07 May 2022

Health Data

'The journey of research data: Accessing nordic health data for the purposes of developing an algorithm' by Katharina Ó Cathaoir, Hrefna Dögg Gunnarsdóttir and Mette Hartlev in (2002) 22(1) Medical Law International comments

This article traces the journey of Nordic health data requested for developing a healthcare algorithm. We focus on the legal requirements and highlight that differences in the legislation of Denmark, Norway and Iceland, and the interpretation thereof by responsible bodies, can pose a barrier for scientific researchers. In addition, non-legal institutional requirements or practices may hamper data access. First, despite some European harmonization, the mandate of research ethics committees and the data protection authorities vary in the three countries. Second, domestic institutions impose tailored requirements, sometimes only allowing domestic or affiliated researchers to access data sets. Third, the manner in which a dataset is collected, catalogued and stored has implications for data access. We make several recommendations for increasing transparency in Nordic data access, such as, increasing knowledge sharing regarding interpretation of General Data Protection Regulation (GDPR) criteria, adopting clearer regulations and pursuing greater citizen engagement in secondary use of health data. 

Nordic health research is promising and collaboration has the potential to bring scientific breakthroughs that may not be possible alone. Moreover, Nordic countries are highly digitized, depending on electronic health records and a centralized personal identification number that connects information about the individual, spanning demographic and health data. With universal, tax-funded access to healthcare, rich, curated datasets are available, such as national patient registries, prescription and laboratory registries, and comprehensive biobanks that can be coupled with other health data. For this reason, several national and Nordic initiatives have been proposed for improving access to health data for research purposes. 

Despite this promise, previous research has identified legal barriers to Nordic research. Obtaining access to data has long been described as slow and complicated. Varying legal requirements mean that pan-Nordic research continues to require legal expertise in the relevant countries. The difficulties of gaining access to sensitive data have been brought to the fore with the entry into force of the General Data Protection Regulation (GDPR), to which scientists have needed to ‘adapt’.  Although an aim of the GDPR is to improve cross-border data flows, faced with the prospect of large institutional fines for non-compliance, researchers describe an ‘extra burden’ of compliance. 

The GDPR has led to health data governance fragmentation, as Member States implement the legal basis for research differently. Furthermore, ethics regulation forms a separate but important part of this landscape. As Høyer describes it, ‘today, data create intense anxieties as people seek to balance competing interests and value registers, and ... ethics regulation is part of the negotiation’. 

The aim of this article is to trace the journey of Nordic health data requested for the purpose of developing an algorithm. The article approaches the topic from the perspective of an ongoing Nordic research project, PM Heart, which combines data and researchers based in Denmark, Norway and Iceland. The objective of the project is to develop and eventually clinically implement personalized medicine (PM) in cardiology with the purpose of avoiding over treatment, as well as under treatment, in ischemic heart disease (IHD). The project combines existing and prospective Nordic health data to differentiate between different subgroups of IHD and potentially identify the cause of the IHD in the individual patient. Using machine learning, researchers aim to create a clinically integrative IHD algorithm that will estimate the risk of future complications in the individual patient based on all available and relevant data rather than only a few routinely applied parameters. The algorithm-generated risk estimate will later be used clinically as a decision support tool to improve patient management. 

Our premise is that the differences in the requirements in the legislation of Nordic countries, and the interpretation thereof by responsible bodies, can pose a barrier for scientific researchers. In addition, there may be non-legal institutional requirements or practices that hamper access to data. This suggests that researchers must fulfil various legal and practical requirements imposed by legislatures, data controllers and institutions in each country. 

The paper seeks to contribute to the literature in several ways. First, it provides an early evaluation of how the GDPR’s research provisions are being interpreted and implemented. Second, it provides socio-legal insights by drawing on legal doctrinal method and interviews with (non-legal) researchers to also reflect the law through their eyes. Third, the article offers insights into three Nordic jurisdictions where limited practice and literature is available in English.

