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Published online by Cambridge University Press: 12 February 2016
I am deeply appreciative of the honour you have done me in inviting me to deliver this lecture. It is an especial privilege to speak under the auspices of Dean Reuven Yaron, to whom I am tied by a friendship of many years and from whom, like many of you, I have learned a great deal. I am very grateful for his generous introduction: you will know him well enough to make the necessary allowances.
The subject of this evening is so wide that only a few selected items can be discussed; and inevitably some of you who would have preferred a different choice will be disappointed. Let me say at once that I shall not go into autopsy, however burning an issue it is at the moment in this country. The reason is simple: I have already written on it and do not wish to repeat myself. I shall open by some comments on a recent debate in Britain. Then I shall come to my principal topic, experimentation. This may be of interest to you at a moment when you are, happily, about to start a School of Pharmacology which will no doubt have to think about such matters. Finally I shall explore a much neglected, almost repressed aspect of the march of medicine—if you like, a variation on the old folk theme “out of sight, out of mind”.
1 See (1969) 18 The Colorado Quarterly 136. My view is that the law of the State is there to protect the living, not the dead. In principle, therefore, corpses should be available for any purpose useful to society; and there is no reason not to put them at the disposal of the medical profession whether for therapeutic ends—say, transplantation—or for scientific ones—to study diseases, the composition of cells etc. However, three reservations must be imposed. (1) For the sake of administration of justice: a corpse may not be interfered with where it must remain intact with a view to legal investigation—for example, if a question of suicide or murder needs to be cleared up. (2) For the sake of sentiment: no interference where a spouse or, in the case of children, a parent objects. The objection is to be discounted if the deceased had definitely wished his body to be used. (3) For the sake of personal freedom: no interference where there is reason to believe that the deceased had disapproved of such use. Which would practically exclude autopsy in the case of religious Jews. This reservation no less than the other two is in the interest of the living: at the present time at least, most humans are so constituted that the prospect of what will happen when they die to their body—or, for that matter, to their brother, child, friend, house and garden—does affect them while alive. I see little merit in making a person's right cancellable—as it is under Israeli law—by the signature of three (or any number of) physicians testifying to the desirability of dissection. Admittedly, where the use of a corpse would demonstrably restore a gravely sick patient, the balance of values would be in favour of life and health. But, aside from this emergency, if the profession finds itself short of corpses, the remedy lies in persuasion, not in violence. It is relevant to note that, in general, surely, medical progress both as regards the detection of causes of death and as regards healing facilities is better served by a contribution of a million pounds sterling than by the cutting up of a corpse. So why not, in the event of a wealthy man's death, empower three doctors to sign that his money will be helpful? Once the law allows such a certificate to override a testament, it will be time to consider coercive dissection. That so many people make light of personal liberty concerning the body while it does not occur to them to contemplate similar measures concerning property is an interesting pointer to the enormous respect prevalently paid to the latter.
2 The Times, May 16, 1970, p. 1, May 18, pp. 12, 13, May 19, p. 2, May 21, pp. 1, 9, May 22, p. 2; The Guardian, May 16, p. 1, May 19, p. 7, May 20, pp. 6, 12, May 21, p. 8, May 22, p. 5; The Daily Telegraph, May 16, pp. 1, 24, May 18, pp. 1, 14, 28, May 19, pp. 1, 19, May 21, pp. 1, 36, May 22, p. 19.
3 Though “the words of a Secretary of State normally carry weight”: Mr. Crossman over the phone to Mr.Stevas, St. John, The Times, May 18, p. 12.Google Scholar
4 This follows from an application of recognized principles, the history of which, even before the latest developments, is one of constant adjustment to changing conditions. See Russell on Crime, (12th ed. by Turner, 1964) vol. 1, p. 400.; Smith, and Hogan, , Criminal Law, (2nd ed., 1969) 182Google Scholar and literature cited there.
5 Hunter v. Hanley, 1955 S.C. 200, per Lord President Clyde; see Taylor's Principles and Practice of Medical Jurisprudence, (12th ed. by Simpson, 1965) vol. 1, p. 56.
6 Carpenter v. Blake, 60 Barb. 488 (N.Y. 1871)—a summary in 50 N.Y. 696 (1872); Langford v. Koesterlitz, 107 C.A. 175, and 290, P. 80 (1930).
