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.

Environments

'Theorising International Environmental Law' by Stephen Humphreys and Yoriko Otomo in Florian Hoffmann and Anne Orford (eds) The Oxford Handbook of International Legal Theory (Oxford University Press, 2014)

sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 

As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.

In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

They comment that

International environmental law raises a paradox. As the body of international law that regulates ‘the environment’, one might expect international environmental law to be a cornerstone of the international legal system. What, after all, is more fundamental to the constitution of the world than the human relation to nature? And yet it is striking how little international environmental law does, in fact, regulate. The global food regime, for example, mostly escapes it: agricultural practices and the slaughter of animals for food (or otherwise) are largely beyond its remit. Those phenomena referred to as ‘natural resources’ are generally managed under separate headers or, more often, private arrangements. Instead we find international environmental law at the margins of these concerns, dealing with the ‘conservation’ of certain plants, certain animals, certain ‘ecosystems’. Marginalia complemented by effluvia: as a matter of treaty law, international environmental law also aims to curb certain forms of pollution. In keeping with this general peripherality, the key environmental cases have arisen at the edges of other bodies of law. International environmental law is generally characterised as quintessential ‘soft law’: general principles and aspirational treaties with weak or exhortatory compliance mechanisms, often dependent on other disciplines altogether—science and economics—for direction and legitimacy. At the same time, the problems it is called upon to deal with are immense, frequently catastrophic, and global in nature: climate change, species extinction, increasing desert, disappearing rainforest. 

Despite or because of all this, international environmental law, more than most bodies of law, has many of the trappings of a faith. It derives its effect largely from its affect: international environmental law stages a kind of global moral authority, premised on an aesthetic ideal and an ethical disquiet. For its acolytes, its essence lies in a series of general principles: the do-no-harm principle, the precautionary principle, the polluter pays principle, the principles of equity and ‘common but differentiated responsibilities’, and of course the über-principle: ‘sustainable development’. Interposed into the practices of international commerce and diplomacy, as its advocates demand, these principles promise radical reshaping of ‘business-as-usual’. In vain, it seems: for, again more than most areas of international law, this is law crying in the wilderness. 

The little sustained theoretical attention this body of law has attracted to date has concentrated in the main on its relationship with property law—posited as one of mutual constraint. While we touch on this important question, in this chapter we direct our principal focus elsewhere, situating international environmental law with regard to the constituent conceptual elements that generate its specific energy and propel its contradictions today. We find this energy and tension in two principal historical sources: first, the romantic movement of the late eighteenth/early nineteenth centuries; second the evolution of colonial governance practices through to the mid-twentieth century. 

As to the first of these, it is through romantic philosophy and poetry that contemporary ideas about ‘nature’ became firmly established. This influential movement, as political as it was artistic, implanted lasting notions of the beauty of ‘unspoilt’ wilderness, imbued with a profound moral significance, that have endured to the present and provide the ideational backdrop specific to this body of international law, as we will show. In this venture, we will be aided by what is by now a significant body of work investigating the intellectual origins of modern environmentalism. 

As to the second source, from the outset, administrators in colonial territories found themselves grappling with concrete questions on the management of territorial, natural, and livestock resources. These included: a demand for immediate returns on the significant investments of colonial enterprise; a belated preservationist impulse emerging from the burgeoning aestheticisation of colonial landscapes; and a drive to ensure sustainable long-term access to the resources that increasingly fuelled a global economy. In examining the competing discourses of colonial resource management, we will be drawing on a second literature that has recently flowered: that of environmental history. 

In this chapter, therefore, we will tentatively open up some new theoretical perspectives on a body of law that (perhaps surprisingly for such an epistemologically rich subject) has been subjected to little theoretical speculation. After this introduction, we begin by posing a question of terminology—why ‘international environmental law’? Then, following sections on the romantics and the colonials, we return to the present in our conclusion to show how international environmental law’s origins in the confluence of the romantic and the colonial explains the apparent mismatch between its ambitious stated objectives and its muted regulatory provisions—and how this tension continues to inform its functioning today.