'Confidentiality and public interest disclosure: A framework to evaluate UK healthcare professional regulatory guidance' by Paul Snelling and Oliver Quick in the same journal comments 

Confidentiality and disclosure of information in the public interest present difficult dilemmas for healthcare practitioners and call for clear legal and regulatory guidance. The common law duty of confidence, and established exceptions to it, are shaped by medical practice and detailed guidance produced by the General Medical Council. Guidance issued by other healthcare regulators in a highly fragmented environment is at best unclear and at worst inaccurate. This article assembles and justifies a framework of evaluation against which regulators’ guidance can be assessed, focussing on the specific issue of when the duty of confidentiality can be set aside in the public interest. Comparison of statutory regulators’ guidance reveals wide variation which creates uncertainty for practitioners confused by inconsistency between guidance documents. The results of this analysis raise questions about the relationship between common law and regulatory guidance, in particular, whether it is appropriate to recognise different standards for different healthcare professions. This article argues that there is an opportunity to correct this anomaly and ensure appropriate consistency as part of a wider review of healthcare professional regulation. 

Confidentiality and disclosure of information are complex areas of professional responsibility, of interest to healthcare practitioners since antiquity. Despite being one of the least litigated areas of medical practice, the British Medical Association (BMA) has received more queries relating to confidentiality than other areas of ethical concern, indicating professional uncertainty about legal and regulatory guidance. Confidentiality is centrally important to therapeutic relationships3 and has a clear basis in both utilitarian and deontological theories of ethics. While classic codes of medical ethics describe the duty of confidentiality in absolute terms, it is widely accepted that the duty is qualified and permits exception in the public interest. 

Finely balanced decisions about whether public interest disclosure is justified are made by healthcare professionals, and although a decision is unlikely to be so urgent as to constitute a medical emergency, neither will all circumstances allow for a thorough examination with a full range of clinical, ethical, and legal texts and opinions available. These decisions can be challenged through the courts and fitness to practise hearings held by professional regulators. Hitherto, most decisions have been made by doctors, aided by comprehensive guidance written by their regulator, the General Medical Council (GMC). However, in recent years, the range of statutory regulation has increased with non-medical health care professionals solely accountable for their decisions. The relationship between GMC pronouncements and the common law has been established for over 100 years, and with its guidelines for 50 years. However, in the absence of case law involving non-medical regulated health care professionals, a key question for healthcare law and practice arises: Is disclosure by non-medical health professionals held to the same standards as in medical practice, or do different legal and professional standards apply? 

This article examines this unanswered question by comparing the confidentiality guidelines of eight non-medical regulators against a framework reflecting medical practice in GMC and Department of Health (DH) guidance. Following contextual introductory information about medical confidentiality, professional regulation, and the role of standards and guidelines, the framework is introduced and defended with analysis of five questions for consideration by healthcare professionals contemplating public interest disclosure. The questions are applied to guidance from the statutory regulators, and inconsistencies identified. The article concludes with further discussion and recommended remedies.

Doctrine

'Mapping Doctrinal Methods' by Jason N E Varuhas in P Daly and J Tomlinson (eds), Researching Public Law in Common Law Systems (Edward Elgar, 2022) offers 

an account of doctrinal legal method. 

Doctrinal legal method is often presented as a single methodology. However, the umbrella term ‘doctrinal method’ can be shown to incorporate several methods which are distinct, but linked by a common concern to state what the law is and to understand the law on its own terms. 

This chapter identifies and elaborates upon each of these methods. Listed in order of increasing sophistication, they are: (i) description, which may for example involve summarizing a case; (ii) derivation, which involves distilling legal propositions from legal materials; (iii) systematization, which involves organization of interconnected legal propositions into categories, which form part of a wider system; and (iv) interpretivism, which involves interrogating normative justifications which explain legal propositions or categories, and refining one’s account of those legal phenomena by reference to those justifications. 

Accomplished pieces of doctrinal legal scholarship will deploy all of these methods. Each successive method will involve use of the former method(s). Thus, derivation will necessarily involve description. Systematisation will necessarily involve description and derivation. And interpretivism will incorporate the other three methods. 

