Addendum Re. Using Medical Methods to Determine the Age of Unaccompanied Refugee Children

After my post on this issue a few days ago, I've debated the issue with a number of people from within medicine and also bioethics in different fora.

Due to the presence of significant uncertainties of the methods debated, my suggestion was that use of this methods should be amended by the following methodological rule (assuming 18 to be the age of adulthood, if it is different we may simply insert another variable for that):

... for any method, M, for the assessment of the age of a person, P, with a margin of error +/- X years, M is taken to indicate adulthood if, and only if, its result is 18+X years or higher, and otherwise taken to indicate childhood

Here are a few points that may be added to the complexities of this particular issue:

1. The nature of the uncertanties
Some have argued to me that the methods are not only uncertain in a way possible to describe in terms of a margin of error. One reason for this put to me is that besides the usual margin of error within the dimension of a variable, there is also the background confidence interval behind this margin, and the known effect of having this confidence deteriorate considerably when aggregated population probabilities are projected onto individual cases. I, of course, do not deny that there is also this source of uncertainty, but as far as I can see, my formula above can easily include that: X can be the aggregation of both these uncertainties (this was my original thought as well). This probably means that X becomes considerably larger than 4 (the number used in the example in the original post, based on claims by critics of the model). However, this in no way undermines my suggestion, as this will probably mean that all unaccompanied refugee children will most likely be determined to be children (and, if there are any people like that, in addition a number of refugee adults who falsely claim to be children). That is, the best interest of children, as well as the proper priority of legal provisions is upheld. Suppose, for instance, that the margin of error, accounting for all sources of uncertainty, becomes +/- 15 years. Then my rule says that P is to be considered an adult if, and only if, M finds P to be 33 years or more.

Another claim has been that some of the methods depend on the existence of relevant tables and charts or background data, and that such are missing in this case, meaning that the methods are not really uncertain, there is no method at all. The bewildering thing is that the same people are at the same time officially repeating the argument that the methods are uncertain and have unacceptably wide margins of error. These two claims are, of course, inconsistent; if it's not possible to have any result at all, there is no margin of error, and if there is a margin of error there is some results that create this margin. If it turns out that, in fact, the variable X (accounting for all kinds of sources of uncertainty), cannot be given any empirically based numerical estimate, I concede that my rule is inapplicable. However, if even an interval numerical estimate can be grounded, my rule can be used, by simply adding (supported by the same basic principles as before) that, the high extreme of this interval should be used to define X (in order to err in the right direction). Again, this may mean that the method will determine all tested as children, but, as already argued, it is difficult to see what the ethical or legal problem with that would be.

2. Professional Health Care Ethics and Ethics
Another aspect that has been raised is the fact that my suggestions means that health care professionals pragmatically accommodate to flawed public policies in the best interest of concerned parties (i.e. the children). This is wrong, some say, health care professionals should demand to regulate themselves and never do anything they themselves collegially don't find suitable to do, not even if this is harming third parties. Some have even gone so far at to claim that it is irresponsible of a health care professional to ever act the slightest in any other interest than his or her patient's.

The latter would, of course, mean that we would have to abandon all public health practices, communicable disease management, forensic medicine, large segments of insurance and sports medicine, and not least the involvement of doctors in issuing certificates underlying decisions by public authorities, such as sick leave or work-related disability benefits, and so on. Since health care professional organisations have as yet made no move whatsoever in such directions, I trust that this is not the line underlying the criticism in the present case. In other words, formalised professional health care ethics already accepts a number of cases where medical methods are used to other ends than the best interest of patients and many of these uses are being pragmatically accommodated to still make the best out of an imperfect thing. A very clear illustration is the assessment of "ability to work" nowadays made routinely by medical doctors in many countries, strategically adapted not to harm their patients while still abiding by required formalities.

It is thus unclear to what extent the principle of never doing anything to right the wrongs of public policies is a part of professional health care ethics. Even more unclear is if, had it been such a part, it would have been ethically defensible. To illustrate with the issue at hand, suppose that the health care professional community was to refuse to participate in the practice decided by the Swedish government. This may have three outcomes: (a) the government and parliament creates a legal room for some other class of officials to use the methods (not using my rule), (b) no method is used, (c) alternative suggested methods based on psychological models are used.

• If (c) is the outcome, the issue reappears, as also these methods can be expected to have margins of error, sources of uncertainty and so on. Then my rule can be used to secure that determinations err in the right direction.

• If (a) is the outcome, the results for the persons concerned, namely the children, is worse than if the profession had chosen to participate, using my rule to secure that they act solely in the best interest of the children, although also accommodating societal requests.

• If (b) is the outcome, the situation stands that unaccompanied refugee children where there is uncertainty as to whether or not they are children, will not be given their rights as children.

Now, compare this with (d): health professionals decide to pragmatically accommodate, and use the methods, amended by my rule.

• If (d) is the outcome, the concerned children's interests and Sweden's legal needs are better served than if any of (a) and (b). If these children are seen as patients, it would then be in their best interest to go for (d) rather than (a) or (b). If there is an option (c), this is even better, provided that my rule is used, but if not it may be better for the patients to go for (d).

3. The Ethics of Clean Hands, Politics of Power and Professional Integrity as Strategic Tool
Against this form of reasoning, some debaters I've talked to have claimed that the downsides for refugee children of the options (a) and (b) (as well as (c) without my rule) cannot be laid at the door of health professionals, but is the sole moral responsibility of the government. That is, they apply the standard of an "ethics of clean hands", denouncing responsibility for bad outcomes they could have avoided by acting differently just because the same is true of some other acting party (here, the government). This is like when the car driver, displeased with the rule that gives pedestrians priority at crosswalks, blames the government while electing to run people over, who cross motivated by the rule. Not very splendid ethics, I'd say.

Another version of this reasoning instead comes in the form of a political power bidding in the name of professional autonomy. It is simply the claim that health professionals should insist on the right to decide for themselves what standards they act on. While this is understandable (we all would like the privilege not to give a damn about the opinions of others, don't we?), it either comes without any underlying defense, or is compatible with sometimes choosing to compromise with other parts, interests and powers in society. As mentioned, the latter seems what in fact is happening in a number of areas, so then the question moves to what reasons pro or contra are present in the area at hand. Here, I have argued that (d) is the superior position.

The same outcome seems to ensue when analysing a final (and, to my view, better) variant of this sort of argument. Instead of an empty insistence on professional autonomy at all cost, this argument points to the political importance of professional integrity as a strategic tool in certain areas. The most obvious of these are torture, capital punishment and military interrogation. Here, the profession has adopted zero tolerance policies, which are thought to have an accumulated preventive effect, as these practices in various ways "need" the participation of doctors. However, this point does not demonstrate that age determination of unaccompanied refugee children belongs to this set of absolutely prohibited practices. As those who criticise the presently proposed methods also say that they could accept methods with a better degree of precision and exactness, it doesn't seem that they are trying to argue this in the present case. Which is understandable, as that would mean arguing against any claim to special considerations of the interests and rights of children.

In sum, therefore, unless it is demonstrated that there is no method at all that could produce any sort of empirically grounded numerical estimate (even in the form of a wide interval) in this area, my suggestion holds up to scrutiny. In fact, it is better supported by both professional health care ethics and more general ethical analysis, than alternative suggestions.

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