'Re-Examining Acts of God' by Jill Fraley in (2010) 27 Pace Environmental Law Review comments

 For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man’s anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude liability for damages resulting from Hurricane Katrina, but his argument rested more on an issue of fact whether the hurricane was foreseeable-than a critique of the doctrine itself. 

With so little attention given to this ancient doctrine, scholars have yet to consider the implications of major theoretical shifts in both law and geography that repudiate a separation of “the human” from “the natural.” Notably, this neglect has continued despite significant grappling with defining “nature” and “natural” in other legal contexts such as patents, federal food and drug regulations,” and public lands management or wilderness protection.” Currently, the acts of God doctrine continues its traditional uses in tort, contract, and insurance law, while also being enshrined in new environmental statutes as a method of creating a limit on liability when the polluter might not reasonably have anticipated circumstances-albeit a strict construction of the doctrine.” For example, the Comprehensive Environmental Response, Compensation, and Liability Act applies the acts of God doctrine, as does the Oil Pollution Act. Yet, it is precisely this context of environmental issues that places the most pressure on the theoretical validity of the defense. With increasing awareness of the human role in climatic and weather changes, dividing human from natural or divine action is far from uncomplicated. 

This article discusses the origins, applications, and utility of the acts of God defense, particularly with an eye towards establishing its theoretical foundations and the reliance on the classical human-nature divide. The article will demonstrate how the crumbling classical divide is already causing shifts in legal doctrines across areas as diverse as food and drug law, wilderness protection, and patents. Then through a deeper engagement with the geographical theory responsible for our renewed vision of the human-nature relationship, the argument establishes a critique of the act of God defense as it has been traditionally formulated. In the final analysis, the article suggests that the act of God defense must be shifted to remove any reliance on a strict divide between human and natural action.

Angels and the WA Medical Board

It is a rare case that pushes me to reread Rilke, specifically Elegy 1 of the Duino Elegies -

Who, if I cried out, would hear me among the Angelic Orders?
and even if one of them pressed me suddenly against his heart:
I would be consumed in that overwhelming existence.
For beauty is nothing but the beginning of terror, which we are still just able to endure,
and we are so awed because it serenely disdains to annihilate us.
Every angel is terrifying.
And so I hold myself back and swallow the call-note of my dark sobbing.
Ah, whom can we ever turn to in our need?
Not angels, not humans, and already the cunning animals are aware
that we are not really at home in our decipher world.
Perhaps there remains for us some tree on a hillside,
which every day we can take into our vision;
there remains for us yesterday's street and the loyalty of a habit so much at ease
when it stayed with us that it moved in and never left.
Oh and night: there is night, when a wind full of infinite space gnaws at our faces.
Whom would it not remain for - that longed-after, mildly disillusioning presence,
which the solitary heart so painfully meets.

In A Practitioner v The Medical Board of Western Australia [2005] WASC 198 the WA Supreme Court in considering the Medical Board's suspension of a practitioner noted that Dr X, in dealing with a vulnerable female patient as that person's general practitioner, was responsible for her health care between January 2003 and July 2003.

The Board considered whether Dr X "may have been guilty of infamous or improper conduct in a professional respect or alternatively guilty of gross carelessness or incompetency" in the course of that therapeutic relationship. It apparently found that

Between in or about March 2003 and in or about May 2003 you formed and thereafter held beliefs of a religious or spiritual nature that included the following:

(i) God had a special purpose for the Patient and that she was the 'chosen one' and that you were 'to be her brother and she was to be your sister'; 

(ii) that God was guiding you in your dealings with the Patient and communicating messages to you through an angel, some of which messages related, amongst other things, to the Patient's health and her relationship with her husband; 

(iii) that you had been annointed [sic] by God to baptise the Patient and that this baptism should take place in secret.

The baptism took place.

Dr X was held by the Board to have known or ought to have known that the beliefs impaired, or were likely to impair, his clinical judgment and that he should have terminated the therapeutic relationship with the Patient as soon as he formed these beliefs.

Unsurprisingly, given those beliefs, he did not terminate the therapeutic relationship and the personal relationship - complete with the spiritual dimension - developed.