It is also the case that each successive method is more sophisticated and liable to offer deeper insights into the law. Thus, interpretivism is the highest form of doctrinal method, involving interrogation of the normative foundations of given legal propositions or fields, but it is also dependent upon the other three methods. 

The chapter first introduces the idea of doctrinal method, and then goes on to map the four methods. The chapter’s focus is upon public law, but the methods identified are equally applicable to any legal field. 

Ultimately, the chapter argues that the path forward for doctrinal scholars involves greater attention to the deeper normative commitments embedded in the historic system, and which explain public law doctrines and fields. Such mid-level explanatory theory is crucial to a complete understanding of doctrinal public law, and to coherent judicial decision-making and legal development.

Mock Religions

Another 'what's a religion?' judgment. In Bell v Queensland [2022] QSC 80 Burns J has addressed a claim by the 'Noosa Temple of Satan'.

The judgment states

[1] By s 76(1) of the Education (General Provisions) Act 2006 (Qld) (Education Act), a minister or an approved accredited representative of a “religious denomination or society” has an entitlement to give religious instruction in State schools to students who are members of that denomination or society. 

[2] The applicant, Trevor Bell, and another man, Robin Bristow, are members of an unincorporated association known (by them at least) as the “Noosa Temple of Satan” (Temple). In March 2021, they made application for approval to deliver “Satanic” religious instruction at four nominated State schools. Their application was refused on the ground that the Temple “has no entitlement to provide religious instruction” because it “is not a religious denomination or society for the purposes of” s 76(1) of the Education Act. 

[3] By this amended application, Mr Bell (who is legally qualified) seeks a statutory order of review in relation to that “decision” under Part 3 of the Judicial Review Act 1991 (Qld) (JR Act) and, further, orders setting the “decision” aside along with a declaration to the effect that the Temple is a religious denomination or society for the purposes of s 76 of the Education Act. 

[4] For the reasons that follow, Mr Bell’s application must be dismissed. 

The application for approval 

[5] It is useful to commence with some largely uncontroversial facts concerning the application for approval. 

[6] In that regard, I was informed by the parties that, for a religious denomination or society to avail itself of the entitlement conferred by s 76(1) of the Education Act, the Department of Education has published a “Religious Instruction Policy Statement” and what is described as a “Form 1” on its website. By completing the Form 1 and providing it to a school principal, the religious denomination or society notifies the principal of its intention to provide religious instruction in the school and applies for approval of a person or persons as accredited representatives. Of course, the power to approve a person as a representative is by s 76(1) vested in the Minister. However, I was asked to assume that the power to approve a person as a representative was delegated by the Minister for Education to school principals. There is no evidence to that effect, but I proceed on the faith of that assumption. 

[7] On 1 February 2021, a completed Form 1 was provided to the principals of four State schools. Each was signed by “Robin Bristow (aka Brother Samael Demo-Gorgon), Spiritual Leader and Founder of The Noosa Temple of Satan”. In an attachment to those Forms, Mr Bristow and Mr Bell were nominated as the “accredited representatives” for whom approval was sought. Mr Bell was nominated as the “religious instruction coordinator”. By the Forms, it was proposed that the title of the proposed program be “Satanic Religious Instruction” and that its “aims and goals” were to “provide students with information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets” and to “help students analyse the information and critically evaluate the religion of Satanism”. 

[8] The Forms eventually found their way to a senior officer of the Department of Education. For reasons I explain below (at [14] to [17]), I agree with the submission made on behalf of the respondent that it was not for the recipient school principals to determine whether the Temple was a religious denomination or society and entirely appropriate that the respondent’s position on that question be formulated by a suitably qualified officer within the Department. 

[9] On 5 March 2021, the Deputy Director-General of the Department of Education forwarded a letter to Mr Bristow in which, relevantly, the following was stated: “It is the Department of Education’s position that the Temple is not a religious denomination or society for the purposes of section 76 of the Act. 

