AI and Human Rights

Governing Artificial Intelligence: Upholding Human Rights and Dignity by Mark Latonero comments

Can international human rights help guide and govern artificial intelligence (AI)?Currently, much of society is uncertain about the real human impacts of AI systems. Amid hopes that AI can bring forth “global good” there is evidence that some AI systems are already violating fundamental rights and freedoms. As stakeholders look for a North Star to guide AI development, we can rely on human rights to help chart the course ahead. International human rights are a powerful tool for identifying, preventing, and redressing an important class of risks and harms. A human rights-based frame could provide those developing AI with the aspirational, normative, and legal guidance to uphold human dignity and the inherent worth of every individual regardless of country or jurisdiction. Simply put:

In order for AI to benefit the common good, at the very least its design and deployment should avoid harms to fundamental human values. International human rights provide a robust and global formulation of those values. 

This report is intended as a resource for anyone working in the field of AI and governance. It is also intended for those in the human rights field, outlining why they should be concerned about the present-day impacts of AI. What follows translates between these fields by reframing the societal impact of AI systems through the lens of human rights. As a starting point, we focus on five initial examples of human rights areas – nondiscrimination, equality, political participation, privacy, and freedom of expression – and demonstrate how each one is implicated in a number of recent controversies generated as a result of AI-related systems. Despite these well-publicized examples of rights harms, some progress is already underway. Anticipating negative impacts to persons with disabilities, for example, can lead designers to build AI systems that protect and promote their rights. 

This primer provides a snapshot of stakeholder engagement at the intersection of AI and human rights. While some companies in the private sector have scrambled to react in the face of criticism, others are proactively assessing the human rights impact of their AI products. In addition, the sectors of government, intergovernmental organizations, civil society, and academia have had their own nascent developments. There may be some momentum for adopting a human rights approach for AI among large tech companies and civil society organizations. To date, there are only a few, albeit significant, number of examples at the United Nations (UN), in government, and academia that bring human rights to the center of AI governance debates. 

Human rights cannot address all the present and unforeseen concerns pertaining to AI. Near-term work in this area should focus on how a human rights approach could be practically implemented through policy, practice, and organizational change. Further to this goal, this report offers some initial recommendations:

• Technology companies should find effective channels of communication with local civil society groups and researchers, particularly in geographic areas where human rights concerns are high, in order to identify and respond to risks related to AI deployments. 

• Technology companies and researchers should conduct Human Rights Impact Assessments (HRIAs) through the life cycle of their AI systems. Researchers should reevaluate HRIA methodology for AI, particularly in light of new developments in algorithmic impact assessments. Toolkits should be developed to assess specific industry needs. 

• Governments should acknowledge their human rights obligations and incorporate a duty to protect fundamental rights in national AI policies, guidelines, and possible regulations. Governments can play a more active role in multilateral institutions, like the UN, to advocate for AI development that respects human rights. 

• Since human rights principles were not written as technical specifications, human rights lawyers, policy makers, social scientists, computer scientists, and engineers should work together to operationalize human rights into business models, workflows, and product design. 

• Academics should further examine the value, limitations, and interactions between human rights law and human dignity approaches, humanitarian law, and ethics in relation to emerging AI technologies. Human rights and legal scholars should work with other stakeholders on the tradeoffs between rights when faced with specific AI risks and harms. Social science researchers should empirically investigate the on-the-ground impact of AI on human rights. 

• UN human rights investigators and special rapporteurs should continue researching and publicizing the human rights impacts resulting from AI systems. UN officials and participating governments should evaluate whether existing UN mechanisms for international rights monitoring, accountability, and redress are adequate to respond to AI and other rapidly emerging technologies. UN leadership should also assume a central role in international technology debates by promoting shared global values based on fundamental rights and human dignity.

Survivor Fraud

Yet another survivor fraud, with Kelly Val Smith pleading guilty in Adelaide District Court to four counts of deception and one count of dishonestly dealing with documents between June 2012 and February 2015. She has been been jailed for at least two years.

Smith obtained over $200,000 through false claims to her family and associates, including that she needed money for treatment of ovarian cancer and cancer of the lymph nodes, as well as for her son to undergo an urgent operation for a heart condition. She also claimed her bank account had been hacked and her accounts frozen pending the outcome of an investigation by ASIC. She claimed that she would repay her victims with money she was expecting to receive from a victim's of crime payout of more than $1 million, purportedly compensation for psychological issues Smith suffered from being a witness to an armed robbery.

The ABC reports that Evans CJ said a psychiatric assessment of Smith found she became "Walter Mitty-ish" in a naive and foolish attempt to be liked and accepted.

