18 November 2016

Cadavers and Cryonics

In JS (Disposal of Body), Re [2016] EWHC 2859 (Fam) Jackson J in the UK High Court of Justice has considered an application regarding cryonics.

The judgment states
2.This urgent application comes before the court in sad circumstances and has been considered at hearings on 26 September, 4 October and 6 October.
3.The applicant is a 14-year-old girl, known in these proceedings as JS. Last year, she was diagnosed with a rare form of cancer and now she is a hospital inpatient. Unfortunately, active treatment came to an end in August. JS is now receiving palliative care and she knows that she will soon die. Her case has come before the court because of the novel issues it raises and, particularly, because JS's parents are not in agreement about what is to happen after her death.
4.A reporting restriction order applies in this case. It prevents any reporting until one month after JS dies. After that, it prevents the identification of JS or her family or the hospital trust and its staff on an indefinite basis. Its terms are set out in the Appendix at the end of the judgment.
5.JS's parents are divorced. For most of her life she has lived with her mother in the London area, and she has had no face-to-face contact with her father since 2008. For reasons that I need not describe, the relationship between the parents is very bad. Late last year, the father, who himself has cancer, became aware of JS's condition. He brought proceedings to be allowed to see her, but in December 2015 these ended with an order that he should have written contact only. The local authority was granted a Family Assistance Order in order to manage the indirect contact, and so JS has a social worker. JS has herself refused any contact with her father and does not want him to have detailed knowledge of her medical condition.
6.Over recent months, JS has used the internet to investigate cryonics: the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.
7.The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.
8.Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds. There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of research into the subject's case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the region of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although JS's family is not well-off, her maternal grandparents have raised the necessary funds.
9.There is no doubt that JS has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.
10.JS has written this: "I have been asked to explain why I want this unusual thing done. I'm only 14 years old and I don't want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years' time. I don't want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish."
11.Her mother supports JS in her wishes. Her father takes a different position, as I shall explain below.
12.Cryonic preservation, whether or not it is scientifically valid, requires complex arrangements involving the participation of third parties. The body must be prepared within a very short time of death, ideally within minutes and at most within a few hours. Arrangements then have to be made for it to be transported by a registered funeral director to the premises in the United States where it is to be stored. These bridging arrangements are offered in the UK for payment by a voluntary non-profit organisation of cryonics enthusiasts, who are not medically trained. Evidently, where the subject dies in hospital, the cooperation of the hospital is necessary if the body is to be prepared by the volunteers. This situation gives rise to serious legal and ethical issues for the hospital trust, which has to act within the law and has duties to its other patients and to its staff.
13.The Trust, speaking through its solicitor Ms Helden, has given outstanding assistance to the court. On 5 October, at my request, a meeting took place between a representative of the voluntary organisation and the doctors, nurses and other representatives of the hospital trust. I have read a note of the meeting, which reviews all the practical aspects of the plan and shows the careful thought that the Trust has given to the matter at a senior level. The outcome is that the hospital is willing to do what it properly can to cooperate for the sake of JS, because the prospect of her wishes being followed will reduce her agitation and distress about her impending death. The decision centres entirely on what is best for JS. The Trust is not endorsing cryonics: on the contrary, all the professionals feel deep unease about it.
14.It is understood by all that the process can only go ahead if the volunteers have 24-48 hours' advance notice of the likely time of death to allow them to arrive at the hospital. If death occurs without warning, the process cannot take place.
15.The Trust has also drawn attention to the terms of the Human Tissue Act 2004 and has liaised with the Human Tissue Authority ('the HTA'). Advice received from the HTA, for which I am again grateful, confirms that what is proposed in this case is not regulated by the statute and that accordingly the HTA currently has no remit. It is thought that the present situation was not contemplated when the legislation was passed. The HTA would be likely to make representations that activities of the present kind should be brought within the regulatory framework if they showed signs of increasing. It also raises questions about the standing of the voluntary organisation and draws attention to possible public health concerns and the position of the coroner.
16.I have also been taken to the old authorities on the unlawful treatment of dead bodies (see Archbold 2017 at 31.54 onwards) but it does not appear that an offence would be committed in this case; in other words, what JS wants does not seem to be illegal.
17.Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human remains being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal requirements are complied with.
18.No objection is raised by JS's social worker or her GP, who has provided information about the manner in which death is likely to be certified.
19.The funeral directors are willing to attend at the hospital to ensure that the transportation of JS's body is appropriately supervised.
20.So, despite all the difficulties, there is no inevitable practical obstacle to JS's body being transported to the United States for cryonic preservation.
21.The father's position has understandably fluctuated. No other parent has ever been put in his position. It is not to be forgotten that he himself is facing serious illness, and is not able to discuss the matter with JS or her mother because of the extreme difficulties within the family. At the start of the proceedings, he was opposed. He was concerned that he might become responsible for the costs. He also wrote: "Even if the treatment is successful and [JS] is brought back to life in let's say 200 years, she may not find any relative and she might not remember things and she may be left in a desperate situation given that she is only 14 years old and will be in the United States of America." Despite this, during the course of the first hearing, the father, who was then unrepresented, changed his position, saying: "I respect the decisions she is making. This is the last and only thing she has asked from me. I would like to have written confirmation that I will not have to pay the costs as I have cancer and I live on benefits." However, by the second hearing, the father was legally represented and his position had changed again. He said that he was prepared to agree to what JS wanted on four conditions: that he and other members of his family could view her body after death; that the mother would not pursue any financial claims against him; that the mother and her family would not make any contact with him and his family; and that he would not be pursued for any contribution to the costs of the cryonic process. The father's last statement at this hearing was that he wants the court to know that he respects JS, and that he will respect the court's decision.
22.The father's first condition is objectionable to JS.
23.It is no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law. Faced with such a tragic combination of childhood illness and family conflict, the court must remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established.
Jackson J goes on to comment
25.The first thing to note is that much of the current problem arises from the fact that JS is a child, albeit a legally competent one. If she was 18, she would be able to make a will, appointing her mother as her executor, and it would then be for the mother to make arrangements for the disposal of JS's body, no doubt in accordance with her wishes. However, children cannot make wills. My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult. 26.Next, it is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities. When the application first came before the court, it was not clear that JS's wishes could be carried out, because there was no information from the hospital or from the US authorities. Now that this and other information has been gathered, there is a practical plan that can be considered.
27.Thirdly, the court is not making orders against third parties. The position of the various organisations and authorities has been set out above. All the court is doing is to provide a means of resolving the dispute between the parents. 28.Fourthly, this case does not set a precedent for other cases. If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.
29.Fifthly, I am acutely aware that this case gives rise to a large number of issues that cannot be investigated in the course of a hearing of this kind. If regulation is required, there would need to be consultation with a wide range of interested parties. That is a matter for others. This court is faced with a situation that needs immediate determination on the basis of the best available information. For the future, I shall direct that the papers in this case shall be released to the HTA on the basis that the identity of the family and the hospital trust will remain confidential.
