Journal of Asian Law. 13 (2): 72-81.
Nemery B. 1998. “The Conflict Prone Nature of Occupational Health Research and
Practice.” International Journal of Occupational and Environmental Health. 4 (1): 35-
37.
Neuffer, Elizabeth. 1 January 2002. “Forced to do Amputations, Doctors Horrified
Under Taliban.” Boston Globe. A10.
Ngwena, Charles. 2000. “The Recognition of Access to Health Care as a Human Right
in South Africa: Is it Enough?” Health and Human Rights: An International Journal. 5
(1): 26-44.
(PHR) Physicians for Human Rights. 2 April 2002. Action Alert: South Africa.
———. 2001a. Endless Brutality: Ongoing Human Rights Violations in Chechnya.
Boston: Physicians for Human Rights.
———. 2001b. Women’s Health and Human Rights in Afghanistan: A Population
Based Assessment. Boston: Physicians for Human Rights
———. 1998. “Medical Group Documents Systematic and Pervasive Abuses by Serbs
against Albanian Kosovar Health Professionals and Patients.”
———. 1997. The Taliban’s War on Women. Boston: Physicians for Human Rights.
———. 1996a. “The Arrest and Detention of Human Rights and Political Activists in
Turkey.” Action Alert 54.
———. 1996b. Fact Sheet on Female Genital Mutilation. Boston: Physicians for
Human Rights
———. 1996c. Torture in Turkey and its Unwilling Accomplices. Boston: Physicians
for Human Rights
Physicians for Human Rights-Israel. 1994. Physicians and Torture: The Case of
Israel. Available online in Word Format
Pomfret, John. “Victim of Birth Control Policy Struggles After Rare Court Win.”
Washington Post. 27 March 2001. A1.
Pross, Christian. 2000a. “Dual Loyalty – A Case in Point: German Police Doctors
Break Medical Confidentiality.” Torture. 10: 100.
———. 2000b. “The Police Medical Service of Berlin: Doctors or Agents of the State?”
The Lancet. 356 (9239): 1435-1436.
———. 1998. “Third Class Medicine: Health Care for Refugees in Germany.” Health
and Human Rights. 4 (2): 40-53.
“Racial and Ethnic Inequities in Access to Medical Care.” Medical Care Research and
Review 57: Supplement 1. October 2000.
Rahman, Anika; Katzive, Laura; and Henshaw, Stanley. 1998. “A Global Review of
Laws on Induced Abortion, 1985-1997.” Center for Reproductive Law and Policy. 24
(2): 56-64. Available on-line at: www.crlp.org/pub_art_abortionlaws.html
.
Rayner, Mary. 1987. Turning a Blind Eye: Medical Accountability for Torture in South
Africa. Washington: American Association for the Advancement of Science.
Reyes, Hernan. 1996. “Confidentiality Subject to National Law: Should Doctors
Always Comply?” Medisch Contakt, Journal of the Royal Danish Medical Association.
51 (9): 1456-1459.
Roberts, Mark J., and Reich, Michael R. 2002. “Ethical Analysis in Public Health.”
Lancet. 359 (9311): 1055-1059.
Rosendorff C. 1989. “Voluntary Total Fasting – Ethical-Medical Considerations.”
World Medical Journal. 36(78/9): 82-83.
Roudik, Peter. 17 April 2001. Submission to the Dual Loyalty Working Group.
Rubenstein, Leonard S., and London, Leslie. 1998. “The UDHR and the Limits of
Medical Ethics: The Case of South Africa.” Health and Human Rights: An
International Journal. 3 (2): 161-171.
Saloojee, Haroon. August 2001. Affidavit in Support of the Treatment Action
Committee Against the Minister of Health and Nine Provincial MEC’s for Health.
Transvaal High Court. Available on-line at: www.tac.org.za
Schulman, K.A.; Berlin, J.A.; Harless, W., et al. 1999. “The Effect of Race and Sex on
Physicians’ Recommendations for Cardiac Catheterization.” New England Journal of
Medicine. 340 (8): 618-626.
Scott, Craig, and Alston, Phillip. 2000. “Adjudicating Constitutional Priorities in a
Transnational Context: A Comment on the Soobramoney’s Legacy and Grootboom’s
Promise.” South African Journal on Human Rights. 16: 206-268.
“Secret HIV Tests Alleged in South Africa.” Associated Press. 26 August 2000.
Sen, Amartya. 1999. Development as Freedom. New York: Knopf.
Shklar, Judith. 1988. The Faces of Injustice. New Haven: Yale University Press.
Smith, David B. 1999. Health Care Divided: Race and Healing a Nation. Ann Arbor:
University of Michigan Press.
Steiner, Henry, and Alston, Philip. 1996. International Human Rights Law in Context.
Oxford: Clarendon Press.
Stover, Eric, and Nightingale, Elena O., eds. 1985. The Breaking of Bodies and
Minds. New York: W.H. Freeman and Co.
“Taking the Policy Battle to Court,” Sunday Times (South Africa). 1 December 1996.
“Tests for HIV Without Consent: Activists” Mail and Guardian (South Africa). 6 Feb.
2001.
TRC. 1998. Volume 4. Truth and Reconciliation Commission of South Africa Report.
Cape Town: TRC.
———. Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders
on 30 August 1955, and approved by the Economic and Social Council by its
resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
———. Committee on Civil and Political Rights. General Comment 16. The right to
respect of privacy, family, home and correspondence, and protection of honour and
reputation
———. Committee on Economic, Social and Cultural Rights. Twenty-Second Session.
The Right to the Highest Attainable Standard of Health: “General Comment 14
,”
E/C.12/2000/4. 8 November 2000.
———. Committee on the Elimination of Discrimination against Women. Eleventh
Session. Violence against Women: “General Recommendation 19
,” A/47/38. 29
January 1992.
———. General Assembly. Third Session. Universal Declaration of Human Rights.
Pursuant to General Assembly resolution 217 A (III). UN Doc. A/810, 1948. 10
December 1948. Available on-line at: www.un.org/Overview/rights.html
.
———. Twentieth Session. International Convention on the Elimination of all forms of
Racial Discrimination. Pursuant to General Assembly Resolution 2106A (XX). 21
December 1965. Available on-line at: www.unhchr.ch/ html/menu3/b/d_icerd.htm
.
———. Twenty-First Session. International Covenant on Civil and Political Rights.
Pursuant to General Assembly Resolution 2200A (XXI). UN Doc. A/6316. 16
December 1966. Available on-line at: www.unhchr.ch/ html/menu3/b/a_ccpr.htm
.
———. Twenty-First Session. Optional Protocol to the International Covenant on Civil
and Political Rights. UN Doc. RES 2200A (XXI). 16 December 1966. Available on-line
at: www.unhchr.ch/html/menu3/b/a_opt.htm
.
———. Twenty-First Session. International Covenant on Economic, Social and
Cultural Rights. Pursuant to General Assembly Resolution 2200A (XXI). UN Doc.
A/6316. 16 December 1966. Available on-line at:
www.unhchr.ch/html/menu3/b/a_cescr.htm
.
———. Thirty-Fourth Session. Convention on the Elimination of all forms of
Discrimination against Women. UN Doc. A/res/34/180. 18 December 1979. Available
on-line at: www.un.org/documents/ga/res/34/a34r180.htm
.
———. Thirty-Seventh Session. Report of the Human Rights Committee. UN Doc.
A/37/40. Supplement No. 40. 1982.
———. 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 on-line at:
www.un.org/documents/ga/res/37/a37r194.htm
.
———. Thirty-Ninth Session. Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment. Pursuant to General Assembly Resolution 39/46. 10
December 1984. Available on-line at: www.unhchr.ch/html/menu3/b/h_cat39.htm
.
