The Role of the Medical Officer in the Soldier’s Enhancement

In: European Journal of Health Law
Author: Renaud Bouvet1
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  • 1 Centre hospitalier universitaire de Rennes, service de médecine légale, Université de Rennes 1, Institut du droit public et de la science politique, Centre de recherche des Ecoles de Saint-Cyr Coëtquidan, France

Abstract

Increasing a soldier’s perception, action and survival abilities responds to an operational need justified by the evolution of the battlefield. The available or conceivable means are multiple, including invasive techniques involving the soldier’s mind and body. This field of intervention places the medical officer at the centre of the debate, as a guarantor of the soldier’s aptitude for combat, and as a possible actor of the soldier’s enhancement. The conditions of consent and medical necessity seem overwhelmed by the challenges of using a technique of enhancement in this context. Consent indeed appears necessary, but insufficient to justify its implementation, and the requirement of medical necessity seems obsolete, as the normal/pathological dichotomy that structures the medical thought is outdated, the goal being to reach a “supranormality”. Moreover, the decision-making process creates a tension concerning the articulation of the aim of medical practice with the operational objectives.

Abstract

Increasing a soldier’s perception, action and survival abilities responds to an operational need justified by the evolution of the battlefield. The available or conceivable means are multiple, including invasive techniques involving the soldier’s mind and body. This field of intervention places the medical officer at the centre of the debate, as a guarantor of the soldier’s aptitude for combat, and as a possible actor of the soldier’s enhancement. The conditions of consent and medical necessity seem overwhelmed by the challenges of using a technique of enhancement in this context. Consent indeed appears necessary, but insufficient to justify its implementation, and the requirement of medical necessity seems obsolete, as the normal/pathological dichotomy that structures the medical thought is outdated, the goal being to reach a “supranormality”. Moreover, the decision-making process creates a tension concerning the articulation of the aim of medical practice with the operational objectives.

1 Introduction

The quest for supremacy on the battlefield has always impelled armed forces to formulate policies for research and development of new tools. The sciences, both pure and applied, and their conversion into real-world applications, via technology, are integral to meeting these operational needs. For a long time, the primary focus of science and technology has been the soldier’s equipment, that is their weaponry — the items provided to allow them to accomplish their mission as well as possible. The use of science and technology regarding the soldiers themselves has not been considered, other than through better understanding of physiological processes translating into improvements in training, resistance and recovery — within the conventional framework of medical practice. In the words of Clausewitz, in his book “On War”, published in 1832: “Wearing down the enemy in a conflict means using the duration of the war to bring about a gradual exhaustion of his physical and moral resistance”.1 This is therefore a constant preoccupation of armed forces and it has given rise to abundant research and applications.

There is a long history of pharmacology being mobilised in the institutional setting, with active chemical substances at the disposal of armed forces. However, the last decade or so of scientific progress has been characterised by the convergence of materials science and life science, such that one can begin to envisage new perspectives. We are referring to the concept of NBIC convergence,2 that is the convergence of nanotechnology, biotechnology, information technology and cognitive science, with a view to technically improving human beings. This improvement is evidently of interest to armed forces, and opens up new horizons for the application of NBIC convergence to the military domain, and more specifically, the soldier’s body: increasing strength, aggression and resistance in combat; enhancement of cognitive and psychological abilities, improving the soldier’s ability to process data, make decisions and manage stress; optimising recovery, such that employability is increased. By analogy with the “enhanced human being” promoted by the transhumanist movement,3 it is now possible to envisage an “enhanced soldier”.4

The possibility we have just announced might be hard to comprehend, and may even seem like science fiction. However, it is far from a fanciful supposition. First, the pharmacologically constructed superwarrior5 is a longstanding reality: to cite a few examples, the use of hallucinogens by the Yanomami Indians, rum by English sailors, Pervitin by Luftwaffe pilots. It was Ehrenreich who said that “if there is a destructive instinct that impels men to war, it is a weak one, and often requires a great deal of help”.6 Second, scientific programmes with strong civilian and military institutional support are currently under development, for example, the BrainAPP project, a closed-loop brain-computer interface application for enhanced cognition that is under testing in primates and the NeuroFAST Programme by the U.S. Defense Advanced Research Projects Agency.

It is impossible to conceive of the development, implementation and evaluation of these techniques without adopting a multidisciplinary approach. This is the aim of the “Enhanced soldier” programme initiated by the Research Centre of the Saint-Cyr Military Academy (France), programme that we are associated with. In relation to these performance-enhancing methods, involving interventions to the soldier’s body and/or mind, there needs to be a debate about what role the medical officer will play — or not play. Not just from the point of view of carrying out a medical evaluation of fitness for military service or for enhancement, but also for performing the enhancement, whether via a prescription or a surgical procedure.

