The Cambridge textbook of bioethics

Bioethics in the context of a more nuanced understanding of social relations

Anthropologists and social scientists have been critical of modern bioethics on the grounds that it is based on Western moral philosophy and western biomedical perspectives. An additional criticism is that bioethics is located within a theoretical framework that emphasizes the application of scientifically rigorous medical care to people who are sufficiently autonomous to make self-interested decisions about themselves in a context of minimal social connectedness. It is claimed that such a highly reductionist and individualistic approach takes insufficient consideration of the social and cultural contexts of illness or associated ethical dilemmas. In addition, it isolates bioethical issues from spiritual perspectives on health and neglects the dynamic nature of relationships between individuals, their families, and their communities (Fox and Swazey, 1985, 2005; Hoffmeister, 1990; Lieban, 1990; Weisz, 1990; Christakis, 1992; Marshall, 1992).

Some critics of modern bioethics favor a more embracing communitarian conception of the individual that acknowledges and values closer links with other people. As an example, the African notion of a person values links with the past (ancestors), the present (family and community), and with other animate beings (and even inanimate objects such as earth) within a ‘‘web of relations’’ that has been labeled as an ‘‘eco-bio-communitarian perspective’’ (Tangwa, 2000). Within this more embracing context of the African perspective, and similarly within many other traditional cultures, illness represents more than mechanical dysfunction. Here understanding and dealing with illness requires an explanatory model that includes attention to the influence of external social interactions, luck, fate, and magicoreligious considerations. These arguments also apply in clinical practice, where ethical decision making could be facilitated in cross-cultural contexts by considering differences in how people in various cultures understand the meaning of personhood, what they view as harms and benefits, how the human body and illness are to be interpreted, and

the role of religion and belief systems in health and alleviation of suffering (Helman, 1990). It is necessary to understand that such differences may give rise to abhorrence in some cultures of issues that are taken for granted in others – for example truth telling about fatal diseases, the use of advance directives, removal of life support, and donation of organs (Berger, 1998; Bowman, 2004).

These two views of people, within social relationships defined in a polarized manner either as individualistic or communitarian along a single dimension, have generated much debate in relation to ethical considerations in cross-cultural research (Loue et al., 1996; Nairn, 1998; Tangwa, 2002). Some scholars insist that the individualistic approach is the best universal model and that it must be rigorously applied (Macklin, 1999). Others argue that this is a ‘‘particular rationality’’ about human life; one that is attractive in its abstract form but lacks resemblance to the real world in which people live (Fox and Swazey, 1985).

Mary Douglas and colleagues have offered a more complex framework for understanding social relations and interactions. This framework hopes to bridge the gap between a conception of all humans as fundamentally the same in being rational and self-interested and another conception that views people as differing greatly in what they consider to be rational and what is indeed in their own selfinterest (Douglas et al., 2003). These scholars posit that both polar views rest on shaky foundations because cultures and societies vary across time, such that social differences cannot be explained so simply. They also make the case that if we are indeed all totally different it would be hard to understand history and to cooperate across cultures and that it is not necessary to have to choose between these extremes.

They propose a cultural theory in which four basic ways of life can be derived from two dimensions (Figure 43.1), and from which a large variety of ultimate forms of social and cultural life can be derived. Each of the four ways of life identified in this analysis, ‘‘consists of a specific way of structuring social relations and a supporting cast of particular

HIGH GRID

Figure 43.1. Four forms of social solidarity. (Adapted from Douglas et al., 2003.)

beliefs, values, emotions, perception and interests’’ (Douglas et al., 2003). This analysis illustrates the wider spectrum of middle ground that lies between the usually described extremes of individualism and community, and the inadequacy of always focusing on the polar extremes of dichotomous options.

Cultures are also dynamic and undergoing continuous change. Some traditional hierarchical societies are moving towards greater democracy and placing more emphasis on individualism, for example in the new South Africa with its liberal constitution and Bill of Rights. In addition, multicultural modern societies are acknowledging the need for more emphasis on community, and the need for solidarity is increasingly appreciated in a globalizing and interdependent world. However, it is important to note that in such pluralistic societies respect for democracy should take precedence over the preservation of cultural traditions that undermine democracy and human rights. Under these circumstances, egalitarianism (see Figure 43.1) is becoming an attractive and challenging common ground on which diverse cultures could hopefully meet.

