Episode 36 9 September 2021
What is the Nuremberg Code?
Principal lawyer, Geraldine Grace | Host, New Earth lawyer podcast
In this episode, I explain what the Nuremberg Code is, its status as an important foundational code of ethics (it is not a law), its application to medical research and experimentation on human beings; and its current relevance. I also explain the status of the fundamental human right to consent to receive medical treatment, as it applies in Australia.
I am an experienced corporate lawyer, using the law to build purposeful, human-centred, Earth-friendly legal enterprises & ecosystems, for happier humans and a better planet.
I am also the founder and host of the New Earth lawyer podcast.
I am based in Melbourne, Australia, and an expert in enterprise governance, purpose, business & human rights and modern slavery. I established my own law practice Geraldine Grace in 2020, focussing on enterprises seeking purpose, and actors in the impact economy.
I am a legal advisor to not-for-profits with a national reach in impact and purpose. I work with Boards to optimise performance and help enterprises embed purpose and integrate human rights into their business.
I have over 20 years' experience practising law in Australia, the UK, Hong Kong and mainland China. I have worked for large global and Australian law firms and was a partner of a top-tier Australian law firm for several years.
I sit on the peak governing body of Australia's largest university.
[1:28] I explain that the Doctors' Trial was one of the Nuremberg Trials that occurred after World War II and was heard before United States Military Tribunal.
[3:42] The Doctors' Trial resulted in the creation of the Nuremberg Code, which is a set of 10 ethical principles that concern human experimentation, so that nobody else would suffer what prisoners of war and civilians did at the hands of Nazi doctors.
[5:40] The Nuremberg Code is a vital human rights document but it is not a law and has not be adopted as a law in any country, in its entirety.
[6:27] The Nuremberg Code sets out ethics for medical experimentation on human beings, and not medical treatment in general.
[7:25] The Nuremberg Code is a historical document. Most ethics committees, doctors and scientists today refer to the Helsinki Declaration, which is updated and reviewed regularly, or in the US, the Common Rule.
[8:34] The principle of voluntary and informed consent which is a key contribution of the Nuremberg Code is a fundamental human right that applies to any form of medical treatment.
[9:20] Full and informed consent is recognised as a human right in Australian human rights legislation in Queensland, Victoria and the Australian Capital Territory. These provisions are based on Art. 7 of the International Covenant on Civil and Political Rights.
[11:01] The High Court of Australia has recognised the principle of informed consent to medical treatment in the case of Rogers v Whitaker which imposed a duty on doctors to procure such consent from patients.
The Nuremberg Code, from the British Medical Journal
The Helsinki Declaration, developed by the World Medical Association
The Common Rule, from the US Department of Health and Human Services
The Belmont Report, from the US Department of Health and Human Services
Queensland's Human Rights Act 2019
Australian Capital Territory's Human Rights Act 2004
Rogers v Whitaker 1992 [HCA] 58, the High Court of Australia decision regarding informed consent.
Hi, everyone, welcome to the New Earth lawyer podcast. My name is Geraldine Johns-Putra. I'm your host. I'm a lawyer based in Melbourne, Australia. I am speaking to you today on Boonwurrung country and so I would like to pay my respects to their elders past, present, and emerging.
A few episodes ago, I spoke to you about the Nuremberg Trials, that was Episode 28. Today, I'm going to talk to you about something that came out of the Nuremberg Trials. That's the Nuremberg Code. Now, the Nuremberg Trials, as I explained in Episode 28, have had lasting implications on a body of law that's known as international criminal law. The Nuremberg Code is something that, as I said, came out of the Nuremberg Trials, and it's something I want to talk to you about, because I'm hearing a lot of people talk about the Nuremberg Code. And I would like to explain what it is to you so that when you hear someone talk about the Nuremberg Code, you understand clearly what it means and you can understand what they're trying to say and you can make up your mind as to whether what they're saying is correct or not.
So the Nuremberg Trials, like I said, in Episode 28, there were actually 13 of them. And the first one was held before an International Military Tribunal, made up of the four victorious allies, the US, the UK, the USSR or the Soviet Union, and France. And that was for the Nazi leadership, they were the defendants most people in senior roles in the Nazi Party and the government. Following that first trial, there were 12 other trials. And those 12 other trials were not held before an International Military Tribunal, they were held before a US Military Tribunal. And the first one of those was the Doctors Trial. And the Doctors Trial was held from December 1946 to August 1947 and there were 23 defendants, and most of the defendants, 20 of the defendants were medical doctors, and they were charged with having conducted mass murder and human experimentation. The charges, the specific charges were: war crimes, the performing of inhumane and barbaric medical experiments, without the consent of the subjects mainly on prisoners of war and on civilian populations during wartime, things like gassing and lethal injections, and other experiments and things that went on in camps and in nursing homes and hospitals and asylums. The second charge was crimes against humanity and crimes against humanity includes what today we call genocide. Conspiracy to commit war crimes and crimes against humanity, that was the third charge. And the fourth and final charge was membership of a criminal organisation, the SS. I talked more about war crimes and crimes against humanity in Episode 28, what they mean.
