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