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Torture and Fitness to Practise

12 Mar, 13 | by Iain Brassington

I’m running a bit late with this, but the BMJ reported last week that Mohammed Al-Byati had been suspended from the medical register for 12 months for complicity in torture.  So far, the decision hasn’t been uploaded to the list of Fitness to Practise decisions, but the outline of the case is available here, on the “upcoming hearings” calendar:

The Panel will inquire into the allegation that between December 1992 and March 1994, Dr Al-Byati visited camps and prisons in his capacity as a doctor in Iraq.  It is alleged that during these visits and whilst administering treatment, Dr Al-Byati knew that some prisoners he treated had sustained injuries as a result of torture, and it was likely that the prisoners would be tortured again.  It is also alleged that as a consequence of Dr Al-Byati’s engagement in these events, he was complicit in acts of torture.

The BMJ report relates that

the panel decided not to end his career by erasing him from the medical register, after accepting that he played no part in the torture and had effectively no choice but to carry out orders.  He told the panel that he had been “terrified” of what would happen to him and his family if he did not do as he was told.   The panel’s chairman, Michael Whitehouse, said, “He was a junior doctor whose behaviour was being controlled by a dictatorial, totalitarian regime which used systematic, widespread, and extremely grave violations of human rights to control the population.  Dissent from orders was not tolerated.

There’s a couple of things that’re perplexing about this.

The first is that it’s not clear how close to the torture process Al-Byati actually was.  The FtP outline simply alleges that he knew the people he was treating had been tortured, and that they probably would be again.  The BMJ repeats this.  Al-Byati appears to have denied knowing it, but it’s not clear to me that it’d’ve mattered if he had known: treating someone in those circumstances doesn’t amount to endorsement of the torture.

I mean: imagine that you’re working in A&E and someone is admitted whom you suspect strongly (strongly enough for it to count as knowledge in the common-or-garden sense) to have been injured as a result of domestic violence.  You patch up the patient, who then goes home – to face, you suspect almost as strongly, more violence.  It’d be nuts to suppose that you could be criticised as complicit in or even supportive of that violence, though, or that there might be something problematic about treating the patient in the knowledge of what had happened and may happen again.  At most, you might be criticised for not contacting the police or social servives; but that’s a question of confidentiality, and of a totally different stripe – and, anyway, to whom would Al-Byati have reported his concerns?

The other thing that’s perplexing is that noone claims that Al-Byati had any real choice in the matter.  It doesn’t seem unreasonable for a twentysomething medic to agree to provide medical treatment to those who need it, especially when it’s at the request of the state and that state is Ba’athist Iraq.  Maybe he could have refused in principle – but in practice, that kind of refusal may well have been heroic, and it’s odd to criticise someone for not being sufficiently heroic.

In both cases, consider the alternative.  The alternative for the patient is not being treated.  The alternative for the doctor is… well, who can say?  I doubt that there was much scope for conscientious objection.  And remember that the complaint is not that he assisted in the torture, but that he knew about it.

So why apply sanction?  Here’s Michael Whitehouse, the panel chairman, quoted in the BMJ:

He said that the suspension, for the maximum period allowed, was necessary “to demonstrate clearly to him, the profession, and the public that even though his involvement as an accessory to torture was outside his control, such conduct is unacceptable.”

Ummm… Really?  The emphasis is mine, because this is a very, very odd thing to say.  Treating people for the effects of torture is not to be an accessory in any meaningful sense – especially if you didn’t have a realistic choice.  And the pour encourager les autres claim in this context stinks.  I mean, as a principle of justice, my inclination is to think that it’s iffy at best in any circumstance.  But it’s not really as if anyone needs to have it demonstrated that state-sponsored torture is a bad thing to begin with.  And if, mirabile dictu, someone does need to be reminded of that, it’s not clear that they’re going to be swayed by demonstrations of foot-stamping like this.