How should I approach global health ethics in practice?

In a multicultural, pluralistic world, it is proposed that healthcare professionals and researchers

should have a deeper understanding of the global forces that profoundly influence health. They should also be educated about the social, economic, and political milieu that frames the context in which the clinical practice of medicine and the conduct of international collaborative research take place and be sensitive to the differing perceptions of research and healthcare that prevail in such contexts (Benatar, 2002; Marshall and Koenig, 2004; Fox and Swazey, 2005).

The example of international collaborative research illustrates the need to understand others and for finding a middle ground between ethical universalism and ethical relativism, because it is in this field more than in any other that serious efforts have been made to understand what it means to do research on vulnerable people in developing countries (Benatar, 2004a; Fogarty International Center, 2005). In addition, given the high profile of, and interest in, research, the example of standards set in the research context and linkage of research to improvements in healthcare could provide the stimulus towards achieving greater commitment to improving global health.

I have proposed a two-dimensional framework, along the lines of the analysis offered by Douglas and colleagues, to facilitate understanding disagreements about some of the ethical dilemmas that arise in cross-cultural collaborative research (Figure 43.2; Benatar, 2004a). One dimension of this framework stretches from a pole representing the abstract philosophical construction of universal ethical concepts and principles to a contrasting pole where the local ethos (defined as the ‘‘mores’’ that are influenced by time, geographical location, culture, and other social forces) defines the different worlds that have been studied and described by anthropologists and social scientists. A second intersecting dimension stretches from the ability to use moral reasoning to negotiate the application of universal principles within local contexts to positions of moral dogmatism and ‘‘instruction manual’’ approaches to ethics.

This is a more nuanced analysis than one that pits ethical universalism against moral relativism

346 S. R. Benatar

Four Perspectives on Ethical Dilemmas

Ethical Universalism - Abstract

Figure 43.2. Four perspectives on ethical dilemmas. (From Benatar, 2004a.)

along a single dimension. It enables distinctions to be drawn between four broad positions: moral absolutism, moral relativism, reasoned global universalism, and reasoned contextual universalism. Moral absolutism describes the position taken by those who believe in ethics as prescribed and immutable. Moral relativism contends that morality is entirely relative to time, place, and culture. The position of reasoned global universalism is reached through the application of a set of abstract ethical principles that have been developed and justified through a reasoned process. The position of reasoned contextual universalism is reached by taking morally relevant local factors into consideration in applying reasoned global universalism.

Seeking morally justified practical applications within the position of reasoned contextual universalism acknowledges the relevance of history, geography, culture, economics, and other factors to the interpretation of universal principles so that they can be utilized effectively and progressively in differing contexts (Benatar, 2002). The influence of such factors on shaping values, belief systems, and the real world is evident in the evolution of bioethics and its methodology in the western world since the early 1960s (Sugarman and Sulmasy, 2001).

Many continue to seek research ethics guidelines that can be uniformly adopted to resolve

controversial ethical dilemmas. However, it should be more widely acknowledged that just as it is not possible to spell out precisely in any particular jurisdiction what is constitutional or unconstitutional in all situations and at all times without judicial interpretation so it is a fruitless exercise to attempt to write detailed ‘‘instruction manual’’ type directions spelling out precisely what is ethical or unethical in all situations at all times. The place of ethical universalism is at the abstract and conceptual levels, and then there is the need to seek reasoned ways of specifying how abstract principles are to be applied at the local level.

As with considerations of social solidarity, the position of reasoned contextual universalism allows for the rational application of universal approaches within local contexts. Achieving such middle ground avoids the abstraction that is blind to context while also avoiding the perils of moral relativism (London, 2000, 2001). An essential requirement here is to have deeper insights (a difficult task) into when and how it is morally appropriate to take local contexts (ethos/mores) into consideration in applying universal ethical principles. Considerations of major importance will include whether local cultural values inflict harms that could and should be avoided (or are harmless) and whether (or not) they infringe on human rights or abrogate respect for human dignity – in the full acknowledgement that these concepts too are not easily defined in acceptable ways to all (Benatar, 2004a; Ashcroft, 2005).

