Rules of conscience

What concerns me about this editorial is it holds as
axiomatic that doctors, medical scientists, ethics
committees and other health workers are above the law. That
is not the case.

Godlee says:

“…the Helsinki Declaration … contain[s] the crucial
statement that a doctor’s or investigator’s conscience and
duty of care must transcend national laws.”

The foregoing is a perhaps understandable, but nonetheless
profound, misunderstanding of the Declaration of Helsinki,
art. 10:

Physicians should consider the ethical, legal and
regulatory norms and standards for research involving human
subjects in their own countries as well as applicable
international norms and standards. No national or
international ethical, legal or regulatory requirement
should reduce or eliminate any of the protections for
research subjects set forth in this Declaration.

All the DH says is that if a national or international law
is more expansive than the DH, the physician should follow
the more restrictive DH rules. That is, the DH is designed
to fit within national and international law, and art. 10
cannot be interpreted to give warrant to a physician to
either expand or violate the law. This is not a proscription
or a prescription as it does not contain “shall” or its
cognates, but an aspirational statement.

The law intentionally leaves some decisions to the
discretion of those subject to the laws. Laws, or statutory
regimes, are usually not intended to cover all situations,
but to define areas in which the regulated have no
discretion, while leaving other decisions to the discretion
of those covered by the law. To utilize an architectural
metaphor, the laws establish the fence around an area, or
the walls and other structural components of a building. The
persons/acts covered by the law are given discretion within
the structure defined by the statute. The idea “that law, in
relation to health care ethics, is often a minimum standard
and provides no protection for morally problematic
behaviour,” (Goodyear) does not convey the nuance of the
architectural metaphor. Legal regimes create a moral space
within which moral agents indeed have agency, but the agency
does not extend to doing things outside the fence or walls.
In that moral space what we are calling ethics are the
positive and unwritten values, norms and custom that guide
behavior. One can violate an ethical norm without violating
the law; but the reasons that apply within the delimited
ethical space do not apply to going outside the walls or
fence, i.e., to breaking the law.

We are at one level discussing a hierarchy of norms problem.
Physicians, scientists and other health workers generally do
not have social or legal roles that have much to do with the
walls or fence. Of course, Che was a physician; and Doctors
Without Borders works in highly complex legal/moral
situations all the time, but we are not talking now about
the central case, the regulation of physicians and
scientists in orderly societies, ones in which there is rule
of law.

A deeper problem with the interpretation is that it suggests
the ethical norms found in a code of ethics passed by an NGO
should trump the law. Laws are fundamental social norms that
embody a system of justice, whether international or
constitutional. Granted, international norms display a
complex relationship between law and morality that is
subdued by a constitution. That does not change the fact
that what we call law is a set of norms whose source is a
legitimate political body. NGOs, whether the AMA or the WMA,
simply do not qualify as political bodies with the authority
to pass laws.

Note that the DH admonishes physicians, not other health-
workers. Since this particular aspiration is somewhat
attenuated from the Hippocratic Duties, it is not clear why
it should apply to non-physician health workers.
Furthermore, it is really not clear why this admonition
should apply to scientist/researchers, whether physician or
not. After all, there is no reason scientists should be
subject either to the Hippocratic Duties, or ethical norms
that bear some relationship to them, as they do not enter
into the intimacy of the doctor/patient relationship.

The idea of the physician is ambiguous in today’s
pluralistic environment. A physician is a legal entity, less
a moral entity. If the physician is considered as a moral
entity, then the idea would apply to all persons with
extensive training in treating sick people, including
doctors of homeopathy, traditional Chinese medicine,
ayurveda, some nurses, and so on. The point is that in this
complex normative environment, there can be no doubts that
physicians, and all other health workers, must obey the law.
With regard to torture, even though the domestic laws of the
US are weak, there is no doubt it is a crime under
international law.

Health workers who get involved in torture are in a chain of
command. That chain of command supersedes the Hippocratic
bonds of the doctor/patient relationship, if for some reason
they were said to exist. Health workers who are involved
with torture are state agents, not individual physicians or
moral agents. The laws governing health workers and torture
are in dire need of clarification.

There is a body of moral thought often gathered under the
rubric of “civil disobedience” that is relevant. I think
that is probably what Godlee was aiming at. It has little to
do with professional ethics codes, and everything to do with
the law and individual conscience aligning itself against a
widely perceived civil injustice. It is a species of the
right to revolt, or the right of revolution, one of the
fundamental human rights. As such it gains legitimacy from
belief in the injustice by a significant proportion of the
polity. It is not about a 1-on-1 relationship, such as found
in the doctor/patient relationship.

