Specific Topic(s):

• Dealing with (potentially) unlawful command.

• Upholding medical ethics and the principle of humanity during armed conflict.

Key references:

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

“2. Health-care personnel shall at all times act in accordance with relevant international and national law, ethical principles of health care and their conscience.”

“13. Health-care personnel shall never be punished for executing their duties in compliance with legal and ethical norms.”

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

Discussion:

Review of the question: At face value, this seems to a simple question with a simple answer – refuse to comply with the order. However, the purpose of the question is to discuss how to come to the interpretation that an order is unethical and what to do beyond just ‘saying no’.

Interpretation of the principles/policy from the references: Health Care Personnel are bound to act according to medical ethics in all circumstances. This principle is widely accepted and also supported by a number of regulations in IHL. As a result, health care personnel cannot be expected to act against medical ethics, must not be ordered to do so and have a moral and legal right (or even duty?) to refuse the order of the commanding officer.

Framework for answering the scenario/question:

• Why are the ethical obligations of HCP different and why is it important that HCP can work according to medical ethics? – discussion of dual loyalty (military and medical), and the primacy of professional obligations. Whenever possible, HCP should explain to the commanding officer why they cannot implement the order, as s/he may not be aware of the special duties of HCP. They should seek support from their colleagues or from legal advisors in the military. Some militaries have separate command structures for their medical components in order to avoid situations like the one described on the card.

• Is there any situation, when HCP should be allowed to act against medical ethics and, if so, why and who should decide about it? Not all ethical challenges have a binary answer, it is important to share decision-making in uncertain circumstances.

• What can you do to instill broader acceptance for the specific obligations of HCP among all members of the military? – consider the roles of policies, training and education. What arrangements exist in your nation, armed forces, military unit?

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