 Your offending was elaborate and yet unsophisticated and was persistent over a long period of timeYou lied for your own financial advantage and also in attempt to be liked and accepted. "You created a fanciful world that gave you empowerment, however you were unable to control it. Your actions did not reflect any level of sophistication that would be characteristic of typical fraudulent behaviour. ... Your victims suffered significant financial losses — these losses resulted from some of them lending money to you, some purchasing property based on your promises to provide gifts that would cover the purchase

Three of Smith's childhood friends and her stepmother-in-law were each conned out of between $12,000 and $100,000 .

The ABC reports  that during a pre-sentencing hearing, Smith read a letter of apology to the court and her victims. Evans CJ said he struggled to accept that she was genuinely remorseful given the lateness of her guilty pleas, the lack of any prior apology or show of remorse and her failure to explain what she had down with the money.

Protective Security Framework Report

The Attorney-General's unsurprisingly terse and decidedly unannounced  Protective Security Policy Framework 2016-17 Compliance Report states

Effective protective security is essential to the secure delivery of government business. 

Security arrangements support government entities to identify threats and manage risks that have the potential to:

• harm staff or the public 

• compromise official information or assets, or 

• interrupt progress toward meeting government policy objectives.

The Protective Security Policy Framework (PSPF) is administered by the Attorney-General’s Department (AGD). It mandates 36 security requirements as detailed at Attachment A. 

The PSPF applies to non-corporate Commonwealth entities (NCCEs) subject to the Public Governance, Performance and Accountability Act 2013 in 2016–17. For corporate Commonwealth entities and wholly-owned Commonwealth companies (CCEs), the PSPF represents better practice. 

Entities are required to undertake an annual selfassessment of their PSPF compliance, then report on their security posture and measures taken to address identified key risks. 

Entity reporting 

All NCCEs submitted a PSPF compliance report for 2016–17; this is an improvement from 2015–16 where two NCCEs failed to report. In addition, five CCEs reported voluntarily (down from 12 in 2015 16) 

Key findings 

PSPF compliance 

While few (34.4%, 32 entities) NCCEs are fully compliant with all of the PSPF, the government’s security posture is still broadly sound. On average, NCCEs fully comply with a significant proportion of requirements (91.2%, 33 out of 36 – shown as “2016–17 PSPF compliance average” in Figures 3, 4 and 5). 

Key risk areas 

NCCEs continue to face challenges in achieving the PSPF’s information security requirements. Of note, only 60.2% of NCCEs reported full compliance with the INFOSEC 4 requirement. ... 

Security governance 

Compliance with PSPF governance requirements was high and remained relatively stable. On average, entities complied with 11.9 of the 13 governance requirements in 2015–16, increasing marginally to compliance with 12 requirements in 2016–17. ... 

Information security 

Information security is dynamic with challenges posed by continuous technological advancement. Information security arrangements are an important element of an entity’s effective protective security regime. 

Compliance with information security requirements has been an area of ongoing concern. Despite increased awareness of cyber security risks, and a concerted effort over the year to promote risk mitigation measures,1 entity compliance with information security requirements did not see significant change. In 2016–17, average compliance remained stable at 6.0 out of 7 requirements. 

Physical security 

NCCEs continued to report high-level compliance against the PSPF’s physical security requirements. On average NCCEs complied with 6.5 out of 7 requirements, broadly in line with the 2015–16 compliance rate of 6.6. 

Of particular note:

• all entities reported full compliance with the PHYSEC 4 requirement to ensure that physical security measures do not breach relevant employer occupational health and safety obligations, and 

• almost all entities reported full compliance with the PHYSEC 5 requirement to show a duty of care for the physical safety of members of the public interacting directly with the Australian Government.

A 5.4 percentage point decline in compliance with the PHYSEC 7 requirement was recorded such that ten NCCEs reported they did not have up-to-date plans and/or procedures in place to respond to heightened security levels in case of an emergency or increased threat. Most of these entities reported they expect this matter to be resolved in 2017–18. 

Personnel security 

In 2016–17, AGD led outreach activities on security culture and managing the ongoing suitability of personnel. 

In line with this, there was a significant (5.4 percentage point) improvement in entities reporting full compliance with the PERSEC2 requirement over the year. Reported compliance has increased from 78.5% of NCCEs in 2014–15 (82.8% in 2015–16) to 88.2% in 2016–17 

Compliance against other personnel security requirements did not see significant change. Average compliance remained stable at 8.3 out of 9 personnel security requirements. 

