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AUTHOR'S PROOF
Metadata of the article that will be visualized in OnlineFirst
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Article Title
Communitarian Bioethics: Three Case Studies
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Springer Science+Business Media New York 2014 (This w ill be the copyright line in the final PDF)
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Society
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Corresponding Author
Gross Michael L.
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University of Haifa
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School of Political Sciences
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Haifa, Israel
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[email protected]
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AUTHOR'S PROOF
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SYMPOSIUM: THE ACHIEVEMENT OF AMITAI ETZIONI
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Communitarian Bioethics: Three Case Studies
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Michael L. Gross
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Commenting on the tension between autonomy and the common good, Amitai Etzioni explains that “… when autonomy must be much curbed for minor gains to the common good, responsive communitarianism suggests autonomy should be given the right of way, while public policy should lean in the opposite direction if the gains to the common good are substantial and the sacrifice of autonomy is minimal.”1 While the “common good” is an elusive concept, Etzioni fleshes it out to include “…conditions under which individuals have to accept various sacrifices for the good of all…” such as the protection of the environment, basic research, homeland security and public health.2 Similarly, other communitarian writers emphasize special attention to the local community, “the welfare of society as a whole,” the collective good, common interests, solidarity, reciprocity and mutuality.3 These ideas are important for communitarians because they anchor an individual’s well-being and, indeed, his or her very identity within the thick social networks of the community. From the perspective of responsive communitarianism, communities build individuals just as much as individuals build communities. The process is dynamic and knows of no prepolitical phenomenology whereby freely floating independent and autonomous persons coalesce and construct a political community. Communitarianism, as it were, turns liberalism on its head.
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The impact of communitarianism on bioethics, particularly Anglo-American bioethics is striking. Modern bioethics was born in the 1960’s, an era of sophisticated technology and rampant individual self-determination. When it was possible to offer individuals the option of prolonging life or choosing death, the liberal state was stymied. It could not guarantee life and liberty if an individual chose to die with dignity. Something had to give and soon the state surrendered its duty to protect life in favor of individual autonomy. The ramifications were widespread and individuals gained the right to unilaterally control their organs, their genome and, indeed, their health care in general. In response, communitarians began to ask after the interests of the community and of the common good. Organ transplantation was a favorite subject. Citing a chronic shortage of organs, some American policymakers warmed to the European “opt-out” transplant policy. If an American could only donate an organ by specific consent (i.e. “opt-in”), his European cousin was assumed to tender consent unless specifically asking to opt-out. As a result, organ transplantation in many European states flourished.4 Organ transplant defines the common good in terms of general health and the community in terms of national boundaries. But other issues are more locally focused. The distribution of health care, for example, may be sensitive to community needs by allowing a secular community to use some of its health care budget for fetal monitoring and abortion while permitting a religious community to use the same funds for the sophisticated care for impaired newborns. In all of these discussions several questions stand out. First, what is the substantive content of the common good? For communitarian bioethics it is usually some measure of health. Health, in turn, may refer quality of life, life expectancy or the number of lives saved by one policy or another. Health, too, may vary among
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Etzioni, A. 2011. “On a Communitarian Approach to Bioethics.” Theoretical Medicine and Bioethics 32(5): 363–374, at page 370. 2 Etzioni A. 2011. “Authoritarian versus Responsive Communitarian Bioethics.” Journal of Medical Ethics 37:17–23, at page 22. 3 Callahan, D. 2003. “Individual Good and Common Good: A Communitarian Approach to Bioethics.” Perspectives in Biology and Medicine, 46 (4): 496–507; Chadwick, R. 2011. “The Communitarian Turn: Myth or Reality?” Cambridge Quarterly of Healthcare Ethics 20: 546–553. M. L. Gross (*) School of Political Sciences, University of Haifa, Haifa, Israel e-mail:
[email protected]
English, V. 2007. “Head to Head: Is Presumed Consent the Answer To Organ Shortages? Yes.” British Medical Journal 334 (7603): 1088.
