Ethical Considerations of the Practice of Psychiatry in the Military

Abstract

There are aspects of the medical specialty of psychiatry in which, as the American Psychiatric Association describes in the 2013 “The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry,” the “general (ethical) guidelines [are] sometimes difficult to interpret.” This chapter presents military case studies and illustrates how the areas in which the American Psychiatric Association has chosen to discuss the applicability of general principles to psychiatry could create ethical dilemmas for military psychiatrists. In discussing the guiding principles of ethical psychiatric practice, this chapter focuses on areas where military psychiatry requires special consideration—such as dual agency function with regard to beneficence, non-maleficence, and autonomy—and examines some of the inherent conflicts involved in military practice, such as maintenance of boundaries. The chapter describes unique ethical conflicts inherent to the role of a military psychiatrist regarding the performance of one’s duty in balancing the needs of both the patient and the military service.

Appendices

Appendix 1: Department of Defense Instruction (DoDI) 6490.04 (March 4, 2013)

Hospitalization for Psychiatric Evaluation and Treatment

• (a) Pursuant to a referral, only a psychiatrist, or, when a psychiatrist is not available, a physician or another MHP [mental healthcare provider] with admitting privileges may admit a service member for an inpatient MHE [mental health evaluation].

• (b) The evaluation will be conducted in the most appropriate clinical setting, in accordance with the least restrictive alternative principle.

• (c) Voluntary inpatient admission is appropriate when a psychiatrist, or, when a psychiatrist is not available, a physician or another MHP with admitting privileges, determines that admission is clinically indicated and the service member has the capacity to provide and does provide informed consent regarding treatment and admission.

• (d) An involuntary inpatient admission to an MTF [military treatment facility] is appropriate only when a psychiatrist, or, when a psychiatrist is not available, a physician or another MHP with admitting privileges, makes an evaluation that the service member has, or likely has, a severe mental disorder or poses imminent or potential danger to self or others. Guidelines include:

  • 1. Level of Care. Placement in a less restrictive level of care would result in inadequate medical care.

  • 2. Admission Criteria. Admission is consistent with applicable clinical practice guidelines.

  • 3. Reevaluation Following Admission. The service member will be reevaluated, under the purview of the admitting facility, within 72 h of admission by an independent privileged psychiatrist or other medical officer if a psychiatrist is not available:

    • (a) The independent medical reviewer will notify the service member of the purpose and nature of the review and of the member’s right to have legal representation during the review by a judge advocate or by an attorney of the member’s choosing at the member’s own expense if reasonably available within the required time period for the review.

    • (b) The independent medical reviewer will determine and document in the inpatient medical record whether, based on clear and convincing evidence, continued involuntary hospitalization is clinically appropriate. If so, the reviewer will document the clinical conditions requiring continued involuntary hospitalization and the circumstances required for discharge from the hospital and schedule another review within five business days.

    • (c) The independent medical reviewer will notify the service member of the results of each review.

  • 4. Medical Record Documentation . Documentation of the evaluation encounter, findings, and disposition must be consistent with applicable standards of care and will additionally:

    • (a) Document information pertaining to the inpatient admission in the service member’s MTF electronic health record including at a minimum communication of the assessment of risk for dangerousness, treatment plan, medications, progress of treatment, discharge assessment, and recommendations to commanders or supervisors regarding continued fitness for duty and actions the MHP recommends be taken to assist with the continued treatment plan.

    • (b) Upon discharge, MHPs will provide, consistent with Reference (l), memorandums or copies of consultation reports to the commander or supervisor with sufficient clinical information and recommendations to allow the commander or supervisor to understand the service member’s condition and make reasoned decisions about the service member’s safety, duties, and medical care requirements.

  • 5. Additional Patient Rights. The service member has the right to contact a relative, friend, chaplain, attorney, any office of Inspector General (IG), and anyone else the member chooses, as soon as the service member’s condition permits, after admission to the hospital.

• (e) When a physician who is not an MHP admits a service member pursuant to the referral for an MHE to be conducted on an inpatient basis, the physician will:

  • 1. Make reasonable attempts to consult with an MHP with admitting privileges prior to and during the admission (e.g., by telecommunications).

  • 2. Arrange for transfer to an MHP with admitting privileges as soon as practicable.

• (f) In the case of referral for an involuntary inpatient admission to a civilian facility, guidelines in Reference (n) will be considered, and the process established under the law of the State where the facility is located will be followed. If in a foreign country, the applicable laws of the host nation will be followed.