7 Cf. my remarks in Ciba Foundation Symposium on Ethics in Medical Progress, (1966) 196, and (1969) 18 The Colorado Quarterly, 137. The paramount requirement of consent does not eliminate the need for further safeguards. Among those suggested are compensation for harm via insurance or from public funds, prior approval by a committee representing various interests, publicity, critique on the part of peers or higher echelons; see e.g., Freund, (1965) 273 New England Journal of Medicine, 690, and (Spring, 1969) Daedalus, 316; Calabresi, (Spring, 1969) Daedalus, 387; Louisell, (1963) 16 Archives of Environmental Health, 784. Should we add critique by lower echelons? It was some juniors among the staff who protested against and brought into the open the injections with cancer cells at a New York hospital on which I shall comment presently. A recent article by Melmon, Grossman and Morris in (1970) 282 New England Journal of Medicine, 427, is of extraordinary interest (see also the editorial, p. 449). In 1966 the U.S. Department of Health, Education and Welfare required peer-group agreement to any experiment supported by the Federal Government. Accordingly a committee and sub-committees were set up at the University of California San Francisco Medical Centre, and this article reports on their structure and work. With respect to consent, one result has been insistence that the experimenter instruct the subject in the presence of a third knowledgeable party. The article illustrates a willingness to candid self-analysis typical of present-day America: the judges admitted that they were not uninfluenced by the status of an applicant. (Though in fact, the authors note, all rejected protocols came from tenured professors. I suppose, one or two more might have been refused; and the better showing of non-tenured scholars may well be due to their position rendering them more cautious.)
8 What of women? My—possibly quite mistaken—impression is that, curiously, in peacetime at least, they are less apt than men to become the victims of wrongful experimentation. A trace of chivalry? Or of primeval reverence? Or of neglect? Per haps a mixture of all three.
9 Edsall, (Spring, 1969) Daedalus 470.
10 Among the points which moved Professor Ward, leader of the experiment, to go ahead was the following (quoted by Edsall, l.c.): “Since the annual attack rates of jaundice were high—for example, 20 to 25 per 1000—and since in all probability cases of hepatitis without jaundice were occurring with a frequency equal to overt forms, it was apparent that most of the patients at Willowbrook were naturally exposed to hepatitis virus”. In an article by Lasanga in praise of the experiment ((Spring, 1969) Daedalus 458) this becomes: “In fact everyone admitted to the school appears to develop hepatitis anyway during the first six to twelve months”. I cannot help feeling that we are less prone to such cavalier misreading when more powerful sections of society are concerned.
11 See Russell, op. cit., 405; Smith and Hogan, op. cit., 217.
12 Subjectively, of course, for him, the hazard was small since he was persuaded no harm could come from the bacilli.
13 Fortunately for him, unfortunately for medicine: it became the harder to establish the bacterial spread of typhoid. See Castiglioni, , A History of Medicine, trans, by Krumbhaar, , (2nd ed., 1947) 687.Google Scholar
14 Assumed—correctly, I trust—not to induce cancer.
15 Recognized in the decision of this case by the Regents of the University of the State of New York (see (1966) 151 Science, new ser., 665): “They (the respondents) overlooked the key fact that so far as this particular experiment was concerned, there was not the usual doctor-patient relationship”.
16 Something wrong with the grammar, probably owing to the translation into English.
17 I wonder what the German word may be; something denoting helplessness, compulsion, lack of any other way out.
18 Trials of the War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, October 1946-April 1949, The Medical Case, vol. 2, p. 161. Professor Brandt—sentenced to hanging—expressed himself memorably on informed consent of prisoners: “Even though the regulations about the treatment of prisoners may be fixed, in practice there remains in this particular world a very wide scope for the punishment of prisoners with measures which, as experience shows, may hit the prisoner much more severely and more grievously than the sentence of the judge himself…As a matter of fact a person to be experimented on can hardly estimate the risk, and the recruiting officer will not be inclined to give a frightful description of what may happen.” Trials, vol. 1, p. 984.
19 See Freund (1965) 273 New England Journal of Medicine, 691. The problem came up both in the Medical Case (Trials, vol. 2, p. 44.) and in the trial of Field-Marshal Milch (Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission, vol. 7, 1948, case 39, pp. 33, 36, 45, 48.). Judge Musmann's views expressed in the course of the latter are difficult to interpret.
20 Gaius' Institutes 1.53, Justinian's Institutes 1.8.2. See Mommsen, , Römisches Strafrecht, (1899) 121, 616.Google Scholar
21 Cicero, , De Senectute 12.42Google Scholar: cum probro privato coniungeret imperi dedecus. Cf. Livy 39. 42 ff. One sometimes hears it said by those who favour the turning of an execution into a lethal experiment that this would bestow dignity and meaning on the criminal's exit. This is the sort of argument which the kids of today understandably find revolting.
22 I can smell a German von vornherein in the background.
23 Translation English. What is meant, I trust, is experimenting physicians.
24 Trials, vol. 2, p. 182.
25 See e.g., the chapter “Medical Experiments in Other Countries” (other countries meaning other than Germany), Trials, vol. 2, p. 90.