———. Forty-Third Session. Body of Principles for the Protection of all Persons Under
Any Form of Detention or Imprisonment. UN Doc. A/res/43/173. 9 December 1988.
Available on-line at: www.un.org/documents/ga/res/43/a43r173.htm
.
———. Forty-Fourth Session. Second Optional Protocol to the International Covenant
on Civil and Political Rights, aiming at the abolition of the death penalty. UN Doc.
A/res/44/128. 15 December 1989. Available on-line at:
www.unhchr.ch/html/menu3/b/a_opt2.htm
.
———. Forty-Fifth Session. Basic Principles for the Treatment of Prisoners. UN Doc.
A/res/45/111. 14 December 1990. Available on-line at:
www.unhchr.ch/html/menu3/b/h_comp35.htm
.
———. Forty-Sixth Session. Principles for the Protection of Persons with Mental
Illness and the Improvement of Mental Health Care. UN Doc. A/res/46/119. 17
December 1991. Available on-line at: www.un.org/documents
/ga/res/46/a46r119.htm.
United Nations, Vienna Declaration and Programme of Action: World Conference on
Human Rights. UN Doc. A/conf. 157/23. 12 July 1993.
United Nations High Commissioner for Human Rights. 1999. Istanbul Protocol:
Manual on the Effective Investigation and Documentation of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment. Professional Training Series No. 8.
United Nations Human Rights Committee. Sixteenth Session. Report of the Human
Rights Committee: “General Comment 7
,” A/37/40, Supplement No. 40. 30 May
1982.
United Nations International Conference on Population and Development. Programme
of Action. UN Doc. A/conf. 171/13: Report of the ICPD. 18 October 1994. Available
on-line at: www.un.org/popin/icpd/conference/offeng/poa.html
.
UN Integrated Regional Information Networks. Focus On Female Genital Mutilation
25 January 2002. allafrica.com/stories/200201250404.html
.
United States Department of State. 2000. 1999 Country Reports on Human Rights
Practices. Bureau of Democracy, Human Rights, and Labor.
(WHO) World Health Organization. 2002 (July). “25 Questions and Answers on
Health and Human Rights.” Health and Human Rights Publication Series: 1.
———. 2001 (August). Health and Freedom from Discrimination: WHO’s Contribution
to the World Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance. Health and Human Rights Publication Series: 2.
———. 2000 (June). Fact Sheet on Female Genital Mutilation. No. 241. Available on-
line at: www.who.int/inf-fs/en/fact241.html
.
———. 1996. Female Genital Mutilation: Information Pack 1996
———.1994. Resolution WHA 47.10. Official Statement on Female Genital Mutilation.
(WMA) World Medical Association. International Code of Medical Ethics: Declaration
of Geneva. Adopted by the 3rd General Assembly of the World Medical Association.
London, England, October 1949. Amended by the 22nd World Medical Assembly,
Sydney, Australia, August 1968; and the 35th World Medical Assembly, Venice, Italy,
October 1983. Available on-line at: www.wma.net/e/policy/17-a_e.html
.
———. Regulations in Time of Armed Conflict. Adopted by the 10th World Medical
Assembly. Havana, Cuba, October 1956. Edited by the 11th World Medical Assembly,
Istanbul, Turkey, October 1957. Amended by the 35th World Medical Assembly,
Venice, Italy, October 1983. Available on-line at: www.wma.net/e/policy/17-
50_e.html.
———. Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment. Adopted by the 29th World Medical Assembly. Tokyo,
Japan. October 1975. Available on-line at: www.wma.net/e/policy/17-f_e.html
.
———. Resolution on Physician Participation in Capital Punishment. Adopted by the
34th World Medical Assembly, Lisbon, Portugal, September 28 - October 2, 1981.
Amended by the 52nd WMA General Assembly in Edinburgh, Scotland. October 2000.
Available on-line at: www.wma.net/e/policy/20-6-81_e.html
.
———. Resolution on Human Rights. Adopted by the 42nd World Medical Assembly.
Rancho Mirage, California, USA, October 1990. Amended by the 45th World Medical
Assembly, Budapest, Hungary, October 1993; 46th General Assembly, Stockholm,
Sweden, September 1994; 47th General Assembly, Bali, Indonesia, September
1995. Available on-line at: www.wma.net/e/policy/20-2-90_e.html
.
———. Declaration of Malta on Hunger Strikers. Adopted by the 43rd World Medical
Assembly. Malta, November 1991. Editorially revised at the 44th World Medical
Assembly, Marbella, Spain, September 1992. Available on-line at:
www.wma.net/e/policy/17-fff_e.html
.
———. Statement on Body Searches of Prisoners. Adopted by the 45th World Medical
Assembly. Budapest, Hungary. October 1993. Available on-line at:
www.wma.net/e/policy/17-ff_e.html
.
———. Statement on Condemnation of Female Genital Mutilation. Adopted by the
45th World Medical Assembly. Budapest, Hungary. October 1993. Available on-line
at: www.wma.net/e/policy/10-24_e.html
.
———. Statement on Family Planning and the Right of a Woman to Contraception.
Adopted by the 48th General Assembly. Somerset West, Republic of South Africa.
October 1996. Available on-line at: www.wma.net/e/policy/10-110_e.html
.
———. Declaration of Hamburg: Declaration Concerning Support for Medical Doctors
Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel,
Inhuman or Degrading Treatment. Adopted by the 49th WMA General Assembly.
Hamburg, Germany. November 1997. Available on-line at:
www.wma.net/e/policy/17-ffff_e.html
.
World Psychiatric Association. 1977. Declaration of Hawaii. Updated in Vienna, 1983.
www.codex.uu.se/texts/hawaii.html
.
Ziv, T.A., and Lo, B. 1995. “Denial of Care to Illegal Immigrants: Proposition 187 in
California.” New England Journal of Medicine
Appendix 2: Relevant Treaties, Professional Codes and
Declarations
I. General
Universal Declaration of Human Rights
A. International Human Rights Treaties
International Covenant on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights
Optional Protocol to the International Covenant on Civil and Political Rights
International Convention on the Elimination of All Forms of Racial Discrimination
International Convention on the Elimination of All Forms of Discrimination Against
Women
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
Convention on the Prevention and Punishment of the Crime of Genocide
Convention on the Rights of the Child
B. United Nations Documents on Human Rights
Code of Conduct for Law Enforcement Officials
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Execution
Principles for the Protection of Persons with Mental Illness and the Improvement of
Mental Health Care
Principles on the Effective Documentation of Torture
(Istanbul Protocol)
Committee on Civil and Political Rights. General Comment 16. The right to respect of
privacy, family, home and correspondence, and protection of honour and reputation
Committee on Economic, Social and Cultural Rights. Twenty-Second Session. The
Right to the Highest Attainable Standard of Health: “General Comment 14,” 2000
Committee on the Elimination of Discrimination against Women. Eleventh
Session.Violence against Women: “General Recommendation 19,” 1992
Vienna Declaration and Programme of Action: World Conference on Human Rights.