Personnel security waivers 

Access to classified resources is subject to personnel successfully undergoing a vetting process and holding a valid security clearance. Where clearance requirements are waived, government faces increased malicious insider risks (and may be more vulnerable to exploitation from organised crime and interference from foreign governments). There are two types of waivers: waivers of the Australian citizenship requirement, and waivers of the checkable background requirement. 

Waivers of the Australian citizenship requirement 

In 2016–17, there were 317 Australian Government security clearance holders who were not Australian citizens. Nonetheless, clearances with a citizenship waiver still make up less than 0.2% of the 200,000+ (as at August 2017) active clearances. Across government, citizenship waivers at the NV1 level saw the greatest increase over the year (47 in 2015–16, compared with 175 in 2016–17). 

Waivers of checkable background requirement 

Assurance about a person’s background gives confidence that they can be trusted to protect government information and resources. A person is considered to have an uncheckable background where more than 12 months (cumulative) of the security clearance background checking period cannot be verified. 

In 2016–17, there were 216 people with a security clearance whose background could not be adequately checked. Clearances with checkable background waivers represent only 0.1% of all active clearances. 

Historically, checkable background waivers have most commonly been for clearances at the Positive Vetting (PV) level. This reflects more onerous PV background checking expectations. 

In 2016–17 there were 130 additional NV1 checkable background waivers (from 7 in 2015–16, up to 137). The sizeable increases in checkable background waivers are attributable to a single entity. ... 

CCE compliance summary 

Five CCEs submitted a PSPF compliance report in 2016–17 (down from 12 in 2015–16). Noting the very small sample size, significant variations in year-to-year reported compliance can be expected. 

Two CCEs (40%) claimed full compliance with all 36 mandatory requirements, above the NCCE average of 35.5% (33 entities) but well below the 58% of CCEs (7 of 12) reporting full compliance in 2015–16. 

On average, CCEs reported full compliance with 35 of the 36 mandatory requirements; this is a slight improvement from the 34.4 compliance average reported in 2015–16 (and above the 32.8 NCCE average). 

CCEs reported: 

• full compliance with all PERSEC requirements. There was one citizenship waiver, held at the Baseline level, across all five entities 

• full compliance with all PHYSEC mandatory requirements (an increase from 6.9 of 7 requirements in 2015–16) 

• high rates of compliance with GOVSEC mandatory requirements. On average, CCEs complied with 12.4 of 13 requirements (95.4%) in both 2015-16 and 2016–17 (slightly above NCCE average of 12), and 

• like NCCEs, compliance was lowest in relation to INFOSEC requirements. CCEs reported compliance with 6.6 of 7 requirements in 2016–17 (94.3%), compared to 6.7 out of 7 in 2015–16.

National Identity Management

Blink and you'll miss it, as the Department of Home Affairs under Peter Dutton undertakes a review of national arrangements for the protection and management of identity information.

The Terms of Reference for the  Review are -

The Review will consider ways to enhance or strengthen arrangements for the protection, use and management of identity information in Australia.

The Review will be led by an independent eminent person or persons [Roger Wilkins, former Secretary of the Attorney-General's Department, and Professor David Lacey], supported by the Department of Home Affairs and other relevant Australian Government agencies.

Objectives

The Review has been commissioned to determine ways to enhance or strengthen arrangements that support and govern the protection and management of identity information in order to: better protect Australians from the theft or misuse of their identity information, and assist people to minimise and recover from the impacts identity crime should they become victims provide better targeted (that is, more convenient, tailored, efficient and effective) government services to individuals and business achieve these objectives in ways that respect and promote peoples' privacy.

Scope

The Review will focus primarily, but not necessarily exclusively, on arrangements for issuing, using and managing an individual's documents, credentials and their related identity information that are most commonly relied upon as evidence of a person's identity by government and key sectors of the economy.

The Review will focus on the identities of individuals and will not examine in any detailed arrangements for managing the identities of businesses, organisations or other legal entities.

The Review will identify and analyse the key enablers, obstacles and risks associated with national arrangements for the protection and management of identity information, including consideration of:

• legislative frameworks 

• practices and systems for the collection, use, sharing of identity information 

• coordination amongst government agencies, and between government and other entities.

The Review will be informed by consultations with:

• Commonwealth agencies, including through the Commonwealth Trusted Identities Committee 

• states and territories, including through the National Identity Security Coordination Group 

• key non-government stakeholders.

The Review will identify opportunities and options for short, medium and longer term reforms to enhance or strengthen the protection and management of identity information in Australia to meet the objectives of the Review; and which could provide the basis for a future iteration of the National Identity Security Strategy that could be considered by the Council of Australian Governments.

The Review will report by the end of November 2018.