The consideration of the medical officer’s role in implementing enhancement techniques leads to consideration of whether this possibility should fall under the scope of ordinary law. Given that the physician will potentially be infringing the subject’s physical and psychological integrity, it becomes necessary to examine the legality conditions of medical procedures in relation to enhancement for military purposes. In other words, to examine the medical necessity underpinning the enhancement (2) and the decision-making process for the enhancement (3).

2 The Medical Necessity of the Enhancement

Regardless of the military context, it may seem inappropriate to discuss the medical necessity of enhancing human performance, given how far removed the goal and the rationale are from standard medical practice — even in relation to the most technical and innovative techniques in medicine, such as predictive medicine.

The medical necessity that justifies a physician’s intervention and the possible infringement of the patient’s physical or psychological integrity is concerned with protecting health. The physician mobilises their scientific and technical knowledge and skills from the point of view of the individual (prevention, diagnosis, treatment), or the collective (research but also compulsory vaccinations). The World Health Organization defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”, but it should be recognised that this definition is very broad, not to mention idealised. In practice, protection-orientated medical interventions are based on the fundamental normal/pathological dichotomy.7 Such an evaluation is certainly reductive and imperfect, notably because it disregards inter- and intra-individual variability. It does however, have the merit of imposing an evaluation of medical necessity, albeit one that categorises individual situations using a nosology-based system.

The mission of the medical officer has the same purposes, but we would also add evaluation of fitness for military service, which could however be subsumed into preventive medicine. Hence, from the point of view of establishing the legal criterion of medical necessity, there does not seem to be a difference between medical officers and their civilian counterparts.

Enhancement of human capacities is essentially concerned with supranormality,8 and as such, is situated in a different domain, beyond notions of normality and pathology. The endpoint, unlike in standard medicine, is not to restore nature, as it is disconnected from the notion of health. The physician’s role here would no longer be that of a guarantor of health, but as a technician of the human body. Physicians have a legal monopoly to infringe upon the subject’s right to physical and psychological integrity for the sake of protecting health; should physicians be provided the same legal status for an intervention justified not for medical reasons but for the physician’s reasons? And if the answer is ‘Yes’, with what modalities? In other words, can enhancement be considered a medical necessity from a legal viewpoint?

In the view of Caire, the dialectic opposing charis and hubris should be the guiding principle in matters of enhancement, in bioethics law, and subsequently, in other branches of law.9 This dichotomy allows a distinction to be made between enhancement-repair (charis) and enhancement-improvement (Promethean hubris), and also places them within the scope of ordinary law that lays down the required criteria of medical necessity and consent. This author’s interpretation is mitigated by the fact that the law would only accept individual enhancements that were palliative and curative, due to the requirement that the additional imitatio naturae criterion be fulfilled, as is the case for medically assisted procreation with a third-party donor and organ transplantation. If we subscribe to the repair/improvement distinction, it seems that medical techniques for repair represent a medical necessity, which can be readily established, and which does not strictly speaking constitute an enhancement but a correction. In other words, repair still falls within the domain of health, which is to be restored via treatment, whereas improvement, which is the enhancement of human performance, is beyond the notion of health. Hence it is necessary to determine whether such an improvement constitutes a medical necessity.

The law is already familiar with the medical necessity of improvement procedures, for example in relation to aesthetic surgery and doping. In its purely aesthetic dimension, plastic surgery does not come under the scope of prevention, diagnosis or treatment, nor does it achieve a collective health outcome. In recognition of this, French legislators established a special framework,10 which though not defining aesthetic surgery, does uphold the criterion of medical necessity.11 A contrario, necessity has been denied as a criterion for using medical means to improve sports performance. Doping is not explicitly defined by the World Anti-Doping Code; it is deemed to have occurred when rules laid down in the code are breached.12 Given that sports are freely undertaken activities, a doping ban is only applicable in competitions. Therefore, the justification of the ban is not solely on the grounds of promoting fair competition; if this were the case, we could debate the medical necessity of doping outside of competitions. In fact, the primum movens of the doping ban is to protect the health of athletes.13 So not only is it impossible to establish the medical necessity of these practices, but the physician, recognised possessor of medical knowledge and with a duty to protect the subject’s health, is not even allowed to consider the possibility. Therefore, medical procedures to improve human performance must be evaluated in terms of risks and benefits.

So what stand should the law take in relation to a medical officer who participates in the implementation of an enhancement technique?

First, it should be pointed out that medical officers are committed to their mission to protect health, to exercise their profession in line with the medical necessity of ordinary law — this excludes in principle their participation in the execution of an enhancement measure. Senior Medical Officer Canini, head of the Department of Neurosciences and Operational Constraints of the French Armed Forces Institute of Biomedical Research, believes that being a physician amounts to formal disqualification from participation in the development of weaponry, which belongs to the field of life engineering not medicine.14 This approach seems to be shared by the majority of military healthcare practitioners, and a priori rules out their performing irreversible invasive procedures, which would not be repairs but actual enhancements. The professional stance of medical officers is entirely consistent with the code of ethics applicable to military healthcare practitioners, who, under French law, have a duty to follow the general principles of the medical profession.