26 I would like to thank Dr. Ernst Nebenzahl for his courtesy.
27 I had in my query asked about this.
28 This, in my opinion, is nowadays a minor undertaking which it would be foolish not to admit.
29 Still, English doctors do appreciate the precariousness of the consent of a man under restraint. Below I shall mention hypothalamotomy performed on paederasts at their request. The surgeon reporting on this (leading article in (1969) 5 British Medical Journal 250) cautions: “It would also be preferable at this stage for the operation to be confined to individuals whose motivation is uninfluenced by legal or other forms of duress”.
30 (1967) 67 Suppl. 7 (appended to the September issue) Annals of Internal Medicine 35. In the Los Angeles Times, January 20, 1966 (section Southland), a report dated from Sacramento states: “A physician has been turned down in his attempt to get permission for a prison convict to donate a kidney to save a dying Fresno mother. Richard McGee, youth and adult corrections agency administrator, said Tuesday in a letter to Dr. Hugh Haas of Fresno that the state was charged with inmates' health and welfare and could not legally risk the delicate operation. McGee, in reply to Haas' request to Gov. Brown, said all similar requests were turned down by the state in the past”.
31 As this lecture goes to the press, the same number of the San Francisco Sunday Examiner and Chronicle (October 4, 1970) contains two flagrant examples of disregard of children's feelings and interests, both quoted without any apparent resentment. Dr. James reports as follows (p. 6): “In a series of experiments Canadian psychologists compared different types of “aggresive models” for their subsequent effects on young children's behaviour. Three different types of models were used. In one case, the children watched adults showing physical and verbal aggression towards a large inflated doll. A second group watched a filmed version…And a third group watched a “cartoon” film in which a woman, dressed up as a cartoon cat, beat up the inflated doll as in the other two conditions. In each case there was a control group…The results left little doubt that watching acts of aggression increases the child's own aggressive behaviour”. And here is an extract from an article by Mr. Harris (section B, p. 3): “Some years ago, at John Hopkins, Dr. John B. Watson put two groups of infants—all 18 months old—into two separate rooms and let snakes and rats (properly disinfected) run round the babies' legs. The infants from regular homes screamed with fright; but the other group, which consisted of babies raised in the hospital and protected from fears that are planted by parents, watched delightedly”.
32 See Westin, (1967) Privacy and Freedom 118.
33 See Freund (1965) 273 New England Journal of Medicine 689.
34 On experimentation in sociology, see Angeli, , The Uses of Sociology, ed. by Lazarsfeld, , Sewell, and Wilensky, (1967) 725.Google Scholar
35 See e.g., Page, (1969) 207 Journal of the American Medical Association 112, as to the decorous and good reporting about the liver as opposed to the heart.
30 The San Francisco Chronicle, June 22, 1969, p. 7, reports as extraordinary an offer of a cornea advertised in Baltimore News American by one Don Merton. The 55-year-old disabled veteran wants money to pay for surgery to his wife's hip: “I don't need to see out of both eyes any more, but she needs to walk”. In my estimate it is out of the question that this sale will materialize.
37 Medical Ethics, (6th ed., 1967) 289.
38 They were plentiful in the Middle Ages but some survive in odd corners. That most stimulating of living columnists, McCabe, in the San Francisco Chronicle of October 11, 1967, p. 26 (see also his column of March 15, 1968, p. 26), quotes sec. 23 of the Municipal Police code: “Unsightly persons, Appearance on Streets, Prohibited. It shall be unlawful for any person who is so diseased, maimed, mutilated or deformed as to be an unsightly or improper person, to be allowed in or on public streets, highways, thoroughfares or public places, to expose himself or herself, or his or her injury or deformity to public view”. No one seems to have studied the extra-legal, devious means by which modern society keeps these unfortunates at arm's length; the results would not be nice.
39 According to psychoanalysis, indeed, sometimes we are bothered by misfortune not caused by us because subconsciously we do regard ourselves as the cause.
40 Time Magazine, June 1, 1970, pp. 32 f., discusses The Unheavenly City by Barfield, a defence of modern American urban development. The reviewer quotes this passage: “So far as their humanity is concerned, the people of, say, Jersey City compare very favourably to the Florentines of the era of that city's greatest glory”. And we see juxtaposed a fifteenth-century print of the burning of Savonarola and a photograph of high rises in Jersey City. There is a great deal in Professor Barfield's argument. But the print of the burning shows (among other things, admittedly) how deeply affected people were by that extraordinary event. We do not burn fewer, but we do not invite attention.
41 A History of English Law, (1938) vol. 12, p. 364.
42 A History of English Criminal Law and its Administration from 1750, (1948) vol .1, p. 301.
43 Principles of Penal Law (2nd ed., 1771) 62.
44 Leading article in (1969) 5 British Medical Journal 250.