1993
C. International Professional Organizations
1. World Medical Association
International Code of Medical Ethics
(Declaration of Geneva)
Resolution on Human Rights
Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment in Relation to Detention and Imprisonment
(Declaration of Tokyo)
Declaration Concerning Support for Medical Doctors Refusing to Participate in, or to
Condone, the Use of Torture or Other Forms of Cruel, Inhuman or Degrading
Treatment (Declaration of Hamburg)
Hunger Strikers
(Declaration of Malta)
Resolution on the Inclusion of Medical Ethics and Human Rights in the Curriculum of
Medical Schools World-Wide (Declaration of Tel-Aviv)
Ethical Principles for Medical Research Involving Human Subjects
(Declaration of
Helsinki)
Statement on Family Planning and the Right of a Woman to Contraception
Statement on Condemnation of Female Genital Mutilation
Declaration on Professional Autonomy and Self-Regulation
Statement on Professional Responsibility for Standards of Medical Care
Statement on Human Organ and Tissue Donation and Transplantation
Declaration on the Rights of the Patient
Statement on Patient Advocacy and Confidentiality
Declaration on Physician Independence and Professional Freedom
2. International Council of Nurses
Nurses and Human Rights
Ethical Concepts Applied to Nursing
Elimination of Female Genital Mutilation
3. World Psychiatric Association
Declaration of Hawaii
4. International Federation of Gynecology and Obstetrics
The Role of the Ob/Gyn as Advocate for Women’s Health
The Ethical Aspects of Sexual and Reproductive Rights
Ethical Framework for Gynecologic and Obstetric Care
II. Prisoners
A. United Nations Documents
Standard Minimum Rules for the Treatment of Prisoners
Basic Principles for the Treatment of Prisoners
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment
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
B. Geneva Conventions
Geneva Convention Relative to the Treatment of Prisoners of War
C. International Professional Organizations
1. World Medical Association
Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment in Relation to Detention and Imprisonment
Statement on Body Searches of Prisoners
Declaration of Edinburgh on Prison Conditions and the Spread of Tuberculosis and
Other Communicable Diseases
2. International Council of Nurses
The Nurse’s Role in the Care of Prisoners and Detainees
Ethical Concepts Applied to Nursing
Torture, Death Penalty and Participation by Nurses in Executions
The Nurse’s Role in the Care of Prisoners and Detainees
3. International Council of Prison Medical Services
The Oath of Athens
III. Refugees
A. International Human Rights Treatries
Convention Relating to the Status of Refugees
B. International Professional Organizations
1. World Medical Association
World Medical Association Resolution on Medical Care for Refugees
Adopted by the
50th World Medical Assembly, Ottawa, Canada, October 1998
IV. The Workplace
A. International Human Rights Treaties and ILO documents
International Labour Organization. Convention 161: Convention concerning
Occupational Health Services. 1985.
Recommendation 97:
Recommendation concerning the Protection of the Health of
Workers in Places of Employment. 1953.
Recommendation 112
: Recommendation concerning Occupational Health Services in
Places of Employment.
Recommendations 143
: Recommendation concerning Protection and Facilities to be
Afforded to Workers’ Representatives in the Undertaking. 1971.
Recommendation 164
: Recommendation concerning Occupational Safety and Health
and the Working Environment. 1981.
B. International Professional Organizations
1. World Medical Association
World Medical Association Statement on Safety in the Workplace
2. International Commission on Occupational Health
International Code of Ethics of Occupational Health Professionals
, (ICOH)
V. Forensic Evaluations (see also prisoners, refugees and workplace)
A. United Nations Documents
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.
Code of Conduct for Law Enforcement Officials
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Execution.
Principles of international co-operation in the detection, arrest, extradition and
punishment of persons guilty of war crimes and crimes against humanity
B. International Professional Organizations
1. World Medical Association
Resolution on Physician Participation in Capital Punishment
2. International Council of Nurses
Torture, Death Penalty and Participation by Nurses in Executions
VI. Military
A. United Nations Documents
Principles of International Co-Operation in the Detection, Arrest, Extradition and
Punishment of Persons Guilty of War Crimes and Crimes Against Humanity
B. Geneva Conventions
Common Article 3 of the Geneva Conventions
Fourth Geneva Convention
Protocol Additional to the Geneva Conventions of 12 August 1949
, and relating to the
Protection of Victims of International Armed Conflicts (Protocol 1)
Protocol Additional to the Geneva Conventions of 12 August 1949
, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II, 1977)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, or
Shipwrecked Members of the Armed Forces at Sea
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
C. International Professional Organizations
1.World Medical Association
Regulations in Time of Armed Conflict
Declaration on Chemical and Biological Warfare
World Medical Association Resolution on the Medical Workforce
2. International Council of Nurses
Armed Conflict: Nurse’s Perspective
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
Footnotes
By Chapter: [Intro] [II] [III] [IV] [V]
By
Number:
[1-20] [21-40] [41-60] [61-80] [81-100] [101-120] [121-140]
[141-160
] [161-180] [181-200] [201-220] [221-240] [241-255]
1. These refer to ethical codes promulgated by international and national bodies of
health professionals such as the World Medical Association and intergovernmental
organs like the United Nations.
2. WMA, Declaration of Geneva. This and other ethical codes adopted by
international bodies applicable to health professions can be found in Amnesty
International, Ethical Codes and Declarations Relevant to the Health Professions. See
Appendix 1
for full citations.
3. WMA, International Code of Medical Ethics.
4. For an overview of dual loyalty, see Bloche, “Clinical Loyalties and the Social
Purposes of Medicine,” Journal of the American Medical Association. 281 (3):268-
274. For a discussion of dual loyalty concerns in everyday practice, see British
Medical Association, Medical Ethics Today: Its Practice and Philosophy. It should be
noted that not every conflict or ethical dilemma presents a dual loyalty problem.
Questions of transactions by health professionals with an entity in which they have a
financial interest, for example, represent a direct conflict between the health
professional and a patient rather than a problem of allegiance or submission by the
health professional to an external agency or authority. In medical triage of ill and
injured patients, health professionals may face conflicts between the medical needs
of some patients at the expense of others; however, there is inherently no dual
loyalty problem as the term is defined here since making these often difficult
decisions means balancing the medical needs of patients rather than considering
non-medical interests of a third party. Dual loyalty can arise in triage situations if,
however, the decision is influenced by social objectives, such as gender or racial
preferences. By contrast, where the reimbursement policies of a third party are such
as to influence the health professional’s judgment in ways that are detrimental to the
patient’s best interest, a dual loyalty conflict may be said to exist. This project
concerns dual loyalty conflicts that have the potential to violate human rights.
5. Bloche, “Clinical Loyalties and the Social Purposes of Medicine,” Journal of the
American Medical Association. 281 (3): 268-274.
6. Some commentators have suggested that health professionals are at times
unaware or even unconscious of the connections between clinical practices and the
furtherance of social norms that may not be in the patient’s interest. See Bloche,
“Caretakers and Collaborators,” Cambridge Quarterly of Healthcare Ethics 10 (3):
275-284.
7. BMA, The Medical Profession and Human Rights: a Handbook for a Changing
Agenda, 478-502.
8. Henkin, The Age of Rights, 4.
9. United Nations, Universal Declaration of Human Rights, art. 1.
10. Not all states have ratified all human rights treaties, but so many states have
agreed to them and the norms have become universal such that the state’s
obligations can be considered binding under customary international law. See Steiner
and Alston, International Human Rights Law in Context.
11. United Nations, Convention on the Elimination of All Forms of Racial
Discrimination, art. 2, sec. 1(d).
12. Id., art. 5(e).
13. Human rights instruments, treaties and declarations are all available at the web
site of the UN High Commissioner for Human Rights, www.unhchr.ch
. These
covenants, moreover, are supplemented by regional instruments such as the
Interamerican Convention on Human Rights and the European Convention on Human
Rights. Also, see Appendix 2
.
14. Property and birth can be understood to encompass caste and class.
15. United Nations, International Covenant on Civil and Political Rights, art. 4.
16. United Nations, Committee on Economic, Social and Cultural Rights, The Right to
the Highest Attainable Standard of Health, “General Comment 14.”
