Abstract
In 2015, the Israeli Knesset passed the force-feeding act that permits the director of the Israeli prison authority to appeal to the district court with a request to force-feed a prisoner against his expressed will. A recent position paper by top Israeli clinicians and bioethicists, published in Hebrew, advocates for force-feeding by medical professionals and presents several arguments that this would be appropriate. Here, we first posit three interrelated questions: 1. Do prisoners have a right to hunger-strike? 2. Should governing institutions force-feed prisoners and/or is it ethical to force-feed prisoners? 3. Should healthcare professionals force-feed prisoners? We then focus on the first and third questions. We first briefly provide several arguments to support the right of prisoners to refuse treatment. Next, we critically review the arguments presented in the Israeli position paper, demonstrating that they are all misguided at best. Lastly, we briefly present arguments against force-feeding by medical professionals. We conclude that healthcare providers should not participate in the force-feeding of prisoners.
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Notes
Of course, persons who are not prisoners may also hunger-strike—see, for example, a case of a Dutch cancer patient reviewed by Annas (1995). We focus on prisoners here mainly to optimize the clarity of the discussion. Moreover, because of the added complexity associated with the hunger-strike of prisoners, we believe that our conclusions regarding prisoners apply to other patients, perhaps even to a larger extent. The main difference between competent patients and prisoners is that questions of autonomy do not arise in regards to the former. Further, the state does not have an interest in punishing the competent patient, the same way it does in punishing the prisoner (Sect. 2.1).
For an exception, see Allhoff (2005). In one place, Alan Dershowitz (2003, p. 293) normatively opposes torture. However, he seems to allow torture in a ‘ticking bomb’ scenario. He also seems to think that torture requires the lethal infliction of a sustained pain as a necessary condition (note 57), which is patently false both legally and ethically.
See an illustration of force-feeding by the actor and rapper Yasiin Bey, http://www.theguardian.com/world/video/2013/jul/08/mos-def-force-fed-guantanamo-bay-video. Accessed 3/2016.
See here for a first-hand description of force-feeding by prisoners in Guantanamo: https://www.theguardian.com/world/2014/jul/16/guantanamo-nurse-refuses-force-feed-prisoners. Accessed 5/2017.
In what follows, we restrict our discussion of rights to moral rights unless otherwise specified. Following Harris (1985) we understand the term ‘right’ as nothing but a shortcut to signify entitlement: to say that one has a right to X means that one is morally entitled to X. This means that our use of the term right does not have any normative power—it cannot replace argumentation. Rather, by saying that one has a right to X we mean that we presume that the case for X has already been made and accepted—we do not actually make the case for X. In the current context, we then take for granted that persons are entitled to govern their lives freely at least to a large extent—we do not actually make any argument for it.
Suicide is usually understood as the intentional killing of oneself. Killing oneself as a result of hunger-strike may or may not be defined as suicide: it is suicide in that the striker foresees the consequences of his act and is ready to accept them. However, it is not suicide in that, as noted in the text, strikers usually do not wish to die. We tend to agree with the latter position—see Sect. 6.1. However, here we choose to entertain the former position thus making our argument even stronger. If our case for hunger-strike as suicide is compelling, then it would be even more compelling for hunger-strike not defined as suicide.
Jonas also distinguished killing (or active euthanasia) from permitting to die (or passive euthanasia), but this need not concern us here.
Mirko Garasic then, is wrong is asserting that Kant objected to suicide “…irrespective of the motive principles behind the act.” (Garasic 2015, p. 66).
We thank Owen Schaefer for encouraging us to engage with this objection.
See Sect. 5. The explicit argument here is that countries should follow current international law (it is morally wrong if they do not); the Israeli use of administrative arrest is unlawful according to current international law; therefore, Israel’s policy of administrative arrests is morally wrong.
This actually relates to the second query presented above, and we explicitly wish not to elaborate on it in this paper. In any case, we agree with Mara Silver who responds that the state’s ability to carry out the sentence ‘…simply is not sufficient when compared to an individual’ right to control the course of his own life or death’ (Silver 2005, p. 643). Briefly, we think that the right to autonomy and bodily integrity or sovereignty overrides the right of the authority to punish the prisoner in this case.
We designate as a ‘political’ justification also the claim made by the Israeli Force-feeding Act (see Sect. 4) and Israeli General Security Services (Israeli Supreme Court 5304/15. Israeli Medical Association et al. v. Israeli Parliament et al. 2016, p. 32) that the prison authority is justified in force-feeding the prisoner in order to keep the peace inside the prison. Silver responds to this line of argument made in the American context by pointing at the lack of empirical evidence to support it (Silver 2005). A discussion of the use of HCP’s for political purposes also raises the issue of their use in executions, but we do not elaborate on it here.
We define moral agents as creatures that are capable of deliberating on what the morally right thing to do is and acting upon this deliberation.
Thus, unless otherwise specified, whenever we use ‘autonomy’ here, we mean moral autonomy. For a more legal response to this potential objection, see Sect. 4.
We intentionally do not stray into a discussion of the question of free will.
Even though this was not the authors’ intention.
https://en.wikipedia.org/wiki/Henry_Scholberg. Accessed 5/2017. Beyond the concern with internal and external validity, the morality of the Minnesota Starvation Study is questionable; it certainly merits further study.
