by Alexandre Erler
The question, which generated debate a few years ago in the context of the US detention camp at Guantanamo Bay, is now arising again in Switzerland, where imprisoned cannabis farmer Bernard Rappaz has been on hunger strike for about three months now, in protest against a prison sentence he considers excessive. Rappaz was sentenced to five years and eight months behind bars for trading in cannabis and various other offenses. The Federal Court, Switzerland’s highest instance, has ruled that Rappaz should be force-fed if necessary, but doctors in charge of him have refused to obey those orders. A criminal law Professor has argued that according to the Swiss Penal Code, these doctors should be prosecuted, as their refusal amounts to civil disobedience. How should we regard such a legal implication? Is it ethically acceptable, perhaps even required, to force feed someone like Bernard Rappaz?
It seems to me that a consideration put forward by a group of doctors in the case of the Guantanamo prisoners fully applies in the present case as well. In a letter published in the Lancet (2006; 367: 811), these doctors have argued that force-feeding prisoners who were on a hunger strike violated established standards in medical ethics, which acknowledge that patients – including detainees – have a right to refuse treatment, even of a life-sustaining kind, provided that they enjoy decision-making capacity (or more briefly, capacity). To the best of my knowledge, such a right is also recognized by Swiss law. If so, Swiss judicial authorities seem trapped in an inconsistent position: it is indeed inconsistent to, on the one hand, uphold people’s right to refuse treatment out of respect for their autonomy, and on the other hand, to stipulate that a prisoner on a hunger strike should be force-fed on the grounds that the importance of preserving life trumps all other considerations in such a situation. And as I incline to think it is a good thing for competent adults to have a right to refuse treatment, I would suggest that this inconsistency should be resolved in favour of autonomy. Rappaz should not be force-fed, and the doctors who refused to do so have a good justification for their decision. Such a conclusion seems to hold even more clearly in his case than in that of the Guantanamo prisoners, as there is no evidence e.g. that Rappaz might have been coerced by anyone to go on a hunger strike (on the contrary, the vast majority of people he was in contact with must have tried to dissuade him from it), and that his capacity for autonomous self-determination was in any way impaired when he made his intentions clear.
Of course, Rappaz’s refusal to feed himself (and to be treated should he fall into a coma) might strike us as irrational: it seems somewhat excessive to be prepared to die in order to protest against the fact that you have been given a five-year prison sentence – surely life remains worth living in Rappaz’s situation? But that is not the issue. The right to refuse treatment is supposed to hold no matter how we judge the adequacy of the reasons behind the person’s refusal, provided she has capacity.
One of the members of the Swiss government has suggested that "prison is no place to die". I am not sure how exactly to interpret her words. Did she mean that prisoners should be regarded as being under the care of the prison authorities, so that letting someone like Rappaz die on a hunger strike would amount to a failure to fulfill their responsibilities? But then one would want to know why this reasoning doesn’t equally apply to cases of treatment withdrawal/withholding. Or did she rather mean that a prison was simply not an “appropriate” setting for someone to die in? If so, all this would imply is that Rappaz should be transferred to a different setting, such as a hospital, when his death appears to be imminent. It would not imply that he ought to be force-fed.
Another question is whether not force feeding Rappaz is necessarily incompatible with the preservation of his life. There is indeed such an incompatibility between respecting autonomy and preserving life in cases of refusal of life-sustaining treatment. But it doesn’t seem to be so in cases of hunger strike. The Swiss Federal Court could in principle save Rappaz’s life by granting him pardon, or perhaps a lesser favour that would still persuade him to start feeding himself again (such as keeping him under house arrest). This in turn raises a number of further issues: is Rappaz’s protest against his sentence justified? If the judicial authorities were to relent in order to save his life without violating his autonomy, would it not constitute a dangerous precedent, suggesting that hunger strike was a guaranteed way of getting out of prison in favour, at least, of a “nicer” form of detention? Issues that would deserve a separate discussion.
Very nice analysis.