The case

The HIV/AIDS pandemic has had a powerful influence on expanding the discourse about global health and human interconnectedness across the globe. It has also sensitized researchers to the complexities of applying universal principles in medical research. The case study selected here is used to illustrate the need for a broader, more global approach to health and to bioethics and the need to find rational means of applying universal

ethical principles in different contexts without resorting to moral relativism.

The ideas outlined above have been applied to facilitate resolution of persisting ethical dilemmas in international collaborative research and to assist in determining when a placebo control is justified in clinical research (Benatar, 2004b). I have suggested that under the very different circumstances in which pregnant mothers present for delivery in developing countries the research question that needs to be asked about preventing MTCT of HIV infection differs somewhat from the question asked about how to reduce MTCT in wealthy countries. So, the question to study becomes, ‘‘to what extent can MTCT of HIV be prevented in resource-poor settings where pregnant mothers only present to clinics a few weeks or hours before labor, are often anemic and malnourished, and where breast-feeding cannot be avoided?’’

The balance of benefits and harms associated with a research project pursuing this question, and the feasibility of then introducing into everyday clinical practice an affordable preventive regimen, differ very significantly from the original studies. When few women present early enough to be treated with the full ACTG 076 regimen, the legitimacy of a different study design, which may include a placebo, is based on this significantly different research question being asked in a totally different social context with very different implications for the local society. Important relevant differences include inability to enroll enough women presenting early enough to receive the ACTG 076 regimen (those few who do present early could receive it), inability to prevent breast-feeding, and the great public health value of obtaining an answer to the research question as rapidly and efficiently as possible in the face of a major pandemic where many threatened lives in developing countries could be saved.

So, if we agree that (i) double standards should be avoided, (ii) that different standards may be acceptable when there are relevant contextual differences, and (iii) that consideration of relevant

differences is part of the moral reasoning process, then we can agree that different standards may not be double standards. Such arguments can lead to the conclusion that the use of a placebo in the comparative arm of a study of short-course antiretroviral treatment in MTCT could be ethical (Benatar, 2004b).

This argument can also be taken one step further in the quest to link research to improvements in medical care in developing countries. For example, in the ACTG 076 study in wealthy countries, the researchers were not faced with needing to treat their research subjects for malaria, tuberculosis, or other concomitant diseases that may afflict them during the study, as treatment for these would be available to them through locally available health services. In developing countries, however, it would surely be unethical of researchers not to treat their research subjects for such conditions if treatment were not otherwise available to them. So we have provided a reasoned account of why and how researchers should be required to provide a broader and different standard of overall care in these two research situations (Shapiro and Benatar, 2005), and that this is not an example of double standards, but rather of morally legitimate different standards (Benatar, 2004a).

Making progress in global health will require new paradigms of thinking. Progress could be made through an extended notion of global bioethics and by coupling research to improvements in health through a broader conception of the standard of care that links research to sustainable development through partnerships and strategic alliances.

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Hours after a bomb kills 23 people in a busy marketplace, state armed forces arrest a suspect. Dr. A, a state physician, is summoned to the city’s detention facilities. When he arrives, he finds the suspect unconscious and covered in blood from severe beatings inflicting by the security forces. He is asked to resuscitate the patient for further interrogation. Angered at the bombing, Dr. A complies. Shortly thereafter, in an attempt by detaining authorities to extract information from the detainee, Dr. A is asked to administer sodium pentothal (also known as ‘‘truth serum’’) to the detainee. Before doing so, the suspect dies from his injuries sustained from the beatings. The detaining authorities instruct Dr. A to record the death as a suicide, which he does. Later, Dr. A wonders whether his actions and silence in the matter makes him complicit in the torture and subsequent cover-up of the incident. He is also uncertain whether he is obliged to act in the best interests of his employer (the state), himself, or his patient in such instances.

Dr. B, a psychiatrist in a detention center, is informed by one of her patients that he has not been charged or tried for any crime since his detention months earlier. In addition, he is regularly shackled and held in solitary confinement for prolonged periods, made to stand in awkward positions for hours on end, and deprived of sleep by the detaining authorities. Dr. B is unsure what to do with this information.