Aged Care Royal Commission

The terms of Reference for the Aged Care Royal Commission (headed by the Honourable Justice Joseph McGrath) are

RECOGNISING the contribution of older Australians to society, and that older Australians deserve high quality care in a safe environment that protects their wellbeing and dignity. 

AND the importance of building a national culture of respect for ageing and older persons. · 

AND that Australia's population is ageing and the proportion and number of people accessing and ne~ding care is increasing. 

AND the many positive examples of high quality care within the Australian aged care sector which engages thousands of dedicated people providing aged care services every day, complemented by the important contribution of families and volunteers. 

AND that as a community all Australians expect high standards of quality and safety from our aged care services, and it is important that the Australian Government has the best regulatory and policy framework to provide a sustainable aged care system that meets the needs of older Australians in the future. 

AND that it is important that frail, older people needing care should receive services that reflect and address their care needs. 

AND that the Commonwealth provides funding to, and regulates, providers of aged care services. . 

AND that some people residing in aged care facilities, including younger people, or otherwise receiving aged care services, have disabilities and Australia has undertaken relevant international obligations, including to take all appropriate legislative, administrative and other measures for the implementation of the rights of people with disabilities. 

NOW THEREFORE We do, by Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and under the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and every other enabling power, appoint you to be a Commission of inquiry, and require and authorise you, to inquire into the following matters:

(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response; 

(b) how best to deliver aged care services to: (i) people with disabilities residing in aged care facilities, including younger people; and (ii) the increasing number of Australians living with dementia, having regard to the importance of dementia care for the future of aged care services; 

(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including: (i) in the context of changing demographics and preferences, in particular people's desire to remain living at home as they age; and (ii) in remote, rural and regional Australia; 

(d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe; 

(e) how to ensure that aged care services are person-centred, including through allowing people to exercise greater choice, control and independence in relation to their care, and improving engagement with families and carers on care-related matters; 

(f) how best to deliver aged care services in a sustainable way, including through innovative models of care, increased use of technology, and investment in the aged care workforce and capital infrastructure; 

(g) any matter reasonably incidental to a matter referred to in paragraphs (a) to (f) or that you believe is reasonably relevant to the inquiry. 

AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters: 

(h) all forms of Commonwealth-funded aged care services, whatever the setting or environment in which those services are delivered; 

(i) all aspects of the quality and safety of aged care services, including but not limited to the following: (i) dignity; (ii) choice and control; (iii) clinical care; (iv) medication management; (v) mental health; (vi) personal care; (vii) nutrition; (viii) positive behaviour supportsto reduce or eliminate the use of restrictive practices; (ix) end of life care; (x) systems to ensure that high quality care is delivered, such as governance arrangements and management support systems; 

(j) the critical role of the aged care workforce in delivering high quality, safe, person-centred care, and the need for close partnerships with families, carers and others providing care and support; 

(k) the wide diversity of older Australians and the barriers they face in' accessing and receiving high quality aged care services. This should take into account the increasing incidence of chronic and complex conditions; 

(1) the interface with other services accessed by people receiving aged care services, including primary health care services, acute care and disability services, and relevant regulatory systems. This should take into account how people transition from other care environments or between aged care settings; · 

(m) examples of good practice and innovative models in delivering aged care services; 

(n) the findings and recommendations of previous relevant reports and inquiries. 

AND We further declare that you are not required by these Our Letters Patent· to inquire, or to continue to inquire, into a particular matter to the extent that you are satisfied that the matter has been, is being, or will be, sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiryand recommendations, to consider the following matters, and We authorise you, as you consider appropriate, to take (or refrain from taking) any action arising out of your consideration: 

(o) the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law, including, for example, for the purpose of enabling the timely investigation and prosecution of offences; 

(p) the need to ensure that evidence that may be received by you that identifies particular individuals as having been subject to inappropriate treatment is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries; 

(q) the need to establish appropriate arrangements in relation to current and previous inquiries, in Australia and elsewhere, for evidence and information to be shared with you in ways consistent with relevant obligations so that the work of those inquiries, including, with any necessary consents, the testimony of witnesses, can be taken into account by you in a way that avoids unnecessary duplication, improves efficiency and avoids unnecessary trauma to witnesses; 

(r) the need to establish, as you see fit and having regard to the date by which. you are required to submit your final report, appropriate arrangements for evidence and information to be shared with you by people about their experiences, including people receiving aged care services, their families, carers and others who provide · care and support, recognising that some people will need special support to share their experiences.  ...

AND We declare that, in exercising your powers under Part 2 of the Royal Commissions Act 1902, you are to inquire into the matters falling within the scope of paragraphs (a) to (g) only to the extent that Commonwealth constitutional power extends to those subjects of inquiry. 

