Dr. Emmette Flynn: Second, Do No Harm…?
Patients should be able to decide what happens to them. Doctors should not do things that harm their patients.
According to Wikipedia, the principles are autonomy, the patient’s right to self-determination; and beneficence, serving the best interests of the patient.
Autonomy can come into conflict with beneficence when patients disagree with recommendations that health care professionals believe are in the patient’s best interest. When the patient’s interests conflict with the patient’s welfare, different societies settle the conflict in a wide range of manners. Western medicine generally defers to the wishes of a mentally competent patient to make his own decisions, even in cases where the medical team believes that he is not acting in his own best interests. However, many other societies prioritize beneficence over autonomy.
It’s easy to think of cases in which autonomy and beneficence clash—the patient doesn’t want the medically required treatment, or the patient wants treatment that is not medically helpful (see, e.g., Joan Rivers).
But when could it possibly be okay for a physician to perform a medically unnecessary procedure on a competent but unconsenting patient?
My understanding of medical ethics is informed by reason, by legal ethics, and by Wikipedia. So scholars of medical ethics might have a handy answer to this question other than the one that to me appears obvious, which is:
Never.
A couple of days ago I mentioned a Fifth Circuit opinion in which the court found a search unreasonable but upheld it based on the “good faith” exception to the Fourth Amendment’s reasonableness requirement. The opinion keeps bugging me because of something that wasn’t legally relevant: San Angelo, Texas surgeon Dr. Emmette Flynn’s nonconsensual and medically unnecessary sedation and performance of a proctoscopic examination on a suspect.
As far as I can tell, there is no authoritarian “compliance with law” exception to the principles of autonomy and beneficence. There shouldn’t be. Medical professionals making exceptions to both of those principles to comply with the sovereign’s commands (First, do what the government says) would be well down a slippery slope that we’ve slid down before. So if Dr. Emmette Flynn had been ordered by a court to perform an unnecessary and risky procedure on an unconsenting competent patient, he should have refused on ethical grounds and called a lawyer to fight the order.
But the state didn’t have to order Emmette Flynn to cooperate; he violated his Hippocratic Oath willingly:
The judge ordered Gray to be presented to a “qualified medical technician to examine [Gray] for the concealment of controlled substances and to remove said controlled substances from his body in accordance with recognized accepted medical procedure as described in [Hethcock’s] affidavit.”
Assuming for the sake of argument that Emmette Flynn is not a sociopath to whom medical ethics mean nothing, all it took for him to cast those ethics aside was a police officer asking for help.
If Emmette Flynn had said to the police, “I can’t do that without the patient’s consent,” Rondrick Gray wouldn’t have been subjected to what the Fifth Circuit described as “one of the greatest dignitary intrusions that could flow from a medical procedure.” That’s entirely on Flynn, the doctor sworn to do no harm.
This is a problem with American society: that Americans are too willing to unquestioningly do what the government asks. Just as Emmette Flynn could have prevented Mr. Gray’s degradation by simply behaving as medical ethics require, every American could prevent any number of violations of our privacy and dignity by critically examining the demands of the government, and then following the dictates of their consciences.
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I’ve blogged about this issue myself (in regard to a forced catheterization to draw urine as DUI evidence in Indiana). It seems to me that doctors could ethically refuse to perform the invasive procedure since it serves no medical purpose. The published AMA Code of Ethics wasn’t much help, and neither was an email to their press office. They address the issue of court-ordered treatment (where the court can substitute for the patient’s judgement but not the doctor’s) but not of forensic testing.
You wrote: “So if Dr. Emmette Flynn had been ordered by a court to perform an unnecessary and risky procedure on an unconsenting competent patient, he should have refused on ethical grounds and called a lawyer to fight the order.”
Could a court actually order a doctor to do something like this and make it stick? I imagine it could order a criminal suspect to submit to such a procedure, or if the doctor had already performed the procedure, I imagine he could be ordered to disclose what he discovered, but how could a court order a random physician, otherwise unconnected to the case, to perform a medical procedure? (Or, as is often the case, does my imagination have no connection with legal reality?)
I’m not sure whether a court could order a doctor to do something that otherwise violates ethical rules and make it stick. In Texas state court, maybe not—there is no provision for writs of assistance—but I think I recall some litigation on the subject a couple of years ago. I’ll try to dredge it up.
There is a federal statute providing for writs of assistance (used in the case of the encrypted hard drive that we discussed recently). Could the court order a doctor to do something unethical if the doctor grew a spine and resisted? I don’t know.
We’re no longer on a slippery slope to totalitarianism; we’ve slid down that razor blade and are flopping around in a bath of lemon juice.
I can’t believe this decision–and that’s coming from someone who absolutely marinates in doom-porn.