Note that this case seems to raise questions similar to those raised in respect of medical involvement in capital or corporal punishment.  However, it’s also significantly different from what I can tell.  For one thing, in regimes in which capital or corporal punishment is used and the presence of a medic is mandated as an integral part of that process (for example, if the law demands that a lethal injection be administered by a medical professional), it seems to me that it’d be conceivable that minimally decent doctors would refuse participation, thereby bringing the whole process to a halt.  One might even imagine doctors refusing to be involved as a means of bringing the process to a halt – though you could, alternatively, make a rule-of-law case to insist that medics ought not to aim to undermine valid laws from valid sources, and draw a distinction between conscientious objection that makes the execution of a sentence (and a prisoner) impossible as a side-effect, and more activistic attempts to exert moral pressure on a notionally unjust law.

Whatever.  There’s a debate to be had there, but it doesn’t really speak to this case, because Ba’athist Iraq was not a rule-of-law regime, and (perhaps more importantly) non-participation wouldn’t – on the face of it – have made any real difference, because from the way the story is reported, the presence of a medic like Al-Byati wasn’t a part of the process.  That is: even if Iraq had been a rule-of-law regime, there’s a difference between treating someone who has been tortured and may be tortured again, and treating that person as a part of the torture framework.  There’s no reason to believe that the law required that the torture be overseen by a medic: only that he happened to be the guy closest to hand when the prisoners needed patching up.  Had he not been there, it’s all-too-easy to believe that the torture would’ve happened anyway.

Maybe I’ve missed something about the case.  But from the way it’s reported, it seems possible that the decision has been at least partially determined by the idea that Al-Byati is contaminated by association with bad people.  Either that, or because of PR concerns about the public perception of the matter should the “news”paper to which I do not link get wind of it.

I think that there’s more to be said.  There must be, mustn’t there?

A storm in an NZ tea cup – or another “controversy” like post-birth abortion

7 Mar, 13 | by David Hunter

I thought our readers might be interested in this story which is happening in New Zealand as it has echoes of the Post-Birth abortion “debate” that occurred on this blog last year.

Then as now academics have argued in an academic journal (in this case the New Zealand Medical Journal) for a position that some find controversial – although the position seems considerably more innocuous than post-birth abortion since they are arguing that the introduction of earlier less invasive diagnosis of genetic disorders such as downs syndrome is morally acceptable and indeed preferable. You can see the paper here since it is open access at the moment.

In reaction to this disability activists have claimed that the authors are promoting discrimination against those with Downs syndrome and are calling for the resignation of the Head of the Otago Bioethics Centre.

Now there are several problems here. Firstly and most obviously the authors of the piece and in particular Gareth Jones who they have focused on is not in fact the Head of the Otago Bioethics Centre (that would be John McMillan) so it is hard for Gareth Jones to resign that position. Worse still as Udo Schuklenk points out in this thoughtful piece – Gareth Jones is in fact an emeritus professor – it is slightly difficult to resign from being retired… It’s also argued that some of the statements they are attributing to Gareth Jones (not that they seem that controversial) were actually made by a different Gareth Jones.

Still factual issues aside what seems illegitimate here is the personal attack involved. I must admit this looks to me like activists shamelessly latching on to an opportunity to kick up a fuss about an issue which they care deeply about, without any consideration of the potential impact on the individuals involved. While discussions like this one must be written with consideration and due care as John McMillan points out the paper is both careful and considerate, so why attack the authors?

While they of course have a right to their opinion and to express them vocally – given that what they are arguing against is the status quo there doesn’t seem to be any reason to demonise academics, why not engage with the arguments – play the ball not the player. After all if their position is strong then the truth should out right? Resorting to smear tactics like this makes the position they are defending seem weaker than it actually is, I share the concern that selective abortion of the disabled may constitute discrimination – although like abortion itself I’m inclined to view this as regrettable rather than morally objectionable.

Italian Pop Music’s Role in Bioethical Debate

12 Feb, 13 | by Iain Brassington

Sadly, the list entitled “Great Moments in Italian Pop” is short; but the entry that must surely be at the top is probably very near the top of the list entitled “Great Moments in All Pop”.  It’s a 1972 song by Adriano Celentano.

Prisencolinensinainciusol.

It’s pure gibberish – a parody of what anglophone pop sounds like to people who don’t speak English.

