Richman Wee

University of Otago

Quick Scan of Relevant News of Interest

from across the Tasman

Western Australia

New South Wales

Victoria

The Effects of DNA Evidence on the Criminal Justice Process

School of Criminology and Criminal Justice, Griffith University

Michael Briody, PhD Thesis November 2004

“…in Western Australia, police accessed [in 1997] these cards

without consent.”

“Detective Sergeant Gary Fraser obtained a search warrant for (sic)

the Perth hospital, later commenting:

‘This is the worst case that I have been involved in –

involving incestuous behaviour – very extremely tragic

where the father targeted his own biological daughters and

there’s actually been children fathered by the biological

father”(ABC, 2003;

http://www.abc.net.au/cgi-bin/common/printfriendly.pl?/catalyst/stories/s867619.htm

)

Briody(cont.)

“Detective Fraser wanted DNA samples to prove the man was

father to his own grandchildren, but no one in the family

would consent, as the family, especially the daughters, lived in fear

of the man. Having obtained the DNA samples from the Guthrie

cards, Detective Fraser successfully prosecuted the

offender, breaking the cycle of incest.”

“Following these events, the Perth hospital made the controversial

decision to destroy the Guthrie card databank [as it existed then],

retaining cards for only two years after birth.”

“An argument for retention of the cards on medical groups was

provided by Sydney resident, Michael Easton, whose brother died

of cystic fibrosis.”

“… When Easton wished to marry, he was unsure if he carried the

fatal genetic mutation, which he did not wish to pass on to his own

children.”

“Doctors retrieved a sample from the deceased brother’s

Guthrie card, and after testing, were able to assure Easton that

he did not carry the gene. However, had he lived in Western

Australia there would have been no Guthrie card to test.”

Briody(cont.)

Sydney Morning Herald

‘Frightening glimpse of future police state’

April 7, 2000

“The largest DNA mass-screening project ever attempted in

Australia is expected to cost about $60,000 when police tomorrow

take saliva swabs from the adult male population of Wee Waa.”

“… the Minister for Police … said the voluntary testing of 600 men

in the town to try and solve the 1999 New Year’s Day bashing

and rape of a 93-year old [91-year old?] woman was an

operational decision taken by local police and was supported by the

town.”Reported by Linda Doherty and Ellen Connolly

The (Melbourne) Age

Editorial: For good or bad, it’s in the blood

July 7, 2004

“The law is lamentably weak in regulating the power of a DNA

record of 2 million Victorians.”

“… whether the state, which pays for screening, should give a

company, however ethical it may be, effective control of card

storage and access. Genetic Health plays down the question of

ownership (despite the huge commercial value of population

genetic data) …”

“This collection is held by a private but not-for-profit

company, Genetic Health Services, Victoria, which has also

claimed it owns the cards.”

“The law as it stands is inadequate to satisfy people’s concerns

about the collection of material that could reveal so much about them

– whether this be to doctors, researchers, police, employers or

insurers …”

The Age(cont.)

“It is not good enough only to tighten up the contract

with Genetic Health; all the grey areas of consent, ownership,

storage, access and protection of genetic information must be

cleared up.”

“The screening system that has saved lives for four decades is built

on a foundation of public trust.”

The Age(cont.)

“To protect the program and the invaluable genetic resource it has

accumulated, the law must lay to rest any fears that DNA

in people’s samples could be improperly exploited or used against

them.”

And in New Zealand ….

Civil proceedings – paternity issues

H v G (1999) 18 FRNZ 572

Order made under R 322 of the High Court Rules

permitting DNA analysis using a Guthrie card

Civil proceedings – paternity issues

T v S [2005] NZFLR 466

While proceedings were underway*, Ms T (mother of E) obtained

E’s Guthrie card and “[p]resumably … destroyed” it.

* 30 March 2001

“The tests obviously serve a valuable function in screening

babies, but the present system of storage and retrieval is open

to abuse and misuse,” said Ms Kedgley.

Sue Kedgley MP

Green Party Health Spokesperson

21st November 2001

“There is no justification for keeping the samples after the child

has reached adulthood. The creation of a virtual databank

containing DNA of all New Zealanders raises serious legal and

ethical questions.”

“Medical experts contend that the DNA material is useful for

research purposes, but to what end? What safeguards have

we that such material cannot be used in GE experiments or for

genetic testing,” she asked.

Sue Kedgley MP(cont.)

http://www.greens.org.nz/searchdocs/PR4902.html

“The Privacy Commissioner is sufficiently concerned about the

practice to mount his own investigation What I am calling for is

public and parliamentary debate about the issues involved,”

said Ms Kedgley.

“It is fortunate that the testing centre has been well managed.

However, no specific laws covers the operation of the

programme, or the retention of the samples. As a

consequence, there is no adequate legal protection for the

samples against access by third parties or against future

uses.”

