Kantians and employment

'Labour Law and Kantian Ideas of Legality and Citizenship' (University of Leicester School of Law Research Paper No. 14-07) by Lisa Rodgers discusses

the relevance of Kantian ideas of legality and citizenship to the study of labour law. It is argued that Kantian ideas of legality have infiltrated labour law to a certain extent, but that the influence of this system has remained marginal. The sticking point has been the association of these ideas with the equality of subjects of the law, and the irrelevance of need or welfare to legal questions. Neither of these assumptions accord with the basic normative foundation of labour law. However, it is argued in this paper that the Kantian idea of citizenship provides a much more relevant foundation for labour law. This idea starts from the position of inequality of bargaining power between the parties (employers and employees), and the need to consider the position of individual subjects. It also moves beyond traditional labour law theory by insisting that the law must be involved in promoting not only distribution but also autonomy for individual employees and workers. 

Rodgers comments

It is the argument of this article that the centrality of dignity as redistribution to the functioning of labour law has undermined its effectiveness for workers. Ironically, imbuing labour law with dignity as redistribution means that it continues to have the marginal effects that dogs the application of Kantian dignity as autonomy to the labour law scheme (through contract law and employment contracts as slavery). This can be explained in the following way. The normative instinct of labour law relies on two elements: the concepts of ‘inequality of bargaining power’ and ‘labour is not a commodity’. If dignity is seen in terms of distribution there is essentially no separation between these two phenomenon: they both refer to the possibility that workers can suffer disadvantage when they ‘encounter the wheels of commerce’. This implies that labour law functions only as an instance of market constraint to protect ‘vulnerable’ workers from the worst excesses of the market. Labour law becomes concerned with worker protection rather than worker empowerment. The result (it may be argued) is a body of laws which acts only in marginal situations (where the subordinating effect of inequality of bargaining power and commodification of labour are most obvious) and provides no real challenge to market dominance or to the dominance of subordinating structures of law (contract law remains the ‘baseline’). 

Viewing dignity in economic terms may also have further undesirable effects for the subjects of labour law. It can mean that labour law deals inadequately with the dignity of workers as autonomous and principled beings. It can deny worker agency: the capacity of workers for principled action and responsibility for those actions. This influences the design of labour law and its outcomes in individual cases, and at the extreme end, can mean that laws are purposefully enacted to constrain the unprincipled and irresponsible (or ‘vexatious) action of workers seeking to enforce their rights. In the UK, the introduction of Tribunal fees for litigants on 29 July 2013 followed this reasoning. The government justified the introduction of Tribunal fees on the basis that this would help the government to allocate resources in a ‘rational’ way which ‘prevents waste through excessive or badly targeted consumption’. The government hoped that the introduction of Tribunal fees would ‘incentivise early settlements’ and ‘disincentivise unreasonable behaviour, like pursuing weak or vexatious claims’. The threat of vexatious claims was not quantified; only the increase in Tribunal claims was mentioned. There appears then to be a disproportionate view of the irresponsibility of Claimant action, repeated in the Chancellor’s claims that action was required to stop companies being ‘sued out of existence’. Indeed, the introduction of Tribunal fees is currently subject to legal challenge on the basis that it unfair for workers. 

A more detailed example of these effects in current labour law may be useful. The example selected is that of the operation of unfair dismissal law, and particular the band of reasonable responses test. Unfair dismissal law may be considered to be driven by the ‘basic normative instinct of labour law’ inherited from the classical labour law scholars: to counteract the the inequality of bargaining power between workers (employees) and their employers and the deleterious effects on workers of (capitalist) commodification. This law is also imbued with the dignity as redistribution thesis referred to by Kahn-Freund. The argument proceeds that employers have an interest in maintaining flexibility in employment relations (through dismissing employees as and when they see fit) whereas employees have an interest in maintaining a level of job security.  However as a result of the inequality of bargaining power between employer and employee, the employee cannot properly protect his/her interests through the negotiation of the contract of employment. The result is an imbalance of resources which compromises the dignity of workers. Therefore, unfair dismissal law steps in to guarantee some level of employment security for workers, and thereby to tip the balance of resources back in favour of the employee. Unfair dismissal law is also concerned to counteract the processes of commodification brought about by the subordinating processes of capitalism. It is argued that on entering employment relationships, employees trade some security for subordination. There is therefore a social pressure to ensure that there is some reallocation of resources through compensation for this personal submission and dependence. This compensation is provided by unfair dismissal law.

