Health Regulation

The Australian Health Practitioner Regulation Agency (AHPRA) has reported the landmark conviction of a New South Wales chiropractor for false advertising involving a claimed to be able to prevent, treat and cure cancer.

The practitioner, Dr Hance Limboro, pleaded guilty to 13 charges filed by AHPRA in August 2016 under the Health Practitioner Regulation National Law. Section 133(1)(a) of the National Law provides that a health practitioner and/or provider of a regulated health service cannot advertise in a way that is false, misleading or deceptive, or is likely to be misleading or deceptive.

Limboro was fined $29,500 by the Downing Centre Local Court in Sydney and ordered to pay AHPRA’s legal costs. His advertising featured testimonials, not permitted when advertising regulated health services. He was convicted of unlawfully advertising a regulated health service and using testimonials.

The AHPRA media release states -

Chiropractic Board of Australia Chair, Dr Wayne Minter AM, said the Board welcomed today’s decision by the court.

‘Today’s conviction is a win for public protection and a warning to anyone advertising health services in a way that contravenes the National Law,’ Dr Minter said.

‘Most chiropractors are doing the right thing. However, the Board has been up front with the profession that if their advertising is not compliant with the law, they will be held to account.’

AHPRA CEO Martin Fletcher said today’s outcome sent an important message to anyone who advertises a regulated health service that the regulator will take action if they break the law.

‘Today’s conviction is a landmark ruling. Our purpose, working closely with the Chiropractic Board of Australia, is to protect the public. This shows that we will take action and that people breaking the law will be held to account,’ Mr Fletcher said.

‘Making false claims to treat serious illnesses through unproven methods is both unethical and illegal. In her ruling Magistrate Viney said that while the practitioner personally may not have loaded the advertising onto the website in question, he could not deny responsibility. This is an important lesson for others who are advertising regulated health services.

‘Today’s outcome is a reminder to all of us as health consumers and patients that if an advertisement seems too good to be true, it probably is. Make sure you ask your health practitioner what evidence they have to make these claims and if you’re still unsure, seek a second opinion,’ Mr Fletcher said.

Trumpocalyse

QUT Intellectual Property and Innovation Law (Queensland University of Technology) ran an excellent symposium earlier this month on Access To Essential Medicines in following up the UN High Level Panel report noted here.

Presentations by Matthew Rimmer and Charles Lawson were of particular cogency.

The abstract for my presentation on 'Access To Essential Medicines After The Trumpocalypse: Regulatory Incoherence, Incapacity and Resistance' is

Recent statements by US President Trump embody a regulatory incoherence regarding the development, marketing and pricing of essential medicines in the United States. That incoherence is likely to be reinforced by regulatory incapacity through cuts to the US Food & Drug Administration, the Department of Health and Human Services and the Federal Trade Commission.

The presentation suggests that the White House’s objectives in the US market – cheaper drugs for US consumers, lower costs for health service providers, increased return on investment for major and emerging US drug companies – are unachievable in the next four years. Erosion of the institutional capacity of regulators is likely to affect public health within the US and elsewhere beyond Trump’s time in office. Resistance at the national and international level over the coming decade offers a basis for building a more just global pharmaceutical access regime.

Data Fumes

'What Is Data Justice? The Case for Connecting Digital Rights and Freedoms on the Global Level' by Linnet Taylor argues 

The increasing availability of ‘data fumes’ (Thatcher, 2014) – data produced as a byproduct of people’s use of technological devices and services – has both political and practical implications for the way people are seen and treated by the state and by the private sector. Yet the data revolution is so far primarily a technical one: the power of data to sort, categorise and intervene has not yet been explicitly connected to a social justice agenda. In fact, while data-driven discrimination is advancing at exactly the same pace as data processing technologies, awareness and mechanisms for combating it are not. This paper posits that just as an idea of justice is needed in order to establish the rule of law, an idea of data justice is necessary to determine ethical paths through a datafying world. The paper will analyse the existing work on data justice and argue for a framework in which it can be brought together into a single framing for further research and debate.

VR Property and Trespass

'Playing with Real Property Inside Augmented Reality: Pokémon Go, Trespass, and Law’s Limitations' by Donald J Kochan in (2017) 38 Whittier Law Review uses 

the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.

The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass – one to augmented space. Pollock and Maitland called trespass the ‘fertile mother of all actions’, often breeding new or enlarged doctrines across the common law. Perhaps trespass has new breeding to do, providing the genetic material upon which the common law can birth new doctrines that preserve our private property values while adapting to technological advances. We could imagine allocating rights such that owners of physical real property are empowered to exclude others from augmented layering of their property. Only if property owners have ‘opted in’ would any gaming company be permitted to make another’s property an integral part of its augmented reality game. Financial incentives could emerge to make it beneficial for many property owners to choose inclusion of augmented layering. The number of willing properties opting-in might then make the game manageable without the need for layering over the properties of non-consenting owners.