17. Id., para. 33. The Committee makes clear that Article 12 does not articulate a
right to “be healthy,” but rather demands action by states to provide the underlying
conditions, health policies and services that enable individuals to obtain the highest
attainable standard of health for themselves. See also Chapman and Russell, eds,
Core Obligations: Building a Framework for Economic, Social and Cultural Rights.
18. Rights related to the highest attainable standard of health are also reflected in
other treaties, particularly the UN Convention on the Rights of the Child and the UN
Convention on the Elimination of all forms of Discrimination against Women.
19. United Nations, Committee on Economic, Social and Cultural Rights, The Right to
the Highest Attainable Standard of Health, “General Comment 14,” para. 43.
20. Amartya Sen, Development as Freedom, p. 51.
21. See footnotes 1 to 3 above, for example.
22. Beauchamp and Childress, Principles of Biomedical Ethics.
23. Gillon, “Preface: Medical Ethics and the Four Principles,” in Principles of Health
Care Ethics, ed. Gillon and Lloyd, xxi.
24. Mann, Gostin, et.al., “Health and Human Rights,” Health and Human Rights: An
International Journal. 1 (1): 7-23; Kass, “An Ethics Framework for Public Health,”
American Journal of Public Health. 91 (11): 1776-82; Roberts and Reich, “Ethical
Analysis in Public Health,” Lancet. 359 (9311): 1055-9; Beauchamp and Steinbock,
New Ethics for the Public’s Health; Kessel, “Public Health Ethics: Teaching Survey
and Critical Review.” Social Science and Medicine, in press.
25. Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic
Disparities in Health Care; Evans et. al., “Comparative Efficiency of National Health
Systems: Cross National Econometric Analysis,” British Medical Journal. 323 (7308):
307-10; Evans et. al., “Measuring Quality: From the System to the Provider,”
International Journal for Quality in Health Care. 13 (6): 439-446.
26. Fabienne and Evans, “Ethical Dimensions of Health Equity,” in Challenging
Inequalities in Health. From Ethics to Action, ed. Evans, Whitehead, Diderichsen,
Bhuyia, and Wirth, 24-33.
27. Roberts and Reich, “Ethical Analysis in Public Health,” Lancet. 359 (9311): 1055-
9; Mann, “Medicine and Public Health, Ethics and Human Rights,” in Health and
Human Rights. A Reader, ed. Mann, Gruskin, Grodin, and Annas, 439-452.
28. Daniels, Just Health Care.
29. Mann, “Medicine and Public Health, Ethics and Human Rights,” in Health and
Human Rights. A Reader, ed. Mann, Gruskin, Grodin, and Annas, 439-452.
30. See the UN Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment and Punishment and the WMA Declaration of Tokyo: Guidelines
for Medical Doctors Concerning Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment in Relation to Detention and Imprisonment.
31. For example, see Gillon, “Medical Ethics: Four Principles Plus Attention to
Scope,” British Medical Journal. 309 (6948): 184-8, and WHO “25 Questions and
Answers on Health and Human Rights,” 22.
32. See for example, Ezekiel Emanuel, Amitai Etzioni, Martha Nussbaum, Margaret
Walker.
33. There are multiple schools and philosophical traditions that bioethicists draw
upon. To cite a few examples: utilitarianism, contractarianism, communitarianism,
virtue based and relationship ethics.
34. Lowe, Kerridge, and Mitchell KR. “These Sorts of People Don’t do Very Well: Race
and Allocation of Health Care Resources,” Journal of Medical Ethics. 21 (6): 356-60;
Epstein, Ayanian, Keogh, Noonan, Armistead, Cleary, et al. “Racial Disparities in
Access to Renal Transplantation – Clinically Appropriate or Due to Underuse or
Overuse?” New England Journal of Medicine. 343 (21): 1537-1544; Schulman,
Berlin, Harless, et. al., “The Effect of Race and Sex on Physicians’ Recommendations
for Cardiac Catheterization,” New England Journal of Medicine. 340 (8): 618-626.
35. See, for example, Gruskin and Tarantola, “Health and Human Rights,” in Oxford
Textbook of Public Health, ed. Detels, McEwen, Beaglehole, Tanaka; Kawachi and
Kennedy, The Health of Nations: Why Inequality is Harmful to Your Health.
36. Ngwena, “The Recognition of Access to Health Care as a Human Right in South
Africa: Is it Enough?” Health and Human Rights: An International Journal. 5 (1): 26-
44; Scott and Alston, “Adjudicating Constitutional Priorities in a Transnational
Context: A Comment on the Soobramoney’s Legacy and Grootboom’s Promise,”
South African Journal on Human Rights. 16: 206-268.
37. Groote Schuur Hospital Notice #12/97, cited in the Health and Human Rights
Project, Final Submission to the Truth and Reconciliation Commission.
38. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour,
69.
39. Gruskin and Tarantola, “Health and Human Rights,” in Oxford Textbook of Public
Health, ed. Detels, McEwen, Beaglehole, Tanaka, citing the UNECOSOC 1985, list the
conditions under which restrictions of rights could be considered as being ‘necessary’
and carried out in accordance with the law: the restriction is in the interest of a
legitimate objective of general interest; the restriction is strictly necessary in a
democratic society to achieve the objective; there are no less intrusive and
restrictive means available to reach the same goal; and the restriction is not imposed
arbitrarily, i.e., in an unreasonable or otherwise discriminatory manner.
40. Note that in some situations, balancing rights may not be permitted. These are
situations that threaten non-derogable rights, such as freedom from torture.
41. See, for example, the compilation of International Instruments, Resolutions,
Declarations and Statements on Torture compiled by the International Rehabilitation
Council for Torture Victims; WMA, Resolution on Human Rights; ICN, Nurses and
Human Rights; ICN, Ethical Concepts Applied to Nursing.
42. United Nations, International Covenant on Civil and Political Rights, preamble.
43. For a discussion on the imperative for ordinary citizens to act against injustice,
see Shklar, The Faces of Injustice.
44. United Nations, Convention on the Elimination of all forms of Discrimination
Against Women, art. 5(b).
45. See, for example, the compilation of International Instruments, Resolutions,
Declarations and Statements on Torture compiled by the International Rehabilitation
Council for Torture Victims.
46. See note 40.
47. WMA, Resolution on Human Rights; ICN, Nurses and Human Rights.
48. WMA, Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment, sec. 4.
49. ICN, Ethical Concepts Applied to Nursing.
50. Id.
51. The UN Principles of Medical Ethics explicitly prohibit any such distinctions:
“There may be no derogation from the foregoing provisions on any grounds
whatsoever, including public emergency.” UN Principles of Medical Ethics, principle 6.
52. This phenomenon is well documented in South Africa under apartheid. See AAAS
and PHR, Human Rights and Health: The Legacy of Apartheid, 111-113.
53. Roberts and Reich, “Ethical Analysis in Public Health,” Lancet. 359 (9311): 1055-
1059. There are instruments to evaluate the human rights impact of public health
policies – see Gostin and Mann, “Towards the Development of a Human Rights
Impact Assessment for the Formulation and Evaluation of Public Health Policies,” in
Health and Human Rights. A Reader, ed. Mann, Gruskin, Grodin, and Annas, 54-71;
International Federation of Red Cross and Red Crescent Societies and the François-
Xavier Bagnoud Centre for Health and Human Rights, “The Public Health - Human
Rights Dialogue,” in Health and Human Rights. A Reader, ed. Mann, Gruskin, Grodin,
and Annas, 46-53; Heyman, and Sell, “Mandatory Public Health Programmes: To
What Standards Should They Be Held?” Health and Human Rights: An International
Journal 4 (1): 195-203. However, one weakness of these frameworks is that they
leave open the question of practitioner accountability for particular policies, and
therefore need further elaboration to deal with the problem of dual loyalty conflicts
arising in the context of health systems that generate structural inequalities. In
addition, they are presently better suited to situations where health policies
potentially restrict citizens’ and patients’ rights, particularly civil and political rights,
and are less well suited to considerations of respecting, promoting and fulfilling social
and economic rights – see London, “Human Rights and Public Health: Dichotomies or
Synergies in Developing Countries? Examining the Case of HIV in South Africa.”