Rodgers concludes

Kant’s work has not been traditionally seen as very useful in the study of labour law. The focus in the legal literature has been on an analysis of the relevance of Kant’s system of legality involving three stages of right: innate right, private right and public right. This system has been particularly influential in relation to the study of private law, where the three stages have been put forward as a (new) normative foundation. Kant’s influence has therefore seeped down indirectly into the study of labour law, as labour law tends to take these private law foundations as a starting point for analysis (even though these starting points may then be criticised). A good example is the doctrine of freedom of contract which is referred to in the adjudication of employment contracts. This freedom of contract doctrine appears to fit will with Kant’s system of right and his corresponding idea of legality. However, there is a limit to the usefulness of these private law doctrines based on the Kantian system of right to the study of labour law. The foundation of these doctrines lies in the equality of legal subjects, and there is no space for any consideration of need or welfare. By contrast, when it comes to the study of labour law, the inequality of bargaining power between legal subjects appears paramount and the need or welfare of these subjects is also considered central to law. The influence of these doctrines has therefore been marginal. Furthermore, although a more in-depth reading of the Kantian scheme of right may suggest that some public interest norms can inform the adjudication of private rights, the application of these norms also provides a limited explanation for the function and operation of labour law. These norms operate only on an ad hoc basis and are vulnerable to inconsistent application and amendment. 

As a result, labour law scholars have attempted to design a system of labour law which does not rely on these private law doctrines. The starting point for this analysis has been the inequality of bargaining power between employers and employee brought about by the operation of the capitalist system. On this analysis, the role of labour law is to redistribute power (and resources) to the most vulnerable subjects: the employees. This scheme has not been without its problems. Early labour law theory relied on collective bargaining to provide support to employees (and a level of autonomy in the industrial relations system). By contrast, modern labour law has been designed around specific legal instruments rather than a system of negotiation between employers and trade unions. This has meant that the function of labour law in promoting autonomy has been neglected in favour of promoting dignity as redistribution. The corollary has been a system of law which, at times, has provided insufficient respect for the capacity of individual employees for principled action. Indeed, elements of punishment are increasingly seeping into the operation of labour law (the introduction of Tribunal fees being a good example). It is suggested in this article that in order to reimbue labour law with a sense of dignity as autonomy, a new system of theorisation is required. The starting point for this consideration, it is argued, is Kant’s theory of citizenship. This system starts from the position of an inequality of bargaining power between private individuals (in line with traditional labour law theory). Kant argues that this inequality of bargaining power can affect an individual’s (employee’s) ability to participate in the functioning of the state (he/she becomes a ‘passive’ citizen). On the Kantian scheme, passive citizenship is not just a problem for the individual but also for the state, as the state relies on the participation of citizens in the making of law. Passive citizens are not able to participate in this way. The state must therefore ensure that conditions are available for the transition from passive to ‘active’ citizenship. This active citizenship ensures the legitimacy of state function and the innate right of all individuals to autonomy. 

It is argued that this system is a useful starting point for the development of labour law. As has been mentioned, the Kantian system accords with the argument of the traditional labour law scholars that employment law must begin from the consideration of an inequality bargaining power between employees and employers. But more than that, it develops (or reaffirms) those arguments by placing those individuals not only at the heart of legal function but also at the heart of state legitimacy. The state and the law are intimately connected on this scheme. Furthermore, on Kant’s scheme, the state and the law must move beyond mere redistribution from employers to employees. The state and the law must imbue individuals with the autonomy which reflects their innate right to set their own life goals. This reinforces the legitimacy of law because all three elements of right act in conjunction. It also reinforces the legitimacy of the state because it ensures that as many individuals as possible contribute to the general will; it ensures that the state functions as a ‘union’ of a ‘multitude of human beings under the laws of right’.

Credit ADR

The Privacy Amendment (External Dispute Resolution Scheme - Transitional) Regulation 2014 amends the Privacy Regulation 2013 to provide a temporary 12 month exemption from the external dispute resolution requirement under subparagraph 21D(2)(a)(i) of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) for utilities and commercial credit providers.

Publics

'Self, Privacy, and Power: Is it All Over?' (Chicago-Kent College of Law Research Paper) by Richard Warner and Robert H. Sloan argues that

 The realization of a multifaceted self is an ideal one strives to realize. You realize such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself what others may do with your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here. Informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the realization of multifaceted selves. To understand why this is happening and to figure out how to respond, we analyze the foundations of privacy in public. 

