Intended for healthcare professionals

Rapid response to:

Editor's Choice

Rules of conscience

BMJ 2009; 338 doi: https://doi.org/10.1136/bmj.b1972 (Published 14 May 2009) Cite this as: BMJ 2009;338:b1972

Rapid Response:

doctors are not above the law

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

Competing interests: No competing interests

16 June 2009
John Lunstroth
Law professor
University of Houston Law Center