It appears to have ended in tears for everyone. Dr X, after a spell as an involuntary psychiatric patient, was reprimanded and fined $10,000 but apparently not permanently excluded from medical practice.

Whom can we ever turn to in our need? Not angels, not practitioners with serious problems of their own.

Connectivity

The latest Household Use of Information Technology, Australia report from the Australian Bureau of Statistics indicates that -

• ihe number of households with internet access at home continues to increase, reaching 7.3 million households in 2012–13 (i.e. 83% of all households, up from 79% in 2010–11).
• 77% of all households had access via a broadband connection.
• almost every household with children under 15 years of age had access to the internet at home (96%), compared to 78% of households without children under 15 years of age in 2012–13. 
• the greater the household income the more likely there is internet access at home. In 2012–13, 98% of households with household income of $120,000 or more had internet access, compared to 57% of households with household income of less than $40,000.
• some 81% of the online households accessed the internet at home every day. A further 16% accessed the internet at home at least weekly
• 76% of Australia's 15.4 million internet users (i.e. people aged 15 and over who accessed the internet from any site within the previous 12 months) made a purchase or order over the internet
• the most popular types of purchases were travel, accommodation, memberships or tickets. Travel, accommodation, memberships or tickets of any kind were the most common type of purchase for both male and female users. 
• the second most popular online shopping items for females were clothes, cosmetics or jewellery (59%), in comparison to males second most popular purchases of CDs, music, DVDs, videos, books or magazines (50%).
• there is a slightly higher proportion of male than female internet users (84% compared to 83%)
• over 76% of female internet users shopped online compared to 75% of male internet users.  
• the two most popular activities performed on the internet at home were paying bills or banking online and social networking. 
• Social networking was more common for younger people: 90% of the 15 to 17 year old cohort and 92% of the 18 to 24 year old cohort performed this activity.

Nepotismo 2.0

From 'Nepotism, patronage and the public trust', a paper [PDF] delivered two days ago by Queensland Integrity Commissioner Dr David Solomon AM -

In September 2013, the Crime and Misconduct Commission (CMC) published a report of an investigation it had conducted into alleged misconduct at the University of Queensland. The misconduct concerned a decision in December 2010 that a school leaver who did not satisfy the university’s entrance requirements should receive an offer to enrol in Medicine which was not warranted according to the admission criteria at the time, there being 343 other applicants who were more qualified. The person who received the offer was the daughter of the then Vice-Chancellor. A formal complaint was made to the Chancellor of the university about nine months later. The following month the CMC began its investigation. The matter shortly afterwards became public knowledge through the media. Both the Vice-Chancellor and his deputy subsequently resigned their positions. 

The CMC’s report contains just one mention of a word which describes the particular form of misconduct that was involved in this case, nepotism. This was in the introduction to the report, where reference was made to how the public became aware of the matter through having ‘read media accounts of irregularities and nepotism at the University’. For the rest of the report, the allegations are referred to as official misconduct and as conflicts of interest. There was no analysis of what ‘nepotism’ means or involves. 

Nepotism is a form of patronage. The exercise of both nepotism and patronage may give rise to a conflict of interest. It is noteworthy that there is a special word for nepotist behaviour in most European languages. It is almost invariably used in a pejorative way. 

The Macquarie Dictionary defines nepotism as ‘patronage bestowed in consideration of family relationship and not of merit’ tracing it from the Latin for ‘descendant’. My old (4th edition) Concise Oxford gives a more commonly used definition and source, ‘Undue favour from holder of patronage to relatives (orig. from Pope to illegitimate sons called nephews)’ and says the word is derived from the Italian for nephew. 

According to an American book about nepotism:

The term nepotismo was coined sometime in the fourteenth or fifteenth century to describe the corrupt practice of appointing papal relatives to office – usually illegitimate sons described as ‘nephews’ – and for a long time this ecclesiastical origin continued to be reflected in dictionaries... The modern definition of nepotism is favouritism based on kinship, but over time the word’s dictionary meaning and its conventional applications have diverged. Most people today define the term very narrowly to mean not just hiring a relative, but hiring one who is grossly incompetent – though technically one would have to agree that hiring a relative is nepotism whether he or she is qualified or not. But nepotism has also proved to be a highly elastic concept, capable of being applied to a much broader range of relationships than simple consanguinity. Many practices that seem normal and acceptable to some look like nepotism to others.

