The Nathaniel Centre

Fairness [SYNOPSIS ONLY]

By Greg Coyle

In this article, Greg Coyle reflects on the question of ‘fairness’. New Zealand, a society that once prided itself on offering ‘a fair go for all’, is more divided than ever in its approach to fairness. After discussing several approaches to justice as fairness, the article offers a framework for a better understanding of what is ‘fair’ for New Zealand families today.

The full article is available by subscription to The Nathaniel Report

HDC Consultation on research involving adult participants who are unable to give informed consent.

By The Nathaniel Centre 

General Discussion:

We note and endorse the idea that “The right to make an informed choice and give informed consent before receiving health or disability services, including participating in research, is the cornerstone of New Zealand’s Code of Health and Disability Services Consumers’ Rights (the Code)”, (HDC Consultation Document, p. 1). In a similar vein, we have previously written about the critical importance of informed consent, advocating that all people have a right not to be experimented on without their knowledge or consent, whatever the nature of the research.i

It is broadly accepted that the history of ‘informed consent’ in human research goes back to the Nuremberg Code of 1947. This Code was developed after the Nuremberg trials at the end of the Second World War which exposed the unethical nature of research carried out by many Nazi researchers. The lesson learnt from this and other well-known instances of unethical research, such as Tuskegee and Willowbrook, is that justifying research on the basis of its potential benefits or outcomes alone, and without reference to the inalienable rights and dignity of human participants, all too easily leads to human exploitation and harm. Upholding informed consent is one of the key ways in which the rights and dignity of research participants can be protected.

In New Zealand, current thinking and practices around ethical review and the centrality of informed consent have been informed by our own instances of unethical research, including the removal and retention of organs from deceased babies without parental consent and the ‘unfortunate experiment’ on patients with cervical cancer carried out at National Women’s Hospital.

The current Code of Health and Disability Services Consumers’ Rights allows research on a person who is unable to give consent totake place only if participation in the research is in the person’s best interests. It thus reflects a strong commitment to the principle of informed consent. It also reflects a commitment to ensuring that the interests of the person must not be subsumed to those of society. In other words, it embodies a rejection of the main premise underpinning utilitarianism, the idea that ‘the greatest good for the greatest number’ is a sufficient measure of what is ethically acceptable.

If there are to be changes to the parameters which currently proscribe non-consensual research on adults, it is critical that our society’s commitment to the notion that the best interests of the person must ultimately always outweigh those of society (Consultation Document, p. 44, n.3) be upheld and not eroded in any way.

We have previously argued that there can be legitimate exceptions to the requirement that informed consent be obtained from research participants in certain exceptional circumstances. Thus, in 2015 we wrote that the “only exceptions to this are in circumstances where (i) the research is strictly observational or (ii) participants are, for various reasons, unable to give consent, in which case consent must be sought from someone legally entitled to provide consent for them.” In the same article we alsostated: “In exceptional circumstances, limited disclosure may be justified or consent might be obtained retrospectively, for example because of the need to avoid a biased response. It is also possible to seek a waiver of consent where the risk is low and where there are strong reasons why it would not be practical or possible to obtain consent.” We then added: “… in these situations, the ethical rider is that such research must always be held up to close scrutiny by an appropriately accredited and independent review body.”ii

We note that current practice in New Zealand, by allowing consent to be waived in circumstances when it is deemed to be in the person’s best interests, already constitutes an exception to the principle of informed consent, albeit a very narrow one. This debate, therefore, is about the scope of such exceptions in New Zealand and, more specifically, whether they might now be broadened to include some situations where research on a person unable to give consent is justified on grounds other than being in their personal best interests.

Our overall position is that we are not in principle opposed to broadening the parameters which regulate non-consensual research on adult participants.

Ethical Discussion:

Our response to the two fundamental questions posed in the Consultation document (“Are New Zealand’s current laws regarding non-consensual research [involving adult participants] appropriate and, if not, how should they be amended?”(Consultation document, p.2)) reflects our belief that it is, in theory, both possible and ethical, in certain proscribed circumstances with adequate scrutiny and safeguards, to broaden the circumstances in which consent for adult participants in research might be waived.

We add the qualifier “in theory” because we believe that any moves to broaden the parameters around non-consensual research would only be acceptable within a system of robust, accredited and independent ethical overview. Given the experience of two of the writers of this submission who have previously served as members of a HDEC Ethics Committee for a combined period of 11 years, our concern is that some of the more recent restructures of New Zealand’s HDEC ethical review system have contributed to a less comprehensive and less robust system than was previously the case – fewer committees and fewer members as well as a significantly narrower set of criteria for determining when research requires HDEC review.

