National security and the secrecy surrounding military operations present a challenge to affording soldiers the information they require to inform their consent.
One of the principal concerns regarding the use of performance-enhancing drugs by the military is the issue of consent. In the UK, the government and its armed forces have a legal and moral duty of care to soldiers. This includes the prevention of sickness and the maintenance of health of all service personnel, as well as protection against infection diseases, lethal agents and a range of other hazards. The government also owes soldiers a duty of care to allow them voluntary and informed consent to medical procedures. This level of consent is set out legally in the European Convention on Human Rights and Biomedicine, which states that a medical intervention ‘may only be carried out after the person concerned has given free and informed consent to it’. However, the nature of the military organization is such that achieving fully voluntary and informed consent is challenging for a number of reasons.
The hierarchical structure of the armed forces means that soldiers are likely to perceive a degree of coercion from the chain of command – whether coercion genuinely exists or not – to undergo treatment, particularly where failure to do so will render them unfit for operational duty. Such decisions can affect a soldier’s career, as well as military capability, especially where the individual is a specialist who is critical to the mission, such as a bomb-disposal expert or front-line pilot. In addition to chain of command and career pressure, soldiers are likely to experience peer pressure or guilt, where failure to accept medical intervention places an additional burden on their colleagues.
There is latitude within human rights law to compel soldiers to undergo medical intervention without the requirement for consent, but strictly on the basis of public safety and in circumstances where this is necessary for the protection of the rights and freedoms of others. These are termed exceptional circumstances: in the US, such measures require presidential authorization and are only permitted under conditions where obtaining consent is not feasible, is contrary to the best interests of the soldier, or is not in the interests of national security.
National security and the secrecy surrounding military operations present another challenge to affording soldiers the information they require to inform their consent. An example of this can be found in the implementation of the immunization programme against biological warfare agents for UK troops during the Gulf War in 1990–91. Soldiers deploying to the Gulf faced the possibility that Iraq might use chemical and biological weapons of mass destruction against them, and the UK government embarked on a programme of medical countermeasures to protect its troops. Soldiers received vaccinations against anthrax, bubonic plague and whooping cough (pertussis), but due to the requirement to prevent Iraq from learning of the nature of these medical countermeasures, the programme was classified as secret. This security classification had the unintended effect of inhibiting the flow of information within the armed forces, and much less information was provided to soldiers than would satisfy the requirements of informed consent. The outcome at the time was that, due to operational security measures, many soldiers had no real understanding of what the immunization programme involved, or what vaccines they were given.
It can be expected that any pharmacological performance-enhancing programme in the military is likely to have a similar security classification, which places greater onus on those authorizing and administering their use. One key cohort is military medical officers – those doctors and medical practitioners employed within the armed forces who hold responsibility for providing treatment and medical cover to soldiers on operations and in barracks. Unlike most civilian doctors, the nature of the military doctor’s role is one of dual loyalties: as a doctor, to their patients, and, as an officer, to their chain of command. These loyalties have the potential to come into tension, where a doctor’s ethical obligation to patients comes into conflict with the demands of military necessity. This could occur, for example, in managing the restrictions of patient confidentiality against justifiable military concerns regarding a soldier’s fitness for active service, or when triaging casualties according to their clinical needs in conflict, regardless of which side they fought on.
Healthcare professionals in the armed forces operate within the hierarchical military structure and are bound by service law to obey the lawful commands of those in positions of authority. In the UK, they are also regulated by their statutory professional regulator, for example the General Medical Council, while the various professional bodies, such as the medical Royal Colleges, have always maintained an interest in healthcare within the armed forces and perform a role in the training of healthcare professionals working therein. Involving healthcare professions in any pharmacological performance-enhancement programme risks a conflict between the dual obligations – to their professions and to the military – which would be damaging to the relationship between the two, with implications for recruiting, retention and public relations. Any plans for the implementation of a pharmacological performance-enhancement programme in the UK would need to take account of this potential tension. However, as any programme would presumably be preceded by trials, which would require the approval from the Ministry of Defence’s independent Research Ethics Committee, many of the potential issues would be addressed as part of such a trials process.
Another related challenge to soldier consent in administering performance-
enhancing drugs in the military is their uptake. Where uptake is mixed – and some soldiers are willing to take drugs while others are not – a situation could arise whereby a unit of soldiers has significant performance disparities among its members. This would leave commanders with a predicament over whether to entirely decline the administration of drugs, or to permit some troops to take them and bear the additional risks and burden, as well as shouldering the damage such a split may confer on unit cohesion. The decision would depend on the scenario, but could present further ethical dilemmas if those accepting performance enhancement were remunerated for doing so, as with other higher-risk, arduous and unpleasant duties in the military. Furthermore, if soldiers under the influence of performance-enhancing drugs performed acts of exceptional bravery, would they still be recognized with awards in accordance with the prevailing honours system? Such potential for additional pay and medals further clouds the nature of consent to taking performance-enhancing drugs in the military.
While the law permits occupational consent under the requirements of health and safety, pharmacological performance enhancement in the military would be unlikely to comply with such law.
One possible approach to the position of mixed uptake is to implement a system of ‘occupational consent’, where individuals have a right to refuse, but are excluded from the occupation if they do so. This is permissible in the UK under the Health and Safety at Work etc. Act 1974 (HSW Act), where it is necessary to protect the health and safety of those at work and others who may be affected by their work activity, although the armed forces can claim exemption from some requirements of the HSW Act. Such occupational consent is common among healthcare professionals, such as those undertaking exposure-prone procedures – like surgery – who are required to be vaccinated against hepatitis B, or hospital laboratory staff who may be exposed to pathogens and other hazardous substances. Other examples of workers to whom occupational consent might apply include astronauts, scientists who overwinter in the Antarctic (who, if working in the Australian Antarctic, are required to have their appendix removed prior to deployment), or those who travel abroad for work to countries that mandate a yellow fever immunization certificate for visa entry. However, while the law permits occupational consent under the requirements of health and safety, pharmacological performance enhancement in the military would be unlikely to comply with such law.
