This paper explores normative connections between human rights and medical ethics. My interest in this topic was first stimulated in 1988 when I became involved in the investigation of medically unwarranted psychiatric hospitalization of political and religious dissidents in the Soviet Union. (See Bonnie, 1990). From the beginning, it seemed to me that the human rights objections to this practice needed to be disentangled from objections grounded in medical ethics. On the one hand, detention of a person for the purpose of suppressing unorthodox political or religious expression is a violation of human rights, whether it occurs in a jail or a hospital, and whether or not the person has a mental disorder. On the other hand, coercive hospitalization without a medical basis violates medical ethics even if detention for punitive or incapacitative purposes is otherwise justified. The Soviet practice of hospitalizing mentally healthy dissidents solely for criticizing the regime was clearly objectionable on both grounds.
My interest in these overlapping and interacting normative systems was further aroused by a 1992 report on medicine and human rights entitled Medicine Betrayed, prepared by a Working Party of the British Medical Association. I was asked to write an editorial for the British Medical Journal commenting on the report's chapter on the death penalty. (See Bonnie, 1992). In this chapter, the Working Party expressed reservations about numerous forms of medical participation in the judicial and correctional processes, ranging from the gruesome task of carrying out the punishment (e.g., by preparing and administering a lethal injection) to less direct forms of involvement such as assessing and treating allegedly incompetent condemned prisoners. I was struck by the intertwining of medical ethics and human rights concerns in the Working Party's analysis. Ultimately, I concluded that the Working Party's recommendations cannot be defended solely within the normative logic of medical ethics and that some of its proposals were rooted in an abolitionist stance toward the death penalty.
These speculations about Soviet psychiatry and medical participation in punishment led me to think more systematically about the normative connections between human rights and medical ethics. At the outset, we should note two similarities between these two normative systems. First, according to contemporary thought, medical ethics and human rights both purport to represent universal normative requirements. The ethical tradition of medicine is generally thought to be independent of particular cultures, representing universal ideas about the nature and purposes of medicine. Similarly, according to the prevailing point of view, norms of human rights are also universal and are not dependent upon the legal traditions and values of particular cultures. Although the idea that all states are bound to respect certain rights of the individual has deep roots in human history, it was strongly reinforced by the Nuremberg trials and is now embedded in numerous international legal documents.
The second point is that norms of medical ethics and human rights are not static; they evolve over time, reflecting transcultural changes in technology and human values. For example, ethical ideas about abortion and about the physician's obligations to dying patients have changed significantly in the past two decades. In the sphere of human rights, ideas regarding the acceptability of different forms of punishment have changed, and there is now a worldwide debate on whether caning and other forms of corporal punishment (as well as the death penalty) are any longer acceptable under contemporary standards of decency.
We see, then, that although medical ethics and human rights reflect separate normative traditions, each body of ideas and norms is influenced by underlying changes in human circumstances. Moreover, these normative traditions affect one another. For example, evolving norms of medical ethics relating to patient autonomy have been influenced by deepening respect for the dignity of the individual in human rights law. This is why it is not possible to talk fully about patients' rights without also talking about medical ethics and vice versa.
Against this background, I think we can identify three important normative connections between medical ethics and human rights. First, adherence by physicians to patient-centered ethical norms of the medical profession provides a very important safeguard for human rights. Second, the excessively paternalistic orientation of medicine in many countries is incompatible with contemporary norms of human rights. (I will also argue, however, that it would be a mistake for medical ethics to fully embrace the principle of patient autonomy whenever it collides with the principles of beneficence.) Finally, because inadequate care is a paramount human rights concern, psychiatrists should accept the ethical responsibility to become advocates for their patients as a primary professional mission. I will take up each of these points in turn.
II. Medical Ethics as a Safeguard for Human Rights
The duty to serve the well-being of the patient stands at the center of therapeutic ethics. Patients are at grave risk whenever the state (or any other powerful institution) tries to use the tools of medicine for its own, non-medical purposes--i.e., to promote societal interests rather than to serve the interests of the patient. Thus, the patient-centered norm of medical ethics is an important source of protection for the human rights of patients.