Any moves, therefore, to change the current law must, in our mind, first be considered against the current effectiveness of ethical review committees in New Zealand. In which case, a decision in principle to broaden the criteria for non-consensual research might be considered unworkable or unsafe in the current context of ethical review. The decision might, therefore, be made not to proceed with any changes for pragmatic reasons even while it was otherwise considered ethically acceptable in theory.

In the event it was deemed practically acceptable to broaden the parameters, it is our firm belief that, because of the inherent risks in non-consensual research, such applications should require an additional layer of scrutiny to what is already currently available by a group under the auspices of the Health and Disability Commissioner’s Office that includes representatives of, or people able to speak on behalf of or advocate for, the group of persons on whom the research will be carried out.

When reflecting on why it might be ethically acceptable to allow non-consensual research on a person when it is not in their best interests and when it will introduce an element of risk, the obvious answer is that there will be benefits for others, whether persons in similar circumstances or, perhaps, society in general. Herein lies the greatest danger in broadening the parameters of non-consensual research because any such move inevitably opens the door to the sorts of utilitarian arguments and premises that have characterised unethical trials such as Tuskegee and Willowbrook.

This danger reinforces for us the need to de-lineate three other parameters when evaluating non-consensual protocols: (i) ‘the interests of the person must always be assumed to outweigh those of society’; (ii), in situations where this is not clear for a specific person, the ‘precautionary principle’ must be automatically invoked which dictates that the person not be included and (iii), any expression of dissent (“whether by showing signs of resistance or otherwise” – Mental Capacity Act 2005 (England and Wales) as quoted in Consultation Document, p. 43) from a potential participant incapable of giving consent should be regarded as sufficient reason for them not to be included (see also Declaration of Helsinki, as quoted in Consultation Document, p. 58).

In addition, as we highlighted in our submission to the National Ethics Advisory Committee (NEAC) on “Cross-sectoral Ethics Arrangements for Health and Disability Research” (February 2015), we see that it is a significant weakness of the current system of ethical review in New Zealand that there is no mechanism for checking that a particular study is carried out according to the agreed protocol. We believe that such follow up should be mandatory for all non-consensual research projects, something that will require a specific mechanism to be created and funded. This requirement, we note, is stipulated in Paragraph 24 of the Declaration of Helsinki under the heading of Research Ethics Committees: “The committee must have the right to monitor ongoing studies.”

Whereas some might see such requirements as creating unnecessary barriers for researchers, we see that they will ensure that non-consensual research proceeds only when it is absolutely required, and that non-consensual research is undertaken with a strong focus on ethical practice.

An Adjusted Framework for Non-consensual Research on Adult Participants:

Our suggestion is that an adjusted New Zealand Code follow and reflect the relevant sections of the Declaration of Helsinki which address the question of non-consensual research:iii

28. For a potential research subject who is incapable of giving informed consent, the physician must seek informed consent from the legally authorised representative. These individuals must not be included in a research study that has no likelihood of benefit for them unless it is intended to promote the health of the group represented by the potential subject, the research cannot instead be performed with persons capable of providing informed consent, and the research entails only minimal risk and minimal burden.

29. When a potential research subject who is deemed incapable of giving informed consent is able to give assent to decisions about participation in research, the physician must seek that assent in addition to the consent of the legally authorised representative. The potential subject’s dissent should be respected.

30. Research involving subjects who are physically or mentally incapable of giving consent, for example, unconscious patients, may be done only if the physical or mental condition that prevents giving informed consent is a necessary characteristic of the research group. In such circumstances the physician must seek informed consent from the legally authorised representative. If no such representative is available and if the research cannot be delayed, the study may proceed without informed consent provided that the specific reasons for involving subjects with a condition that renders them unable to give informed consent have been stated in the research protocol and the study has been approved by a research ethics committee. Consent to remain in the research must be obtained as soon as possible from the subject or a legally authorised representative. (Our emphasis added).

