Bodily Integrity and Intervention Without Consent

Article 7 deals with those who cannot consent. Authorisation must be obtained in accordance with the best interest of the person and with domestic law, and the person must still be involved in the decision to the greatest extent possible. Research on such a person should only be carried out for their direct health benefit, and research without potential direct health benefit only by way of exception, with the utmost restraint, at minimal risk and burden, and subject to conditions prescribed by law. Refusal by such a person to take part is to be respected, which is a striking rule: a person who cannot give a valid consent can still give an effective refusal.

The right in the instruments

ICCPR article 7 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and adds a sentence written for exactly this subject: in particular, no one shall be subjected without his free consent to medical or scientific experimentation.

That second sentence is unusual. Most treaty articles state a right in general terms and leave the applications to interpretation. Here the drafters put a specific scientific practice into the text of a prohibition on torture, which tells you how the practice was regarded in 1966 and how closely this subject sits to the core of the human rights framework.

The 1975 Declaration, paragraph 6, requires States to protect people from misuse of scientific and technological developments, particularly with regard to respect for privacy and the protection of the human personality and its physical and intellectual integrity. The phrase covers both halves of this chapter: the body, and the mind.

Constitution of India, article 21, protects life and personal liberty, and has been construed to include bodily integrity. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. The two operate together in the leading Indian case.

The Indian case

Selvi v. State of Karnataka, AIR 2010 SC 1974, (2010) 7 SCC 263, decided on 5 May 2010.

Facts. A group of criminal appeals raised the legality of administering three scientific investigative techniques to a person who had not consented: narcoanalysis, in which a drug is used to reduce a subject's inhibition against speaking; the polygraph examination, which measures physiological responses while a subject answers questions; and the Brain Electrical Activation Profile test, which measures electrical activity in the brain on exposure to stimuli associated with a crime. Accused persons, suspects and witnesses had been subjected to them without consent. The State defended the practice on the footing that the techniques assist where evidence is hard to gather by ordinary means, cause no bodily harm, would be used to guide the investigation rather than be led in evidence, and are a gentler alternative to the third degree, meaning the physical ill treatment of suspects in custody.

Held, on article 20(3). Compulsory administration violates the right against self-incrimination, whose protective scope extends to the investigative stage and, read with section 161(2) of the Code of Criminal Procedure 1973, protects accused persons, suspects and witnesses alike. Article 20(3) protects the choice between speaking and remaining silent whether the resulting testimony is inculpatory or exculpatory, and the results of each technique bear a testimonial character and cannot be categorised as material evidence.

Held, on article 21 and beyond. Forcing a person to undergo any of them also violates the substantive due process required for restraining personal liberty, and does so whether the technique is administered during an investigation or for any other purpose, since the results could expose a person to adverse consequences of a non-penal nature. The techniques cannot be read into the Explanation to sections 53, 53-A and 54 of the Code by an expansive interpretation. Compulsory administration is an unjustified intrusion into the mental privacy of the individual, would amount to cruel, inhuman or degrading treatment in the language of evolving international human rights norms, and conflicts with the right to a fair trial. Invocations of a compelling public interest cannot justify diluting such rights.

The order. No individual should be forcibly subjected to any of the techniques, whether in a criminal investigation or otherwise. Room is left for voluntary administration with safeguards, but even where the subject has consented the results by themselves are not admissible, because the subject does not exercise conscious control over the responses.

Why it matters here. Every argument the State made is the argument that technological capability generates, and the Court rejected each of them. The technique is useful: not an answer. It causes no bodily harm: not an answer, because the integrity protected includes the mind. It is gentler than the alternative: not an answer, because the alternative is itself unlawful. And the utility of a technique to the State does not answer the person's refusal. That proposition is the foundation of every later argument in this paper about compelled testing and compelled disclosure.

The structure of the right

An answer is much stronger if it separates four questions that are commonly run together.