Appendix 2: “Position Statement on Psychiatric Participation in Interrogation of Detainees” (American Psychiatric Association 2006)

The American Psychiatric Association reiterates its position that psychiatrists should not participate in, or otherwise assist or facilitate, the commission of torture of any person. Psychiatrists who become aware that torture has occurred, is occurring, or has been planned must report it promptly to a person or persons in a position to take corrective action.

Furthermore, no psychiatrist should participate directly in the interrogation of persons held in custody by military or civilian investigative or law enforcement authorities, whether in the United States or elsewhere. Direct participation includes being present in the interrogation room, asking or suggesting questions, or advising authorities on the use of specific techniques of interrogation with particular detainees. However, psychiatrists may provide training to military or civilian investigative or law enforcement personnel on recognizing and responding to persons with mental illnesses, on the possible medical and psychological effects of particular techniques and conditions of interrogation, and on other areas within their professional expertise.

Appendix 3: Department of Defense Directive, “DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning” (Department of Defense 2012)

• 4.1. Basic Principles. Healthcare personnel (particularly physicians) perform their duties consistent with the following principles.

  • 4.1.1. Healthcare personnel have a duty in all matters affecting the physical and mental health of detainees to perform, encourage, and support, directly and indirectly, actions to uphold the humane treatment of detainees and to ensure that no individual in the custody or under the physical control of the Department of Defense, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in US law.

  • 4.1.2. Healthcare personnel charged with the medical care of detainees have a duty to protect detainees’ physical and mental health and provide appropriate treatment for disease. To the extent practicable, treatment of detainees should be guided by professional judgments and standards similar to those applied to personnel of the US Armed Forces.

  • 4.1.3. Healthcare person23.443 ptnel shall not be involved in any professional provider-patient treatment relationship with detainees, the purpose of which is not solely to evaluate, protect, or improve their physical and mental health.

  • 4.1.4. Healthcare personnel, whether or not in a professional provider-patient treatment relationship, shall not apply their knowledge and skills in a manner that is not in accordance with applicable law or the standards set forth in Reference (c).

  • 4.1.5. Healthcare personnel shall not certify, or participate in the certification of, the fitness of detainees for any form of treatment or punishment that is not in accordance with applicable law or participate in any way in the administration of any such treatment or punishment.

  • 4.1.6. Healthcare personnel shall not participate in any procedure for applying physical restraints to the person of a detainee unless such a procedure is determined to be necessary for the protection of the physical or mental health or the safety of the detainee or necessary for the protection of other detainees or those treating, guarding, or otherwise interacting with them. Such restraints, if used, shall be applied in a safe and professional manner.

• 4.2. Medical Records. Accurate and complete medical records on all detainees shall be created and maintained. Medical records must be maintained for all medical encounters, whether in fixed facilities or through medical personnel in the field.

• 4.3. Treatment Purpose. Healthcare personnel engaged in a professional provider-patient treatment relationship with detainees shall not participate in detainee-related activities for purposes other than healthcare. Such healthcare personnel shall not actively solicit information from detainees for other than healthcare purposes. Healthcare personnel engaged in nontreatment activities, such as forensic psychology, behavioral science consultation, forensic pathology, or similar disciplines, shall not engage in any professional provider-patient treatment relationship with detainees (except in emergency circumstances in which no other healthcare providers can respond adequately to save life or prevent permanent impairment).

• 4.4. Medical Information. Healthcare personnel shall safeguard patient confidences and privacy within the constraints of the law. Under US and international law and applicable medical practice standards, there is no absolute confidentiality of medical information for any person. Detainees shall not be given cause to have incorrect expectations of privacy or confidentiality regarding their medical records and communications. However, whenever patient-specific medical information concerning detainees is disclosed for purposes other than treatment, healthcare personnel shall record the details of such disclosure, including the specific information disclosed, the person to whom it was disclosed, the purpose of the disclosure, and the name of the medical unit commander (or other designated senior medical activity officer) approving the disclosure. Similar to legal standards applicable to US citizens, permissible purposes include preventing harm to any person, maintaining public health and order in detention facilities, and any lawful law enforcement, intelligence, or national security-related activity.

  • 4.4.1. When the medical unit commander (or other designated senior medical activity officer) suspects the medical information to be disclosed may be misused, or if there is a disagreement between such medical activity officer and a senior officer requesting disclosure, the medical activity officer shall seek a senior command determination on the propriety of the disclosure, or actions to ensure the use of the information will be consistent with applicable standards.

  • 4.4.2. Consistent with applicable command procedures, International Committee of the Red Cross physicians shall be given access to review medical records of detainees during visits to detention facilities.

