Dual Loyalty and Health Professionals

Teaching Law and Health: Courses on Law, Human Rights and Patient

CareLAHI Workshop

Skopje, MacedoniaRobert S. Lawrence

Chair, PHR Board of DirectorsProfessor, Johns Hopkins Bloomberg School of Public Health, Baltimore

MD, USAMay 20, 2010

The foundational ideal of health practice: fidelity to

patients

May 20, 2010

“The health of my patient will be my first consideration.”

WMA Declaration of Geneva

A sobering history of lack of fidelity

• Nazi doctors performed experiments on concentration camp inmates

• Military doctors in Chile and elsewhere participated in torture

• Soviet psychiatrists hospitalized dissidents

• These are extreme cases, but are they aberrations?

May 20, 2010

The concept of dual loyalty• Dual loyalty exists when a health

professional has simultaneous obligations to a patient and to a third party – often referred to as a role conflict

• Usually third party is state, but can be employer, HMO, other

• Often pressures on the health professional to subordinate patient interests to those of state

May 20, 2010

The concept of dual loyalty

• Duties to third parties usually thought to serve some social interest

• Resolution of these role conflicts rarely considered in medical ethics – masked by Hippocratic idea: “The health of my patient shall be my first consideration”

Dual loyalty and social interests

• In many instances social interests legitimate and can justifiably prevail.– Protecting a third party from harm– Gaining information to obtain social

benefits– Public health needs

• Other social interests can be problematic– Efficient management of institutions, e.g.,

prisons–National security– Reinforcement of social values about

women, minority groups– Perpetuation of inequitable health policies–Winning at all costs in sports

But increasingly dual loyalty implicates human rights

• Recent experience shows that dual loyalty is often associated with violations of human rights

• A product of states’ increasing use of health professionals to achieve their purposes

• In these cases the health professional becomes an instrument by which the violation takes place

• Sometimes health professionals identify with the state

• Exacerbated by employment contracts, closed institutions, institutionalized discrimination

• Violations of dual loyalty may even be unconscious

May 20, 2010

Dual loyalty and human rights• Special concerns when the conflict compromises

patient interest to favor state practices and policies that violate human rights – Participation in infliction of harm: torture, death

penalty, corporal punishment – Compromised medical judgment, e.g., report omits

evidence of torture, allegiance to state in refugee cases

– Inappropriate medical procedures, e.g., physician performs forced sterilization, virginity examination

– Lower quality of care: Physician limits or denies care to conform to institutionalized discrimination or lack of health programs for disadvantaged groups.

– Withholding medically relevant information, e.g. reproductive health.

Traditional model from ethics

• Relies on four principles -- beneficence, autonomy, non-maleficence, justice

• Clinician is supposed to examine how these principles apply to a particular situation, weighing the power of each

Limits to traditional model in resolving cases of dual loyalty:

substance

• Model does not say what weight to give to competing principles, how to resolve them, and what role human rights play in balancing interests

• Gives little attention to the role of the state as an actor in resolving conflicts

Limits to the traditional model in resolving cases of dual

loyalty: process• Assumes that the clinician has all

the information needed to make a good decision

• Assumes that the clinician has competence to weigh the competing interests

• Assumes that no outside pressures exist to affect decision

An alternative, human rights framework

• Substantively based explicitly on• International human rights law• International humanitarian law (laws of

war)– Theory is that health personnel should not be

instruments by which state commits human rights violations or further such violations

• Procedurally, clinician does not balance principles but strives to follow human rights standards

• Mechanisms to protect clinician independence must be in place

Human rights approach

• Based on principle of human dignity, and reflected in Universal Declaration of Human Rights and positive law.

• International Dual Loyalty Working Group approach: prohibit advancing state interests at the expense of internationally-recognized human rights

• Torture/cruel treatment absolutely prohibited under all circumstances

The Death of Anti-Apartheid Activist Steve Biko in Custody – Physicians failed to treat injuries that became

fatal• Q: In terms of the

Hippocratic Oath, are not the interests of your patients paramount?

• Physician: Yes• Q: But in this instance

they were subordinated to the interests of the security police?

• Physician: Yes

May 20, 2010

Interrogation and Health Professionals at Abu Ghraib and

Guantanamo • Health personnel failed to report to higher

authorities evidence of torture they found in medical examinations

• Doctors shared medical data with interrogators

• Death certificates may have contained misstatements

• Psychologist designed techniques amounting to torture including humiliation, sleep deprivation, isolation, inducement of fear

• Physicians are not provided training or guidance to address their role in such situations

May 20, 2010

Conduct of Iraqi physicians

• Most reported their motivation was fear of reprisal including imprisonment or execution

• Iraqi Medical Ass’n was part of government, had no power to protect its members

May 20, 2010

Conduct of Iraqi physicians under Saddam Hussein

• PHR survey of 98 physicians is southern Iraq in 2003 reported that physicians performed nontherapeutic ear amputations

• Also falsification of medical-legal reports, release of medical records to state officials

• 2-7% of respondents acknowledged participating in these violations of fidelity to their patients

May 20, 2010

The Vast Scope of the Problem – One We Cannot Ignore

1. Inflicting harm on patients at behest of the state

2. Subordination of judgment to state interests3. Limiting medical treatment to effect state

policy: discrimination4. Breaches of confidentiality that violate

human rights5. Performing evaluations in a manner that

violates allegiance to patient6. Remaining silent in the face of violations

May 20, 2010

1. Inflicting harm on patients at behest of the state

• Torture (many countries)

• Amputation (Afghanistan, Iraq)

• Death penalty (USA)• Virginity examinations

(Turkey, elsewhere)• Female genital cutting

(many countries)• Forced sterilization

(many countries)

