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HEALTH AND HUMAN RIGHTS
The Lancet.
February, 2007.
This important collection of essays illustrates some
of the ways in which the delivery of medical services must answer to
human rights principles. It was, after all, the Universal Declaration
of Human Rights which endowed every person with a claim to basic healthcare,
which means a right for their lives to be protected from treatable diseases
and injuries. That imposes a healthcare duty upon their states and – to
the extent that many states cannot cope – upon wealthier nations,
individually and through the United Nations, to come to their aid. This
duty is increasingly shouldered by NGOs, whose personnel, working in
zones of war and famine, face ethical dilemmas which must be resolved
by recourse to human rights rules. Doctors traditionally bound by concepts
of ethics of neutrality and confidentiality is increasingly called upon
to speak out about and against the crime and corruption its members witness
with their own eyes. They may be called upon to bear witness – to
give testimony, even against their own patients. As the world figures
out how to do justice to victims of man-made atrocities as well as natural
disasters, it is timely to examine the moral accountability of the medical
profession.
Precedents tend to be stark and simple: Mengele experimenting with victims
of genocide; army doctors in Chile helping Pinochet’s torturers
to calibrate their electric shock machines, and the like. Direct involvement
in human rights abuses is obviously wrong. Nobody criticizes the Harley
Street doctors who treated Pinochet, although perhaps they should; providing
medical succour to a terrorist on the run now entails, under British
law, a legal duty to inform the police, immediately and in detail. The
Red Cross notoriously kept quiet about Hitler’s concentrations
camps, for fear of being banned from them – a Faustian bargain
now regarded as indefensible. Yet it also kept quiet about the torture
it found at Abu Ghraib, suffering its secret reports to be ignored by
US authorities until one was leaked to the newspapers. Its permanent
presence at Guantanamo is now exploited by the Bush administration as
evidence that there can be no torture in the camp, yet if there has been
the Red Cross fetish for confidentiality would prevent it from telling
anyone other than the torturer. How, in these circumstances, can it provide
a safeguard – the role for which it is given exclusive access to
such camps?
But the fate of Medicins sans Frontier in Darfur – its head of
mission was arrested for sedition when it released his report on sexual
violence – is a reminder that silence may still be a necessary
trade-off for humanitarian assistance in some conflict zones. If aid
workers were routinely called to testify against the perpetrators of
abuses, they would not be allowed entry, or worse still, might themselves
be killed if they witnessed a war crime. There can, in such circumstances,
be no absolute rule, although it is important to identify the scenarios
in which silence, albeit the exception, might be an ethical option. The
mistake which the Red Cross has made is to insist upon absolute privilege:
it should demand that democratic governments waive confidentiality and
permit at least belated publication of its reports into their prisons.
NGOs should avoid knee-jerk commitment to instant reporting (best left
to newspapers) and should acknowledge a responsibility to release findings
that have been double checked and, in appropriate cases, peer-reviewed.
There have been serious cases of false allegations (e.g. the notoriously
invented claim that Saddam’s forces threw babies out of hospital
incubators during the invasion of Kuwait) and some NGOs have left themselves
open to the criticism that they have exaggerated allegations against
unpopular governments in order to raise money or membership.
The new international criminal courts which deal with war crimes have
developed laws of evidence to protect certain witnesses – notably
war correspondents and human rights monitors – whose compelled
testimony may imperil sources or make perpetrators less willing to cooperate.
These rules, which generally allow source anonymity and compel testimony
only if it is crucial to the result of the case, need to be adapted to
take into account the ethical concerns of doctors and nurses and aid
workers who are also potential witnesses. Patient confidentiality is
an acknowledged value, but may have to be overridden in the interests
of sheeting home responsibility for a war crime, whilst medical staff
can be compelled to testify, certainly if their evidence is vital to
cases involving attacks on hospitals or ambulances.
These essays are particularly welcome for their analysis of the South
African cases that have forced drug companies to reduce the price of
vital medicines and of the Indian decisions that infer from the constitutional
right to life a right to primary healthcare and to health insurance.
These “second generation” rights have often been regarded
in the West as unjusticiable, or at least as unenforceable against the
state, but creative lawyers in South Africa and India have found ways
to make them meaningful. Another connection between human rights and
health can be discerned in the evidence of the resurgence of diseases
long thought to have been eradicated, in states which evince no respect
for the civil rights of their citizens. This serves to emphasise the
indivisibility as well as the universality of fundamental rights: freedom
from avoidable illness is as essential as freedom from discrimination
or persecution. That means that medical services must now be delivered
within an ethical framework infused by human rights considerations: dilemmas
will remain, but they will be more acceptably resolved.
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