Torture and the Regulation of the Health Care Professions

Abstract

Stories about doctors involved with torture routinely contain statements that doctors are bound by a "code of ethics" that prohibits them from participating in torture. The question is, though, of what use is the code of ethics if doctors are a necessary part of torture and torture is practiced by 150 countries? Is there a disconnect between conditions that require the presence of a doctor and conditions under which the code of ethics applies? Are there two kinds of doctors, those that can assist in torture, and those that cannot? Are there laws regarding torture that exempt doctors? I examine those questions in this paper. In the first section I identify the laws that prohibit torture, and then briefly describe the concerted efforts of the Executive Branch of the United States Government to disentangle the U.S. from its legal obligations not to torture. I intend to show there are no exemptions from the laws on torture for the health care professions (HCP). In the second section I describe the existing regulation of the health care professions, distinguishing the regulation of medical doctors from other health care professions, and describing the discrepancy between medical training and the license to practice given to medical doctors by their licensing authority. Although doctors are only trained (competent) in a few of the many known health care modalities, they are legally competent to undertake and manage all but a few of the modalities. This points to one of the themes of this paper, that the rhetoric and regulation of medicine are not coherent. In the section that follows I identify and discuss the ethical code that is referred to by journalists, lawyers, human rights activists, doctors, historians, and other experts when discussing the presence of health care professionals before, during and after torture. I conclude it is weak, has no legal authority, perhaps being nothing more than a reference to a character trait of some HCPs, and is therefore insufficient as regulation of the problem of HCPs and torture. Finally, I propose two independent regulatory approaches to the problem of HCPs and torture. I begin with the observation that HCPs are regulated by the states, that state-based regulation does not by design look beyond state borders, and that it fails on two fronts. First, it does not distinguish between the two types of employment facing its graduates, work primarily for patients, or primarily for an institution. Beyond the general training those whose primary loyalty will be to patients should be on one track, those whose primary loyalty will be to institutions should be on another track, and the licensing scheme should recognize that. Second, the legally mandated adherence of the licensee to a code of ethics is weakened to virtual non-existence at the state border. The state should criminalize torture for every HCP that trains or ever has privileges in the state. Each of these failures or inefficiencies can be remedied by statute in such a way that the state functions to implement the otherwise weak code of ethics.