No one shall be subjected to medical or scientific experimentation without one’s consent. – Article 7 of the Covenant on Civil and Political Rights.
Patient’s rights accrue to every person who goes to a medical facility for medical care. Medical care involves primary care, medical diagnosis, treatment, hospitalization, therapy, nursing care, and many other things.
According to the American Heritage Dictionary, treatment means the use of an agent, procedure, or regimen, such as a drug, surgery, or exercise, in an attempt to cure or mitigate a disease, condition, or injury. Treatment can also mean the agent, procedure, or regimen so used.
This is where the right not to be subjected to medical or scientific experimentation without one’s consent comes in.
Gone are the days when medical personnel had the autonomy to deal with a patient’s situation however they pleased. The laws of morality and doctor-patient relationships have changed this. It is not most appropriate for decisions regarding the patient to be made with the patient’s consent. This consent must also be informed consent.
The right to give consent to a medical or scientific experiment is based on the inviolability of one’s being it therefore follows that a doctor who touches a patient without obtaining the patient’s consent may be liable for assault or even battery. The right to have informed consent is not absolute and there are limitations to this right which include:
- Treatment of minors
- Treatment of persons with an acute or permanent incapacity
- Treatment of persons suffering from mental incapacity
(The limitations of the right to have informed consent to a medical procedure will be discussed in more detail in the next article in next week’s issue)
We hear of many stories of big pharmaceutical companies who experiment the effectiveness of their drugs in third world countries. Medical experimentation has been going on since the 1800’s. The most devastating stories are
When experiments like the ones which were carried out by Dr. Eugene Fischer in Namibia, are being carried, one does not expect the experimenter to disclose to the patients what his experiment is meant to achieve. Upon discovery, such an experimenter should be liable for crimes against humanity and genocide.
But then, there are these experiments where the drug is meant for the greater good except that it has not been tested. So, the makers of the drug seek to have it tested. The choice of where they test the drug is what is most bothering. They choose third world countries mostly in Africa and Asia.
Their choice of where to experiment the drug is because of the high level of poverty in such areas. Many people cannot afford medical care and would be happy to get free medication. So, their ultimate intent is to exploit these poor people. Most of these experiments go completely bad. People become blind, paralyzed, they suffer from hemorrhage and in most cases people die.
This has led to a lot of mistrust of western medicines in Africa. This also accounts for the increase in the prevalence of diseases like polio in West Africa. People do not immunize their children because they fear that those vaccines are laced with HIV and sterilization agents. This in turn causes people not to consume legitimate medicine.
Laws against experimental medicines are not well established in East Africa. In both Uganda and Kenya, for example, we do not have legislation prohibiting medical experiments. It was only less than two years ago that the Kenya government banned medical camps by foreign doctors, but the same ban was lifted in July this year, with no regulations regarding medical experiments.
A patient’s consent must be sought in the language the patient understands and should include information regarding the following:
- A description of the treatment which the medic is going to dispense to the patient
- Probable risks and benefits of that treatment
- A description of alternative treatments
- Probable risks and benefits of the alternative treatments
- What could happen if treatment is not administered
- The probability of the success of the treatment
- Length of administration of the treatment
- Any other relevant information
Next time you visit your doctor, task them to explain (and defend) that treatment they are about to administer. It is within your right. Should it be experimental treatment, you have the right to object to that treatment.
BY SAMALI BITALA
This article appears in our weekly law digital magazine, The Deuteronomy Vol 7, Issue 3 of October 21st 2016.
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