Hypothetical or experimental legal innovations aside, the essay concludes with a focus on the evolution of informal norms furthering trespass avoidance. Trespass is an ideal case study of a type of action that already is more often deterred by informal social norms than by law. This the essay concludes by explaining why these informal norms and an appeal to civility may be the best ways to control unwanted augmented-world interference with real property in the real world.

Blockchain Contracts

'Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law' by Karen E C Levy in (2017) 3 Engaging Science, Technology, and Society 1-15 critiques 

blockchain-based “smart contracts,” which aim to automatically and securely execute obligations without reliance on a centralized enforcement authority. Though smart contracts do have some features that might serve the goals of social justice and fairness, I suggest that they are based on a thin conception of what law does, and how it does it. Smart contracts focus on the technical form of contract to the exclusion of the social contexts within which contracts operate, and the complex ways in which people use them. In the real world, contractual obligations are enforced through all kinds of social mechanisms other than formal adjudication—and contracts serve many functions that are not explicitly legal in nature, or even designed to be formally enforced. I describe three categories of contracting practices in which people engage (the inclusion of facially unenforceable terms, the inclusion of purposefully underspecified terms, and willful nonenforcement of enforceable terms) to illustrate how contracts actually “work.” The technology of smart contracts neglects the fact that people use contracts as social resources to manage their relations. The inflexibility that they introduce, by design, might short-circuit a number of social uses to which law is routinely put. Therefore, I suggest that attention to the social and relational contexts of contracting are essential considerations for the discussion, development, and deployment of smart contracts.

Personhood

'When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now' by W. Robert Thomas comments

The [US] Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.

Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution. Animating the dispute between skeptics and proponents of corporate-criminal liability is a disagreement over how to evaluate personhood, and further how one’s conception of personhood licenses attributions of actions, attitudes, and ultimately responsibility to the entity in question. This brand of disagreement is nothing new: These themes recur throughout Western thought and extend far beyond corporate law, from Plato’s Phaedo to Boethius and Bartolus of Sassoferato, from Thomas Hobbes to John Locke. Given the intellectual lineage behind what is otherwise an ordinary policy disagreement, perhaps it should not be terribly surprising that skepticism about corporate-criminal liability was never put to rest.

I don’t expect that we can break this conceptual stalemate all at once, if at all, to solve the challenge facing corporate crime. More to the point, we don’t need to. As it turns out, in taking up this very dispute at the turn of the 20th century, courts and legislature sided with the proponents of corporate crime in a way that the skeptic cannot, or at least should not want to, unwind. The proponents of corporate-criminal liability did not just win the policy fight; they did so in a way that rendered the skeptic’s position incompatible with broader theoretical commitments that are now instrumental to the modern corporation.

This Article offers two contributions to the debate over corporate-criminal liability: one conceptual, and one practical. First, the same argument embraced by today’s skeptics was tried but rejected in the late 1800s, when the practice of holding corporations responsible first developed. Courts previously receptive to the skeptic’s reasoning abandoned the view — and more importantly, the relationship between personhood and attribution underwriting it — as increasingly untenable amidst a changing economic environment in which commercial corporations transformed from tiny, narrowly constrained, quasi-state entities to sprawling, sophisticated, dominant participants in the national marketplace. Meanwhile, the gradual embrace of corporate liability, both in tort and crime, is intimately connected to the simultaneous demotion of corporate law as a regulatory tool. The turn towards corporate-criminal liability thus reflects a broader abandonment both of a long-dominant conception of personhood and of an approach to corporate regulation rendered ineffective by the development of what has become the basis for our modern corporate law. In a slogan, corporations today are persons under the criminal law not because they have always been eligible, but rather because they became eligible.

Second, a clear theoretical understanding of how and why courts first held corporations criminally responsible has profound consequences for how and why we continue to hold them responsible today. Most directly, recognizing the conditions under which corporations became persons for the purposes of criminal law removes from contemporary debates one complaint with modern practice, and does so without having to resolve some deep metaphysical truth about the ultimate nature of personhood. Today’s skeptic of corporate capacities presupposes an outdated premise about how capacities should be attributed to a person, the abandonment of which is pivotal to creating and maintaining modern corporate law and today’s commercial corporation. Taking seriously the skeptic’s position, on this discovery, threatens to undermine the conceptual foundation integral to a regulatory framework making commercial corporations what they are today. In addition, taking seriously courts’ actual reasoning in holding corporations criminally responsible unearths both a method and rationale for continuing to do so, which is rooted in a constellation of fairness considerations towards individuals that, although mostly lost to history, nevertheless applies more strongly today than ever before. Commitment to this qualified anti-discrimination norm applies at least as powerfully today as it did a century ago: Far from being a once-excusably incoherent, now-superfluous practice, corporate-criminal liability has as much reason to exist today as it did upon inception.