Tuesday, December 29, 2015

The Sources of the Law:
The Right of Informed Consent

The Sources of the Law: The Right of Informed ConsentSpCt.NcNeely.bannerhttp://www.DrRimaTruthReports.com/AdvanceVaccineDirective
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This Law Note responds to the erroneous idea that the international humanitarian right of Informed Consent only applies in cases of war. When people cite the Geneva Conventions [1] as a source of the right they are told that the Conventions only apply in time of war. We assert that the Conventions recognize a right of Informed Consent (by operation of the Nuremberg Code) but are clearly not the only source of legal support for the humanitarian right of Informed Consent.

There are many international agreements that were made in Geneva, the original home of the League of Nations and now the European base for the United Nations. Among those agreements are the Geneva Conventions proper, which relate to armed conflict. Among other matters, they cover the handling of criminal charges against prisoners of war. In that context, at the end of WWII, the Nuremberg Code was proclaimed.

The Code requires respect for Informed Consent, without “the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion…”

The Nuremberg Code was drafted by American legal scholars as a "restatement" of the then-existing international law of Informed Consent. It restated the law not just in the case of war, but as applied to all persons at all times. It was used as a statement of the law during the Subsequent Nuremberg Trial of the Nazi doctors.

The Nuremberg Code is binding on the USA since it was drafted for US military trials of defeated foreigners and the Geneva Conventions say that if a power puts prisoners on trial it must apply the same law to them as to its own people, thus the Nuremberg Code must also encode the law of Informed Consent as applied to Americans and the other allies that joined in the doctors trial.

But that was over a half century ago and international humanitarian law has continued to develop.

For example, Australia's fundamental law recognizes the right of Informed Consent, as does the fundamental law of many nations. In the USA there is a federal statute applying Informed Consent to medical experiments and IRBs (Institutional Review Boards).

Significantly, there is also the UN Declaration on BioEthics, negotiated in Geneva, that uses language similar to the Nuremberg Code and clearly applies to both treatment and experiment: 

Article 6 – "Consent – 1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice. 2. Scientific research should only be carried out with the prior, free, express and informed consent of the person concerned. The information should be adequate, provided in a comprehensible form and should include modalities for withdrawal of consent. Consent may be withdrawn by the person concerned at any time and for any reason without any disadvantage or prejudice. Exceptions to this principle should be made only in accordance with ethical and legal standards adopted by States, consistent with the principles and provisions set out in this Declaration, in particular in Article 27, and international human rights law." 

Article 28 – "Nothing in this Declaration may be interpreted as implying for any State, group or person any claim to engage in any activity or to perform any act contrary to human rights, fundamental freedoms and human dignity…"[2] 

The Common Law has recognized the right to Informed Consent for at least a century.

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” [3]

And nearly a hundred years later, the US Supreme Court reiterated the legal principle: even a “…diminished expectation of privacy does not diminish the... privacy interest in preventing a government agent from piercing the... skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests…” [4]

The right of Informed Consent is recognized in time of war and in time of peace; for medical treatment (including the alleged preventative intervention of vaccination) and for medical experiment; for adults and children; for all humans everywhere and at all times.

Ralph Fucetola JD
Natural Solutions Foundation
Trustee and Counsel

Further information:

[1] https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions
[2] http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html
[3] Schloendorff v. Society of New York Hosp.,105 N.E. 92, 93 (N.Y. 1914)
[4] Missouri vs McNeely, 569 US _ (2013)