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In direct violation of the bioethical principle of autonomy and informed consent, the 1996 Israel Patient Rights Act permits an ethics committee to treat patients against their express wishes when treatment will “significantly improve” a patient’s condition and there are reasonable grounds to suppose that, after receiving treatment, the patient will give “retroactive consent.”5 The sequence of these conditions point to a peculiar communitarian phenomenology whereby patients express their preferences autonomously, encounter another set of preferences supported by the community and then change their preferences accordingly. Moral dialogue comes after the fact. First, the ill patient is treated by force. Only later might patients give consent after they better understand the motivations of the community. Although rarely exercised, the IPRA is a bold communitarian experiment even more intrusive than “optout” organ transplant schemes. Once a patient expressly opts out and refuses permission to donate an organ, no further measures are taken. Under IPRA, however, the refusing patient is treated with the hopes that she will modify her preferences. As we look at disagreements between the wishes of patients and their physicians we see that they turn on either disputed facts or disputed values. When patients refuse medical treatment because they do not understand the risks of non-treatment or overestimate the prospect of pain then their disagreement with caregivers turn on disputed facts. Once a patient understands the facts surrounding proposed treatment, a reasonable patient will usually opt for medical care. If they don’t, then IPRA allows physicians to intervene. Here physicians act paternalistically and in the patient’s best interest usually understood in terms of a longer life or better quality of life. While disputed facts often explain many refusals to accept treatment, other refusals hinge on conflicting values. A patient may well understand the issues at stake but prefer a shorter life rather than a longer life with a disability. Autonomy oriented nations allow this patient to die. IPRA does not and might, instead, insist on imposing lifesaving treatment. In doing so, the committee not only strives to serve the patient’s best interest (i.e. his life) but also that of the community. The preservation of life may serve community interests in several ways. First, a religious community may have a vested interest in the sanctity of life. While Israel is not a strongly religious community, religious political parties maintain a hand in some legislation. The results are mixed and often contradictory. While the right to die remains much more tightly regulated in Israel than in Western nations, Israel has among the world’s most liberal abortion regulations.6
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The Israel Patient Rights Act
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communities. In one it may mean control over one’s body; in another it may mean large numbers of children to ensure the community’s survival. Survival raises another aspect of the common good: security. Sometimes health and national security conflict. This is a feature of military medicine I will explore below. Apart from conflicting elements of the common good inherent in communitarianism, we must also ask: To whom does the notion of community in “communitarian” refer? For many communitarians, community interests are the aggregate of individual interests. Here communitarianism overlaps with utilitarianism. An opt-out European system of organ transplantation serves the “community” or “the nation” because more lives are saved than in an American opt-in system. The conflict surrounding transplant policy turns on the weight accorded individual interests (autonomy) and aggregate interests (the common good). But the common good also may be more than aggregate interests and correspond to something similar to Rousseau’s General Will (in contrast to the Will of All). The General Will invests the collective with a good of its own whose interests may supersede utilitarian notions of justice. This community may be expansive (the nation-state) or parochial (a religious or ethnic group). These interests, too, may conflict. To elaborate these issues and the dilemmas they pose, I examine three distinctive cases. The first is the Israel Patient Rights Act (IPRA) an utterly unique piece of national legislation that allows an ethics committee to override the informed decision of competent patients and treat them against their will. The committee acts for two reasons. First, to save the patient’s life and in the normative order characterizing Israel, life trumps autonomy. Second, the committee’s paternalism serves the interests of a community that is reluctant to let its members die. The second case considers medical care in the military when resources are scarce and medical personnel must treat compatriots, allies and enemies. Justice demands the most efficient care, that is, care to save the most lives. Communitarianism, however, makes room for what Etzioni calls “particularist” obligations incumbent upon friends, family and community to sometimes override considerations of utilitarian justice. Finally, I turn to force feeding detainees. Here, military doctors and civil libertarians lock horns as some doctors struggle to save lives while the latter work to safeguard a detainee’s right to refuse food. Force feeding is not merely a dilemma that pits life against autonomy. Rather it raises a raft of issues about the place of national security (the common good) and the nature of autonomous consent that are central to communitarian bioethics.
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5 Israel Patient Rights Act. 1996. (§15.2) http://www.abiliko.co.il/index2. php?id=1520&lang=HEB. (Hebrew). 6 Gross, M. L. 1999. “After Feticide: Coping With Late-Term Abortion in Israel, Western Europe, and the United States.” Cambridge Quarterly of Healthcare Ethics 8: 449–462.
