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NEWSLETTER
 
medical humanities newsletter
The Bioethics Center, University Health Systems of Eastern Carolina
Department of Medical Humanities, The Brody School of Medicine at East Carolina University
 
 
 
Ethics and Military Medicine: New Developments & Perennial Questions
John C. Moskop, Ph.D.

In response to the terrorist attacks of September 11, 2001, the United States has made fundamental changes in its foreign and military policy. In retaliation for these attacks, and to minimize the perceived risk of future attacks, US military forces took the lead in invading Afghanistan and Iraq and ousting the rulers of those nations. US forces continue to engage in new missions, including anti-terrorist action in Afghanistan and service as an occupying authority in post-invasion Iraq.

As Edmund Howe has recently described, these events pose a variety of new ethical questions for the military and for military medicine [1]. Among the most controversial of these are questions about appropriate treatment and interrogation methods for captured terrorist suspects. Despite official statements that the United States will not resort to torture or cruel treatment of terrorist suspects [2], a Washington Post report also cites admissions by security officers that prisoners in US custody have been subjected to a variety of “stress and duress” interrogation techniques [3].

How might these developments be relevant to military physicians? Consider, for example, the following hypothetical situation. Shortly after the fall of the Taliban regime, a US military physician who is fluent in Arabic is assigned to provide medical care at a secret detention center for terrorist suspects in Afghanistan. The physician observes that many of the prisoners have been beaten and is told by the prisoners that these beatings were administered by soldiers after their capture. At the detention center, Central Intelligence Agency (CIA) and military intelligence officers interrogate the prisoners. Among the techniques used are sleep deprivation, forcing prisoners to stand or kneel blindfolded for hours, and selective withholding of pain medication. The physician reports to his commanding officer that several of the prisoners are exhibiting symptoms of severe physical and mental illness and recommends that aggressive interrogation methods be discontinued. The commanding officer responds that these captives are not prisoners of war (POWs) and so are not entitled to the protection of the Geneva Conventions. He asserts that the interrogations are producing valuable information and will continue, and he informs the physician in no uncertain terms that his responsibility is to keep the prisoners alive and able to respond to interrogators’ questions. The physician recognizes an obligation to obey his superior’s orders and an obligation to protect the health of the prisoners under his care. How should he proceed?

As this example illustrates, recent events may pose moral dilemmas for US military physicians. This article will examine the moral status of military medicine, focusing on conflicts of obligation and on limits to the autonomy of military physicians.

Conflicts of Obligation
Virtually all practicing physicians, whatever their practice setting, assume multiple obligations to patients, patients’ families, their own families, colleagues, the profession, employers and employees, and society at large. These multiple obligations can, and often do, come into conflict, and a major task of medical ethics is to help physicians address such conflicts. Though conflicts of obligation are unavoidable for most members of complex societies, it seems clear that we ought to avoid assuming obligations that we know will be in frequent or irreconcilable conflict. Thus, we can begin to analyze the moral situation of military physicians by reviewing some of their fundamental obligations and considering whether these obligations create especially difficult or irreconcilable conflicts.

Military physicians possess one set of obligations simply as physicians, members of the medical profession. Included among these are basic obligations expressed in medical oaths and codes of ethics, especially duties of non-maleficence (“above all, do no harm”) and beneficence (“act for the good of the sick”). Contemporary commentators also ascribe to physicians a basic obligation to respect the autonomous choices of patients. More specific duties, including confidentiality, truthfulness, and compassion, among others, are often grounded in these fundamental obligations.

In addition to their obligations as physicians, military physicians accept a second set of obligations as members of the armed services of their country. Military physicians commit themselves to serving military goals determined by their commanders. Some of these goals may be virtually identical to non-military goals as, for example, the provision of quality medical care to individuals. Others may be entirely different as, for example, the maintenance of forces at combat readiness in peacetime and what is sometimes called “the conservation of the fighting strength” in wartime [4]. Military physicians agree to subject themselves to the military command structure in order to achieve these goals.

There is obvious potential for conflict between these two sets of obligations assumed by military physicians. An officer’s order to administer an experimental treatment to a soldier may, for example, conflict with the physician’s obligation to respect the patient’s refusal of treatment. It remains an open question, however, whether conflicts like this one are so serious, so intractable, or so frequent as to justify the conclusion that the role of the military physician is inherently morally problematic or untenable. Let us consider, therefore, how these potential conflicts might be resolved.