30.Lastly, I cannot emphasise enough what this case is not about. It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong. The court is not approving or encouraging cryonics, still less ordering that JS's body should be cryonically preserved.
31.Nor is this case about whether JS's wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS's position – what they must think.
32.All this case is about is providing a means by which the uncertainty about what can happen during JS's lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.
33.Having considered all the arguments, my conclusion is that the court can and should do what it can to provide a means of resolving the dispute between JS's parents that hangs over the arrangements that are to be made after her death.
34.Mr Tyler QC has presented arguments for and against the proposition that the court has a power that can be exercised now.
35.Against the existence of the power is the fact that a person cannot control the disposition of their body after death (Williams v Williams, see below); that there may be a later change of circumstances that would undermine the decision; and that as a matter of policy the court may not wish to encourage similar applications.
36.In favour of the existence of the power is that all parties are now represented before the court, whilst it will be difficult if not impossible to reassemble effectively after JS's death; that the resolution of the issue now should prevent undignified scenes later; that clarity will help third parties to know how they should act; that the arrangements for JS after death will be particularly complex if she is to be preserved; that JS does not want to be seen after death by her father or his family and the possibility that this might happen causes her present distress; and that consideration of JS's welfare during life, with her dependence on her mother who is herself under considerable stress, favours the ability to provide a resolution at the earliest opportunity.
37.I am satisfied that the court has power to make the order requested by JS for the positive reasons just listed. In relation to the other considerations, a decision entrusting powers to the mother does not contravene the principle in Williams. The court is not deciding or approving what should happen, but is selecting the person best placed to make those decisions after JS's death. As to change of circumstances, this is a very deep and long-standing family breakdown and there is in my view no chance of a change in the time between now and JS's death. I acknowledge that this decision might conceivably encourage a small number of other pre-death applications, but if these were wrongly brought they could be dealt with accordingly. The policy concern cannot lead the court to decline to deal with a situation that demands resolution, and in fact the issue of viewing the body has only arisen here as a result of the condition imposed by the father in response to JS's application.
38.Turning to the merits: as to cryonic preservation, I fully understand the father's misgivings. However, his role in JS's life has been extremely limited in recent years. His new request to see JS after her death can only cause her distress in life. His other conditions, some of which have nothing to do with JS, carry no real weight. As to responsibility for payment for cryonic preservation, there is no way in which he could possibly be held liable.
39.As to viewing JS's body, Miss Khan argues on the father's behalf that the court cannot and should not make any decision that prevents him and his family making an application to see JS's body after death.
40.A dispute about a parent being able to see his child after death would be momentous enough on its own if the case did not also raise the issue of cryonic preservation. An order placing the arrangements after JS's death in the hands of her mother will inevitably exclude the father, including by depriving him of the ability to view the body. That is a serious conclusion, but it is justified on the exceptional facts. The intensity of the difficulties between JS and her mother on the one hand and the father and his family on the other makes it impossible to accommodate the father's wishes. The decision would be the same after JS's death and in the meantime the whole family and those helping them would be deprived of the benefits of clarity.
41.Therefore, both as to preservation of the body and as to the question of who should be permitted to view it, I conclude that the mother is best placed to manage this unusual and difficult situation. I will therefore make orders placing responsibility in her hands and prevent the father from intervening. These orders will consist of:
(1) A specific issue order permitting the mother to continue to make arrangements during JS's lifetime for the preservation of her body after death.
(2) An injunction in personam preventing the father from (i) Applying for a grant of administration in respect of JS's estate. (ii) Making or attempting to make arrangements for the disposal of JS's body. (iii) Interfering with arrangements made by the mother with respect to the disposal of JS's body.
(3) A prospective order under s.116 of the Senior Courts Act 1981, alternatively under the inherent jurisdiction of the High Court, to take effect upon JS's death, appointing the mother as the sole administrator of her estate in place of the mother and father jointly, and specifying that the mother shall thereby have the right to make arrangements for the disposal of the body, and to decide who should be permitted to view it.
(4) An order for disclosure of the papers to the Human Tissue Authority.
42.I will not make a prohibited steps order over and above the injunctions. The father has given an assurance that he will not try to see JS during her lifetime against her will and such an order is not in my view necessary. The real issue here relates to the dispute that would arise after death. ...
44.I turn in more detail to the legal issues.
Specific issue order
45.The making of a specific issue order raises no special difficulty. By s.8 Children Act 1989 a specific issue order is "an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child." The Act applies to parental responsibility for a child, defined as a person under the age of 18. It does not extend to regulating events arising after the child's death. See, for example, R v Gwynedd County Council, ex p. B [1992] 3 All ER 317, a decision under the Child Care Act 1980; also Fessi v Whitmore [1999] 1 FLR 767.
46.The making of a specific issue order is governed by the welfare principle. In this case the predominant features are JS's wishes and feelings and her acute emotional needs. These are best met by an order granting the mother the right to make arrangements during JS's lifetime for the preservation of her body after death. In making this order, the court is not approving the choice of arrangements, but it is giving JS and her mother the opportunity to make that choice.
Disposition of a body
47.The law in relation to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore cannot be disposed of by will. The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal. The concept of 'proper disposal' is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was recognised as lawful in the United Kingdom, and it was in due course regulated by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.
48.Thus, in English law, there is no right to dictate the treatment of one's body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch).
49.The role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements: see, for example, Anstey v Mundle [2016] EWHC 1073 (Ch).
50.A person under the age of 18 cannot make a valid will: Wills Act 1837 s.7. In this case, JS's parents will each be entitled to a grant of administration over her estate (Non-Contentious Probate Rules 1987 Rule 22(1)(c)) and, absent outside intervention, are therefore equally under a duty to arrange for the disposal of her body.
51.Disputes between executors or administrators about the disposition of a body have been dealt with either in the manner of the resolution of a dispute between trustees (see Fessi and Hartshorne v Gardner [2008] EWHC B3 (Ch)) or as an application to displace the administrator of an estate, pursuant to s.116 of the Supreme Court Act 1981 (see Burrows and Ibuna).
The Court notes
67.On 8 November, I received a detailed note from the solicitors for the hospital trust in which the events surrounding JS's death are described from the point of view of the hospital. It records that JS died peacefully in the knowledge that her body would be preserved in the way she wished.
68.However, the note makes unhappy reading in other ways. The Trust expresses very real misgivings about what occurred on the day of JS's death. In brief and understated summary:
(1) On JS's last day, her mother is said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to JS.
(2) The voluntary organisation is said to have been under-equipped and disorganised, resulting in pressure being placed on the hospital to allow procedures that had not been agreed. Although the preparation of JS's body for cryogenic preservation was completed, the way in which the process was handled caused real concern to the medical and mortuary staff.
The controversy is discussed in 'Cryonics in the Courtroom: Which Interests? Whose Interests?' by Richard Huxtable in (2018) 26(3) Medical Law Review 476–499, 'Re JS (A Child)(Disposal of Body: Prospective Orders) [2016] EWHC 2859 (Fam): High Court of Justice (Family Division)' by Alex Benn in (2017) 6(2) Oxford Journal of Law and Religion 413-415 and 'Frozen Corpses and Feuding Parents: Re JS (Disposal of Body)' by Heather Conway in (2018) 81(1) The Modern Law Review 132-141.