In summary, we argue that the key points of an adjusted Code which would broaden the parameters within which non-consensual research could be carried out in New Zealand are:

  • The research cannot otherwise be carried out using participants capable of providing informed consent and …

  • The research will directly promote the health of the group represented by the potential subject and …

  • The research entails only minimal risk and minimal burden and …

  • The potential subjects’ dissent, however it is expressed is respected absolutely and …

  • The research may be done only if the physical or mental condition that prevents giving informed consent is a necessary characteristic of the research group and …

  • Informed consent is sought from a legally authorised representative and …

  • The research is given a full review by the appropriate accredited HDEC Committee and …

  • The research is subject to an additional layer of scrutiny by a group that is overseen by the Office of the Health and Disability Commissioner, a group which includes representatives of, or people able to speak on behalf of or advocate for, the group of persons on whom the research will be carried out and …

  • There is ongoing, independent, effective and active monitoring of the research project while it is being carried out and …

  • The participants’ confidentiality is absolutely respected and …

  • In cases where a participant regains consciousness after having been included in a trial, they are given the option of having their data withdrawn where that is possible and …

  • Any data that is retained after a study is only able to be used for further research in an aggregated or totally anonymous form unless separate independent ethical consent is sought.

Conclusion:

We are in principle open to the parameters of non-consensual research being broadened within New Zealand in line with the World Medical Association Declaration of Helsinki that we have outlined above. What we are proposing would involve moving from the “best interests framework” that characterises current practice in New Zealand to one that takes account of and permits a degree of minimal risk and minimal burden to participants.

The key questions in moving to an approach that tolerates a degree of risk are ‘Who decides?’ and ‘How will assessments about “minimal risk” and “minimal burden” be made?’ For this reason, we have argued that there must first be a degree of confidence in the current system of ethical review in New Zealand. That is, a determination must be made that the HDEC review committees are adequately resourced and adequately trained to foresee and prevent the sort of excesses that have characterised research on vulnerable persons throughout the 20th Century in numerous places around the world including New Zealand.

While broadening the parameters of non-consensual research carries inherent attitudinal risks because it can dispose society to the dangerous excesses of utilitarian thinking and make certain actions which undermine the inherent dignity of persons seem morally acceptable, we think this risk can be safely managed by the introduction of an additional layer of ethical scrutiny that is carried out under the auspices of the Office of the Health and Disability Commissioner.


Sue Buckley (PhD) has been involved in social and health research over the last 16 years in both government and university contexts.

Associate Professor John France (PhD, DSc, FAACB) is a reproductive scientist (now retired). He is a former member of the Auckland Health and Disability Ethics Committee and former member and Deputy Chair of the Northern Regional Health and Disability Ethics Committee.

John Kleinsman (PhD) is director of The Nathaniel Centre and a former member and Deputy Chair of the Central Region Health and Disability Ethics Committee. He is a current member of two Institutional Research Ethics Committees.

Endnotes

i Kleinsman, J, and S. Buckley. "Facebook Study: A Little Bit Unethical but Worth It?" Bioethical Inquiry 12, no. 2 (2015): 179 - 82.

ii Ibid.

iii Declaration of Helsinki. 64th WMA General Assembly, Fortaleza, Brazil, October 2013. https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/

 

Fairness

By Grey Coyle

Fairness is something we quite easily recognise when we see it, but often have great difficulty describing and even more difficulty defining. Children seem to have an intrinsic sense of what is fair and what is not fair but often lack the skill to decide how they would make something fair. Similarly, adults can spot something they believe to be unfair, but analysing why something is fair or unfair from differing perspectives can be difficult.

Fairness and unfairness often concern the allocation of resources within a country, a community or to an individual person. The fair allocation of healthcare resources is a particularly contentious issue. The many questions we might pose about fairness are underpinned by genuinely held and interrelated pragmatic, moral, social and political beliefs. If these beliefs and values were to be developed into conversations about what allocations are fair they would generate many differing opinions.

Within the Christian faith tradition, the evangelist Matthew highlights insights Jesus had about fairness in the parable of the workers in the vineyard (20:1-7). This parable provides a fascinating theological challenge to our understandings of fairness.

Perfect fairness may well be unattainable, but there is increasingly disagreement about what constitutes acceptable levels of fairness in today's political and social landscape. For example, while many social commentators imply there is a high level of unfairness about homeless families living in cars, whatever the aetiological factors of their distress, the spectre of children suffering without a home is not regarded as particularly unjust or unfair by others.

In the story the vineyard owner hires labourers for the day, promising to pay them a denarius. At the third hour, the owner approaches another group who are waiting in the market place because no one has hired them, and also offers them work, saying that they would receive whatever was right; more workers are hired at the sixth and ninth hours and again at the eleventh hour. When evening comes, the vineyard owner gives each worker a denarius. Those who had worked all day protest that they are paid the same as those who had worked only one hour. But the owner responds: "Friend, I am doing you no wrong. Did you not agree with me for a denarius? Take what belongs to you and go. I choose to give to this last worker as I give to you. Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity? So the last will be first, and the first last."