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Military Medical Care
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During war, military medical care is subject to the rule of impartiality: “…only urgent medical reasons will authorize priority in the order of treatment to be administered,” declare the 1949 Geneva Conventions.10 Moreover, continue the commentaries, “each belligerent must treat his fallen adversaries as he would the wounded of his own army.”11
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This is a huge calling for the community. It might even be presumptuous. But it is precisely what Israel’s Patient Rights Act intends to do. Under these circumstances, the collective voice, represented by committee deliberations, looks to persuade the individual to act in his own best interest. But “persuade” is misleading. While John Stuart Mill allows, if not demands, that one “remonstrate, reason, persuade or entreat,” one may never compel. Communitarian dialogue pushes one step further. Its purpose is to alter preferences in the direction of the collective voice. But responsive communitarians sometimes avoid the hard question: What if the individual doesn’t listen? When responsive communitarianism fails to modify conflicting preferences through democratic participation or moral dialogue one is left with either living with the differences however much they may harm the public good or imposing community preferences. Etzioni rightly refers to this as “authoritarian” communitarianism but one wonders whether responsive communitarianism has any fallback position when responsiveness fails. The Israel Patient Rights Act demonstrates that some institutionalized form of coercion might be necessary when dialogue fails. This is precisely what ethics committees in Israel are empowered to do. Coming from a community deeply concerned about the lives of its members, however, theirs is a gentle form of paternalism, more benign, less threatening and more likely to be understood and accepted than overt coercion. As it both engages and persuades patients, IPRA shows how collective interests push past utilitarian concerns to embrace collective interests that do not always square with the most basic individual preferences about life and death. IPRA illustrates how a community dedicated to the sanctity of communal life develops institutional mechanisms (albeit gentle) to keep patients alive against their will. Medical care in the military also seeks to keep individuals alive but faces a difficult challenge when caregivers must choose among members of different communities.
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More interesting than religion, however, are the collective interests of what was once a socialist state that retains it collectivist mentality. Israel has often been described as a collectivist state. Since its inception, write Horowitz and Lissak, “… the commitment to ideological goals was defined … as dedication to serving a concrete collectivity… This could be the nation or class… movement or party [that] demanded from the individual to be prepared to sacrifice personal interest and put him or herself at the service of the movement which embodied the needs of the collectivity.”7 Collective solidarity—generated by corporate religious beliefs and by forced communal isolation, anti-Semitism and the Holocaust—survived even as many Jews abandoned Orthodox religion in favor of liberalism, nationalism and socialism. Although collectivism is today showing cracks, it remains an important norm so that collective concerns often override individual interests. Compulsory military and reserve service through middle age and high taxes, for example, remain the norm. Immigrants are encouraged to settle in outlying areas to meet security needs or create desired demographic balance. Unusual restrictions on the private sector remain. Over 93 % of the land in Israel, for example, is held in public trust and is not, nor cannot be, privately owned.8 Racist political parties are subject to disenfranchisement. And, patient rights are restricted. It is important to emphasize that a collectivist mentality is not solely a utilitarian concern for the greatest good for the greatest number. Collective consciousness represents more than the sum total of the interests of individual constituents. Instead, communities gain an ontological status, ethos and uniqueness of their own. Well-functioning communities engender interdependence, mutual concern, the common good and the expectation that individuals will, when necessary, subordinate (and eventually modify) their self-interest for the good of all. Communitarianism is not is anti-individualistic nor does it entail disrespect for autonomy. On the contrary, some form of collective consciousness is necessary to completely avoid anomie in modern society. The paternalism of IPRA repersonalizes amorphous individuals by making them the object of intense concern by members of the community. Regard for the individual reaffirms his sense of worth, selfesteem and individuality. In doing so, the community provides a “moral voice” that allows individuals to gain the perspective necessary to make decisions that best serve individual and collective interests. “Hence,” writes Etzioni, the pivotal import of the voice of communities in raising the moral level of their members.”9
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Horowitz, D. and Lissak, M. 1989. Trouble in Utopia: The Overburdened Polity of Israel. Albany, NY: SUNY Press, 111. 8 ILA (Israel Land Authority). n.d. Glossary. http://www.mmi.gov.il/ static/milon.asp (Hebrew). 9 Etzioni, A. 1995. “On Restoring the Moral Voice.” Pp. 271–276 in Rights and the Common Good: The Communitarian Perspective edited by A. Etzioni. New York: St. Martins Press, at page 273.
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Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Article 12. Geneva. 11 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Commentary. Article 2, § 2A, Geneva.
