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Sunday, December 26, 2021

Buchenwald concentration camp

From Wikipedia, the free encyclopedia

Buchenwald
Nazi concentration camp
Buchenwald Prisoners Undressing 80135.jpg
Polish prisoners forced to undress after arriving in the camp, c. 1940
Right: Roll call at Buchenwald Buchenwald Prisoners Roll Call 10105.jpg

Location
Weimar, Germany
Operated bySchutzstaffel
Commandant
Operational15 July 1937 – 11 April 1945
Number of inmates280,000
Killed56,545
Liberated by6th Armored Division, United States Army
Websitewww.buchenwald.de/en/69/

Buchenwald (German pronunciation: [ˈbuːxn̩valt]; literally 'beech wood') was a Nazi concentration camp established on Ettersberg [de] hill near Weimar, Germany, in July 1937. It was one of the first and the largest of the concentration camps within Germany's 1937 borders. Many actual or suspected communists were among the first internees.

Prisoners came from all over Europe and the Soviet UnionJews, Poles and other Slavs, the mentally ill and physically disabled, political prisoners, Romani people, Freemasons, and prisoners of war. There were also ordinary criminals and sexual "deviants". All prisoners worked primarily as forced labor in local armaments factories. The insufficient food and poor conditions, as well as deliberate executions, led to 56,545 deaths at Buchenwald of the 280,000 prisoners who passed through the camp and its 139 subcamps. The camp gained notoriety when it was liberated by the United States Army in April 1945; Allied commander Dwight D. Eisenhower visited one of its subcamps.

From August 1945 to March 1950, the camp was used by the Soviet occupation authorities as an internment camp, NKVD special camp Nr. 2, where 28,455 prisoners were held and 7,113 of whom died. Today the remains of Buchenwald serve as a memorial and permanent exhibition and museum.

Establishment

Dutch Jews stand during a roll call after their arrival in the camp on 28 February 1941
 
Prisoners forced to work on the Buchenwald–Weimar rail line, 1943

The Schutzstaffel (SS) established Buchenwald concentration camp at the beginning of July 1937. The camp was to be named Ettersberg [de], after the hill in Thuringia upon whose north slope the camp was established. The proposed name was deemed inappropriate, because it carried associations with several important figures in German culture, especially Enlightenment writer Johann Wolfgang von Goethe. Instead the camp was to be named Buchenwald, in reference to the beech forest in the area. However, Holocaust researcher James E. Young [de] wrote that SS leaders chose the site of the camp precisely to erase the cultural legacy of the area. After the area of the camp was cleared of trees, only one large oak remained, supposedly one of Goethe's Oaks.

On the main gate, the motto Jedem das Seine (English: "To each his own"), was inscribed. The SS interpreted this to mean the "master race" had a right to humiliate and destroy others. It was designed by Buchenwald prisoner and Bauhaus architect Franz Ehrlich, who used a Bauhaus typeface for it, even though Bauhaus was seen as degenerate art by the National Socialists and was prohibited. This defiance however went unnoticed by the SS.

The camp, designed to hold 8,000 prisoners, was intended to replace several smaller concentration camps nearby, including Bad Sulza [de], Sachsenburg, and Lichtenburg. Compared to these camps, Buchenwald had a greater potential to profit the SS because the nearby clay deposits could be made into bricks by the forced labor of prisoners. The first prisoners arrived on 15 July 1937, and had to clear the area of trees and build the camp's structures. By September, the population had risen to 2,400 following transfers from Bad Sulza, Sachsenburg, and Lichtenburg.

Command structure

Organization

Buchenwald's first commandant was SS-Obersturmbannführer Karl-Otto Koch, who ran the camp from 1 August 1937 to July 1941. His second wife, Ilse Koch, became notorious as Die Hexe von Buchenwald ("the witch of Buchenwald") for her cruelty and brutality. In February 1940 Koch had an indoor riding hall built by the prisoners who died by the dozen due to the harsh conditions of the construction site. The hall was built inside the camp, near the canteen, so that oftentimes Ilse Koch could be seen riding in the morning to the beat of the prisoner orchestra. Koch himself was eventually imprisoned at Buchenwald by the Nazi authorities for incitement to murder. The charges were lodged by Prince Waldeck and Dr. Morgen, to which were later added charges of corruption, embezzlement, black market dealings, and exploitation of the camp workers for personal gain. Other camp officials were charged, including Ilse Koch. The trial resulted in Karl Koch being sentenced to death for disgracing both himself and the SS; he was executed by firing squad on 5 April 1945, one week before American troops arrived. Ilse Koch was sentenced to a term of four years' imprisonment after the war. Her sentence was reduced to two years and she was set free. She was subsequently arrested again and sentenced to life imprisonment by the post-war German authorities; she committed suicide in Aichach (Bavaria) prison in September 1967. The second commandant of the camp, between 1942 and 1945, was Hermann Pister (1942–1945). He was tried in 1947 (Dachau Trials) and sentenced to death, but on 28 September 1948 he died in Landsberg Prison of a heart attack before the sentence could be carried out.

Female prisoners and overseers

The number of women held in Buchenwald was somewhere between 500 and 1,000. The first female inmates were twenty political prisoners who were accompanied by a female SS guard (Aufseherin); these women were brought to Buchenwald from Ravensbrück in 1941 and forced into sexual slavery at the camp's brothel. The SS later fired the SS woman on duty in the brothel for corruption; her position was taken over by "brothel mothers" as ordered by SS chief Heinrich Himmler.

The majority of women prisoners, however, arrived in 1944 and 1945 from other camps, mainly Auschwitz, Ravensbrück, and Bergen Belsen. Only one barracks was set aside for them; this was overseen by the female block leader (Blockführerin) Franziska Hoengesberg, who came from Essen when it was evacuated. All the women prisoners were later shipped out to one of Buchenwald's many female satellite camps in Sömmerda, Buttelstedt, Mühlhausen, Gotha, Gelsenkirchen, Essen, Lippstadt, Weimar, Magdeburg, and Penig, to name a few. No female guards were permanently stationed at Buchenwald.