It is necessary to take up two of the specific matters alluded to by the author, Adam Bellow, in that discussion of the definition of nepotism, as well as some of the other issues in his book, which is somewhat aggressively titled, ‘In praise of nepotism’. 

First, whether it is appropriate to apply the term nepotism only if it applies to the beneficiary being unqualified. 

Second, whether it is appropriate to apply the term outside ‘simple consanguinity’. 

The first raises what is one of the most important issues about nepotism, because it challenges the notion that nepotism is inherently improper or unethical. That issue is whether if a relative or other person whose appointment could be described as nepotistic ceases to be so because they hold qualifications appropriate to the position to which they are being appointed. In my view it is still appropriate to use the nepotism label, even if the person benefitting from it is at least as qualified as anyone else who might be appointed. However the beneficiary should not be precluded from the appointment because of his or her familial or other relevant relationship, though there may be other reasons why such an appointment should not be made – for example, it may be difficult to remove such a person from their position if they prove to be unsuccessful, or the requirements of the position may be changed in a way that makes it desirable that they be replaced. What is essential, however, is that an independent observer, fully informed of the facts, can conclude that the person deserved to be appointed for reasons other than the nepotistic relationship. This would normally mean that the position has been open to all, and the merits of those interested in taking it have been properly and independently assessed. 

This approach implies that the exercise of nepotism is not invariably or inevitably improper or unethical. It is necessary to determine the facts about its exercise in any particular case before reaching an objective conclusion about whether its exercise is wrong. The fact that there is a word for it does not mean that nepotism must always be condemned. 

The second issue raised by Bellow’s definition is how narrowly the term should be defined. Should it be linked, as he put it, to consanguinity. Clearly not. Consanguinity [related by birth] would not include one’s spouse or partner and some other close relatives. But what about close friends and associates (including political associates), mates, business partners and the like? Strictly speaking, such associations would be covered by the term ‘cronyism’ [crony: an intimate friend or companion] but I suspect popular usage now includes cronyism within nepotism. And what about the close relations (children in particular) of colleagues? In what follows I propose to use the word nepotism to describe the appointment by a person in authority of all such people, though later I will extend the discussion to cover the broader issue of patronage, which in relation to this matter, is defined as ‘the control of appointments to the public service or of other political favours’.

Privacy Impact Assessments

The UK Information Commissioner (ICO) has released an updated version of its Privacy Impact Assessments (PIA) Code of Practice.

Coincidentally the Office of the Australian Information Commissioner (OAIC) has announced that a draft Guide to undertaking privacy impact assessments will soon be released for public consultation.

The UK Code is characterised as meant

to help organisations respect people’s privacy when changing the way they handle people’s information. The code explains the privacy issues that organisations should consider when planning projects that use personal information, including the need to consult with stakeholders, identify privacy risks and address these risks in the final project plan. 

The UK Commissioner states that

With a research study carried out by the ICO last year showing that only 40% of people believe that organisations handle their information in a fair and proper way, privacy impact assessments can be an important means of retaining consumer trust by showing that organisations are working to respect people’s privacy. 

ICO Head of Policy, Steve Wood, said: “The development of projects involving the processing of large amounts of personal information is no longer the preserve of the public sector and large businesses. Today even an app developer can be developing a product in their bedroom that involves using thousands of people’s information. 

“This is why we have published our updated privacy impact assessments code of practice to help organisations of all sizes ensure that the privacy risks associated with a project are identified and addressed at an early stage during a project’s development. 

“The updated code is designed to ensure that privacy impact assessments fit into the project development process, allowing organisations to follow a privacy by design approach to developing new ways of using people’s information. Successfully adopting this approach can only be good for consumers and for business and can enable organisations to demonstrate their compliance with the Data Protection Act.”

