CHCA 2021 Resolution on voluntary and informed consent
This measure would urge the Legislature and the Governor to take actions to protect Californians’ right to make their own health and medical decisions. The measure would urge the Legislature to amend existing law in order to require the voluntary and informed consent of an individual or their guardian, and to authorize the consent’s withdrawal without prejudice, for any preventive, diagnostic, or therapeutic medical intervention taken by the State Department of Public Health to ascertain the nature of a contagious, infectious, or communicable disease and to prevent its spread.
SCR 59, as introduced, Melendez. Medical interventions: voluntary and informed consent.
WHEREAS, In a free society, the integrity of personal liberty is firmly recognized and protected, even during times of exigency or emergency, such as the ongoing COVID-19 pandemic; and
WHEREAS, The California Constitution declares, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy”; and
WHEREAS, The Universal Declaration on Bioethics and Human Rights, adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO), states, “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice”; and
WHEREAS, The United States Supreme Court reminds us that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law”, and that courts have held that a competent person’s right to refuse unwanted medical treatment is both a constitutional and a common law right; and
WHEREAS, The Ninth Amendment to the United States Constitution clarifies and memorializes, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and
WHEREAS, The Fourteenth Amendment to the United States Constitution protects United States citizens, as “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”; and
WHEREAS, The United States Supreme Court has reminded us that “[t]he Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency”; and
WHEREAS, The critical events of the year 2020 have resulted in the Legislature and citizens becoming concerned about California laws and emergency orders that could infringe upon the state constitutional and inalienable rights of Californians to enjoy and defend their life and liberty, to acquire, possess, and protect property, and to pursue and obtain their own safety, happiness, and privacy, and could infringe upon international human rights principles that recognize the inherent dignity and the equal and inalienable rights of all members of the human family, requiring that those rights be protected by the rule of law; and
WHEREAS, The Legislature finds that existing state law, Section 120140 of the Health and Safety Code, could infringe upon the right to consent or not consent and allows the government to take possession or control of the body of any living person; and
WHEREAS, The Legislature finds that support for, and promotion of, medical, immunity, or vaccine passports, or other document requirements imposed by governments, businesses, or other entities, could lead to people sharing their private medical information unwillingly in order to participate in everyday life, commerce, education, employment, entertainment, gatherings, or travel; and
WHEREAS, Experts from the federal government and private industry were leveraged to develop vaccines quickly, and those vaccines have been made widely available for those who choose to use them; and
WHEREAS, The Legislature finds that the inflexible implementation of “one-size-fits-all” medical requirements places a disproportionate and unequal risk burden on those individuals who are genetically, otherwise biologically, or environmentally at higher risk for suffering harm from medical interventions; and
WHEREAS, Parental choice and involvement are key for Californians to make the best and most informed decision to help families, communities, and the state to be their very best; now, therefore, be it
Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature and the GovernorE are urged to take actions to protect Californians’ right to make their own health and medical decisions, and to take additional actions that reflect the principle that all people are by nature free and independent and have inalienable rights, that citizens should always be given the opportunity to decide to consent, or not to consent, to medical treatments or other interventions without any element of force, fraud, deceit, duress, coercion, undue influence, or disadvantage; and be it further
Resolved, That the Legislature is urged to amend Section 120140 of the Health and Safety Code, through future legislation, by adding to the section’s existing language the following new subdivision:
“(b) Any preventive, diagnostic, or therapeutic medical intervention taken by the department to ascertain the nature of the disease and to prevent its spread shall be carried out with the voluntary and informed consent of an individual or their guardian. The consent shall, where appropriate, be express, and may be withdrawn by the individual or their guardian for any reason without prejudice”; and be it further
Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.