When Ethics Collide

[Posted on behalf of Nancy Dubler and Art Caplan]

Surprising that for a week there was constant news from Boston.  Minute by minute we heard details of carnage, searching, killing, lock down and capture.  Now, pretty much, silence.

The suspect, captured in a boat in a backyard in Watertown, is now both a prisoner and a patient.  That has proved, historically and most recently, to be a difficult dual status for physicians to address.  It is hard for those who want to interrogate him.  And hard for those who wish to initiate his arraignment and prosecution.  But they along with the rest of us must wait.

Prison and jail health care present an anomaly for medical caregivers.  The goals of medicine are to diagnose, cure and comfort.  The goals of the justice and correctional systems are to confine, try, sentence and punish.  These are not only mutually exclusive goals but, they make strange and strained bedfellows when the two must work together.

We know one can coopt the other.  American doctors who agreed that torture could continue, without killing the prisoner, during recent years when water-boarding was a clear part of the anti-terror arsenal, violated their oaths as physicians to attend only to the medical, physical and emotional needs of the patient…to do no harm.

In the same vein, on July 17, 2008, the AMA articulated its policy about executions clearly and unambiguously — “requiring physicians to participate in executions violates their oath to protect lives and erodes public confidence in the medical profession. A physician is a member of a profession dedicated to preserving life when there is hope of doing so. The use of a physician’s clinical skill and judgment for purposes other than promoting an individual’s health and welfare undermines a basic ethical foundation of medicine — first, do no harm”.  Yet physicians do participate in executions often using their respect for the criminal justice system as their rationale.

The push to let the need for justice overwhelm the ethics of medicine is and will continue to be strong in the Boston Marathon bombing.  It ought to be resisted.

Dzhokhar Tsarnaev, an alleged bomber, is now a patient.  He is also the alleged suspect in a grave act of terror.  There is a critical need for federal and state law enforcement to speak with this patient.  It is not known whether he and his brother acted alone, whether subsequent actions have been set in motion, and whether there is any continuing threat.  But this is a young man who is gravely wounded, has lost much blood, and is sedated in an Intensive Care Unit.

Nothing has been reported on this patient from the hospital to the public.  That is appropriate as the care of a patient is surrounded by confidentiality, even when alleged to have committed a heinous crime.  But, it is certain that his medical status is not a mystery to the law enforcement personnel who surround his bed and guard his person.  They need him to speak now.

It is not the norm for tertiary care physicians at one of the nations premier hospitals to be involved in the care of a prisoner.  Their obligation is only to that patient, to be certain that his health is not compromised by the pressures of the law enforcement and legal staff.  When he is medically able he should most certainly be questioned by the authorities.   The job of his doctors and nurses is to be certain that he can reach that point. We should not ask them to do otherwise.

N Dubler  LL.B  Division of Medical Ethics, NYU Langone Medical Center

AL Caplan  PhD  Director, Division of Medical Ethics, NYU Langone Medical Center

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