Ilse Koch served as head supervisor (Oberaufseherin) of 22 other female guards and hundreds of women prisoners in the main camp. More than 530 women served as guards in the vast Buchenwald system of subcamps and external commands across Germany. Only 22 women served/trained in Buchenwald, compared to over 15,500 men.

Subcamps

The first subcamps of Buchenwald were established in 1941 so that the prisoners could work in nearby SS industries. In 1942, the SS began to use its forced labor supply for armaments production. Because it was more economical to rent out prisoners to private firms, subcamps were set up near factories which had a demand for prisoner labor. Private firms paid the SS between 4 and 6 Reichsmarks per day per prisoner, resulting in an estimated 95,758,843 Reichsmarks in revenue for the SS between June 1943 and February 1945. There were 136 subcamps in all. Conditions were worse than at the main camp, with prisoners provided insufficient food and inadequate shelter.

Allied POWs

Although it was highly unusual for German authorities to send Western Allied POWs to concentration camps, Buchenwald held a group of 168 aviators for two months. These men were from the United States, United Kingdom, Canada, Australia, New Zealand and Jamaica. They all arrived at Buchenwald on 20 August 1944.

All these airmen were in aircraft that had crashed in occupied France. Two explanations are given for them being sent to a concentration camp: first, that they had managed to make contact with the French Resistance, some were disguised as civilians, and they were carrying false papers when caught; they were therefore categorized by the Germans as spies, which meant their rights under the Geneva Convention were not respected. The second explanation is that they had been categorised as Terrorflieger ("terror aviators"). The aviators were initially held in Gestapo prisons and headquarters in France. In April or August 1944, they and other Gestapo prisoners were packed into covered goods wagons (US: boxcars) and sent to Buchenwald. The journey took five days, during which they received very little food or water.

Death toll

Causes of death

On 26 April 1942, twenty Polish prisoners were hanged in retaliation for the killing of a German overseer. Pictured awaiting execution.

A primary cause of death was illness due to harsh camp conditions, with starvation—and its consequent illnesses—prevalent. Malnourished and suffering from disease, many were literally "worked to death" under the Vernichtung durch Arbeit policy (extermination through labor), as inmates only had the choice between slave labor or inevitable execution. Many inmates died as a result of human experimentation or fell victim to arbitrary acts perpetrated by the SS guards. Other prisoners were simply murdered, primarily by shooting and hanging.

Walter Gerhard Martin Sommer was an SS-Hauptscharführer who served as a guard at the concentration camps of Dachau and Buchenwald. Known as the "Hangman of Buchenwald", he was considered a depraved sadist who reportedly ordered Otto Neururer and Mathias Spannlang, two Austrian priests, to be crucified upside-down. Sommer was especially infamous for hanging prisoners off of trees from their wrists, which had been tied behind their backs (a torture technique known as strappado) in the "singing forest", so named because of the screams which emanated from this wooded area.

Summary executions of Soviet POWs were also carried out at Buchenwald. At least 1,000 men were selected in 1941–42 by a task force of three Dresden Gestapo officers and sent to the camp for immediate liquidation by a gunshot to the back of the neck, the infamous Genickschuss.

The camp was also a site of large-scale trials for vaccines against epidemic typhus in 1942 and 1943. In all 729 inmates were used as test subjects, of whom 154 died. Other "experimentation" occurred at Buchenwald on a smaller scale. One such experiment aimed at determining the precise fatal dose of a poison of the alkaloid group; according to the testimony of one doctor, four Soviet POWs were administered the poison, and when it proved not to be fatal they were "strangled in the crematorium" and subsequently "dissected". Among various other experiments was one which, in order to test the effectiveness of a balm for wounds from incendiary bombs, involved inflicting "very severe" white phosphorus burns on inmates. When challenged at trial over the nature of this testing, and particularly over the fact that the testing was designed in some cases to cause death and only to measure the time which elapsed until death was caused, one Nazi doctor's defence was that, although a doctor, he was a "legally appointed executioner".

Number of deaths

Corpses found in the camp after liberation

The SS left behind accounts of the number of prisoners and people coming to and leaving the camp, categorizing those leaving them by release, transfer, or death. These accounts are one of the sources of estimates for the number of deaths in Buchenwald. According to SS documents, 33,462 died. These documents were not, however, necessarily accurate: Among those executed before 1944, many were listed as "transferred to the Gestapo". Furthermore, from 1941, Soviet POWs were executed in mass killings. Arriving prisoners selected for execution were not entered into the camp register and therefore were not among the 33,462 dead listed.

One former Buchenwald prisoner, Armin Walter, calculated the number of executions by the number of shootings in the spine at the base of the head. His job at Buchenwald was to set up and care for a radio installation at the facility where people were executed; he counted the numbers, which arrived by telex, and hid the information. He says that 8,483 Soviet prisoners of war were shot in this manner.

According to the same source, the total number of deaths at Buchenwald is estimated at 56,545. This number is the sum of:

  • Deaths according to material left behind by the SS: 33,462
  • Executions by shooting: 8,483
  • Executions by hanging (estimate): 1,100
  • Deaths during evacuation transports (estimate): 13,500

This total (56,545) corresponds to a death rate of 24 percent, assuming that the number of persons passing through the camp according to documents left by the SS, 240,000 prisoners, is accurate.

Liberation

Prisoner of KZ Buchenwald with member of SS personnel after entry of U.S. Army 1945.
 
U.S. Senator Alben W. Barkley (D-Kentucky) looks on after Buchenwald's liberation.
 
'Orphans of Buchenwald Ex-Prisoners Coming Home Air Views HQ and Camps (1945)' - film from US National Archives

On 4 April 1945 the U.S. 89th Infantry Division overran Ohrdruf, a subcamp of Buchenwald.