An interesting side effect of this decision, and many others like it, and the (new) possibility that any arrest might lead to indefinite, silent, trial-less detention is this: people might decide they’ve got nothing to lose, and fight back vigorously against ANY arrest.
Because if arrest can lead to barbarism like this, or indefinite detention (neo-speak for Gulag), what’s left to lose? I’d fight if I thought odds were good I’d be brutalized in this manner…or worse.
Perhaps being a cop is actually going to move you into that top ten of the most dangerous occupations after all. I’m sure they’ll feel comfortably justified in their preoccupation with “officer safety” then, too.
Mark,
Prof. Eugene Volokh highlights cases of non-consenting medical treatment on a regular basis. While plenty of the cases are definitely marginal on the competency issue there have been some where the ordered procedure was not for the patient’s benefit at all but that of a third party (thinking of a pregnant woman ordered to undergo a caesarian).
Doing a search on volokh.com would turn up quite a few posts on the topic.
Windy has a point. While the court could (and did) order the procedure, Dr. Flynn was not personally ordered to perform the procedure, nor could the court order Dr. Flynn personally to do so as the court had no jurisdiction over the doctor. Without the willing cooperation of a doctor, it’s a procedure without anyone to perform it.
Thus, it takes two to tango, a court to order it and a doctor who is willing to perform it, contrary to medical, if not legal, ethics. I envision the police in the ER calling out, “anybody want to perform a forced cour-ordered colonoscopy?” and seeing how many doctors raised their hands.
I similarly imagine that the question wasn’t whether it violated medical ethics, but who would pay for the procedure, and whether there was a co-pay. Chances on getting the co-pay are poor under the circumstances.
I see from the government’s response to the defendant’s motion to suppress that the government claimed that “medical staff felt that if Gray had illegal narcotics concealed in his rectum, they should be removed as soon as possible because they would pose a health risk if they were to get into his blood system.” I’ll bet hospital administrators have a code for that.
But it’s medically wrong—the police were looking for cocaine base, which is not water soluble and so wouldn’t have any way to pass from the large intestine to the bloodstream—so it can’t justify a nonconsensual procedure.
The Search Warrant only compelled the suspect to submit to this ‘medical’ procedure – and did not actually order a particular doctor to conduct it.
Remarkably, it sanctioned only a ‘qualified medical technician’ – not even a doctor.
In contrast, a doctor might be expected to submit to a higher standard of professional ethics than a mere paramedic or nurse – or x-ray technician.
Notwithstanding the authority of the Search Warrant, the doctor should still have canvassed the suspect’s consent.
Particularly given the caveat in the Warrant – that this be done ‘in accordance with recognized medical procedures’.
That consent should be fully informed.
Astonishingly, it was not sought by Dr. Flynn. Nor did he even read the Warrant.
The doctor should not have even distinguished between a suspect (who is not his patient as such) who was not formally consenting, but was otherwise passively accepting an invasive procedure – and a more confrontational suspect who has made their opposition clear.
In either circumstance – where fully informed consent is not forthcoming – the doctor should not proceed. If the suspect says anything, which suggests that he is not consenting – express or implied – the doctor should not act. The suspect should never be subject to coercion. That would be ethically unsound.
The physician’s professional code surely compels that – and he should be particularly conscious of that, where he is not being employed in a therapeutic capacity.
[In the UK, while it is technically lawful for some intimate body searches to be undertaken without consent, the British Medical Association (BMA) considers that doctors should only ever participate with the individual’s consent. The Court can then always draw an adverse inference from the suspect’s refusal to submit – or deal with his refusal to co-operate as a Contempt of Court – but the issue should never be forced. There are other sanctions available, which avoid the totalitarian slippery slope.]
The problem in any assessment as to the admissibility of evidence is that just because something is unethical, doesn’t necessarily render it unlawful.
The Court might say that the disgruntled suspect can always take up the issue with the doctor’s professional body. But that’s hardly a practical or effective remedy.
But for a police surgeon to carry on regardless – or fail to properly canvass the suspect’s consent – is surely inconsistent with good faith.
And how can such a casual disregard for medical ethics, be consistent with good faith on the part of the doctor?
‘Marinating in doom-porn’ – outstanding turn of phrase!
I always enjoy when professional factual representations are made by the amorphous “medical staff” about the amorphous “narcotics,” and that the judge would find this a perfectly accepteble showing. Details are for kids.
Thanks for this incisive post, it has put a finger on something that I have been trying to express for awhile to, for and about many of my online friends who are from the US. The conundrum, how does a nation that has such a high emphasis on ‘freedom’ and ‘independence’ produce so many people who appear to me at least to have no idea about either? And it seems, the more educated, the more so. Weird, unless one takes on board gramscian notions of hegemony and so forth.
Anyways, thought provoking as always. Thanks for your blog, showing again that my simplistic generalisations about lawyers, americans or whatever, are often wrong.