Journal of Law, Medicine and Ethics.
54. Roberts and Reich, “Ethical Analysis in Public Health,” Lancet. 359 (9311): 1055-
9.
55. World Medical Association, Ethical Principles for Medical Research Involving
Human Subjects (Declaration of Helsinki). www.wma.net/e/policy/17-c_e.html
56. United Nations, International Convention on the Elimination of All Forms of Racial
Discrimination, Article 5 (e) (iv).
57. United Nations, Committee on Economic, Social and Cultural Rights (CESCR),
The Right to the Highest Attainable Standard of Health, “General Comment 14,”
para. 35.
58. Bloche, “Clinical Loyalties and the Social Purposes of Medicine,” Journal of the
American Medical Association 268-74.
59. The phrase “or other third party” refers to those parties subject to human rights
obligations, as explained in the Introduction
.
60. In rare cases health professionals engage in criminal assaults on their own
patients, as in the case of Serbian physicians in Kosovo who assaulted Albanian
patients they believed to be terrorists. PHR, “Medical Group Documents Systematic
and Pervasive Abuses by Serbs against Albanian Kosovar Health Professionals and
Patients.”
61. United Nations, International Covenant on Civil and Political Rights; UN,
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.
62. Stover and Nightingale, eds., The Breaking of Bodies and Minds; BMA, Medicine
Betrayed; BMA, The Medical Profession and Human Rights, 56-96.
63. Id., 100.
64. Stover and Nightingale, eds., The Breaking of Bodies and Minds, 32. Amnesty
International reported 18 cases in which medical personnel participated in torture in
Chile. Id., 43 n. 7.
65. BMA, Medicine Betrayed, 47-48.
66. Id., 44.
67. The United Nations Committee Against Torture has condemned the use of
“moderate physical pressure” as a form of torture. Human rights groups operating in
the region have reported that “torture is routine” in Israel and “is used against …at
least 800 Palestinians every year.” British Broadcasting Corporation, “Israel Defends
Torture in Interrogation Methods.” The practice of physical pressure has been
successfully challenged in Israeli courts.
68. PHR-Israel, Physicians and Torture: The Case of Israel.
69. PHR, Torture in Turkey and its Unwilling Accomplices, 129-130.
70. Bloche, “Uruguay’s Military Physicians, Cogs in A System of State Terror,”
Journal of the American Medical Association. 255: 2788-2793.
71. Reyes, submitted to the Dual Loyalty Working Group.
72. Bloche, “Uruguay’s Military Physicians: Cogs in a System of Terror,” Journal of
the American Medical Association. 255: 2792.
73. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour;
AAAS and PHR, Human Rights and Health: The Legacy of Apartheid.
74. The United Nations Human Rights Committee has held corporal punishment
generally as tantamount to torture. United Nations, Human Rights Committee.
Report of the Human Rights Committee, “General Comment 7,” para. 2.
75. Amnesty International, Malaysia: The Cane to Claim More Victims.
76. Amnesty International, Iraq. State Cruelty: Branding, Amputation and the Death
Penalty.
77. Neuffer, “Forced to do Amputations, Doctors Horrified Under Taliban.” Boston
Globe
78. Munro, “Judicial Psychiatry in China and Its Political Abuses,” Columbia Journal
of Asian Law. 13 (2): 72-81.
79. WMA, Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment.
80. United Nations, 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.
81. ICN, Torture, Death Penalty and Participation by Nurses in Executions.
82. Psychiatric participation in forcing medication on unwilling patients, especially in
the context of state-sanctioned coercion, raises serious ethical and human rights
issues as well, but they are not dual loyalty issues when the psychiatrist believes
that the medication is in the patient’s best interest.
83. World Psychiatric Association, Declaration of Hawaii (1977, 1983).
84. United Nations, Principles for the Protection of Persons with Mental Illness and
the Improvement of Mental Care, principle 4.
85. International Council of Prison Medical Services, The Oath of Athens.
86. The British Medical Association has stated that such examinations, if done in
places that do not comply with accepted standards of treatment of detainees, may
serve, rather, to help the torturers by making certain that a patient does not die
accidentally during questioning. Such participation renders the physician complicit in
the abuse. See BMA, The Medical Profession and Human Rights, 72-76.
87. Some health professionals have said that passivity does not amount to
participation. This response is unsatisfactory since their clinical skills are being used
to advance the interests of the torturer, or their acts of omission – including their
silence – make it possible for torture to go on undetected.
88. WMA, Declaration of Hamburg: Declaration Concerning Support for Medical
Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms
of Cruel, Inhuman, or Degrading Treatment.
89. Certain regional human rights treaties, such as the European Convention on
Human Rights, outlaw the death penalty. Moreover, many human rights
organizations, including Amnesty International, oppose the death penalty without
reservation and work for its abolition. Of the international health professional codes,
only that of the International Council of Nurses opposes the death penalty per se.
ICN, Torture, Death Penalty and Participation of Nurses in Executions.
90. American College of Physicians, Human Rights Watch, National Coalition to
Abolish the Death Penalty, and Physicians for Human Rights, Breach of Trust:
Physician Participation in Executions in the United States; Carlson, “Witnesses For
the Execution.” Washington Post.
91. WMA, Resolution on Physician Participation in Capital Punishment.
92. ICN, Torture, Death Penalty and Participation by Nurses in Executions.
93. American College of Physicians, Human Rights Watch, National Coalition to
Abolish the Death Penalty and Physicians for Human Rights, Breach of Trust:
Physician Participation in Executions in the United States.
94. Id. See also, LeGraw and Grodin, “Health Professionals and Lethal Injection in
the United States,” Human Rights Quarterly. 24 (2): 382-423. (11 states exclude
participation in executions from the practice of medicine).
95. American College of Physicians, Human Rights Watch, National Coalition to
Abolish the Death Penalty and Physicians for Human Rights, Breach of Trust:
Physician Participation in Executions in the United States; LeGraw, and Grodin,
“Health Professionals and Lethal Injection in the United States,” Human Rights
Quarterly. 24 (2): 382-423. “Certifying” the death of the executed prisoner – that is,
signing a form stating that the prisoner is indeed dead – is regarded as acceptable
by the American Medical Association. However “pronouncing” the death, which
implies monitoring the execution process and determining at what point the prisoner
has expired, is not seen as ethical. AMA Committee on Ethical and Judicial Affairs.
Code of Medical Ethics. “E-2.06: Physician Participation in Capital Punishment.”
96. BMA, The Medical Profession and Human Rights, 177-78. Physicians for Human
Rights was one of the parties to the court case who argued that medical participation
was unethical.
97. Amnesty International, “Turkey: Possible Imminent resumption of executions.”
98. Thailand proposes to use the new execution method in 2003. Swaziland has not
introduced legislation at time of writing. “Lethal Injections Next Year,” Bangkok Post.
99. AMA Council on Ethical and Judicial Affairs, AMA Committee on Ethical and
Judicial Affairs. Code of Medical Ethics. “E-2.06: Physician Participation in Capital
Punishment;. Evaluation of Prisoner Competence to be Executed; Treatment to
Restore Competence,” 1998-99 ed. Section 2.06 Capital Punishment. While formally
it is a judicial decision whether a prisoner is competent or not, the advice of mental
health specialists is regarded as compelling and definitive where the finding is one
which supports a view that the prisoner is competent for execution.
