Professional Ethics in Extreme Circumstances: Responsibilities of Attending Physicians and...

Penultimate Draft(forthcoming in Theoretical Medicine and Bioethics)

Professional Ethics in Extreme Circumstances: Responsibilities ofAttending Physicians and Healthcare Providers in Hunger Strikes

Nurbay IrmakBoğaziçi University

Department of Philosophy

ABSTRACT: Hunger strikes potentially present a serious challenge for attendingphysicians. Though rare, in certain cases there occur a conflict between obligations of beneficence and autonomy. On the one hand, physicians have a duty to preserve life, which entails intervening hunger strike before the hunger striker loses his life. On the other hand, physicians’ duty to respect autonomy implies that attending physicians have to respect hunger strikers’ decision to refuse nutrition. International medical guidelines state that physicians should follow the strikers’ unpressured advance directives. When physicians encounter an unconscious striker, in the absence of reliable advance directives the guidelines advise physicians to make a decision on the basis of the patient’s values, previously expressed wishes and best interest. I argue that if there are no advance directives and the striker has already lost his competence, the physician has the responsibility to resuscitate the striker. Once the striker regains his decision-making capacity, he should be asked about his decision. If he is determined to continue fasting and refuses treatment the physician has a moral obligation to respect this decision and follow his advance directives.

Hunger strike, or food refusal as a form of protest has never been as

prevalent as today. A quick search reveals that an increasing number of people

from all over the world, in various settings, for various reasons go on a

hunger strike, or refuse food to protest or react against the circumstances

they found themselves in [1-4]. Just within the last two years we have seen

several massive collective hunger strikes that have attracted a lot of

attention such as the strikes in California prisons [5], Guantanamo Bay [6],

and Kurdish prisoners in Turkey [7]. Although hunger strikes in absolute terms

are rare, the increasing frequency of hunger strikes seems to suggest that we

might see more cases where the risk of significant harm for participants are

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serious.1 Hunger strikes potentially present a serious ethical challenge for

physicians as obligations of beneficence and autonomy seem to conflict in

caring for hunger strikers especially in custodial settings. On the one hand,

physicians have a duty to preserve life, which, in this context, might entail

intervening hunger strike before the hunger striker loses his or her life. On

the other hand, physicians have a duty to respect the autonomy of their

patients who refuse medical interventions, which, in this case, might imply

that attending physicians have to respect hunger strikers’ decision to refuse

food, and artificial feeding. There are several international guidelines to

assist physicians who attend hunger strikes, and a number of proposals to

solve this dilemma offered by physicians, philosophers, and international

organizations [8-12]. In this paper, among other things I address a situation,

though rare, where current guidelines are too vague to provide sufficient

guidance to the attending physician when confronted with a hunger striker who

is unconscious or otherwise no longer competent. In the absence of clear,

informed, and unpressured advance directives said guidelines leave the final

decision to the physician to judge what is in the striker’s best interest [8-

9]. I argue that using the same moral principles that ground said guidelines,

they can be supplemented so that the physicians have clearer guidance.

Defining a hunger strike

1 Even though there are no available data to support this claim, given that thousands of detainees who went on a hunger strike in the last few years in countries like the US, the UK, Turkey, Israel, and Iran, only a very limited number of hunger strikes was reported to reach a life threatening level for the participants, and even less cases were reported to have fatal consequences.

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Not all food refusals are hunger strikes. A hunger strike is a refusal of

nutrition for a significant amount of time to establish certain goals.2 It is

essentially a form of protest or expressing demands, which is appealed by

detainees as a last resort to raise public awareness and put pressure on the

authorities. Hunger striker must be competent, in full understanding of the

nature of his decision and its reversible and irreversible consequences.

Fasting when it is a manifestation of mental illness, such as clinical

depression or anorexia nervosa, is not a hunger strike. It is rather a medical

condition that should be treated accordingly. Hunger strikes are not always

voluntary. Especially in collective hunger strikes individuals might be

coerced to participate (by their peers), or to end (by the authorities) the

strike. Hunger strike doesn’t have to be total fasting. In most cases hunger

strikers accept fluids, but there are cases where the striker refuses both

food and water. Dry hunger strikes (refusal of food and water) are very rare,

yet we see a few recent reported cases without any fatal consequences [16].

