By Roger Crisp
At a recent New St Cross Special Ethics Seminar Prof. Noam Zohar of the Dept. of Philosophy, Bar Ilan University and a member of Israel’s National Bioethics Council, spoke on ‘Debating Forced Medical Feeding: A Critical Examination of Israeli Responses to Hunger Strikes’.
He began by setting his argument in the context of recent hunger strikes, mainly by Palestinian prisoners, but noting that the general issues he would be covering arise in other cases and in fact hark back to the earliest hunger strikes by suffragettes and by IRA prisoners more than a century ago.
A central feature of the Israeli situation in particular is the Patient Rights Act, 1996, which ‘aims to establish the rights of every person who requests medical care or who is in receipt of medical care, and to protect his or her dignity and privacy’. According to Clause 13, ‘No medical treatment shall be given unless and until the patient has given his informed consent to it’. But Clause 15 – which begins ‘The provisions of Clause 13 notwithstanding …’ – states that: ‘Should the patient be considered to be in grave danger but reject medical treatment, which in the circumstances must be given soon, the clinician may perform the treatment against the patient’s will, if an Ethics Committee has confirmed that all the following conditions obtain:
(A) the patient has received information as required to make an informed choice;
(B) the treatment is anticipated significantly to improve the patient’s condition;
(C) there are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent’.
Drawing our attention in particular to, and indeed questioning, that notion of ‘retroactive consent’, Zohar noted that this clause could allow forced feeding – or coercive delivery of intravenous nutrition – toward a hunger striking prisoner, after he or she has been transferred from the prison to a hospital. This would, however, require a decision specifically for each individual prisoner/patient, warranted solely by the imperative of saving the person’s life, and further dependent on the (admittedly problematic) idea that the person’s autonomy is not violated because he is expected to consent after the fact. Zohar then discussed a further piece of Israeli legislation, the ‘Act (no. 48) amending the Prisons Ordinance, 2015’. According to this Act, ‘notwithstanding Clauses 13 and 15 of the Patient Rights Act’, a judge is permitted to authorize medical treatment of a prisoner, ‘despite the prisoner’s resistance’, if the patient is in imminent danger of death or disability. The court is instructed to concern itself with, among other things, the effect of the treatment on the prisoner’s dignity, the prisoner’s reason for hunger striking, and ‘considerations of risk to human life or of real risk of a serious threat to state security, insofar as presented with evidence to that effect’. Further, the court is permitted to diverge from the rules of evidence, and to take evidence in private, without disclosing it to the prisoner or his representative, if such non-disclosure ‘will better serve justice’. Once thus authorized by a judge, a prison officer may employ ‘reasonable force’ to assist with the delivery of the treatment by a clinician.
Zohar emphasized that the Israel National Bioethics Council had unanimously objected to this extension of the grounds for coercive treatment. The Council noted that some hunger strikers could be treated against their will under existing law in order to save their lives, but strongly condemned allowing this for the sake of ‘state security’. Zohar lamented the fact that the Council’s recommendation was eventually unheeded, while noting that, even so, Israeli law does not go as far as states such as California, whose Supreme Court has allowed forced feeding in order to maintain security within the prison system. Some energetic discussion followed on whether, in certain highly extraordinary cases, such treatment could be justified.
(I am very grateful to Prof. Zohar for assistance with this blog.)