100. In addition, recent papers by Farber and colleagues suggest that there is a
wide diversion between the principles of ethics enunciated by the AMA and the views
on medical participation in the death penalty adopted by practicing physicians. See,
for example, Farber, et. al., “Physicians’ Attitudes About Involvement in Lethal
Injection for Capital Punishment,”Archives of Internal Medicine. 160 (19): 2912-
2916.
101. United Nations, Committee on the Elimination of Discrimination Against
Women, Violence Against Women, “General Recommendation 19,” para. 22.
102. United Nations, International Conference on Population, Programme of Action.
103. US Department of State, 1999 Country Reports on Human Rights Practices. See
also, BMA, The Medical Profession and Human Rights, 350-352, 354-55.
104. Pomfret, “Victim of Birth Control Policy Struggles After Rare Court Win,”
Washington Post, A1.
105. BMA, The Medical Profession and Human Rights, 349. In certain cases the
policies are directed against indigenous people or ethnic minorities. Id. at 352-353.
106. Reproductive Health Matters, 6: 85.
107. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour,
31-3.
108. “Illegal Sterilizations are Reported in Australia,” New York Times.
109. WMA, Statement on Family Planning and the Right of a Woman to
Contraception.
110. UN, International Covenant on Civil and Political Rights; UN, Convention for the
Elimination of All Forms of Discrimination Against Women; UN, Convention on the
Elimination of All Forms of Racial Discrimination.
111. The Democratic Nursing Organization of South Africa as quoted in Human
Rights and Health: The Legacy of Apartheid, AAAS and PHR, 41.
112. Frank et. al., “Virginity Examinations in Turkey,” Journal of the American
Medical Association. 282 (5): 485-490.
113. Chamber of Medicine of Izmir press release as quoted by Frank, et. al.,
“Virginity Examinations in Turkey.”
114. United Nations, Vienna Declaration and Programme of Action: World
Conference on Human Rights. The threat of mutilation has been the basis for
granting applications for asylum in the United States, Canada, France and other
countries. The European Commission on Human Rights held that female genital
mutilation constitutes inhuman treatment.
115. WHO, Female Genital Mutilation Information Pack
116. WMA, Statement on Condemnation of Female Genital Mutilation.
117. ICN, Elimination of Female Genital Mutilation.
118. UN Integrated Regional Information Networks, Focus on Female Genital
Mutilation, January 25, 2002 allafrica.com/stories/200201250404.html
119. PHR, Fact Sheet on Female Genital Mutilation.
120. Human rights concerns may also arise around the forcible medication of
psychiatric patients for therapeutic purposes. See United Nations, Principles for the
Protection of People with Mental Illness and Improvement in Mental Health Care.
Without diminishing the seriousness of the human rights issues involved, compulsory
medication does not usually involve dual loyalties since the psychiatrist seeks to act
in the patient’s therapeutic interest rather than to an advance the interest of the
state.
121. BMA, The Medical Profession and Human Rights, 138.
122. United Nations, 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,
principle 6.
123. United Nations, Standard Minimum Rules for the Treatment of Prisoners.
124. UNHCHR, Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care, principle 11.
125. WMA, Statement on Body Searches of Prisoners.
126. ICN, The Nurse’s Role in the Care of Prisoners and Detainees.
127. This also applies to non-state actors to the extent the state has obligations to
assure the protection of human rights in relations with non-state actors, e.g., the
protection against discrimination.
128. WMA, Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment.
129. WMA, International Code of Medical Ethics.
130. Id.
131. Truth and Reconciliation Commission of South Africa Report, vol. 4, chap. 5.
132. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour,
106.
133. Id., 107-8.
134. Id., 91-9. See also, AAAS and PHR, Human Rights and Health: The Legacy of
Apartheid; Rayner, Turning a Blind Eye: Medical Accountability for Torture in South
Africa.
135. Munro, “Judicial Psychiatry in China and Its Political Abuses,” Columbia Journal
of Asian Law. 13 (2): 72-81; Stover and Nightingale, eds., Breaking of Bodies and
Minds.
136. Bloch and Reddaway, “Psychiatrists and Dissenters in the Soviet Union,” in
Breaking of Bodies and Minds, ed. Stover and Nightingale, 153-57.
137. Article 4.
138. Roudik, submitted to the Dual Loyalty Working Group. For reasons explained in
the Introduction
, dual loyalty and human rights conflicts arising in connection with
clinical research is not within the scope of this project.
139. Larin, “Mayak’s Walking Wounded,” The Bulletin of Atomic Sciences. 55 (5):
20-27.
140. Elofson-Gardine and Hurst, “EIN Open Letter to DOE Sec’y Richardson for
Meeting on 10/02/98 at Rocky Flats.”
141. Id.
142. Roudik, submitted to the Dual Loyalty Working Group.
143. Pross, “Dual Loyalty – A Case in Point: German Police Doctors Break Medical
Confidentiality,” Torture. 10:100. See also, Pross, “The Police Medical Service of
Berlin: Doctors Agents of the State?” Lancet. 356 (9239): 1435-6.
144. Id.
145. The requirement for independent judgment on the part of occupational health
personnel is explicitly cited in ILO Recommendation 112 (Recommendation
concerning Occupational Health Services in Places of Employment) and in ILO
Convention 161 (Convention concerning Occupational Health Services). The
convention has been ratified by 21 countries.
146. This problem is illustrated in PHR, Torture in Turkey and its Unwilling
Accomplices, 130-132.
147. See generally, Cook, “Gender, Health and Human Rights,” in Health and Human
Rights. A Reader, ed. Mann, Gruskin, Grodin, and Annas, 257. For an extensive
discussion of the discrimination in health services under the Taliban regime in
Afghanistan, see PHR, The Taliban’s War on Women; PHR, Women’s Health and
Human Rights in Afghanistan: A Population Based Assessment. Human Rights Watch
includes health dimensions of gender discrimination in its annual World Report. For
2002, see staging.hrw.org/wr2k2/women.html
.
148. WHO, Health and Freedom from Discrimination.
149. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour,
42.
150. AAAS and PHR, Human Rights and Health: The Legacy of Apartheid.
151. Human Rights Watch, Caste Discrimination: A Global Concern.
152. Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic
Disparities in Health Care. See also, Smith, Health Care Divided: Race and Healing a
Nation; “Racial and Ethnic Inequities in Access to Medical Care,” Medical Care
Research and Review 57:Supplement 1 (2000).
153. United Nations, Committee on Economic, Social and Cultural Rights, General
Comment 14: The Right to the Highest Attainable Standard of Health.
154. Ziv and Lo, “Denial of Care to Illegal Immigrants: Proposition 187 in California,”
New England Journal of Medicine. 332 (16): 815-816. See also, Mailman,
“California’s Proposition 187 and Its Lessons,” New York Law Journal, and DeVille,
“Parties to the Social Contract? Justice, Proposition 187 and Health Care for
Undocumented Immigrants” Trends in Healthcare, Law, and Ethics. 19 (1-2).
155. Adriaan van Es, submitted to the Dual Loyalty Working Group.
156. See, for example, WMA, Declaration of Geneva.
157. International Federation of Gynecology and Obstetrics, Committee for the
Ethical Aspects of Human Reproduction and Women’s Health, The Role of the Ob/Gyn
as Advocates for Women’s Health.