The main reason why dry hunger strikes are not common is that it does not

leave enough time (human body cannot survive more than a few days without

fluid intake) for making demands known by the public and continuing

negotiations. Sometimes food refusal is not total; protestors could have some

form of nutrition usually to gain more time for negotiations [12]. As the

second major collective hunger strikes in Turkey in 2000 has shown hunger

strikes do not have to take the form of total fasting in order to lead fatal

consequences [10]. For these reasons I follow the WMA’s definition above, and 2 See Brockman [15] for a discussion of various motivations behind food refusals in prisons based on actual case examples.

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not take hunger strike to mean voluntary total fasting in this article.

Defined in this way, it is clear that hunger strikes don’t always pose moral

dilemmas for attending physicians and healthcare providers. The fact that the

cases of hunger strikes, which have serious potential threat, are rare does

not, of course, mean that we should not think about the moral and the medical

responsibilities of attending physicians. The international guidelines and the

debates surrounding them clearly illustrate that the issue has been rightly

taken very seriously, and a comprehensive moral and medical guidance has been

provided by national and international organizations. The main purpose of this

article is to suggest a further clarification or a supplementation to those

guidelines with respect to certain situations, which may have been rare or

exceptional.

Should physicians attend force-feeding?

Force-feeding is a form of artificial feeding that is performed against hunger

strikers’ will using coercion. This does not, however, mean that all forms of

artificial feeding are force-feeding. As defined in the glossary for WMA’s

Declaration of Malta, hunger strikers might accept artificial feeding but

refuse normal nutrition for certain reasons. So although all force-feeding is

artificial feeding, the reverse is not the case. Force-feeding involves the

use of physical force and restraints, and the feeding the striker via

nasogastric tube or intravenous administration of nutrients. Repeated use of

nasogastric tube might cause mechanical complications such as nasopharyngeal

or esophageal trauma. In such cases, and cases where a long term feeding is

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required percutaneous endoscopic gastrostomy (PEG) is alternative to

nasogastric tube [17]. Insertion of PEG through the wall of abdomen requires a

minor surgical operation, which, in rare cases, may cause wound infection

[18].

Force-feeding is deemed unethical by the Tokyo (1975) and the Malta

(1991 and revised in 2006) Declarations of the World Medical Association. The

most common justification for force-feeding, which has been repeatedly used

for hunger strikes in Guantanamo Bay is to claim that involuntary nutrition is

required to prevent suicides [13, 14]. The argument is based on a false

assumption that a hunger strike is a form of suicide. Although it is true that

in certain cases of fasting, the protestor is willing to take the risk of

dying out of starvation, it is not the primary purpose of his or her actions.3

Suicide is the intentional act of killing oneself. More specifically, in the

case of suicide, first, the person believes that a certain act would make his

or her death at least very likely, and secondly, he or she engages that act

with the primary intention of killing oneself. Even though the first condition

is satisfied in the case of a hunger strike, in almost all cases, the

protestors do not go on a hunger strike with the primary intention to kill

themselves. In fact, the primary purpose of their act of starvation is to live

3 This is not to deny that there are cases where prisoners attempt suicide by starvation. Even in such cases forcible feeding is not necessarily justified, as it is arguably permissible for competent adults to inflict self-harm [15]. Since my discussion here is limited to a particular form of food refusal, namely hunger strikes, I will ignore the relevant questions about starvation as a method of suicide. The point I make here is that a food refusal as an attempt of suicide is not a hunger strike.

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in better conditions, and/or demand further civil and political rights.4

Consider a protestor that decides to participate a very dangerous political

demonstration that is banned by the authorities. Let’s further assume that

even though she does not intend to kill herself by participating the

demonstration, she believes that it is likely that she might lose her life

during the demonstration. In this particular case it seems clear that even

though she believes that her act might lead to her death, her primary

intention is not to kill herself, and her participation to the demonstration

is not an act of suicide. Similarly, a hunger strike is a form of protest that

might lead to one’s death, yet killing oneself by starvation is not the

primary purpose of the protestor. Therefore, force-feeding cannot be justified

on the ground that a hunger strike is a suicide.