17 November 2016


'Pondering Schmitt's Concept of the Political for International Public Authority: On Methods, Standards and Disciplinary Settings for Public Law Theory' (Max Planck Institute for Comparative Public Law and International Law Research Paper No. 2016-22) by Armin von Bogdandy is described as analysing
Carl Schmitt’s Concept of the Political, one of the most influential pieces ever penned by a legal scholar. It engages with it to advance a contemporary theory of public law. Although Schmitt’s text has, as will be demonstrated, many fallacies, it also holds seminal innovations that are useful to contemporary thought. One such innovation is Schmitt’s way to reconceive the conceptual web that hitherto has been anchored in the state. However, this text will replace his concept of the political by the concept of public authority, advancing an idea of public law that enables, guides and frames the exercise of public authority, whether domestic, international, or supranational. Moreover, on the touchstone of Schmitt’s text, standards for assessing theories of public law are developed.
The author comments
The task set to this contribution is “Thinking the State through the International”, by engaging with theories that conceptualize “the state in relation to others”, rather than “in isolation”. This stands in a broader project of linking legal scholarship, history, and political theory to better address “the contemporary international”; a search for new approaches to the history of international law, internationalized political theory, and legal thought. Concentrating on the state should help in gauging the promises, challenges, and pitfalls that possible linkages might produce. 
I will discharge my task in a hermeneutic mode, in the tradition of Geisteswissenschaft, which is close to ‘interpretive social science’ in the Anglo-American tradition. At its core, Geisteswissenschaft aims at understanding the present through interpreting artefacts of the past. Its method suggests engaging closely with texts that provide a reference for contemporary thinking in light of present-day issues. 
In this regard, a natural candidate seems to be Kant’s Perpetual Peace, probably the most important reference for those who conceptualize the state within a universal framework to secure peace, human rights and some basic welfare globally. Although feeling normatively committed Kant’s universalist project, I decided to develop my contribution from the opposite side, from Carl Schmitt’s “The Concept of the Political” (CoP). I will do so in a direct dialogue with the 1932 text, little mediated by the secondary literature, which in itself is impressive in volume, depth, and diversity. I will propose only one of several possible readings, attuned to the guiding question. My reading will not be validated by the confrontation with other readings; this seriously limits my paper’s scholarly value. Its standard for being scholarly is to be able to provide a reasoned interpretation, in sync with the seminar’s topic. 
What justifies the choice of CoP? I do not engage with those doubts that stem from Schmitt’s association with authoritarianism in general and National Socialism in particular. It is not because those doubts are pointless, but too important for any cursory treatment. Ultimately, my position is that normative repulsion should not stand in the way of analyzing arguments. Irrespective of its political aims, CoP can be studied as a scholarly contribution. 
A first reason to engage with CoP is that it defines the international, the relation to others, as the kernel to think, to conceptualize the state. This is an extremely agonistic relation. Schmitt thinks the state through the international as a relationship of conflict, not through international law as an order of cooperation. Of course, many theories focus on conflict to explain social dynamics. What is specific with Schmitt is the radicalization. A state’s readiness to fight war against another state becomes the vanishing point. If CoP also considers cooperation, friendship, it is only in order to fight better. CoP being a 20th century version of the most ancient tradition in understanding the international, discussing it implies engaging with a thick current of political thought. 
Second, CoP is not just one of the many 20th century versions of particularism, but its most visible text with a spectacular radiance. Perhaps no other book of the 20th century which presents itself as legal scholarship has had a similar sway. It had a deep impact on legal thought, lawmaking and legal practice in many countries. Moreover, its ripples can be felt far beyond the legal field: many political theorists, political scientists, historians, literary critics, and novelists have fallen under its spell. Its friend-enemy-scheme even made it to general public discourse. This success suggests that CoP articulates something deeply to be reckoned with. Brushing it aside for the failures of its author does not make this something go away. Any serious thought on how to think the state in relation to others needs to engage with this something, and CoP provides a splendid way to do so. 
Third, CoP provides the basis for a thick interweaving of political thought, legal analysis and historical narratives, in particular Schmitt’s narrative of ‘classical’ international law, for which he later coined the term Jus Publicum Europaeum. Schmitt provides a gripping example for our seminar’s overall topic: the astounding energy a fusion of political thought and international legal history can generate. If a political theorem succeeds in portraying itself as a key for understanding the historical path of a social phenomenon, it gathers enormous strength. Hegel, Marx or Schmitt had a greater impact than Fichte, Kelsen or Rawls. Yet, there are the costs and fallacies of such a fusion: a selectivity that may border on being ideological and, in today’s terms, on academic malpractice.
Fourth, CoP provides a way of overcoming the fixation of thinking the international through the state, a core concern currently in the history of international law as in political thought. CoP does so by switching the founding concept – ‘the political’ rather than the ‘state’ – and then by rearranging the conceptual field according to the core meaning of the central notion, the friend-enemy distinction. This shows how a fixation on one concept can be overcome. However, the concept of ‘authority’ might be more fruitful than ‘the political’. As will be explained, international public authority might be a better concept in overcoming that fixation and in particular, for reappraising institutionalized power relations beyond the state.
In asking "What to take from CoP for today’s questions" von Bogdandy concludes
CoP’s success validates a sub-discipline in legal scholarship where it meets political thought and history, as other disciplines. CoP suggests a broad focus of that sub-discipline, going beyond the ‘state’ or ‘the constitution’, by addressing the broader phenomenon of ‘political power’. This provides the disciplinary setting for theory building on public law with a view to systematizing, interpreting and critizing legal phenomena of public power, irrespective of being international, domestic, or supranational, in line with the project of this book.
To this end, this sub-discipline, as in CoP, allows eclectic and syncretistic thinking. This facilitates engaging with new historical narratives of international law and new approaches to political thought, which are, as CoP shows, of particular potency for advancing legal thinking. The very success of CoP validates attempts at bringing together political thought and history with this end. Though the conventional standards of political theory as a discipline on the one side and those for historical research as a discipline on the other are worlds apart, the lenient standards of this sub-discipline and its openness towards eclecticism and syncretism make linkages and even fusions possible.
The leniency must always be kept in mind: Schmitt’s CoP shows that the ideological temptation is particularly strong when fusions of political theory and history are produced. Such fusions can generate explosive, dangerous thinking, with much potential, but also with a dark side as Schmitt proves. It must be remembered that any truth claim under this sub- discipline depends on how well it fares in systematizing, interpreting and criticizing legal phenomena. Moreover, leniency does not imply that anything goes. Any contribution faces, beyond the standard of heuristic potency, standards such as traceability, coherence, dialogical engagement, and accuracy.
With CoP, the state needs to be seen through the international, though not in Schmittian one- sidedness. Indeed, the international is to be seen through the state. The international depends on the domestic, as the domestic depends on the international. The future of international law is domestic (A.-M. Slaughter) as the future of domestic law is international (M. Goldmann). The unity of public law needs to be conceived without negating the difference of various parts, even though they might not be as far apart as CoP claims. If this is the future, history has its work cut out as does political theory, as all its basic concepts have to be reshaped.
To advance on this path, the concepts of public law cannot receive their ultimate meaning any more from the state as the vanishing point. CoP shows, from its very first sentence, how to rearrange a conceptual field, though the concrete proposal, Schmitt’s concept of the political, does not convince me. On a more abstract note, however, it provides a clue as it points to a theory on public authority. Recent research shows that the concept of authority might indeed provide the vanishing point for a reconstruction of public law that embraces domestic, supranational and international legal phenomena.
With a legal concept of public authority, we can gauge our distance to the time when Schmitt penned CoP, and hence to his work. The concept of public authority suggest an idea of public law that enables, guides and constrains activities for the common good. This objective, however vague it may be, entails a specific need of justification, which marks the core difference with private law. Public law ultimately relates to a public. Such a public exists today also as a global one. Schmitt’s CoP shows that this observation today cannot be brushed aside. Something deep has changed. Even though the world view that CoP articulates is well alive and kicking, no particularist would deny Kant’s universalist core dictum that a violation in one spot of the world might be felt all over. But to account for that change, CoP is of great help.