In sum, the idea physicians, health workers, or life
scientists have the innate capacity to determine which laws
are just and which unjust, have a warrant to break the law
willy-nilly, or are above the law ethically, are ideas that
need to be clearly identified and soundly rejected. In a
democracy the proper form of exercise of political choice is
through the vote or through lobbying. Lobbying tends to have
terribly inequitable outcomes, but it is allowed in our
constitutional system. At the international level there is
basically no-way for an individual to participate in
governance, but there are legitimate methods of instituting
international laws, and the law against torture by anyone at
any time is as clear a criminal norm as exists. It does not
exclude doctors, scientists or any other class of living
thing.

One reason there is a desperate need for laws governing
health workers and torture is because the chain of command
issues are confused by the self-authenticating statements of
physicians that they categorically cannot do anything
illegal in their professional capacity. If doctors and
scientists were to fully recognize the law, they would not
get involved in torture, nor use sophistry to justify their
participation in the intentional infliction of severe human
suffering.

The solution is not to give physicians and scientists a
warrant to treat the law the same way all tyrants and evil
regimes do, as something they can define at will.

A different version of this response first appeared on the
IRB Forum, a listserve managed by The Center for Bioethics
and Department of Medical Ethics University of Pennsylvania
School of Medicine. http://www.irbforum.org/.

John Lunstroth, LLM, MPH
University of Houston Law Center
lunstroth@gmail.com

Competing interests:
None declared

in this editorial (may 14 issue), psychologists were compared quite
unfavorably with medical doctors on the issue of ethics because of our
role as consultants on the interrogation of terrorists. after comparing
psychologists with Nazi doctors, the article explains that psychologists'
ethics do not contain "the doctor's obligation to heal" and "to do nothing
to harm."

first let me remind the reader that medical doctors are not the only
doctors. in fact, in the u.s., as well as in some other countries, one is
not licensed to practice psychology unless one has earned a doctor's
degree.

secondly, not all psychologists are clinical, or "healing"
psychologists. professional psychology has many applications, as attested
by the plethora of divisions within our associations, including military
psychology.

thirdly, psychological consultation on interrogations is offered as
an alternative to torture (which does not require an academic degree!),
but rather psychological methods of persuasion, mental sleight-of-hand,
and emotional positive and negative incentives.

but finally, isn't it medical doctors who have sworn the oath to heal
and to do no harm that stand by executions and then examine
prisoners to make sure the kill was effective wherever the death penalty
prevails? is it not medical doctors who amputate hands and legs of
offenders in Muslim countries? No psychologists at those posts!

perhaps it would be more in place to ask those medical doctors "where
are your rules of conscience?"

Competing interests:
None declared

The question of what consitutes ethical behaviour is never settled.

It is a case of conflict however politely fought out or reasonably stated
which relies partly on the power differential between parties with
different views. For example, the ethical stance of the Catholic Church in
Ireland trumps that of many Irish Drs and, certainly the ethical decisions
of the women who come to UK for termination of pregnancies - carried out
by UK doctors practising on the mainland. At the other end of the scale
those wishing to end their lives needs must go to Switzerland, where Swiss
Doctors can assist their death - an impossible option in UK. All
professional groups who have carried out unspeakable violations against
others in weaker positions, have had excuses designed to legitimise their
abuse. They have not only been psychologists. Wherever a group with
vested interests, including the wider medical professions, operate from a
position of lack of transparency, of being able to potentially use
sections of the population as a means towards and end which has not
included their agreement, or their participation in drawing up and
constantly revising rules of behaviour, it becomes a shifting power game
which the title of Ethics does not completely obfiscate.

Competing interests:
None declared

I have been a psychologist for over 20 years. I feel honored and
humbled each and every day, as people share their life stories with me.
These stories are often painful, full of anquish, guilt, sorrow and,
hopefully some joy. They trust me to listen, care, and offer hope. I can
think of no other profession with such a profound impact on another
persons psychological life.

Soon after I began hearing stories about the American Psychological
Association's comlicity in the torture of detainees at Guantanamo, Camp 7
and other CIA "black sites" I told myself, "This cannot be true. No one
in my chosen profession would ever do that." How naive I was. I know now
that some members of the APA were not only lending a "helping hand", but
were responsible for creating ways in which to do it. I still have a hard
time believing it, but I do. Too much evidence has surfaced. The
California Psychological Associaton began censoring my listserve posts
when I expresssed my outrage or offered evidence of what some in our
profession were doing. And, when one of my posts actually got through,
some defended the policy of the American Psychological Association.

Fortunately, I found Psychologists for Social Responsibility and
another group of over 1000 psychologists who were withholding their APA
dues over this issue. Even after all of the media attention, the
Association is still slow to tell it's membership this is not OK. At this
time, I feel ashamed of my affiliation with the American Psychological
Association. I used to be proud when someone asked about my profession.
Now, I am not so proud. When people ask me why the American Psychological
Association doesn't say NO MORE involvement in these horrifc acts I have
no answer.

Competing interests:
None declared