During the widespread hunger strikes in California prisons against

solitary confinement, the court has been asked by the state authorities to

permit force-feeding inmates who participated the strike. The court ruled that

physicians can refeed a hunger striker who is at risk of near-term death or

great bodily injury in the absence of intervention or has become incompetent

to give consent or make medical decisions, provided that the hunger striker

has not previously executed a valid “do not resuscitate” (DNR) directive or

the directive was a result of coercion (Plata v Brown). It was this very last

condition of non-coercion that was used to ignore the validity of advance

directives given by inmates in early stages of their strike:

4 See, for instance, the most recent collective hunger strikes in Turkey by Kurdish prisoners [4].

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In view of the risk that inmates may be or have been coerced into participating in the hunger strike, for purposes of this order a ‘do not resuscitate’ directive executed by a participant in the hunger strike at or near the beginning of or during the strike will be deemed not valid [19].

It is important to note here that the mere possibility of coercion or peer

pressure cannot justifiably used to overrule the validity of DNR directives

given by every single participant in the strike. Especially in massive hunger

strikes like undertaken in California prisons5 it simply cannot be assumed

that participating inmates were somehow coerced into starving themselves to

death. This doesn’t mean to deny the possibility of peer pressure or even

coercion in collective hunger strikes. In particular there are serious

difficulties in custodial settings to determine whether or not the decision to

partake in a hunger strike is freely made. However, the tendency to dismiss

advance directives given by political prisoners or gang members since they

follow their group or leader’s orders is quite problematic. Following Michael

Gross [21], I disagree with attempts to overrule the validity of advance

directives given by detainees on the ground that they might have taken orders

from their leaders, or they are put under peer pressure to join the strike.

These attempts are based on a very simplistic understanding of autonomous

decision-making. Individuals who are part of some political, religious, or

social group and follow the ideas/judgments/orders of the group (or the leader

of the group) do not thereby lose their capacity to make autonomous decisions.

Personal decision-making is always responsive to norms of fidelity, social cooperation and peer pressure, religious or

5 More than 30,000 inmates joined the hunger strike shortly after it was initiated on July 8, 2013 [20].

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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 aware of possible sanctions or punishments (e.g., taxpayers or hunger strikers), such conclusions are overly severe. A person’s motives are often mixed and a taxpayer or a hunger striker who agrees to comply may be acting from collective responsibility, political or religious duties, and fear of sanctions. None of thisimpairs autonomous decision-making but is, indeed, part and parcelof the process [21].

There is still, however, a genuine question whether a particular prisoner is

indeed coerced into participating the strike. Determining the degree of

coercion in prison settings is very difficult for physicians. The crucial

concept here is trust. Attending physicians should find ways to build a

relationship based on mutual trust with the hunger strikers.6 One of the

methods that have proven useful is to offer the striker appropriate means to

end the strike. For example, attending physician could suggest the striker to

remove him to a hospital on some medical pretext [12, 22]

There is another argument in defense of force-feeding in certain cases,

which relies on the significance of the notion autonomy in hunger strikes.

Shimon Glick and Michael Gross [21, 23, 24] argue that the emphasis on

autonomy is misplaced, and physicians’ duty to preserve life trumps his

obligation to respect patients’ autonomous decision. The underlying premise

here, according to Glick, is the rejection of the ‘Western approach’ to

6 Allen and Reyes [22] propose the following actions that might help physicians working in prison settings to build such a trust: Maintaining effective communication between a caring and competent provider and the patient, respecting the dignity of the patient, guaranteeing clinical autonomyof health professionals, respecting privacy and confidentiality, transparency of process, use of independent clinicians for second opinions, careful consultation with trusted counsellors, possibly clergy and others towards the goal of building trust.