AND We declare that you are a Royal Commission to which item 5 of the table in subsection 355-70(1) in Schedule 1 to the Taxation Administration Act 1953 applies. 

AND We declare that in these Our Letters Patent:  aged care services means services provided by any of the following: · (a) approved providers within the meaning of the Aged Care Act 1997; (b) entities to which a grant is payable under Chapter 5 of the Aged Care Act 1997; (c) entities to which funding is payable under a program relating to aged care specified in Schedule lAA or lAB to the Financial Framework (Supplementary Powers) Regulations 1997; (d) entities that receive funding for the purposes of the Veterans' Home Care Program established under the Veterans' Entitlements Act 1986.

The Commission is  to submit  an interim report  not later than 31 October 2019 (ie safely after the election)  and a final report   not later than 30 April 2020

Gayed

The Civil and Administrative Tribunal of New South Wales has published its reasons for judgment in the matter of Health Care Complaints Commission v Gayed [2018] NSWCATOD 165, ahead of the findings by the Furness Inquiry.

Earlier this year the Secretary of NSW Health - under the Health Services Act 1997 (NSW) s 122 - appointed Gail Furness SC to conduct an inquiry. The NSW Medical Council separately appointed Ms Furness to undertake a review of the management by the Council of complaints about Gayed.​

The Tribunal's decision is

1. The respondent practitioner is guilty of professional misconduct.   

2. If the respondent practitioner were registered as a medical practitioner the Tribunal would have cancelled his registration.   

3. The respondent practitioner is disqualified from being registered as a health practitioner for three years from today.   

4. The National Board is required to record the fact that the Tribunal has cancelled the practitioner’s registration in the National Registry kept by the Board. 

5. Publication or broadcast without the leave of the Tribunal of the name or other identifying information in respect of any patient referred to in the proceedings is prohibited.   

6. The respondent practitioner must pay the applicant’s costs of or incidental to these proceedings as agreed, or as assessed.

The Tribunal states (at paras 37 to 73) that

The practitioner graduated with a Bachelor of Medicine and a Bachelor of Surgery in Egypt in 1976.

In 1993 he became a Fellow of the Royal Australia and New Zealand College of Obstetricians and Gynaecologists. He was first registered in New South Wales as a medical practitioner in 1994. He was registered as a “conditional specialist”.

In July 1997 the Health Care Complaints Commission received a complaint by a patient alleging that she had consented for a laparoscopy but the practitioner had performed a laparotomy.

In October 1997 there was a further complaint to the Health Care Complaints Commission that the patient’s bowel, ilium and uterus were perforated by the practitioner in a number of places ranging from 1cm to 5cm perforations. The complaint was dealt with by a Professional Standards Committee. He was reprimanded and ordered to undergo a performance assessment. It recommended informal counselling about some aspects of his practice.

In December 1998 there was another complaint from a patient of the practitioner who after surgery had needed to have further surgery to stop bleeding from an unknown source.

On 8 October 1998 the Health Care Complaints Commission received a complaint from Southern Area Health Service advising that a number of incidents had given rise to concerns about the practitioner’s practice and led to his suspension from the Area Health Service. The allegations made were breaches of protocols for infection control and universal precautions, adequacy of patient’s consents, alteration of a medical record, clinical competence, possible visual impairment and communication issues. These were all investigated and the matter was referred to a Professional Standards Committee. The Southern Area Health Service suspended the practitioner’s visiting rights. The issues that gave rise to that suspension were about breaches of protocols including inadequacy of a patient consent.

On 15 December 1998 the Health Care Complaints Commission received a complaint from Cooma Health Service concerning care provided by the practitioner to two patients. One of those patients alleged that after the practitioner had performed a hysterectomy, she needed further surgery to stop the bleeding from an unknown source. There was an investigation and ultimately no further action.

On 23 December 1998 a patient complained to the Health Care Complaints Commission that she had suffered from incontinence since the practitioner had performed a D&C on her in August 1997. It was referred to the Professional Standards Committee.

The other patient to whom the Cooma complaint applied lodged a complaint in February 1999 saying that she had suffered ongoing problems with her health after she developed “bleeding in my stomach” requiring a laparoscopy, hysteroscopy and D andC performed by the practitioner. This was investigated but ultimately no further action was taken. In April 2000 there was a complaint received from a patient alleging that she had required further surgery because she developed internal bleeding after surgery performed by the practitioner and also alleged that during a third operation later, it was found that the practitioner had stitched a section of her bowel to one of her ovaries. That complaint was investigated but no further action was taken.