Privacy in public consists in privacy by obscurity and privacy by voluntary restraint. Privacy by obscurity is essentially a matter of getting lost in the crowd. Privacy by voluntary restraint was perhaps first explicitly discussed by the great nineteen century sociologist, Georg Simmel. He was impressed by the fact that people voluntarily limit their knowledge of each other as interact in various social roles. Merchants and customers, students and teachers, restaurant customers and waiters, for example, typically exchange only the information necessary to their interaction in those roles and voluntarily refrain from requesting, disclosing, or otherwise discovering more. Advances in information processing have greatly reduced both privacy by obscurity and privacy by voluntary restraint. We focus on the latter. One reason is that, as privacy by obscurity declines, the need for privacy in public by voluntary restraint increases. We confine our attention to the private sector; however, given the current corporate-government surveillance partnership, constraining private information processing is an essential part of constraining governmental processing. 

Unlike privacy by obscurity, you need the cooperation of others to realize privacy by voluntary restraint. We explain the cooperation by appeal to informational norms, norms that define contextually varying permissions and restrictions on the collection, use, and distribution of information. Norm-implemented coordination is essential to privacy in public (in the form of voluntary restraint), and it is this coordination that advances in information processing and related business practices undermined. This happens in two ways. First, businesses exploit existing norms to create a debased form of "coordination" that serves their interests while eroding privacy in public. Second, technology-driven business innovation has created new forms of interaction not governed by relevant information norms. This lack of norms means the lack the coordination essential to privacy in public. As privacy in public disappears, multifaceted selves face the threat of disappearing — literally — from the scene. The solution is to establish norms that ensure sufficient privacy in public. We conclude by considering the prospects for doing so.

Breach

In the data breach of the day the Australian reports that the "names and details of thousands of university academic union members have been accidentally made public".

The breach reportedly involves "lists of names, contact details and positions" of National Tertiary Education Union members at five universities - Sydney, Western Sydney, Adelaide, Flinders and South Australia - supposedly "collated with the intention of contacting each person to solicit funds to support a campaign for the upcoming West Australian Senate election".

The Australian indicates that

The lists were made public yesterday after a computer expert who goes by the pseudonym Yeow Wan emailed the union to complain about how easy the lists were to find on a file conversion site called docupub.com. 

The same person had contacted the union in August after he had found similar lists on Google Docs that appeared to contain answers to questions in relation to upcoming university strike action.

As yet there's no statement on the NTEU site

Uptake of Internet Filters in the UK

With another bout of hissing and spitting regarding online child safety and mandatory filters about to occur in Australia I have been reading the January 2014 OFCOM report [PDF] on 'Internet safety measures Strategies of parental protection for children online', which has been cited in the usual media claims that 'children of the digital age' are more web-savvy than their parents and can therefore disable an internet filter in the time it takes dad to count the squares on a Rubik Cube.

The authors must have fun writing the report, which confides that

Parenting in the digital age, against a backdrop of continuing technical evolution, can be complex and challenging as children rapidly take up the opportunities of internet use. 

Guides for the perplexed were saying much the same thing about uptake of products from Mr Gutenberg and his peers and then about the magic box known as television.

The report goes on more usefully to state that

According to our research use of tablets has tripled this year, becoming the device of choice for 8-11s to access audio visual content and games in particular. Over six in ten 12-15s now own a smartphone and it is the most popular device for social networking among that age group. 

Children’s confident adoption of new technologies has many positive outcomes with benefits of use ranging from education, communication, social engagement and entertainment. But there are also perceived risks, particularly around internet content, and the conduct and contact risks inherent in peer to peer communication facilitated by the internet. Although the vast majority of children say that they are confident they can stay safe online the research also shows their levels of confidence have fallen slightly from previous years. The research notes some trends around unsafe behaviours, such as maintaining an open social network profile, and indicating that children are less likely to know how to block online messages from people they don’t want to hear from.  (One third of 12-15s with a social networking profile in 2013 have it set so that it can be potentially viewed by people unknown to them. This is up from 22% last year.)

The vast majority of parents say they trust their children to use the internet safely. This agreement increases with each age-group, consisting of 52% of parents of 3-4s, 72% of parents of 5-7s, 83% of parents of 8-11s and 89% of parents of 12-15s. However, parents also report having concerns about their child’s online activities. Parental concerns tend to be higher around issues identified in this report as relating to contact and conduct with around one quarter of parents concerned around cyberbullying and a similar number concerned about downloading bogus applications and viruses. 