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principle of autonomy, which is based on “a fairly strong consensus about the

respect given to patients’ autonomy in a wide range of ethical situations, and

about the priority that autonomy should be accorded [23].” Leaving aside the

questions about the role of religious and social values (which have a very

significant import in Glick’s proposal) concerning the boundaries of the

principle of autonomy, as they are beyond the scope of our discussion here, I

argue that an appeal to the sanctity of life cannot justify forcible feeding

of hunger strikers. I will give two reasons. The first of these reasons is

quite common in the literature on hunger strikes, and underlies the guidelines

of the WMA and other international organizations such as the International

Committee of the Red Cross (ICRC), and it is more about the actual process of

force-feeding. Force-feeding requires the immobilization of the striker, which

is usually achieved by force or physical restraints and the placement of

nasogastric or gastrostomy tube [13]. The whole process of force-feeding

becomes especially inhuman and degrading when met with resistance by the

striker. This is the main reason why force-feeding sometimes equated with

aggravated assault [25] and in some cases even torture [17, 26].

The second reason has to do, not necessarily with the nature and the

magnitude of coercion used in refeeding the striker, but with the (political)

meaning of force-feeding itself. Especially in Glick’s discussion the

political aspect of the hunger strike is often ignored, and it is treated

mostly as a medical condition. Michael Gross, in a recent paper, argues that

force-feeding might be inevitable given the interest of public security [24].

After emphasizing the importance of finding peaceful resolutions to political

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hunger strikes by accommodating some of the reasonable demands of the protest,

Gross argues that where the demands are not possible to meet, authorities can

justifiably initiate systematic force-feeding to prevent loss of lives:

The detainees’ (at Guantanamo Bay) demands are not monolithic. Prisoners who are cleared for release require expedited repatriation, whereas others may be satisfied with customary legalproceedings, better prison conditions, or both. Accommodating the protesters on some counts may not be impossible. But whereas the freed Palestinian hunger strikers were previously paroled prisoners, not public enemies, some Guantanamo detainees may be militants representing genuine security threats, and authorities may not be able to meet all their demands. Nor is it sensible to let prisoners die: widespread rioting, civil unrest, and attacks on military and civilian personnel often follow the deaths of hunger strikers. And if one cannot allow hunger strikers to die oraccede to their demands, then force-feeding must be back on the table [24].

What is troubling, I think, in Gross’s reasoning here is the perspective he

has in his evaluation of the conflict we see in political hunger strikes. It

seems that Gross is more interested in questions about what states and the

authorities should do regarding hunger strikes rather than questions about

moral responsibilities of attending physicians.

Necessity demands that force-feeding serve as a last resort when no political accommodation is possible. This means that states offer strikers a reasonable period of time to negotiate and air their demands and that states carefully weigh the competing political costs and benefits of ending a strike or allowing it to continue. Depending on the method hunger striking detainees adopt,strikes might continue for many weeks until adverse medical conditions set in and patients begin to die. Only at some point before reaching this stage, might states consider force-feeding. Ihasten to add, however, that this stage is reached well before “the risk of near-term death or great bodily injury” (as the California court put it) so that force-feeding assures a full recovery. Waiting too long may seriously harm strikers. With thesethoughts in mind, guidelines for force-feeding should be modified accordingly [24].

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It is not physicians’ responsibility to find ways to break a hunger strike.

They should remain independent. Attending physicians should not identify their

responsibilities with the states’ duties and responsibilities. Their

obligation is to act in the best interests’ of their patients, with their

patients’ consent. Therefore, I think that Gross’s argument above does not

speak to the question of moral and medical responsibilities of physicians

attending hunger strikes.

Force-feeding is never morally justified. Physicians should not

participate or advise forcible feeding of hunger strikers.

Responsibilities of physicians

There are certain duties of physicians who attend in caring for hunger

strikes that are quite uncontroversial. I will begin with those and continue

with the issues that are more complicated and controversial such as what

physician should do when the patient loses his consciousness. I will follow

the WMA’s Declaration of Malta on Hunger Strikes as it provides the most

current international ethical guideline for physicians. Here is an outline for

the responsibilities of physicians attending hunger strikes.