C, a prison nurse, overhears correctional services officials at her prison boast about their interrogation and humiliation of detainees who were recently transferred there as a result of extrajudicial renditions, a practice whereby detainees

are deported by countries without going through proper court channels. Their accounts include, amongst others, stripping detainees naked and photographing them, and scaring them with prison dogs while they are blindfolded. C, who has not personally witnessed any of these acts, nor knowingly treated such patients, confronts her colleagues, who inform her that such detainees have no recognition or protection under international law. C is unsure of her moral and legal duties towards the detainees.

What is torture?

In the World Medical Association’s (WMA) Declaration of Tokyo of 1975 (hereafter the Tokyo Declaration) torture is defined as: ‘‘the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession or for any other purpose.’’ ‘‘Any other purpose’’ could include simply punishing and terrorizing persons (McQuoid-Mason and Dada, 1999). In 1984, the United Nations (UN) adopted the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (hereafter Convention Against Torture). In Article 1 of this convention, torture is defined as ‘‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted in order to obtain

a confession, to punish or to intimidate in cases where such suffering is inflicted with the connivance of a public official’’ (UN General Assembly, 1984).

Why are ethical and legal issues surrounding torture important?

Dual loyalty conflict defined

In 2003 the International Dual Loyalty Working Group proposed a comprehensive set of guidelines on dual loyalty conflicts, entitled Dual Loyalty and Human Rights in Health Professional Practice

(DLHR) (Physicians for Human Rights and University of Cape Town Health Sciences Faculty, 2003). This defined a dual loyalty as a ‘‘clinical role conflict between professional duties to a patient and obligations, express or implied, real or perceived, to the interests of a third party such as an employer, insurer or the state.’’ This paper addressed these issues in the context of a health professional’s clinical role conflict between serving his or her detainee patient and serving his or her country or employer.

How dual loyalty dilemmas can arise

History and recent events have demonstrated that health professionals of a detaining power are not above being complicit in detainee abuse (British Medical Association, 2001; Lifton, 2004; Marks, 2005). If a detainee is being subjected to poor detention conditions, or abusive or humiliating interrogation by a detaining power, health professionals could experience a conflict of interest between (i) their duty to care for, and protect, that patient (which would ideally require the professional to actively protest against, or report, abusive treatment to the appropriate authorities), and (ii) their patriotic duty to protect and serve the interests of their employer or country (which might arguably require the professional to remain silent about such treatment). Conversely, a government’s openly negative views towards detainees could induce health professionals not to want to provide reasonable care

to, or protect the interests of, such detainees. This could conceivably occur where health professionals come to believe (rightly or wrongly) in the detainee’s complicity or guilt in actual, incomplete, or prospective crimes against the professional’s country. This mindset could conflict with the professional’s ethical duty to care for the detainee.

International human rights law

The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 states that ‘‘no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.’’ Although this declaration is not binding on countries, it carries considerable moral weight. Article 7 of the Covenant on Civil and Political Rights of 1966 (which is an instrument that is binding on states that ratify it) replicates this right word-for-word (UN General Assembly, 1966). In its General Comments on this clause, the UN’s Human Rights Committee stressed that this prohibition relates not only to ‘‘acts which cause physical pain but also to acts that cause mental suffering to victims’’ (Kellberg, 1998). Indefinite solitary confinement, a measure practiced by some countries, can be seen as a form of mental suffering. The Committee has also stated that no justification or extenuating circumstances excuses a violation of Article 7, including an order from a superior officer or a public authority.

In 1978, the European Court of Human Rights ruled that the use by British forces in Northern Ireland of tactics such as hooding, forced standing, sleep deprivation, subjection to noise, and deprivation of food and drink was not torture. However, the Court did find that such methods were ‘‘inhuman and degrading’’ and, therefore, unlawful under various treaties (Ireland v. UK, 1978). Moreover, in 1999, the Israeli Supreme Court unanimously ruled that certain Israeli interrogation methods (including forced uncomfortable postures and sleep deprivation) were unlawful (Public Committee against Torture in Israel et al. v. Government of Israel et al., 1999).

352 J. A. Singh

The Israeli Supreme Court also ruled that the State (of Israel) could not use the defense of ‘‘necessity’’ to justify such treatment. These cases illustrate that the techniques outlined above are clearly considered repugnant internationally. Health professionals of countries practicing such techniques should not be party to such treatment. Professionals who witness such treatment have an ethical duty to speak out against it. This resonates with the benevolent advocacy role for health professionals postulated above.