16 November 2016

University Admissions

The Higher Education Standards Panel report on Improving the transparency of higher education admissions states
Australia’s demand driven system of higher education, introduced following the 2008 Review of Australian Higher Education (the Bradley Review), is providing more opportunities than ever before for Australians to access higher education. Competition among providers is increasing and choice for students is widening. The workforce is becoming better educated.
The higher education providers at the heart of this transformation are autonomous institutions. They determine the mechanisms and criteria through which applicants are accepted to study the courses they offer. Since the introduction of the demand driven system, the diversity of application and admission pathways has significantly widened. This, in line with government policy, is increasing the proportion of Australians able to attain graduate qualifications, and is enhancing the skill and educational levels of our workforce. Unfortunately, there is a problem. Prospective students need to make informed decisions. The new admission processes and entry requirements are poorly understood.
Higher education providers determine the Australian Tertiary Admission Rank (ATAR) thresholds, where applicable, for recent secondary students. They also establish eligibility for alternative entry pathways for applicants who are not admitted on the basis of ATAR. Many providers now take into account tertiary education preparation courses, vocational education and training (VET), special tertiary admissions tests (including mature age entry), professional or paraprofessional qualifications, employment history or community experience. A range of other criteria may also help prepare a student to undertake higher education. Some students are accepted on the basis of school recommendations, performance at interview, or portfolios of creative work.
The increasing diversity of higher education admissions criteria is inadequately comprehended. Media debate tends to focus on ATAR ranks. Yet, in 2014, more than half of the students admitted to higher education courses were accepted on the basis of previous vocational or higher education study, mature age entry special provisions and the like. Figure 1 indicates that only 44 per cent of students were admitted on the basis of their secondary education – and of these, only 70 per cent were selected on the basis of their ATAR.
Today there are many ways to gain entry to higher education. ... Diversity is good. Varied entry standards and pathways are giving greater numbers of students the opportunity to benefit from higher education than ever before. More students from disadvantaged families, who in previous times would not have been able to gain entry to higher education, are now able to do so. However, choice is being undermined by information about the system’s operation that is confusing, ambiguous, misunderstood and unevenly distributed. 
In summary:
• There is no common language adopted across the sector to describe entry requirements. For example, the use of terms such as ‘ATAR’, ‘ATAR plus’, ‘selection rank’, ‘course cut-off’, ‘clearly in’ are often used in different ways by different providers. It is not always clear when a cut-off is truly a minimum entry rank, when an ATAR figure includes bonus points, or how providers apply bonus points. 
• Although ATAR ranks are considered equivalent and transferrable between all states and territories, the ATAR calculation itself is different in each jurisdiction, driven by different approaches to assessment in their secondary education systems. 
• There is a large amount of information about higher education admissions requirements available at the provider, tertiary admission centre (TAC) and government levels, but this is not always readily accessible. Information is not presented in a manner which allows prospective students to compare all providers and make informed decisions. 
• The focus on ATAR as a basis of entry into higher education can be misleading as it only accounts for a little over 30 per cent of all new higher education enrolments. As a consequence, many prospective students assume they will only be admitted if they achieve a certain ATAR, when this might not be the case. 
• There is a danger that some higher education providers might make exaggerated claims regarding ATAR requirements, in an attempt to boost perceived prestige. Currently many providers and TACs publish main round offer cut-offs only, even when students are admitted in later rounds with lower ranks.
A paradoxical situation has arisen. Entry into universities has become more equitable. Yet there is evidence that families with less experience of higher education, which are economically disadvantaged or live in regional Australia, are less able to understand how admissions processes operate. This is particularly the case where dedicated school-based career advisers are not available to lend support.
The Response
With these issues in mind, the Minister for Education and Training, Senator the Hon Simon Birmingham asked the Higher Education Standards Panel to consider whether the transparency of domestic higher education student admissions could be improved. The terms of reference asked the Panel to recommend options to improve the transparency of admissions processes, while minimising any increase in regulatory burden for providers. The Panel released a consultation paper on 6 April 2016. The Panel asked respondents to provide advice on how to improve the information available and the understanding of prospective students and their families about: • the requirements for admissions to higher education • the full range of ways in which applications can be made and are assessed by providers • the supports available to help students complete their courses and qualifications. 
The Panel received 82 submissions from higher education providers, higher educational peak bodies, TACs and interested individuals. During the consultation process, the Panel and staff from the Panel’s secretariat also met face to face with a wide range of stakeholders. Details are set out in Appendix G. These discussions significantly influenced the Panel’s conclusions. It also proved very helpful to talk through the Panel’s draft proposals with Universities Australia.
Of course, responsibility for the 14 recommendations presented rests with the Panel alone. We believe that, if implemented, they will create greater consistency in the information available to prospective domestic students, reduce the complexity of accessing available higher education admission pathways and present information in a way that is more readily comparable. None of the recommendations interfere with the autonomy of higher education providers to decide their own entry requirements. Nor would the proposals impose an unnecessary burden of regulatory compliance on providers.
Principles and purpose
The first recommendation sets out the Panel’s view of principles that should be adopted to facilitate transparency of higher education admissions policies. The Panel believes it is important to recognise the primacy of students’ interests while acknowledging that higher education providers are autonomous and should take responsibility for their own admissions policies. However, with autonomy comes accountability. Higher education providers are required to ensure their admissions policies fully meet the Higher Education Standards on transparency.
The second recommendation outlines the problems that need to be addressed and indicates what the Panel intends to achieve through its proposals. Beyond the benefits that will assist prospective students and higher education providers, the Panel believes that a more transparent and easy-to-understand admissions process will help restore public confidence in the basis on which universities and colleges accept entrants.
The Panel's recommendations are -
R 1
The following six principles should be adopted to facilitate transparency of higher education admissions policies: • A student-centred approach is critical to the provision of information about admissions. • Higher education providers exercise autonomy over their admissions policies, consistent with the requirements set out in the Higher Education Standards Framework. • Access to clear information relating to admissions requirements and various entry pathways are to be made available to all applicants equally. • Any new arrangements are to be applied equally to all higher education providers, universities and non-university higher education providers alike. • Higher education providers are to be held accountable for public claims against their stated admission policies. • Reforms to improve the transparency of higher education admissions policies and to ensure compliance are designed to minimise regulatory red-tape.
R 2
The purpose of standardising the manner in which higher education providers present their admissions processes should be to: • Make information on admissions policies available in a comparable format so that individuals can make better informed choices about providers and courses of study. • Clarify the requirements of the revised Higher Education Standards Framework with respect to transparency of admissions policies, and ensure that higher education providers know what they must do to meet fully those requirements. • Reduce uncertainty among students and their teachers about what is required in order to be admitted to higher education, especially where admission is on the basis of the ATAR achieved. • Give each higher education provider the capacity to promote a strong sense of its educational ethos and how admissions policies seek to contribute to that mission. • Ensure higher education providers can be held accountable for the information they publish on their admissions policies.
The following three recommendations are intended to achieve transparency through the use of common and clear language about admissions processes and to ensure the publication of consistent information.
Presently, there is a lack of uniformity across the sector with respect to policies and processes around admissions requirements. Higher education providers and TACs employ terms in different ways. For the purposes of this report a Glossary of the Panel’s understanding of these terms is provided. It is clear that specific guidance and common terminology need to be developed to help prospective students and their parents interpret and compare the various admissions criteria by provider and area of study, and make informed decisions relating to higher education admissions.