Physicians must assess the decision-making capacity of individuals and

acquire a detailed medical history of them as early as possible. If a

prisoner is not competent, that is if his ability to make an informed

decision is impaired he cannot be considered as a hunger striker.

Physicians should interview the prisoner in a private and an unmonitored

setting before and during the strike in order to establish that their

decision to fast is voluntary and not made under coercion. Physicians

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should conduct these interviews on a regular basis (daily if the

conditions permit) to establish whether or not the striker wishes to

continue fasting.

Physicians should inform the strikers about the possible, reversible and

irreversible physical and psychological consequences of fasting.

Physicians should provide counseling.

Physicians have a duty to establish and preserve confidentiality.

Physicians should remain objective and independent.

Physicians should ask the striker what he wants to be done as he loses

his consciousness or is no longer able to communicate meaningfully.

Artificial feeding can be ethically appropriate if competent hunger

strikers give consent to it.

Force-feeding is never ethically acceptable.

Good communication and establishing a relationship based on trust and

confidentiality is essential for physicians to assess whether the patient is

competent and his hunger strike is voluntary. This is especially difficult in

collective political hunger strikes in prisons, as the protestors tend to

perceive prison doctors as being part of the detaining authority. If it is

impossible for prison doctors to build a reliable dialogue with the strikers,

it might be helpful to bring in external physicians for assistance who has no

connection with the detaining system. Local medical associations, and/or

international organizations such as the ICRC, and the WMA can be consulted

about the possibility of providing such assistance.7 Patients who suffer from 7 There are a few examples that illustrate how an involvement of outside doctors might be beneficial [12, 26-27].

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a psychiatric or a mental disorder such as anorexia or clinical depression

shall not be allowed to fast in a way that might endanger their health.

Fasting, in those cases, is a consequence of a medical condition, and shall be

treated accordingly. However, psychological changes in hunger strikers induced

by starvation, such as increased levels of aggression, anger, and impulsivity

should not be taken to undermine their competence [28-29]. It is important to

notice that the assessment of competence is not necessarily all or none. As

the fasting progresses, especially after the first four weeks of a total

hunger strike, the degree of competence will vary depending on the previous

physical and psychological state of the striker. Therefore, a formal and

continuing psychological assessment in different stages of fasting is crucial

to determine competency.

It is especially difficult for physicians to establish whether a hunger

strike in prison is voluntary, as there are various ways and degrees one might

be coerced into participating the strike. As most of the political hunger

strikes are collective, there is a question of peer pressure, and coercion by

the group or its leader. Families or relatives could inadvertently play a

coercive role in political strikes, as they would like to publicize the strike

through the media and raise support for the strikers’ demands, which could in

turn make it very difficult for some of the strikers to opt out without losing

face. In addition to the discussion of the previous section about difficulties

of establishing voluntariness in the context of force-feeding, I would like to

reflect a bit more on what physicians could do in cases where there is a

significant worry that individual prisoners might be coerced to participate in

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political collective hunger strikes. The importance of gaining trust cannot be

overemphasized. Physicians should do their best to have a frank and private

discussion about the striker’s goals, and reasons to go on a strike. In

custodial setting this isn’t an easy task, as privacy is under constant threat

by the other members of the group or the fellow prisoners, or the prison

authorities and staff. One solution could be separating those individuals,

whom physicians suspect could be under duress, from the group under some

medical pretext and having a confidential discussion about their intention to

continue fasting [12]. If there are serious obstacles for attending physicians

to gain the strikers’ trust to determine if they are voluntarily fasting,

physicians could bring in independent outside doctors, or ask the patient to

nominate physicians who are in a better condition to assess whether the

striker’s decision to fast is indeed autonomous. Even though physicians try

their best to assess voluntariness in collective hunger strikes, it is

unfortunately possible that some cases of coercion cannot be noticed. If there

is no enough evidence to conclude that their patient is under significant

duress, physicians should follow their patient’s explicit instructions [12].