We are able to see most clearly how the norms of medical ethics protect the human rights of patients when physicians fail to adhere to them. The most notorious examples are those that involve the use of patients as subjects of medical experiments without their knowledge or without valid consent. Much has been written about the experiments of the Nazi doctors. But serious breaches of medical ethics have also occurred in other countries, including the United States. In the most well-known example, the natural progression of syphilis was studied in a group of poor, black, rural subjects in Alabama who were left untreated, even after penicillin became available. In another well-known case, retarded children admitted to Willowbrook State Hospital in New York were given hepatitis virus as part of a study of the development of the disease and the effects of gamma globulin in reducing its occurrence. And as recently as 1995, the people of the United States have been told of experiments during the Cold War which exposed patients to therapeutically unwarranted doses of radiation. (Advisory Committee on Human Radiation Experiments, 1995).
In all these situations, the well-being of the patients was wrongly subordinated to the society's legitimate interest in advancing knowledge. Human experimentation is necessary to medical progress, but it also presents grave threats to human rights. Ultimately, continued acceptability of the social practice of medical experimentation, including clinical trials, depends on public trust in the ethical integrity of the scientific community. The simple truth is that subjects have no other means of protection. If public trust is lost, and political and legal safeguards come to be seen as necessary to protect subjects of research, the game is lost--and medical progress will come to a halt. If scientific progress is to continue, we must depend primarily on the ethical norms of the research community to protect the rights of subjects.
Researchers must always be aware of the inherent conflicts between their scientific goals and the interests of their subjects. Researchers and their sponsors must be ever vigilant to assure that subjects are not exposed to unreasonable risk of harm and that informed consent is obtained from the subject or a properly authorized surrogate. In research, as in any bureaucratized practice, there is an inevitable drift toward routinization. But this slide toward insensitivity is dangerous to human rights. Researchers and their sponsors must be ever on their guard to prevent it.
In the context of psychiatric care, the most controversial human rights issues concern compulsory treatment. By itself, coerced psychiatric treatment is not a violation of human rights. This is because coerced treatment is sometimes justified by the need to protect the patient or society. Coerced treatment is also compatible with medical ethics so long as the treatment is expected to benefit the patient. The problems arise when treatment is being sought not for the patient's benefit, but only for society's benefit. As I noted earlier, the most well-known cases have been those in which psychiatric hospitalization has been used to suppress political and religious dissent. Everyone now recognizes that this is a violation of human rights and a violation of medical ethics. It is a violation of human rights to incarcerate dissidents for the mere expression of political and religious ideas. Incarcerating them in psychiatric hospitals compounds repression with moral fraud. It devalues their ideas by psychiatric labeling and deploys psychiatric treatment as punishment--in the Soviet hospitals healthy prisoners were subjected to painful and unneeded drugs and other medical procedures. These are profound violations of individual dignity and privacy. Further, it is a blatant violation of medical ethics for psychiatrists to allow hospitalization and treatment to be used exclusively as tools of repression or punishment.
This analysis has some direct implications for the daily practice of psychiatry, especially in hospitals or prisons. Obviously one of the legitimate social purposes of psychiatric hospitalization is to protect society from patients who may be dangerous to themselves or others. But the use of the tools of psychiatry should always be directly connected to the medical needs of the patient. Thus, I would argue that it is unethical for psychiatrists to hospitalize a person (even if the person is mentally ill) for the exclusive purpose of social control. It is unethical to give a person psychotropic medication for the exclusive purpose of behavioral management or intimidation. Involuntary psychiatric treatment is permissible only if the treatment is medically appropriate for the patient's condition.
These points may seem self-evident, but they have direct bearing, it seems to me, on some controversial laws that have been enacted in the United States and in other countries for the purpose of achieving indeterminate detention of dangerous offenders. In the U.S. for example, many states have enacted so-called "sexually violent predator" laws. After a sex offender has fully served a criminal sentence for the offense, he is subject to an indeterminate term of confinement in a psychiatric hospital if he is found to have a "mental abnormality" or "personality disorder" and a propensity for violent sexual assaults.
Putting a person in prison to punish him for a dangerous sex offense is not a violation of human rights. Moreover, confining such a person for a reasonable period of time solely to prevent him from behaving dangerously in the future (for "incapacitation" and not for "punishment") is probably not per se a violation of human rights (although long-term preventive detention raises many controversial questions). I would argue, however, that it is a violation of human rights to prolong the period of incapacitation beyond that which is otherwise authorized as a criminal sentence on the ground that the person has a mental disorder unless there is an established medical basis for such a diagnosis. Moreover, it is a violation of human rights and of medical ethics to confine a prisoner in a psychiatric hospital for involuntary psychiatric treatment if he has no treatable mental illness. [Editor's note: The United States Supreme Court recently upheld a "Sexually Violent Predator" law, as described herein, as constitutional. See, Kansas v. Hendricks, 117 S.Ct. 2072 (1997).]
