UNCLASSIFIED FOR CPHEHETSEONEY Legal Authority and Policy for Enteral Feeding at JTF-GTMO 21 June 2013 (UA@LO) Purpose: Provide information regarding the legal authority and policy for enteral feeding of detainees engaged in hunger striking at JTF-Guantanamo (JTF-GTMO). (U) Background: © (UFOS) As of 21 June 2013, 104 detainees at ITF-GTMO were engaged in a hunger strike which began in early February 2013. Of those, 44 detainees were receiving enteral feeding. “Enteral feeding” refers to nasal-gastric tube feeding and may be voluntary or involuntary. © — (U#@UO) JTF-GTMO’s authority and Standard Operating Procedure (SOP) for enteral feeding was reviewed and approved by The Office of the Secretary of Defense in 2005 via memorandum signed by Deputy Assistant Secretary of Defense Matthew Waxman. Mr, Waxman stated that the JTF-GTMO SOP was “consistent with U.S. law and DoD policy.” In addition, Mr. Waxman noted that exceptions to the principle of patient consent to medical treatment exi areas such as communicable disease prevention, occupational health, and penal medical care.” > (U@HO} JTF-GTMO js authorized to conduct enteral feeding of detainees engaged in a hunger strike to prevent death or serious harm under the conditions established in DoD Instruction 2310.08E and referenced in Title 28 Code of Federal Regulations (CFR) Part 549, Subpart E, Federal courts have consistently upheld involuntary feeding of hunger striking prisoners within the U.S. penal system. > (UFOLE} While there is no absolute requirement to involuntarily feed a hunger-striking detainee, federal courts have suggested that the government has an implied duty of care for those in penal custody that if Violated may give rise to actions for negligence or civil rights violations. In these cases, the government also has demonstrated significant interests in protecting life, preventing suicide and ensuring prison safety and security. (U) Discussion: © (UPOHO} Department of Defense Instruction (DoDI) 2310.08E authorizes but does not require ‘medical intervention to prevent loss of life or serious harm to detainees from starvation during a hunger- strike. Prior to intervention, the detainee must undergo counseling and a medical and mental health evaluation to determine whether “immediate treatment is necessary to prevent death or serious harm.” The medical intervention “must be approved by the commanding officer of the detention facility or other designated senior official.” The instruction directs that detention facility procedures be developed with consideration of the Bureau of Prisons guidelines for Inmate Hunger Strikes at 28 C.F.R. The guidelines similarly require a physician to “give consideration to forced medical treatment” when an inmate’s life or health is under immediate threat. © (U) Within Army Policy, AR 190-47, paragraph 11-5f states, "In those instances when a prisoner refuses to bathe or comply with haircut or shave standards, refuses to eat, accept necessary medical UNCLASSIFIED) HOOT LAE HONE LEOPOLD/1:14-cv-0030-ABJ/001266UNCLASSIFIED/FOR-OPFIGHEUSE-OMAL attention, or be vaccinated in accordance with Army health regulations, the prisoner may be restrained ‘with the reasonable force necessary to administer the appropriate action." Under this guidance, the appropriate action will be dictated by each individual circumstance, and any action to end a hunger strike will only be upon the attention and advisement of the medical authorities. The Army facilities do have Hunger Strike policies that involve monitoring and reporting. * (UFOGO} While DoD policy and federal regulations permit involuntary feeding, they do not require it. However, federal courts that have addressed the issue of involuntary feeding of prisoners suggest the government has an implied duty of care for those in penal custody that, if violated, may give rise to actions for negligence or civil rights violations. Further, court opinions describe multiple government interests at stake when a prisoner engages in a hunger strike that threatens his health or life including “the preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline...” Grand Jury Subpoena John Doe v. U.S., 150 F.3d 170, 172 (2d Cir.1998). (U) CONCLUSION: « (UFOUOFITF-GTMO is authorized to conduct enteral feeding of detainees engaged in a hunger strike to prevent death or serious harm under the conditions established in DoD Instruction 2310.08E and referenced in Title 28 Code of Federal Regulations (CFR) Part 549, Subpart E. Federal courts have upheld involuntary feeding of hunger striking prisoners within the U.S. penal system. © (UFOLS}While there is no absolute requirement to involuntarily feed a hunger-striking detainee, federal courts have stated that the government has an implied duty of care for those in penal custody that if violated may give rise to actions for negligence or civil rights violations. In these cases, the government hes also demonstrated that it has significant interests in protecting life, preventing suicide and ensuring prison safety and security that outweigh the need for consent. © (U/FOLO} While enteral feeding is solidly supported under U.S. federal law and policy, international law and certain medical ethical standards hold that the “forced feeding” of a mentally competent person capable of making an informed decision is never acceptable. As of 21 June 2103, 1345hrs SSIFIED/FOR-OPICHHE SE OMA 4-cv-0030-ABJ/001267