You seem to draw two separate conclusions: (i) that the answer to the title of your post is “no”, and (ii) that there are a number of related issues that deserve a separate discussion.
I certainly agree with the latter conclusion. Regarding the former, I think there may be a logical leap too far contained in the following sentence: “And as I incline to think it is a good thing for competent adults to have a right to refuse treatment, I would suggest that this inconsistency should be resolved in favour of autonomy.”
I also incline to think it is a good thing for competent adults to have a right to refuse treatment, but that is not the same thing as saying that this right should never, under any circumstances, be withheld. I agree that “prison is no place to die” is a silly argument, or would be if it was intended to be taken seriously as such. (The reality of course is that it was a good piece of political rhetoric.) But if we accept that there may be good reasons not to opt for the alternative ways of preserving this person’s life that you mention, it seems to me that there may also compelling be arguments to withhold his right to refuse treatment.
This is, after all, not someone dying of some horrible terminal disease. He is making a protest over an issue that should be resolvable over time. One solution would be to call in a psychologist with the aim of getting to the bottom of why he is willing to die for the right to trade cannabis, and coaxing him to find more socially acceptable ways of expressing his core values.
Thanks for your accurate analysis of such an important question with a terrible historic background. Remember Bobby Sands.
I am not so sure that it is not ethical. Any person serving prison, by definition, is subject to limitations of their autonomy: freedom of movement but also, for instance, privacy, sexual freedom or political participation suffer important restrictions. Some of these limitations are part of the very punishment and other are aimed to enable the execution of the conviction: for example, in relation with security and governance of the prison. These constraints should be as minimal as possible and always respectful with the core of human dignity. They generate simultaneously duties to the State (for example, related to nourishment, health and personal security of the inmates). These limitations and duties do not exist or are shaped quite differently when these citizens are in freedom. Therefore it seems reasonable to me that, among these limitations of the autonomy in prison, there could be certain restrictions on the right to decide on own body, health and life. Especially if the exercise of these rights is aimed to put the very execution of the conviction in question.
Certainly (but this is another aspect of the problem) these restrictions should not imply a radical and unlimited negation of the dignity. How much time, in which conditions and to which end is such suppression of the personal autonomy acceptable? It is at least arguably admissible to keep a person during months in critical condition, intubated and handcuffed to the bed. But, meanwhile we do not arrive to this point, we have won time to find a possible way out of the conflict.
As to the ethical status of the prisoner’s protest.
This is not the usual refusal-of-treatment case, in which the forced-feeding is an attempt to save a life. It is also (indeed, primarily)a case of protest in which forced-feeding is an attempt to render the protest less effective. So, a very important question is whether it is ever proper for a government agency to prevent or render ineffective a protest that raises public issues and does not do any harm to the execution of the essential functions of the agency.
I suppose any protest in a prison does affect order and discipline among the prisoners. So, there is some justification for the officers of a prison to prevent protests and to try to render existing protests ineffective. There is also a justification to prevent suicide insofar as the prisoner’s death shortens the punishment. I am not persuaded that the prison is justified in stifling protest in order to protect its image or protect personnel from criticism.
The countervailing claim is that the protest, however extreme, is an act that involves directly the dignity of the protester, which is valuable even in the context of penal incarceration. The prisoner is subject only to just or proportionate punishment and may no longer be subjected (by law in the UK and the USA) to degrading and cruel conditions during the incarceration. Punishment for violation of prison rules or to maintain prison order and discipline must also be proportionate. How does this cut with respect to the prison’s countermeasures against protest? I suspect that, if one takes these limits on punishment to be based, at least in part, on the importance of the prisoner’s dignity as a person, then the value of that dignity has to be weighed against the need to preserve order. If the prisoner was a citizen when entering the prison, that citizenship also plays a role insofar as the protest is about a matter of public importance (e.g. not merely about the taste and variety of prison food).
How does all this play out? I think that the order and discipline factor plays a decisive role.
