Specific Topic(s):

• Interrogation. Medical involvement in interrogation.

• Informed Consent (in extreme situations). Best interest of the patient.

Key references:

‘Ethical principles of health care in times of armed conflict and other emergencies’ –

“5. No matter what arguments may be put forward, health-care personnel never accept acts of torture or any other form of cruel, inhuman or degrading treatment under any circumstances, including armed conflict or other emergencies. They must never be present at and may never take part in such acts.”

“6. Health-care personnel act in the best interest of their patients and whenever possible with their explicit consent. If, in performing their professional duties, they have conflicting loyalties, their primary obligation, in terms of their ethical principles, is to their patients.”

Geneva Conventions: Geneva Conventions: AP1, Art 16: “2. Persons engaged in medical activities shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics or to other medical rules designed for the benefit of the wounded and sick or to the provisions of the Conventions or of this Protocol, or to refrain from performing acts or from carrying out work required by those rules and provisions.” https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/4e473c7bc8854f2ec12563f60039c738/b0bf1d4a2800d97fc12563cd0051d841

Customary IHL: “Rule 26. Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule26

Ethical principles: WMA Declaration of Lisbon on the Rights Of The Patient:

https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/#:~:text=Every%20person%20is%20entitled%20without,with%20his%2Fher%20best%20interests.

1. Right to medical care of good quality

c. The patient shall always be treated in accordance with his/her best interests.

3. Right to self-determination

a. The patient has the right to self-determination, to make free decisions regarding himself/herself. The physician will inform the patient of the consequences of his/her decisions.

b. A mentally competent adult patient has the right to give or withhold consent to any diagnostic procedure or therapy. The patient has the right to the information necessary to make his/her decisions. The patient should understand clearly what is the purpose of any test or treatment, what the results would imply, and what would be the implications of withholding consent.

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 General Assembly Resolution 37/194 of 18 December 1982

Principle 2. It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment. https://www.ohchr.org/EN/ProfessionalInterest/Pages/MedicalEthics.aspx

Discussion:

Review of the question: this question exposes the primacy of informed consent and the right to refuse treatment in conflict with the desire of the ‘authorities’ (Special Forces) to obtain information from the patient in order to protect lives in the future. The patient has life-threatening injuries, which means that treatment should start immediately. However, the patient refuses to give his informed consent (which he has a right to). It might be argued that the patient is unable to give informed consent because (i) the motivation of the patient is due to external pressure and because (ii) the patient is probably suffering and maybe not fully conscious of what is happening. Thus, the doctor may well think that it is rather in the best interest of the patient to be treated and to survive.

Interpretation of the principles/policy from the references: It could be argued that it is the patient’s best interests to remain alive, however the patient has the right to withhold consent for treatment. Whilst the patient will remain a prisoner, it is also illegal to threaten or actually torture the patient. The medical staff cannot be punished if they decline to provide life-saving interventions, but could be sanctioned if the patient survives as a result of their interventions.

Framework for answering the scenario/question:

• How do we assess informed consent? Can a patient, who is severely wounded and probably in strong pain give valid informed consent (or, in this case rather: refuse informed consent)? Certainly, the doctor must offer treatment to the patient and to insist on the exclusion of non-medical personnel in any discussion about treatment. This might explain types of treatment and offer choices for each e.g. pain relief, blood transfusion, surgery, intensive care. Any decision to not provide the ‘standard of care’ due to lack of consent should be witnessed by at least one other health professional and recorded in the patient’s notes. A first step out of the situation for the doctor could be to accept the patient for treatment and to insist on all non-medical personnel leaving the room. This could create an opportunity to talk with the patient and to privately evaluate consent or refusal to treatment, and maybe also to use time for calling in a colleague or legal advisor to help in the difficult situation.

• It would certainly be ethically unacceptable to treat the patient against his will (maybe even by applying force) and to keep him alive with the sole aim of enabling an interrogation by the special forces.

• Can HCP ever be present during interrogations? If so, under what circumstances and what can be their role? – NO In addition to IHL and the references provided, there may well be explicit national guidance/law that provides further guidance e.g. the UK Joint Doctrine Publication (JDP) 1-10 (4th Edition), Captured Persons at: https://www.gov.uk/government/publications/jdp-1-10-second-edition-captured-persons-cpers

Author: Dr Daniel Messelken, University of Zurich, Center for Military Medical Ethics