A patient made a complaint to the Commission in May 2000 alleging that intercourse became painful after the practitioner performed a vaginal prolapse repair, that further surgery he performed failed to fix the problem, and subsequent surgery performed by another gynaecologist did. This complaint was referred to the Professional Standards Committee. There was a Professional Standards enquiry on 20 - 28 August 2001. The Committee considered nine complaints to the Health Care Complaints Commission. He was found to be guilty of unsatisfactory professional conduct and to be an impaired practitioner owing to his vision problems. Conditions were imposed on his registration including limiting the types of surgical procedures he could undertake.

A Performance Assessment was conducted on 13 September 2004.

Among the orders made by the Professional Standards Committee was that the practitioner not undertake microsurgery and be periodically assessed by an ophthalmologist. It was also recommended that performance assessment be undertaken.

On 30 September 2003 North Sydney Area Health Service temporarily suspended the practitioner’s VMO appointment because of a “cluster of seemingly adverse patient events”. It was then decided there be a performance assessment.

On 4 March 2004 there was a complaint to the HCCC by a patient alleging that when it appeared that she had gone into labour at 22 weeks pregnant with twins, the practitioner refused to transfer her from the regional hospital to another hospital with facilities to care for very premature babies, and that the babies were left to die when they were born at 23 weeks. There was an investigation and ultimately no further action.

On 13 September 2004 there was a performance assessment of the practitioner and his professional performance was found to be “at the standard reasonably expected of a practitioner of an equivalent level of training or experience”. The assessors recommended informal counselling of the practitioner about aspects of his practice which could be improved. That formal counselling occurred on 1 November 2005.

The Medical Tribunal conducted a review of the conditions of the practitioner’s registration on 30 March 2006 and the conditions imposed in 2001 were removed. The NSW Medical Board received notice on 16 March 2007 concerning a number of clinical incidents involving the practitioner and also notice that, by mutual agreement, the practitioner had resigned his appointment at Mona Vale Hospital. A further performance assessment was planned.

The Chair of the Medical Advisory Committee at Delmar Private Hospital notified the Health Care Complaints Commission on 26 March 2007 that the practitioner’s clinical privileges had been temporarily suspended because of concerns about the care provided to three patients. The Board requested that the practitioner be assessed for impairment. The matter was referred to a performance committee.

The practitioner in 2007 resigned from his appointment at Mona Vale Hospital because of clinical incidents and complaints.

On 28 May 2007 the Medical Board received a complaint from a patient alleging that the practitioner perforated her bowel during a laparoscopy and then failed to recognise the complication. This was referred for performance assessment.

On 25 October 2007 there was another performance assessment. The practitioner’s professional performance was found to be unsatisfactory in the areas of basic clinical skills (interviewing/examination), clinical judgment, patient management skills (treatment advice) and practical/technical skills.

On 23 April 2008 there was a Performance Review Panel hearing. The practitioner’s professional performance was found to be unsatisfactory. Conditions were imposed in limiting the surgery that he could perform and requiring him to have a mentor. Re-assessment no sooner than six months’ time was ordered.

On 6 July 2009 Patient G, who was one of the patients to whom the complaints in these proceedings relate complained to the Medical Board about a laparoscopy performed by the practitioner on her for endometriosis. She noted that he was not permitted to perform laparoscopies for moderate to severe endometriosis and queried why he was permitted to perform the surgery when he did not know what degree of endometriosis she had ahead of the surgery. The matter was referred to the Medical Board but no action was taken.

The Performance Committee of the Medical Board on 25 August 2009 decided that the mentorship condition on the practitioner’s registration be removed.

On 24 May 2010 there was a complaint to the HCCC by a patient alleging that the practitioner failed to give her appropriate information about after-care following surgery he performed and that a large swab was left in her vagina, possibly causing an infection. It appears that the patient discontinued dealing with the Commission.

On 8 July 2011 there was a complaint to the Health Care Complaints Commission by a patient alleging that the practitioner did not obtain an informed consent from her before removing three-quarters of her cervix. She had consented to a laparoscopy and the practitioner had performed a laparotomy. There was also an issue that she required further surgery to remove an incorrectly placed stitch around the urethra. The matter was later referred to the Professional Standards Committee.

On 10 October 2013 the practitioner underwent a Performance Re-Assessment Review and his performance was found to be unsatisfactory in the areas of basic clinical skills (interview/examination), clinical judgment, practical/technical skills and interaction/communication with patients. The recommendation was that there be a Performance Review Panel hearing and regular ophthalmological assessment.

On 12 November 2013 there was a complaint to the Health Care Complaints Commission from a patient alleging that the practitioner had used non-dissolvable stitches following her Caesarean section but did not tell her of this, with the result that she required surgery one year later to remove the stitches.