Conceptually, the simplest way to deal with conflicts between medical and military obligations would be to establish that one set of obligations should always take precedence over the other. In several articles on military medicine written during the Vietnam era doctor draft, for example, Victor Sidel comes close to defending the view that, in order to honor their professional medical obligations, physicians should not enter military service [5, 6]. Sidel emphasizes both an obligation to care for individual patients and an obligation to prevent the human suffering and death caused by war; he refers to an observation by British physician John Ryle that the universal refusal by physicians to serve in the military would so undermine the health and the morale of the troops as to make it extremely difficult or impossible for nations to wage war [7]. If physicians’ medical obligations do always take precedence over conflicting military obligations, then physicians could serve in the military only on the condition that all conflicts between medical and military goals be resolved in favor of the former, a condition that military authorities are highly unlikely to accept. Thus, establishing an absolute priority of medical over military obligations would make the position of the military physician morally untenable.

In direct contrast to the above position, one might argue that military obligations should always take precedence over medical obligations for military physicians. Dr. Ugur Cilasun, Executive Director of the Turkish Medical Association, for example, describes the former situation in Turkey as follows:

After legislative changes in the aftermath of the 1980 military coup, a military school of medicine was established for the purpose of training doctors solely for the military. In a ceremony at this military school, the head of the junta, addressing the soldier students, said: “You are first and foremost soldiers, and only after that, doctors.” This was evidence that military doctors were expected and obliged to give priority to the chain-of command, above and over [sic] the medical code of ethics [8].

If military physicians should always give priority to military over medical obligations, any conflicts between the two they might encounter could be clearly and rapidly resolved.

Neither of these two polar positions is likely to attract a large number of adherents, however. As we have noted, each position requires that when conflicts arise, one set of obligations always takes precedence over the other. To be sure, the values fostered by medical obligations, such as individual and public health and well-being, are genuine, fundamental, and deeply held. But military obligations also protect cherished fundamental values, such as individual freedom, national independence, and national security. There seems to be no compelling way to establish the absolute priority of either set of values and obligations over the other. Thus, we must recognize the prima facie legitimacy of both, and turn our attention to more specific instances of conflict.

One might, at this stage of the analysis, be tempted to conclude that the role of military physicians is no more morally problematic than a variety of other well-established types of medical practice, including occupational medicine, sports medicine, medicine in penal institutions and even medicine in managed care organizations. In each of these practice settings, physicians assume obligations to an institutional employer or contractor that can and sometimes do conflict with professional obligations to promote the best interests of individual patients. For example, prison physicians may be required to provide sychopharmacological treatment to mentally disturbed death row inmates in order to restore them to sanity and thereby allow their executions to go forward [9]. A sports team physician may be required to perform drug tests on team members, despite an athlete’s request that he or she not be tested. A physician working for a health maintenance organization (HMO) may be required to prescribe a less effective drug to treat a patient’s illness because a more effective (and more expensive) alternative is not included in the HMO’s formulary. Such conflicts can sometimes be mitigated by informing patients that the physician’s actions in a particular setting are directed to goals other than or in addition to that of benefiting the patient and allowing the patient to opt out of the relationship if he or she objects [10]. If the informed patient agrees to continue the relationship, then he or she is giving tacit permission to the physician’s or the institution’s pursuit of those goals.

The recent growth of managed care and the ongoing debate over the moral implications of managed care strategies and techniques have highlighted the existence and pervasiveness of physician conflicts of interest and obligation [11]. In light of these developments, it is becoming harder and harder to maintain that physicians should adhere to a single-minded commitment to individual patient benefit and should ignore the claims of those who pay for health care, other potential recipients of care, or society at large. Thus, it may seem that the conflicting interests and obligations of military physicians are not significantly different from those of many, if not most, of their civilian colleagues. Such a conclusion would be premature, however.

Patient and Physician Autonomy
There are morally significant features of military medical practice that distinguish it from other types of practice. These features have to do, not with the mere fact that conflicts of obligation exist in military medicine, but with the ability of the patients and especially physicians to decide how to address them. They have to do, in other words, with the locus of control over medical decision making in the military. Both patients and physicians give up a greater measure of autonomy over their choices and actions when they enter military service than they do in most other practice settings.

Consider, first, the area of patient autonomy. Few, if any, patients enjoy complete freedom in their health care choices. Most are limited, by previous choices (like the choice of a job with a specific health insurance plan), by lack of resources, by availability of services, and in various other ways. At least some of these limitations can, in turn, be overcome - patients can consult different physicians, change jobs or health plans or move to a different state. Members of an armed service typically confront a number of additional constraints. Although members of the armed forces of the US currently make a voluntary choice to enlist, military personnel in other countries are conscripted into service. Once inducted into military service, one is not free to leave without the approval of the proper military authorities. While in the service, one is obligated to obey all lawful orders of one’s superiors, and one is subject to disciplinary action for failure to do so. Military personnel are subject to hazardous duty, including life-threatening assignments in war. In the context of health care, members of armed services may have little or no control over who provides care for them or what treatments they will receive. An example of mandatory treatment was the administration of an experimental anti-chemical warfare agent without informed consent to US troops stationed in the Middle East during the 1991 Gulf War [12]. The confidentiality rights of armed services personnel in the US are also limited; for example, the US military, unlike most civilian jurisdictions, does not grant to physicians a right to refuse to divulge confidential medical information in a court of law [13].