I mention it here for a couple of reasons.  The first is that it’s great.  The second is that it’s a nice way of talking about people who appear to be going through the motions of thinking about ethical matters, but who just get it wrong, and are actually talking gibberish.

Via Dominic Wilkinson, this gem from BioEdge is a lovely example of bioethical prisencolinensinainciusol.  On the face of it, it’s a plea for consistency when it comes to policymaking.

[I]n the Australian state of Queensland [...], the police union has argued that pregnant women who abuse alcohol should be forced to live in safe houses. “Those [unborn] children also deserve a right to full life and health and should not be disadvantaged simply because of the actions or inaction of their birth mother,” said Union president Ian Leavers.

Obviously this is a controversial issue, but I can’t understand how one can both defend access to legal abortion and lock up women who might harm their children.

The link provided is to The Australian, which is behind a paywall, so not something I can access.  However, News.com.au carries the story, too, reporting Union president Levers to have said that the state should be able to intervene in cases where children are at risk of foetal alcohol syndrome and drug addictions.

“Those children also deserve the right to a full life and health and should not be disadvantaged simply because of the actions or inaction of their birth mother.  The state must have the ability to intervene and protect the unborn child when its mother refuses, or is incapable or unwilling to do so.”

Mr Leavers said tougher laws would complement the criminal code, which provides for a charge of killing an unborn child or grievous bodily harm for any person who violently kills or harms an unborn child.

This is a bit odd, all told.  I mean: it might be easy enough to agree that pregnant women probably ought to reduce, or even eliminate, certain behaviours.  But the idea that that might be a matter for the law is very strange indeed.  What would the sanction be?  Is the idea that it’d be better for pregnant women to be in prison?  Fined?  And what about the plausible claim that alcohol or drug abuse is itself a health problem?  Or the distinct possibility that women who do drink or use drugs are much less likely to seek any medical advice at all during their pregnancy if they think that the state might punish them for their behaviour, thereby making a suboptimal situation even worse?  Legal intervention of the sort indicated would be both cack-handed and unjust.

But what about BioEdge‘s plea for consistency?  From what I can see, there’s a fairly obvious set of rejoinders.  First, the police union can say what it likes about what the law should be, but the role of the police is to enforce the law as it stands.  So not interfering with a woman’s legal right to abortion is not the same as defending it.  Likewise, mooting the idea that women might be sanctioned for risking the health of the foetus is not the same as locking women up.  BioEdge seems to have got the difference between voicing an idea, and enforcing a policy, utterly the wrong way around.  BioEdge‘s writer makes it sound like a moral argument is being made; but, really, it isn’t.  Second, that it’s odd to defend abortion but advocate sanctions against risky behaviour in pregnant women may be true – I mean, it’s not a crazy suggestion – but it doesn’t follow from that that one ought to change one’s mind about abortion (which is, I think, given BioEdge‘s commitments generally, what the implication is): all else being equal, and given a whole truckload of secondary arguments about the moral status of the foetus and the moral status of the mother, it’s at least prima facie more likely that it’s the risky behaviour claim that’s off.  Third, that the representative of a policing union has made a statement about what the law should be is in no way an indication that that statement should be taken seriously.

Come on, BioEdge.  Fair play to you: you look like you’re doing the job… but… Prisencolinensinainciusol.

Maybe there’ll be richer pickings from the other story behind the link.  In Tasmania,

the premier and deputy premier have released a long report on legalised euthanasia. They insist that there is no “sound evidence” of potential elder abuse. However, rates of child abuse are nearly 60% higher there than in other Australian states. Isn’t that a bit inconsistent? The kind of people who abuse children probably won’t mind abusing grannies.

Ummm… wait a sec: What?

But that’s not what it says, is it?