1. Is there an interference with the body or the mind at all? A blood sample is obvious. An image taken through clothing, a reading of brain activity and an analysis of a discarded sample are less obvious and are still interferences. Selvi settles that the mind counts.
2. Was there consent, and was it valid? Prior, free, informed and, for research, express, on adequate information in a comprehensible form: UNESCO 2005, article 6. Consent given by a person in custody to a technique proposed by their custodian raises an obvious question about whether it was free.
3. If there was no consent, is there a law that authorises the interference? Legality, in the sense used in [Privacy and Surveillance]. Selvi holds that the Code's provisions on medical examination cannot be stretched to cover these techniques, which is a holding about the limits of interpretation as much as about the techniques.
4. If there is a law, is the interference proportionate? And for a category of interference the framework regards as absolute, such as experimentation without free consent under article 7, the question does not arise at all, because no justification is available.

Point four contains the distinction that separates a good answer from an average one. Some interferences are subject to justification and some are prohibited outright. Compulsory medical treatment may in principle be justified in a public health emergency. Scientific experimentation without free consent may not be justified at all, because article 7 admits of no limitation.

Worked example

A State proposes a statute requiring every person arrested for a scheduled offence to provide a DNA sample, to be retained on a permanent database irrespective of the outcome of the case, and permitting familial searching, that is, searching for partial matches in order to identify relatives of the person sampled.

Interference. Yes, twice. Taking the sample interferes with bodily integrity. Retaining and searching the profile interferes with informational privacy, and familial searching interferes with the privacy of people who were never arrested and never consented.

Consent. Absent, and the setting makes it unobtainable in any meaningful sense.

Legality. A statute is proposed, so this limb can be satisfied if the statute is precise about who may be sampled, what may be retained, for how long, who may search and on what grounds, and what remedy a person has.

Proportionality. The failures are at necessity and balance. Retention irrespective of outcome means the profile of an acquitted person is kept, which is not necessary for the aim of solving crimes committed by convicted persons. Familial searching extends the burden to persons against whom nothing whatever is alleged, purely because of a biological relationship, and no consent from them is even contemplated.

Which prohibition applies. This is a justifiable interference, so it is assessed rather than forbidden. It is not experimentation, so article 7's absolute rule is not engaged. The correct answer is that the scheme is capable of being lawful in a narrower form: sampling on charge for serious offences, destruction on acquittal, judicial authorisation for familial searching, and an accessible route to correction. The forensic setting is developed in [Forensic Science and the Rights of the Accused].

What it does NOT mean

It does not mean nothing may ever be done without consent. Emergency treatment of an unconscious patient, compulsory vaccination in a properly framed public health scheme and the taking of a sample under a valid statute may all be lawful. The right requires authority and proportion; it does not require permission in every case.

It is not limited to the body. Selvi is the authority: mental privacy is within the protection, and a technique that touches nobody may still be an intrusion.

Consent is not a signature. A form signed by a person who did not understand it, or who could not realistically refuse, fails the Nuremberg conditions of information and freedom. This returns in Module II with Samira Kohli.

Absence of harm is not consent. The State in Selvi argued that the techniques caused no bodily harm, and the Court did not treat that as relevant to the question whether they could be imposed.

Distinctions

Quick revision

• The principle: that a technique works is not a reason for using it on a person. Authority plus consent, or authority plus proportionality.
• Nuremberg Code, point 1: the voluntary consent of the human subject is absolutely essential, and it stands first of the ten. Point 9: the subject is at liberty to end the experiment.
• UNESCO Bioethics 2005, article 6 defines the consent: prior, free and informed, on adequate information, express where appropriate, withdrawable at any time and for any reason without disadvantage or prejudice; for research, also express, with information in a comprehensible form including how to withdraw. Article 6(3): a community agreement or a leader's consent never substitutes for the individual's. Article 7: for a person without capacity, direct health benefit, minimal risk by exception, and refusal is respected.
• ICCPR article 7: no torture or cruel, inhuman or degrading treatment; and in particular no one shall be subjected without his free consent to medical or scientific experimentation. No limitation clause.
• 1975 Declaration, paragraph 6: protection of the human personality and its physical and intellectual integrity.
• Selvi (2010): compulsory narcoanalysis, polygraph and BEAP violate article 20(3), which reaches the investigative stage and covers accused, suspects and witnesses; violate substantive due process under article 21; are an unjustified intrusion into mental privacy; would amount to cruel, inhuman or degrading treatment; and a compelling public interest cannot justify dilution. Voluntary administration is possible with safeguards, but the results alone are still inadmissible.
• Separate the justifiable interference from the absolutely prohibited one. That distinction carries marks.

