A federal committee that advises the Secretary of Defense on health policy has recommended that the Pentagon allow military healthcare workers to bow out of performing medical procedures that would violate their profession's code of ethics, or their religious and moral beliefs. Personnel that decline to participate in the procedures should not face retribution.
The recommendation is one of more dozen suggested changes to military medical ethical policies contained in a sweeping 104-page report drafted by the Defense Health Board's medical ethics subcommittee and quietly released last week. If the Pentagon accepts the committee's guidance, it could potentially have a huge impact on the operations at the Guantanamo Bay detention facility, where hunger-striking detainees are routinely force-fed by Navy nurses who have been accused of violating their medical code of ethics.
Since the onset of the global war on terror, the military has been blamed for gross violations of standard medical ethical principles to avoid the infliction of harm by forcing doctors and nurses to participate not only in the widely condemned practice of force-feeding of detainees, but also in interrogations where prisoners were abused and tortured.
The military's medical ethical practices came under intense scrutiny in 2013 during the height of a mass hunger strike at Guantanamo where dozens of detainees were restrained and forced to ingest a liquid nutritional supplement through their nostrils. Detainees, through their attorneys, said the tube feedings, administered by nurses, were extremely painful and dehumanizing. Professional medical organizations, including the American Medical Association, rebuked the practice, noting that it "violates core ethical values of the medical profession." The United Nations said it was a breach of international law. Military officials defended the medical procedure, saying it's Guantanamo's policy to administer force-feeds as a last resort in order to prevent detainees who refuse to eat from dying.
In January, VICE News obtained a two-page document in response to a Freedom of Information Act (FOIA) request that contained the first known acknowledgement by the US military that force-feeding people who are capable of making informed decisions about their own health is a violation of medical ethics and international law.
Some military medical personnel who have objected to participating in the procedures faced the threat of a dishonorable discharge. Such is the case of a former Guantanamo Navy nurse who last year declined to continue force-feeding detainees. The nurse now faces the possibility of being kicked out of the Navy and the loss of pension and benefits for refusing to abide by the orders.
But the medical ethics subcommittee's new policy proposals advise the Pentagon against punishing doctors and nurses who choose to opt out of medical procedures if they believe the practices are unethical or immoral. The Defense Health Board, whose members include Retired Gen. Richard Myers, the former chairman of the Joint Chiefs of Staff during George W. Bush's presidency, unanimously approved the report last month.
'A mechanism should exist to excuse healthcare workers from participating in force feedings.'
Department of Defense (DOD) "leadership, particularly the line commands, should excuse health care professionals from performing medical procedures that violate their professional code of ethics, State medical board standards of conduct, or the core tenets of their religious or moral beliefs," one of the recommendations states. "However, to maintain morale and discipline, this excusal should not result in an individual being relieved from participating in hardship duty."
The subcommittee also noted, "If the operation is illegal, every military member of every specialty has an obligation to do all in his or her power to stop it or refuse participation."
The panel found that the DOD does not have an explicit code of ethics for healthcare professionals, and recommended that the Pentagon formulate and regularly update an "overarching code of military medical ethics based on accepted codes from various healthcare professions."
It's unclear what lead the committee to undertake the review. A Defense Health Board spokeswoman told VICE News the military health officials decided a "proactive evaluation" on issues of "dual loyalty would assist in improving knowledge, understanding, and performance when medical personnel are faced with such challenges."
In May 2011, the assistant secretary of defense for health affairs requested that the Defense Health Board review "medical professional practice policies and guidelines" and come up with recommendations for two questions in particular:
- How can military medical professionals most appropriately balance their obligations to their patients against their obligations as military officers to help commanders maintain military readiness?
- How much latitude should military medical professionals be given to refuse participation in medical procedures or request excusal from military operations with which they have ethical reservations or disagreement?
But Dr. Adil Shamoo, a biochemistry professor at the University of Maryland's School of Medicine and the chair of the Defense Health Board's medical ethics subcommittee, said the review "basically just went dormant because someone didn't want us to continue."
Then, in January 2013, just a month before the Guantanamo hunger strike began, Jessica Wright, then the acting under secretary of defense for personnel and readiness, tasked the subcommittee to revamp its review.
Shamoo told VICE News that he believes the most plausible explanation for the revamping was that the critical media coverage about the treatment of detainees at Guantanamo "was the motivator."
"To me that makes the most sense," he said, adding that the committee didn't start working until August 2013, a couple of months after Senator Dianne Feinstein sent a letter to Secretary of Defense Chuck Hagel that said the force-feeding policies "are out of step with international norms, medical ethics, and the practices of US Bureau of Prisons."
The committee obtained testimony from 20 experts on medical ethics, including many who have been harshly critical about Guantanamo's detainee operations. The group also met confidentially with active duty and retired US military personnel who served in Afghanistan and Iraq.