At first glance, it seems easy to spot the gross unfairness in the relative rates of pay for hours worked. It is understandable that the workers who have worked the whole day under trying conditions might feel aggrieved that those who have worked only an hour will be remunerated the same. However, in paying them all the same, the owner introduces a quotient of mercy and grace in the wages rather than a quotient of injustice. In this way Jesus' account of divine fairness demonstrates keeping his word and being true to His covenants as well as having a heart for the poor and downtrodden. Perhaps God is also showing his love by creating an opportunity for those who worked the longest hours for their one denarius to experience the grace of accepting the condition of others less well off than themselves.

Various secular justice theories also attempt to explore fairness and how it impacts on our lives. New Zealand has a particular and somewhat unique history in this regard. Analysis of our social and political past shows New Zealanders have traditionally had a strong sense of a fair society.

Specifically, the social reform of the 30's was based on a 'fair go for all'. Robin Gauld1 describes The Social Security Act (1938) as the political and legislative foundation for social welfare in New Zealand. This legislation placed New Zealand's concern for the least well off firmly on a fairness platform which shaped for some time our perception of how subsequent governments acted. However, since the neoliberal economic reforms of the 1980's, and in particular the Global Financial Crisis, the fall-back position on fairness more commonly expressed now is "well I accept something may be unfair, but we have limited resources and who says the world is fair anyway?" It seems, in other words, that fairness has become an unreachable and unnecessary goal; the altruistic goals of 1930's have given way to the individualistic view "what is in my best interests?"

Perfect fairness may well be unattainable, but there is increasingly disagreement about what constitutes acceptable levels of fairness in today's political and social landscape. For example, while many social commentators imply there is a high level of unfairness about homeless families living in cars, whatever the aetiological factors of their distress, the spectre of children suffering without a home is not regarded as particularly unjust or unfair by others.

Justice inevitably involves the moral authority of laws. Homer described justice as personal vengeance. Plato saw justice as both the right of the stronger and the effective harmony of the whole of society. St. Thomas Aquinas believed justice to be divine, directing humankind to do what we feel we ought to do under divine direction. Aristotle, meanwhile, described the formal criterion of justice in terms of treating equals equally and treating unequals unequally and in proportion to that inequality, a definition which still wins wide acceptance today. Aristotle's approach means that where inequality exists such inequality should be addressed by taking from the advantaged and giving to the disadvantaged.

Common to all these positions is an understanding that justice is a positive thing which is applied to decisions, procedures, laws, actions and events2. Lamont3 identifies the main foundational theories of justice as being: strict egalitarianism; resourcedbased principles; welfare-based principles; libertarian principles; and feminist principles. Strict egalitarianism is based on the Aristotelian principle of substantive equality, that all people should have the same level of goods and services. This is justified because it is equality of goods and services that gives practical effect to the respect owed to all equally. However, the principle of strict equality raises the problem of an index of fairness. How do we know which level of goods and services should be fairly distributed?

This question is the basis of the categorical imperative of Immanuel Kant which asserts that people are always to be treated not as a means to an end, but as ends in themselves4. Meanwhile Jeremy Bentham, recognised as the founder of utilitarianism, proposed maximising pleasure and minimising pain as a key guiding moral principle for all in society. In determining whether an action is right, however, Bentham argued that it is not just individual happiness or self-interest that counts but delivering the greatest happiness to the greatest number of people. John Stuart Mill, also a utilitarian, warned, however, that the greatest happiness must not involve coercion because this would breach the harm principle, whether the coercion was in the best interests of the person, or not.

Under the Catholic principle of ‘participation’ all people have a right and a duty to participate in society, seeking the wellbeing of all, especially the poor and vulnerable. The notion of the ‘common good’ asserts unfettered rights for all but not at the expense of others, but nor are individual rights to be subordinated to the needs of the group.

Across the wide range of substantial ethical theories and principles of justice as fairness, no one theory commands universal acceptance5. However, in New Zealand a “Fair go” and “Do to others as you would have them do to you” (Luke 6:31) are maxims which would arguably find general acceptance in our part of the world.

While perfect equality may be unattainable, Wilkinson and Pickett6 have demonstrated that very high levels of unfair allocation of resources (particularly income) are directly linked to social pathology for both the most disadvantaged and the most advantaged. In other words, inequality is correlated with negative morbidity and mortality rates, obesity, teenage birth rates, mental illness, homicide, low trust, low social capital, hostility, and racism. Wilkinson and Pickett’s theory links individual’s relative positions in society to deep-seated social problems associated with poverty, poor formal education, relative deprivation and low social status. They also make the claim that communities with high income inequality lack cohesion, exhibit poor social relationships and are bedevilled by mistrust. From this it follows that, in circumstances where the aetiologies ultimately lie in the underlying inequality, ever higher levels of access to social services will make no difference to poor social outcomes. It should be noted that there have been criticisms of Wilkinson and Picketts’ analysis, based on a competing claim that income inequality has no impact on levels of life satisfaction. This illustrates how perceptions of fairness of income inequality is underpinned by particular values and morals.

