Abstract
In European societies, where there are clear political and legal commitments to respect human rights, it is axiomatic that the regulatory environment for biobanks—by which I mean public health research facilities, such as UK Biobank—should be compatible with those commitments; in particular, it is essential that the rights of participants are respected. During the start-up period for such biobanks, regulators will be expected to ensure: (i) that both participation and the use of participants’ samples and data are based on free and informed consent; (ii) that the privacy, confidentiality, and fair data processing rights of participants are respected; and (iii) that the proprietary rights (if any) of participants are respected. While the scope and substance of these rights are much debated, it is broadly agreed that the adequacy of the regulatory environment will be judged by reference, so to speak, to this triple bottom line.
In this paper, I will sketch a larger regulatory picture with its own triple bottom line. The larger picture is of a community with rights commitments (a community of rights) for which one of the bottom lines is, indeed, that the rights of its members, including the rights of biobank participants, should be respected. Thus, the early-stage debates about privacy, property, and consent are debates about one of the larger bottom lines as, indeed, are the debates that follow about feedback to participants and third-party access to the collection. In this larger picture, though, there are two other bottom lines: one is that regulators should act as stewards for the agency commons (for the infrastructural conditions that are essential to human life); and the other is that the regulatory environment should not become so reliant on coding, design, and technical fixes that the conditions and context for moral community are compromised. While biobanking for public health purposes might seem to be an unimpeachable act of stewardship, we need to be careful that it does not contribute to the corrosion of the conditions for moral community.
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Notes
- 1.
- 2.
Black (2005), pp. 1–11.
- 3.
Brownsword and Somsen (2009).
- 4.
- 5.
Code, at 93–94.
- 6.
Hildebrandt (2008).
- 7.
Hildebrandt and Koops (2010).
- 8.
- 9.
Ibid, p. 132.
- 10.
UK Biobank Ethics and Governance Council, Review 2008, at 4.
- 11.
Ibid.
- 12.
Op cit, note 9, at 134.
- 13.
UK Biobank Ethics and Governance Framework (version 2.0, July 2006) p. 6, para. I.B.1.
- 14.
Thus, ibid. at p. 12, para. I.C.1, we read: “UK Biobank will maintain strict measures to protect confidentiality, and will ensure that data and samples are (reversibly) anonymised, linked and stored to very high standards of security. The same protection will be extended under contract for any handling or analysis of data or samples by third parties engaged to provide services necessary for developing the resource”.
- 15.
UK Biobank Ethics and Governance Council, Annual Review 2009, at 9.
- 16.
UK Biobank Ethics and Governance Council, Annual Review 2008, p. 13.
- 17.
- 18.
It should be emphasized that this test only takes the community as far as recognizing prima facie responsibilities. Even if A is judged to have a prima facie positive obligation in relation to B, there might yet be competing or conflicting rights-based claims to be arbitrated.
- 19.
Compare UK Biobank Ethics and Governance Council, Annual Review 2009, at 9, where the EGC reports that UK Biobank intends “to develop a protocol that incorporates a limited feedback loop for those incidental findings considered to be potentially ‘serious’ (defined in this context as likely to threaten life span, quality of life or major body functions) and which are observed during the imaging visit”.
- 20.
Hodgson (1967).
- 21.
Compare UK Biobank Ethics and Governance Council (2009), at 9: “We discussed the proposal for a strict policy of no feedback whatsoever and found this to be ethically problematic in relation not only to the participant but also the radiographer who might happen to notice an abnormality that they felt morally and professionally compelled to mention to the participant”.
- 22.
Beyleveld and Brownsword (2007).
- 23.
Compare UK Biobank Ethics and Governance Council, Annual Review 2009, Annex A.
- 24.
Frischmann (2005), p. 923.
- 25.
Beyleveld and Brownsword (2009), p. 175.
- 26.
- 27.
- 28.
“Whose Potbelly is it Anyway?” public lecture, hosted by the Nuffield Council on Bioethics, delivered at the Royal Society, London, April 26, 2010.
- 29.
Thaler and Sunstein (2008).
- 30.
- 31.
- 32.
Koops (2009), p. 93.
- 33.
President’s Council on Bioethics, Beyond Therapy (Washington: Dana Press, 2003).
- 34.
Ibid., at pp. 105–106.
- 35.
Ibid., at 106.
- 36.
- 37.
Smith (2000), pp. 147–170.
- 38.
Ibid. Smith is making this important point in the context of automatic ticketing systems that are designed to reduce fare evasion by users of public transport.
- 39.
- 40.
Yeung (2008).
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Brownsword, R. (2013). Regulating Biobanks: Another Triple Bottom Line. In: Pascuzzi, G., Izzo, U., Macilotti, M. (eds) Comparative Issues in the Governance of Research Biobanks. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-33116-9_3
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