158. Id.
159. Id.
160. Detailed rules with respect to medical facilities, personnel and vehicles are
contained in the Fourth Geneva Convention of 1949, Common Article 3 of the
Geneva Conventions and Additional Protocol I (1977), relating to the Protection of
Victims of International Armed Conflicts, and Additional Protocol II (1977), relating
to the Protection of Victims of Non-International Armed Conflicts. The conventions
can be found on the web sites of the International Committee of the Red Cross,
www.icrc.org
, as well as (along with human rights treaties) at the web site of the UN
High Commissioner for Human Rights, www.unhchr.ch
.
161. WMA, Declaration of Geneva.
162. WMA, Regulations in Time of Armed Conflict, para 1.
163. WMA, Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment, sec. 4.
164. See PHR “Medical Group Documents Systematic and Pervasive Abuses by Serbs
against Albanian Kosovar Health Professionals and Patients.” In Chechnya, physicians
and nurses have been harassed and arrested for providing care to victims associated
with one side or another. PHR, Endless Brutality: Ongoing Human Rights Violations in
Chechnya. In Turkey, health professionals face the threat of prosecution for
providing care and treatment to victims of torture if those victims belong to banned
political groups. PHR, “The Arrest and Detention of Human Rights and Political
Activists in Turkey.”
165. Truth and Reconciliation Commission of South Africa Report, vol 4, chap. 5:
124-125.
166. Surgeon General Ronald R. Blanck LTG (US Army), and Surgeon General
Charles H. Roadman, Lt. Gen (US Air Force), Statement on “Divided Loyalties of
Military Physicians,” 13 June 1998.
167. United Nations, Basic Principles for the Treatment of Prisoners, para. 9; see
UN, Body of Principles for the Protection of all Persons Under Any Form of Detention
or Imprisonment, principle 24. For specific requirements of care, see also, UN
Standard Minimum Rules for the Treatment of Prisoners, para. 22-26.
168. United Nations, 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,
principle 1.
169. United Nations, Principles for the Protection of People with Mental Illness and
Improvement in Mental Health Care, principle 14.
170. United Nations, Committee on Economic, Social and Cultural Rights, The Right
to the Highest Attainable Standard of Health, “General Comment 14,” para. 11, 34.
See also, para. 44(d).
171. United Nations, Convention on the Elimination of all forms of Discrimination
Against Women,. See also, art 14(2), art. 16(e).
172. For an overview, see Center for Reproductive Law and Policy, Reproductive
Rights 2000 Moving Forward.
173. International Federation of Obstetrics and Gynecology, Committee for the
Ethical Aspects of Human Reproduction, The Ethical Aspects of Sexual and
Reproductive Rights; Ethical Framework for Gynecologic and Obstetric Care.
174. The University of Witwatersand Faculty of Medicine, “Voluntary total fasting:
ethical-medical considerations.” See also the important guidelines published by the
Johannes Weir Foundation for Health and Human Rights. Assistance in hunger
strikes: a manual for physicians and other health personnel dealing with hunger
strikes.
175. WMA, Declaration of Malta on Hunger Strikers, preamble, sec. 4.
176. UN Committee on Economic, Social and Cultural Rights, The Right to the
Highest Attainable Standard of Health. “General Comment 14,” para. 19.
177. Id.
178. Id. para. 52.
179. Id. para. 5.
180. The United States, for example, has signed but not ratified the Covenant on
Economic, Social and Cultural Rights.
181. For information on this case, see www.hsf.org.za/focus25/focus25mollen.html;
www.phrusa.org/campaigns/aids/action040202.html
.
182. Saloojee. Affidavit in Support of the Treatment Action Committee Against the
Minister of Health and Nine Provincial MEC’s for Health.
183. London, “Human Rights and Public Health: Dichotomies or Synergies in
Developing Countries? Examining the Case of HIV in South Africa.” Journal of Law,
Medicine and Ethics.
184. Baleta, “South African Judge Reaffirms Judgment to Expand Access to AIDS
Drug,” Lancet. 359 (9310): 954.
185. There are some exceptions, such as the ethical stands taken by the
International Federation for Obstetrics and Gynecology.
186. See, for example, International Council of Prison Medical Services, The Oath of
Athens.
187. Even in these conventional circumstances, however, potential for abuse exists.
In occupational health settings, health workers are regularly asked by the employer
to evaluate a person’s fitness to work, or claim for disability. In these circumstances,
disclosure of information to the state may be legitimate if the doctor fulfills his or her
ethical obligation to obtain the patient’s full consent and does not disclose more
information than necessary. If the doctor is not aware of and faithful to these ethical
obligations to the patient, there is potential for violation. London, “The Challenge of
Ethics in Occupational Health: Part 1,” Occupational Health Southern Africa. 6: 10-
13.
188. The Covenant states that “no one shall be subjected to arbitrary or unlawful
interference with his privacy, . . .” International Covenant on Civil and Political
Rights, art. 16.
189. UN Committee on Civil and Political Rights, General Comment 16. The right to
respect of privacy, family, home and correspondence, and protection of honour and
reputation (art. 17).
190. The European Court of Human Rights, in the case of MS v. Sweden, 28 EHRR
313, allowed medical records to be disclosed to an agency making a decision on a
workers’ compensation claim on the ground that they were essential to the
determination and that procedural safeguards were in place.
191. In armed conflicts, Protocol II of 1977 has been interpreted to mean that
authority under national laws is a sufficient basis to breach confidentiality. This
position has been subject to criticism. Reyes, “Confidentiality Subject to National
Law: Should Doctors Always Comply?” Medisch Contakt, Journal of the Royal Danish
Medical Association. 51 (9): 1456-1459.
192. PHR, Torture in Turkey and its Unwilling Accomplices, 55.
193. AAAS and PHR, Human Rights and Health: The Legacy of Apartheid, 88.
194. Some health professionals did resist; at Baragwanath Hospital and Alexandra
Clinic, some physicians simply refused to hand over clinical files. Baldwin-Ragaven,
de Gruchy, and London, An Ambulance of the Wrong Colour, 55.
195. PHR, Torture in Turkey and its Unwilling Accomplices.
196. Ferguson v. City of Charleston. 531 U.S. 67.
197. Rahman, Katzive, and Henshaw, “A Global Review of Laws on Induced
Abortion, 1985-1997,” Center for Reproductive Law and Policy. 24 (2): 56-64.
198. Id.
199. Bercault, submitted to the Dual Loyalty Working Group.
200. Pross, submitted to the Dual Loyalty Working Group.
201. “Tests for HIV Without Consent: Activists,” Mail and Guardian; “Taking the
Policy Battle to Court,” Sunday Times (South Africa); “Secret HIV Tests Alleged in
South Africa,” Associated Press.
202. AAAS and PHR, Human Rights and Health: The Legacy of Apartheid, 88.
203. Id., p. 41.
204. In apartheid South Africa, many health professionals defended the disclosure of
patient records to the security police as a part of the need to protect law and order.
See Rubenstein and London, “The UDHR and the Limits of Medical Ethics: The Case
of South Africa,” Health and Human Rights: An International Journal 3 (2): 161-171.
205. As indicated in the discussion of torture, moreover, forensic evaluations can
serve purposes that themselves violate human rights, e.g., to further or cover up the
existence of torture or to evaluate competency for execution.
206. UN High Commissioner for Human Rights, Istanbul Protocol: Manual on the
Effective Investigation and Documentation of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, Professional Training Series No. 8.
207. “Dramatic Ruling on Jobs for Aids Sufferers,” Mail and Guardian.
208. See, for example, recommendations in ICOH. (1997). International Commission
on Occupational Health, International Code of Ethics of Occupational Health
Professionals
209. Physicians for Human Rights “Medical Group Documents Systematic and
Pervasive Abuses by Serbs against Albanian Kosovar Health Professionals and
Patients.”