From statements publicly attributed to you, the department understands that the Temple was established in response to the Australian Government’s proposal for a religious discrimination Bill and that most of the people who follow Satanism, do not believe that Satan exists. 

Accordingly, the department considers there is a real question whether the Temple’s true purpose is political as opposed to religious. There is also limited evidence to demonstrate that the Temple has sufficient membership in order to be regarded as a denomination or society. 

Therefore, as the Temple is not a religious denomination or society for the purposes of section 76 of the Act, it has no entitlement to provide religious instruction in Queensland state schools. To the extent that your proposal is an application for approval under section 76 of the Act, it is not a valid application.” 

[10] On 12 March 2021, Mr Bristow replied to the letter from the Deputy Director-General. The purpose of his letter was, he stated, “to provide you with more information and to request that you reconsider your position”. Mr Bristow then wrote:

“Yes, the Temple was created in response to the proposed Religious Discrimination Bill but we do not see how that is relevant to your decision. We are a religion that objects to Christian authoritarianism. The proposed Bill seeks to entrench and expand Christian power. Of course it motivated us to create a church to gather and empower Satanists to oppose the proposed new laws. No true Satanist could sit back and watch. As a church we have a religious purpose which is manifested by political activism. In any event, many traditionally recognised religions have their genesis as organisations which included strong political agendas in response to social movements. 

The Department may be confused by laws regarding tax exempt status for religious groups. In order to gain and keep tax exempt status, religious organisations must steer clear of endorsing political parties. Our application to conduct religious instruction classes is not a case regarding the Temple’s tax exempt status therefore the political activity of the Temple is irrelevant. 

We do not know the proportion of Satanists who believe in Satan and neither does the Department. The same could be said of all religions. There are no doubt millions of nominal “Christians” who do not believe that Christ was the son of God. The statement is mere supposition and is irrelevant considering it is a feature common to all religions. 

Regarding membership numbers, there is no legal authority prescribing the minimum number of members required ... for a religious denomination or society but there are areas where we can get some guidance. The Australian Bureau of Statistics gathers data on religious affiliations in Australia. It recognises over 11 religious denominations which have less than 50 members in Australia. Also, under the Associations Incorporations Act 1981, it is possible to incorporate an association with just 7 members. 

The Temple has over 8,500 followers and likers on its Facebook page. In person meetings have been discouraged due to Covid-19 concerns but our Black Mass ceremony in October 2020 was sold out. Three families have requested us to provide religious instruction to their children. 

The Education (General Provisions) Act 2006 and the Regulations do not prescribe a minimum membership number of members that are required in order to qualify as a denomination or society. To the contrary, there is no minimum number of attendees that are required for a religious instruction class. The minimum therefore is one which would indicate a legislative intention that smaller denominations not be disqualified. 

The reasons for rejecting our application are either erroneous or irrelevant. If we cannot resolve this matter with the Department we will make an application to the relevant court seeking a declaration that the Temple is a religious denomination or society and is therefore entitled to apply to conduct religious instruction lessons. We ask that the Department reconsider its decision by Friday the 20th of March 2021 otherwise we will proceed with court action seeking a declaration.”  

[11] The Deputy Director-General responded by email on 19 March 2021. He re-affirmed the Department’s position, that is to say, that the Temple was not a religious denomination or society for the purposes of s 76(1) of the Education Act and that it therefore had no entitlement to provide religious instruction in Queensland State schools. ...

Shades of the Pastafarians' difficulties with incorporation in South Australia.

The judgment continues - 

[20] In support of his application, a series of affidavits was relied on by Mr Bell; three were affirmed by him and a fourth by Mr Bristow. Mr Bristow was also cross-examined at the hearing. That was revealing because critical portions of his affidavit were demonstrated to be entirely false, a topic to which I shall later return. 

[21] As I earlier observed (at [7]), Mr Bristow holds himself out as the founder and “spiritual leader” of the Temple and, in that respect at least, his evidence was supported by Mr Bell. In his role as leader, Mr Bristow uses what he has described as his “drag name”, Brother Samael Demo-Gorgon. He settled on that name after consulting a website and looking for the most demonic name he could find. As recently as May 2021 he was unsure whether he was a Satanist but, when giving evidence, he said that he had “reconsidered” and was now prepared to describe himself as a “non-theistic Satanist”. He agreed that, for him, Satanism was a “very effective political tool”. 