All Medical Code of Ethics I know forbids explicitly feeding a person in a hunger strike. In my country (Brazil), nevertheless, the Medical Code says that, in an imminent risk of death, the physician must treat the person. My interpretation is that the physician cannot feed a person in a hunger strike in any situation; and that he only can (even if some prefer to say that he must) treat her if the situation becomes life threatening. The right of undertaking a hunger strike is a classic in Human Rights history. See the case of the Cuban dissident Orlando Zapata Tamayo (and, after him, the actual case of Guillermo Farinas). Zapata was a political prisoner and died after fasting for more that 80 days. See the curious contrast between the Zapata’s right of performing the hunger strike and the accusation made from Cuban Democratic Directorate that authorities denied water to Zapata and that this worsened his condition, accelerating him to death. The truth of the matter is that authorities had an obligation of feeding Zapata. Anyway, the obligation to feed does not imply a permission of forcing an autonomous person in hunger strike to eat or to swallow the food (except in the case of children). I see that as similar with the case of the physician’s obligation of prescribing and the distinct obligation of not forcing (or coercing) the patient of following the prescription (a right that grounds the requirement of informed consent).
Interesting analysis. Do you read French?
Peter: your suggestion of calling in a psychologist makes me wonder whether your worry is not, rather, that Rappaz might lack capacity after all. I certainly agree that his decision does not seem a particularly rational one, but I would worry about setting limits on people’s right to refuse treatment based on how rational (or irrational) we judge them to be, independently of the question of their possessing capacity. Limiting that right to cases where someone is dying of a terminal disease would certainly strike me as unacceptably restrictive and paternalistic. And if this is not where you want to draw the line, then where? Would you f.ex. support forcibly administering a blood transfusion to a Jehovah’s Witness if this were the only way to save his life?
David: you could make such an argument, but it seems to me that making the loss of the right to refuse treatment a necessary component of prison sentences would excessively increase their severity. There are few punishments greater than losing the ability to decide whether you want to keep on living or not. It is true that the prisoner who takes his own life thereby prevents himself from serving his full sentence, but most people, I assume, would judge that he is also inflicting a much worse fate on himself that way.
Dennis: I am not sure that force feeding Rappaz would necessarily make his protest less effective. Wouldn’t the media then still report the fact that he was trying to engage in a hunger strike but was being force-fed in prison? He might then doubly appear like a martyr – someone who wanted to protest against his sentence but was denied the right to do so by authorities.
Samia: yes I do (as a French-speaking Swiss citizen!), do you perhaps have some literature to recommend on this topic?
I agree with Alexandre.
Of course, as David and Dennis state, a prisoner is subject to certain limitations : that is the nature of the punishment. But would David and Dennis accept the logical corollary of their position and make attempted suicide in prison an offence (even although it is not one outside prison)?
Alex, No I was not calling into question Rappaz’s capacity, nor even his rationality. I’m not one of those who believe that psychologists can only help people who are mentally ill.
in response to Anthony, the issue from my perspective is not whether Rappaz’s hunger strike constitutes an offence, but rather whether it’s legitimate to limit his freedom of action (or in this case inaction) in order to prevent his premature death. A better analogy would be with forcefully restraining someone to prevent them jumping off a bridge.
This is a really interesting dilemma. I happen to have read this post while also reading Harris’s Moral Landscape and couldn’t help but try to see the quandary through the lens of Harris’s proposed system of ethics. As much as I enjoy Harris’s work, it’s situations like these that go to show his prescriptions are woefully lacking in practically.
I’m not even sure how to analyze the situation from his perspective. How do we apply a theory of maximizing well being to this situation? Whose well being are we talking about? The well being of Rappaz? People in the prison system? All of society? How are we defining well being? And is well being viewed as a snapshot in time, or is there some way this concept of well being can integrate with the temporal flow of experience and development of the individual.
