Ethics, the National Bioethics Advisory Commission's Report on Research Involving the Mentally Disordered, and Therapeutic Jurisprudence
DePaul Journal of Health Care Law, Vol. 3
Posted: 10 May 2000
Over the past several decades much has been written about protecting human participants in biomedical research. This has been especially true of those who suffer from a mental disorder or other debilitating condition which may compromise their ability to give "informed consent" to participate. There have been several presidential commissions appointed to study these questions, the most recent of which is the National Bioethics Advisory Commission, created by President Clinton in October, 1995. In December, 1998, the Commission released its Report and Recommendations relating to "Research Involving Persons with Mental Disorders that May Affect Decisionmaking Capacity." It seems that many authors, including the Commission, try to outdo each other with recommendations for governmental action which increasingly make clinical research more difficult to conduct.
The thesis of this article is that this effort is misguided, both because the most stringent regulation does not ensure compliance by the researcher and because many such regulations are, in fact, anti-therapeutic. The author applies the relatively new field of Therapeutic Jurisprudence, i.e., the study of law as a therapeutic agent, to two of the Commission's recommendations and determines that those recommendations are anti-therapeutic and, as such, should not be adopted. The author further recommends that all proposals which have an impact on biomedical research using human participants be subjected to a therapeutic jurisprudence evaluation before recommendations of additional governmental paternalism in this field be proposed.
JEL Classification: K10, K20, K30
Suggested Citation: Suggested Citation