The revised UK Code  reflects consultation last year that "highlighted the need for the updated code to be flexible enough to be applicable to organisations of all sizes and for privacy impact assessments to fit into the existing project development process".

The ICO has released a 267 page research project report on Privacy impact assessment and risk management [PDF].

Recommendations in that report were -

Recommendations for the ICO 

1. that the ICO develop measures aimed at promoting a closer fit between PIA and risk- and project-management methodologies through direct contact with leading industry, trade, and other organisations in both the public and private sectors. 

2. that, in revising its PIA Handbook, the ICO make the third edition much shorter, more streamlined, and more tailored to different organisational needs. It should be principles-based and focused on the PIA process. The ICO should undertake a consultation on a draft of a revised guidance document. 

3. that the ICO’s guidance on PIA emphasise the benefits to business and public-sector organisations in terms of public trust and confidence, and in terms of the improvement of internal privacy risk-management procedures and organisational structures. 

4. that ICO guidance help organisations to understand and evaluate privacy risk, whether or not they can integrate PIA into their risk-management routines and methodologies. 

5. that the ICO develop a set of benchmarks that organisations could use to test how well they are following the ICO PIA guidance and/or how well they integrate PIA with their project- and risk-management practices, especially where there are “touch points”. 

6. that the ICO strongly urge PIA-performing organisations to report on how their PIAs have been implemented in subsequent practice, and to review the situation periodically. 

7.  that the ICO promote to organisations the benefits of establishing repositories or registries of PIAs. We recommend that the ICO compile a registry of publicly available PIA reports, or at least a bibliography of such reports. 

8. that the ICO take advantage of the current work within ISO to develop a PIA standard, and the BSI’s technical panel’s contribution to it. 

9. that the ICO audit the PIA process and PIA reports in at least a sample of government departments and agencies. 

10. We recommend that privacy risk be taken into explicit account in the Combined Code for companies listed on the London Stock Exchange. 

11. that privacy risk be inserted into government guidance such as the Treasury Orange Book and the Green Book on appraisal and evaluation in central government. 

12. that, at senior ministerial and official levels in government departments, and among special advisers, the ICO engage in dialogue to underline the importance of 16 privacy and PIA while developing new policy and regulations and in the communication plans accompanying new policies. 

13. that the ICO encourage the Treasury to adopt a rule that PIAs must accompany any budgetary submissions for new policies, programmes and projects. 

14. that the ICO encourage ENISA to support the ICO initiatives with regard to insert provisions relating to PIA in risk management standards as well as within ENISA’s own approach to risk assessment. 

15. that the ICO accelerate the development of privacy awareness through direct outreach to organisations responsible for the training and certification of project managers and risk managers. 

Recommendations for companies and other organisations 

16. that, to help embed PIA and to integrate it better with project and risk management practices, a requirement to conduct a PIA be included in business cases, at the inception of projects, and in procurement procedures. Organisations should require project managers to answer a simple PIA questionnaire at the beginning of a project or initiative to determine the specific kind of PIA that should be undertaken. 

17. that senior management take privacy impacts into consideration as part of all decisions involving the collection, use and/or sharing of personal data. 

18. that companies and other organisations review annually their PIA documents and processes, and should consider the revision or updating of their processes as a normal part of corporate performance management. 

19. that companies and other organisations embed privacy awareness and develop a privacy culture, and should provide training to staff in order to develop such a culture. High priority should be given to developing ways of incorporating an enhanced PIA/risk assessment approach into training materials where information-processing activities pose risks to privacy and other values. 

20. that companies and other organisations include contact details on their PIA cover sheets identifying those who prepared the PIA and how they can be contacted. The PIA should promote the provision of a contact person as “best practice”. Such practice needs to be made mandatory certainly within any government organisation and any organisation doing business with the government. Such practice should also be promoted within standards organisations. 

21. that public-sector organisations insert strong requirements in their procurement processes so that those seeking contracts to supply new information systems with potential risk to privacy demonstrate their use of an integrative approach to PIA, risk management and project management. 

