Dual Loyalty, the Health Professions and Human Rights

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Dual Loyalty, the Health Professions and Human
Rights

• Leonard Rubenstein
• Executive Director, Physicians for Human Rights
  (USA)

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The foundational ideal fidelity to patients
The health of my patient will be my first
consideration. WMA Declaration of Geneva
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Inquest into death of Anti-Apartheid Activist
Steve Biko

• Q In terms of the Hippocratic Oath, are not the
  interests of your patients paramount?
• Physician Yes
• Q But in this instance they were subordinated to
  the interests of the security police?
• Physician Yes

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The dual loyalty problem

• Dual loyalty exists when there exists a clinical
  role conflict between professional duties to a
  patient and obligations, express or implied, to a
  third party.
• Third party typically the state, but can be
  employer, managed care organization, other.
• Duties to third parties usually thought to serve
  some social interest.
• Resolution of these role conflicts rarely
  considered in medical ethics masked by
  Hippocratic idea The health of my patient
  shall be my first consideration

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Dual loyalty and social interests

• In many instances social interests legitimate and
  can justifiably prevail.
• Protecting a third party from harm
• Gaining information to obtain social benefits
• Public health needs
• Other social interests can be problematic
• Efficient management of institutions, e.g.,
  prisons
• National security
• Reinforcement of social values about women,
  minority groups
• Perpetuation of inequitable health policies

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Dual loyalty and human rights

• Special concerns when the conflict compromises
  patient interest to favor state practices and
  policies that violate human rights
• Inflicting harm at the behest of the state
• Subordination of judgment to state interests
• Adherence to state-imposed limitations in care
• Giving effect to socially-imposed discrimination
• Complicity (?) in gross inequities in health
  resources
• Breaches of confidentiality to serve the state.

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Dual loyalty case 1 inflicting harm on patients
at behest of the state.

• Torture
• Death penalty
• Treatment for death
• Research practices in poor countries
• State-sponsored medical interventions that
  degrade women
• Sterilization

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Case 2 Subordination of judgment to state
interests

• Failure to report evidence of torture
• Psychiatric label placed on political dissidents
• National security and reporting of
  radiation-related illnesses
• Special triage rules in the military
• Skewing of refugee evaluations
• Deference to police in discharges

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Case 3 Adherence to state restrictions and
limitations in care

• Declining to provide advice on contraception and
  reproductive health
• Emergency-only treatment for undocumented people
• Limitations on care to prisoners, detainees
• Denying care to the enemy in war

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Case 4 Giving effect to socially-imposed
discrimination

• Adhering to rules that may discriminate against
  ethnic or religious group in availability of
  treatment
• Gender discrimination
• Denies care for reproductive health
• Refusal to provide information

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Case 5 Complicity (?) in gross inequity in
health resources

• Tailoring interventions to inequities in
  resources available
• Developing dual standards of care
• Denial of available interventions for reason of
  state policy (ARVs in South Africa)

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Case 6 -- Breaches of confidentiality to serve
state

• Disclosure of information on persons arrested to
  police
• Disclosure of results of drug tests of pregnant
  women to police
• Note legitimacy of certain breaches of
  confidentiality --where harms to others exist

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Traditional model to resolve role conflicts from
medical ethics

• Relies on four principles -- beneficence,
  autonomy, non-maleficence, justice
• Clinician is supposed to examine how these
  principles apply to a particular situation,
  weighing the power of each.

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Limits to traditional model in resolving cases of
dual loyalty substance

• Model does not say what weight to give to
  competing principles, how to resolve them, and
  what role human rights play in balancing
  interests.
• Gives little attention to the role of the state
  as an actor

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Limits to the traditional model in resolving
cases of dual loyalty process

• Assumes that the clinician has all the
  information needed to make a good decision.
• Assumes that the clinician has competence to
  weigh the competing interests.
• Assumes that no outside pressures or role
  expectations affect decision.

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Dual Loyalty - common themes

• Lack of awareness
• Lack of guidance
• Lack of institutional support
• Employment contracts
• State and third party pressures

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An alternative, human rights framework

• Substantively based explicitly on
• International human rights law
• International humanitarian law (laws of war)
• Theory is that health personnel should not be
  instruments by which state commits human rights
  violations or further such violations
• Procedurally, clinician does not balance
  principles but strives to follow human rights
  standards
• Mechanisms to protect clinician independence must
  be in place

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International Dual Loyalty Working Group

• Organized by Physicians for Human Rights and
  University of Cape Town Health Sciences Faculty
  (Leslie London and Laurel Baldwin-Ragavan)
• Consisted of bioethicists, academic physicians
  and nurses, human rights experts, health
  practitioners, victims of human rights abuses,
  international organization representatives,
  member of TRC.
• Countries represented included Chile, Denmark,
  Germany, India, Israel, Netherlands, Palestinian
  Authority, Pakistan, Russia, South Africa,
• Turkey, United Kingdom, United States.

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Product Dual Loyalty and Human Rights in Health
Professional Practice Proposed Guidelines and
Institutional Mechanisms

• Set of general guidelines
• Five specialized guidelines
• Prisons
• Military
• Refugees/immigrants
• Forensic
• Workplace
• Proposed institutional mechanisms to protect
  health professionals placed in these situations
• Available on the web at physiciansforhumanrights.o
  rg

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Overview of general guidelines

• Human rights as limitation on subordination of
  patient rights to interests of the state.
• Skill building in human rights and identifying
  situations of dual loyalty.
• Attention to Process No expectation that
  clinicians will resolve all cases exceptions to
  patient allegiance only within a framework
  established by standard-setting authority.
• Attention to right to health Act individually
  and collectively to bring an end to policies and
  practices that prevent the health professional
  from providing core health services to some or
  all patients in need.
• Obligation to report human rights violations
• Support and solidarity within the professions

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Institutional Mechanisms to Facilitate and
Support Compliance

• Structure employment relationships to promote
  professional independence
• Establish conduct standards, training and peer
  review
• Administrative and legal mechanisms for
  protection ombudsmen, appeal processes
• Minimize secrecy in closed institutions.
• Hold health professionals accountable.
• Active role of professional organizations to
• speak out and support clinicians

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Role of human rights organizations

• Raise awareness of dual loyalty/human rights
  problems in the profession
• Urge medical associations to take human rights
  approach to role conflicts
• Identify instances of dual loyalty/human rights
  violations
• Assure support for health workers in dual
  loyalty/human rights situations