[22] In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism”. The name, “Noosa Temple of Satan”, is registered as a business name. There is also a “trademarked logo” featuring a pentagram along with a Facebook page and website devoted to the Temple. According to Mr Bristow, the Temple’s communications often use “black or dark coloured colour schemes” and often finish with “Hail Satan”. He deposed that “during religious ceremonies and for some special occasions” he wears “a black cloak, holds a replica skull and, if practical, [uses] candles”. Mr Bristow further deposed that he is “responsible for guiding [the Temple’s] objectives, purposes and day to day activities”. To do so, he consults with members of his leadership team whom he nominated as Mr Bell and a graphic designer who manages the Temple’s social media activities. No other members of the Temple were identified. 

[23] Mr Bristow deposed that the Temple was “created” by him in December 2019 for the following purpose:

“7. My personal goal in creating the Temple was to create a high profile Satanic religious group that could access the special rights and privileges that are available to all religions. 

8. I have become very mindful of the need for the Temple to meet the legal criteria of a religious organisation. Since starting the Temple, the activities and objectives have evolved over time as I have tried to ensure as much as possible that it qualifies as a religious organisation. 

9. The Temple’s purpose is to promote three key ideas. The first is the belief in Satan as a supernatural spirit, the second is a commitment to follow the example of Satan by rebelling against the Christian God’s authority and the third is the use of classic Satanic symbols and rituals such as pentagrams, black cloaks, skulls, candles and phrases such as ‘Hail Satan’. 

10. The supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible. In particular, it is the Satan as described in the book of Job. This is the supernatural spirit we will preach to our students in religious instruction classes and users of our chaplaincy services.” 

[24] Mr Bristow went on to depose that the Temple “encourages canons of conduct that give effect to” a belief in Satan. He continued:

“11. These are practices which challenge Christian authority and which test the faith of Christians. In a contemporary Australian context that means the Temple engages in and encourages practices such as: Encouraging secular laws so as to reduce Christian power; Encouraging lawful practices which many Christians disapprove of such as gay and lesbian lifestyles; Exposing flaws in Christian values by highlighting double standards and hypocrisy; Taking advantage of special rights and privileges that are normally only accessed by Christian groups; and Conducting theological debates to sow seeds of doubt in the minds of Christian believers.”

Further

[29] As already mentioned, Mr Bristow was cross-examined on his affidavit. He agreed that the Temple was started by him in response to a religious discrimination Bill introduced into Federal Parliament. Part of the motivation was to persuade the Commonwealth Government to “scrap” the Bill and replace it with a Human Rights Act. The idea of a “Temple of Satan” was inspired by an American group called the “Satanic Temple” which was featured in a film called “Hail Satan”. Mr Bristow confirmed that he does not believe in any supernatural deity but asserted that this was “not the view of the Temple”. When asked to identify the followers and supporters of the Temple, Mr Bristow replied: “Well, there’s – there are three people who actively run the Temple. And we would consider our supporters and followers mainly on our Facebook page, as well as those who’ve attended our socials and our Black Mass.” 

[30] As to the Black Mass, Mr Bristow admitted that he had described it as a “blasphemous Rocky Horror Picture Show”. That was the description he used when interviewed for a podcast on 16 December 2020. During this interview, he described the Black Mass as “just a chance to have a dress up fun night”. He said it was,

“Very camp, very entertaining and it should give people a few giggles”. He went on to say: “Satanists do not believe in Satan. They don’t believe he exists, so that’s the first principle. The only people who believe Satan exists are Christians. So it’s very funny when of course we get accused of believing and worshipping Satan, because that’s not true at all. ... So Satan is a metaphoric symbol for us ... He is a symbol of rebellion, questioning, always questioning, and also causing a little bit of mischief as he goes along. So that’s, for us, what Satan represents. I mean it goes much deeper than that as well. It’s all about supporting bodily autonomy as I said so we support a woman’s right to choose, euthanasia, I personally support legalising drug use and we want to get religion out of politics. So these are all parts of what we call Satanic change that we want in Australia, especially secularism, that is one of our chief aims as well.” 