On 16 October 2014 there was a second Performance Review Panel hearing. The finding of the hearing was that the practitioner’s professional performance was of the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Panel considered that continuation of his existing conditions would be prudent, with variation to one condition.

On 27 January 2015 the Performance Committee considered the Panel’s report and resolved to vary Condition 2 on the practitioner’s registration to clarify the nature of the surgery that he is not permitted to perform.

On 5 March 2015 the HCCC received a complaint from a patient alleging that she developed a hernia at the site at which the practitioner performed a laparotomy, requiring further surgery. On 18 November 2015 there was a complaint by the patient who had made a complaint to the Medical Board on 6 July 2009 alleging that she suffered serious complications after the practitioner did not recognise that he had severed a ureter during surgery performed to treat her endometriosis.

On 3 December 2015 the HCCC received a complaint from a patient alleging that the practitioner had provided inappropriate treatment for retained placenta following the birth of her child. On 26 February 2016 there was a complaint received by the HCCC alleging that the practitioner performed a laparotomy on her in breach of his conditions.

On 4 March 2016 there was a notification from the Hunter New England Local Health District that the practitioner had been suspended from his duties at the regional hospital owing to concerns about the care he had provided to six patients. Those matters were being investigated by the HCCC.

EU Consumer Data Protection and the CDR

The EU Data Protection Supervisor has released an Opinion on data protection aspects of the EU 'A New Deal for Consumers' legislative package. That package is composed of the Proposal for a Directive as regards better enforcement and modernisation of EU consumer protection rules and the Proposal for a Directive on representative actions for the protection of the collective interests of consumers.

EDPS Opinion 8/2018 on the legislative package “A New Deal for Consumers”  notes that

 The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 41(2) of Regulation 45/2001 ‘With respect to the processing of personal data... for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to privacy, are respected by the Community institutions and bodies’, and ‘...for advising Community institutions and bodies and data subjects on all matters concerning the processing of personal data’. Under Article 28(2) of Regulation 45/2001, the Commission is required, ‘when adopting a legislative Proposal relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data...’, to consult the EDPS.

He was appointed in December 2014 together with the Assistant Supervisor with the specific remit of being constructive and proactive. The EDPS published in March 2015 a five-year strategy setting out how he intends to implement this remit, and to be accountable for doing so. This Opinion relates to the EDPS' mission to advise the EU institutions on the data protection implications of their policies and foster accountable policymaking - in line with Action 9 of the EDPS Strategy: 'Facilitating responsible and informed policymaking'. The EDPS considers that compliance with data protection requirements will be key to the success of EU consumer protection law in the Digital Single Market.

This Opinion outlines the position of the EDPS on the legislative package entitled: “A New Deal for Consumers” that is composed of the Proposal for a Directive as regards better enforcement and modernisation of EU consumer protection rules and the Proposal for a Directive on representative actions for the protection of the collective interests of consumers.

The EDPS welcomes the intention of the Commission to modernise existing rules in an area whose goals are closely aligned to those of the recently modernised data protection framework. He recognises the need to fill the gaps in the current consumer acquis in order to respond to the challenge presented by predominant business models for digital services which rely on massive collection and monetisation of personal data and on the manipulation of people’s attention through targeted content. This is a unique opportunity to improve consumer law to redress the growing imbalance and unfairness between individuals and powerful companies in digital markets.

In particular, the EDPS supports the aim to extend the scope of Directive 2011/83/EU in order to allow the consumers, who receive services not rendered against a monetary price, to benefit from the protection framework offered by this Directive, as this reflects today’s economic reality and needs.

The Proposal took into account the recommendations of the EDPS Opinion 4/2017 and refrains from using the term “counter-performance” or distinguishing between data “actively” or “passively” provided by consumers to suppliers of digital content. However, the EDPS notes with concern that the new definitions envisaged by the Proposal would introduce the concept of contracts for the supply of a digital content or digital service for which consumers can “pay” with their personal data, instead of paying with money. This new approach does not solve the problems caused by using the term “counter-performance” or by making an analogy between the provision of personal data and the payment of a price. In particular, this approach does not sufficiently take into consideration the fundamental rights nature of data protection by considering personal data as a mere economic asset.