"We in the subcommittee discussed Guantanamo a great deal," Shamoo said.
Shamoo, who noted that he was not speaking on behalf of the subcommittee, said the "backbone" of the report is the two recommendations that say healthcare providers' first loyalty is to the patient, and that the Department of Defense cannot force military medical personnel to participate in a procedure if it violates professional medical ethics, or is immoral.
"If something is not in the interest of the patient or will harm the patient or is immoral that will give moral force to that individual saying I cannot do it," he said.
The context in the report for the recommended policies revolves around a lengthy discussion about ethical guidelines that were previously issued by medical organizations about force-feeding competent patients, and the role of physicians in the interrogation and torture of detainees.
Shamoo said if the Pentagon accepts the recommendations, it will likely go a long way toward helping the Navy nurse threatened with dishonorable discharge for objecting to the forced-feedings of Guantanamo captives.
The unnamed nurse, identified as a lieutenant who has spent 18 years in the Navy, was sent to the Naval Health Clinic New England in Rhode Island and now faces a possible administrative hearing before a three-officer board that will decide his fate.
"His case was part of our discussion," Shamoo said. "My thinking is if the Department of Defense adopts our report, it will strengthen the nurse's case of acquittal. If the protocols we recommended had been in place last year this nurse would not have had to face any ramifications from his decision."
Capt. Tom Gresback, a Guantanamo spokesman, said he is unaware of any recent cases "of a medical provider refusing to participate in enteral feedings of a detainee at the detention facilities at Guantanamo." He said it would be inappropriate to speculate as to how the Defense Health Board's report, if accepted by the Pentagon, could affect the operations at the detention facility.
"Standard operating policy and procedure applicable to all facets of detention operations at Guantanamo Bay are in compliance with US law," he said.
Ronald Meister, an attorney for the embattled nurse, told VICE News that the medical ethics committee "has recognized what we've been saying all along: that medical ethics in war is identical to medical ethics in peace.
"The Department of Defense has to ensure that ethics are complied with, that nurses principal commitment is to the patient and part of all that is excusing healthcare workers from performing medical procedures that violate their code of ethics," he said.
Guantanamo's former head of nursing, Commander Jane French, said in 2007 that medical personnel who objected to tube feedings would be excused and someone else would administer the procedures.
'If the Department of Defense does not act on the recommendations and simply lets them sit, that will be a major indication that they have undermined military medicine.'
Shamoo said the medical ethics subcommittee discovered that French's policy was not carried over by military officials who succeeded her.
"As much as it would have been nice [for the subcommittee] to say that we recommend that nurse X not be discharged from doing what we say is the right thing, I think this report is pretty much on point," Meister said of the panel's recommendations. "A mechanism should exist to excuse healthcare workers from participating in force feedings. This says the military has an obligation to excuse healthcare professionals from performing procedures that violates codes of ethics. That's what we're asking them to do in our case."
Len Rubenstein, a medical ethicist at Johns Hopkins Center for Public Health and Human Rights, is one of the experts who spoke with the subcommittee. He told VICE News he emphasized that Department of Defense policies are inconsistent with ethical requirements.
"There's been so much focus on how health professionals have breached their ethical duties, and that's an important point in the war on terror but the focus needs to be to the degree to which the government agencies themselves required those breaches," Rubenstein said.
He said he would have preferred if the committee went further in its report and tackled the hunger strike issues at Guantanamo directly, "because it is the most blatant conflict between military practice and civilian life practice."
Still, Rubenstein said the subcommittee's "simple principle that the Department of Defense must ensure that their first obligation is to the patient is extremely important and would require the Defense Department to alter its practices.
"I see this as a test for the Department of Defense," Rubenstein continued. "It's a test whether they will take seriously these recommendations and end the deviation from professional ethical standards and become part of mainstream American medicine. If the Department of Defense does not act on the recommendations and simply lets them sit, that will be a major indication that they have undermined military medicine."
But even if the Pentagon accepts the subcommittee's recommendations and overhauls military medical ethics, that likely won't be enough to solve the hunger strike problem at Guantanamo. That's an issue that Rubenstein said still needs to be addressed.
"You would basically have to change the policy on hunger strikes," he said, referring to the protocols that dictate when and how detainees are force-fed. "That is the ultimate implication here. That's the part of the test for the Department of Defense."
The medical ethics committee's report has to go through another layer of bureaucracy before a decision is made as to whether the Pentagon will accept some or none of the recommendations.
"The next step is for the Defense Health Agency's internal ethics subject matter experts to thoroughly review [the] recommendations and develop a plan of action for leadership review and approval," said Laura Seal, a spokeswoman at the Defense Department's personnel and readiness office.