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contractual bond that calls for “personal concern, loyalty, interest, passion and responsiveness to the uniqueness of loved ones, to their specific needs, interests [and] history.”13 Guided by preferential and discriminatory principles, special obligations toward friends, family and compatriots inevitably raise questions of distributive justice: what if others are in greater need of care and attention? Although extreme, this question may arise in wartime. Special duties of care reflect moral principles that operate independently of universal principles of justice. Friends and family should aid one without expectation of reciprocity, often at great personal cost and when knowing that the same aid might benefit a stranger more.14 This is a common intuition. To think too hard about aiding a stranger when the life of one’s family or friends is in danger is, as Bernard Williams famously put it, “one thought too many.” Whether medical care for non-compatriots is one thought too many depends upon how we understand the military community. Military sociologists distinguish between primary and secondary bonding. Primary bonding reflects the close and constant personal ties between primary group members and their immediate leaders at the platoon level (40–50 soldiers). Secondary bonding binds group members to the larger military organization to which their small unit belongs and is characterized by institutionalized, impersonal and formal ties.15 Primary groups are an essential feature of an effective military organization and engender the loyalty, assistance, self-sacrifice and commitment needed to create successful fighting units. Primary groups are not merely a collection of well-coordinated, self-interested individuals, but a cohesive band knitted together by “mutual affection, interdependence, trust, loyalty … peer bonding and teamwork.”16 Like other small communities, primary military groups help ensure individual and collective survival and provide an important dimension of personal identity. For these reasons, primary groups generate “particularistic” or special obligations to members of one’s community that are not extended to everyone.17 In the institutionalized settings that characterize the higher echelons of military medical care, on the other hand,
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Clearly, this is a liberal rule that treats each patient equally without regard to the community to which one belongs. Its goal is to maximize health, in this case the number of lives saved. In wartime, however, impartiality may fall to the common good. When medical resources are very scarce, medical personnel may sacrifice those seriously wounded to salvage those less wounded. This is battlefield triage and necessitated by the inability to treat all the wounded as medically required. Battlefield triage may result in a net loss of life if many severely injured but treatable casualties die so that fewer salvageable soldiers can return to the battlefield. An appeal to the common good justifies battlefield triage: by treating only those who can return to duty and fight, doctors best preserve military resources and increase the chances of prevailing against an enemy. This calculation is fairly straightforward and ethically sound. More complex is a situation that would allow medical personnel to treat compatriots first irrespective of medical need and in direct violation of the Geneva Conventions. Consider a case wherein two soldiers, one compatriot and one ally, (an Iraqi or Afghani ally for example) reach a battalion aid station at the same time. Consider further that the compatriot might lose a limb while the ally might lose his life. When thinking about whom to treat first, medical personnel face a conflict. On one hand, they acknowledge the principle of non-discrimination and medical impartiality. On the other, they recognize a conflicting and often overriding obligation to provide their compatriots with the best medical care possible. This dilemma highlights some of the salient differences between liberal and communitarian bioethics; between justice and the ethics of care. The demands of justice are straightforward and turn on impartially, non-discrimination and utility maximization. The Geneva Conventions echo these conditions clearly. On the other hand, moral philosophy has always taken note of “associative obligations” that reflect the overwhelming moral importance of intense, interpersonal relations among members of a small, tightly woven and interdependent family or community that demands preferential care for those who are close.12 At one level these duties are grounded in commitments of mutual aid: friends implicitly agree to help one another in times of need. In other instances, there are good social reasons for associative obligations because they preserve such institutions as friendship and family that are essential for well-being and human survival. At another level, however, is an “ethics of care” that transcends mutual aid and social utility and invokes unconditional duties that certain individuals owe one another by virtue of a special relationship between those who can provide life sustaining care to those who need it. The ethics of care invokes an emotive rather than
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Simmons, A.J. 1996. “Associative Political Obligations.” Ethics 106(2): 247–73.
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Held, V. 2006. The Ethics of Care. Oxford: Oxford University Press, 95. 14 Mason, A. 1997. “Special Obligations to Compatriots.” Ethics, 107(3): 427–47. 15 Kirke, Charles. 2010. “Military Cohesion, Culture and Social Psychology.” Defense and Security Analysis 26(2): 143–59; Siebold, G.L. 2007. “The Essence of Military Group Cohesion.” Armed Forces & Society 33: 286–95. 16 Siebold, G.L. 1999. “The Evolution of The Measurement of Cohesion.” Military Psychology 11: 5–26, at page 15. Also, Siebold, G.L. 2006. “Military Group Cohesion.” Pp. 185–201 in Military Life: The Psychology of Serving in Peace and Combat: vol. 1, Military Performance, edited by T.W. Britt, C. A. Castro and A. B. Adler. Westport, CT: Praeger. 17 Etzioni, A. 2002. Are Particularistic Obligations Justified? A Communitarian Examination. The Review of Politics 64: 573–598.