22. that companies and other organisations include privacy in their governance framework and processes in order to define clear responsibilities and a reporting structure for privacy risks. 

23. that companies and other organisations include a PIA task, similar to a work-package or a sub-work-package, in their project plan structures in order to embed PIA better within project management practices, and that project managers monitor and implement this new privacy task, based on the identified privacy requirements, as is done in the case of other project tasks. 

24. that, to foster internal buy-in for any newly adopted processes and procedures, companies and other organisations undertake extensive internal consultation with all parts of the organisation involved in risk management and project management, when thinking of integrating PIA into existing organisational processes. 

25. that companies and other organisations include identified privacy risks in their corporate risk register, and that they update their register when new or specific types of privacy risk are identified by implementation teams. 

26. that companies and other organisations develop practical and easy guidance on the techniques for assessing privacy risks and actions to mitigate them.

The recommendations reflect concerns such as -

While there are commonalities between the project and risk management processes and the PIA process, most of the methodologies do not mention privacy risks or even risks to the individual. Nevertheless, to the extent that privacy risks pose risks to the organisation, the organisation should take account of such risks in their project and risk management processes, including listing such risks in the organisation’s risk register. It should not be too difficult to convince organisations of the importance of taking privacy risks into account and regarding privacy risk as another type of risk (just like environmental risks or currency risks or competitive risks). Especially in industries that deal directly with the general public – for example, banking, entertainment, and retail – privacy breaches, not confined to “data breaches”, can be a significant threat to the company’s reputation. Based on examples of privacy breaches, it should not be too difficult to convince organisations about the need to guard against reputational risk 

Many of the risk management methodologies include provisions for taking into account information security (as distinct from privacy risks), and specifically with regard to confidentiality, integrity and availability of the information. Few go beyond this with the notable exception of ISO 29100, which specifically addresses privacy principles, IT Grundschutz and the CNIL methodology on privacy risk management. One can note that the privacy part of IT Grundschutz was written by the German DPA, and that the CNIL is the French DPA. Helpfully, both the privacy part of IT Grundschutz and the guides published by the CNIL include catalogues of privacy threat descriptions supplemented by the corresponding privacy controls.

Some of the project and risk management methodologies call for consulting or engaging stakeholders, especially internally, but some (e.g., ISO 31000, ISO 27005) externally as well. PIA does the same. Some of the project and risk management methodologies (e.g., ISO 31000, ISO 27005) call for reviewing or understanding or taking into account the internal and external contexts. This is true of PIA too.

Some of the project and risk management methodologies emphasise the importance of senior management support and commitment, which is also important for successful PIAs. Some of the risk management methodologies call for embedding risk awareness throughout the organisation. Some call for training staff and raising their awareness, which is also essential to PIAs. 

Almost all of the methodologies are silent on the issue of publishing the project or risk management report, although some do attach importance to documenting the process. Similarly, most are silent on the issue of independent, third-party review or audit to the project or risk management reports. There is, however, a requirement for companies listed on the London Stock Exchange to include information in their annual reports about the risks facing the company and how the company is addressing those risks.

In Australia the new Guide will replace the OAIC’s existing Privacy Impact Assessment Guide [here], reflecting changes to the Privacy Act 1988 and "taking into account key features of privacy impact assessment guides from other jurisdictions and research on good practice in undertaking privacy impact assessments".

IP Theory, Shame and Tomato Juice

'Theories of intellectual property: Is it worth the effort?' by Neil Wilkof in (2014) Journal of Intellectual Property Law & Practice asks "Should one care about theories of intellectual property?". At least one practitioner has advised 'no, we leave that to you'.

Wilkof goes on to state

A decade ago, Professor William Fisher, of Harvard University, made a challenging attempt to answer “yes”, in a book chapter entitled “Theories of Intellectual Property”. While never quite distinguishing between a philosophy, an approach, and a theory of intellectual property, Fisher identifies four analytical constructs, which we will call “theories”, namely—(i) utilitarian for maximizing net social value, (ii) Lockean (one has the right to the fruits of his intellectual labour); (iii) protection of personality in works; and (iv) fostering a just and attractive culture.