Buchenwald was partially evacuated by the Germans from 6 to 11 April 1945. In the days before the arrival of the American army, thousands of the prisoners were forced to join the evacuation marches. Thanks in large part to the efforts of Polish engineer (and short-wave radio-amateur, his pre-war callsign was SP2BD) Gwidon Damazyn, an inmate since March 1941, a secret short-wave transmitter and small generator were built and hidden in the prisoners' movie room. On April 8 at noon, Damazyn and Russian prisoner Konstantin Ivanovich Leonov sent the Morse code message prepared by leaders of the prisoners' underground resistance (supposedly Walter Bartel and Harry Kuhn):

To the Allies. To the army of General Patton. This is the Buchenwald concentration camp. SOS. We request help. They want to evacuate us. The SS wants to destroy us.

The text was repeated several times in English, German, and Russian. Damazyn sent the English and German transmissions, while Leonov sent the Russian version. Three minutes after the last transmission sent by Damazyn, the headquarters of the U.S. Third Army responded:

KZ Bu. Hold out. Rushing to your aid. Staff of Third Army.

Interior of the barracks, pictured after liberation by Jules Rouard [fr] on 16 April 1945

According to Teofil Witek, a fellow Polish prisoner who witnessed the transmissions, Damazyn fainted after receiving the message.

After this news had been received, inmates stormed the watchtowers and killed the remaining guards, using arms they had been collecting since 1942 (one machine gun and 91 rifles; see Buchenwald Resistance).

3:15 p.m. is the permanent time of the clock at the entrance gate

As American forces closed in, Gestapo headquarters at Weimar telephoned the camp administration to announce that it was sending explosives to blow up any evidence of the camp, including its inmates. The Gestapo did not know that the administrators had already fled. A prisoner answered the phone and informed headquarters that explosives would not be needed, as the camp had already been blown up, which was not true.

A detachment of troops of the U.S. 9th Armored Infantry Battalion, from the 6th Armored Division, part of the U.S. Third Army, and under the command of Captain Frederic Keffer, arrived at Buchenwald on 11 April 1945 at 3:15 p.m. (now the permanent time of the clock at the entrance gate). The soldiers were given a hero's welcome, with the emaciated survivors finding the strength to toss some liberators into the air in celebration.

Later in the day, elements of the U.S. 83rd Infantry Division overran Langenstein, one of a number of smaller camps comprising the Buchenwald complex. There, the division liberated over 21,000 prisoners, ordered the mayor of Langenstein to send food and water to the camp, and hurried medical supplies forward from the 20th Field Hospital.

Third Army Headquarters sent elements of the 80th Infantry Division to take control of the camp on the morning of Thursday 12 April 1945. Several journalists arrived on the same day, perhaps with the 80th, including Edward R. Murrow, whose radio report of his arrival and reception was broadcast on CBS and became one of his most famous:

I asked to see one of the barracks. It happened to be occupied by Czechoslovaks. When I entered, men crowded around, tried to lift me to their shoulders. They were too weak. Many of them could not get out of bed. I was told that this building had once stabled 80 horses. There were 1,200 men in it, five to a bunk. The stink was beyond all description.

They called the doctor. We inspected his records. There were only names in the little black book, nothing more. Nothing about who these men were, what they had done, or hoped. Behind the names of those who had died, there was a cross. I counted them. They totaled 242. 242 out of 1,200, in one month.

As we walked out into the courtyard, a man fell dead. Two others, they must have been over 60, were crawling toward the latrine. I saw it, but will not describe it.

— Extract from Edward R. Murrow's Buchenwald Report – 15 April 1945.

Civilian tour

After Patton toured the camp, he ordered the mayor of Weimar to bring 1,000 citizens to Buchenwald; these were to be predominantly men of military age from the middle and upper classes. The Germans had to walk 25 kilometres (16 mi) roundtrip under armed American guard and were shown the crematorium and other evidence of Nazi atrocities. The Americans wanted to ensure that the German people would take responsibility for Nazi crimes, instead of dismissing them as atrocity propaganda.[38] Gen. Dwight Eisenhower also invited two groups of Americans to tour the camp in mid-April 1945; journalists and editors from some of the principal U.S. publications, and then a dozen members of the Congress from both the House and the Senate, led by Senate Majority Leader Alben W. Barkley.

Aftermath

Ilse Koch testifies

Buchenwald Trial

Thirty SS perpetrators at Buchenwald were tried before a US military tribunal in 1947, including Higher SS and Police Leader Josias Erbprinz zu Waldeck und Pyrmont, who oversaw the SS district that Buchenwald was located in, and many of the doctors responsible for Nazi human experimentation. Almost all of the defendants were convicted, and 22 were sentenced to death. However, only nine death sentences were carried out, and by the mid-1950s, all perpetrators had been freed except for Ilse Koch. Additional perpetrators were tried before German courts during the 1960s.

The site

Buchenwald memorial by Fritz Cremer

Between August 1945 and 1 March 1950, Buchenwald was the site of NKVD special camp Nr. 2, where the Soviet secret police imprisoned former Nazis and anti-communist dissidents. According to Soviet records, 28,455 people were detained, 7,113 of whom died. After the NKVD camp closed, much of the camp was razed, while signs were erected to provide a Soviet interpretation of the camp's legacy. The first monument to victims was erected by Buchenwald inmates days after the initial liberation. It was made of wood and only intended to be temporary. A second monument to commemorate the dead was erected in 1958 by the GDR government near the mass graves. Inside the camp, there is a stainless steel monument on the spot where the first, temporary monument stood. Its surface is maintained at 37 °C (99 °F), the temperature of human skin, all year round. Today the Buchenwald camp site serves as a Holocaust memorial. It has a museum with permanent exhibitions about the history of the camp. It is managed by Buchenwald and Mittelbau-Dora Memorials Foundation, which also looks after the camp memorial at Mittelbau-Dora.

