The Rest of the Story

The WaPo published an article on the abuse of medical records at Guantanamo. 

Detainees' Medical Files Shared
Guantanamo Interrogators' Access Criticized

By Peter Slevin and Joe Stephens
Washington Post Staff Writers
Thursday, June 10, 2004; Page A01

Military interrogators at the U.S. detention facility at Guantanamo Bay, Cuba, have been given access to the medical records of individual prisoners, a breach of patient confidentiality that ethicists describe as a violation of international medical standards designed to protect captives from inhumane treatment.

The files, which contain individual medical histories and other personal information about prisoners, have been made available to interrogators despite continued objections from the International Committee of the Red Cross, according to interviews and documents obtained by The Washington Post. After discovering the practice in mid-2003, the Red Cross refused to send medical monitoring teams to the facility for more than six months, sources said. [...]

This was commented upon by few bloggers.  Bete, at  Self-Indulgent Record of Idle Time,  copied the article to her blog without comment.  Based upon the context (the themes of adjacent posts) it appears that she is bothered by the report.  In contrast, Dr. Cori Dauber, on Rantingprofs, is troubled by the fact that some people are offended by the report.  Similarly, Greg, on Gregnews,  states:


Which view is "correct" ?  

Dr. Dauber's post is entitled "HERE'S WHERE I JUMP OFF THE BANDWAGON."  Excerpt follows:

Another stunning revelation in the on-going prisoner abuse scandal: medical personnel treating detainees at Guantanamo Bay have made detainee files available to interrogators.

Well apparently this just has all kind of very fine people very upset.

Are you kidding me? They're being held in detention because they're al Queda members and they're supposed to have the same privacy restrictions on their medical files as, oh, I don't know, people who don't blow people up as a career choice?

Cry me a damn river. I'm not kidding, I just don't care. Show the interrogators every scrap of information we get on these people.

We don't want them beaten? Excellent. I'm all in. But that means it's a psychological game between the interrogators and the detainees, and every single bit of information the US side -- anyone on the US side -- has available to bring to bear helps construct a strategy for that game. So long as they aren't actually denied appropriate medical care, and there's no evidence at all that's the case, go for it.

Apparently, she does not agree with these statements, from the WaPo article:


Ok, there are three experts in medical ethics who agree that the disclosure of medical records -- for the purpose of interrogation -- is unethical.  And one professor of Communication Studies, plus one nearly-anonymous blogger,  who think it is OK.  Dr. Dauber is entitled to her opinion, as is Greg.  I hasten to add that Dr. Dauber includes some things in her post that I agree with.  But she is wrong to state that interrogators should have access to medical records.  The fact that there is no established international law governing medical confidentiality is immaterial.  (Our Administration has nothing but contempt for international law; so even if there were such a law, it would be no deterrent.)  The problem with giving interrogators access to medical records has to do with medical ethics, most of which are traditional, not legal. 

In daily practice, it is common for me to get requests for medical information, and I refuse to give it.  When I do so, I invariably get a ream of paper over the fax machine that points out that the request is legal.  I invariably send a note back to the insurance company/employer/attorney, saying something like "OK, maybe it's legal, but it also is unethical." 

For a medical professional to turn over records, to the detriment of the patient, can be permissible under narrowly defined circumstances.  The circumstances vary, but in all cases, there is a due process involved.  This often involves judicial oversight, duly constituted administrative oversight, or at least a carefully worded bit of legislation that clarifies the exact circumstances in which disclosure is necessary.  For example, if a patient tells a medical professional of a credible plan to kill or seriously harm an identified third party, the doctrine of duty to warn  is invoked.  I've done this myself a few times, and I agree that it is a valid legal principle. 

One might argue that, in wartime, it is OK to bend the rules:  If it is permissible to warn someone based upon the content of certain privileged information, perhaps we could extend that a little bit, and use privileged information to find out if a danger exists.  This, obviously, would be analogous to abandoning the doctrine of probable cause.  The principle of probable cause is one thing that keeps us from being a totalitarian state.  Giving this up would be extremely dangerous.  The US government is more powerful than any terrorist organization, and it needs to be constrained.  Moreover, and more to the point, medical knowledge is dangerous, and generally should be limited to benevolent purposes.  If there are to be exceptions, as with the duty to warn, these exceptions should be delineated in a democratic forum. 

It is ridiculous to say that exceptions are appropriate just because we are in a War on Terrorism.  It is disingenuous to imply that bending the rules is OK because we are in an exceptional circumstance.  Terrorism will never go away.  Thus, any "exceptions" will not really be exceptions; they will be the new standard operating procedure.  If we want to change our standard procedure, well, let's do that; but let's do it with a clear understanding that it is not because of an exceptional circumstance.