[31] Later in the interview, Mr Bristow said that he was an atheist and that “most Satanists are atheists”. He told the interviewer that “[w]e don’t believe in the occult and the supernatural”. This view, he agreed, reflected the view of the Temple at the time of the interview although Mr Bristow said that this had changed. ... 

[34] Mr Bristow also accepted that, for an article published by the Star Observer on 18 October 2020, he told the journalist that the Temple was established “in response to the Morrison Government’s proposal for a religious discrimination Bill” and that it was “all-embracing”, adding that he would “hate to call it a religion”. He was quoted accurately as saying “[w]e don’t believe that Satan exists”. He also said, “it’s completely non-religious and secular, but it seems to have caused a lot of irritation”. Similarly, Mr Bristow accepted the accuracy of a quote attributed to him in an article published by The Courier Mail on 24 April 2021 to the effect that he did not “worship anything except myself” and that he did not believe in “Satan as a supernatural being”. 

[35] Towards the conclusion of his cross-examination, several propositions were put to Mr Bristow. When doing so, he said that he understood the common belief of the Temple to be “disdain and distrust of Christians”. He accepted that there had been “no regular process of worship”, and that both theistic and non-theistic Satanists are welcomed. Indeed, he agreed that he did not care what the belief of the members was and that they could “believe in whatever they like”. Further, he accepted that it was not a requirement for members of the Temple to believe in any kind of supernatural being. No vow was administered or oath taken, and no other obligation was imposed on them.

That's damning (unintended pun) in terms of Australian case law.

Burns J states

[38] This case has nothing at all to do with the question whether Satanism is a religion. Nor is it necessary to define what Satanism might be. Rather what is left of this case is only concerned with the question whether, on the evidence, the Temple is a religious denomination or society within the meaning of s 76(1) of the Education Act. 

[39] Of course, a religious denomination or society must necessarily pertain in some way to a religion or religions and that is why the submissions on both sides were directed in no small way to the legal characteristics of a religion and, on that point at least, there was common ground. 

[40] As to that, in The Church of the New Faith v The Commissioner of Pay-Roll Tax (Vic), Mason ACJ and Brennan J, held that:

“... for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.” 

[41] To determine whether a particular entity fulfills these criteria, an examination of the beliefs, practices and observances of its adherents is required. Mere assertion is not enough, and a claim that is rightly to be regarded as “not serious but merely a hoax” will not satisfy the prescription. There must be “a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages” and, because of that, “mere ritual ... devoid of religious motivation, would be a charade”. ...

Burns J concludes 

[47] The Temple has no genuine connection to anything pertaining to religion. There is certainly no evidence of a shared belief in a supernatural being, thing or principle, let alone canons of conduct to give effect to such a belief. To the extent that Mr Bell submitted that the Temple amounted to a “religious society”, no common element pertaining to or concerned with a religion (or religions) was in evidence. Indeed, as best I can ascertain on the evidence, the identified members of the Temple are wholly irreligious. None of this should be surprising because the Temple was not formed (and nor has it been conducted) as a religious denomination or society; the sole reason for its existence was (and remains) to push a political barrow. 

[48] It was therefore concerning to wade through what was advanced about the Temple to the school principals, the Deputy Director-General and this court. For example, it was claimed in the Forms that the “Satanic Religious Instruction” to be provided to students will include “information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets”. In Mr Bristow’s letter to the Deputy Director-General of 12 March 2021, the claim was made that “[w]e are a religion” and that the Temple was a “church” with a “religious purpose”. In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism” and that the “Temple’s purpose” included the promotion of a “belief in Satan as a supernatural spirit” and a “commitment to follow the example of Satan”. Then, Mr Bristow affirmed that the “supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible” and that “[t]his is the supernatural spirit we will preach to our students in religious instruction classes.” 