May 20, 2010

2. Subordination of judgment to state interests

• Failure to report evidence of torture (Turkey, USA)

• Psychiatric label placed on political dissidents (Soviet Union, China, USA)

• National security and reporting of radiation-related illnesses (Soviet Union, USA)

• Special triage rules in the military• Skewing of refugee evaluations (Germany)• Deference to police in hospital discharge

May 20, 2010

3. Limiting medical treatment to effect state

policy: discrimination• Adhering to rules/practices that

discriminate against racial, ethnic or religious groups in availability of treatment. Can be unconscious (evidence from USA)

• Denial of appropriate health interventions to women – Denial of care for reproductive health– Refusal to provide information

May 20, 2010

3. Limiting medical treatment in order to effect state policy:

other circumstances• Rules of military triage• Denial of appropriate care to

prisoners, detainees and institutionalized people

• Denial of care for political reasons • Denial of care in armed conflicts • Denial of appropriate care to

immigrants

May 20, 2010

3. Limiting medical treatment in order to effect state policy:

inequity in health

• Tailoring interventions to inequities in resources available

• Developing dual standards of care• Denial of available interventions for

reason of state policy (ARV’s in South Africa to prevent vertical transmission)

May 20, 2010

4. Breaches of confidentiality that violate human rights

• Disclosure of information to police on persons arrested

• Prisons• Disclosure of results of drug tests of

pregnant women to police (USA)• Note legitimacy of certain breaches

of confidentiality -- where harms to others exist, public health needs

May 20, 2010

5. Performing evaluations in a manner that facilitates

violations of human rights

• Prison searches• Forensic assessments– degrading (rape assessments)– failure to disclose purpose of exam

• Pre-employment examinations that result in discrimination

May 20, 2010

6. Silence in the face of human rights abuses against

individuals in their care

• Abu Ghraib: doctors knew of abuses, but said nothing

• South Africa: “This is a question that must not be put to me, it must be put to my department, because I merely follow instructions.”

(Neil Agget Inquest, District Surgeon, South Africa)

May 20, 2010

Summing up the problem

• Problems frequently arise in clinical practice, especially with stigmatized and vulnerable populations and in closed institutions

• Unconscious biases can come into play – allegiance to state objectives rather than allegiance to patient

• Employment arrangements tend to exacerbate the problem

• Few protections for those who seek to uphold ethical obligations

May 20, 2010

What do ethical codes have to say about the problem?

• Some prohibitions on extreme conduct, e.g., participation in torture, capital punishment

• Even those codes have major gaps regarding passive participation, obligations to report

• And no consideration of obligations in the context of unjust social practices– Discrimination– Inequity in health services

May 20, 2010

Nor are dual loyalty and human rights addressed in

health professional training • Ethics education tends to focus on the

dyadic relationship; role of state not prominent

• Emphasis on principles of autonomy and beneficence

• Although principle of justice and equal treatment come into play, structural dimensions are rarely considered

May 20, 2010

A Response: International Dual Loyalty Working Group

• Organized by Physicians for Human Rights and University of Cape Town Health Sciences Faculty

• Consisted of bioethicists, academic physicians, human rights experts, practitioners, member of TRC

• Countries represented included Chile, Germany, India, Israel, Netherlands, Palestinian Authority, Pakistan, Russia, South Africa, Turkey, United Kingdom, United States.

May 20, 2010

Organizations Represented

–World Medical Association– International Council of Nurses– Council of International Organizations

in the Medical Sciences– British Medical Association– International Federation of Health and

Human Rights Organizations– Amnesty International– International Committee of the Red

Cross

May 20, 2010

Questions Addressed

• What is the scope and extent of the problem – in what situations do health professionals face demands that violate human rights?– Civil and political rights– Economic, social and cultural rights

• What guidelines exist to guide professional conduct?

• What pressures exist to constrain conduct and what protections and supports exist to support health professionals faced with these pressures?

• What remedies are possible?

May 20, 2010

Proposed Guidelines on Dual Loyalty and Human Rights

• Set of general guidelines• Five specialized guidelines: –prisons –military– refugees/immigrants– forensic–workplace

May 20, 2010

General Guidelines• Health professionals to become conversant with

HR for clinical practice through training • Develop skills to identify situations of dual loyalty;

recognize how state and other third parties can misuse skills

• Place protection of patient’s human rights first; affirmatively resist demands by state to subordinate patient rights to state interests, including passive participation.

• Exceptions only within a framework established by standard-setting authority competent to define human rights obligations; any departure should be disclosed to the patient

• Need for support and solidarity

May 20, 2010

Solutions

• Provide guidance to help health professionals identify situations where – They may become agents of state– They are complicit in breaches by the state– Provide special guidance in specialized

settings• Design institutional mechanisms that – Restructure professional roles to protect them– Provide support for health professionals in

dual loyalty situations–Hold health professionals accountable

May 20, 2010

Institutional Mechanisms

• Purpose:• to avoid being placed in the DL

conflict• to help address DL conflict effectively

once it arises • Agencies, organizations, social and

administrative structures and functions

• Training, regulation, contracts, awareness raising

May 20, 2010

Institutional Mechanisms

• Employment relationships structured to avoid role conflicts and reduce interference with professional independence

• Administrative and legal arrangements to preserve professional independence e.g., ombudsmen, independent exams, Patient Rights Charter, disciplinary action, whistleblower protection

• Ethos of peer review, professional credibility, support and inclusiveness

May 20, 2010

Human rights and health:Institutional Supports

• Re-structure the relationship of the health professional to the state in a manner that will protect independence

• Support health professionals in complying with their ethical and human rights obligations in the face of state demands

• Hold professionals accountable for violations

May 20, 2010