Michael Alexander: 300 years of political philosophy in 10 minutes
Michael Alexander is a lawyer from Toronto, Canada, and has appeared at all levels of the court system, including the Supreme Court of Canada. He joins us to discuss informed consent.
Informed Consent–A bridge between Doctors and Lawyers
Edited segment from the weekly live General Assembly on November 1, 2021
[00:00:30] Dr. Jennifer Hibberd: I would now like to introduce Michael Alexander. He is from Canada, like myself, and he is going to talk with us about informed consent, a bridge between doctors and lawyers, Michael, you have the floor we look forward to hearing from you and you might be muted.
[00:00:48] Michael Alexander: I, am I un-muted now?
[00:00:50] Dr. Jennifer Hibberd: You are.
[00:00:51] Michael Alexander: Yeah, the the full title of my talk is informed consent. The bridge between doctors and lawyers or 300 [00:01:00] years of political philosophy in 10 minutes. Yeah. Put on your seatbelts. No, not really. But the the reason that I’m talking about informed consent today is that this might seem to be utterly uncontroversial or boring.
[00:01:12] We all believe in informed consent, but it’s actually, I think on reflection a little more problematic than it seems. And I first started thinking about this about a month ago when I was speaking to a group of about close to 200 people on Zoom, we’re representing 2000 doctors and nurses in Ontario who did not want to take the jab.
[00:01:36] And I was being interviewed for an hour, many other lawyers had been interviewed. So I was competing for the business. And close to the end of the discussion. The chair of the discussion decided to talk about God given natural rights and the right to informed consent, being one of those. And I said, you know, to make sense of that claim, you have to think of it as independent of government [00:02:00] and independent of space and time. And all of a sudden I saw all the people on the Zoom screen squinting and it’s kinda like, oh, what’s he saying. And I thought well you’ve just lost 2000 clients, way to go Skippy.
[00:02:15] But then something really remarkable happened. I saw light bulbs popping up over people’s heads and they wanted to discuss that idea; how could a right exist, independent of government? How could it be God given? And the one hour interview turned into a three hour interview and I got the file. And I told the legal committee about this experience and Charles Kovess said, um, pattern interrupt.
[00:02:43] And by that he meant somehow through the statement I had shaken people out of their habitual way of thinking and somehow engage them in a epiphany of some sort. And people suggested maybe you’d like to talk about [00:03:00] this to the Council as a whole.
[00:03:02] I think that the right to informed consent on its surface is somewhat problematic because we don’t think of it as something given to us by government. We think of it as something that government must respect and must honor. But how do you make sense of that claim?
[00:03:20] So usually when we’re trying to solve this problem, we are going to the Nuremberg code and that’s an interesting position because the Nuremberg code does not provide the support that you might think for the right to informed consent. In fact, the court makes a very explicit statement about it right at the beginning of the judgment, it says of the 10 principles, which have been enumerated.
[00:03:47] Our judicial concerns for us is with those requirements, which are purely legal in nature, or which are at least so clearly related to the matters legal that they assist us in determining [00:04:00] criminal culpability and punishment. To go beyond that would lead us into a field that would be beyond our sphere of competence.
[00:04:08] So what they’re saying right up front is somebody has given us a bunch of rules to deal with workers, and we’re going to apply them. Some people are going to go free. Some people are going to go to jail. Some people are going to be executed, but that’s our job. And we’re not going to talk about the actual foundation for crimes against humanity and natural rights.
[00:04:29] Now they do make a brief mention in passing possible ways of looking at rights from that standpoint. And of course states, manifestly, human experiments under such conditions are contrary to the principles of the law of nations as they result from the usages established among civilized peoples from the laws of humanity and from the dictates of conscience.
[00:04:57] But they don’t see anything else beyond that. [00:05:00] And the usages established among civilized people, well, usages can change. So that’s no basis for an objective understanding of rights. From the laws of humanity. I don’t know exactly what that means. And from the dictates of conscience, that gets a little closer to the idea of a permanent right.