Literature

Slave laborers at Buchenwald after liberation in 1945

Survivors who have written about their camp experiences include Jorge Semprún, who in Quel beau dimanche! describes conversations involving Goethe and Léon Blum, and Ernst Wiechert, whose Der Totenwald was written in 1939 but not published until 1945, and which likewise involved Goethe. Scholars have investigated how camp inmates used art to help deal with their circumstances, and according to Theodor Ziolkowski writers often did so by turning to Goethe. Artist Léon Delarbre sketched, besides other scenes of camp life, the Goethe Oak, under which he used to sit and write. One of the few prisoners who escaped from the camp, the Belgian Edmond Vandievoet, recounted his experiences in a book whose English title is "I escaped from a Nazi Death Camp" [Editions Jourdan, 2015]. In his work Night, Elie Wiesel talks about his stay in Buchenwald, including his father's death. Jacques Lusseyran, a leader in the underground resistance to the German occupation of France, was eventually sent to Buchenwald after being arrested, and described his time there in his autobiography.

Visit from President Obama and Chancellor Merkel

Video of President Obama's visit

On June 5, 2009, U.S. President Barack Obama and German Chancellor Angela Merkel visited Buchenwald after a tour of Dresden Castle and Church of Our Lady. During the visit they were accompanied by Elie Wiesel and Bertrand Herz, both survivors of the camp. Volkhard Knigge [de], the director of the Buchenwald and Mittelbau-Dora Memorials Foundation and honorary professor of University of Jena, guided the four guests through the remainder of the site of the camp. During the visit Wiesel, who together with Herz were sent to the Little camp as 16-year-old boys, said, "if these trees could talk." His statement marked the irony about the beauty of the landscape and the horrors that took place within the camp. President Obama mentioned during his visit that he had heard stories as a child from his great uncle, who was part of the 89th Infantry Division, the first Americans to reach the camp at Ohrdruf, one of Buchenwald's satellites. Obama was the first sitting US President to visit the Buchenwald concentration camp.

Sources of international law

From Wikipedia, the free encyclopedia

International law also known as "law of nations" is the name of a body of rules which regulate the conduct of sovereign states in their relations with one another. EditingSources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

Modern views

Article 38(1) of the Statute of the International Court of Justice is generally recognized as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

During the 19th century, it was recognized by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and was later preserved in Article 38(1) of the 1946 Statute of the International Court of Justice.

The core of broad principles of law is general and dynamic, and they can sometimes be reduced to a proverb or a basic idea. Unlike other types of regulations, such as ordered law or agreements, broad standards of law have not been "established" according to the right sources of law. General norms of law, on the other hand, are regarded as a component of positive law, even if they are only used as auxiliary devices. They define critical principles for the framework's actual operation and, in general, are drafted from the lawful thinking of those entitled to make valid decisions when administering the law, namely the legal executive. They likewise incorporate integrative gadgets of the framework as they fill existing or possible lawful deficiencies. General standards of law have been the subject of extensive doctrinal debate in international law, owing to the various connotations attributed to the concept and the hypothetical concerns that they raise. The use of the expression "central standards of international law," which is at the top of the overall set of laws and begins in settlement or custom (e.g., the guideline of sovereign correspondence of states or the rule of the forbiddance of danger or the use of power), and which will not be managed here, causes a lot of confusion. Given the language used in Article 38, paragraph 1(c) of the Statute of the International Court of Justice. ("universal standards of law as recognised by acculturated countries"), the beginning of universal standards of law as applied at the global level has also been a source of debate. The conventional wisdom holds that these standards have their origins in homegrown general systems of laws. Once it is established that some of these broad instruments are frequently shared rules found in domestic systems, they can be utilised in international law as well. They are rational derivations that can be found in any overall group of laws: the standard of restitution for harm committed, the standard of rule understanding, or those used for the purpose of rule struggles—many of them known through Latin adages—are true models. Various general legal standards, such as “audiatur et altera” standards, “actori incumbit onus probandi”, or the method that the designated authority of benefits is also judge of the coincidental locale, have been promoted by the legal executive polacy is very importent of any war.

Hierarchy

On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Also, jus cogens (peremptory norm) is a custom, not a treaty. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law. Nevertheless, treaty, custom, and general principles of law are generally recognized as primary sources of international law.

Treaties as law

Treaties and conventions are the persuasive source of international law and are considered "hard law." Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defense pact. Treaties can also be legislation to regulate a particular aspect of international relations or form the constitutions of international organizations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a) of the ICJ Statute, which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.

Thus, the procedures or methods by treaties become legally binding are formal source of law which is a process by a legal rule comes into existence: it is law creating.

Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the global commons, and jus ad bellum. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious example is the 1949 Geneva Conventions for the Protection of War Victims.

Most multi-lateral treaties fall short of achieving such a near-universal degree of formal acceptance and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:

  • When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which was considered by the ICJ to be law even before it had been brought into force.
  • When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallizing the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallize the rule as part of customary international law.
  • Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law. If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the opinio juris of customary international law.
  • Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession.

The United Nations Charter

Pursuant to Chapter XVI, Article 103 of the United Nations Charter, the obligations under the United Nations Charter overrides the terms of any other treaty. Meanwhile, its Preamble affirms the establishment of the obligations out of treaties and source of international law.

International custom

Article 38(1)(b) of the ICJ Statute refers to "international custom" as a source of international law, specifically emphasizing the two requirements of state practice plus acceptance of the practice as obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).

Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law is differentiated from acts of comity (mutual recognition of government acts) by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.

State practice

When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinio juris. A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made. It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organizations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation.

The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely to be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.

Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule, either as a member of a regional group or by virtue of its membership of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their wishes.

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognized that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.

Practice by international organizations

It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as 'dated, and this can most vividly be seen in the mention made of 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations.

Opinio juris

A wealth of state practice does not usually carry with it a presumption that opinio juris exists. “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”

In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking.

Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain.

Jus cogens

A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties:

For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offenses which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.

The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, jus cogens could be thought of as a special principle of custom with a superadded opinions juries. The European Court of Human Rights has stressed the international public policy aspect of the jus cogens.

General principles of law

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a nonliquet by reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognized" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organizations, although today the principles are regarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely on that belief, may be estopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations". Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.  

Judicial decisions and juristic writings

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to case law and to legal literature.

Judicial decisions

The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice, the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law.

There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.

Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.

Juristic writings

Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilized by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).

