Guantanamo and Medical Ethics

JURIST Special Guest Columnist and British human and medical rights activist Dr. David Nicholl, a neurologist at Queen Elizabeth Hospital, Birmingham, says that the recent hunger strike and now suicides by prisoners held by the US at Guantanamo Bay highlight the need to accord the detainees not just due legal process, but also ethical medical treatment...

The ongoing detention without trial of over 400 individuals in the US base at Guantanamo Bay has rightly been decried as an ongoing human rights scandal by everyone from Amnesty International to the Vatican. The recent hunger strike and now the suicides of three prisoners have however raised the issue of the medical treatment of the Guantanamo detainees.

Recently I and over 250 other physicians [PDF] from the UK, Australia, Italy and the United States published a letter [PDF] in the British medical journal The Lancet criticising the use of forcefeeding and restraints at Guantanamo as a breach of medical ethics. We reiterated that the World Medical Association specifically prohibits forcefeeding in the Declarations of Tokyo and Malta, to which the American Medical Association is a signatory and that the doctors responsible should be held to account by their regulatory bodies. Dr. Duane Cady, chair of the AMA, confirmed that the AMA upholds the Declaration of Tokyo. To date, however the AMA and the Medical Boards for Georgia and California have refused to take any action against the doctors involved, even though some are AMA members.

Given this background, it would be prudent to give some background to the WMA, the Declaration of Tokyo and a brief history of the treatment of hunger strikers. The World Medical Association was set up in 1947 after the atrocities performed by Nazi doctors, and was intended to promote the highest standards of medical ethics and care by physicians at all times. The WMA now consists of over 80 national medical associations, including the AMA and the British Medical Association (BMA).

Until the 1970s, it had been British policy to forcefeed prisoners who went on hunger strike as a life saving manoeuvre - perhaps the most famous examples of this were the Suffragettes in the early 1900s who were campaigning for the right of women to vote. This policy changed after the death in custody of an IRA prisoner, Michael Gaughan, in 1974. Mr Gaughan died as a consequence of an aspiration pneumonia during forcefeeding. This caused widespread uproar both within and outside of Ireland. In view of this case and other aspects in relation to the torture and treatment of prisoners held in custody in Northern Ireland, the BMA and the Irish Medical Association developed the guidelines which ultimately formed the basis of the Declaration of Tokyo. This was adopted unanimously in 1975, and in over 30 years, despite some extremely difficult circumstances (eg the Irish hunger strikes of 1980-81), there have been no calls to change the Declaration of Tokyo. Why is it that this document has stood the test of time? Essentially, this boils down to the principle that a doctor's first principle is to respect the right of any patient, even a prisoner, to refuse medical treatment if they are mentally competent. This latter point is crucial as clearly a patient who is mentally ill is not competent to make a decision regarding refusal of medical treatment. One example of this is the infamous Moors murderer Ian Brady. There is no doubt that Mr Brady committed some of the most heinous serial murders in English history for which he received 3 life sentences in 1966. Since 1985, he was detained under the Mental Health Act in a high security psychiatric hospital where he has remained ever since. In October 1999, he was forcibly moved to another room and he went on hunger strike in protest. The doctors treating him forcefed him as they did not believe he was capable of making a rational decision. The doctors' decision was upheld by judicial review in February 2000 as it was felt that forcefeeding was medical treatment within the meaning of the Mental Health Act (1983). Mr Brady has remained on hunger strike, and as a consequence has been forcefed ever since.

Are there ever grounds for involuntary forcefeeding a mentally competent individual and does forcefeeding constitute torture? Dr Hernan Reyes from the International Committee of the Red Cross makes this quite clear in the most comprehensive article on the medical and ethical aspects of hunger strikes. Dr Reyes concludes "Doctors should never be party to actual coercive feeding, with prisoners being tied down and intravenous drips or oesophageal tubes being forced into them. Such actions can be considered a form of torture, and under no circumstances should doctors participate in them, on the pretext of "saving the hunger striker's life". Heeding the informed consent of a hunger striker, confirmed within the trust of the doctor-patient relationship, and respecting the intrinsic dignity of the fasting prisoner he is treating is certainly part of the doctor's duty in looking after the patient's welfare."

The most famous example of a doctor respecting a hunger striker's wish is the so-called Kalk refusal. Dr John Kalk was a physician in South Africa involved in the treatment of anti-apartheid activists in the early 1980s who protested their indefinite detention without trial by going on hunger strike. The South African government became anxious at the political embarrassment of these prisoners dying so transferred them to Johannesburg Hospital. Dr Kalk refused to forcefeed the prisoners as he felt this constituted torture, and refused to return the prisoners to custody as he felt that indefinite detention without trial was torture in terms of the effects on the prisoners' mental health. Dr Kalk was interviewed about this aspect in relation to Guantanamo by the BBC [audio] after he was a co-signatory on the recent Lancet letter.

Thus it would appear that not only is a Guantanamo a legal black-hole, but also a black-hole of medical ethics where doctors can justify breaching informed patient consent, on the grounds of following orders of a "higher military authority". This was not a defence at Nuremberg, and should not be used in Guantanamo.

It is interesting to reflect on the guidelines for medical staff treating detainees from the Pentagon [PDF] compared to that of the UK military [PDF]. Nowhere in the Pentagon guidelines does it explicity state that detainees have the right to the same medical care as those of anyone else, under the Geneva convention and UN declarations, as well as a right to confidentiality and informed patient consent. In the case of hunger striking, this is not synonymous with attempted suicide as the Pentagon have attempted to state. Indeed as Dr Reyes commented in 1998 "It is inappropriate to assert, however, that hunger strikers should be placed in the same category as persons intending to commit suicide. This is a simplistic approach to the issue which wrongly reduces it to purely medical terms".

Finally the recent descriptions of the suicides of 3 inmates at Guantanamo as "a good PR move" and "an act of war" by the US administration clearly shows a complete lack of insight and humanity into the medical aspects. It is vital that the prisoners in Guantanamo are allowed immediate, independent and unfettered access to outside physicians and for these results to be made public (the Red Cross have a long-standing practice of not speaking publicly, and it is not known if they have seen the forcefeeding regime).

Outside of the medical aspects, I would concur with President Bush in his October 2005 statement that "Each individual is presumed innocent and entitled to due process and a fair trial" . However, I believe he was referring to his colleague Scooter Libby rather than the individuals being held in Guantanamo. No-one should be beyond either the law or appropriate ethical treatment.

Dr David Nicholl, MBChB FRCP PhD is a consultant neurologist and honorary senior lecturer at City Hospital Hospital & Queen Elizabeth Hospital, Birmingham and the University of Birmingham, England. He grew up in Belfast, Northern Ireland and has been active as a human rights activist on Guantanamo as a supporter of Amnesty International and Reprieve. He completed the 2005 London marathon dressed in an orange Gitmo suit to raise awareness of the legal issues related to detention without trial.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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