Test yourself

1. State the first point of the Nuremberg Code, and say where the content of the consent it requires is to be found. It states that the voluntary consent of the human subject is absolutely essential. It is stated as an absolute rather than as a factor to be weighed against the value of the research, and it stands first of the ten points, before those dealing with the design of the experiment, the avoidance of suffering and the qualifications of the investigator. The Code does not itself define the consent. Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights 2005 supplies it: consent must be prior, free and informed and based on adequate information, express where appropriate, and withdrawable at any time and for any reason without disadvantage or prejudice; for scientific research it must also be express, and the information must be adequate, in a comprehensible form, and must include how consent may be withdrawn.

2. Why is the second sentence of ICCPR article 7 unusual, and what follows from where it is placed? It is unusual because it names a specific scientific practice, medical or scientific experimentation without free consent, inside a general prohibition on torture and cruel, inhuman or degrading treatment, where treaty articles ordinarily state a principle and leave applications to interpretation. What follows from its placement is that the prohibition is absolute: article 7 contains no limitation clause and is non-derogable, so experimentation without free consent cannot be justified by any aim however compelling, whereas most interferences with bodily integrity fall to be assessed under a proportionality test.

3. Summarise the reasoning in Selvi and identify which of the State's arguments the Court rejected. The Court held that compulsory administration of narcoanalysis, polygraph testing and the BEAP test violates article 20(3), whose protection extends to the investigative stage and covers accused persons, suspects and witnesses alike, the results being testimonial rather than material evidence; that it violates the substantive due process required before personal liberty is restrained, whether administered in an investigation or otherwise, because the results may expose a person to non-penal adverse consequences; that it is an unjustified intrusion into mental privacy and would amount to cruel, inhuman or degrading treatment in the language of evolving international human rights norms; and that it conflicts with the right to a fair trial. It rejected the arguments that the techniques are useful where ordinary evidence is scarce, that they cause no bodily harm, that they would merely guide the investigation, and that they are a gentler alternative to the third degree, holding that invocations of a compelling public interest cannot justify diluting such rights.

4. A hospital wishes to enrol unconscious accident victims in a trial of a new resuscitation technique, on the ground that consent is impossible and the technique may save lives. Analyse. The proposal is experimentation, so the governing provision is the second sentence of article 7 and the first point of the Nuremberg Code, both of which treat free consent as essential rather than as a factor. The impossibility of obtaining consent is a reason why the research is difficult, not a reason why the requirement does not apply, and the potential benefit does not supply a justification because the prohibition admits of none. The analysis is different from that of emergency treatment, where a doctor may act without consent in the patient's interests, because treatment is directed to the benefit of that patient whereas research is directed to the production of generalisable knowledge. The route, if there is one, lies in the research ethics framework taken up in Module III, through mechanisms such as consent by a legally authorised representative and independent ethical review, and not in dispensing with the principle.

5. Distinguish an interference with bodily integrity that is subject to justification from one that is prohibited outright, and give an example of each. An interference subject to justification is assessed against the three-part test: it must be authorised by an accessible and foreseeable law, pursue a legitimate aim, and be proportionate, meaning rationally connected, no more restrictive than necessary, and productive of a benefit outweighing its burden. Taking a DNA sample from a person charged with a serious offence under a precise statute is an example. An interference prohibited outright is one for which no justification is available, because the governing provision contains no limitation clause: medical or scientific experimentation without free consent under the second sentence of ICCPR article 7 is the example, and torture is the other. The practical importance of the distinction is that in the first category a compelling public interest is weighed, and in the second it is irrelevant.