[49] Aided by Mr Bell and perhaps another, Mr Bristow’s attempt to obtain approval to deliver “Satanic” religious instruction in State schools was nothing more glorified than a base political stunt. His persistence with that attempt through the medium of this proceeding has resulted in a deplorable waste of the resources of the State which had to be marshalled in opposition to the relief sought and the needless allocation of court time and resources to deal with it. 

[50] I have no doubt that the parts of Mr Bristow’s affidavit to which I have just referred are untrue. Whether his affirmation of those parts was deliberate and material to the outcome of this application will be for others to consider. A direction will accordingly be made to determine whether the court should initiate that consideration.

Dust

'Trusts Over Cremated Ashes' by Kate Falconer in (2021) 15(3) Journal of Equity 283 comments 

Every year in Australia over 110,000 people are cremated. Each of these cremations leaves behind physical material – what is commonly referred to as ‘cremated ashes’, or, more succinctly (and no less respectfully), ‘cremains’. In recent decades, Australian courts have begun to impose trusts over this physical material prior to its ultimate disposal. This ‘cremated ashes trust’ provides courts with much-needed flexibility in resolving bitter disputes between those close to the deceased, but, so this article argues, is built on flawed foundations. In particular, this article rejects the explanation given in the case law to date, which sees the trust over cremated ashes as an express trust for a purpose. Instead, it argues that the classification of the cremated ashes trust as a constructive trust best reflects both doctrinal reality and the normative forces that have underpinned its development.

 Falconer states 

In recent decades, Australian courts have begun to impose trusts over this physical material prior to its ultimate disposal. This ‘cremated ashes trust’ provides courts with much-needed flexibility in resolving bitter disputes between those close to the deceased, but, so this article argues, is built on flawed foundations. The central goal of this work is to explore the development of the cremated ashes trust, and, hopefully, place it on firmer doctrinal footing. To this end, this article rejects the explanation given in the case law to date, which sees the trust over cremated ashes as an express trust for a purpose. Instead, it argues that the classification of the cremated ashes trust as a constructive trust best reflects both doctrinal reality and the normative forces that have underpinned its development. In making this argument, this article provides some much-needed certainty to the law of the dead in its interactions with the private law, and in particular the law of trusts.

Part II commences this article’s analysis by situating cremains and the burial disputes to which they are increasingly being subjected in the context of the Australian common law of the dead. It then explores the development of the cremated ashes trust in detail. Part III begins the search for a doctrinal home for the cremated ashes trust. It presents three arguments against the position taken by courts that the trust over cremated ashes is an express purpose trust. This Part argues that the purpose supposedly at the core of the cremated ashes trust is not one recognised at law, and in any case, that the cremated ashes trust is in fact best characterised as a trust for persons. Even this recharacterisation, however, cannot overcome the fact that the cremated ashes trust is incapable of resulting from the intention necessary to bring an express trust into existence. Against this backdrop, Part IV makes the case for the cremated ashes trust as a constructive trust. It emphasises that the cremated ashes trust arises when certain factual circumstances are met, regardless of intention and without the need for a court order. In doing so, it transforms a pre-existing social relationship into a legal relation recognised at law. At the same time, the content and form of the cremated ashes trust are shaped by courts so as to best do justice between the parties to the dispute. In this way, then, the cremated ashes trust is truly an example of the Australian constructive trust as a remedial institution

in The State of South Australia v Ken and Ors [2021] SASC 10 the SA Supreme Court has added to the jurisprudence regarding common law and busial decisions. 

 The judgment states 

Kunmanara Barney Randolph Shane David Waye died intestate on 4 July 2018. There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial. The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018. The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased. The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams, and the deceased’s sister Bessie Waye. 

The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella). The deceased’s mother and sister want the deceased buried at Port Augusta. The dispute between the parties is intractable. 

In the circumstances the dignity of the deceased and the conscience of the community require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency. 