International humanitarian law

The international treaties governing armed conflicts are known as international humanitarian law or the ‘‘law of war.’’ Disregard of these treaties can easily lead to degrading and/or abusive treatment of detainees, which, in turn, could impact negatively on their mental and physical health. In the international conflict context, ‘‘prisoner of war’’ (POW) status entitles detainees to basic rights under several international treaties, including the Third Geneva Convention. The four Geneva Conventions established rules for the conduct of international armed conflict (UN, 1949). The Geneva Convention applies ‘‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’’ ‘‘Common Article 3,’’ as it has become known, is found identically in all four conventions and is taken to define a ‘‘hard core’’ of obligations that must be respected in all armed conflicts. This is generally taken to mean that no matter what the nature of the war or conflict certain basic rules cannot be abrogated. Common Article 3 states (UN, 1949):

The following acts are and shall remain prohibited at any time and in any place whatsoever: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment

Under the Geneva Conventions, POW status also bestows upon detainees a plethora of rights, many

of which directly or indirectly involve military physicians. These include Articles 3, 13, 15, 17, 19, 21, 22, 31, and 46. Article 17 is of particular relevance. It states that no physical or mental torture, nor any other form of coercion, may be inflicted on POWs to secure from them information of any kind whatsoever. It also states that prisoners who refuse to answer questions may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. This would clearly rule out the application of any robust interrogation methods on detainees by a detaining power.

Non-binding United Nations resolutions

Although UN General Assembly resolutions are generally not binding on member states (unless they agree to be bound), like the Universal Declaration of Human Rights, they carry considerable moral weight as they reflect the moral conscience and general consensus of the collective international community. According to the 1982 UN General Assembly resolution entitled 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 (hereafter the Principles of Medical Ethics), it is a contravention of medical ethics for health personnel to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, and to certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health (Principle 4). Further, it is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel 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 (Principle 2). It also explicitly stipulated that there may be no derogation from the foregoing principles on any ground whatsoever, including public emergency (Principle 6).

According to the 1988 UN General Assembly resolution entitled Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (hereafter BOP) all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person (Principle 1). Nor may that individual be subjected to torture or to ‘‘cruel, inhuman or degrading treatment or punishment’’ (Principle 6). This is to be interpreted so as to ‘‘extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time’’ (Principle 6). Under this provision, no circumstance whatsoever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment. Significantly, the BOP explicitly stipulates that officials who ‘‘have reason to believe that a violation of this Body of Principles has occurred or is about to occur’’ must report the matter to their superior authorities and, where necessary, to ‘‘other appropriate authorities or organs vested with reviewing or remedial powers’’ (Principle 7(2)). Thus, health professionals need to be mindful that even detainees who are assigned unilateral classifications such as ‘‘unlawful combatant’’ are protected against undue advantage being taken against them during interrogations (Principle 21).

The UN Standard Minimum Rules for the Treatment of Prisoners made it clear that its provisions cover the general management of institutions and are applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to ‘‘security measures’’ (UN Congress, 1955; Articles 4(1), 84(1), 84(2), 95). Countries that

disregard the rights of detainees could also be violating a UN resolution pertaining to the protection of human rights and fundamental freedoms while countering terrorism (UN General Assembly, 2002). This resolution affirms, among others, that states must ensure that any measure taken to combat terrorism complies with obligations under international law, in particular international human rights, refugee, and humanitarian law.

International medical ethics guidelines

According to the Tokyo Declaration (WMA, 1975), a physician should not ‘‘countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife’’ (Article 1). It stated that the physician ‘‘shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment’’ (Article 2). Physicians who participate in interrogation sessions, either directly or by resuscitating unconscious detainees for the purposes of further interrogation by the detaining power, could be deemed as having diminished the ability of detainees to resist such treatment. The mere presence of any physician during any inhumane treatment of detainees is also a violation of the Tokyo Declaration (Article 3). Physicians cannot justify their involvement in such interrogations on the basis of any political ideology (such as a country’s ‘‘national security’’ interest) as the Tokyo Declaration states that the physician’s fundamental role is to alleviate the distress of his or her fellow men, and no motive whether personal, collective, or political shall prevail against this higher purpose (Article 4). According to DLHR, the health professional should not perform medical duties or engage in medical interventions for ‘‘security purposes’’ (Guideline 14).