One in five parents are concerned about who their child is in contact with and the risk of the child giving out personal information to inappropriate people. Around one sixth of parents are concerned about the issues identified in this report as content issues which their child might encounter online. 

That said, the vast majority of parents feel that the benefits of the internet outweigh the risks and around half feel they know enough to help their children stay safe online. Overall, half of parents of 5-15s agree that their child knows more about the internet than they do but this also varies by the age of the child – from 14% of parents of 3-4s up to 63% of parents of 12-15s.

The document features the following 'main conclusions' -

Parental strategies are a combination of mediation and controls 

The quantitative findings from the 2013 Children and Parents: Media use and attitudes report study showed that the vast majority of parents are actively engaged in mediating their child’s online activity in some way. Most use a combination of approaches including:

• Regularly talking to their children about staying safe online. Almost eight in ten parents say they have talked to their child about online safety with 45% doing so at least monthly. 

• Having rules relating to parental supervision. Over half of parents have set rules around supervision of the internet which include regularly checking what children are doing online or only using when supervised. 

• Mediation through technical tools. Over six in ten parents use some kind of technical mediation such as parental controls, safe search settings, You Tube safety Mode, time-limiting software or PIN/Passwords set on broadcaster’s websites. 

Overall, 85% of parents with a child that goes online at home via a PC/laptop or netbook use at least one of these approaches with 20% using all three, 35% using two and 30% using only one. Fifteen per cent of parents use none of these mediation techniques.  

A 2012 qualitative study into parents’ views on parental controls suggested that the approach parents took to mediating the potential risks to their children in the online sphere was generally consistent with their overall parenting style. Respondents typically spoke of their aim to balance rules and boundaries with trust and freedom. Instilling the right values and habits in their children was seen to be critical. 

Parents’ use of a range of technical tools and other safety measures on sites regularly used by children 

However … technical tools also play a part in many parents’ online parenting strategies with six in ten parents of children who use a PC/laptop/netbook to go online at home using some form of technical mediation. These include:

• 43% of parents of online 5-15s and 40% of parents of 3-4s report having parental controls as defined above6 in place on a PC, laptop or netbook. A majority of parents with parental controls set on their device agree strongly that these controls are effective and that their child is safer as a result. 

• Safe search setting: Four in ten parents of online 5-15s say they use safe search settings on search engine websites. 

• Time-limiting software: One in ten have software installed to limit the amount of time a child can spend online. 

• YouTube Safety Mode: Two in ten parents have the Safety Mode set. This increases to three in ten parents of children who actually visit the YouTube website through a PC/laptop or netbook. 

• Content provider guidance: One in three online children now watch television content via UK television broadcasters’ websites. Around one in four of the parents who are aware of the guidance labels have set up a PIN or password to be used before viewing programmes that have a guidance label (24% of the 67% aware of guidance labels). 

Social media monitoring also plays a role, with parental awareness of the minimum age requirement for Facebook having increased among parents whose child has a profile on this site and 73% of parents check their child’s social networking site activity. In addition, figures from the 2012 study shows that where the parent and the child have a profile on the same website, 97% are ‘friends’. 

Non take-up 

Over half of parents do not use parental controls in the form defined by this report, i.e. those provided by their ISP , their computer’s operating system or programmes installed or downloaded by someone in their household. 

The main reasons for non take-up of parental controls, as identified in the 2013 quantitative survey, are a combination of trusting and supervising the child – depending on the age of the child. 

The 2012 qualitative study also showed that a lack of awareness and understanding of parental controls appeared to be a key reason for non-take up. The study suggests that there is a perception, particularly amongst parents with lower levels of confidence about technology, that the process of selecting and installing parental controls was complex and time-consuming. 

The qualitative findings also suggested the potential value of parental controls did not appear to be front-of-mind on a daily basis for parents. In the absence of a specific trigger many parents without parental controls admitted ‘not getting around’ to considering them. Their reported focus was more on the issues and problems that they were regularly experiencing with their children’s day-to-day internet use (e.g. children spending too much time online) rather than around the risks which few parents had any direct experience of (e.g. of physical and psychological harm related to exposure). 

In addition, even amongst those who had installed parental controls, many had not given them much further thought and protections may have become outdated as a result of this lack of continuing engagement. 

Overall, parental controls were viewed as a supplement to, rather than replacement for, hands-on parenting. Supervision and other forms of parental mediation were felt still to be needed to manage all of the day-to-day issues their children faced, including risks emanating from children’s internet usage.