Harris’s concept of well being is necessarily a utilitarian proposal, which already comes with a host of baggage, but as I’m pointing out, even choosing “well being” as the goal barely helps us avoid confusion. Rappaz’s evolving mental states have to in some way be considered over time (if he is forced to eat, but for the rest of his life is depressed because of what was done to him during his strike, does it increase his well being). If we take a broader view, at what level do we stop analyzing and what are the variables that we are considering? What aspect of well being are we trying to maximize? Health? Liberty? Autonomy? Public Safety?
I’m certainly with Harris that Science (defined strictly) is absolutely necessary to consider in any situation where it might be relevant, and science (defined loosely as using rationality and empirical evidence) can and should be used in all situations to help determine how to act. But it seems to me that at some point we have to talk about various values that may have no way of being prioritized, even under the loose definition of science. Anyway, sorry for the tangent!
Greg, I think it really depends on whether you see morality as a matter of “truth” or rather as a matter of decision. if the latter, then I think it must be possible to prioritize, or determine some kind of rules or weightings, in relation to one’s values. I agree that just saying “maximize well-being” isn’t enough: it needs to be defined more precisely.
in this case I certainly think there’s a reasonable case for saying that Rappaz should be allowed to starve himself to death if that’s what he wants. But I’d still want to call in some kind of psychologist, counsellor or whatever to see if a better way can’t be found for him to register his protest. Or perhaps this has been done already.
I don’t necessarily disagree with you Peter. But part of what I was trying to get at, is that prioritizing values is only possible if there is a clear goal that the prioritization is in service of. But if the goal itself is emergent from the values we have, we get into a bit of a circularity problem. So certainly, the case can be made to allow Rappaz to starve himself death, but that very conclusion is based on some set of values that we feel leads to the most ethical decision. And even if we take into account all the data and knowledge that science can bring to bare and use a process of rationality and empiricism in discussing our goals and values, I’m not sure that it’s possible to come to a clear cut answer that says, “THIS is the purpose of ethics”. And in reference to my first post, Harris certainly hasn’t made it explicit in his definition of “well being”.
All fair points Greg, and I certainly wasn’t trying to defend Harris; if I’m defending anything it’s probably utilitarianism, but again as a matter of choice, not as a matter of “truth”. As you wriggly say prioritising values is only possible (or at least only meaningful) if it is in the service ofnsome clear goal, and commitment to that goal is itself a value, and moreover one that is supposed to supersede, or underpin, all other values.
The interesting question from my perspective – and here we’re indeed getting well away from the specific case that was the subject of Alex’s post – is whether one *should* aim to identify such an over-arching goal. To those who would answer ‘no’ to that question, I would ask them how else can one solve moral dilemmas (such as this one) in a meaningful way. Meanwhile, accepting that doing somreflects a choice, and not a matter of absolute right and wrong, helps us to avoid unhelpful neurotic reactions in the face of alternative choices.
In this case, then, something about my intuitive sense of morality is at the same time making me uncomfortable with the notion of force-feeding Rappaz (and sympathetic to the doctors who refuse to do so), and at the same time equally uncomfortable with the idea of just letting him die. From this it should be possible to identify some kind of overarching value that I am using to adjudicate between my (to some extent conflicting) instincts.
All fair points Greg, and I certainly wasn’t trying to defend Harris; if I’m defending anything it’s probably utilitarianism, but again as a matter of choice, not as a matter of “truth”. As you rightly say prioritising values is only possible (or at least only meaningful) if it is in the service of some clear goal, and commitment to that goal is itself a value, and moreover one that is supposed to supersede, or underpin, all other values.
The interesting question from my perspective – and here we’re indeed getting well away from the specific case that was the subject of Alex’s post – is whether one *should* aim to identify such an over-arching goal. To those who would answer ‘no’ to that question, I would ask them how else can one solve moral dilemmas (such as this one) in a meaningful way. Meanwhile, accepting that doing somreflects a choice, and not a matter of absolute right and wrong, helps us to avoid unhelpful neurotic reactions in the face of alternative choices.