It is not uncommon in some countries that hunger strikers are

transferred to a hospital only after they lapsed into a critical condition but

still conscious. In most cases, the prison authorities do not inform

physicians about the advance directives of their patient. Even if they are

presented with written directives, for the reasons discussed above the

attending physicians should talk to their patients about their intentions. If

the patient is unable to communicate (due to his medical condition), the

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physician has a duty to intervene so that it becomes possible to have a

meaningful conversation with the patient about what should be done in case

they are incapacitated. The physician should make sure that the conversation

between them is confidential and unmonitored. It is considerably easier for

the physician to establish confidentiality in a hospital compared to a prison.

Before asking the patient about his decision, the physician should inform him

about the possible, reversible and irreversible consequences of continuing

fasting. It is reasonable to assume that given the critical medical condition

that the patient is in, which, in a way, helps him to realize the significance

of his condition, his decision to continue or stop fasting will reflect his

autonomous will. The physician ought to respect the wishes of her patient.

One might argue that even if his peers or leaders are not present there

to pressure, the hunger striker’s decision to continue fasting might still be

made under coercion. Even though I understand the worry, I think it is

originated from a general skepticism about the nature of any decision made by

people who identify themselves with a political/cultural/religious/social

group and are ready to defer to their group (or leader) for some of the more

important decisions they are to make about their lives. I have no argument

against this skepticism except to reiterate what I said above in my discussion

of force-feeding namely that it is based on a very simplistic understanding of

autonomous decision-making.

The controversy I would like to focus on in the rest of this paper is

over what physicians should do as the striker loses his or her consciousness

or ability to communicate meaningfully. The discussion of this question has

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also significant consequences for the kind of worries about coercion raised

above. I would like to separate two issues here: (a) what should be done when

the striker has clear and unpressured advance directives to not be fed

artificially as he lapses into unconsciousness and (b) what should be done

when the striker already lost his decision-making capacity before the

physician takes over the case and there is no known advance directives or

there is a reasonable doubt that striker is coerced to take part in the hunger

strike.

It is very important to notice that these are rare cases. Most hunger

strikes end before posing serious health risks for the protestors. The current

moral and medical guidelines are sufficient to resolve most of the questions

physicians might have. However, albeit rare, cases of (a) and (b) have

occurred before, and they, unfortunately, are likely to occur in the future.

Therefore, it is important to have, if possible, clear and comprehensive

guidelines for attending physicians and healthcare providers.

There are different solutions proposed for the situation in which the

striker has an advance directive prior to incapacity. George J. Annas, who has

been very influential with his contribution to the discussion on hunger

strikes since early 1980’s, describes two international documents for hunger

strikes—the WMA’s Malta Declaration and the Royal Dutch Medical Association’s

proposal for hunger strikes—and argues that neither of them is persuasive

[11]. According to the WMA’s Malta Declaration “when the hunger striker has

become confused and is therefore unable to make an unimpaired decision or has

lapsed into a coma, the doctor shall be free to make the decision for his

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patient as to further treatment which he considers to be in the best interest

of that patient.” The most straightforward interpretation of “the best

interest of the patient” in the case of unconscious hunger striker, who will

soon die due to the extreme starvation is to feed him artificially and

preserve his life. However, the WMA also emphasizes that the physician should

honor the decision freely made by the competent striker. Annas argues, I think

rightfully, that this is wholly inadequate and ambiguous as an ethical

guideline since it leaves the decision to the physician with merely reminding

the dilemma: respect for autonomy or preserve life. What we need is a little

more precise formulation of physicians’ responsibility with regard to the

situation at hand. The second international statement, the latest version of

the Malta Declaration (October 2006), attempts to clarify what should be done

in such circumstances:

When a physician takes over the case, the hunger striker may have already lost mental capacity so that there is no opportunity to discuss the individual's wishes regarding medical intervention to preserve life. Consideration needs to be given to any advance instructions made by the hunger striker. Advance refusals of treatment demand respect if they reflect the voluntary wish of theindividual when competent. In custodial settings, the possibility of advance instructions having been made under pressure needs to be considered. Where physicians have serious doubts about the individual's intention, any instructions must be treated with great caution. If well informed and voluntarily made, however, advance instructions can only generally be overridden if they become invalid because the situation in which the decision was made has changed radically since the individual lost competence [8].