From time to time, doctors have participated in the practice of torture--either by assessing the prisoner's "'fitness" for torture or by monitoring its infliction to say whether and when the prisoner is being harmed more than intended by his torturers. Everyone agrees, of course, that this form of medical participation in the practice of torture is forbidden, but we should ask, "why?" The easiest answer is that torture is a violation of human rights and that a doctor who participates in this practice for the purpose of facilitating it becomes an accomplice to a violation of human rights. The interesting question is whether there is some other objection to medical involvement derived from principles of medical ethics rather than from norms of human rights.
To probe this question, we must identify a punitive practice that does not violate prevailing standards of human rights. Consider, for example, some forms of whipping or caning, or isolation in dark cells. These are controversial punitive practices, but they are not now universally recognized as violations of human rights. Thus, let us assume, arguendo, that a society may utilize these forms of punishment without running afoul of recognized norms of human rights. If medical participation in these otherwise permissible social practices is forbidden, the objections must derive from principles of medical ethics. What is the applicable principle?
The objection to medical participation in caning or whipping cannot be derived from the principle of non-maleficence (i.e., do no harm). This is because medical participation in the administration of potentially injurious forms of punishment can actually enhance the prisoner's well being; medical assessment of the prisoner's fitness for these punishments, and medical monitoring of their administration, can prevent injury and suffering more extreme than legally authorized or intended. So what is the basis for the widespread view that medical participation in these social practices is unethical?
The answer is that serving as an agent of the repressive or punitive apparatus of the state is not an appropriate social role for a doctor. Medical skills and knowledge are held in trust for the well-being of the public. Allowing these skills to be appropriated to the tasks of punishment is incompatible with the supreme aspiration of the profession and would eventually erode the public's trust m the caring role or the doctor. Public trust in the benevolence of physicians is the medical profession's most important asset.
Some commentators have taken the position that it is unethical for a doctor to use his or her specialized knowledge and skills for any non-medical or non-therapeutic purpose, but this argument goes too far. For example, it is clearly ethical for a doctor to evaluate a person's mental or physical condition for "forensic" purposes, i.e. to assist the courts and other decision-makers who apply the law. These practices do not erode public trust in the caring role of the doctor and they also contribute to the public good. In short, participation in the administration of justice is an acceptable social role for a doctor, although participation in punishment is not.
Turning to the controversy surrounding medical participation in the death penalty, I think we can now see the ethical lines pretty clearly. In countries where capital punishment is not considered to be a violation of human rights, objection to the medical involvement must be derived solely from principles of medical ethics. Two boundaries are clearly marked. On the one hand, participation in the administration of punishment by preparing the lethal solution, setting up the intravenous lines or injecting the solution is not permissible. On the other hand, participation in the administration of justice-by conducting pre-trial forensic assessment of the defendant's competence, responsibility and other issues bearing on sentencing--is ethically permissible.
What about assessing the mental competency of a prisoner on death row? Is this task ethically permissible? It depends. It is not ethically acceptable if the doctor is, in effect, certifying the prisoner's "fitness" for capital punishment-saying "yea" or "nay" to the executioner. But it is acceptable if the doctor is providing a forensic assessment as part of the judicial process, and if the court bears the ultimate responsibility for making the decision regarding the defendant's competence. In this situation, execution competence assessment is not different in principle from any other type of forensic assessment performed in a capital case.
Issues also arise in connection with treatment of condemned prisoners. Suppose that an incompetent prisoner under sentence of death is hospitalized for psychiatric treatment to restore his competency. What should the psychiatrists do? Should they administer anti-psychotic medication knowing that the likely consequence of doing so is to remove a legal obstacle to the prisoner's execution? This question has been a controversial one. For present purposes, it is enough to say that everyone agrees on one point: it is unethical to treat a prisoner for the sole purpose of readying him for execution--that is, if the purpose of the treatment is not to benefit the patient but only to enable the state to kill him. If the condemned prisoner does not request treatment and is not in acute distress, prison doctors should say "no."