The report has the following structure

Part 1 The Context of the Internet 

Section 2 – Opportunities, risks and challenges 

Takes an overview of children’s access to the open internet as an educational resource, as a platform for communication and creativity, but also as a source of distinct risks around content, contact and conduct, with specific regulatory challenges. 

Section 3 - Parental mediation: managing the risks to children 

Describes the tactics of parents, carers and educators in guiding and informing children’s behaviour through education and advice, mediation and rules as critical aspects of child protection online. 

Section 4 - Safety mechanisms and the role of industry 

Describes in detail many of the tools and mechanisms offered to parents to protect their children online and notes some of the issues around such tools. It does so within a simplified model of the internet from content origination to content reception by the user and gives an overview of the status of internet intermediaries like ISPs.

Part 2 The Research 

Section 5 – Children and the internet: use and concerns 

Sets the context for mediation by looking at key changes in children’s use of the internet, their likes and dislikes compared to the online concerns of parents. 

Section 6 - Parental mediation strategies: take -up, awareness of and confidence of parents in relation to parental controls 

Provides both quantitative figures and qualitative insights to create an in-depth picture of the broad range of online mediation strategies employed by parents and their levels of confidence about their ability to keep their children safe online. 

Section 7 - Safety measures on sites regularly visited by children 

Looks at the research available regarding parental mediation of websites regularly visited by children, including search engines, YouTube and social networking sites. 

Section 8 - Why parents choose not to apply parental control tools 

Looks at the various reasons why some parents choose not to install parental controls.

A UN Privacy Agency?

'Three Scenarios for International Governance of Data Privacy: Towards an International Data Privacy Organization, Preferably a UN Agency?' by Paul De Hert and Vagelis Papakonstantinou in (2013) 9(2) I/S: A Journal of Law & Policy 271 argues that

 Data privacy regulation has reached a crossroads: while three out of the four intergovernmental organizations that have released relevant regulations (the OECD, the Council of Europe, and the EU) are amending their respective texts, each one is implementing its own agenda. The Internet and cloud computing are making the need for international governance more evident than ever. Three scenarios may be foreseen: 1) the status quo remains, and technology intervenes to address public concerns; 2) the EU General Data Protection Regulation, which is expected to replace the EU Data Protection Directive by mid-2014, comes into effect and then goes on to set the international data privacy standard; or, 3) as suggested in this paper, an international data privacy organization, preferably a UN agency, is established to promote data privacy issues and warrant international data privacy governance, similar to how the World Intellectual Property Organization advances the purposes of intellectual property protection. The establishment of an international organization does not necessarily mean that a new, comprehensive international data privacy framework also needs to be introduced (at least at this stage). Instead, international instruments already in effect could be used. The globally accepted but perhaps under-used 1990 UN Guidelines for the Regulation of Computerized Personal Data Files are an obvious choice.

The authors state that

Data privacy, since the appearance of the first relevant regulatory texts, may be listed among those few and relatively new fields of law that were developed across national borders. Within a single decade, beginning in the late 1960s, data privacy laws that implemented similar approaches appeared in several countries around the world. This informal transborder development was quickly followed by formal international instruments. In the early 1980s, when many countries that processed personal information had already introduced relevant legislation or were seriously considering doing so in the near future, international organizations entered the scene. The regulatory instruments they introduced attempted to converge the existing approaches that had, until that point, been implemented on the national level. These instruments became the common point of reference for subsequent new or amended national data privacy norms.

The international element that accompanied data privacy since its inception should be attributed—like the development of data protection as a separate field of law—to a single reason: the emergence of information technology. Until the late sixties, when the first data privacy laws were introduced, privacy issues were well identified (the now-famous Warren/Brandeis paper of 18901 was written when journalistic photography emerged) but did not lead to any specialized legislation on how to treat personal information. Instead, international treaties and only some national jurisdictions made reference to a general right to privacy. The exponential increase of the data processing ability computers provided to governments that could afford them necessitated the release of the first data privacy acts. The acts’ provisions were aimed at regulating the way such automated and mass processing was to take place; a general reference to the right to privacy was no longer considered sufficient to protect individual rights.

During the years that followed, data protection, (at least in Europe) developed, gaining, independence from its origins: the general right to privacy. However, the link between data privacy and information technology developments remained unbroken, and was actually further enforced. In fact, information technology developments form one of the two external factors, along with political developments, such as 9/11 and its aftermath, that set the international data privacy agenda. Information technology converged with telecommunications, creating the current interconnected and internationalized environment of personal data processing, the Internet. Processing of personal information is no longer performed locally, or even within well-defined physical borders. The original “transborder flows of personal data,” which by definition included transmission of data from one jurisdiction to another, were soon replaced by borderless continuous personal data processing, in which personal data are processed somewhere in the “cloud,” that is, in indistinguishable server-farms installed around the world.