Of the 23 defendants, seven were acquitted, and seven were sentenced to death. And then the rest were given prison sentences of between 10 years to life. Now the verdict also resulted in the creation of what is known as the Nuremberg Code, which is a set of 10 ethical principles that concern human experimentation. The whole idea of the Nuremberg Code was to protect humans from going through what the prisoners of war and the civilian populations endured at the hands of these Nazi doctors. The 10 elements of the code are, number 1, voluntary consent is essential. Number 2, the results of any experiment must be for the greater good of society. Number 3, human experiments must be based on previous animal experiments, so animal trials should be conducted before human trials. Fourthly, experiments should be conducted by avoiding physical and mental suffering and injury. Number 5, no experiments should be conducted if it's believed to cause death of disability. Number 6, the risks should never exceed the benefits. Number 7, adequate facilities should be used to protect subjects. Number 8, experiments should be conducted only by qualified scientists. Number 9, subjects should be able to end their participation at any time, so human subjects must have power to do that. And number 10, the scientist in charge must be prepared to terminate the experiment should injury, disability or death become likely to occur. So those are the principles around which medical experiments and clinical trials should be conducted.
So I want to say a few things about the Nuremberg Code. Firstly, the Nuremberg Code is not a law, it hasn't been adopted as a law in any country. It's a vital document. It has formed the basis of many declarations and guides and codes about medical ethics, in the name of experimentation and research. If someone says that something, such and such a thing is against the Nuremberg Code or breaches the Nuremberg Code, then that thing isn't necessarily unlawful, right? What the person is saying is that the thing is unethical. A breach of the Nuremberg Code can mean that the law has been broken, but doesn't always mean that.
The second thing I want to say about the Nuremberg Code is that it applies to medical research and experimentation, not to all medical treatment in general. Okay, there's no doubt it's a critical document, because it places voluntary informed consent at the heart of the discussion about medical ethics, it was the first document to do that. But its focus is on medical experimentation. So if someone says that something is in breach of the Nuremberg Code, then they should be talking about medical experimentation, not medical treatment in general. Right. So if someone were to claim that provision of a certain medical treatment is against the Nuremberg Code, then they should be prepared to explain why they think that medical treatment is experimental. Otherwise, the Nuremberg Code doesn't specifically apply because it only applies to medical experiments.
The third thing I want to say is that most doctors and medical committees today don't refer to the Nuremberg Code when setting up clinical trials or medical experiments, they may refer to the Helsinki Declaration, which is built on the foundation of the Nuremberg Code. And the Helsinki Declaration is regularly reviewed, and it's regularly updated. Or in the US, they may refer to the Common Rule, which is codified in the US federal law.
There's also the Belmont Report, and I'm just going to mention that because that also was issued in the face of a really unethical medical experiment, which was the Tuskegee syphilis study, which was a 40 year study conducted on African Americans. And it was unethical because it was designed to study the effects of untreated syphilis. But really, during the course of this 40 year study, syphilis became treatable. And the subjects weren't told that and they were allowed to suffer from this disease.
Some but not all of the principles in the Nuremberg Code do apply to medical treatments in general, and not just medical experiments. And the most important of these is this whole idea of free and informed consent, free meaningfully voluntary, no coercion involved in it. And that's the key contribution of the Nuremberg Code, which is this recognition that the patient has rights and the patient knows what's best for himself or herself. So free and informed consent to receive any form of health care. That's a fundamental human right. That stands separate from the Nuremberg Code as a principle.
And it's recognised as such. It's recognised as a basic fundamental human right under statute in Australia, and it's recognised as a fundamental human rights under international convention and it's recognised as a fundamental human right, in common law in Australia. So this right, free and informed consent to medical treatment, it's stated as a human right in the Human Rights Acts of Queensland, Victoria (the Charter of Human Rights and Responsibilities) and in the Australian Capital Territory. Now, those statutes don't act as guarantees that everyone is going to have that human right. What those statutes do is they require the Parliaments of those states and territories to ensure that legislation that's passed takes into account human rights, including the right to free and informed consent to medical treatment.
Those rights within those statutes are based on Article 7 of the International Covenant on Civil and Political Rights. That forms part of the Bill, the International Bill of Human Rights. And it's a treaty that was ratified by Australia in 1980. It's without question a fundamental human right, that every person has the right to free and informed consent to receive medical treatment.
And that right to informed consent is also as I said, in the common law in Australia in a famous High Court case, handed down in 1992, called Rogers v Whitaker, which every Australian doctor should know, which says that every Australian doctor, every doctor, has a duty to ensure that the patient to whom they are offering health care gives their informed consent. Therefore, if your position is that a human being, every human being has the right to consent to a certain medical treatment, and that's a critical, fundamental vital human right, then I suggest that you do not need to refer to the Nuremberg Code. The Nuremberg Code, as I said, is a historical document, important as it was, that applies to medical experimentation.
Like many human rights in Australia, I'm just going to say one thing about the right to give your consent to receive medical treatment. That's not enshrined in our Constitution. So there's no guarantee of that right. There's no basic guarantee that that right can't be overridden by a valid Act of Parliament. So that's important for everyone to understand. So that's what I want to say about Nuremberg Code and the fundamental right to free and informed consent to receive medical treatment. Thank you.