BH Slane, Privacy Commissioner

Media Release: Guthrie ‘Heel Prick’ Test Report

25 September 2003

“I recommend:

… [that] rules, and any permission-granting structures they

involve, be incorporated in legislation in such a way that they

are clear, robust and enforceable. ”

Paragraph 9.5

“…I am concerned that it has been left to stand up alone and

without formal protective barriers against potential demands

for access to the growing bank of sample material which it

holds.” (emphasis added)

BH Slane, Privacy Commissioner

Guthrie ‘Heel Prick’ Test Report

25 September 2003

“A blood bank holding genetic material from 1.9 million people

is giving an increasing number of samples to ‘third parties’.”

NZ Herald

Third parties increasingly access material from blood bank DNA

26 November 2003

“The National Testing Centre in Auckland has been storing

baby blood for 30 years, and has genetic material from half of

all New Zealand.”

“Figures obtained by the Herald show the number of times the

samples are accessed by ‘third parties’ has leaped from just

one in 1995 to a projected 1000-plus this year. Most of the

surge comes from parents …”

what is not dealt with today … Hear us present at

the Dunedin February 2006 Bioethics Conference

‘CONSENT’ (!!!)

re:

1. collection of sample

2. use of cards (health-related contexts) who can use? who to ask? use in what circumstances?

- quality assurance

- research

- public health studies

3. retention

4. return or destruction

5. ownership … custodianship/guardianship

Some thoughts ...

State of preparedness

i.e. in a position to adopt new and coming developments re

genetic testing technologies

What model?

what would be a really good current model to modify, improve

and build on?

The Goal

a model that would satisfy the highest standards of law &

ethics, and consumer or community needs and expectations

from a policy viewpoint - well thought through in advance and

well-designed

Variety of possible uses of the Cards

Police investigation

Criminal proceedings

Civil proceedings

Coroner’s court

Benefit to the individual patient/health consumer

(cf. benefit to a relative re reproductive decision-

making?)

Public health

‘Health research’ cf. Research involving human

participants

Other kinds of research

Natural disaster (identification)

Variety of possible uses of the Cards

1. Establish facts/evidence in court

2. Treat or provide health care, including directly related purposes

3. Research

4. Other purposes not within the scope of any of the above

Variety of possible uses of the Cards

1. Establish facts/evidence in court

Police investigation

Criminal proceedings

Civil proceedings

Coroner’s court

2. Treat or provide health care, including directly related purposes

Benefit to the individual patient/health consumer

(cf. benefit to a relative re reproductive decision-

making?)

Public health

3. Research

‘Health research’ cf. Research involving human

participants

Other kinds of research

4. Other purposes not within the scope of any of the above

Natural disaster (identification)

Possible range of legal ways to access Cards

1. Judicial

2. Legislation (Statute or Delegated Legislation)

3. Between organisations/individuals (backed by

Common Law and legal means)

Possible range of legal ways to access Cards

1. Judicial

Court order, including search warrant

Declaratory judgment (?)

Court’s inherent jurisdiction and Law of Evidence

2. Legislation (Statute or Delegated legislation)

Specific statutory provision

Subject to general provision(s)

3. Between organisations/individuals

By agreement, eg Memorandum of understanding,

Confidentiality agreement

Reliance on general law (would be legally tested ex post

facto) … eg fiduciary duty, duty of care

Some thinking, and decisions, that may have to (should?) happen soon

In terms of legal, ethical and policy design:

State of Preparedness

eg in light of new and coming developments in technology

2. Twin consideration of what the following would (or should) be

like …

a. Security of the programme

b. Reassurances in place

3. Ranking priorities: Centrality and Primacy of Purpose

Centrality and Primacy of Purpose

Some decisions to make …. Let’s bite the bullet

1. Establish facts/evidence in court

2. Treat or provide health care, including

purposes directly related to that

3. Research

4. Other purposes, e.g. for identification, not

within the scope of any of the above

Paragraph 9.5

“…I am concerned that it has been left to stand up alone and

without formal protective barriers against potential demands

for access to the growing bank of sample material which it

holds.” (emphasis added)

BH Slane, Privacy Commissioner

Guthrie ‘Heel Prick’ Test Report

25 September 2003

“… If genetic information is to be made available to third parties

or for purposes unrelated to the criminal investigation purpose for

which the DNA database was said to be originally established,

any expansion (or ’function creep’) should be specifically and in

every case subject to the legislative power of the Parliament

and not be left to be determined by a decision of the Executive, by

Memorandum of Understanding or other instrument of Ministerial

councils, by regulations, by private agreement or by the parliaments,

the executive governments or the policy of other jurisdictions.”

(emphasis added)

Victorian Privacy Commissioner

Submission to the Forensic Procedures Review Committee on its

Review of Part 1D of the Crimes Act 1914 (Commonwealth)

5 September 2002

* ? Other purposes No way! Don’t mess with the Cards !

...or access only under specific statutory provision, or by court order in exceptional circumstances

STATE OF PREPAREDNESS

* Security

* Reassurances(newborns of today ...)

* Guthrie Cards only for

health/therapeutic (and directly

related) purposes and health research

Led by Prof Mark Henaghan, Dean of Law, Otago

Sponsored by NZ Law Foundation

web: www.otago.ac.nz/law/genome

e-mail: genome.lawpolicy@otago.ac.nz