Medical Experimentation on Prisoners

MEDICAL EXPERIMENTATION ON PRISONERS CARL COHEN* Prologue Ought we to permit medical experimentation on prisoners? The issue is both practically important and morally complex. Some argue as follows : No human subject may be used in a medical experiment without his informed and freely given consent. But prisoners, by virtue of their total custody, cannot give free and uncoerced consent. Hence prisoners—no matter how valuable experimentation with their cooperation may prove—must be excluded from all populations of subjects in medical experimentation. This argument, when expanded and reinforced, is very persuasive, as I shall show. I aim also to show that its key premise is simply mistaken, and the argument unsound. Government agencies (HEW, NIH, the National Commission for the Protection of Human Subjects) and human subject review committees all provide assorted rules and guidelines for prison experimentation. It is not my aim to report these. My question is this: Should we adopt the rule, now proposed by some, excluding all or almost all experimentation involving prison volunteers?1 ?Department of Philosophy, Residential College, University of Michigan, Ann Arbor , Michigan 48109. 'The report and recommendations of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (Research Involving Prisoners [Washington, D.C, 1976]) is an important example. The commission recommends that "research involving prisoners should not be conducted or supported" unless a lengthy set of detailed conditions in the prison are fully realized. Voluntariness of consent is held to presuppose grievance procedures with elected prisoner representatives and prison advocates , and living conditions which, in turn, are specified to include such items as singleoccupancy cells for all who desire them; arrangements for frequent, private visits; high standards for education, vocational training, health care, and recreation facilities; and so on. Since virtually no prisons are able to meet or approach the standards imposed, the recommendation (if adopted) would have the effect of forbidding almost all experimentation in prisons. It would appear that the commission seeks to use permission to experiment in prisons as a social lever for what it views as needed prison reforms. Leaving aside the question of the necessity of the reforms demanded, it is unfortunate that the serious question ofwhether the consent ofprisoners can be truly voluntary is there dealt with as an instrument to influence policy in other spheres rather than on its own merits.© 1978 by The University of Chicago. 0031-5982/78/2103-0061$01.00 Perspectives in Biology and Medicine ¦ Spring 1978 | 357 Some clarifications first. The principle that informed consent must be got from every human subject in a medical experiment is well established. It was eloquently formulated in the Nuremberg Code, and by the World Health Organization in the Declaration of Helsinki. It grounds a set of detailed regulations governing the operation of all institutions for medical research in this country funded in whole or in part by any federal agency. It is the focus of concern for untold numbers of committees, medical practitioners and researchers, lawyers, and laymen who deal, day-to-day, with a heavy, valuable, and sometimes threatening stream of research protocols. But "informed consent" involves more than information. Better thought of as "full consent" what is demanded in fact entails three elements; information, competency, and voluntariness. Where the consent received is defective in any one of these respects, we will rightly think the subject to have been improperly used. Problematic defects of information arise when experiments are proposed in which the subjects cannot be told the truth, or the whole truth, about the investigation of which they are part—because their knowing what the investigator is after will have the effect of his not getting it. Deception is not uncommon in behavioral research, but I bypass the problem here. Problematic defects of competency arise when experiments call for subjects who are not (in fact or in law) competent to give their consent—infant children, the mentally disabled, the comatose, and so on. Some experiments with persons in these categories is essential, obviously, if care for them is to be improved; hence principles must be devised for determining who may give third-party consent ("proxy consent ") for the incompetent, and under what restrictions it may be...