25 Jan, 13 | by Iain Brassington

Today’s blast of righteous indignation is directed towards New Mexico.  House Bill 206 says, in essence, that… well, it’s short, so here it is in full:

HOUSE BILL 206

51ST LEGISLATURE STATE OF NEW MEXICO - FIRST SESSION2013

INTRODUCED BY

Cathrynn N. Brown

AN ACT

RELATING TO CRIMINAL LAW; SPECIFYING PROCURING OF AN ABORTION AS TAMPERING WITH EVIDENCE IN CASES OF CRIMINAL SEXUAL PENETRATION OR INCEST.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.  Section 30-22-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 22-5, as amended) is amended to read:

“30-22-5.  TAMPERING WITH EVIDENCE.–

A.  Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.

B.  Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.

C.  Whoever commits tampering with evidence shall be punished as follows:

(1)  if the highest crime for which tampering with evidence is committed is a capital or first degree felony or a second degree felony, the person committing tampering with evidence is guilty of a third degree felony;

(2)  if the highest crime for which tampering with evidence is committed is a third degree felony or a fourth degree felony, the person committing tampering with evidence is guilty of a fourth degree felony;

(3)  if the highest crime for which tampering with evidence is committed is a misdemeanor or a petty misdemeanor, the person committing tampering with evidence is guilty of a petty misdemeanor; and

(4)  if the highest crime for which tampering with evidence is committed is indeterminate, the person committing tampering with evidence is guilty of a fourth degree felony.”

SECTION 2.  EFFECTIVE DATE.–The effective date of the provisions of this act is July 1, 2013.

The new bit is section B.

In a statement, the congresswoman who introduced the Bill, one Cathrynn Brown, said that her intention was to punish the person who commits incest or rape and then procures or facilitates an abortion to destroy the evidence of the crime.

Hmmm.  Except that that’s not what it says, is it?  Maybe she should read the text of her own Bill.  It talks about procuring an abortion, as well as compelling or coercing another person to have one.

I think that the second bit is actually fairly unobjectionable.  To compel someone to have a medical procedure, whomever that someone is, and whatever the procedure, is to wrong them; and if you compel them to have the procedure in order to remove evidence of another wrong, then the wrongness is multiplied.  But, y’know… that first bit… um… more…

We Read the Mail, so You Don’t Have To

12 Dec, 12 | by Iain Brassington

There’s a couple of things that’ve been playing on my mind since the post about the Daily Mail‘s coverage of the Liverpool Care Pathway a couple of weeks ago.

One of them is the letter that Fiona Godlee, editor of the BMJ, sent to Paul Dacre, editor of the Mail.  It points out to him what I noted – that the LCP isn’t mentioned at all in the original piece – and adds something important that I had suspected but didn’t know: that it told us nothing about the NHS because the doctor writing wasn’t even UK-based.  (For those without institutional access, I’ll reproduce it in full below the fold.)

I’ve just done a search of the Mail‘s website, and it seems not to have been published, or even acknowledged, anywhere.  I’m not wholly surprised by this.  It might have appeared in the paper version - but that’s not enough.  After all,the attacks on the LPC certainly have appeared in the online version of the paper – and continue to do so – and so it makes sense that any attempt at rectification should appear in the same place.  Yet it would seem that the Mail is rather less keen to publish letters that contradict its editorial line than it is to print vexatious gibberish as a part of that line.

(As it happens, the fact that the BMJ article was used without permission isn’t necessarily all that big a problem.  I think that there probably could be a public interest defence – a sort of fair use system – in relation to publishing things without permission when it’s in the public interest.  But the quid pro quo here is that what’s published has to be an honest representation, rather than misleading crap.  On this front, the Mail has failed.)

Anyway: an important aspect of not having published Godlee’s letter online is that it’s links to the electronic version of the paper that people would have been passing around.  And that leads me to the other thing that’s been playing on my mind: the question of whether I should have provided links in my previous post.

We like to think that newspapers are primarily about news; but that’s not true. more…

Even by the Mail’s Standards, this is Low

30 Nov, 12 | by Iain Brassington

The Liverpool Care Pathway provides a rubric for managing the care of the terminally ill as they approach death.  A helpful pamphlet explaining what it is and what it does is available here.  Ideally, I’d quote the lot; but for the sake of efficiency, I’ll make do with an edited quotation:

What is the Liverpool Care Pathway (LCP)?

The LCP is a pathway/ document that outlines this best care, irrespective of your relative/ friend’s diagnosis or whether they are dying at home, in hospital, in a hospice or a care home.