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Force Feeding
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It might be odd to think that force feeding has implications for communitarian bioethics but they are twofold. First, force feeding raises compelling questions about the nature of consent. Force feeding is intensely problematic because strikers do not give their consent either to eating or to the accepting the medical procedures that prison officials employ to feed patients. At Guantanamo Bay Cuba, for example, competent and conscious detainees are strapped to a chair and force fed with a nasogastric tube after they refuse food for more than 48 h. In California and in Israel physicians received permission to artificially feed hunger strikers after they lost consciousness. To do so, the authorities often cite defective consent on the assumption that prisoners were ordered to hunger strike by their movement’s leaders. I will suggest that such orders may
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any number of other children’s lives. Nevertheless, associative duties and an ethics of care requires attention to the plight of strangers and reflect concern for what Held calls “moral minimums” of care and respect for human rights.18 Medical personnel, for example, may recognize this when medics report a readiness to stabilize or sedate severely wounded enemy soldiers while they first attend to the less serious wounds of their comrades.19 It also explains why medical personnel might treat seriously wounded compatriots before seriously wounded enemy soldiers but refrain from treating compatriots once they have already begun to care for noncompatriots. Apart from a justified concern that withdrawing care is akin to murder, it is also clear that medical personnel enter into special relationship once they begin treating any wounded soldier. This new relationship carries strong obligations of care of its own that cannot be readily abandoned. Care for compatriots and, in particular for fellow members of a closely-knit community, highlights the communitarian turn at its strongest. In contrast to the utilitarian concerns for the common good that fuel battlefield triage, associative or particularist obligations animate battlefield care and conflict with many prevailing notions of justice. When medical workers suspend the rights of the medically needy to treat those less needy they hope to strengthen the security of a community expansively defined to include the nation state. When they treat compatriots ahead of those more medically needy they appeal to associative obligations within a community tightly circumscribed to exclude all non-members. But battlefield care is not the only aspect of military medicine that highlights communitarian norms. Force feeding is another.
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the duties of friendship and comradery weaken. In the process, preferential treatment for primary group members falls to impartial standards of care typically demanded of the medical profession. Here, the duty of care to comrades-in-arms recedes in face of the immediate relationship between a health care professional and her patient. As such, the prevailing model of care reverts to one of strict, impersonal professionalism that demands that physicians treat impartially according to need. The ethical demands on caregivers, in other words, should vary according to the strength of primary bonding. As primary bonds weaken and secondary bonds strengthen, the universal duties of justice replace the parochial ethics of care. Transposed to the battlefield, the associative or particularistic obligations have important ramifications. When compatriots and non-compatriots each suffer equally severe life-threatening or disabling injuries and each has a similar chance of recovery and of returning to duty then impartial justice might suggest a lottery to decide which to treat first. Although impartial, a lottery ignores the moral significance of the duties imposed by primary group membership. These duties, rather than a lottery, may serve as a legitimate “tie-breaker” when all other factors are equal. When injuries are manifestly unequal, associative obligations have no place. Consider a compatriot suffering from a very light wound and an ally suffering from a life-threatening wound. Here, particularistic obligations fall before the duty of beneficence, that is, the obligation to aid others when the cost is reasonable and the danger to strangers is very great. It is only when injuries are moderately disparate that the force of particularistic obligations are salient. These are the hardest cases. Consider a case where compatriots face disfigurement or loss of limb while non-compatriots face loss of life or a caregiver must choose between the life of one compatriot and two (or more) non-compatriots. Impartial, need-based care demands treating the non-compatriot first. Associative obligations, on the other hand, emphasize the prior and superior moral duty to treat compatriots first. Among compatriots, saving lives is usually more important than saving limbs. If forced to choose between saving the life of one soldier or the limb of another, the former is morally preferable. When faced with saving the life of a non-compatriot or the limb of a compatriot, limb may trump life. Similarly, it may be morally permissible to save the life of one compatriot rather than the lives of two or more strangers. The moral reasoning is analogous to that of a parent who, acting on the compelling demands of the ethics of care will protect the welfare of her child at the cost of many other lives. Associative duties direct a caregiver to give preferential aid to those with whom the primary bonds of friendship or kinship are strongest. When lives are at stake, our duties to friends and family are clearest and it is easy to imagine how a parent’s duty to save his own child from harm will outweigh almost