Radical changes in circumstances here refer to changes like the acceptance of

hunger strike’s demands by the government or the prison authorities etc. The

declaration seems to be clear that in the presence of clear and unpressured

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advance directives of treatment refusal, physicians should respect the

striker’s autonomy and dignity and honor his decision. Physicians should

remember that beneficence and the principle of non-maleficence entails

respecting individuals’ wishes and desires as well as promoting their well-

being. In this context, avoiding harm also includes not forcing treatment on

competent prisoners or coercing them to stop fasting.

The other proposal belongs to the Royal Dutch Medical Association. Their

guideline is in fact similar to the WMA’s revised Malta Declaration. According

to it, hunger strikers should have an access to a doctor whom they can trust

and who informs them about all relevant consequences of total fasting. More

importantly these “doctors of confidence” should honor their advance

directives as they lose their competence. In order to avoid any complications

or dismiss any doubt about these advance directives, the guideline requires

hunger strikers to sign a form which expresses their statement of medical

nonintervention that specifies their wishes when they are no longer able to

communicate meaningfully [9]. There are certain difficulties with this

proposal. One of the more important problems with this particular guideline,

according to Annas, is that the form of non-intervention which is more like a

living will is not a solution to our problems about advance directives “…

because reasonable hunger strikers could sign a ‘statement of non-

intervention’ and then privately instruct their doctor to ignore the statement

if treatment became necessary to save their life. The signed form would thus

serve a political purpose of making hunger strikers seem more resolute while

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counting on their doctors to save their lives should the hunger strike fail to

meet the strikers’ objectives” [30].8

I agree that there is a serious tension between getting written advance

directives and the political purpose, or the nature of hunger strike but this

does not go against the important principle expressed in this guideline here,

namely that when a physician has clear, fully informed, and unpressured

advance directives, and she is satisfied that the striker is not coerced, then

she should follow those directives in the absence of radical changes in

circumstances as explained above. Moreover, it is unclear why making a private

arrangement with a physician that is not consistent with the striker’s signed

statement “highlights the doctor's ethical dilemma in choosing between the

unconscious hunger striker's life or liberty”[30]. I think this would be a

reasonable concern if physicians see themselves as another party in this

political conflict, or if they were concerned about the success, or the

failure of the strike, but if our question is what physicians should do when

the striker has clear, informed and unpressured advance directives in given

circumstances, it is clear from the essence of both of these guidelines that

physicians should follow those directives. Both the Malta Declaration and the

Royal Dutch Medical Association’s guideline for hunger strikes give the same

advice for the first question raised before ((a) above), namely what

physicians should do when the striker has clear, informed, and unpressured

8 There are very difficult problems about getting written directives from hunger strikers that I cannot get into in this paper due to the limited space.

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advance directives to refuse treatment. Physicians should follow the advance

directives if they are persuaded that the striker’s decision to go ‘all the

way’ is not a result of coercion. In real life cases, as I have discussed

above, the situation is a lot more sophisticated than this.

The fact that the cases of (a) and (b) are rare does not mean that they

do not occur. During the hunger strikes in Turkish prisons in 2000 there were

over 3000 prisoners who collectively declared that they were on a hunger

strike until their demands are met. In the middle of the negotiations between

the prisoners and the mediators the government stormed the prisons in order to

break the strike. 30 prisoners were killed in the military operation and more

than 150 were hospitalized. A number of hunger strikers had already gone

unconscious before they were hospitalized due to the brutal methods, and

weapons used in the operation [5]. Thus, many physicians had to face the kind

of situations described above; they had unconscious hunger strikers before

them and they didn’t know if the strikers had clear, informed, and unpressured

advance directives.9 One might think that since they were on a hunger strike,

and their names were on the collective declaration they would deny treatment

if they were competent. However, this is not enough for a physician to decide

if the striker is voluntarily fasting, or is coerced to participate, which is

a very significant and compelling worry given prison circumstances. The

international guidelines leave the decision to the attending physician, who

should consider the hunger strikers’ previously expressed wishes, their

personal and cultural values as well as their physical health. [8]

