Friday, November 20, 2009

The Legality of Forced Feedings in Hospitals and Prisons.

The fight for patients' rights is up against three primary forces in US society: the church, the state and the medical industry. (It's my contention that these three entities are vying for jurisdiction over suffering, but I'll leave that to another post.) Any one of them is damaging enough to patient autonomy, but when two of them collude, the imposition on the rights of patients is most egregious.

For instance, I hope to have an article out soon at AlterNet which looks at the Catholic church's imposition on patients' rights at the 600 hospitals they manage throughout the US. The church manages these facilities (and hospices, long-term care homes, and health care networks) according to Ethical and Religious Directives (ERDs) that are written and enforced by the US Conference of Catholic Bishops (recently in the news for having their way with Stupak-Pitts and health care reform). At these health care facilities, patients must abide by the church's doctrine, even though these organizations are about 50% funded by the US government. (Note the hypocrisy of the church for working to prevent public funds usage for abortion, yet collecting a majority of its revenue from the public and using it to impose discriminating health care practices.)

Sterilizations, tubal ligations, STD and AIDS prevention, contraception, fertilization treatments for lesbian or unmarried women, and advance directive requests are all discluded from hospitals' service rosters because of Catholic management. These are not services which only restrict women's autonomy - though abortion does raise the most noise and reduces the conversation to a contested service - but the autonomy of patients on the whole. Forty-eight Catholic hospitals are the sole providers for their communities. And Catholic hospitals are merging with secular ones every day because of the difficult economy.

The USCCB recently revised their ERDs to change artificial nutrition and hydration (ANH) usage. Despite the legality in all 50 states of the removal of a patient from ANH, either by the patient's request or their medical proxy's, the Catholic church will now refuse such removal, claiming that ANH is "obligatory" care. Further, a patient who does not wish to be put on ANH will be, a practice essentially asserting that the Catholic Church has precedent over the rights of every patient.

Another area of society that witnesses the collusion of two of these forces (state, church, or medical industry) in opposition to patient's rights is the penal system. The Lancet, a British medical journal, has two brief articles in their November 21 publication on the issue of force feeding of inmates that I believe greatly resonates with issues of patients' rights in general society, though, as I mentioned, the actors are not church and state but medical profession and state.

The first article by George Annas reviews two new books: Military Medical Ethics: Issues Regarding Dual Loyalties, Workshop Summaries (National Academies Press, 2009) and Interrogations, Forced Feedings, and the Role of Health Care Professionals: New Perspectives on International Human Rights (Harvard University Press, 2009). In part, the article reads (free registration required):

Interrogations, Forced Feedings, and the Role of Health Professionals grew out of another workshop sponsored by Harvard Law School's Human Rights Program. Like the IOM report, the most striking feature of the book is the contrast between the views of the US military and those of human rights groups. Edmund Howe, a leading expert on US military medical ethics, argues that the strongest rationale for military physicians to force-feed hunger strikers is that it respects the prisoners by respecting “the sanctity of their lives”, albeit at the expense of their autonomy. Although he believes that saving the hunger striker's life is the only real argument in favour of force-feeding, Howe concedes that under current protocol force-feeding is initiated long before the hunger striker is in any medical danger, and he has a difficult time justifying force-feeding before it is medically necessary to preserve the prisoner's life or health. By contrast, James Welsh of Amnesty International summarises his organisation's 30-year involvement in the prison hunger strike question, beginning with the Red Army Faction's hunger strikes in West German prisons in 1977. All hunger strikes have their own unique settings and provide ample opportunities for clashes between physicians and prison officials. Welsh's conclusions on Guantanamo are, nonetheless, unequivocal. He describes the methods used to break hunger strikes there as “transparently oppressive” and as constituting “a form of cruel, inhuman, and degrading treatment intended to break the strike and to form part of the stripping away of prisoners' human rights”.

The US Military (the state) is currently ending hunger strikes in Guantanamo and elsewhere (I'll get to a non-military example in Connecticut in a minute) by claiming, "sanctity of life," an argument long used by Catholic and evangelical groups against women's autonomy (reproductive rights) and autonomy of the dying (end of life rights to aid in dying and removal from ANH) to assert that the claiming body (the church) has jurisdiction over the patient, and not the patient. Inmates are strapped down in chairs and via nasogastric tubes, fed Ensure (in three flavors, strawberry, butter pecan, and chocolate, the article states.) The Red Cross and Amnesty International have long considered force feeding as torture. Yet the practice continues.

The issue of "dual loyalty" most resonates with me for it's application to Catholic practices regarding ANH and lobbying for strong a conscience clause in health care reform. Is a physician required to be loyal to the patient, as their profession dictates, or to the state or the church?

The article also asserts that while forced feedings may end at Guantanamo when it closes, those patients on hunger strike will be moved to prisons in the US.

...there are several cases in US courts in which prisoners currently being force-fed are challenging their force-feeding as unconstitutional. These cases raise the question of whether force-feeding is “cruel and unusual punishment” under the 8th amendment, or done in a way that “shocks the conscience” as prohibited by the 5th and 14th amendments—not, as in Guantanamo, whether it is a violation of Common Article 3 of the Geneva Conventions.

Two solutions to the torture of forced feedings are suggested by the article: the Department of Defense of the Obama administration's rescinding of current "guidance" and reassertion of "traditional US military doctrine that no physician in the US military need compromise medical ethics to serve their country," and "the opposing positions of the Department of Defense and the World Medical Association should be brought to a neutral authoritative body, such as the state boards that license US civilian and military physicians" for resolution.

The second brief Lancet article cites a case brought to the Connecticut courts regarding Corrigan-Radgowski Correctional Center inmate William Coleman.

Coleman and his lawyers argue that he has a constitutional right to determine what happens to his body, and the right to refuse medical treatment including resuscitation or assisted feeding. He has been force-fed via a nasogastric tube inserted by a physician on occasions since January, 2008, when Judge Graham issued a temporary injunction that allowed the state to feed Coleman by force. This case is one of several in which prisoners in US states are challenging force-feeding as unconstitutional on varying grounds.
Physicians throughout the world continue to be involved in force-feeding despite its prohibition by the World Medical Association (WMA) in Declarations (to which the American Medical Association is a signatory), and despite the provisions of the Geneva Conventions. The WMA states that the autonomy of prisoners who decide, voluntarily, to refuse food must be respected, provided that their mental capacity to make the decision is unimpaired. Physicians such as military doctors, who might have dual loyalties, should make patients their priority, according to the WMA.
Cases of forced feeding in military prisons like Guantanamo and in civilian prisons like the Connecticut correctional facility resonate greatly with the Catholic church's "forced feeding" in hospitals. Inserting a feeding and hydration tube, an invasive procedure, when the patient or his or her medical proxy deny the procedure is in essence forced feeding. The legal application of these cases to denial of patients' rights in US hospitals is in my mind direct.
Yet, the US has not considered Catholic entities as agents of the state, despite their license to provide social services and their federal funding. However, the state's collusion in "forced feeding" of patients in Catholic hospitals should not be overlooked.

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Blogger angela said...

Excellent piece, Ann. Chilling and smart rawing attn to the similarity of forced feeding of prisoners and of patients who have requested non-resuscitation... I look forward to more on "jurisdiction over suffering".

November 20, 2009 at 1:04 PM  
Blogger L A Neumann said...

Thanks for reading, Angela!

November 20, 2009 at 1:25 PM  

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