Biopolitics

'Childhood, Biosocial Power, and the “Anthropological Machine”: Life as a Governable Process?' by Kevin Ryan in (2014) 15 (3) Critical Horizons 266-283 examines

 how childhood has become a strategy that answers to questions concerning the (un)governability of life. The analysis is organised around the concept of “biosocial power”, which is shown to be a particular zone of intensity within the wider field of bio-politics. To grasp this intensity it is necessary to attend to the place of imagination in staging biosocial strategies, i.e. the specific ways in which childhood is both an imaginary projection and a technical project, and to this end Agamben’s concept of the “anthropological machine” is used to examine how biosocial power has been assembled and deployed. The paper begins with the question of childhood as it was posed toward the end of the nineteenth century, focusing on how this positioned the figure of the child at the intersection of zoē and bios, animal and human, past and future. It ends with a discussion on how the current global obesity “epidemic” has transformed this one-time vision of mastery into a strategy of survival.

When Giorgio Agamben wrote his Homo Sacer: Sovereign Power and Bare Life, he undertook the ambitious, even audacious, task of “completing” Michel Foucault’s work on power. The literature that has since grown around this book is perhaps testimony to the fact that the study of power is unlikely to reach a terminus, i.e. to be completed in the literal sense of tidying up any and all loose ends. More intriguing, there is shadowy supplement to Homo Sacer: an other figure that seems to co-habit the “thresholds” and “zones of indistinction” that form the theoretical armature of Agamben’s exposition, and which offers a very particular way of examining the relation between zoē (“bare” or naked life) and bios (life which is “qualified”). The figure in question is that of the child.

While not the focus of Homo Sacer, elsewhere Agamben has examined childhood as an “unstable signifier”. Conceptualised in this way, childhood is a disruption between past and future, between death and life, nature and culture, animal and human – relations that appear dichotomous, but which are in fact “zones of indeterminacy”. It is through attempts to govern this indeterminacy that modern Western childhood has been constituted as a particular zone of intensity within the wider field of bio-politics, and to grasp this intensity – the way it is assembled and configured – it is necessary to attend to the centrality of the imagination in staging biopolitical strategies, that is, the ways in which childhood is deployed both as a technical project and as an imaginary projection. This article examines how childhood is one important – and largely overlooked – way in which zoē entered into the realm of politics which, for both Agamben and Foucault, “constitutes the decisive event of modernity”. The analysis begins with a specific apparatus – a technology of life – that was assembled at the turn of the twentieth century, and which takes the form of biosocial power.

By biosocial power is suggested a mode of power that shares much with Foucault’s concept of biopower but which, with the help of Agamben, is shown to be specific to childhood. The inquiry begins with the question of childhood as it was posed during the 19th century, examining how this positioned the figure of the child at the intersection of zoē and bios, animal and human, past and future. It ends with a discussion on how the current global obesity “epidemic” has transformed this one-time vision of mastery into a strategy of survival

Subpoenaed Personal Health Information

The ACT Justice & Community Safety Directorate has released a position paper on Protecting the Privacy of Victims in Court and Tribunal Proceedings of Subpoenaed Personal Health Information [PDF].

The paper states -

Victims of crime often find themselves powerless to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena. Case examples in the ACT suggest this is an area in need of legislative reform to ensure victims are protected in our legal system and are not re-traumatised through this process. This is an area of concern for the ACT Health Services Commissioner who will be providing a report to Government on this issue in coming months.

A subpoena is an order from a court or tribunal, issued at the request of a party to a proceeding, which compels the person who has been subpoenaed to give oral evidence, to produce documents, or both. Subpoenas can only be issued if legal proceedings have commenced – this applies in both criminal and civil proceedings. Failure to comply with a subpoena can be deemed to be in contempt of court, and can attract penalties of imprisonment and fines. This paper will focus on subpoenas issued to produce documents, in particular health records of health consumers who are often victims of crime.

The key issues this paper will identify is that a person’s personal health records may be subpoenaed, produced, inspected, copied and divulged to third parties, entirely without the knowledge of the person to whom the health record relates. This occurs when the person is not a party to the proceedings before a court or tribunal, and is not notified their health records have been subpoenaed and produced. A victim of crime in criminal proceedings is not a party to the proceedings.

In the ACT, there is no legal obligation that requires either the record holder, or party issuing the subpoena, to inform the health consumer that their records have been subpoenaed or produced. It is possible for a person with a ‘sufficient interest’ (for example the person to which the health record relates) to raise an objection to the production of documents, or apply to the court for an order to set aside the subpoena in certain circumstances. The grounds of objection can be abuse of process on the basis of relevance of the subpoena, the subpoena is too wide and oppressive, is a “fishing” expedition, or privilege can be claimed in certain circumstances, such as sexual assault counselling communications privilege. However, the ability to object relies on awareness that the subpoena exists, and a person who has not been informed their health records have been produced, obviously cannot raise an objection. The record holder, such as a medical practice or hospital, may raise these objections but often do not have the time or resources to do so, and also may not be able to ascertain whether information is particularly sensitive for an individual.