Informed consent

From Wikipedia, the free encyclopedia
 
Example of informed consent document from the PARAMOUNT trial

Informed consent is a principle in medical ethics and medical law that a patient should have sufficient information before making their own free decisions about their medical care. A healthcare provider is often held to have a responsibility to ensure that the consent that a patient gives is informed, and informed consent can apply to a health care intervention on a person, conducting some form of research on a person, or for disclosing a person's information. A health care provider may ask a patient to consent to receive therapy before providing it, a clinical researcher may ask a research participant before enrolling that person into a clinical trial, and a researcher may ask a research participant before starting some form of controlled experiment. Informed consent is collected according to guidelines from the fields of medical ethics and research ethics.

Free consent is a cognate term enshrined in the International Covenant on Civil and Political Rights. The covenant was adopted in 1966 by the United Nations, and intended to be in force by 23 March 1976. Article seven prohibits experiments conducted without the "free consent to medical or scientific experimentation" of the subject. As of September 2019, the covenant has 173 parties and six more signatories without ratification.

Informed consent can be said to have been given based upon a clear appreciation and understanding of the facts, implications, and consequences of an action. To give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts. Impairments to reasoning and judgment that may prevent informed consent include basic intellectual or emotional immaturity, high levels of stress such as post-traumatic stress disorder or a severe intellectual disability, severe mental disorder, intoxication, severe sleep deprivation, Alzheimer's disease, or being in a coma.

Obtaining informed consent is not always required. If an individual is considered unable to give informed consent, another person is generally authorized to give consent on his behalf, e.g., parents or legal guardians of a child (though in this circumstance the child may be required to provide informed assent) and conservators for the mentally disordered, or consent can be assumed through the doctrine of implied consent, e.g., when an unconscious person will die without immediate medical treatment.

In cases where an individual is provided insufficient information to form a reasoned decision, serious ethical issues arise. Such cases in a clinical trial in medical research are anticipated and prevented by an ethics committee or institutional review board.

Informed consent form templates can be found on the website of the World Health Organization.

Assessment

Informed consent can be complex to evaluate, because neither expressions of consent, nor expressions of understanding of implications, necessarily mean that full adult consent was in fact given, nor that full comprehension of relevant issues is internally digested. Consent may be implied within the usual subtleties of human communication, rather than explicitly negotiated verbally or in writing. In some cases consent cannot legally be possible, even if the person protests he does indeed understand and wish. There are also structured instruments for evaluating capacity to give informed consent, although no ideal instrument presently exists.

Thus, there is always a degree to which informed consent must be assumed or inferred based upon observation, or knowledge, or legal reliance. This especially is the case in sexual or relational issues. In medical or formal circumstances, explicit agreement by means of signature—normally relied on legally—regardless of actual consent, is the norm. This is the case with certain procedures, such as a "do not resuscitate" directive that a patient signed before onset of their illness.

Brief examples of each of the above:

  1. A person may verbally agree to something from fear, perceived social pressure, or psychological difficulty in asserting true feelings. The person requesting the action may honestly be unaware of this and believe the consent is genuine, and rely on it. Consent is expressed, but not internally given.
  2. A person may claim to understand the implications of some action, as part of consent, but in fact has failed to appreciate the possible consequences fully and may later deny the validity of the consent for this reason. Understanding needed for informed consent is present but is, in fact (through ignorance), not present.
  3. A person signs a legal release form for a medical procedure, and later feels he did not really consent. Unless he can show actual misinformation, the release is usually persuasive or conclusive in law, in that the clinician may rely legally upon it for consent. In formal circumstances, a written consent usually legally overrides later denial of informed consent (unless obtained by misrepresentation).
  4. Informed consent in the U.S. can be overridden in emergency medical situations pursuant to 21CFR50.24, which was first brought to the general public's attention via the controversy surrounding the study of Polyheme.

Valid elements

For an individual to give valid informed consent, three components must be present: disclosure, capacity and voluntariness.

  • Disclosure requires the researcher to supply each prospective subject with the information necessary to make an autonomous decision and also to ensure that the subject adequately understands the information provided. This latter requirement implies that a written consent form be written in lay language suited for the comprehension skills of subject population, as well as assessing the level of understanding through conversation (to be informed).
  • Capacity pertains to the ability of the subject to both understand the information provided and form a reasonable judgment based on the potential consequences of his/her decision.
  • Voluntariness refers to the subject's right to freely exercise his/her decision making without being subjected to external pressure such as coercion, manipulation, or undue influence.

Waiver of requirement

Waiver of the consent requirement may be applied in certain circumstances where no foreseeable harm is expected to result from the study or when permitted by law, federal regulations, or if an ethical review committee has approved the non-disclosure of certain information.

Besides studies with minimal risk, waivers of consent may be obtained in a military setting. According to 10 USC 980, the United States Code for the Armed Forces, Limitations on the Use of Humans as Experimental Subjects, a waiver of advanced informed consent may be granted by the Secretary of Defense if a research project would:

  1. Directly benefit subjects.
  2. Advance the development of a medical product necessary to the military.
  3. Be carried out under all laws and regulations (i.e., Emergency Research Consent Waiver) including those pertinent to the FDA.

While informed consent is a basic right and should be carried out effectively, if a patient is incapacitated due to injury or illness, it is still important that patients benefit from emergency experimentation. The Food and Drug Administration (FDA) and the Department of Health and Human Services (DHHS) joined to create federal guidelines to permit emergency research, without informed consent. However, they can only proceed with the research if they obtain a waiver of informed consent (WIC) or an emergency exception from informed consent (EFIC).

21st Century Cures Act

The 21st Century Cures Act enacted by the 114th United States Congress in December 2016 allows researchers to waive the requirement for informed consent when clinical testing "poses no more than minimal risk" and "includes appropriate safeguards to protect the rights, safety, and welfare of the human subject."