Different providers employ the various entry pathways to a greater or lesser extent, reflecting the communities that they serve and the students they seek to attract. Some providers enrol more than half of their students through the ATAR pathway while for others the proportion is less than 10 per cent. These differences between providers (and between courses within providers) can lead to confusion for students. More clarity is needed on the diversity of entry requirements. Where admission is determined in whole or part by reference to an individual’s ATAR, it is critical for each individual to have access to clear information about the minimum ATAR admission requirements for the course. Prospective students need to be able to assess whether they can meet those requirements and, if not, what other pathways might exist.
Applicants also need to understand whether they can access bonus points for various equity, academic or other characteristics, and on what basis. They need to know whether there is a maximum number of bonus points that can be accumulated or if a minimum ATAR is required for admission. Information about the minimum ATAR requirements or indicative ATAR cut-offs should be presented inclusive of any bonus points available, together with clear information on how bonus point arrangements operate. By way of example, if the minimum ATAR admission requirement for a particular course is 75 (inclusive of bonus points), and the maximum bonus points available for the course is 10, then: • a student who is unlikely to have access to bonus points knows that he or she must aim to achieve an ATAR of 75 or higher; and • a student who is likely to receive the maximum 10 bonus points knows he or she must aim to achieve an ATAR of 65 or higher. In this way, all individuals will have equal access to clear information about what ATAR they must achieve to ensure they meet the minimum ATAR admission requirements.
Increasingly, universities are making offers outside the main round of admissions. Unfortunately, ‘early’ and ‘late’ offers that take place outside the main round are often not included in the published information on ATARs. This reduces the transparency of admissions. To help ensure clarity, reported ATAR outcomes should be those that prevail at the conclusion of all offer rounds.
In addition, providers often publish details about a variety of bonus point schemes in different locations. For instance, information on equity points is often published in one place, and subject bonus information in another. Moreover, so-called bonus point ‘calculators’ may include some types of bonus points, but not others. Standardisation is necessary. Information should be provided at a single location. The Panel strongly recommends the adoption of consistent templates for admissions information, both by institution and by course or study area. These would make accessible a wide range of comparable information on the admission pathways available to prospective students. Such templates would make decision-making easier. At the moment there is uncertainty for many prospective students.
At the same time, prospective students need to understand where opportunities exist to gain access to higher education on the basis of alternative pathways. They need to know whether or not their ATAR will still be a consideration and how providers make their selection decisions. At present, there is often confusion over whether ATAR ranks are the only basis of admission, whether they are just one factor taken into account, or whether they are irrelevant. There is evidence that some students would have been accepted into the courses they preferred if they had known exactly how a provider’s ATAR bonus point schemes operated or if they had been aware that there were alternative pathways. This is inequitable.
R 3
Common language around admissions processes should be adopted by all higher education providers.
R 4
For each course, the provider should publish information that clearly identifies the basis for determining admission to the course, including whether admission is on the basis of ATAR or an alternative pathway.
R 5
Where admission to a course is determined in whole or part on the basis of an individual’s ATAR, the provider should publish information that identifies clearly the minimum ATAR admission requirements for the course and the provider’s bonus points arrangements. ATAR acceptance outcomes or thresholds should be reported at the completion of all offer rounds.
National consistency and accessibility of information about higher education admissions must be improved. As a way of achieving this, the Panel carefully considered the benefits of developing a single national tertiary admissions centre. The state and territory TACs have a wealth of course information, strong connections with the providers they service, and their processes reflect the diverse state school systems in which they operate.
Significant elements of the TAC role are necessarily tailored to particular jurisdiction or provider requirements. However, much of their work in accepting applications and issuing offers of higher education places is generic and open to streamlining or the application of more common approaches. This would be particularly valuable for students contemplating whether to undertake higher education study outside their state of residence.
The Panel heard evidence on the difficulties faced by students who apply to a higher education provider in another state. It believes further work is necessary to simplify the cross-border application experience for prospective higher education students. While most students choose to study in the state or territory of residence, increasing numbers are looking further afield to pursue their academic ambitions. They need to have their task made easier.
There was limited support for the concept of a national TAC during the consultation process. It is also the case that many non-university higher education providers do not currently utilise TAC services. Consequently, the Panel decided not to recommend establishing a national TAC at this stage. However, the Panel recognises that there would be value in TACs working cooperatively to improve consistency in admission application processes and the information they publish. Consistent use of language and more streamlined access to cross-jurisdictional applications for both students and providers would improve national consistency of admissions processes and enhance the comparability of offerings on a national basis.
More cooperation, consistency and integration between the TACs, particularly on cross border applications, would also better reflect that there is a national higher education policy and funding framework. Certainly, it would improve the student experience for applications across jurisdictional boundaries.
If greater collaboration is unsuccessful in achieving such outcomes, further consideration should be given to establishing a national TAC in the future. Other options worth examining include: • developing a single national application form or online tool for Australian higher education that could capture all of the information that providers might take into account in selecting a student for admission (such as ATAR, workplace experience, vocational education certification, higher education achievements, community engagement, and equity criteria) • enhancing the capacity to redirect cross-border preferences or applications to the relevant TAC without levying an additional application fee • simplifying the process for providers to opt in to accessing cross-border student preferences. 
In the absence of a national TAC, there remains a need to centralise information for prospective students. Rather than having to peruse admissions processes on each individual provider’s website, presented in a variety of forms, it would be best to have key comparative information available in a standard format on a single platform. More detailed information could then be accessed for each provider separately. 
With this in mind, the Panel strongly recommends establishing a national higher education admissions information platform which should include information on: • each provider’s admissions policies, application pathways and processes • study area requirements, including academic prerequisites, ATAR thresholds, additional requirements and assessment criteria • data on the student cohort admitted in recent years, including the entry pathways taken • links to other relevant information, particularly the Quality Indicators for Learning and Teaching (QILT) performance data, Tertiary Education Quality and Standards Agency (TEQSA) national register, TAC application portals, and provider admissions policies and processes.
R 6
Tertiary admission centres (TACs) should work together to develop consistent language and reporting around admissions processes, and to streamline cross-jurisdictional application processes.
R 7
A national higher education admissions information platform should be established to provide a single point of entry for information about higher education admissions policies and processes across all registered providers.
The following three recommendations, which propose standardised institution and study area templates, are intended to improve the comparability of key information available from higher education providers about their admissions processes. It needs to be emphasised that most providers or TACs already publish the key information that the templates would require in some form. Consequently, reporting is unlikely to place a significant additional regulatory burden.
The proposed institution level template would contain providers’ admissions policies and processes, and would be available on the national higher education admissions information platform. The template, which is adapted from the current approach taken by the New South Wales University Admissions Centre (UAC), is set out at Appendix A1. An example, with mocked-up information, is provided at Appendix A2. The Panel believes that the admission information for each institution should encompass:
• the general admissions philosophy which underpins the provider’s overarching educational mission, including institutional guidelines 
• admission requirements, incorporating the full range of admission pathways available, how students may access or apply for them and how they will be assessed 
• the criteria for any ATAR bonus points and the maximum number of bonus points that can be applied 
• the availability of early entry schemes, such as schools recommendation schemes 
• the proportion of domestic and international students 
• equity scholarships information • special consideration schemes 
• information for Aboriginal and Torres Strait Islander Australians 
• information on bridging courses 
• courses available by direct application 
• enrolment information 