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Held, Virginia. 2006. The Ethics of Care. Oxford: Oxford University Press:71. 19 Dakar, D. 2009. “How Israeli Medics Treat the Wounded.” Unpublished seminar paper
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Getting there, however, requires a willingness on the state’s part to force feed. Recent cases of hunger striking in Israel and California illustrate this point. In Israel, some Palestinian inmates struck for better prison conditions while a few struck for release from detention after having been rearrested for violating parole. Hunger strikers in Israeli prisons, like those in British prisons, sought limited but highly symbolic gains. They did not strike to evict Israel from the West Bank and Gaza. In California, hunger strikers were not political detainees but gang members protesting conditions of solitary confinement. They did not demand release. Strikers’ demands, therefore, were relatively modest, and in each case the authorities allowed the prisoners to continue their strike. At the same time, however, the authorities also made it clear that they would feed prisoners artificially if their life was in danger. This would not require the violent means that US authorities use to force feed detainees at Guantanamo. Instead, medical personnel would artificially feed unconscious patients by placing a feeding tube directly into their gut. Israeli doctors further revived striking patients with injections of vitamin B in an effort to gain their consent. Resolution came differently in each case. In Israel, the authorities chose to partially accommodate detainee demands by releasing one prisoner and promising to release another. In California, inmates capitulated as the state obtained permission from the courts to artificially feed striking prisoners.21 It should be clear that any attempt to feed a prisoner against his or her express consent violates the principle of autonomy. Nevertheless, one justification for force feeding draws on the sanctity of life, a particularly salient value in Israel and one which surfaces just as strongly in the Israel Patient Rights Act. Often, doctors are simply unwilling to allow a preventable death. Second, security considerations loom if authorities believe that Palestinian deaths in prison would lead to results no different than those caused by Irish deaths. Although authorities eventually compromised with strikers, it was clear that force feeding gained support as a means to mitigate a threat to national security. Following the resolution of the hunger strikes, in fact, the Israeli ministry of justice formulated a draft law to permit the forced feeding of political prisoners when their life was in danger and when necessary to protect the life of the prisoner, the safety of the prison
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not necessarily negate informed consent as communitarians might understand it. Second, force feeding raises issues of national security in the starkest manner. One reason for force feeding is obviously to preserve the life of the detainee. This is important for three very different reasons. First, prisons across the world recognize their custodial obligation to preserve the life of prisoners entrusted to their care. Second, dying hunger strikers may, upon dying, conceal important intelligence information, a scenario unlikely among the long incarcerated inmates at Guantanamo. Third, the death of hunger strikers may bring adverse political repercussions as the people they represent riot or the movement they serve escalates their military and political activities. The last two scenarios, loss of intelligence or adverse political effects, impinge upon national security and the collective good in the most obvious way. As such, a communitarian bioethics may have cause to endorse force feeding. Northern Ireland highlights the dilemmas of force feeding as imprisoned members of the Irish Republican Army undertook a prolonged hunger strike in 1981. While strikers did not demand the British evacuate Northern Ireland, the inmates’ plea for political recognition would have required prison authorities to allow prisoners to wear civilian clothing instead of prison uniforms and to conduct educational sessions among their members. After the British government refused unequivocally to negotiate with hunger strikers or accord them any measure of political recognition, ten inmates starved to death. The results for Britain were politically catastrophic. Over 100,000 residents of Northern Ireland took to the streets, an unprecedented show of popular support that revitalized the IRA. World opinion recoiled at Britain’s policy and vigorously condemned the British government. In the aftermath of the strike the IRA was invigorated. Its political wing, the Sinn Fein successfully campaigned for the British Parliament while the military wing escalated and intensified its terrorist and military activities.20 Here the common good diverges. From the standpoint of Britain, the sovereign ruler of Northern Ireland, national security should have demanded any resolve but the death of hunger strikers. This left Britain two options: accommodate strikers or force feed them. From the perspective of the Catholic community, on the other hand, national security was synonymous with anything that undermined Britain’s resolve. This left Catholics two options: strike to the death or seek accommodation. Responsive communitarianism with its emphasis on dialogue and shared interests suggests the latter, and indeed, accommodation is the option of choice. Accommodation often serves each side’s collective interest at the least cost.