210. Baldwin-Ragaven, de Gruchy, and London, An Ambulance of the Wrong Colour,
p.201-202.
211. Quoted in An Ambulance of the Wrong Colour, Baldwin-Ragaven, de Gruchy,
and London, 83.
212. Smith, Health Care Divided: Race and Healing a Nation.
213. Rubenstein and London, “The UDHR and the Limits of Medical Ethics: The Case
of South Africa,” Health and Human Rights: An International Journal. 3 (2): 161-171.
214. BMA, Medical Profession and Human Rights Handbook, 104.
215. The Convention concerning Occupational Safety and Health Convention and the
Working Environment (ILO No. 155)(1983) provides that member States shall adopt
policies designed to prevent accidents and injury to health arising out of, linked with
or occurring in the course of work, by minimising, so far as is reasonably practicable,
the causes of hazards inherent in the working environment. The Convention has
been ratified by 38 countries.
216. Frumkin, “Right, Wrong, and Occupational Health: Lessons Learned,”
International Journal of Occupational and Environmental Health. 4 (1): 33-4; Kerns,
“The Unexpected Result of an Investigation of an Outbreak of Occupational Lung
Disease,” International Journal of Occupational and Environmental Health. 4 (1): 19-
32.
217. WMA, International Code of Medical Ethics: Declaration of Geneva.
218. Id.
219. ICN, The Nurse’s Role in the Care of Prisoners and Detainees.
220. WMA, Resolution on Human Rights.
221. WMA, Declaration Concerning Support for Medical Doctors Refusing to
Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman
or Degrading Treatment.
222. Id.
223. There may, however, be circumstances where it is necessary to breach loyalty
to one patient to protect the human rights of another.
224. UN Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care (1991), Principle 10(1).
225. See discussion of human rights and confidentiality in Chapter II.
226. See guidelines on evaluations for relationship of confidentiality and evaluations
for state purposes.
227. Farrar, “Industrial hygiene ethics in the 90’s: A professional challenge.”
228. Nemery, “The conflict prone nature of occupational health research and
practice.”
229. The requirement for independent judgment on the part of occupational health
personnel is explicitly cited in ILO Recommendation 112 (Occupational Health
Services in Places of Employment, 1959) and in ILO Convention 161 (Occupational
Health Services, 1985).
230. This Guideline is consistent with Forensic Guideline 4.
231. See, for example, Convention 161, which absolves health professionals of the
obligation to verify employees’ reasons for absence from work.
232. The obligation to maintain medical confidentiality is contained in ILO
Recommendations 112 (Occupational Health Services in Places of Employment,
1959) and 97 (Recommendation Concerning the Protection of the Health of Workers
in Places of Employment, 1953).
233. Because an occupational health service will include clerical and other non-
professional staff who may have access to medical records, the health professional
responsible for treatment or evaluation must ensure that non-professional staff are
fully apprised of the need to maintain confidentiality, trained in how to do so, and
monitored to ensure that no breaches of confidentiality occur, either by intent or by
negligence. Certification of illness from health professionals outside the service, if it
contains confidential information, must receive equally thorough attention to
confidentiality.
234. Workers’ right-to-know is enshrined in a number of ILO Conventions (161) and
Recommendations (143 and 164), as is the occupational health practitioner’s
responsibility to provide such safety and health information (Convention 161).
235. One difficulty in communicating risk to workers has to do with the degree of
certainty of the risk. It is often the case with the way scientific knowledge is
advanced that the level of certainty regarding a workplace hazard has not reached a
level that would be regarded definitive evidence of risk. Under such circumstances,
the health professional should use his or her judgment as to the best interests of the
patient or collective of patients, bearing in mind that waiting for evidence of well-
established human disease, or for experimental data, may risk potentially injurious
exposure. Although no international human rights law explicitly cites such an
obligation, a number of professional ethical codes (including the International Code
of Ethics of Occupational Health Professionals, (ICOH), 1996; Guidance on Ethics for
Occupational Physicians, Royal College of Physicians, Faculty of Occupational
Medicine, UK, 1999; and the American Occupational Medicine Association Code of
Ethical Conduct for Physicians Providing Occupational Medical Services, 1976) make
the responsibility for hazard communication to workers a positive obligation on
professionals. Indeed, the American College of Occupational and Environmental
Medicine Code of Ethical Conduct (1993) describes a positive obligation to
disseminate medical knowledge pertaining to workplace hazards as part of good
ethical practice.
236. This is explicitly cited in ethical codes such as the American College of
Occupational and Environmental Medicine Code of Ethical Conduct (1993).
237. For an extended discussion of the reasons for this, see "An International Code
of Conduct (Ethics) for Occupational Health Professionals," in The International
Journal of Environmental and Occupational Health, September 2001.
238. In these guidelines, the terms forensic health professional and medical
evaluator are used interchangeably. The evaluator may be a health professional
other than a physician.
239. See also Workplace Guidelines.
240. For the purposes of these guidelines, a clinician who has treated an individual
and is subsequently subpoenaed to testify in court is not a forensic evaluator but one
who has been engaged to diagnose and treat the patient. A health professional who
has provided diagnosis and treatment to an individual should follow the usual rules
to maintain confidentiality of findings and judgments about a patient unless the
patient consents to disclosure.
241. Note that even though much of forensic practice does not relate to patients in
the sense of individuals seeking health care, the professional relationship of the
evaluator to the person being assessed is in certain respects analogous to the
traditional health care provider – patient relationship because of the use of clinical
skills in ways that affect the interest and well-being of the person being evaluated.
Guideline 4
addresses this dimension of the relationship.
242. See Bloche, “Psychiatry, Capital Punishment, and the Purposes of Medicine.”
International Journal of Law and Psychiatry 16: 301
243. See Introduction.
244. Pross, “The Police and Medical Service of Berlin: Doctors or Agents of the
State?” Lancet. 356 (9239)
245. Physicians for Human Rights, Torture in Turkey and its Unwilling Accomplices.
246. Baldwin-Ragaven, de Gruchy, & London, An Ambulance of the Wrong Colour.
See also Health and Human Rights Projects, “Professional Accountability in South
Africa.”
247. See Guidelines for Prisons, Detention and Other Custodial Settings.
248. See Introduction.
249. The question of participation in physician-assisted suicide is not within the
scope of these Guidelines because it is done at the behest of the person not the
state.
250. In many armed forces, the military health professional, as a non-combatant, is
not in the chain of command in the sense of having the power to give orders to
combat soldiers. In addition, the health professional may not be subject to the same
obligation to fight in order to avoid surrender.
251. The question to what extent the military health professional is required to serve
the health needs of the civilian population of the area assigned should be explicit.
252. South Africa's Chemical and Biological Weapons Programme, Special
Investigation into Project Coast. Truth and Reconciliation Commission Final Report
Volume II chapter 6, 29 October 1998.
253. Part of the role of a proposed ombudsman service (see Sections 2.5 and 4
below) would be to offer advice to concerned health professionals on how to shape,
negotiate, and manage employment contracts to further ethical and human rights
considerations.
254. For example, the Protected Disclosure Act in South Africa (Act 26 of 2000), sets
out a framework to promote responsible whistleblowing, based on the core notion
that it is in the common interest of the employer, the employee, and society to
disclose unlawful, corrupt, or abusive behaviors.
255. Shadow reporting is the practice in which non-governmental organizations
submit parallel reports to those presented by national governments to reporting
bodies under the UN system. By commenting on or providing additional information,
these shadow reports increase the scrutiny of governmental commitments to human
rights standards.