• financial assistance information 
• accommodation information 
• student and campus services information 
• appeals and grievances information 
• where to get further information at the provider level, including course or study area information.
In preparing this information, the needs of all relevant student cohorts should be considered. Institutions should consider the interests of mature age students, those currently enrolled in vocational education and training and higher education, and professionals in the workforce not currently participating in formal education.
A proposed template for information about the specific admission requirements for a course or area of study within an institution is provided at Appendix B1. A mocked-up example is presented at Appendix B2. In order to enhance comparability the Panel suggests that, for the purposes of a national admissions information platform, this template should adopt the same study area definitions used for the QILT surveys and website, to enable direct comparability of admissions and performance information.
The study area admissions information template should encompass: • an admissions statement relevant to the area of study, including information on work based learning, internships, work placements and graduate career pathways • a profile of admission pathways available for each area of study, including both the proportion of students anticipated to enter via the various routes and the proportion of students who entered via the various pathways in the previous year • a link to the provider’s ATAR and bonus points arrangements, including information for the previous two years at the conclusion of all entry rounds • course costs • where to access further course-specific information.
The Panel considers that this represents the minimum level of comparative information that needs to be provided. Of course, individual providers and TACs are encouraged to supplement this information with additional course specific details, particularly where admission requirements vary significantly within an area of study. Many universities already do so.
For those recent secondary students selected on the basis of their ATAR, the proposed template requires the publication of information about the previous year’s admission outcomes. This should include, for each area of study, at the conclusion of all rounds: • the minimum ATAR required to be admitted (including the impact of any bonus points) • the maximum number of bonus points allowable • the percentage of domestic students admitted with bonus points • the ATAR ranges for each study area in previous years, including the 25th percentile, median, and 75th percentile. The proposed study area template is adapted from models suggested by Universities Australia and the Council of Private Higher Education in their submissions to the Panel’s consultation process.
From a student’s point of view, it is important that standardised information is also easily comparable. The national admissions information platform should enable prospective students to search a number of providers and compare their admissions information. A mocked-up example of information in a comparable format is at Appendix C.
R 8
A template should be adopted by higher education providers to publish institution level information in a standardised format about their admissions processes, which would be made available to prospective students on the national higher education admissions information platform.
R 9
A template should be adopted for higher education providers to publish study area information in a standardised format about their admissions processes, which would be available to prospective students on the national higher education admissions information platform.
R 10
The national higher education admissions information platform should be designed to enable direct comparison of information on admissions requirements and data on previous years’ admission outcomes.
The following two recommendations are intended to ensure that higher education providers can be held answerable for the information they publish about their admissions policies. They are intended to ensure that all providers meet their obligations under the Higher Education Standards Framework.
The key mechanism to ensure providers are held to account for the accuracy of the information they provide should be the national regulator, TEQSA. Following discussions with higher education providers, TEQSA should document and communicate the types of evidence it considers would demonstrate compliance with the admissions transparency requirements of the Higher Education Standards Framework.
TEQSA should work with higher education providers to assist them to meet their reporting requirements. TEQSA already provides a range of Guidance Notes on the Higher Education Standards Framework. A further note outlining best practice in ensuring transparent information on admissions processes (and TEQSA’s monitoring of minimum requirements) should be developed.
R 11
TEQSA should have an active role in monitoring compliance with guidance to the sector on transparency in higher education admissions, complementing the regular cycle of assessing applications for provider re-registration.
R 12
TEQSA should draft a Guidance Note to providers, canvassing best practice in providing clear information on admissions processes.
The Panel’s recommendations on reporting are intended to be as simple to use as possible. However, users may benefit from assistance on how best to harness the available information for decision-making purposes, particularly in the early years of implementation. The following recommendation is intended to assist students, parents, teachers and career advisors develop the ability to navigate higher education admissions policies and processes.
R 13 
There should be an online guide to explain higher education admissions information and how to use the national higher education admissions information platform more effectively.
Issues for further consideration
A number of other related concerns were raised during the Panel’s consultations. These matters were seen to impact on the transparency, efficiency and effectiveness of higher education admissions. The Panel considers the following issues need further consideration.
Student success, completion and attrition rates
Admission processes are important. However, it is equally necessary that students accepted into higher education have the capacity and receive the support necessary to ensure that they can benefit from their experience. The Panel is of the view that a further review is needed on the extent to which students drop out of higher education, their propensity to change courses or providers, and the likelihood that they will complete their chosen course.
Higher education providers are required to ensure that only students who have capacity to complete a course are admitted. For providers with higher attrition rates, the question arises as to whether this expectation is being met; and/or whether admitted students are being provided with the necessary support to take advantage of their opportunity.
Recent media reports have claimed certain providers’ attrition rates are symptomatic of poor admissions standards and processes, or that the lower a student’s ATAR, the greater the risk of non-completion. Evidence suggests that the problem is far more complex, with attrition correlated to the interconnected issues of intensity of study and mode of attendance, and the need to undertake paid employment while studying. This important debate needs to be better informed.
The Panel heard evidence that, while some providers with a significant proportion of students from disadvantaged backgrounds appear to do well at supporting high levels of unit and course completion, there are significant differences in outcomes across the sector as a whole. The specific approaches or interventions which support higher levels of success for such students are not immediately identifiable. The Panel considers that further research is required to build evidence on what factors lead to high success rates and minimise attrition rates among different types of students. In terms of public policy, this is a matter of priority.
R 14 
Further consideration should be given to assessing the factors and approaches that contribute to student success, completion and attrition rates in higher education.
The need for improved career education in schools and higher education providers The Panel came to recognise that, while higher education admissions processes are becoming more complex, career education support in schools and within higher education providers appears to be decreasing. As a consequence, students (and their parents and teachers) find it harder to make fully informed decisions.
A number of stakeholders noted the importance of career education in supporting students to choose their senior secondary school subjects or higher education courses. Without such support, students – particularly those who are the first in their family to seek entry to higher education – find it more difficult to understand ATAR requirements or access non-ATAR entry pathways. Schools, education systems and higher education providers could all usefully improve the focus on career development approaches. Students need support to help them effectively match their interests, ambition and capabilities to appropriate study and career pathways.
As an immediate first step, consideration should be given to the provision of online training which would help prospective students (and, in particular, their teachers) to understand how to use the comparative information templates that the Panel recommends.
 The Panel concludes
Admissions information needs to be designed to help prospective students make the best decisions for their future. The Panel considers that national consistency in the presentation and comparability of information about higher education admissions is an essential first step towards providing them with fairer, more inclusive admissions processes. The increasing variety of admission pathways is confusing for schools, parents and students – particularly those from disadvantaged backgrounds, or whose families have previously had little engagement with higher education. They need to understand clearly what requirements are necessary to gain entry to a higher education course and how to compare alternative providers and choose between different fields of study. They need to exercise informed choice in an increasingly competitive and diverse higher education sector. Greater community understanding of how admissions processes work will also help inform media commentary and public debate on how students gain access to higher education, in a demand-driven system.