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English, R. 2003. Armed struggle: The history of the IRA. Oxford: Oxford University Press, 263–274; 280–83
Even, D. 2013. “Israeli Doctors To Give Washington Tips on Dealing With Hunger Strikers Invitation Comes As U.S. Administration Under Fire Following The Force-Feeding of Guantanamo Bay Detention Camp Hunger Strikers.” Haaretz, Jul. 8, 2013, http://www.haaretz.com/news/ national/.premium-1.534413; Khoury, J. 2013. “Analysis: For Palestinian Prisoners in Israel, Hunger Strikes have become a Winning Strategy.” Haaretz, Apr. 24, 2013, http://www.haaretz.com/news/diplomacydefense/for-palestinian-prisoners-in-israel-hunger-strikes-have-becomea-winning-strategy-1.517263. 21
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mind imprisoned gang members who were probably taking orders from the leaders inside or outside the prison, prison officials argued that strikers’ DNR orders were coerced and invalid. And, if so, doctors might permissibly feed inmates artificially to save their lives. Accordingly, one might make the same argument regarding Palestinian militants. In these cases, too, detainees were probably taking orders from their religious or political leaders. By this logic, no detainee DNR is valid and the authorities might permissibly force feed any political inmate without violating his or her autonomy. Force feeding, in other words, is not forced because the patient did not autonomously refuse food. Any attempt to defeat autonomy by arguing that political inmates do not meet the conditions of informed decision making should be resisted on communitarian grounds. While some might construe autonomous decision making as radically individualistic—the lone patient weighing information impartially and making a decision free from any interference— consent is, in truth, a social construct, the product of one’s shared political, social and moral environment. Personal decision making is always responsive to norms of fidelity, social cooperation and peer pressure, religious or political duties, mutual responsibility and personal well-being. While some might be less comfortable attributing consent to those who accept payment for services (e.g. organ donors) or those responding to sanctions or punishments (e.g. taxpayers or hunger strikers), such conclusions are overly severe. A person’s motives are often mixed and a tax payer or hunger striker who agrees to comply may be acting from collective responsibility, political or religious duties and fear of sanctions. None of this impairs autonomous decision making but is, indeed, part and parcel of the process. At the same time, individuals may exercise “second order autonomy” when they freely entrust their decisions to others.24 This, too, is a form of consent and particularly salient when hunger strikers (particularly those who belong to a military organization) entrust their leaders with the task of pursuing their collective good and keeping strikers’ demands sufficiently feasible to merit serious attention by the state. There is no reason to think that the decision to participate in a hunger strike is not given freely unless accompanied by overt coercion, that is, the threat of physical or severe psychological harm. In these circumstances, agents lose their power to decide and can no longer act freely. Is this true of hunger strikers? We really do not know. In which case, their refusal to accept any treatment is valid regardless of any orders they may have received from above. Here one sees how solidarity and mutual responsibility inform a person’s medical decision. In no way is such decision making impaired. To force feed, the authorities must recognize the integrity of a person’s decision
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population and/or “any consideration that affects national security of public safety.”22 Hunger striking detainees demonstrate how in rare cases national security and the public good may override an individual’s autonomy and right to informed consent. Nevertheless, the proposed Israeli law does not serve the interests of the striking community whether Palestinian, Irish Catholic or of California gang members. Still, it forces a modus vivendi conducive to communitarian concerns. Although armed with a force feeding law, Israeli physicians should remain reticent about grossly violating a competent patient’s informed choice to refuse food. And, in fact, during the last crisis, physicians used vitamin injections to revive a striking patient to gain his consent. The prospect of force feeding combined with the prospect of accommodation led some patients to consent to feeding. The government could offer both a carrot (accommodation) and a stick (force feeding). This eventually led to a compromise. Officials in California were less accommodating because, it appears, national security interests were not at stake and they were secure in their conviction that force feeding would not violate informed consent. On the last point they were mistaken. Despairing of ending the hunger strike and refusing to accommodate prisoner demands, California prison officials turned to the courts for permission to force feed inmates. Unlike the Israeli law which reluctantly acknowledges the suspension of a patient’s right to informed consent for reasons of sanctity of life and national security, the Americans eschewed this communitarian argument and sought to frame permissible force feeding squarely within the liberal tradition by declaring prisoners’ informed consent defective. In response to the State’s petition, the California court ruled it permissible to feed hunger strikers if a) a hunger striker is at risk of near-term death or great bodily injury OR b) a hunger striker is now incompetent to give consent AND c) the striker has not previously executed a valid “Do Not Resuscitate (DNR) order OR d) the DNR order was the result of coercion.23 Strikers, knowing perhaps that they would be fed and not allowed to die, called off their strike after 2 months without gaining any substantial concessions. Read closely, the California court ruling not cogent. While it pays respect to autonomy, it leaves a glaring loophole, namely coercion. Although an inmate may leave a witnessed and valid directive instructing the medical staff to refrain from treatment, including artificial feeding, doctors may override these instructions if inmates were coerced to strike. Having in
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Israel Ministry of Justice. 2013. Proposed Government Change to Prison Regulations §1 (b), (d). Also, Efrati. I. 2014. “Israel’s Plan to Force-Feed Hunger-Striking Prisoners up for Public Critique; Israeli Medical Association Says Forcing Hunger-Strikers to Eat Is Tantamount to Torture.” Haaretz, Mar. 3, 2014. 23 Plata v Brown, United States District Court, Northern District of California, C01-1351 THE, 19-Aug-13.