[00:05:18] It belongs to us by nature. But again, no explication of that within the judgment itself. And so we have to look for support elsewhere. So the question becomes, how can we make sense of the idea that we have rights that are owed to us by virtue of our humanity and that enter the picture before government ever gets involved.
[00:05:44] And to do that, you actually have to go to the thinkers of the enlightenment, who- that is the 17th century- and to the claim made by them that everyone is born free. That people have freedom. [00:06:00] And that’s the first time that claim was made. And it was essentially understood for the first time as a panoply of rights.
[00:06:08] And so there, within that school of thought, there are three ways of thinking about rights. One is pure reason. That was given to us by Immanuel Kant. And that idea is that you can only discover natural rights, objective, universal principles, and something called pure reason, separated completely from historical contingent material conditions, which are always in flux. Kant by doing this was in his own way, trying to reconcile Christianity.
[00:06:39] And a modern, natural science as to whether he did that. I’m not sure, but the idea is that you can find a metaphysical support for the golden rule, which would include the common recognition of rights through pure reason. Then there’s the state of nature and that comes from Locke’s second treatise.
[00:06:59] And the idea [00:07:00] there is that you could just through, if you could, through various redactive techniques, get rid of all the conventions and institutions and false claims about justice and the good in a civil society that you could then see human beings as they are naturally shorn of all the conventions of civil society.
[00:07:19] And that gives rise to a claim about natural rights. And then reason and revelation, reason versus revalation. The Mind of God. The idea that was promoted was that you have a natural conscience, which gives rise to natural duties and one of the foremost natural duty is to respect the rights of others. And this way of looking at the world made its way into the US constitution through Locke.
[00:07:44] So it went from Locke’s second treatise to the Federalist papers and then to the American Constitution, and Locke makes this plane, which the framers took very seriously, the state of nature, has a law of nature to governance, [00:08:00] which obliges everyone and reason, which is that law teaches all mankind, who will, but consulted that being all equal and independent, no one ought to harm another in this life, health, Liberty, or possessions.
[00:08:16] And that statement makes its way right into the declaration of independence in the US constitution, slightly altered; we hold these truths to be self-evident that all men, read human beings, are created equal, that they are all endowed by their creator with certain unalienable rights among which are life, Liberty, and the pursuit of happiness.
[00:08:39] And so hear you can see where the right to informed consent where it originates because when Locke says you may not harm another in his life, liberty, health, or possessions; really, you’re saying, everybody has the right to life, health, liberty and possessions. And everybody has also, he says, equal and independent, which means each person is the [00:09:00] best judge of his own interests.
[00:09:00] And so nobody can make decisions for you. You have a right to govern yourself. And so therefore you have a right to informed consent when it comes to your life, your health and your Liberty. And what’s interesting with the Supreme court, the US Supreme court, when it discussed the idea of informed consent, they made reference to the Liberty aspect of the statement under the 14th amendment.
[00:09:23] So this is a kind of antique understanding of rights. The court actually doesn’t really take it to seriously these days, but it comes straight out of the 17th century into American life. And now we could go there. It’s we’ve got a big problem facing us in the 20th century.
[00:09:41] The first problem is the proliferation of rights. There are so many different rights claims that have been made, particularly from the 1980s going onward, that people become very confused about what a natural right is, what conventional right is, what false claim is, what a true claim is. And I was [00:10:00] actually asked by a major bank in Canada to to write a paper about the, on the topic, which rights are fundamental and which are not.
[00:10:09] Around that time, perhaps, fittingly, I came home one day and I saw these kids on TV and they were screaming at me. You have a right to Kentucky fried chicken. That to me in some way indicated the problem that we had but the real problem beyond the proliferation of claims which made the whole subject confusing, we had to deal with postmodernism.
[00:10:36] And since the beginning of the 20th century, most universities, law schools, philosophy departments teach that there are no such thing as fundamental rights, such as the right to informed consent or the right to free speech or the right to equality for the law. These claims are just historical accidents.