9 See Altun, et al. [31] for some examples.

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The Turkish Medical Association followed the Malta Declaration, and let

physicians to make their decisions on the basis of what they think the

striker’s best interest is [27]. The literature on hunger strikes and the

responsibilities of physicians is almost mute on this problem. I maintain that

if we agree on what physicians should do in the first kind of cases (caring

for unconscious strikers with clear, informed, and unpressured advanced

directives), we can derive a more precise moral guidance for physicians for

the cases where no such directives is present or there is a reasonable doubt

that the directives were given under duress. In the former cases we emphasize

the autonomous decision and the hunger striker’s right to refuse treatment.

That is why force-feeding is unethical. In other words, the reason why we

think that we should not artificially feed the striker when he loses his

competence is the existence of clear, informed, and unpressured advance

directives, which indicates his autonomous decision. In the absence of such

directives or if the physician has a reasonable doubt that the prisoner was

coerced into joining the strike, he should resuscitate the patient, and

provide artificial feeding should it be medically necessary for the striker to

regain consciousness. What justifies such intervention is that the attending

physician is in no position to know at that point if the patient is a

voluntary hunger striker, or if he denies artificial feeding, or if he is

coerced, etc. This proposal has a further advantage as it alleviates the

possible consequences of making an error in establishing the strikers’

voluntariness to fast. Compare the cases where the striker is resuscitated,

but once competent he continues to reject treatment, and the cases where the

21


striker is resuscitated, and once competent he accepts refeeding. The costs of

the second type of error are far greater than the costs of the first type of

error. The error in the first case can be corrected, that is, once competent

the striker could issue advance directives and continue the strike, whereas

the error in the second case cannot be corrected.

One might argue that even without a formal advance directive, “the

hunger strikers’ previously expressed wishes, their personal and cultural

values”, indicate the striker’s preferences. This may well be true, but the

physician obviously cannot act on those, partly because they do not constitute

enough evidence for the striker’s decision as he might have changed his mind,

or revise his decision, etc. More importantly, it is really hard, if not

impossible, to acquire such information for physicians about their patient’s

previously expressed wishes in the kind of settings and urgency under

consideration here. Therefore, I argue that if there is a reasonable doubt

that the advance directives were given under duress, or if such advance

directives are absent unconscious strikers should be resuscitated and

artificially fed if necessary. It is important to note that the primary

purpose of resuscitation at this stage is not a full recovery, but taking a

temporary measure to establish voluntariness.10 Once the striker regains

consciousness, the physician has a responsibility to explain him why he is

resuscitated, and ask him if he wishes to continue the strike, or if he

accepts and wishes to continue the treatment. If the striker wishes to

continue fasting, and gives the advance directive so as not to be resuscitated

10 I would like to thank to the anonymous referee for bringing this up.

22


again, the physician should honor the striker’s decision to refuse treatment

and feeding, and should not medically intervene should the striker loses his

competence again. The physician has a further responsibility to make the

required arrangements in his power so that if he is replaced with a new

physician the same question does not reoccur.

Conclusion

I argue that the international guidelines and more specifically the

Malta Declaration of the WMA, give us a better understanding of the

responsibilities of the physicians attending hungers strikes. The Malta

Declaration deems force-feeding ethically unacceptable and emphasizes

respecting the autonomy and the dignity of hunger strikers. In the absence of

unpressured advance directives, the Malta Declaration leaves room for

physicians to decide for themselves as they face with an unconscious striker

considering both the values and previously expressed wishes of the striker,

and his best interest. I argue that given our reasons to reject force-feeding,

there is no need to be vague about the cases in question. If there are no

advance directives, or there is a reasonable doubt that the striker was under

coercion, or he has changed his mind during the strike, and the striker has

already lost his competence, the physician has the responsibility of

resuscitating the striker. Once the striker regains consciousness, he should

be asked about his decision and if he wants to continue the strike and refuses

treatment, the physician should respect this decision and follow her patient’s

directives.

23


Acknowledgements

I would like to thank to the anonymous reviewers of Theoretical Medicine and Bioethics for their valuable comments, and criticisms.

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