In addition, transborder personal data processing became individualized. Local data controllers are no longer needed to transmit their data subjects’ data across borders to other data controllers in order for transborder exchanges to occur. Today, Web 2.0 applications enable individuals to upload their personal data to the “cloud,” going to and from unidentified destinations.

Consequently, the need for international governance of data privacy is more important than ever. However, the means to achieve this still seem to be missing—or at least the ones at hand do not meet with the necessary international consensus.

The first part of this paper will highlight the history of international governance of data privacy. It will also briefly describe the current state of governance to demonstrate that international norms followed data privacy legislation from the inception. International norms remain very much relevant today, through an exponential multiplication of sources.

The second part will elaborate upon the complexities of the contemporary processing environment by referring to two case studies, cloud computing and location-based services. These two examples will demonstrate that the transborder personal data flows model, as accommodated and implemented, has substantially changed in the past few years, at both the national and international level. Contemporary global and complex personal data processing makes international governance of data privacy more necessary than ever.

The third part of this paper elaborates upon the three plausible scenarios for the future. First, the status quo could remain. In this case, we suggest that technology will step in by offering technology- based solutions, such as Privacy By Design system architecture or Privacy Enhancing Technologies, to address the concerns of individuals about the best way to protect their private data. The second scenario considers the amendment process of the European data protection framework and the EU Data Protection Directive in particular. It predicts that an improved and updated version (likely in the form of the currently-developing EU General Data Protection Regulation) could constitute the international standard for data privacy either indirectly or directly, through streamlined application of its adequacy criterion. The third scenario recommended by the authors proposes the establishment of an international data privacy organization, preferably a UN agency, to govern international data privacy. The appropriate regulatory vehicle is perhaps already in place: the globally-accepted, but probably undeservedly underused, 1990 UN Guidelines for the Regulation of Computerized Personal Data Files. The field could also benefit from the examples of other sectors that achieved international governance status after decades of persistent efforts, despite the fact that they fostered similarly pervasive legislation, such as copyright.

Cognitive Enhancement

'Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement' by Imogen Goold and Hannah Maslen in (2014) 77(1) The Modern Law Review 60–86 notes that

Recently, attention has turned to the possibility of enhancing human cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. One prime example is modafinil, a drug used to treat narcolepsy, which can help combat decreases in wakefulness and cognitive capacity that arise due to fatigue in otherwise healthy individuals. In this paper, we respond to calls in the philosophical and ethical literature that surgeons and other medical professionals should be morally obliged to take cognitively enhancing drugs. We examine whether surgeons who make fatigue-related errors during patient care might be considered legally obliged to enhance themselves. We focus on liability for a failure to medicate, and conclude that it is highly unlikely that surgeons will be legally obliged to address their fatigue through the use of cognitive enhancing drugs. 

Goold and Maslen go on to state that

 Human beings attempt to enhance their capacities in many ways. They train their bodies through physical exercise and they develop their minds through reading and study. In many professions, such training is a prerequisite for employment. For example, surgeons must complete at least nine years of study and demonstrate proficiency in a wide range of required competencies before they may legally practice. Surgeons emerge from their training able to perform tasks that were previously unable to perform – they have enhanced their capacities.

Recently, attention has turned to another form of capacity enhancement – the improvement of cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. Two drugs in particular have garnered interest for their potential as cognitive enhancers: Ritalin and modafinil. Both are increasingly being used by people who hope to experience positive impacts on cognitive effectiveness and efficiency, and in some cases this use is occurring in a professional context.

To date, the discussion of cognitive enhancers has occurred mostly within the philosophical and ethical literature. Considerable attention has been paid to questions pertaining to the ‘fairness’ of their use1 and whether the cognitive life that enhancers precipitate is ‘authentic’. Of more significance from a legal perspective is the emerging view that certain professionals might be morally obliged to take cognitive enhancers. This view is taken seriously by policy-orientated working groups, by legal scholars and even by some of the professionals themselves.

For example, a report on human enhancement and the future of work, produced by the Royal Society, Academy of Medical Sciences, British Academy, the Royal Academy of Engineering and the Royal Society, commented that:

[O]ccupations that require particular patterns of focus could benefit from enhance- ments that facilitate achieving such patterns. For example, surgeons may need to be able to concentrate for extended periods, whereas other jobs such as air traffic control can require very rapid reactions during periods of relative uniformity. As an extrapolation to this, it is possible that in these high-responsibility occupations enhancement could be seen as a moral obligation, or even demanded by the public.