[00:10:54] They belong to our cultural epoch that represents our preferences, but those preferences may change. [00:11:00] And and if they do, then there are claims about rightful change. So once that way of looking at the world takes hold, then you’ve got the problem that all claims are relative. They vary from time to time place to place.
[00:11:16] You’re into justice. I like pizza. You like surfing all the different things that people we have preferences for are equal in moral stature. And the problem that we’re facing is that the most fundamental texts that are taught to people, particularly talk to lawyers are based on the idea that we do not have rights that exist prior to the government or they are universal or objective in that sense.
[00:11:46] And the Bible of law school education these days is John Rawls, A Theory of Justice, which was published in 1970. And most law students read this book and take it seriously. It [00:12:00] is a, it is a, it’s intent in Raul’s words to provide a neutral, unbiased, rational account of justice. So it sounds very promising, but after publishing it, Raul’s published an article in a journal in which he said that theory of justice is political, not metaphysical.
[00:12:22] And by that, he meant that, he was essentially buying in to the postmodern notion that justice is something that varies according to time and place and historical accident. So you can’t find a way to locate a fundamental right to informed consent within the modern legal theory that is being talked to lawyers today.
[00:12:41] So this is the problem that we are up against. I’m going to escape from that now and stop screen-sharing. We’re in a, we’re in a world where the leading academic disciplines the lead professors and teachers deny that there is a right to informed [00:13:00] consent and the way that we talk about it.
[00:13:02] And the paradox to this thing is that to rescue ourselves in the 21st century we have to think about how rights were conceived in the 17th century.
[00:13:12] And that seems to me to be the only way out of the problem. So that’s what I’ve been thinking about recently.
[00:13:20] Dr. Jennifer Hibberd: Thank you so much. So it was very informative and very thought provoking my goodness. I’m sure we have some very interesting questions. Shabnam, would you like to bring some questions forward?
[00:13:31] Shabnam Palesa Mohamed: Absolutely.
[00:13:32] So we’ve got two questions here. One from Dr. Tracy Chandler , thanks Trace, my [inaudible] 13, 16, and 17 year old girls with the covid [inaudible] vaccine. This was after they’re father was in [inaudible] that they meant that they couldn’t go back to his house unless they had a jab. And so my girls were too scared. The situation is compounded by discovering the pharmacist had . Not ask my girls to fill in a consent form and told him the only possible side effect, may [00:14:00] be a slight sore arm… So I’m very interested in your thoughts about this as it relates to informed consent based in New Zealand, Michael?
[00:14:09] Michael Alexander: Sorry Shabnam I’m having a little trouble into might have a little bit of trouble with my audio on that. Is that on the chat?
[00:14:15] Dr. Jennifer Hibberd: Chat, you see it?
[00:14:17] Shabnam Palesa Mohamed: Yeah.
[00:14:18] Dr. Jennifer Hibberd: Sad situation. That’s going on in many families.
[00:14:23] Michael Alexander: The father would certainly be open to a claim of child abuse if you want to bring forward the science and, and I don’t think the pharmacist had any role in interfering in the lives of 15 to 17 year olds. And I think that would be plain professional misconduct but also it might lead to a claim of abuse as well. And the pharmacist clearly did not properly inform them. Anyway, the pharmacist does have a right to dispense medical advice that’s between you and your doctor.
[00:14:53] So that’s just completely off base and it shouldn’t be regarded as fundamentally unlawful.
[00:14:58] Shabnam Palesa Mohamed: Right. [00:15:00] Thanks very much. Thank you. Thanks for your courage, your questions, and then a, an offer from Ena. This one’s from Rob, even if it’s difficult to establish medical informed consent as an inalienable right, the medical council of Canada and other medical regulators around the world, regard consent as an essential prerequisite of any medical, treatment (and there’s a link there). If doctors and health authorities that denying the site, hasn’t expressed, it is essential in inverted commas, isn’t that enough to hold them culpable if someone gets harmed after injection treatments when they hadn’t been informed of the risks, Michael?