Pharma Payola

'All Gifts Large and Small: Toward an Understanding of the Ethics of Pharmaceutical Industry Gift-Giving' by Dana Katz, Arthur L. Caplan and Jon F. Merz in (2010) 10(10) The American Journal of Bioethics 11-17 comments
Much attention has been focused in recent years on the ethical acceptability of physicians receiving gifts from drug companies. Professional guidelines recognize industry gifts as a conflict of interest and establish thresholds prohibiting the exchange of large gifts while expressly allowing for the exchange of small gifts such as pens, note pads, and coffee. Considerable evidence from the social sciences suggests that gifts of negligible value can influence the behavior of the recipient in ways the recipient does not always realize. Policies and guidelines that rely on arbitrary value limits for gift-giving or receipt should be reevaluated.
The authors state
In the 1980s the large cash payments and lavish gifts some physicians received from drug companies captured public attention (U.S. Senate. 1990). There was concern that physician integrity was falling victim to commercial influence in ways that were costly to the healthcare system in terms of both dollars and public trust. Congressional hearings on pharmaceutical promotion led the American Medical Association (AMA) and the Pharmaceutical Research and Manufacturers of America (PhRMA) to adopt voluntary guidelines prohibiting the exchange of cash payments and gifts valued over $100 (Department of Health and Human Services 1991). Under these guidelines inexpensive gifts such as pens and notepads were expressly allowed providing they “relate” to medical practice. The office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), in a set of studies examining marketing practices, questioned the extent to which those guidelines were being enforced and suggested that allowing small gifts might be contrary to the public interest (DHHS 1991).
Numerous studies of pharmaceutical marketing practices were performed during the 1990s. These studies suggest that the pharmaceutical industry exercised considerable influence over physician prescribing practices and formulary composition (Wazana 2000). The $12 billion spent annually by the industry on gifts and payments to physicians drew attention from the DHHS OIG and a large-scale study of marketing practices was budgeted for 2002. The study was to examine whether all drug company gifts present an inherent conflict of interest or even a violation of federal antikickback legislation (DHHS 2001). However, it was subsequently deleted from the OIG's research agenda (Robert Brown, personal communication, 2003).
In 2001 the AMA and PhRMA responded to the government's renewed interest in gift-giving by launching a joint educational campaign. Nine large pharmaceutical companies contributed a total of $675,000, and the AMA contributed $50,000 plus staff time in an effort to remind physicians, medical students, and pharmaceutical sales representatives of the importance of following the 1990 guidelines (Okie 2001). During this time the American College of Physicians and the American Society of Internal Medicine issued a position paper that recognized the potential for small gifts to compromise clinical judgment but stopped short of calling for the practice to cease (Coyle 2002).
In May 2002 PhRMA issued a new, voluntary code for self-regulation of industry interactions with physicians. The code continues to allow for the exchange of gifts valued less than $100 but puts “items of minimal value” in their own category. Whereas gifts under $100 can be given only “on occasion” and must primarily benefit patients, gifts of minimal value, including calendars and stress dolls, should benefit medical practice and can be given with any frequency. Snacks and modest meals are permissible so long as they are consumed while listening to the sales pitch of a company representative (PhRMA 2002).
No studies have been conducted specifically on the effect of de minimis gifts on physician prescribing practices. This might be due in part to the presumption that the size or value of a gift correlates with its potential to influence the recipient. Thus the larger and more valuable the gift, the weightier are the ethical concerns raised about the industry's influence over physicians. Until recently de minimis gifts generated little moral or regulatory concern.
Today, groups such as Public Citizen (Tanner 2001), Physicians for a National Health Program (http://www.pnhp.org), American Medical Student Association (Romano 2002) and No Free Lunch (http://nofreelunch.org) oppose all industry gift-giving on the belief that the practice conflicts with the professional duties of physicians. The OIG has also issued draft compliance guidelines that suggest industry gift-giving might violate federal antikickback laws in that the gifts are given to influence prescriptions. From the government's perspective this is particularly problematic for patients receiving federal health coverage (DHHS 2002). ...
In calling for practical responses the authors comment
Given that small gift-giving can influence clinical judgment in ways that conflict with physicians’ fiduciary responsibilities, the question of how best to respond to the problem still remains. Changes in the standards of acceptable professional conduct and pharmaceutical marketing practices might be in order, ranging from disclosure of gift exchange to elimination of the practice altogether.
In June 2002 Vermont enacted legislation (Vt. Acts No. 127 [2001–2002]) that requires pharmaceutical companies to disclose gifts worth more than $25 to the state pharmacy board. According to “Review and Outlook: Green Mountain Drugs,” published in the Wall Street Journal, 20 June 2002, Wisconsin, New York, and Maine are considering similar legislation. If gifts of all sizes are disclosed to federal or state regulators, valuable research can be conducted to determine the extent to which gift acceptance is associated with physicians’ prescribing practices. Disclosure policies can also take the form of requiring physicians to inform patients receiving prescriptions that they have received gifts from the drug's manufacturer. Considering the extent to which physicians’ offices are adorned with drug company trinkets, it is likely that patients are already aware of the de minimis gifts physicians receive. What they might not know is that these inexpensive penlights and notepads might actually undermine physician objectivity in ways that clash with their own medical and financial interests. Full disclosure, therefore, could also require physicians to inform patients of this potential bias. Such disclosure, however, would not neutralize the bias, nor would it assist patients who have little choice but to rely on physicians’ judgments and little or no ability to combat the bias.
One obvious and compelling policy option in response to the evidence of the power of small gifts is to restrict or eliminate gift-giving or gift acceptance. Restrictions could take many forms, such as limiting the frequency of or settings for gift-giving, for example, to conferences or major holidays. Enforcement of restrictions or bans could take various forms, including FDA regulation or ties to state medical licensure through state antikickback and bribery laws. In light of the evidence that all gifts influence behavior, physicians and pharmaceutical firms could be sanctioned now for small gift exchange under current antikickback laws (Bulleit and Krause 1999). The federal government has already indicated that gift-giving practices may be criminalized because of the presumable effects on governmental drug expenditures (DHHS 2002).
On the other hand, some might argue that the regulation of gift-giving in medicine should be no stricter than it is in any other business context. In response we ask whether physicians aspire to be viewed more like corporate salespeople or like professionals beholden to the public trust. Most journalists are not permitted to accept gifts from information sources, and university professors are prohibited from accepting gifts from students before grades are issued . Judges, National Basketball Association referees, and Major League Baseball umpires are all prohibited from accepting gifts of any size for any occasion from anyone with an interest in the outcomes of their judgments. Similarly, medical professionals ought to step up to the plate. When acting as patient advocates and trusted sources of information, physicians should carry out their professional activities in a way that minimizes the intrusion of avoidable conflicting interests.
We note that psychology research suggests that any imposed restrictions on physicians’ professional behavior are likely to be ill-received and viewed as an affront to their personal integrity and professional freedom. Because people tend to desire freedoms more when faced with the threat of losing them (Worchell and Arnold 1973; Cialdini 1993), restrictions would not only irritate physicians who (over)value drug company gifts, but physicians who have historically been indifferent to them might find themselves valuing the gifts more. The exaggerated desire for restricted behavior increases when the restrictions apply to one group and not another (Cialdini 1993). Therefore, if physicians liken themselves to business professionals, restrictions on gift exchange would be viewed as unfair because medicine would seem the only sector of U.S. business prohibited from exchanging small gifts. However, regulations barring the use of marketing wares would not, in actuality, regulate physician practices but only the sales practices of the pharmaceutical industry. To our minds, a ban on industry gift-giving would be inherently fair in that it would put all firms, including generics, on a level playing field.
Nonetheless, we recognize that gift-giving is the foundation of human interaction. If it engenders valuable social obligations that are definitional of relationships such as friendship and camaraderie, then regulating the gift relationship might compromise desirable, arguably essential, social relations. Government regulations might indeed be too crude and too heavy-handed an approach for micromanaging the fine lines between geniality and commercial inducement. For example, company-sponsored gifts to physicians clearly fall within the purview of government interest because they are ostensibly given for commercial purposes. In contrast, a true gift (one that is not subsidized by a company) that is given to a physician by a sales representative with whom a preexisting, interpersonal relationship or friendship is shared (not merely a professional acquaintance or courtesy) should generally fall outside the purview of government interest and regulation. It is the gray area in between that presents challenges with respect to the government's ability to enforce restrictions on gift-giving while refraining from dictating the boundaries of social interaction.
We believe that as a general rule society ought not regulate the exchange of small tokens of courtesy in business or other social settings. Medicine, however, is different. Limits placed upon pharmaceutical companies’ use of marketing wares within this context would not be unfair but rather both appropriate and enforceable. The drug industry is highly regulated, and restrictions on marketing practices are already in place. If the distribution of marketing wares were prohibited, associated expenses would no longer be deductible as a cost of business, and the practices would cease.
The body of evidence reviewed above suggests that guidelines aimed at preserving professional objectivity by limiting the size of gifts physicians receive or companies distribute have thus far been shortsighted. The practice of small gift-giving occurs in an environment where physicians interact heavily with industry sales representatives, have their continuing-education courses funded by industry, receive information from industry-funded studies, are deluged with print advertising, and see patients targeted by direct-to-consumer advertising. In an environment in which industry plays such a prominent role, it might be difficult to determine, even with rigorous research methods, which industry tactics wield the most influence and impossible to say with confidence that if the practice of small gift-giving were to cease, prescribing practices would change.
That said, from a moral and regulatory perspective, policies that determine the acceptability of a gift according to its size are unsound. The power of gift-giving, both large and small, must be acknowledged if appropriate regulatory policies are to be created and enforced.