In this case, then, something about my intuitive sense of morality is at the same time making me uncomfortable with the notion of force-feeding Rappaz (and sympathetic to the doctors who refuse to do so), and at the same time equally uncomfortable with the idea of just letting him die. From this it should be possible to identify some kind of overarching value that I am using to adjudicate between my (to some extent conflicting) instincts.
Apologies for the dpuble posting (and for the typos in the first one!)
Alexandre: Good. I work in Geneva, and I’ve written several posts on my French-language bioethics blog, with references to other stuff I find interesting. The link is in my name under this comment.
Samia: thanks for the link, I see that you’ve covered the issue quite thoroughly indeed!
Alexandre: occupational hazard 🙂
An interesting case, this. Thanks again for your post!
“The interesting question from my perspective … is whether one *should* aim to identify such an over-arching goal. To those who would answer ‘no’ to that question, I would ask them how else can one solve moral dilemmas (such as this one) in a meaningful way. Meanwhile, accepting that doing somreflects a choice, and not a matter of absolute right and wrong, helps us to avoid unhelpful neurotic reactions in the face of alternative choices.”
I think we’re in agreement on that Peter. I also think that something that stems from this is that particular situations with many complicated and nuanced facets may not have any realistically determinable “right” answers, even if any possible answers are based on a clear goal/value. I question whether one overarching value can exist though. I’m not sure the brain is built like this or than human beings develop (throughout life) in any way to bring something like that about. Your two instincts, and whatever processes and factors that underly them, should indicate that this presupposition may itself be incorrect. But that’s a conversation for another day!
for clarification, I agree we should strive to define the purpose of ethics, but I don’t believe that this definition will encapsulate one clear idea or goal or value.
Interesting points Greg, thanks. In some ways I see a parallel with attempts in physics to find an over-arching theory that explains everything. I don’t believe they’ll ever succeed in this goal, but we’re learning a huge amount along the way. I think something like this may hold in ethics as well. I totally agree that “particular situations with many complicated and nuanced facets may not have any realistically determinable “right” answers, even if any possible answers are based on a clear goal/value”, but I think it’s worth at least exploring how far we can go in this direction, how such an attempt might apply to specific situations, and where this might lead us.
The issue about whether having an overarching value is actually compatible with the way we think (how “the brain is built” and how human beings develop throughout life) is an interesting one. In this context my mathematical background is almost certainly relevant in shaping my own perspective on this issue, both from a genetic point of view (put simplistically, I have an unusually mathematical brain) and from a point of view of my later intellectual development.
Another (much more recent) influence on my thinking has been the therapeutic approach known as “acceptance and commitment therapy”, which is beautifully set out (in self-help version) in The Happiness Trap by Russ Harris. Among other things this approach emphasises the importance of clarifying one’s values – which in this context refers to general ideas about how one wants to behave, what kind of relationships one wants to build, what kind of things one likes to do etc – while also accepting both the external and internal realities, the latter referring to how we instinctively tend to think, feel and behave. A key point is that with a bit of practice we *can* control our behaviour, and learn to accept our thoughts and feelings even when they are unhelpful or uncomfortable. Another key point is that our instinctive behaviour will not, in the first place, necessarily align itself with what we have decided on as our “values”. The purpose of setting goals in this context is to train ourselves to align our actions more fully with our values.
As you can probably guess from my evangelising I have found this approach to be immensely helpful in my personal life, as well as being (to my mind) thoroughly credible from a scientific point of view. It’s perhaps relevant in this context that what I have identified as my own “values” is a set of ideas, not actually one over-arching value, so this would tend to support your point Greg. At the same time it has left me with the conviction that we should not assume that our instinctive thoughts, gut feelings (on moral issues) or behavioural habits necessarily reflect our values, and that it is possible to decide on that latter and then, gradually, align one’s actual behaviour with them. I find this immensely encouraging, and also a plausible model for how we behave and organise ourselves collectively.
In the penultimate sentence “that latter” should read “the latter”. Sorry again…
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