[00:15:36] Michael Alexander: Yeah yeah. It’s fortunately, a medical informed consent fortunately is a medical convention. And from legal standpoint you can you can go after people based on the representation they’ve made to you, a contractual sense.
[00:15:51] If this is the representation and you have the right to informed consent, this is the way you practice medicine and you rely upon that to your detriment. Then you would have a claim.[00:16:00]
[00:16:00] Shabnam Palesa Mohamed: Thanks, Michael. Catherine Heley’s thing. We have an intuitive issue with informed consent in the context of the administration of experimental vaccines.
[00:16:10] We prefer informed choice instead of informed consent, any comments?
[00:16:15] Michael Alexander: Yeah, it’s really, in some sense, the principle of informed consent. I like the idea of the right choice. It’s perhaps a little more descriptive, but I think that, that might be a better way to express it.
[00:16:26] Shabnam Palesa Mohamed: Thanks, Michael. And then the very last one is an (inaudible) here from Anna and she says, I’m going to say, yeah. I think she has a different understanding of informed consent. Then we’d like a minute just to share that with us.
[00:16:44] Anna De Buisseret: Yeah. Hi. Thanks Michael. I’m obviously aware that I’m from the UK. And so therefore how we approach the issue of informed consent here is very much based on our UK law.
[00:16:57] Now in the UK, the [00:17:00] starting point to look at what law applies in my view is the Coronation Oath Act of 1688 and the Coronation Oath Act specifically says—I’m going to put better lighting on so you can see my face- —The Coronation Oath Act specifically states that the Queen or the Monarch must uphold, and our laws include God’s laws, our common law and our customs and usages and our statutes that have been agreed on.
[00:17:27] Now, our common law includes all of our laws that we can find from since time began, because we don’t have a written constitution. That’s enshrined at a particular point in time. So when you look at God’s laws, we’re all equal in his eyes and we are all sovereign and we don’t get to harm each other.
[00:17:46] When you look at our common law, it’s prima non nocere -first do no harm. So clearly experimenting on someone or giving them medical treatment without their consent is causing them harm. But specifically the [00:18:00] Justinian code that was brought over to us, courtesy of the Roman empire, ‘voluntas aegroti suprema lex’ says over his or her own mind and body, the individual is soverign and therefore, if you breach that bodily integrity, that individual sovereignty, either their psychiatric or their bodily integrity, then you’ve committed the tort of battery or assault of the person, against them. And that’s being confirmed in as late as 2015 and our Supreme court decision of Montgomery and Lanarkshire NHS Trust, where Lady Hale said that the informed consent laws were put firmly parts of established as the English law, and it amounts to the tools of battery.
[00:18:49] So in our constitution and our laws, absolutely, informed consent is absolutely part of our law. And it’s not [00:19:00] something that’s gifted to us by government. It’s been gifted to us by God. It’s been confirmed in our common law for at least 1500 years on record and no bureaucrat, no modern day legal thought says that you can get rid of that in this jurisdiction.
[00:19:19] You know what? I would also invite other lawyers. And other jurisdictions to look at is the fact that in 1953, the Queen swore an oath to we the people, not just in the UK, but to those countries listed in the 1953 coronation oath to uphold their laws and their laws would have included the common law rights, bodily integrity.
[00:19:44] So I’m not a lawyer practicing in those other jurisdictions. So that’s, as far as I can take it, the idea that anyone comes in 2021 and says, none of those laws for all that millennia apply is a [00:20:00] nonsense in my view. So that’s my pennies worth.
[00:20:02] Shabnam Palesa Mohamed: Thank you very much Anna, Jen do we have a minute more or not.
[00:20:07] Dr. Jennifer Hibberd: How can I say no, go ahead.
[00:20:09] Shabnam Palesa Mohamed: Sorry about that. This is sorry.
[00:20:12] Michael Alexander: Can I just respond to what Anna said,
[00:20:15] Shabnam Palesa Mohamed: Please.