This principled stance is however legally mitigated by the specificity of the mission assigned to the medical officer, who is subject to the traditions and specific values of the groups in which they serve, the principles of medical ethics and military rank.15 Two conclusions should be drawn from this mitigation. The first is that the medical officer, in their capacity as an officer and a physician, has two relationships of subordination, a “dual loyalty”.16 The second stems from the first. The mandate granted to the medical officer is a special mandate, and can only be assimilated with the mandate of a civilian physician up to a certain point. Specifically, the mandate is to contribute, via their unique skills, to the success of the military forces of their country. In respect of medical ethics, certainly, but above all in compliance with the applicable legislation, which provides for different legal treatments in different situations. In our opinion, medical necessity in the military context is one such situation. However, it warrants a special legal framework, which derogates from the principle whereby a medical procedure is only performed for the purposes of prevention, diagnosis or treatment. The onus is therefore on legislators to take measures to regulate these new practices, for the sake of legal compliance, from the viewpoint of the physician and the soldier and also that of the military institution and society.

If we accept a special medical necessity justified by the particular mandate granted to the medical officer, it then becomes necessary to debate the decision-making process for the enhancement procedure and what role the physician should play within this process.

3 The Decision-making Process for the Enhancement

In relation to enhancement techniques, the decision-making procedure seems to us to be at the crux of the discussion, in view of the possibilities currently “routinely” available to armed forces. These methods are essentially pharmacological ways of modifying the circadian rhythm, whether to maintain wakefulness (Go pills) or to induce sleep to allow recovery (No-Go pills). The fact that these are medicinal products leads to a series of questions about the conditions of their use and the role of the medical officer in terms of indication (i.e. necessity), providing information to and obtaining consent from the soldier, and liaison with Command.

If we examine the procedures currently in force in the French armed forces and the US Air Force, it is apparent that use of these pharmacological measures is subject to a hybrid decision-making process involving Command and the health service. The framework in both military institutions is quite comparable. The US Air Force has extensive experience in this field, with the Strategic Air Command having officially approved the use of amphetamines in 1960, followed by the Tactical Air Command in 1962.17

In a rather traditional manner, the procedure is based on the principles of subsidiarity and necessity. With regard to the subsidiarity criterion, the use of vigilance-modifying substances is only envisaged when non-pharmacological measures to counteract fatigue are insufficient or inapplicable. With regard to the necessity criterion, it is interesting to note that the US Air Force conceives Go pills as a means to increase not the pilot’s performance but the safety of the flight,18 a subtle but informative distinction from the point of view of the standpoint of command vis-a-vis use of pharmacological methods, and one that ties in with the notion of medical necessity already discussed. A case in point is that during Operation Enduring Freedom, B-2 bomber missions in Afghanistan departing from Whiteman Air Force Base could last up to 44 hours, making them the longest in the history of aviation.19 Without a doubt, the focus on flight safety means that pharmacological methods will be used more readily, whenever the benefits from using them outweigh the risks, a condition for enhancement that as already mentioned is medically acceptable.

In accordance with the provisions currently in force in the French armed forces,20 it is the remit of command to evaluate the necessity of using these substances. This evaluation seeks to determine whether the nature of the mission to be carried out and/or the predicted evolution of the conditions of military activity justify the use of pharmacological aids, and takes into account the recovery conditions analysed by the commanding officer. In this, the first stage of the evaluation, command is supported by the health service in the capacity of technical advisor. The procedure is conducted on the level of the unit rather than the soldier-individual, as a function of the mission’s constraints. It culminates in an authorisation decision by Command specifying the nature of the substances that may be used, the categories of personnel and the corresponding activities.

The role of command is therefore limited to a collective evaluation of implementation of the enhancement, informed by the technical advice of the health service. The procedure applicable in the US Air Force is comparable. The wing commander and senior flight surgeon certify that the use of Go pills is appropriate, and that all other fatigue management tools have been considered and will be used to the maximum extent possible.21

In relation to this authorisation, the medical officer will intervene at the level of the individual, according to modalities that are actually very similar to those of conventional medical care. First, to determine the soldier’s fitness for the enhancement by testing for efficacy and tolerance — for aircrew, this testing is always done on land. Second, to prescribe the previously authorised substance in accordance with the usual modalities of a medical prescription, i.e. within the limits of the current body of scientific knowledge and the soldier’s consent. The soldier is free to grant or refuse consent after receiving clear, fair and appropriate information. If consent is refused, the physician then has to provide their opinion on the soldier’s fitness without the enhancement.