The deceased was born in Port Augusta on 6 July 1993. Accordingly, he was 24 years of age at the time of his death. It appears he died leaving no assets. The evidence is he died without issue and without a wife or de facto partner. 

Held: 1. After undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, Pukatja has the stronger claim to be the appropriate place of burial of the deceased. 2. The place for burial of the deceased, Kunmanara Barney Randolph Shane David Waye, who was reported to have died on 4 July 2018, is to be Pukatja.

Stanley J states 

[1] Kunmanara Barney Randolph Shane David Waye died intestate on 4 July 2018. There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial. The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018. The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased. The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams, and the deceased’s sister Bessie Waye. 

[2] The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella). The deceased’s mother and sister want the deceased buried at Port Augusta. The dispute between the parties is intractable. 

[3] In the circumstances the dignity of the deceased and the conscience of the community require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency. 

[4] There is no issue that the dispute is justiciable before this Court pursuant to its inherent jurisdiction. There is no dispute that the State has standing to bring the application. 

[5] The deceased was born in Port Augusta on 6 July 1993. Accordingly, he was 24 years of age at the time of his death. It appears he died leaving no assets. The evidence is he died without issue and without a wife or de facto partner. 

Relevant legal principles 

[6] At common law there is no property in a dead body, nor is the body of a deceased person capable of being owned. As a matter of general principle, where a deceased has left a will the obligation to arrange the burial of the deceased falls on the executor of his or her estate. Where a person dies intestate the position has generally been that the person eligible to apply for a grant of letters of administration has the right of burial. However, in circumstances where there has been no application for a grant of administration and none is ever likely to be made, the historical common law position to assigning a right of burial takes on “an air of unreality”. In Jones v Dodd Perry J, with whom Millhouse and Nyland JJ agreed, noted that the eligibility to apply for a grant of letters of administration had been a convenient method by which to approach some cases, but was not a hard and fast rule. He said that the approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for. 

[7] In the subsequent case of Dodd v Jones Doyle CJ considered that Perry J did recognise that the common law approach was the usual approach, but it was not to be applied rigidly. 

[8] Subsequently in Minister for Families and Communities v Brown Gray J, in deciding a dispute over burial, considered not only which party had a stronger claim at common law but also the lifestyle, relationship and practices of the deceased in reaching a conclusion as to burial rights. 

[9] In South Australia v Smith Nicholson J said:

The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. 

[10] Ultimately, Nicholson J identified four main considerations to be weighed in deciding disputes of this kind. They are:

1. who might be entitled to obtain letters of administration in the event that such an application were to be made; 

2. Aboriginal cultural matters and concerns raised in the evidence; 

3. the deceased’s own wishes; and 

4. the wishes and sensitivities of the living close relatives.

[11] This approach has been subsequently approved and adopted in other jurisdictions. ...

[27] In Love v Commonwealth Bell J said that the High Court in Mabo v Queensland recognised a connection that Aboriginal Australians have with “country” that is essentially spiritual. In Love Nettle J observed that central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.

[28] I received evidence of academic research and writing on Pitjantjatjara burial practices. I accept that it is important for Anangu to be buried back on country, the land of their totemic ancestors, the country of their Tjukurpa. The Anangu attribute the beginning of human and other life forms and the shaping of the environment to the activities of spirit beings, kurunpa tjuta, during the creative period known as Tjukurpa, usually glossed as the Dreaming. In Pitjantjatjara customary lore, before the Dreaming there existed a formless substance, under the surface of which the various spirit beings lay dormant. Tjurkurpa refers to the occasions when these beings became animated and emerged on the surface of the earth, sharing identities of both humans and the animal and plants species of the localities. I accept that for Anangu men the primary Tjurkurpa connection is the relationship to their father’s and grandfathers’ country confirmed through initiation ceremonies into manhood. On death their spirit returns to the country of their Tjurkurpa totemic ancestor of their spirit. In this case, that is Pukatja. 

2[9] Undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, I consider Pukatja has the stronger claim to be the appropriate place of burial of the deceased.