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The Nuremberg Code,
Applied to Mental Health Practices

Informed Consent in
Mental Health Practices Act

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Indiana SB309 (RTF)

The Truth and Responsibility in Mental Health Practices Act Introduction
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The Nuremberg Code

After World War II, Nazi doctors who had performed experiments on people in concentration camps were tried and convicted for their crimes. The so-called experiments (which generally amounted to nothing more than torture and murder) were performed without obtaining informed consent from the subjects, involved an unacceptable degree of risk for the subjects (often resulting in their death or permanent disability), and were performed without giving the subjects the right to terminate the experiments. They also violated the other ethical principles listed below. For more information about these infamous experiments, see  The United States Holocaust Memorial Museum site on The Doctors Trial.

During the trials, the principles for conducting ethical human experiments were distilled into ten points which have come to be known as the Nuremberg Code. Ironically, although these principles have been incorporated on a piecemeal basis into many university, state and national ethics statements, they have not been given the force of law nationwide in the United States. If the rules applied to Nazi doctors after World War II had been applied to human experiments in the United States thereafter, tragedies like the Cold War Department of Energy radiation experiments and the CIA/DOD chemical experiments might have been prevented.

Nor have these principles been applied nationwide to the practice of mental therapy. Each state has its own patchwork of licensing rules for mental health providers, and these licensing rules usually incorporate similar principles. Violating those rules can cause a licensed mental health provider to lose his or her license. But in most states, one is not required to have a license to practice as a "psychotherapist, " "hypnotherapist," "counselor," or "social worker," and nothing requires such unlicensed practitioners to obey even the below basic ethical principles. Moreover, even among licensed psychiatrists, medical doctors, psychologists, professional counselors, and social workers, the principle of informed consent for mental therapy has not been firmly established and is not always applied. Isn't it ironic? If the rules applied to Nazi doctors after World War II had been applied to mental health practices in the United States in the 1980s and 1990s, the tragedy of the Memory Recovery Movement might have been prevented.

Incidentally, nothing on this site is intended to or does in any way diminish the magnitude of the Holocaust. The Memory Recovery Movement has been tragic for those who have been swept up by it, both for the believers and their families.  An unknown number of patients have committed suicide while undergoing so-called Memory Recovery Therapy, and an unknown number of family members have committed suicide or died of heart attacks after being falsely accused. As tragic as this is, it cannot of course compare in magnitude to the systematic genocide of six million Jews, Eastern Europeans, Roma (gypsies), gays, and others by Hitler's regime. This site is intended to honor the memory of such innocent victims by learning from their suffering and using that knowledge to prevent others from suffering today and in the future. As any victim of the Holocaust would agree, the lesson of the Holocaust is not just that anti-Semitism is wrong, but that the basic human rights of all people must be respected everywhere at all times. (For more information about the Holocaust, see the United States Holocaust Memorial Museum.)

The below text, commonly known as the Nuremberg Code, is excerpted from Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10. Nuremberg, October 1946 - April 1949. Washington D.C.: U.S. G.P.O, 1949-1953. As you read through it, mentally substitute the word "therapy" for the word "experiment" and the word "patient" for the word "subject," and ask yourself this question: if a mental therapy technique such as so-called "memory recovery therapy" has never been tested for safety or effectiveness, how is it any different than a human trial of an untested therapy, and why shouldn't these principles apply?

Then read The Nuremberg Code Applied to Mental Health Practices on this site to see how these ethical principles could be applied to mental health providers.

Permissible Medical Experiments

The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

1. The voluntary consent of the human subject is absolutely essential.

This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

Of the ten principles which have been enumerated our judicial concern, of course, is with those requirements which are purely legal in nature--or which at least are so clearly related to matters legal that they assist us in determining criminal culpability and punishment. To go beyond that point would lead us into a field that would be beyond our sphere of competence. However, the point need not be labored. We find from the evidence that in the medical experiments which have been proved, these ten principles were much more frequently honored in their breach than in their observance. Many of the concentration camp inmates who were the victims of these atrocities were citizens of countries other than the German Reich. They were non-German nationals, including Jews and "asocial persons", both prisoners of war and civilians, who had been imprisoned and forced to submit to these tortures and barbarities without so much as a semblance of trial. In every single instance appearing in the record, subjects were used who did not consent to the experiments; indeed, as to some of the experiments, it is not even contended by the defendants that the subjects occupied the status of volunteers. In no case was the experimental subject at liberty of his own free choice to withdraw from any experiment. In many cases experiments were performed by unqualified persons; were conducted at random for no adequate scientific reason, and under revolting physical conditions. All of the experiments were conducted with unnecessary suffering and injury and but very little, if any, precautions were taken to protect or safeguard the human subjects from the possibilities of injury, disability, or death. In every one of the experiments the subjects experienced extreme pain or torture, and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care.

Obviously all of these experiments involving brutalities, tortures, disabling injury, and death were performed in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, and Control Council Law No. 10. Manifestly human experiments under such conditions are contrary to "the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience."

Read The Nuremberg Code Applied to Mental Health Practices on this site to see how these ethical principles could be applied to mental health providers.

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