24 Beauchamp T. L. and Childress, J. F. 2001. Principles of Biomedical Ethics, 5th Edition. Oxford: Oxford University Press, 259.
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Communitarianism and, in particular, responsive communitarianism, offers some penetrating insights for contemporary bioethics. In spite of growing moderation, one still finds personal autonomy and informed consent at the head of prevailing bioethical principles. There are two aspects to this debate. On one hand, autonomy, like identity, is not the product of radical individualism. Meaningful autonomy remains anchored in respect for community norms. This is one lesson of force feeding. On the other hand, an appeal to the common good alone is insufficient to temper the forces of autonomy and individual self-determination that animate much of medical practice today. Instead, the idea of the common good requires considerable elaboration to differentiate between the aggregate good of the community and the intrinsic good of the community. The Israel Patient rights law illustrates this difference while suggesting that apart from moral dialogue, gentle persuasion and indeed coercion may
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be necessary to alter an individual’s preferences. Responsive communitarianism must recognize this fact. Responsive communitarianism must also recognize that community interests diverge. A minority community’s interest may diverge from that of the state and, indeed, threaten state security. Here, too, coercion may supplant dialogue in rare cases. Force feeding exemplifies the merits of dialogue and accommodation backed up by coercive measures. The divergence of community interests also characterizes medical care on the battlefield. When physicians decide to treat moderately wounded compatriots ahead of critically wounded compatriots to return the former to duty, they appeal to the common good of national security. Inherent in their appeal is the understanding that all the wounded, whether moderately or severely injured, are part of the same moral community. Military surgeons operate under the assumption that their compatriots and their patients support the principles of battlefield triage. And, indeed, this is probably so. Military medical personal also assume that by treating the least seriously wounded and returning them to battle they are hastening the war’s end and, ultimately, saving more lives. When treating allies or other non-compatriots, however, physicians face a must harder choice. They must weigh considerations of justice (saving the most lives) against the primary obligations they owe members of their community. In many cases, these obligations reinforce one another so that by serving justice, one serves individual, community and national interests. In other cases, like the three described here however, these duties conflict and an ethic of cares overrides the principles of justice. These cases pose among the hardest challenges for communitarianism if, indeed, communitarianism is truly responsive to the particularistic obligations that communities, like families, impose upon their members.
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and then seek to override it by appeals to the collective goods such as national security. Force feeding in Israel, California and Guantanamo Bay offers some instructive lessons for communitarian bioethics. On one hand, force feeding should be rare for it violates a person’s body, his dignity and his informed choices. On the other, such choices, although enshrined by autonomy, are not sacrosanct; they fall to collective concerns. Defining these concerns is no easy matter for several communities are involved: those of the nation at large and those of the aggrieved community. As such, there is first room to search for accommodation and no compelling reason to force feed striking inmates within days of their decision to refuse food. A period of negotiation relieves physicians of the burden of force feeding and preserves the rights of the state and of the aggrieved group, assuming of course that demands are modest. Usually they are. Hunger strikers in Ireland, Israel, Turkey and elsewhere usually pursue symbolic gains that will resonate among the world community and call attention to their cause rather than undermine the security of the state. Israel and Turkey accommodated strikers; the UK and US did not. And while accommodation can be mutually advantageous, the state nonetheless requires the coercive means to prevent hunger striking when accommodation cannot be reached and when strikers impair public security.
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Michael L. Gross is Professor and Head of the School of Political Science at The University of Haifa, Israel. He has published widely in medical ethics, military ethics, military medical ethics and related questions of medicine and national security. His books include Ethics and Activism (Cambridge 1997), Bioethics and Armed Conflict (MIT 2006), Moral Dilemmas of Modern War (Cambridge 2010), an edited volume, Military Medical Ethics for the 21st Century (Ashgate Publishing, Military and Defense Series, 2013), and a forthcoming book: The Ethics of Insurgency: A Critical Guide to Just Guerrilla Warfare (Cambridge 2014).
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