Medication/ treatment

Medication will be reviewed and any medication that is not helpful at this time may be stopped and new medication may be prescribed so that if a symptom should occur there would be no delay in responding.

It may not be possible to give medication by mouth at this time, so medication may be given by injection or sometimes if needed, by a continuous infusion by a small pump called a Syringe Driver, which will be tailored to individual needs.

It may not be appropriate to continue some tests at this time; these may include blood tests or blood pressure and temperature monitoring.

The staff should talk to you about maintaining your relative’s/ friend’s comfort; this should include discussion regarding position in bed, use of a special mattress and regular mouth care. You may want to be involved in elements of care at this time.

Diminished need for food and drink

Initially, as weakness develops, the effort of eating and drinking may simply have become too much and at this time help with feeding might be appreciated.

Your relative/friend will be supported to take food and fluids by mouth for as long as possible.

When someone stops eating and drinking it can be hard to accept, even when we know they are dying. It may be a physical sign that they are not going to get better. Your relative/friend may neither want or need food and/or drink and decisions about the use of artificial fluids (a drip) will be made in the best interests of your relative/friends for this moment in time. This decision will be explained to you and reviewed regularly.

This can be paraphrased further: medically futile treatment may be withdrawn; the main criterion for administering drugs will be symptom alleviation rather than life extension; some testing may be discontinued; it’s possible that there’ll come a point when artificial nutrition and hydration are no longer in the patient’s best interest, and they might be withdrawn if and when that point is reached.

None of this is particularly cheery; but death rarely is.  more…

Savita Halappanavar: A Woman who Died Needlessly, not a Political Wedge’

17 Nov, 12 | by BMJ

Guest post by Sorcha Uí Chonnachtaigh

I am going to, rather controversially, agree with one aspect of the statements of pro-life activists commenting on this case. That is not something I thought I’d ever say. Like, ever ever.

A statement issued by Youth Defence (one of Ireland’s most radical pro-life organisations) made the valid point that “Irish doctors are always obliged to intervene to save the life of a mother, even if that risks the life of her baby”. Because of some misconceptions about the reasons for Savita’s maltreatment, it is assumed that Ireland needs to reform its abortion law so that this never happens again.  While I would strongly support abortion law reform in Ireland, it is not necessary to ensure this never happens again.  Mere legal regulation of the status quo on abortion would prevent this.  As the (limited) law stands, this should never have happened at all. While some believe that legislation to regulate access to already lawful abortions constitutes law reform, any such legislation would not alter the current legal position – it would merely give meaningful access to abortions.

I don’t agree with anything else that has been included in pro-life posts/articles (stop throwing things at your computer screens), but more on that later.  First, I want to elaborate on this to clear up some of the misconceptions about Irish law that have been expressed in condemnations of the case around the web.

If you have clicked through to this post, it is very likely that you’ve already read about the facts of Savita’s case, first reported in the  Irish Times on 14 November, and at least some of the estensive commentary pieces available on the issues arising from this case (like this, and this, and this).  (These links here are to pieces by Irish people with more informed knowledge of the legal situation.)

For the sake of comprehensiveness, I’ll provide an edited summary of the facts of the case (as reported to the Irish Times by Savita’s husband Praveen): more…

But what if you Don’t Want to be Regulated?

2 Oct, 12 | by Iain Brassington

The Malaysian Parliament has just approved a law about traditional medicine.  The Traditional and Complementary Medicine Act is largely about the regulation of practitioners of TCM – notably, setting up a regulatory Council.  According to section II (5)

The Council shall have the following functions:

(a) to advise the Minister on matters of national policy relating to traditional and complementary medicine practice;

(b) to establish the eligibility requirements for each practice area;

(c) to recognize qualifications conferred by any institutions of higher learning established under any written law in Malaysia or any institutions of higher learning recognized and authorized by any countries outside Malaysia for the purpose of registration under this Act;

(d) to specify the appropriate academic qualifications or recognized skills certificate issued pursuant to the National Skills Development Act 2006 [Act 652] which are or is necessary before a person may apply to be a registered practitioner;