Several authors in fact consider mental competence as a necessary condition for the definition of a hunger-striker (Reyes 1998; Crosby et al. 2007). This means that ‘incompetent hunger-striker,’ or ‘non-autonomous hunger-strikers’ would be deemed incoherent. We disagree and believe it does make sense to refer generally to a hunger-striker who is incompetent.
Specifically in the context of force-feeding; see also Crosby et al. (2007).
Annas (2006) seemingly acceded this in later writings, doubting the practicality (rather than the ethics) of having an advance directive.
Again, we mainly focus on preventive incarceration here.
In the mid-1970s, The UK government accepted the recommendation of the Parker Committee to stop the use of five torture techniques instead of adopting the recommendations of a majority report which sanctioned medical complicity in torture (Welsh 1995).
Gross makes the same claim. He first distinguishes criminal acts from terrorist crimes. The former still maintain a framework of ‘…recognizable human interaction’, while terrorism ‘…reduces civilians to the basest of means’. Therefore, ‘[t]he terrorist who recognizes no intrinsic value to the life of his victim, who takes advantage and intentionally abuses his victim’s innocence for his own purposes, forfeits his own moral status as a human being’ (Gross 2006, p. 222). Gross does not explicitly espouse this argument as his own contention. Rather, he simply presents it as an improvement of Michael Moore’s argument (1989). At first, Gross in fact seems to negate the moral legitimacy of this forfeiting of moral status, by claiming that, ‘…it is difficult to conclude that a person may forfeit one’s dignity or respect for self-esteem without undermining the very idea of human right that we generally assign solely on one’s status as a human being (Gross 2006, p. 223. his emphasis). But later, Gross refers again to ‘…those who forfeited their right to respect for self-esteem’ (241, see full quote in Sect. 6.1). Clearly, Gross accepts Moore’s (revised) argument; and, clearly, the argument is implausible: it does not follow logically that one loses one’s moral status as a result of one’s ignoring another’s moral value. As we claim above (Sect. 2.2), criminals do forgo some of their rights because of retributive justice considerations. However, only those rights that are incongruent with their punishment are forgone. Again, even the FFA (Sect. 4) acknowledges that prisoners still maintain their basic human rights, such as freedom of expression.
Alan Dershowitz calls this decision ‘remarkable and courageous…’ (Dershowitz 2003, p. 283).
In 2006, Gross claimed that, ‘…there are no instances of ill-treatment among Israeli Jews’ (Gross 2006, p. 228).
http://fs.knesset.gov.il//20/law/20_lsr_313648.pdf, 241-245. Accessed 6/2016.
The Israeli Supreme Court agrees. (Israeli Supreme Court 5304/15. Israeli Medical Association et al. v. Israeli Parliament et al. 2016, pp. 37–39).
The Committee Against Torture, convening in May 2015, stated that the number may be as high as 700 prisoners, including 12 minors (Israeli Supreme Court 5304/15. Israeli Medical Association et al. v. Israeli Parliament et al. 2016). While administrative arrests are not illegal under International Law, the UN Independent Commission set to investigate the 2014 Israeli operation in Gaza, was ‘concerned that Israel appears to use this form of detention more broadly than justified by the law’ (Report of Detailed Findings of The Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1 2015: 134). According to the Commission, the transfer of these detainees from occupied territory to prisons inside Israel constitutes a violation of the fourth Geneva Convention (Report of Detailed Findings of The Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1 2015: 135).
Both authors separately translated the position paper into English. Our version of the paper contains no date or pagination; pagination below added.
‘Israeli Basic Law: Human Dignity and Liberty’, https://www.knesset.gov.il/laws/special/eng/basic3_eng.htm. Accessed 12/2016.
‘Israeli Knesset: Good Samaritan Law’, http://fs.knesset.gov.il//14/law/14_lsr_211515.PDF. Accessed 12/2016.
To be fair to the authors, the Supreme Court, in a ruling following the publication of this position paper, does link this law to canonical Jewish Law, according to which one must save another even if the latter does not wish to be saved (Israeli Supreme Court 5304/15. Israeli Medical Association et al. v. Israeli Parliament et al. 2016, p. 54).
‘Israeli Patient's Rights Act’, http://waml.haifa.ac.il/index/reference/legislation/israel/israel1.htm. Accessed 12/2016.
In fact, ZL has personally treated many patients who failed or succeeded in their suicide attempt.
Section V, subsection 3.
The qualification ‘in this regard’ means that anorexic patients may be competent in other realms and therefore autonomous; they are incompetent only in the context of their diet.
Being medical professionals, at least some of the authors should certainly acknowledge this.
Indeed, this was orally argued by Michael Barlian, the first author of the position paper, in response to ZL’s oral presentation.
To avoid an is-ought fallacy objection, the argument may be formally presented thus: 1. HCPs should follow existing professional ethical guidelines. 2. Professional ethical guidelines forbid force-feeding. 3. HCPs should not participate in force-feeding.
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Lederman, Z., Lederman, S. The land of no milk and no honey: force feeding in Israel. Monash Bioeth. Rev. 34, 158–188 (2017). https://doi.org/10.1007/s40592-017-0071-9
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DOI: https://doi.org/10.1007/s40592-017-0071-9