Because of both their increased risks and their decreased ability to make choices in health care matters, military personnel can be considered a vulnerable population, similar in a number of respects to other vulnerable groups like children, prisoners, and the mentally infirm. To protect the latter groups, the US and other countries have established special regulations against mistreatment and exploitation in medical therapy and research. In contrast, members of armed services, though they receive most of their health care from military physicians, typically have not more, but fewer of the protections that civilians enjoy, such as confidentiality and informed consent.

The reason for these limitations on the personal freedom of members of the armed services is not esoteric: political and military leaders deem it necessary to organize the military in this way in order to maintain a highly disciplined and effective fighting force. Most physicians who choose to enter military service will be in substantial agreement with the need for an effective military force, but, as physicians, they will presumably also be concerned about the effect of military decisions on health and well being, especially of the service personnel who are their patients. Though they will likely endorse the basic mission and structure of the armed services, they may not accept the necessity of every military decision and may wish to balance a decision’s military rationale against its effects on the health and well-being of the troops or of the society-at-large. Military physicians’ ability to act on such comparisons, however, is constrained by the fact that they, too, have limited autonomy and are obliged to obey military regulations and the orders of their superior officers.

As noted above, physicians in a variety of practice settings have institutional and other obligations, which may limit their ability to act with the single-minded goal of benefiting their patients. Like their patients, however, civilian physicians may overcome some of these limitations by challenging institutional rules or by changing jobs. Military physicians have somewhat fewer options. Like nonmedical service personnel, they may be drafted into military service, they may not leave without approval by the proper authorities, and they must obey the orders of superior officers or face disciplinary consequences. Military medical officers, in other words, are not always free to choose how they will respond to a conflict between their military and medical obligations; superior orders may take the decision out of their hands. This may not always, or even often, be the case; military medical officers may be granted wide discretion in making health care decisions about individuals or groups under their care. Nevertheless, when regulations or orders demand it, military physicians may be forced to give their military obligations priority, no matter how strong their moral conviction that medical considerations should take precedence in a particular situation. In this way, military physicians give up a portion of their decision-making authority and thereby assume a somewhat greater moral risk of being forced to act in opposition to their convictions than their civilian colleagues.

The moral situation of military physicians is actually somewhat more complex than the previous description indicates. If the actions of military physicians were absolutely determined by their superiors’ orders, we might praise or blame the superior officers and their decisions, but not the physicians’ actions, since they had no control over those actions. In fact, however, military physicians do have some, albeit limited options.

The moral situation of military physicians is actually somewhat more complex than the previous description indicates. If the actions of military physicians were absolutely determined by their superiors’ orders, we might praise or blame the superior officers and their decisions, but not the physicians’ actions, since they had no control over those actions. In fact, however, military physicians do have some, albeit limited options.

First, military physicians are generally obliged to obey only lawful orders, not any orders a superior might give. Thus, military physicians may refuse to obey an order they deem unlawful and rely on adjudication of the matter by a court-martial [4]. Military physicians who take this step will, if the authorities decide to prosecute, face the somewhat daunting task of convincing military judges that their interpretation of the applicable law, and not that of their commanding officer, is correct. To what laws may a military physician appeal in challenging the lawfulness of an order? These may include military regulations themselves, the statutory and common laws of the physician’s nation, and international treaties, like the Geneva Conventions, that that nation has ratified. Thus, the scope of a military physician’s right to resist orders depends on the regulations and laws adopted by the physician’s nation, and may vary significantly from one nation to another. It may, for example, be highly significant for a military physician, if she were ordered to assist in the development or testing of biological weapons, to know whether her nation had ratified international conventions banning the development, testing, production or use of such weapons.

Military physicians might also appeal directly to international laws, but unless such laws have been adopted by one’s own nation, they are unlikely to be recognized by military judges. Even if nations have officially recognized an international law, they may not enforce it. Turkey, for example, appears to permit widespread torture despite its acceptance of international laws prohibiting that practice [14].

In situations where an order violates an international law not recognized by one’s own nation, military physicians confront an unenviable choice—probable prosecution and disciplinary action by one’s own military, or possible future prosecution and punishment by a foreign or international tribunal. Military physicians may also choose not to obey an order that they concede is lawful but which they believe to be unethical. In such a case, the physician may prefer to accept the military’s punishment rather than carry out an unethical order.