Some of the most perplexing ethical problems in mental health care involve the disclosure of information about the patient obtained during the course of treatment. According to prevailing ethical analysis, the psychiatrist has a presumptive duty to preserve the confidentiality of the patient's disclosures-although this duty can be overridden if the reasons for doing so are strong enough, such as a clear threat to the health and safety of another person. This strong ethical duty to preserve patient confidences is also an important safeguard of human rights. The state and other powerful social institutions have a voracious appetite for information, about the mental health of individuals (and other intimate subjects). Individuals should not have to yield to the state information about their most intimate thoughts and beliefs. A circle of private space is an essential element in the idea of freedom. So when individuals choose to disclose such information to a trusted person, such as a spouse, priest, lawyer, or doctor, this information should not automatically become accessible to the state (or to anyone else), and, in the absence of compelling necessity, should be disclosed only with the individual's consent.
Empowering Doctors to Say "No"
I have mentioned several situations in which society aims to use the tools of medical treatment for its own purposes, not for the benefit of patients. In many of these situations, involvement by physicians violates medical ethics as well as the human rights of the individuals. The key point is that ethical behavior by doctors is an essential safeguard for human rights. Even when the law directs compliance, doctors should say no.
In a free society, absolute refusal by medical professionals to perform an ethically proscribed social role is likely to embarrass the government and to dissuade it from trying to accomplish its repressive objective. It is conceivable, of course, that the state might accomplish its goals by other means: the dissident might be sent to a labor camp rather than a hospital, and the government might get someone other than a doctor to inject the fatal dose of barbiturates. Adherence to medical ethics by physicians cannot prevent oppression by the state, but it does provide an important safeguard against it.
The independence of the medical profession is the most important safeguard for human rights. History shows well enough that the costs of saying "no" can be high under a repressive regime because the social power of the medical profession may not be great enough to shield its members from punishments. This was the underlying problem in the former USSR, when very few psychiatrists were willing to defy the regime, and the profession had no identity apart from the state. Similarly, the medical profession in South Africa came under persistent international criticism in South Africa during apartheid.
No system of medical ethics can fairly demand heroism. The lesson of recent history is that future abuses of human rights can be prevented by strengthening and preserving the independence of the medical profession, especially psychiatry, and by establishing and reinforcing patient-centered norms of medical ethics, especially in mental health care. These are the main goals of efforts to reconstruct psychiatry in the former Soviet world.
III. Medical Paternalism and Human Rights
Up until now, I have been discussing the ways in which medical ethics promotes human rights. I now turn to the possible conflicts between patient-centered medicine and human rights. I am now assuming, in other words, that the doctor has a therapeutic motivation and is acting in what he or she perceives to be the patient's best interests. However, benevolent intentions do not guarantee that the doctor's actions will be respectful of the patient's rights or that they will be ethical. The underlying issue is the conflict between medical paternalism and evolving norms of patient autonomy.
Norms of medical ethics as well as those of human rights have changed over the past several decades. A common element of changes in both spheres is a shift from an extreme form of medical authoritarianism to a body of rights and obligations grounded in respect for patient autonomy. In the United States and many other countries, the transition first appeared in legal norms, which affirmed the legal right of patients to make medical choices. The law imposed on doctors an obligation to disclose information about the risks and benefits of the therapeutic alternatives in order to enable patients to make informed choices. This legal doctrine of "informed consent" in turn helped to shape the fundamental ethical norm of respect for the patient's prerogative to make medical decisions.
These ideas soon penetrated psychiatric practice, the most paternalistic branch of medicine. Before this change in legal and ethical norms, psychiatric patients were routinely assumed to lack the competence to make any decisions, including those relating to their treatment. As a result, patients were not consulted, and their objections to treatment were routinely overridden. Evolving ethical and legal norms have gradually shifted the presumption in the direction of greater participation by psychiatric patients in treatment decisions and also toward increased respect for the patient's prerogative to refuse recommended treatment. This norm of patient autonomy is clearly reflected in the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care approved by the U.N. General Assembly in December, 1991 (United Nations, 1991). All over the world, new mental health legislation is being enacted to reflect the new participatory model of mental health care and to displace the traditional paternalistic model.
Under the influence of evolving norms of human rights, the law has now taken over the responsibility for defining the conditions under which patients may refuse treatment or, conversely, may be treated over their objection. In many countries, this has led to restrictive criteria for civil commitment and to rules that allow committed patients to refuse treatment believed by psychiatrists to be medically necessary.
