Human Rights Dialogue (1994–2005): Series 2, No. 6 (Spring/Summer 2001): Rights and the Struggle for Health: Articles: Conflicting Interests

May 6, 2001

Doctors, nurses, and other health workers are often on the front lines of human rights work. In many countries, they are the only outsiders with access to detained and incarcerated people and are thus in a position to report on human rights abuses committed by guards and administrators. In asylum cases, their evaluations may determine whether an individual is granted asylum or sent back to his or her country of origin.

Being on the front lines, however, means that health professionals themselves can become perpetrators of or unwitting co-conspirators in human rights abuses. The human rights movement has tended to pay the greatest attention to human rights violations by health professionals in extreme circumstances, such as where physicians participate in torture, supervise corporal or capital punishment, or misuse psychiatric diagnoses and treatment interventions to punish or control political dissidents. International bodies like the World Medical Association, in addition to many domestic medical and nursing organizations, have condemned these practices.

The problem of health professionals subordinating the interests of their patients to the interests of the state, however, goes far beyond these more serious cases. Indeed, this phenomenon, often called the dilemma of "dual loyalty," is pervasive: the prison doctor who uses anti-psychotic medication to control a non-mentally ill prisoner for the sake of institutional security; the jail physician who fails to record signs and symptoms of abuse in the medical record; the emergency room physician who defers to a police officer's request to release a patient to custody rather than admit him.

The passive serving of state interests is even more common. A nurse or doctor who is the sole independent witness of abuse in a closed institution, but who remains silent concerning what she sees, elevates the protection of the state above her duties to the individuals she serves. The physician who subordinates medical judgments or interventions in the service of a discriminatory system, such as through participating in a racially segregated health care system, also chooses to serve the state rather than the patient. Even in day-to-day clinical practice, physicians or nurses may deny medical care to an individual for reasons--because of a person's immigration status, for example--that violate a person's human rights.

Despite the many circumstances in which the health professional actively or passively serves the state instead of the patient, the problem has received virtually no attention from the medical community (except in the extreme cases noted above). Ethical codes that govern the practice of medicine generally do not acknowledge the often-conflicting demands placed upon medical practitioners. Instead, they are replete with idealistic statements affirming the physician's primary obligation to the patient that do not take into account the many pressures on health professionals to subordinate patient interests. Further, these codes do not address those circumstances where subordination is both legitimate and necessary--as in cases where the health provider is obliged to breach confidentiality in order to avoid harm to innocent third parties, or to provide assistance to state-operated social programs that require medical evaluations to establish eligibility for benefits.

The absence of guidelines concerning the circumstances when breaching the duty of loyalty is legitimate and when it is not makes it very difficult for health professionals to behave appropriately and for others to hold them accountable. Indeed, it can be an invitation to abuse. For example, in a case that reached the United States Supreme Court this year, a group of doctors and nurses at a hospital in South Carolina subordinated the health and well-being of their patients--poor women--to their own political objectives. In cooperation with local police, they established a protocol requiring every woman who came to the hospital for prenatal care or to give birth to be tested for cocaine. When the program started, the hospital offered treatment to women who tested positive. If a woman refused treatment, she was referred for prosecution. That policy was bad enough, for it meant that doctors and nurses became an arm of the police. Worse, as the program evolved, many women were not offered treatment at all. Some were arrested in the hospital and jailed immediately; at least one woman was shackled to the bed while giving birth.

Ultimately, the Supreme Court held that the drug tests conducted by the hospital staff violated the Fourth Amendment, concluding that the staff had become an adjunct of the police. From the standpoint of medical ethics, the more interesting issue is the hospital staff's gross violation of the duty of loyalty to these women. No physicians or nurses were charged with a disciplinary infraction, much less punished. Indeed, they appeared to lack any awareness that the ethical duty of loyalty had been compromised. Their focus on a social end--punishment of women who did not refrain from drug abuse during pregnancy--seems to have outweighed any sense of loyalty to their patients.

The South Carolina case resulted from the voluntary actions of health professionals. More commonly, health professionals face pressure from state officials to sacrifice loyalty to the patient to state interests. But they have little guidance concerning how to respond. They know that the absolutist stance taken by medical ethics codes is unhelpful, but, crucially, they do not know when to refuse state demands. Health professionals who serve in prisons, jails, and other closed institutions, as well as in agencies working with disfavored groups like refugees and immigrants, are particularly vulnerable. They often act in isolation from professional colleagues, without support from associations of health professionals, and sometimes even in an employment relationship with state officials who ask them to violate human rights.

This problem cannot be solved until there is open discussion of its existence. Guidelines are surely needed. A starting point for conduct is a rule that no health professional should subordinate the interests of a patient to the wishes of the state where doing so would violate the human rights of the patient. Guidelines can go on to address the particular circumstances in which dual loyalty problems arise. The guidelines should be accompanied by practical suggestions to professionals regarding the means by which they can protect their professional independence and their patients' human rights. There is also a role for associations of health professionals, which need to offer more support for individuals subjected to demands to violate the human rights of their patients.

An international working group on dual loyalty convened by Physicians for Human Rights and the University of Cape Town Health Sciences Faculty has begun this process. Consisting of experts in human rights and health (including human rights law), bioethicists, individuals who have experienced human rights abuses, and others, the group met in Durban, South Africa, in late 2000 to begin the process of drafting guidelines on dual loyalty. When completed, the draft will be circulated for comment, then revised and submitted to international organizations of health professionals. By bringing the problem of dual loyalty into the open and addressing it squarely, health professionals will finally be able to live up to their promise to advance and protect--rather than violate--human rights.

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