In our community, people expect to be able to freely and frankly disclose their personal information to health practitioners, including psychologists, medical practitioners and counsellors, and this is certainly crucial for accurate diagnosis and treatment. Consumers reveal highly sensitive information on the assumption that the communicated information will be treated confidentially.

During the 2012-2013 financial year, a single health service provider in the ACT received over 450 subpoenas to produce personal health information. This indicates that defendants (or their legal representatives) in criminal proceedings may be invading victims’ privacy by seeking personal health records on a regular basis. The impact on victims of crime who have their personal health records subpoenaed can be devastating and, in some cases, it can re-traumatise them. Victims feel their right to privacy has been violated.

There is currently a practice in the ACT of defence counsel in criminal proceedings issuing subpoenas of a broad scope to obtain highly confidential medical records. Examples of subpoenas being issued for personal health information, which raise privacy issues, include:

• A criminal defence team issued a subpoena for the entire health records of a victim from a medical practitioner. While a copy of the subpoena was served on the Office of the Director of Public Prosecutions, the victim was unaware their personal records had been subpoenaed. There is no general obligation on the prosecution to advise the victim of the existence of the subpoena. 

• In criminal proceedings, a self-represented accused person subpoenaed a copy of the entire personal health records of a victim of crime, and the contents of the records were disclosed to third parties including relatives of the accused person.This is a clear example when subpoenas have been misused. 

• A subpoena issued in proceedings in the Coroners Court that was determining the cause of death of a person. The subpoena was for the health records of all consumers admitted to a health service provider facility (hospital) with assault related injuries within a certain time period. 

• In domestic violence order proceedings in the ACT Magistrates Court, a subpoena was issued by the respondent’s solicitor, and was served on the applicant without explanation. The subpoena came completely unexpectedly and the person served was unaware what was expected of them in relation to the subpoena. 

• A criminal defence team issued a subpoena for the entirety of the victim’s psychiatric records. The victim later discovered that their entire medical file, which detailed childhood sexual abuse, suicidal thoughts and major depression, had been provided to and read by all parties to proceedings and the judicial officer earlier in the court proceedings, without the victim’s knowledge. 

• In family law proceedings, subpoenas are often issued for psychiatric records of the estranged spouse, as a ‘fishing expedition.’ Information can then be used to disadvantage the party by stigmatising them as they have consulted psychiatrists. In some situations, subpoenas may be issued as a mechanism to gain advantage using intimidation and humiliation of the opposing spouse.

There are also situations in which health records of a person who is not a party to proceedings in the ACT Civil and Administrative Tribunal are obtained, by means other than a subpoena. This may arise in health practitioner disciplinary cases involving a complaint of inadequate record keeping of a medical practitioner, and health records of numerous health consumers may be tendered in tribunal proceedings.

These examples highlight a number of issues with the current processes involving subpoenas in the ACT, and more generally, issues in relation to the release of a person’s health records. It is clear the existing legal provisions are failing to protect medical-patient confidentiality. Unfettered access to a person’s personal health records undermines a victim’s right to privacy and violates the confidential nature of health practitioner-patient relationship. Failing to safeguard confidentiality of health records poses a risk that members of our community are deterred from seeking medical attention, or not providing accurate disclosures about their symptoms, experiences and/or history, due to fear their privacy might be breached in legal proceedings.

The Directorate indicates that

Legislation should be amended to strengthen protections of privacy for personal health records. This could be achieved by amendments to the Court Procedures Rules 2006 (ACT).

Suggested amendments include:

1. A right that a person with sufficient interest be notified of the subpoena as soon as practicable after it is issued. Such a provision would require the issuing party to serve the subpoena on any interested parties, including the person to whom the health record is sought. The health consumer will then have the opportunity to challenge or object to the documents being produced.

2. A right for the health consumer to be notified if their health records are used in court or tribunal proceedings and have been obtained by means other than a subpoena. For example, documents obtained during the investigative stage of a complaint of inadequate record keeping by a medical practitioner.

3. An express prohibition on ulterior use, or disclosure to third parties, of subpoenaed personal health information. The current obligation requires that a person must only use documents obtained by subpoena for the purposes of the case before the court or tribunal, and must not disclose the contents or give a copy of any documents subpoenaed to any other person (except a lawyer representing them), without permission of the court. Self-represented litigants may not adhere to this obligation due to lack of awareness.

4. A person to which the subpoenaed health records relate, whether they are a party (or not) to the proceedings before the court or tribunal, to have the first right of access to inspect the documents that are produced to determine whether they will lodge an objection.

The court should also consider developing an information sheet to highlight rights and obligations in relation to subpoenas for personal health information and enclose that information sheet with every subpoena issued. This would assist victims of crime whose personal health records have been subpoenaed by a defendant or their legal representative to understand their rights and obligations, and how they could object to the records being released if they thought it appropriate. The law must strike a balance between a victim’s right to privacy and an accused person’s right to a fair trial. Current legislation does not adequately protect victims’ right to privacy when seeking health services and additional safeguards are required.