• 4.5. Reportable Incident Requirements. Any healthcare personnel who in the course of a treatment relationship or in any other way observes or suspects a possible violation of applicable standards, including those prescribed in References (b), (c), and (e), for the protection of detainees shall report those circumstances to the chain of command. Healthcare personnel who believe such a report has not been acted upon properly should also report the circumstances to the medical program leadership , including the Command Surgeon or Military Department specialty consultant. Officials in the medical program leadership may inform the Joint Staff Surgeon or Surgeon General concerned, who then may seek senior command review of the circumstances presented. Other reporting mechanisms, such as the Inspector General, criminal investigation organizations, or Judge Advocates, also may be used.

  • 4.5.1. Healthcare personnel involved in clinical practice activities shall make a written record of all reports of suspected or alleged violations in a reportable incident log maintained by the medical unit commander or other designated senior medical activity officer.

  • 4.5.2 Healthcare personnel carrying out BSC [behavioral science consultant] functions under Enclosure 2 shall also comply fully with the reportable incident requirements of paragraph 4.5. They shall make a written record of all reports of suspected or alleged violations in a reportable incident log maintained by the detention facility commander or other designated senior officer.

• 4.6. Training. The Secretaries of the Military Departments and, as appropriate, Combatant Commanders shall ensure healthcare personnel involved in the treatment of detainees or other detainee matters receive appropriate training on applicable policies and procedures regarding the care and treatment of detainees. This training shall include at least the following elements:

  • 4.6.1. A basic level of training for all military healthcare personnel who may be deployed in support of military operations and whose duties may involve support of detainee operations or contact with detainees. The overall purpose of this training is to ensure a working knowledge and understanding of the requirements and standards for dealing with healthcare of detainees.

  • 4.6.2. Periodic provision of refresher training consistent with the basic level of training.

  • 4.6.3. Additional training for healthcare personnel assigned to support detainee operations, commensurate with their duties.

• 4.7. Consent for Medical Treatment or Intervention. In general, healthcare will be provided with the consent of the detainee. To the extent practicable, standards and procedures for obtaining consent will be consistent with those applicable to consent from other patients. Standard exceptions for lifesaving emergency medical care provided to a patient incapable of providing consent or for care necessary to protect public health, such as to prevent the spread of communicable diseases, shall apply.

  • 4.7.1. In the case of a hunger strike, attempted suicide, or other attempted serious self-harm, medical treatment or intervention may be directed without the consent of the detainee to prevent death or serious harm. Such action must be based on a medical determination that immediate treatment or intervention is necessary to prevent death or serious harm and, in addition, must be approved by the commanding officer of the detention facility or other designated senior officer responsible for detainee operations.

  • 4.7.2. Involuntary treatment or intervention under subparagraph 4.7.1. in a detention facility must be preceded by a thorough medical and mental health evaluation of the detainee and counseling concerning the risks of refusing consent. Such treatment or intervention shall be carried out in a medically appropriate manner, under standards similar to those applied to personnel of the US Armed Forces.

  • 4.7.3. Detention facility procedures for dealing with cases in which involuntary treatment may be necessary to prevent death or serious harm shall be developed with consideration of procedures established by Title 28, Code of Federal Regulations, Part 549 (Reference (g)).

• 4.8. Role of the Armed Forces Medical Examiner (AFME) in Death Investigations. As required by the Secretary of Defense Memorandum dated June 9, 2004 (Reference (h)), if a detainee dies, the commander of the facility (or if the death did not occur in a facility, the commander of the unit that exercised control over the individual) shall immediately report the death to the cognizant Military Criminal Investigation Organization (MCIO). The MCIO shall contact the Office of the AFME, which shall, consistent with Reference (h), Section 1471 of Title 10, United States Code, and DoD Instruction 5154.30 (References (i) and (j)), determine whether an autopsy will be performed. The body will be handled as directed by the Office of the AFME. The determination of the cause and manner of death will be the sole responsibility of the AFME or other physician designated by the AFME.

• 4.9. Health Care Personnel Management. As a matter of personnel management policy, except as provided in this paragraph, healthcare personnel’s support of detainee operations is limited only to providing healthcare services in a professional provider-patient treatment relationship in approved clinical settings, conducting disease prevention and other approved public health activities, advising proper command authorities regarding the health status of detainees, and providing direct support for these activities. Medical personnel shall not be used to supervise, conduct, or direct interrogations. Healthcare personnel assigned as, or providing direct support to, BSCs, consistent with Enclosure 2, or AFME personnel, are the only authorized exceptions to this paragraph. The Assistant Secretary of Defense for Health Affairs (ASD(HA)), or designee, must approve any other exceptions to this paragraph.

• 4.10. BSCs. Standards and procedures for BSCs are established in Enclosure 2.

• 4.11. Effect on Legal Obligations. Nothing in this Instruction may be construed to alter any legal obligations of healthcare personnel under applicable law.