For Your Information
Behavioral genetics and law
Sheikh Hafizur Rahman Karzon
Behaviour genetic information could lead to a wide range of risk-averse actions. Carlsen V. Wackenhut Corp. is a good illustration of such a case. In 1994 at a Bon Jovi rock concert a security guard attempted to rape a 16-year old patron under the stands. The security company that employed the guard was then sued by the girl for negligent hiring. She alleged that the company should have enquired into the background of the security guard before employment. The company would then discovered that the man had four prior convictions, including one for second degree robbery. The appellate court reversed the trials court's summary judgement for the company and held that upon discovery of a prior robbery conviction, a prospective employee had a tendency to commit criminal activities.
From the above case a number of questions emerge. Would the employees in the future be put under an obligation to review medical records or make their own medical arrangement to test whether applicants had genetic indicators of an increased risk for violent behaviour? Would it transgress Disabilities Act or other laws? A court might impose liability for failure to utilise behavioural genetic tests if they were on the market and their use by the employers was not unlawful. In an age of genetic science the people and insurer will create pressure to make use of genetic tests of school teachers, day care workers, police officers, home health care workers, or other employees. Besides employment, behavioural genetic information could be used in other fields, too. The summer camp, boarding school, college dormitory or other authorities will be pressed to review genetic information of the campers and students to ascertain who have genetic indicators of an increased risk for violent behaviour.
Genetic information and medical privacy
Almost all the constitutions of all countries have protected citizens' right to privacy as to their home and correspondence. This is a very important right in that without which people cannot maintain normal and decent life. The development of genetics has created implications for right to privacy. If genetic information of any individual will be available that will surely violate the right to privacy. So legal mechanism should give reasonable coverage to right to privacy, which has been done in different countries. The law provides, inter alia, that no person may obtain and disclose genetic information without specific authorisation. The law was enacted subject to various exceptions. Different countries are considering making laws for safeguarding the inviolability of the right to privacy.
If genetic information of an individual is available that may operate, in some cases, prejudicially to the person concerned. An individual having normal and good genetic traits should not be apprehensive of his genetic information being available at large. But if any individual possesses genetic traits indicating his/her low brilliance or some severe diseases having those available to incumbents, that person may not get any job for which s/he may suffer throughout his/her whole life. This type of people may suffer disrepute in their social relation and personal interaction. Availability of genetic information may cripple a person's whole life if s/he possesses genetic traits of below average. So privacy of genetic information should be protected through sufficient legislation, otherwise normal human relation will encounter a catastrophic situation.
With the development of individualism right to privacy has taken hold. The recognition of a legal right to privacy is largely a twentieth-century phenomenon. Under American Law the development has taken place along three separate lines: constitutional privacy, common law privacy, and statutory privacy. The privacy and confidentiality of medical information has not been afforded adequate protection in any of these areas. The federal constitutional right to privacy has been used to restrict the government from interfering with personal medical decisions, such as providing and withholding medical treatment, procreation, contraception and abortion. In serious problems like drug abuse or other problems related to health of the people, government can interfere. In Whalen V. Roe, 1977 the respective Supreme Court unanimously held that, “Disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavourably on the character of the patient.
Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.”
The second privacy law doctrine, common law invasion of privacy has evolved into four related torts: public disclosure of private facts, intrusion upon seclusion, false light and appropriation of name of likeness. The first two are especially relevant to medical privacy. The plaintiff must prove that private medical information has been published or disseminated to the public in order to establish a claim for invasion of privacy. The plaintiff has to show that public has no legitimate concern in that matter and it will only bring shame or humiliation to an average reasonable man. Some authorities like employers have qualified privilege to disclose certain facts which is necessary to maintain their business interest. In Young V. Jackson, 1990, in a nuclear power plant rumours spread that the reason for an employee's illness was radiation exposure. As a result work was disrupted in the power plant. A Mississippi court held that the employer had privilege to disclose the fact. Employer had the right to tell employees that the plaintiff was ill due to the effects of a hysterectomy.
The third main legal method of protecting privacy is statutory. One or more aspects of medical privacy are dealt with by various state and federal statutes, but adequate protection has not been provided by any of these laws, however. To protect the privacy of genetic information, Oregon enacted the nation's first state law in 1995. “Subject to various exceptions, the law provides, among other things, that no person may obtain genetic information from an individual without informed consent, no person may retain genetic information without obtaining specific authorisation, and no person may disclose genetic information without specific authorisation. A similar 'procedural' law has been enacted in California.” The laws only prohibit the unauthorised collection, retention, or disclosure of genetic information. There are many instances where law has nothing to do in which individuals are needed to give genetic or other medical information as a condition of employment, insurance, education, commercial transactions and other matters. Behavioural genetic information will not get better privacy protection than other types of medical or genetic information. Some overly intrusive inquiries or unnecessarily extensive disclosures may be limited by constitutional, statutory, or common law theories. To safeguard the privacy of genetic information a wide range of substantive limitations in each specific area will require to be enacted.
This is the concluding part of the story, the first part was published on December 24, 2005.
The author is Assistant Professor, Department of Law, University of Dhaka.
