The relationship between law and medicine has long been tempestuous. However, there have been many instances over the course of history in which they have had to interact. The courtroom is the most obvious example of this.
Historically, both the Nuremberg Code (1947) and the Helsinki Declaration (1964) have provided a legal framework for understanding ethical medical research.
The Nuremberg Code was formulated to combat the atrocities that were committed by medical professionals during World War Two. The inhumane and unauthorised human experimentation was condemned by the judges of the Nuremberg Trial, who fashioned the Nuremberg Code to legally safeguard a patient’s rights; ensuring that those who averted them could be prosecuted in a court of law.
When considering the Cartwright Inquiry, possibly the two most important tenets are numbers one and nine: the existence of “voluntary, well-informed, understanding consent of the human subject in a full, legal capacity” and that “human subjects must be free to immediately quit the experiment at any point”. Clearly, patient consent, whilst present, was not informed in the “Unfortunate Experiment”. The women effected by Dr. Green’s actions were not warned of the possibly dire consequences of their participation in this medical trial. Instead, they were unfairly lulled into a false sense of security under the authority of the medical practitioner.
Another legal document to consider is the 1964 Helsinki Declaration, which was developed by the World Medical Association in attempts to further govern clinical medical research. Whilst this declaration not legally-binding in international law, it is “morally binding” on the clinician; and has subsequently informed national and regional legislation.
A 1975 revision of the Helsinki Declaration deemed that “concern for the interests of the subject must always prevail over the interests of science and society”. This is particularly interesting to consider in light of the Cartwright Inquiry, where arguably, the clinician has placed his interest in the progression of science, before the individual. The reductive mentality surrounding modern medicine, and the subsequent the disappearance of the “sick-man” from medical practice, -in favour of studying organs and cells-, has been critiqued by sociologist, Nicholas Jewson in his thesis. The effacing of patients as individuals, instead treating them as “cases” is apparent in Dr. Green’s experiment.
Of course, in the case of Dr. Green, no legal ramifications ensued. Whilst some victims were awarded out-of-court compensation settlements, the doctor himself was not held accountable for his actions. However, the outcome of the Cartwright Inquiry did set a precedent for further clinical trials held in New Zealand and beyond.
Perhaps the most pressing question to rise from this case study is can the law govern morals? Yes, the Helsinki Declaration is “morally binding”, but how can this be exercised in reality? Were Dr. Green’s actions morally unsound? Probably. But how can a judge be expected to rule on such a subjective concept?
References
“The Nuremberg Code”, United States Holocaust Memorial Museum, accessed 20 October 2016, <https://www.ushmm.org/information/exhibitions/online-exhibitions/special-focus/doctors-trial/nuremberg-code>.
“WMA Declaration of Helsinki- Ethical Principles for Medical Research involving Human Subjects”, World Medical Association, accessed 20 October 2016, <http://www.wma.net/en/30publications/10policies/b3/>.
The Cartwright Inquiry 