'The Fruit of the Poisonous Tree in IP Law' by Mark A. Lemley comments 
If a police officer searches my home illegally and finds evidence of a crime there, the criminal law suppresses not only that evidence, but evidence derived from the search that was not itself found illegally. This doctrine is known as the “fruit of the poisonous tree.” The animating principle of the fruit of the poisonous tree doctrine is but-for causation: if you had not violated the law, you wouldn’t have found the evidence, and so you wouldn’t have followed whatever investigative path was triggered by the finding of that evidence. The newly discovered evidence – the fruit – is tainted by the poison of the illegal search.
Civil law also concerns itself with chains of causation, both in determining liability and in ordering relief. But civil does not apply the logic of the fruit of the poisonous tree to chase down every consequence of a wrong. Tort law, for example, requires proof not only of but-for causation but also that the defendant was a sufficiently proximate cause of the injury. Plaintiffs can recover for some (but not all) unforeseeable consequences. And while remedies law generally tries to return plaintiffs to their rightful position, compensating them for injuries and giving them what they could have expected to receive absent the wrong, it also limits both who can obtain compensation and the sort of thing for which they can be compensated.
Intellectual property (IP) regimes in particular struggle with causation issues in one important set of cases: defendants who infringe an in IP right in the course of making a product that does not itself infringe that right. Suppose, for instance, that I copy your song onto my laptop in order to make my own song that samples yours. Depending on how much I use, the final song I release may not infringe your copyright, but intermediate versions of my song might, as might the original copy. Or suppose I use a patented microscope without permission to make a scientific discovery that turns into a new drug. The drug doesn’t infringe the patent, which is, after all, on a microscope, not a chemical. But the act of research might infringe. Or I might steal your product to figure out how it works, not so that I can copy it but so I can make a one that works a different way. My final product doesn’t incorporate your secret, but I used my ill-gotten knowledge of your product to get there.
IP law is all over the map in dealing with such cases. Some IP regimes, like trade secret law, apply the fruit of the poisonous tree logic, allowing the plaintiff to recover not only for the profits the defendant made from secrets she actually stole and used but also for the profits of any product that resulted from the use of those secrets. It will also grant a “head-start” injunction against even non-infringing products. Copyright law, by contrast, does not permit a plaintiff either to obtain an injunction or to recover damages against non-infringing final products. Patent law is somewhere in between, refusing to enjoin non-infringing products but leaving the door open to reach-through royalty claims.
It is not clear that these differences reflect any considered judgment about when IP law should prevent or punish the making and sale of non-infringing products tainted by infringement in the process of creation. In this article, I offer a cohesive way to think about the fruit of the poisonous tree in IP law. Whether IP remedies should extend to tainted but non-infringing products should be a function of the mental state of the infringer, the likelihood that infringement will be detected, and the contribution made by the final, non-infringing product. Balancing those three factors won’t necessarily lead all IP regimes to treat the fruit of the poisonous tree in the same way. But it does both explain and suggest some needed reforms to the current legal rules.

Relational Privacy

'Relational Privacy: Surveillance, Common Knowledge, and Coordination' by Robert H. Sloan and Richard Warner  comments
Contemporary surveillance is constant, pervasive, and invasive. Many contend that this creates a current, society-wide threat to the self. However, there are many cases in which surveillance, if appropriately constrained, appears to promote self-realization, at least for a range of social subgroups. So where is the society-wide threat? We contend that surveillance creates such a threat by undermining relational privacy. Relational privacy consists in people voluntarily limiting their knowledge of each other as they interact in a wide variety of social and commercial roles. The group coordination ensures group — and hence “relational” — control over the selective flow of information. Adequate self-realization requires an adequate degree of coordination-enabled control. Surveillance undermines that control. The key to seeing how this happens across society as a whole lies in seeing how group coordination depends on a special form of knowledge — common knowledge, “the recursive belief state in which A knows X, B knows X, A knows that B knows X, B knows that A knows X, ad infinitum.” People succeed in coordinating their efforts at voluntary restraint because they know they will coordinate appropriately, they know they know, know they know they know, and so on. When surveillance undermines such knowledge, it strikes at relational privacy’s foundation and thereby threatens self-realization.

NZ data breach

From the New Zealand Privacy Commissioner's site ...
If you’re one of the thousands of New Zealand Nurses Organisation (NZNO) members whose names and email addresses were accidentally disclosed to a criminal third party, you might be wondering what you can do about it. The first thing you need to do is to try and understand what happened and what the risks are to you.
The NZNO yesterday notified our Office - as we would expect - that it had fallen victim to a spear phishing scam. An NZNO staff member received an email purportedly from its chief executive asking for names and contact details of all its members. Unfortunately, these details were sent to that email address before it became clear the request was fraudulent. The information lost consisted of the first names, surnames and the email addresses of all its members.
NZNO advised us that its IT team attempted to retrieve the email but it was too late. It also attempted to contact the email address provider, Yahoo. The organisation reported the incident to Police and has emailed its members to inform them about the breach.
The organisation also notified the Department of Internal Affairs and IDCare, an NGO that provides advice to victims of identity theft. NZNO has confirmed the only information breached was members’ names and email addresses. No financial or other personal information was disclosed.


The Minister for Justice has issued a media release about the biometric Face Verification Service, aka the big rock candy mountain for national security bureaucrats and consultants.

The media release states
New Face Verification Service to tackle identity crime
Today I announce that the first phase of Australia’s new biometric Face Verification Service (FVS) is now operational, providing the Department of Foreign Affairs and Trade and the Australian Federal Police access to citizenship images held by the Department of Immigration and Border Protection.
Other types of images such as visa, passport and driver licence photos will be added over time, with access expanded to other government agencies.
The FVS is not a new database but a secure means of sharing images between existing agency systems. The ability to match a person’s photo against an image on one of their government records, to verify their identity and to share these images between agencies, will strengthen identity checking processes.
While existing measures such as the Document Verification Service (DVS) are helping to prevent the use of fake identity documents, criminals are now producing high quality fraudulent identity documents. These documents contain personal information stolen from innocent and unknowing victims, but with someone else’s photo – documents that would pass a DVS check.
Preventing this type of fraud can be assisted by greater use of biometrics, such as the FVS.
The Government is currently in negotiations with the states and territories to provide access to driver licence images via the FVS.
This will further help to prevent organised crime and terrorists from using fraudulent identities, while protecting everyday Australians from identity theft and making it easier to prove their identities when transacting with government online.
In addition a Face Identification Service (FIS) is expected to commence in 2017 to determine the identity of unknown persons. It will be used for investigations of more serious offences, with access restricted to a limited number of users in specialist areas.
Identity fraud is one of the most common crimes in Australia, costing around $2.2 billion per year according to the latest Identity Crime and Misuse in Australia 2016 report which I am also releasing today.
The report reveals that Australians are falling victim to identity criminals at a growing rate, with around 1 in 20 people experiencing financial losses resulting from identity crime each year.
The link between fraudulent identities and organised crime was clearly demonstrated by a recent multiagency data matching exercise, led by the Fraud and Anti-Corruption Centre hosted within the Australian Federal Police.
Project Birrie examined how 1,700 fraudulent identity items seized in one police operation were used to commit other crimes. These fraudulent identities were linked to outlaw motor cycle gang members, other high profile individuals involved in illicit drug investigations and a few individuals of interest to counter-terrorism operations. Also discovered was over $7 million in serious fraud and more than $50 million laundered offshore.
The Identity Crime and Misuse in Australia 2016 report is somewhat more nuanced.