Use and misuse of material transfer agreements: lessons in proportionality from research, repositories, and litigation

Material transfer agreements exist to facilitate the exchange of materials and associated data between researchers as well as to protect the interests of the researchers and their institutions. But this dual mandate can be a source of frustration for researchers, creating administrative burdens and slowing down collaborations. We argue here that in most cases in pre-competitive research, a simple agreement would suffice; the more complex agreements and mechanisms for their negotiation should be reserved for cases where the risks posed to the institution and the potential commercial value of the research reagents is high.

The material transfer agreements designed to facilitate the exchange of materials between researchers are unnecessarily burdensome and obstructive and in most cases could be replaced by simpler tools.

The Advocate's Devil: The Maritime Public Historian as Expert Witness

The maritime historian working as litigation support and expert witness faces many challenges, including identifying and analyzing case law associated with admiralty subjects, cultural resource management law, and general historical topics. The importance of the unique knowledge of the historian in the maritime context is demonstrated by a case study of attempts to salvage the shipwreck Atlantic, the remains of a merchant vessel built and enrolled in the United States and lost in the Canadian waters of Lake Erie in 1852.

"SINCE I MUST PLEASE THOSE BELOW": HUMAN SKELETAL REMAINS RESEARCH AND THE LAW

The ethics of non-invasive scientific research on human skeletal remains are poorly articulated and lack a single, definitive analogue in western law. Laws governing invasive research on human fleshed remains, as well as bio-ethical principles established for research on living subjects, provide effective models for the establishment of ethical guidelines for non-invasive research on human skeletal remains. Specifically, non-invasive analysis of human remains is permissible provided that the analysis and collection of resulting data (1) are accomplished with respect for the dignity of the individual, (2) do not violate the last-known desire of the deceased, (3) do not adversely impact the right of the next of kin to perform a ceremonious and decent disposal of the remains, and (4) do not unduly or maliciously violate the privacy interests of the next of kin.

The concept of governance in dual-use research

The rapid advance of life science within the context of increased international concern over the potential misuse of findings has resulted in the lack of agreement on the issues of responsibility, control and collaboration. This progress of knowledge outpaces the efforts of creating moral and legal guidelines for the detection and minimization of the risks in the research process. There is a need to identify and address normative aspects of dual-use research. This paper focuses on the issues of safety and global collaboration in life science research by highlighting the importance of openness, enabling policies and cooperative governance. These safeguards are believed to reduce the risks related to the misuse of science while enabling the important research to move forward. The paper addresses the need for a better definition of dual use concept and, based on the historical precedents, explores the moral concerns and governmental strategies of dual-use research. The three necessary moves in addressing the issue of security in life sciences are suggested: the move from constraining to enabling types of policies, the move from secrecy to openness, and the move from segregation to integration of the public voice.

Maintaining proper dental records

Referred to as Standard of Care, the legal duty of a dentist requires exercising the degree of skill and care that would be exhibited by other prudent dentists faced with the same patient-care situation. Primarily, the goal of keeping good dental records is to maintain continuity of care. Diligent and complete documentation and charting procedures are essential to fulfilling the Standard of Care. Secondly, because dental records are considered legal documents they help protect the interest of the dentist and/or the patient by establishing the details of the services rendered. Patients today are better educated and more assertive than ever before and dentists must be equipped to protect themselves against malpractice claims. Every record component must be handled as if it could be summoned to a court room and scrutinized by an attorney, judge or jury. Complete, accurate, objective and honest entries in a patient record are the only way to defend against any clinical and/or legal problems that might arise. Most medical and dental malpractice claims arise from an unfavorable interaction with the dentist and not from a poor treatment outcome. By implementing the suggestions mentioned in this course, dental health care professionals can minimize the legal risks associated with the delivery of dental care to promote greater understanding for patients of their rights and privileges to their complete record.

A critical commentary on Derek Morgan's unpublished manuscript: 'coming Back to Life: The Normal Chaos of Medical Law' and how to deal with property in human cells

This article is an analysis of Derek Morgan's manuscript-'Coming Back to Life: The Normal Chaos of Medical Law', which remained unpublished at his death in 2011. Morgan made two claims in the manuscript: (1) medical practitioners and patients approach health from the different perspectives of 'reason' and 'emotion' respectively, while medical law treads the line between these ultimately resulting in 'normal chaos'. (2) In this respect, medical law ought to be coaxed 'back to life' so that it can address broader principles and values in respect to practical resolution; however, it has, in the face of this chaos, become dull in its ambitions. In this article, I first analyse these two claims in detail, before, second, illustrating the 'normal chaos' of medical law using the debate over ownership of human cells and tissues. I draw my own conclusions as to whether Morgan's final thesis was successful.