The quasi-privilege set out in section 126B of the Evidence Act 1995 can be used to abolish subpoenas which are unjustified and preserve a victim’s right to privacy to some extent. However, knowledge of how that section operates needs to be more widely understood. Information on how section 126B operates should be included in the information sheet, previously suggested, as a means of educating people on their rights and entitlements. The introduction of reforms aimed at protecting the rights and privacy of individuals who are the subject of subpoenas will assist victims of crime to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena.

Data Protection

'The Battle for Rights   ̶  Getting Data Protection Cases to Court' by Megan Richardson in (2015) 1 Oslo Law Review 23-35 compares

the legal protection of privacy and personal data principally in common law jurisdictions. It points out that the growth of privacy law in these jurisdictions has traditionally centred on the ability of individuals to bring claims to court, with claims largely dealt with as a matter of common law (i.e. judge-made law). However, the absence of a generally accepted principle that individuals should be free to bring a claim in court for a breach of a statute has worked to limit the development of (statutory) data protection norms in the common law world. Nevertheless, the situation now appears to be changing with some recent cases. 

Richardson comments

In his 1872 masterwork Der Kampf ums Recht, or The Battle for Right as it was known in England, the German legal sociologist Rudolf von Jhering argued that the ideal environment for the creation of law is one in which aggrieved individuals voice their grievances publicly, and lawmakers including judges respond with the development of legal standards in sympathy with their concerns. Law is thus the product of a constant struggle by individuals for the recognition of legal rights. In words later echoed to a considerable extent by the American jurist Oliver Wendall Holmes Jr, von Jhering said that ‘[t]he life of the law’ is based on the idea of ‘restless striving and working’. Or as Holmes eloquently put it in his own masterwork The Common Law in 1881, ‘the life of the law has not been logic; it has been experience’. Von Jhering may have restricted his comments to private law, taking the benevolent view that ‘the realisation in practice of public law and criminal law is assured, because it is imposed as a duty on public officials’. However, his logic may be extended to any law whose ‘practical realisation depends on the assertion by individuals of their legal rights’, including where public officials have wide discretion rather than a specific ‘duty’ to give effect to the law for the individual’s protection. In these instances, as in others where ‘the realisation’ of the law depends upon the ability of individuals to bring claims, it can be argued that the individuals concerned should have the power directly to vindicate their legal rights. 

In any event, this was the position taken by the framers of the Bürgerliches Gesetzbuch (BGB) who, in 1896, responded to von Jhering and others who maintained that law should reflect modern concerns, including protection against ‘attacks on personality’. Section 823 II of the BGB stated that a person harmed as a result of another’s breach of a statutory provision adopted for his or her protection is entitled to bring a claim for damages in court. After the BGB came into force the provision became an early platform for the development of personality rights in Germany in the early 1900s, even before the inclusion of rights to dignity and personality in the post-second world war German Constitution, which prompted a more expansive reading of the provisions of the BGB to flesh out personality rights in accordance with the new constitutional standards. 

A number of jurisdictions in the common law world have adopted versions of section 823 II of the BGB in ways tailored to personality rights. For example, the New York legislature, after the failure of the plaintiff’s privacy claim in the 1902 case of Roberson v Rochester Folding Box Co, enacted sections 50 and 51 of the New York Civil Rights Law in 1903. These sections, which continue in force today, impose criminal liability on those who without consent use a person’s name or likeness for advertising or trade purposes (the circumstances of the Roberson case) and further specify that a person harmed can bring a civil action for damages. Thus, even without much by way of common law protection of privacy in New York, there is some statutory protection available to privacy through sections 50 and 51 of the Civil Rights Law including a right to bring claims to court. Moreover, this protection has withstood (to an extent) the broad reading given by the US courts, especially from the 1960s onwards, of the right to freedom of speech and the press under the First Amendment to the Bill of Rights in the US Constitution. 

Norway provides an example of a mixed system with some common law features. As noted in Lillo-Stenberg and Sæther v Norway, plaintiffs can rely on sections 3-6 of the Damages Compensation Act of 1969 in conjunction with section 390 of the Penal Code of 1902 to bring civil claims for legal protection of privacy. Although Norwegian courts have also developed their own non-statutory precedents in favour of privacy, the above statutory provisions have often been relied on in cases involving privacy claims, including the Lillo-Stenberg case. It was only because of the particular circumstances of the latter case (involving celebrity performers engaged in a spectacular celebration of their marriage in a publicly accessible area) that the Norwegian Supreme Court held that the publication of unauthorised photographs of parts of the celebration (but not the actual marriage ceremony) in the magazine Se og Hør was not an unlawful violation of the plaintiffs’ privacy. When the case came before the European Court of Human Rights, the latter accepted that an appropriate balance had been reached between the rights to private life and freedom of expression under Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) taking into account the margin of appreciation afforded to national law. 

Nevertheless, common law jurisdictions have not, as a general matter, accepted that individuals should be entitled to bring an action under a statute adopted for their protection. Rather, developments of privacy law in common law jurisdictions have mainly been focused on common law (i.e. judge-made law), which itself is premised on the central idea of individuals bringing claims to court. While this approach has worked reasonably well for aspects of privacy law, it has led to a relative lack of development of data protection norms in these jurisdictions, although the situation appears now to be changing.