Similarly, the editors of Mayo Clinic Proceedings, both medical doctors, have argued that there are conditions under which resident physicians have an ethical duty to take a stimulant like modafinil to reduce errors: What if a legal stimulant that is shown to be safe could be used to improve medical care during periods of fatigue, regardless of the number of hours worked? Would not the more ethical choice be to promote the reduction of errors – First, do no harm?

Writing in the Journal of Surgical Research, surgeons have also suggested that the prospect of themselves and their colleagues having to take enhancers is not far-fetched and may come to be required practice. They say: The prospect of fatigued surgeons taking a prescription drug, such as modafinil, to allow them to operate for longer, and possibly to a higher standard, is perhaps not as far-fetched as some may suggest. This drug has already been trialled in emergency physicians, when performing non-medical-related tasks at the end of a nightshift.

They also emphasise that the concept of surgeons risking their health to benefit patients is not an alien one. They cite operating on patients with blood-borne transmissible diseases as an example of where the risk to the surgeon is considered justifiable to improve the patients’ chances of recovery. Having noted that there are ‘useful and warranted forms of coercion’ forcing surgeons to undertake practices such as hand washing and sterility prior to and during surgery, they ask:

What will our employers feel about a drug that makes us less prone to error, able to work longer hours, or to operate more efficiently? Employers are able to request certain behavioral standards from their employees, dictate rest periods, and insist on abstinence from certain drugs to ensure that their doctors perform well – will a day arise where they can recommend or even insist on surgeons’ being artificially enhanced? This may seem fanciful, but recent work has suggested that a mixture of napping and caffeine attenuates fatigue in interns and thus should be adopted by hospital administration. Why not other types of stimulant?

Whether such insistence will be legally enforceable is a question that has also received a tentative ‘yes’ from legal scholarship. Chandler has argued that civil law might indirectly require surgeons to enhance following changes to what is viewed as delivering reasonable care. She suggests that such changes could have the effect that a surgeon’s failure to adopt novel neurotherapies that remedy cognitive limitations would be negligent if it could be shown to have led to harm. She emphasises the indirect way in which this could occur:

Cognitive deficits may also raise the risk of liability if they cause a physician to make errors that would not be made by the reasonably prudent practitioner in the field, or to fail to keep up with developments in the field to an extent that is considered to fall below the reasonable standard of care in the profession. In such cases, the courts would simply find there had been a failure to maintain the standard, without necessarily commenting on cognitive deficits or therapeutic methods to alleviate them.

Given that the routine use of enhancers by professionals is seen as a real possibility, and potentially even a future requirement, legal analysis needs to examine what implications this will have. As the professional use of enhancers becomes more prevalent and expected, the potential for legal claims emerges. In our view, the most likely contexts in which legal claims involving enhancers may arise are clinical practice and driving. Thus, and in this paper, we focus on potential claims of negligence, and specifically whether a duty of care could require someone to take a cognitive enhancer. We do so in part because at present the most widely used cognitive enhancing pharmaceuticals can be used to combat decreases in wakefulness and cognitive capacity that arise due to fatigue. Where the injured parties allege that their injury occurred due to the driver or surgeon’s fatigue, the argument that a fatigue-related error resulting in harm could have been avoided by taking an enhancer might be appealing when targeting a tired surgeon or professional driver. This will be increasingly conceivable as knowledge and availability of these enhancers grows, especially if there are suggestions that medical professionals are morally obliged to self- medicate in this way. We focus our discussion on the possible use of enhancers by a group of professionals for whom their use might be especially attractive – surgeons – and examine questions of liability through the example of a fatigued surgeon. However, the majority of our conclusions about obligations in this context could be extrapolated to other situations in which a fatigue-related error has occurred. We focus our discussion around the use of modafinil, as there is growing evidence of its efficacy in addressing fatigue.

In claims of negligence involving cognitive enhancement, two main claims might be made: that harm occurred as the result of a person having taken an enhancer; or that a person could have avoided causing harm by having taken an enhancer. The first claim would be a relatively straightforward question of whether the act of taking an enhancer fell outside the ambit of what a reasonable, fatigued, surgeon would do, albeit a question fraught with issues of policy. In this paper, we examine the more difficult, latter situation – the claim that a professional ought to have taken a cognitive enhancer, and in failing to do so, should be held liable for the harm that resulted from that failure. We do so in part as a response to calls for recognising a moral duty for surgeons to self-enhance, and because determining how the law would (and should) approach such claims is far from clear and hence demands exploration prior to any such claims arising.