Medical sociology

Medical sociologist have studied informed consent as well bioethics more generally. Oonagh Corrigan, looking at informed consent for research in patients, argues that much of the conceptualization of informed consent comes from research ethics and bioethics with a focus on patient autonomy, and notes that this aligns with a neoliberal worldview. Corrigan argues that a model based solely around individual decision making does not accurately describe the reality of consent because of social processes: a view that has started to be acknowledged in bioethics. She feels that the liberal principles of informed consent are often in opposition with autocratic medical practices such that norms values and systems of expertise often shape and individuals ability to apply choice.

Patients who agree to participate in trials often do so because they feel that the trial was suggested by a doctor as the best intervention. Patients may find being asked to consent within a limited time frame a burdensome intrusion on their care when it arises because a patient has to deal with a new condition. Patients involved in trials may not be fully aware of the alternative treatments, and an awareness that there is uncertainty in the best treatment can help make patients more aware of this. Corrigan notes that patients generally expect that doctors are acting exclusively in their interest in interactions and that this combined with "clinical equipose" where a healthcare practictioner does not know which treatment is better in a randomized control trial can be harmful to the doctor-patient relationship.

History

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Walter Reed authored these informed consent documents in 1900 for his research on yellow fever

Informed consent is a technical term first used by attorney, Paul G. Gebhard, in a medical malpractice United States court case in 1957. In tracing its history, some scholars have suggested tracing the history of checking for any of these practices:

  1. A patient agrees to a health intervention based on an understanding of it.
  2. The patient has multiple choices and is not compelled to choose a particular one.
  3. The consent includes giving permission.

These practices are part of what constitutes informed consent, and their history is the history of informed consent. They combine to form the modern concept of informed consent—which rose in response to particular incidents in modern research. Whereas various cultures in various places practiced informed consent, the modern concept of informed consent was developed by people who drew influence from Western tradition.

Medical history

In this Ottoman Empire document from 1539 a father promises to not sue a surgeon in case of death following the removal of his son's urinary stones.

Historians cite a series of medical guidelines to trace the history of informed consent in medical practice.

The Hippocratic Oath, a Greek text dating to 500 B.C.E., was the first set of Western writings giving guidelines for the conduct of medical professionals. It advises that physicians conceal most information from patients to give the patients the best care. The rationale is a beneficence model for care—the doctor knows better than the patient, and therefore should direct the patient's care, because the patient is not likely to have better ideas than the doctor.

Henri de Mondeville, a French surgeon who in the 14th century, wrote about medical practice. He traced his ideas to the Hippocratic Oath. Among his recommendations were that doctors "promise a cure to every patient" in hopes that the good prognosis would inspire a good outcome to treatment. Mondeville never mentioned getting consent, but did emphasize the need for the patient to have confidence in the doctor. He also advised that when deciding therapeutically unimportant details the doctor should meet the patients' requests "so far as they do not interfere with treatment".

In Ottoman Empire records there exists an agreement from 1539 in which negotiates details of a surgery, including fee and a commitment not to sue in case of death.[14] This is the oldest identified written document in which a patient acknowledges risk of medical treatment and writes to express their willingness to proceed.

Benjamin Rush was an 18th-century United States physician who was influenced by the Age of Enlightenment cultural movement. Because of this, he advised that doctors ought to share as much information as possible with patients. He recommended that doctors educate the public and respect a patient's informed decision to accept therapy. There is no evidence that he supported seeking a consent from patients. In a lecture titled "On the duties of patients to their physicians", he stated that patients should be strictly obedient to the physician's orders; this was representative of much of his writings. John Gregory, Rush's teacher, wrote similar views that a doctor could best practice beneficence by making decisions for the patients without their consent.

Thomas Percival was a British physician who published a book called Medical Ethics in 1803. Percival was a student of the works of Gregory and various earlier Hippocratic physicians. Like all previous works, Percival's Medical Ethics makes no mention of soliciting for the consent of patients or respecting their decisions. Percival said that patients have a right to truth, but when the physician could provide better treatment by lying or withholding information, he advised that the physician do as he thought best.

When the American Medical Association was founded they in 1847 produced a work called the first edition of the American Medical Association Code of Medical Ethics. Many sections of this book are verbatim copies of passages from Percival's Medical Ethics. A new concept in this book was the idea that physicians should fully disclose all patient details truthfully when talking to other physicians, but the text does not also apply this idea to disclosing information to patients. Through this text, Percival's ideas became pervasive guidelines throughout the United States as other texts were derived from them.

Worthington Hooker was an American physician who in 1849 published Physician and Patient. This medical ethics book was radical demonstrating understanding of the AMA's guidelines and Percival's philosophy and soundly rejecting all directives that a doctor should lie to patients. In Hooker's view, benevolent deception is not fair to the patient, and he lectured widely on this topic. Hooker's ideas were not broadly influential.

Research history

Historians cite a series of human subject research experiments to trace the history of informed consent in research.

The U.S. Army Yellow Fever Commission "is considered the first research group in history to use consent forms." In 1900, Major Walter Reed was appointed head of the four man U.S. Army Yellow Fever Commission in Cuba that determined mosquitoes were the vector for yellow fever transmission. His earliest experiments were probably done without formal documentation of informed consent. In later experiments he obtained support from appropriate military and administrative authorities. He then drafted what is now "one of the oldest series of extant informed consent documents." The three surviving examples are in Spanish with English translations; two have an individual's signature and one is marked with an X.

Tearoom Trade is the name of a book by American psychologist Laud Humphreys. In it he describes his research into male homosexual acts. In conducting this research he never sought consent from his research subjects and other researchers raised concerns that he violated the right to privacy for research participants.

Henrietta Lacks On Jan. 29, 1951, shortly after the birth of her son Joseph, Lacks entered Johns Hopkins Hospital in Baltimore with profuse bleeding. She was diagnosed with cervical cancer and was treated with inserts of radium tubes. During her radiation treatments for the tumor, two samples—one of healthy cells, the other of malignant cells—were removed from her cervix without her permission. Later that year, 31-year-old Henrietta Lacks succumbed to the cancer. Her cells were cultured creating Hela cells, but the family was not informed until 1973, the family learned the truth when scientists asked for DNA samples after finding that HeLa had contaminated other samples. In 2013 researchers published the genome without the Lacks family consent.