Regulation and oversight of independent health facilities in Canada

Independent health facilities ("IHFs") are an important part of Canada's health care system existing at the interface of public and private care. They offer benefits to individual patients and the public at large, such as improved access to care, reduced wait times, improved choice in the delivery of care, and more efficient use of health care resources. They can also provide physicians greater autonomy, control of resources, and opportunity for profit compared to other practice settings, particularly because IHFs can deliver services outside of publicly-funded health care plans. IHFs also present challenges, particularly around quality of care and patient safety, and the potential to breach the principles of "Medicare" under the Canada Health Act. Various measures are in place to address these challenges, while still enabling the benefits IHFs can offer. IHFs are primarily regulated and overseen at the provincial level through legislation, regulations and provincial medical regulatory College by-laws. Health Canada is responsible for administering the overarching framework for "Medicare". Oversight and regulatory provisions vary across Canada, and are notably absent in the Maritime provinces and the territories. This article provides an overview of specific provisions related to IHFs across the country and how they can co-exist with the Canada Health Act.

Body parts in property theory: an integrated framework

The role of property theory as a framework for analysis and regulation of body parts has become a debate of topical importance because of the emergence of biomedical technologies that utilise body parts, and also because the application of the concept of property, even with respect to historically and traditionally accepted forms of property, raises serious challenges to the property analyst. However, there is another reason for the topicality of property in relation to body parts: a proprietary approach confers on a claimant the advantage of continuing control that is tellingly lacking in non-property frameworks underpinned, for instance, by consent, negligence, privacy and unjust enrichment rules. In some circumstances, such as an unauthorised blood test performed on a blood sample obtained with consent, the continuing control provided by property law might be the only chance a claimant has to obtain a remedy. Economy of space, however, requires that only a prolegomenon on body parts and property theory is given below. Thus, the analysis begins by providing in outline a framework for comprehensive analysis of body parts within the realm of property theory; thereafter, the author engages with the normative question of whether body parts or rights exercisable over body parts could be admitted into the category of property.

The ownership that wasn't meant to be: Yearworth and property rights in human tissue

This paper is concerned with the English Court of Appeal's decision in Yearworth v North Bristol NHS Trust that six men had, for the purposes of their claims against the trust, ownership of the sperm they had produced. The case has been discussed by many commentators and most, if not all, of those who have discussed the case have claimed or assumed that the court held that the claimants had property rights in the sperm they had produced. In this paper, I advance an interpretation of the case that does not regard the court as deciding that the men had property rights (in the narrow sense of that term) in the sperm they had produced. On this view, the 'ownership' that the Court of Appeal purported to vest in each of the men was not a right in rem, a right 'binding the world'. If this is so, it is perhaps unsurprising that some scholars, evaluating the success of the court's reasoning as a justification for vesting the claimants with property rights, have found it to be unsatisfactory.

Intellectual property rights and detached human body parts

This paper responds to an invitation by the editors to consider whether the intellectual property (IP) regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right may suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same.

The current approach of the courts

The approach of the courts when considering proprietary ('ownership') interests in human bodily material has been pragmatic and piecemeal. The general principle was initially that such material is not legally 'property' that can be 'owned', but courts have recognised many exceptions. In determining disputes between individuals in particular cases, they have stated principles that are often inconsistent with those stated in other cases with different facts. Later judges have been constrained by these decisions, especially when made at appellate level. They can distinguish the facts of one case from another to achieve a different outcome, but they cannot state new principles to be applied more widely to promote consistency. This requires the will of Parliament and legislation to introduce new principles. Experience to date suggests that such legislation will need to be wide-ranging and complex, with different principles for different circumstances. There will not be one area of law that answers all the issues that arise.

Dignity and the use of body parts

This paper contends that the conventional ethical and legal ways of analysing the wrong involved in the misuse of human body parts are inadequate, and should be replaced with an analysis based on human dignity. It examines the various ways in which dignity has been understood, outlines many of the criticisms made of those ways (agreeing with many of the criticisms), and proposes a new way of seeing dignity which is exegetically consonant with the way in which dignity has been historically understood, and yet avoids the pitfalls which have led to dignity being dismissed by many as hopelessly amorphous or incurably theological. The account of dignity proposed is broadly Aristotelian. It defines dignity in terms of human thriving, and presupposes that it is possible, at least in principle, to determine empirically what makes humans thrive. It contends that humans are quintessentially relational animals, and that it is not possible (and certainly not ethically desirable) to define humans as atomistic entities. One important corollary of this is that when using dignity/thriving as a criterion for determining the ethical acceptability of a proposed action or inaction, one should ask not merely how the dignity interests of the patient (for instance) would be affected, but how the dignity interests of all stakeholders would be affected. The business of ethics is then the business of auditing all those interests, and determining the course of action which would maximise the amount of thriving in the world.