We note that both claims would also face significant causation barriers, but do not examine these here, instead focusing on the fundamental prior question of whether a duty to take such an enhancer would, or could, arise in negligence. We acknowledge, of course, that if it is impossible to establish causation, this precludes findings of liability. It might be thought that this renders the question of duty redundant. However, we do not think this is the case. 

First, whether one thing caused another is an empirical question which in some cases can be very difficult or even impossible to answer. Whether there is a duty or not, however, is a normative question about what one should do. The conclusion that there is no duty to enhance is importantly different from the conclusion that there is a duty but that no individual will ever be held liable for breaching it due to epistemic limitations. 

Second, the separate analysis of duty is important because it has implications for practice. As demonstrated above, various commentators, including surgeons, are of the view that there might be a duty to take cognitive enhancers. Legal analysis that explained why there was no legal duty would offer a more satisfactory counter to this view than analysis that explained that whether or not there is a duty is inconsequential because no one could prove that not enhancing resulted in harm. Practitioners who may be conflating prudential, moral or legal motivations to enhance will be able to better understand why the law, at least, would not hold them liable for omitting to enhance, even if the causal ramifications were perfectly determinable. 

Third, given that other legal scholars have suggested that the law will indirectly oblige surgeons to enhance – that there could be a duty – this claim requires further analysis and consideration to elucidate the nature of this (potential) duty and its plausibility.

We examine the possibility of liability by first explaining what cognitive enhancers are and how they might be used. We then present a scenario of a fatigued surgeon who contemplates using modafinil to combat her tiredness during surgery. Following a brief explanation of the relevant principles of medical negligence, we apply these to two versions of the scenario and draw some preliminary conclusions about possible liability. The concluding section of the paper presents four arguments to support our contention that it is highly unlikely that the English courts will find a surgeon to be obliged to take a cognitive enhancer. We look to what might be expected of a surgeon who has assumed responsibility for a patient’s care, and argue that such a duty would not extend to include an obligation to self-medicate with a cognitive enhancer. We draw this conclusion in part because the safety of such enhancers remains uncertain. This, combined with added uncertainty about how predictably efficacious these drugs are, suggests that the courts would be unlikely to require a surgeon to assume the risk that the enhancer might be harming to her when the benefits to the patient are far from clear. Indeed, the law’s resistance to obliging anyone to risk his or her safety solely for the benefit of another person speaks against the courts requiring a surgeon to take a relatively untested drug solely for the benefit of another. Following cases such as St George’s Healthcare NHS Trust v S, the common law’s commitment to protecting individual bodily integrity further bolsters the view that it is extremely unlikely that a court would find a surgeon negligent for failing to ingest a medication for another’s benefit. Finally, we explore some analogous cases relating to self-medication and becoming impaired in some way. There are very few closely analogous cases, but in those relating to failure to medicate and resultant harm to others, the wrong is generally framed as a negligent act (such as driving) while unmedicated, rather than as a failure to medicate. We contend that the same approach would be taken to our hypothetical surgeon who does not take an enhancer. We further contend that where she has no option but to undertake surgery while dangerously tired, or to take the enhancer, that these cases are no longer analogous and other rules, such as those relating to a doctor’s standard of care and rules around rescue/triage situations, would apply. In our view, neither area of law would place an obligation on the surgeon to take the pill.

 'The regulation of cognitive enhancement devices: extending the medical model' by Hannah Maslen,Thomas Douglas, Roi Cohen Kadosh, Neil Levy and Julian Savulescu in (2014) 1(1) Journal of Law and the Biosciences 68–93

presents a model for regulating cognitive enhancement devices (CEDs). Recently, it has become very easy for individuals to purchase devices which directly modulate brain function. For example, transcranial direct current stimulators are increasingly being produced and marketed online as devices for cognitive enhancement.Despite posing risks in a similar way to medical devices, devices that do not make any therapeutic claims do not have to meet anything more than basic product safety standards.We present the case for extending existing medical device legislation to cover CEDs. Medical devices and CEDs operate by the same or similar mechanisms and pose the same or similar risks. This fact coupled with the arbitrariness of the line between treatment and enhancement count in favour of regulating these devices in the same way. In arguing for this regulatory model, the paper highlights potential challenges to its implementation, and suggests solutions.