In his editorial for JIPLP Wilkof argues that

The utilitarian theory applies economic constructs to propose how intellectual property rights can achieve the Benthamite ideal of “the greatest good for the greatest number.” Cloaked in the more current notion of “wealth-maximization”, the focus is how to balance the social costs and benefits associated with giving legal effect to IP laws and rules. While the theory has produced various elegant propositions on how to conceive of this balance, it has proved to be devilishly difficult to create robust ways to measure inputs, outputs and process. 

The second, i.e. labour theory, reflects Locke on property rights -

Locke asserted that a person enjoys a natural right in the fruits of his labour in transforming raw materials (viewed as including, eg facts and concepts) that are “held in common” into a finished product of enhanced value, and the state has a duty to enforce the natural right that derives from the labour.

Wilkof's criticism is that

it does not self-explain why labour added to a resource “held in common” should entitle one to a property right in such resource; if “yes”, what is meant by “intellectual labour” and “held in common”; and how far should one's rights go in the fruits of his labour (as Robert Nozick observed, “if I pour my can of tomato juice into the ocean, do I own the ocean?”). As a result, seeking to apply the Lockean approach of property must inevitably end in potentially unmanageable analytical uncertainty. 

Gewirthian flourishing? The  personality theory is characterise by Fisher

as justifying property rights “when and only when they would promote human flourishing by protecting or fostering fundamental human needs or interests.”

Wilkof asks how can we identify the needs or interests to be promoted, noting Fisher's identification of four needs or interests appropriate for intellectual property - benevolence, identity, self-realisation and privacy.

He comments that there is however no agreement on how to apply those interests, e.g. -

is protection of trade secrets “necessary” to protect interests of privacy? Some say “yes” (a right of privacy extends to the freedom to disclose to a limited circle of friends without the fear that it will be disclosed to the entire world), while others say “no” (since most trade secrets are owned by corporations, that do not have the “personal features” that privacy is intended to protect). 

He notes that the final theory (voiced by “an eclectic cluster of political and legal theorists”) has less of an established foundation -

Called “social planning theory”, it differs from utilitarian theory in that it seeks to go beyond the notion of “social welfare” to a much broader vision of society serviced by intellectual property. An example given is Neil Netanel's view of copyright as intending to serve “a robust, participatory, and pluralist civil society,” where “unions, churches, political and social movements, civic and neighborhood associations, schools of thought, and educational institutions” abound.

Wilkof concludes that it

does not, and cannot, achieve agreement on what are the goals that such “social planning” seeks to achieve. As such, it too is inadequate.

'Fear and Loathing: Shame, Shaming, and Intellectual Property' by Elizabeth Rosenblatt investigates

the relationship between intellectual property protection, shame, and shaming. Although some scholars have examined shame and shaming as they relate to criminal law and behavior, none have considered how shame and shaming govern intellectual property and copying behavior. This paper identifies and focuses on two significant intersections: First, shame shapes the behavior of would-be copiers, who abide by anti-copying norms even in the absence of formal intellectual property protection. Second, public shaming shapes the behavior of intellectual property owners, who refrain from aggressively enforcing their rights to avoid being identified as bullies or trolls. 

These two shame/shaming effects have opposing results — on one hand, restriction on copying, and on the other, the freedom to copy — but they unite to establish and enforce intellectual property “negative spaces” where innovation and creation thrive without significant formal intellectual property protection or enforcement. In areas beyond the reach of formal intellectual property protection, shame helps define the boundaries of informal or norms-based intellectual property practices. In areas governed by formal intellectual property protection, shaming helps define the boundaries of rights holders’ enforcement forbearance. The result of these effects is an overlay of shame- and shaming-driven behavior that sits atop, and informally adjusts, the boundaries of formal intellectual property protection. This, in turn, requires us to adjust our thinking about the ideal boundaries of formal protection. Shame and shaming are not suitable substitutes for formal law, nor are they miracle cures for law’s failings, but they may act as guideposts for determining where to draw the lines of formal legal protection.