The Milgram experiment is the name of a 1961 experiment conducted by American psychologist Stanley Milgram. In the experiment Milgram had an authority figure order research participants to commit a disturbing act of harming another person. After the experiment he would reveal that he had deceived the participants and that they had not hurt anyone, but the research participants were upset at the experience of having participated in the research. The experiment raised broad discussion on the ethics of recruiting participants for research without giving them full information about the nature of the research.

Chester M. Southam used HeLa cells to inject into cancer patients and Ohio State Penitentiary inmates without informed consent to determine if people could become immune to cancer and if cancer could be transmitted.

Medical procedures

The doctrine of informed consent relates to professional negligence and establishes a breach of the duty of care owed to the patient (see duty of care, breach of the duty, and respect for persons). The doctrine of informed consent also has significant implications for medical trials of medications, devices, or procedures.

Requirements of the professional

Until 2015 in the United Kingdom and in countries such as Malaysia and Singapore, informed consent in medical procedures requires proof as to the standard of care to expect as a recognised standard of acceptable professional practice (the Bolam Test), that is, what risks would a medical professional usually disclose in the circumstances (see Loss of right in English law). Arguably, this is "sufficient consent" rather than "informed consent." The UK has since departed from the Bolam test for judging standards of informed consent, due to the landmark ruling in Montgomery v Lanarkshire Health Board. This moves away from the concept of a reasonable physician and instead uses the standard of a reasonable patient, and what risks an individual would attach significance to.

Medicine in the United States, Australia, and Canada also takes this patient-centric approach to "informed consent." Informed consent in these jurisdictions requires healthcare providers to disclose significant risks, as well as risks of particular importance to that patient. This approach combines an objective (a hypothetical reasonable patient) and subjective (this particular patient) approach.

The doctrine of informed consent should be contrasted with the general doctrine of medical consent, which applies to assault or battery. The consent standard here is only that the person understands, in general terms, the nature of and purpose of the intended intervention. As the higher standard of informed consent applies to negligence, not battery, the other elements of negligence must be made out. Significantly, causation must be shown: That had the individual been made aware of the risk he would not have proceeded with the operation (or perhaps with that surgeon).

Optimal establishment of an informed consent requires adaptation to cultural or other individual factors of the patient. For example, people from Mediterranean and Arab appear to rely more on the context of the delivery of the information, with the information being carried more by who is saying it and where, when, and how it is being said, rather than what is said, which is of relatively more importance in typical "Western" countries.

The informed consent doctrine is generally implemented through good healthcare practice: pre-operation discussions with patients and the use of medical consent forms in hospitals. However, reliance on a signed form should not undermine the basis of the doctrine in giving the patient an opportunity to weigh and respond to the risk. In one British case, a doctor performing routine surgery on a woman noticed that she had cancerous tissue in her womb. He took the initiative to remove the woman's womb; however, as she had not given informed consent for this operation, the doctor was judged by the General Medical Council to have acted negligently. The council stated that the woman should have been informed of her condition, and allowed to make her own decision.

Obtaining informed consents

To document that informed consent has been given for a procedure, healthcare organisations have traditionally used paper-based consent forms on which the procedure and its risks and benefits are noted, and is signed by both patient and clinician. In a number of healthcare organisations consent forms are scanned and maintained in an electronic document store. The paper consent process has been demonstrated to be associated with significant errors of omission, and therefore increasing numbers of organisations are using digital consent applications where the risk of errors can be minimised, a patient's decision making and comprehension can be supported by additional lay-friendly and accessible information, consent can be completed remotely, and the process can become paperless. One form of digital consent is dynamic consent, which invites participants to provide consent in a granular way, and makes it easier for them to withdraw consent if they wish.

Electronic consent methods have been used to support indexing and retrieval of consent data, thus enhancing the ability to honor to patient intent and identify willing research participants. More recently, Health Sciences South Carolina, a statewide research collaborative focused on transforming healthcare quality, health information systems and patient outcomes, developed an open-source system called Research Permissions Management System (RPMS).

Competency of the patient

The ability to give informed consent is governed by a general requirement of competency. In common law jurisdictions, adults are presumed competent to consent. This presumption can be rebutted, for instance, in circumstances of mental illness or other incompetence. This may be prescribed in legislation or based on a common-law standard of inability to understand the nature of the procedure. In cases of incompetent adults, a health care proxy makes medical decisions. In the absence of a proxy, the medical practitioner is expected to act in the patient's best interests until a proxy can be found.

By contrast, 'minors' (which may be defined differently in different jurisdictions) are generally presumed incompetent to consent, but depending on their age and other factors may be required to provide Informed assent. In some jurisdictions (e.g. much of the U.S.), this is a strict standard. In other jurisdictions (e.g. England, Australia, Canada), this presumption may be rebutted through proof that the minor is 'mature' (the 'Gillick standard'). In cases of incompetent minors, informed consent is usually required from the parent (rather than the 'best interests standard') although a parens patriae order may apply, allowing the court to dispense with parental consent in cases of refusal.

Deception

Research involving deception is controversial given the requirement for informed consent. Deception typically arises in social psychology, when researching a particular psychological process requires that investigators deceive subjects. For example, in the Milgram experiment, researchers wanted to determine the willingness of participants to obey authority figures despite their personal conscientious objections. They had authority figures demand that participants deliver what they thought was an electric shock to another research participant. For the study to succeed, it was necessary to deceive the participants so they believed that the subject was a peer and that their electric shocks caused the peer actual pain.

Nonetheless, research involving deception prevents subjects from exercising their basic right of autonomous informed decision-making and conflicts with the ethical principle of respect for persons.

The Ethical Principles of Psychologists and Code of Conduct set by the American Psychological Association says that psychologists may conduct research that includes a deceptive compartment only if they can both justify the act by the value and importance of the study's results and show they could not obtain the results by some other way. Moreover, the research should bear no potential harm to the subject as an outcome of deception, either physical pain or emotional distress. Finally, the code requires a debriefing session in which the experimenter both tells the subject about the deception and gives subject the option of withdrawing the data.