It thus appears that norms of human rights have overridden or displaced the ethical principle of beneficence. In fact, a review of contemporary ethical commentary suggests that prevailing norms of medical ethics have absorbed and embraced the principles of patient autonomy. I believe this is a mistake. Do doctors have the ethical duty to stand by and watch their patients suffer or die whenever the patients are competent to make their own decisions? Are doctors ethically bound to respect patients' wishes? Are doctors ethically obligated to facilitate informed decision making by patients so as to enable them to make autonomous decisions in accord with their own preferences?
Consider the following vignette. Suppose a depressed patient who admitted herself into the hospital objects to continued hospitalization. Although she is not presently suicidal, the doctor believes that the patient would benefit from continued hospitalization. Under the governing law she has a right to leave, although she appears to be unaware of this right. Is the doctor obligated to tell her that she has a right to leave? From a human rights perspective, the patient may be entitled to know that she is free to leave. But does it follow that modern principles of medical ethics obligate the doctor to respect her wishes? Would silence be an acceptable instance of paternalism?
I think it is a mistake for medical ethics to fully embrace the principle of patient autonomy so that it always overrides or displaces beneficence. Respect for the patient's autonomy should be incorporated into ethical norms insofar as it obligates the doctor to involve the patient in decision-making and to ascertain the patient's wishes. Respecting the patient's wishes is therapeutically useful because it helps the doctor understand the patient's needs better than otherwise would be possible. I do not think, however, that the doctor should be ethically required to adhere to the patient's preferences when he or she believes that this course of action will be harmful to the patient. The doctor may be legally obligated to do so because the law has accepted a particular understanding of human rights--but this requirement is extrinsic to medical ethics and should not be embraced by doctors as an ethical obligation.
IV. Advocacy as an Ethical Duty
Inadequate care is the most pervasive threat to the dignity and well-being of persons who suffer from mental disorders. Shortages of staff and medication in public hospitals and clinics are problems in most countries. Inadequate access to treatment is a growing problem in private-sector care in the United States and other countries. Efforts of insurers to "manage" care, and thereby reduce its costs, can result in a denial of payment (and therefore a denial of access to care) for patients who are in genuine need.
Advocacy on behalf of neglected and forsaken patients, and on behalf of patients who have otherwise been wronged, should be an obligatory role of psychiatrists and other care-givers. By advocacy, I mean to include filing grievances, appeals or complaints with the organizations that manage or supervise care or that are responsible for allocating resources. I also mean helping the patient gain access to disability benefits and other resources or services to which he or she may be entitled. I mean, in short, that the psychiatrist should speak for the patient to counteract the inevitable tendencies of financially constrained organizations to neglect vulnerable populations who have no political voice. Further, the profession has a collective obligation to stand up for needs of patients--to raise its voice in the political process and in the court of public opinion.
In an earlier part of this paper, when I was discussing issues of repression and abuse, I acknowledged that in repressive societies, a doctor who says "no" might endanger his own safety or well-being. This dilemma also arises in the present context, and it arises in all societies, not only repressive ones. Doctors who "fight the system" in order to advocate the interests of neglected or ill-served patients may be risking their jobs. I would not go so far as to say the doctor is obligated to sacrifice himself or herself for the betterment of the patients. This would be an unduly heroic ethical standard, to say the least. But the question must nonetheless be put: when does continued participation in an inadequate or unjust system amount to complicity in its wrongs? This question is as pertinent to issues of social neglect as it is to issues of repression and abuse.
Advisory Committee on Human Radiation Experiments, Final Report. U.S. Government Printing Office, 1995.
Bonnie, Richard J., Soviet Psychiatry and Human Rights: Reflections on the Report of the U.S. Delegation, Law, Medicine and Health Care 18:123-131 (1990).
Bonnie, Richard J., The Death Penalty: When Doctors Must Say No (Editorial), British Medical Journal 305:381-83 (1992).
United Nations, Principles for the Protections of the Mentally Ill and Improvement of Psychiatric Care, Annex to General Assembly Resolution 46/119 (adopted December 17, 1991).
Richard Bonnie, LLB, is the John S. Battle Professor of Law at the University of Virginia School of Law and the Director of the Institute of Law, Psychiatry and Public Policy. This paper was originally presented to International Congress, Psychiatry and the Law: Innovations and Human Rights, Bloemfontein, Orange Free State, Republic of South Africa, September 2, 1995. Although it refers to psychiatrists and medical ethics, most of the issues pertain generally to mental health care and the ethics of all mental health professions.…