It is worth highlighting that in this procedure, involving a collective authorisation followed by an individual prescription, the decision to execute the prescription lies solely with the service person.

Thus considered, the physician’s role in the implementation of enhancement techniques does not appear to pose any particular legal difficulties when one recognises the special medical necessity linked to the practice of military medicine. The decision-making procedures currently in force endeavour to stay within the standard framework of medical prescriptions and its standard conditions, namely, compliance with the current body of scientific knowledge, provision of information, consent and right to refuse. Undoubtedly, this resemblance is what makes the procedure acceptable and probably explains the absence of special legal provisions. Finally, the justification of medical intervention on the grounds of safety places it squarely in the domains of prevention and fitness, which are the usual domains of the medical officer.

4 Conclusion

The enhancement methods currently available do not seem to diverge from the standard framework of medical intervention to an extent that justifies the creation of a special normative environment. Although medical prescription legislation appears sufficient to ensure legal compliance surrounding use of pharmacological methods, this will probably not be the case for surgical interventions, for example implantation of biotechnology devices, currently envisaged in research, which would require a special legal framework and answers to the unresolved matter of whether and to what extent physicians could or would wish to be involved.

1

C. von Clausewitz, On War (Princeton: Princeton University Press, 1989) p. 36.

2

M.C. Roco and W. Sims Bainbridge, Converging Technologies for Improving Human Performance. Nanotechnology, Biotechnology, Information Technology and Cognitive Science (Dordrecht: Kluwer Academic Publishers, 2003).

3

L. Frippiat, ‘L’amélioration technique de l’être humain: introduction aux différents courants du débat’, Journal international de bioéthique 22(3-4) (2011) 33-50; E. Kleinpeter, ‘Présentation générale. L’homme face à ses technologies: augmentation, hybridation, (trans)humanisme’, in: E. Kleinpeter (ed.), L’humain augmenté (Paris: CNRS éditions, 2013) pp. 11-30; J. Perriault, ‘Le corps artefact. Archéologie de l’hybridation et de l’augmentation’, in: Kleinpeter (ed.), ibid., pp. 37-53.

4

D. Shunk, ‘Ethics and the Enhanced Soldier of the Near Future’, Military Review (Jan-Feb 2015) 91-98.

5

Ł. Kamieński, Les drogues et la guerre. De l’antiquité à nos jours (Paris: Nouveau-Monde Editions, 2017).

6

B. Ehrereich, Le sacre de la guerre. Essai sur les passions du sang (Paris: Calmann-Levy, 1999).

7

G. Canguilhem, Le normal et le pathologique, 12e éd. (Paris: Presses universitaires de France, 2013).

8

S. Rothman and D. Rothman, The Pursuit of Perfection: the Promise and Perils of Medical Enhancement (New York: Pantheon Books 2003) p. XIII.

9

A.B. Caire, ‘L’homme augmenté et le droit. L’éthique juridique entre charis et hubris’, Revue de la recherche juridique et du droit prospectif 2 (2014) 655.

10

Code of Public Health, art. L.6322-1 et al.

11

CE, 21 mars 2007, n°284951, D. 2008, p. 1435, obs. J.-C. Galloux et H. Gaumont-Prat.

12

World Anti-Doping Agency, World Anti-Doping Code, 2015, p. 18.

13

A. Lacabrats and J.-M. Pastor, ‘Sport et activités physiques’, Rép. Dr. pén. proc. pén., 2016, n°116.

14

F. Canini, ‘Ethique médicale et homme augmenté: quelques pistes de réflexion’, in: Le soldat augmenté. Les besoins et les perspectives de l’augmentation des capacités du combattant (Paris: Les Cahiers de la Revue Défense Nationale 2017), pp. 181-189.

15

Decree no. 2008-967 of 16 Sept. 2008 stipulating the code of ethics applicable to army practitioners, JORF of 18 Sept. 2008.

16

L. London, L.S. Rubinstein, L. Baldwin-Ragaven and A. van Es, ‘Dual Loyalty among Military Health Professionals: Human Rights and Ethics in Times of Armed Conflict’, Cambridge Quarterly of Healthcare Ethics 15(4) (2006) 381-391.

17

S.R. Braswell, American Meth. A History of the Methamphetamine Epidemic in America (New-York: iUniverse, 2005).

18

Medication Use with Flying Operations, 51st Fighter Wing Instruction 44-102, 29 May 2014.

19

Kamieński, supra note 5.

20

Instruction no. 744/DEF/EMA/SC_PERF/BORG — no. 744/DEF/DCSSA/PC/MA Relative to the Use of Substances Modifying Vigilance in Operation of 4 May 2015, BO Armées no. 47 of 22 Oct. 2015, text 17.

21

Medication Use with Flying Operations, 51st Fighter Wing Instruction 44-102, 29 May 2014.

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