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Dual Obligations

Many health professionals have dual obligations (also referred to as ‘dual loyalties’), in that they owe a primary duty to the patient to promote his or her best interests and often a separate duty to employers. There is also a general duty to society to ensure that violations of human rights are prevented, and that the interests of . The dilemmas arising from dual obligations are particularly acute, however, for health professionals working with the police, military, and other security services or in the prison system. In these situations, either through the fact of their employment or ideological reasons, the obligations to their employer (the State) as well as the interests of their employer and their non-medical colleagues may all be in conflict with the best interests of their patients. A military doctor, for example, may belong to the very same government forces to which suspected perpetrators belong, thus interposing the loyalty to their comrades, military unit and military objectives, due to a separate obligation to the individual patient. A military or prison doctor may be under pressure to ignore allegations, or not conduct proper examinations and/or to falsify any record of their findings.

However, health professionals hold a particular duty to act impartially and to document and report any suspected ill-treatment through the appropriate channels. Health professionals must only document that which they have personally verified themselves, and they must document this truthfully, fully and accurately. Health professionals must be able to make clinical decisions independently from employers, governments, and other bodies in order to act in the best medical interests of their patients. They cannot be obliged by contractual or other considerations to compromise their professional independence.

There are various situations in which dual obligations and other ethical and legal issues may arise:

Health professionals undertaking the above tasks may be guilty of playing an active or passive role in the abuse of an individual. In all these cases the health professional must abide by the rules of medical ethics and retain their primary loyalty to the patient, refusing to participate in or condone torture or other ill-treatment, and doing all they can to end the abuse, including the full and accurate documentation of any possible psychological or physical sequelae.

It should be kept in mind that in addition to the principles of medical ethics, health professionals working for the state are also bound by the rules of international law and which could, in certain cases, lead to individual criminal responsibility of the health professional for participation in torture. Obeying the orders of a superior would not provide a defence to a charge of participation in torture.

Forensic doctors may have a different relationship with individuals they examine. In their usual function, forensic doctors have a duty to the courts, to which they provide independent medical expert opinion, even though they may be paid by one or other party. Before beginning any examination, forensic doctors must explain their role to the individual and make clear that medical confidentiality is not a usual part of their role, as it would be in
a therapeutic context, as their primary duty is to objectively document evidence that can be presented to a court. However, forensic doctors should not examine individuals without making clear the nature of their role and gaining specific consent. If consent is refused, this must be noted and respected. Depending on the jurisdiction, following such refusal by the subject, a court order may be required before any examination or taking of samples can
proceed. The forensic doctor should seek to include in their findings and report, only that medical information that is relevant to the case, and should leave out that medical information which can remain confidential to the patient (e.g. if HIV status is not relevant to the case, then it should not be raised in the findings). They must not falsify their reports but provide impartial evidence, including making clear in their reports any evidence of ill treatment.

There is consensus in international and national declarations of ethical precepts that other imperatives, including the law, cannot oblige health professionals to act contrary to medical ethics and to their conscience. In such cases, health professionals must decline to comply with the law or a regulation rather than compromise basic ethical precepts. Whatever the circumstances of their employment, all health professionals owe a fundamental duty to care for the people they are asked to examine or treat. They cannot be obliged by contractual or other considerations to compromise their professional independence. They must make an unbiased assessment of the patient’s health interests and act accordingly.