(e) to specify the necessary apprenticeship and training requirements including rules for undergoing apprenticeship, the scope of responsibilities and permitted conduct or activities of apprenticeship, duration of apprenticeship and post-qualification apprenticeship;

(f) to register individuals who will provide traditional and complementary medicine services to the public;

(g) to issue practising certificates to registered practitioners who have satisfied the prescribed conditions and paid the prescribed fees;

(h) to develop codes of professional conduct, rules relating to the professional conduct of registered practitioners, including penalties for breach of such codes or rules;

(i) to develop, undertake, prescribe and mandate any matter relating to or connected with the practice of traditional and complementary medicine or the professionalism of such practice;

(j) to specify, provide for and administer a complaints procedure and process;

(k) to develop rules upon which registered practitioners are to refer their patients to medical practitioners or dental practitioners, as the case may be;

(l) to obtain such relevant information from practitioners, and to provide the same to the Minister;

(m) to carry out such functions as may be specified by this Act; and

(n) to carry out all such other activities as may be directed by the Minister and such direction shall be consistent with the purposes of this Act.

Section IV (21) says that

(1) No person shall practise in any practice area which is not a recognized practice area.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—

(a) in respect of a first offence, to a fine not exceeding thirty thousand ringgit [approx £6000] or to imprisonment for a term not exceeding two years or to both; and

(b) in respect of a subsequent offence, to a fine not exceeding fifty thousand ringgit [£10 000, or thereabouts] or to imprisonment for a term not exceeding three years or to both.

Is this a good law?  Clearly, it is not a particularly exciting piece of legislation; and there might be problems with it – there’re problems with a lot of laws. more…

Mitochondrial Disease and the HFEA

20 Sep, 12 | by Iain Brassington

Readers are probably aware of the consultation that the HFEA launched this week on the use of mitochondrial replacement to prevent certain illnesses.  John Harris has a piece on it in The Guardian – and by gosh golly, he’s right*; the article is well worth a quick look.

My own ha’p’orth: some of the stuff in the consultation is a bit odd.  One of the sets of questions it asks has to do with what such a procedure would do to a child’s concept of identity.  But why is this a concern?  Suppose a child discovers that she’s been the recipient of a mitochondrial transplant: so what?  Why would that make the blindest bit of difference to her sense of identity?  Isn’t it wholly plausible that, if there is any impact, it’s not because of the source of the genes qua genes, but because of all the people around her telling her that it’s tremendously important and she should give a stuff?  But they might be wrong.  I’d stick my neck out and say that they probably are.  Genetic origins simply don’t matter.

(Ah – but if she’s brought up to think that they’re imporant, isn’t that enough to establish that they’re important to her – and so are important in some sense after all?  Well, no.  Imagine someone is brought up to think that the fortunes of West Ham United are important; they’ll be important to him.  But it doesn’t follow that they’re important; and it might be that, in treating them as important, our hapless Hammers fan ends up making himself much more miserable than he need be by worrying about things that don’t merit worry.  It could be that he ought not to think the football important.  The same applies to genes: if a person’s genetic origins are important to her, it doesn’t follow that they’re important, or that there’re no good reasons to think them less important.)

But lots of people seem to think that genes do matter, and so we get questions like this; and asking questions like this perpetuates the idea that it’s a question worth asking… and so it goes on.

*I’ve found myself saying that increasingly often of late.  Scary stuff.

R v Catt: The (Slightly Strange) Judge’s Remarks

17 Sep, 12 | by Iain Brassington

Earlier today, Sarah Catt was jailed for 8 years for inducing the termination of her own pregnancy at 39 weeks’ gestation.  The transcript of the comments of Mr Justice Cooke, sentencing, is available here.

I don’t want for this to get bogged down in questions of the moral rights and wrongs of abortion, at whatever stage during the pregnancy it takes place, or with what the law should permit.  Rather, I just thought that I’d highlight a couple of aspects of Cooke’s comments.

12. You could well have been charged under Section 1 of the Infant Life (Preservation) Act 1929 for destruction of a child capable of being born alive. Section 1(2) of that Act provides a presumption in law that if a woman is pregnant for 28 weeks, the child en ventre sa mere is capable of being born alive.

[...]

16. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. more…

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