Abortion

In some U.S. states, informed consent laws (sometimes called "right to know" laws) require that a woman seeking an elective abortion receive information from the abortion provider about her legal rights, alternatives to abortion (such as adoption), available public and private assistance, and other information specified in the law, before the abortion is performed. Other countries with such laws (e.g. Germany) require that the information giver be properly certified to make sure that no abortion is carried out for the financial gain of the abortion provider and to ensure that the decision to have an abortion is not swayed by any form of incentive.

Some informed consent laws have been criticized for allegedly using "loaded language in an apparently deliberate attempt to 'personify' the fetus," but those critics acknowledge that "most of the information in the [legally mandated] materials about abortion comports with recent scientific findings and the principles of informed consent", although "some content is either misleading or altogether incorrect."

From children

As children often lack the decision making ability or legal power (competence) to provide true informed consent for medical decisions, it often falls on parents or legal guardians to provide informed permission for medical decisions. This "consent by proxy" usually works reasonably well, but can lead to ethical dilemmas when the judgment of the parents or guardians and the medical professional differ with regard to what constitutes appropriate decisions "in the best interest of the child". Children who are legally emancipated, and certain situations such as decisions regarding sexually transmitted diseases or pregnancy, or for unemancipated minors who are deemed to have medical decision making capacity, may be able to provide consent without the need for parental permission depending on the laws of the jurisdiction the child lives in. The American Academy of Pediatrics encourages medical professionals also to seek the assent of older children and adolescents by providing age appropriate information to these children to help empower them in the decision making process.

Research on children has benefited society in many ways. The only effective way to establish normal patterns of growth and metabolism is to do research on infants and young children. When addressing the issue of informed consent with children, the primary response is parental consent. This is valid, although only legal guardians are able to consent for a child, not adult siblings. Additionally, parents may not order the termination of a treatment that is required to keep a child alive, even if they feel it is in the best interest. Guardians are typically involved in the consent of children, however a number of doctrines have developed that allow children to receive health treatments without parental consent. For example, emancipated minors may consent to medical treatment, and minors can also consent in an emergency.

Consent to research

Informed consent is part of the ethical clinical research as well, in which a human subject voluntarily confirms his or her willingness to participate in a particular clinical trial, after having been informed of all aspects of the trial that are relevant to the subject's decision to participate. Informed consent is documented by means of a written, signed, and dated informed consent form. In medical research, the Nuremberg Code set a base international standard in 1947, which continued to develop, for example in response to the ethical violation in the Holocaust. Nowadays, medical research is overseen by an ethics committee that also oversees the informed consent process.

As the medical guidelines established in the Nuremberg Code were imported into the ethical guidelines for the social sciences, informed consent became a common part of the research procedure. However, while informed consent is the default in medical settings, it is not always required in the social science. Here, research often involves low or no risk for participants, unlike in many medical experiments. Second, the mere knowledge that they participate in a study can cause people to alter their behavior, as in the Hawthorne Effect: "In the typical lab experiment, subjects enter an environment in which they are keenly aware that their behavior is being monitored, recorded, and subsequently scrutinized." In such cases, seeking informed consent directly interferes with the ability to conduct the research, because the very act of revealing that a study is being conducted is likely to alter the behavior studied. List exemplifies the potential dilemma that can result: "if one were interested in exploring whether, and to what extent, race or gender influences the prices that buyers pay for used cars, it would be difficult to measure accurately the degree of discrimination among used car dealers who know that they are taking part in an experiment." In cases where such interference is likely, and after careful consideration, a researcher may forgo the informed consent process. This is commonly done after weighting the risk to study participants versus the benefit to society and whether participants are present in the study out of their own wish and treated fairly. Researchers often consult with an ethics committee or institutional review board to render a decision.

The birth of new online media, such as social media, has complicated the idea of informed consent. In an online environment people pay little attention to Terms of Use agreements and can subject themselves to research without thorough knowledge. This issue came to the public light following a study conducted by Facebook Inc. in 2014, and published by that company and Cornell University. Facebook conducted a study where they altered the Facebook News Feeds of roughly 700,000 users to reduce either the amount of positive or negative posts they saw for a week. The study then analyzed if the users status updates changed during the different conditions. The study was published in the Proceedings of the National Academy of Sciences.

The lack of informed consent led to outrage among many researchers and users. Many believed that by potentially altering the mood of users by altering what posts they see, Facebook put at-risk individuals at higher dangers for depression and suicide. However, supports of Facebook claim that Facebook details that they have the right to use information for research in their terms of use. Others say the experiment is just a part of Facebook's current work, which alters News Feeds algorithms continually to keep people interested and coming back to the site. Others pointed out that this specific study is not along but that news organizations constantly try out different headlines using algorithms to elicit emotions and garner clicks or Facebook shares. They say this Facebook study is no different from things people already accept. Still, others say that Facebook broke the law when conducting the experiment on user that didn't give informed consent.

The Facebook study controversy raises numerous questions about informed consent and the differences in the ethical review process between publicly and privately funded research. Some say Facebook was within its limits and others see the need for more informed consent and/or the establishment of in-house private review boards.

Conflicts of interest

Other, long-standing controversies underscore the role for conflicts of interest among medical school faculty and researchers. For example, coverage of University of California (UC) medical school faculty members has included news of ongoing corporate payments to researchers and practitioners from companies that market and produce the very devices and treatments they recommend to patients. Robert Pedowitz, the former chairman of UCLA's orthopedic surgery department, reported concern that his colleague's financial conflicts of interest could negatively affect patient care or research into new treatments. In a subsequent lawsuit about whistleblower retaliation, the university provided a $10 million settlement to Pedowitz while acknowledging no wrongdoing. Consumer Watchdog, an oversight group, observed that University of California policies were "either inadequate or unenforced...Patients in UC hospitals deserve the most reliable surgical devices and medication…and they shouldn't be treated as subjects in expensive experiments." Other UC incidents include taking the eggs of women for implantation into other women without consent and injecting live bacteria into human brains, resulting in potentially premature deaths.

Butane

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