[00:20:16] Michael Alexander: Yeah. The problem with the common argument is that er, (inaudible) this is recognized in North America, but we take this from the Brits statutory law will overrule common law anytime, and certainly constitutional law is Supreme, the relation to common law as well.
[00:20:31] So the common law argument is historically interesting. If you can call principles from it, it can be used in different forums, but it’s ultimately not controlling at the highest levels of democratic government.
[00:20:47] Anna De Buisseret: In this country though, we’ve already had case law that says the executive doesn’t get to create laws that override the common law.
[00:20:55] So we have that hierarchy in this country. And as I said, it’s specifically set [00:21:00] out in the Coronation Oath, is that any statute law has to be by consent. We are governed by consent. So no group of people get to come in and change all of our laws and just, get away with it, not in this jurisdiction.
[00:21:13] Shabnam Palesa Mohamed: So Ralph J D wants to make a quick comment on informed consent. And Marsha has made a proposal on in worldwide questionnaire. If Ralph can just come in for 60 seconds and then I think move forward.
[00:21:29] Ralph Fucetola: Hi my pleasure. It has been an experience listening to you all today. And I think this Organ…, this group is going to make change.
[00:21:37] I just wanted to tell you that I delivered a paper on informed consent to the 2019 Libertarian Scholars conference at Kings College in Manhattan. And that paper, the link to that paper is on the chat. I took a little different approach. I looked at it through international law and through the Nuremberg code and and how it’s applicable to the powers through the Geneva [00:22:00] conventions.
[00:22:00] I also write a little bit about American case law in that context. And I believe that informed consent is the defining issue of the 21st century. And that’s not my opinion, actually, it’s the opinion of a dear mentor of mine, a Major General Bert Stoublebye who had many good ideas to tell us over the decades, not with us physically anymore, but his ideas are still are still important. And I think that we all ought to be pursuing the issue of informed consent. It is exactly what is being assaulted on every level by this planned pandemic. And that’s really what I had to say. I’m involved with casework here and you’re in the United States. We are presenting cases to our us Supreme court on informed consent. We will see if they’re willing to take any of them.
[00:22:48] Shabnam Palesa Mohamed: Thanks very much Ralph that’s fascinating actually. And we’ll give the last word to Professor Dolores Cahill
[00:22:54] Prof Dolores Cahill: Great. I just wanted to really appreciate the discussion. I just wanted to back up what Anna says. [00:23:00] So in Ireland, as in the, in England, the UK and in the Commonwealth countries and around the world, there is a hierarchy of law and these inalienable rights are in the divine and natural law. They are not written down and in Brehon law, they have been in our oral tradition of law for 20,000 years. Some were actively used here until the 17 hundreds when the common law came into effect. But actually I would like to agree with Anna, the common law in our high courts, they’re called in Ireland “High Court Common Law” courts and they are our high court and our Supreme court, and it has higher jurisdiction than anything written down. So the inalienable rights actually have a 20,000 year tradition including in Brehon law in Ireland and King Alfred the Great of England was trained in the Irish Brehon law and brought them to England, and England and Ireland has this innate people rights and including a freedom of travel, freedom of speech of ordinary men and women for [00:24:00] thousands of years. And that as Anna exactly says cannot be turned over by anybody in, in this decade or in this millennium. So just to say these inalienable rights are older than people may have been aware of. And I’ve been researching this for 20 years. A lot of the information is not on the internet and is found in ancient documents including in ancient Irish. So just to say, I support Anna in her comments around the inalienable rights and the common law
[00:24:32] Shabnam Palesa Mohamed: Thank you, Dolores fascinating discussion, Michael, thank you so much for stimulating it to a brilliant topic. Much appreciate . and it looks like we’ll have to have a part two at some time. Back to you Jen.
[00:24:42] Dr. Jennifer Hibberd: Thank you so much, Dolores. That was fascinating. Thank you so much. And you realize how much power is in all of these spoken words that you are all bringing forward. So we really do have a lot to work with, and there is power behind this.
[00:24:57] Maybe we work together and collaborate like [00:25:00] we are today and carry forward every day and power up with all of this.