The GDPR already laid down a balance regarding the circumstances under which the processing of personal data may take place in the digital environment. The Proposal should avoid promoting approaches that could be interpreted in a way inconsistent with the EU commitment to fully protect personal data as laid down in the GDPR. To provide broad consumer protection without risking to undermine the principles of data protection law, an alternative approach could be envisaged, such as based on the broad definition of a “service” from the e-commerce Directive, the provision defining the territorial scope of the GDPR or Article 3(1) of the Council General Approach on the Digital Content Proposal. The EDPS therefore recommends refraining from any reference to personal data in the definitions of the “contract for the supply of digital content which is not supplied on tangible medium” and the “digital service contract” and suggests to rely instead on a concept of a contract under which a trader supplies or undertakes to supply specific digital content or a digital service to the consumer “irrespective of whether a payment of the consumer is required”.

Furthermore, the EDPS draws attention to several potential interferences of the Proposal with the application of the EU data protection framework, in particular with the GDPR and provides recommendations.

First of all, the EDPS stresses that the processing of the personal data can only be done by the traders in accordance with the EU data protection framework, in particular the GDPR.

Second, the EDPS is concerned that if the concept of “contracts for the supply of a digital content or digital service for which consumers provide their personal data, instead of paying with money” were introduced by the Proposal, it could mislead service providers who would be led to believing that the processing of data based on consent in the context of a contract is legally compliant in all cases, even where the conditions for valid consent set out in the GDPR are not fulfilled. This would undermine legal certainty.

Third, the complex interplay between the right of withdrawal from the contract and the withdrawal of the consent for processing of personal data, as well as the obligation of the trader to reimburse the consumer in the event of withdrawal demonstrates the difficulties of reconciling the concept of “contracts for the supply of a digital content or digital service for which consumers provide their personal data, instead of paying with money” introduced by the Proposal with the fundamental right nature of personal data and the GDPR.

Also, the EDPS considers that the Proposal should amend Article 3 of Directive 2011/83/EU and introduce a provision that clearly states that in case of a conflict between the Directive 2011/83/EU and the data protection legal framework, the latter prevails.

Furthermore, the EDPS also welcomes the new Proposal on collective redress, which intends to facilitate redress for consumers where many consumers are victims of the same infringement, in a so-called mass harm situation. The EDPS assumes that the redress mechanism envisaged in the Proposal on collective redress aims to be complementary to the one in Article 80 of the GDPR on representation of data subjects.

Nevertheless, to the extent personal data protection-related matters would be included in the scope of the collective action under the Proposal, the EDPS considers that “the qualified entities” that will be able to bring the representative actions in this field under the Proposal should be subject to the same conditions as set out in Article 80 GDPR.

Along the same lines, the Proposal on collective redress should clarify that the representative actions regarding data protection issues can only be brought before administrative authorities that are the data protection supervisory authority within the meaning of Articles 4(21) and 51 GDPR.

In conclusion, the EDPS considers that the application of two different mechanisms on collective redress, to the GDPR and to the future e-Privacy Regulation, alongside other substantive points of interaction between consumer and data protection, requires more systematic cooperation between the consumer protection and data protection authorities that could be done, for instance, within the already existing voluntary network of the enforcement bodies from competition, consumer and data protection areas - the Digital Clearinghouse.

Finally, the EDPS welcomes the initiative to update the enforcement of consumer rules: the revision of the Consumer Protection Cooperation Regulation. In this context, the EDPS considers that it is important to further explore the synergies between the data protection and consumer law. The cooperation between the consumer protection and data protection authorities should become more systematic wherever specific issues that are of interest for both side arise, in which consumer welfare and data protection concerns appear to be at stake.

'The Proposed Australian Consumer Data Right: A European Comparison' by  Samson Esayas and Angela Daly in (2018) 3 European Competition and Regulatory Law Review comments

This article examines the new Australian consumer Comprehensive right to access and use data, also known as the Consumer Data Right, recently proposed by the Australian Productivity Commission, and adopts a comparative analysis with data protection, competition and consumer developments in the European Union (EU). Firstly, a brief overview is given of the legal context and relevant Big Data developments in Australia. Then, current EU developments, particularly the data portability right under the General Data Protection Regulation (GDPR), and recent proposals from the Commission aiming at fostering access and transfer of data including the data producer’s right to use and authorise the data and the portability of non-personal data for professional users are considered. This is followed by an explanation of the Australian Productivity Commission’s proposed Consumer Right to access and use data, before an analysis is conducted to understand the extent to which this proposed right accords with the European situation. Given the coming into force of the GDPR and its extraterritorial reach, and the EU-Australia Free Trade Agreement currently under negotiation, as well as the transnational reach of Big Data and Cloud services, standardisation across the two jurisdictions is desirable. In this regard, the article examines to what extent the recent initiatives contribute to such standardisation and their implications for the extent to which Australia’s legal framework for data may be considered ‘adequate’ by the EU.