In addition to the protection of national and international law, many professional medical associations have sought to defend the medical obligations of physicians by formal condemnations and sanctions against certain practices, including physician participation in torture and executions. In response to reports of physician participation in torture in Turkey and Uruguay, for example, the national medical associations of those countries condemned the practice of torture and the Turkish Medical Association refused membership to military physicians [8, 15].

Conclusion
What, then, is the underlying moral difference between military and civilian medical practice? It is, I believe, the fact that the military demands a more nearly total commitment to its goals and practices than other employers and, as a result, military physicians have less individual freedom to make their own moral choices. Some military goals, such as the protection of citizens and their way of life, are highly desirable; other possible goals, such as aggression against other nations, are highly morally suspect. Some military practices and procedures, such as strict discipline and rigorous training, are necessary and defensible means to achieving military goals; others, such as torture, genocide, and mistreatment of one’s own soldiers, prisoners of war, or civilians, are highly morally problematic. Upon entering military service, physicians assume obligations to pursue military goals and abide by military procedures, with only limited options to resist these on medical or other grounds. Thus, the decision to enter military service is a morally weighty one which demands careful reflection on the practices and regulations of the military service to which one is pledging obedience.

Let us return, in closing, to the hypothetical case of the military physician stationed at a detention center for terrorist suspects in Afghanistan. The physician confronts a difficult choice among imperfect options. He may choose to obey his orders and accept the status quo. If he does not attempt to intervene in order to protect the health of the seriously ill prisoners under his care, however, their conditions will likely continue to worsen, and they may die. The US military is, in fact, investigating the deaths of two Afghan detainees at a CIA detention center at Bagram Air Base north of Kabul. According to news reports, one died of a heart attack and the other of a blood clot in the lung, but both showed signs of blunt force trauma [2].

The physician may also challenge the orders of his commanding officer and refuse to support the ongoing interrogations. This course of action may well result in the physician’s imprisonment and trial for disobeying a superior’s orders. At court-martial, the physician’s counsel might argue that Taliban and al Qaeda prisoners do qualify for POW status and the special protections accorded to POWs by international law [16]. If, however, he is convicted, the physician will face punishment. Under the Uniform Code of Military Justice, disobeying an order in time of war is a capital offense, though no member of the US military has been executed since 1961 [17]. Though this is a hypothetical case, its plausibility in light of recent events illustrates just one of the moral challenges military physicians may confront.

Note: This article is a revised version of the longer article, Moskop J. A moral analysis of military medicine. Military Medicine 1998; 163: 76-79. Additional references may be found therein.

RESEARCH/NOTES

1. Howe EG. Dilemmas in military medical ethics since 9/11. Kennedy Inst Ethics J 2003; 13: 175- 188.

2. Slevin P. US pledge to avoid torture; pledge on terror suspects comes amid probes of two deaths. Washington Post 2003 (June 27): All.

3. Priest D, Gellman B. US decries abuse but defends interrogations. Washington Post 2002 (December 26): A1.

4. Howe EG. Ethical issues regarding mixed agency of military physicians. Soc Sci Med 1986; 23: 803-815.

5. Sidel VW. Aesculapius and Mars. Lancet 1968; ii 966-967.

6. Leiberman R, Gold W, Sidel VW. Medical ethics and the military. New Phys 1968; 17: 299-309.

7. Ryle JA. Foreword. In: Joule H, ed. The Doctor’s View of War, pp 7-10. London: George Allen and Unwin, 1939.

8. Cilasun U. Torture and the participation of doctors. J Med Ethics 1991; 17 Supplement: 21-22.

9. Pellegrino ED. Societal duty and moral complicity: The physician’s dilemma of divided loyalty. Intl J Law Psych 1993; 16: 371-391.

10. Toulmin S. Divided loyalties and ambiguous relationships. Soc Sci Med 1986; 23: 783-787.

11. Morreim EH. Balancing Act: The New Medical Ethics of Medicine’s New Economics. Washington: Georgetown University Press, 1995.

12. Annas GJ. Changing the consent rules for desert storm. N Engl J Med 1992; 326: 770-773.

13. Auster SL. Confidentiality in military medicine. Milit Med 1985; 150:341-346.

14. Iacopino V, Heisler M, Pishevar S, Kirshner RH. Physician complicity in misrepresentation and omission of evidence of torture in postdetention medical examinations in Turkey. JAMA 1996; 276: 396-402.

15. Martirena G. The medical profession and torture. J Med Ethics 1991; 17 Supplement: 23-25.

16. Wallach EJ. Afghanistan, Quirin, and Uchiyama: does the sauce suit the gander? Army Lawyer 2003; Issue 366:
18-47.

17. Burns R. Documents remind of harsh military justice. AP Government CustomWire 2003 (December 12).