The moral question I pose is how much fairness or equality is too much to aim for? How much is not enough? Hamilton7 suggests that there must be minimal granting of special privileges to favoured individuals while ensuring those who require assistance are not abandoned. Balancing the scales of fairness appeals to the principles of justice in this dilemma.

John Rawls in A Theory of Justice8 and Amartya Sen in The Idea of Justice9 together present a contemporary far reaching example of what is essential for an understanding of justice as fairness. While theirs is not the only description of justice as fairness, and despite their many critics, Rawls and Sen have provided a substantial framework for determining fairness.

Rawls’ definition of fairness contends that, in liberal democratic societies, fairness should ensure each person has an equal right to the most extensive liberty compatible with a similar liberty of others. Where social and economic distributions are to be unequal, they should be arranged so that distributions are of the greatest benefit for the least advantaged. Rawls and Sen also believe that if fairness is to be achieved, decisions about distributions of goods and services should be made in a manner that is open and accountable and without secrecy.

The Rawls principle leads us to consider whether allocations of resources would be considered fair by the most advantaged people in society if, at an instant, they became the most disadvantaged and required the distribution for themselves. In so doing we are urged to avoid bias, remove vested interests and set aside our personal priorities and prejudices. This approach is not dissimilar to Luke’s maxim “do unto others as you would have them do unto you”, which Blackburn10 contends is the basis of almost every ethical tradition.

Sen, meanwhile, appeals to an arrangement-focused view of fairness where justice systems are universally applied without favour and where decision makers behave without corruption. Sen, an economist, also requires fairness to have regard for the economic efficiency of decisions and believes people should be involved in discussions on how economic efficiency is measured. He further proposes that justice as fairness must take account of peoples’ capability to access enjoyment of the things they have reason to value. This means that, institutional rules, while important, must be assessed in the broader context of the lives of the people involved.

Rawls and Sen thus propose a picture of fairness which has regard for the less fortunate, appeals to consistency, calculates economic efficiency and promotes people’s capacity to enjoy the things they have good reason to value. Sen also contends that people who are making distributive decisions should do so in ways which are open and accountable.

The ideals of Catholic Social Teaching11 strongly align with the fairness principles described by Rawls and Sen. Their understanding of fairness is much like the Catholic notion of the ‘intrinsic dignity of the person’, the idea that every human person is worthy of respect as a member of the human family. This notion grants each person inalienable rights; political, legal, social, and economic. Under the Catholic principle of ‘participation’ all people have a right and a duty to participate in society, seeking the wellbeing of all, especially the poor and vulnerable. The notion of the ‘common good’ asserts unfettered rights for all but not at the expense of others, but nor are individual rights to be subordinated to the needs of the group. The Catholic tradition also highlights the physical needs of the poor and vulnerable as a primary priority – the ‘preferential option for the poor’.

There is no one moral description of justice as fairness to which we universally agree, although the maxim ‘do unto others…” does underpin many moral and ethical traditions.

Still, the question arises: ‘how do we know if we are being fair?’ Is it possible to condense Rawls and Sen’s theory of justice as fairness into a framework of thinking to guide us? I propose here four questions distilled from the theories of Rawls and Sen. Imagine a situation (such as the plight of homeless people living in cars) where a decision needs to be made about fairness towards an individual person.

  1. Would the most advantaged person in society accept the decision about fairness, if at an instant, they found themselves to be the most disadvantaged person and required the decision to be made in favour of themselves?
  2. Has the decision about fairness been made in a manner which is open and accountable to all?
  3. Is this decision about fairness based on economic efficiency and on procedural fairness in defining what is meant by efficiency?
  4. Is this decision about fairness based on information available to decision makers about the capability of the person to do the things he/she has good reason to value in their lives?

Using these questions to analyse fairness in the widest context, we are guided to:

  • consider the needs of the least advantaged before the needs of the most advantaged
  • avoid making biased decisions by removing the influence of vested interests, personal priorities and the prejudices of the chosen decision makers
  • be open about the decision-making process and accountable for decisions
  • ensure decision makers engage in some form of rational analysis to determine the best use of resources and ensure there is a general agreement about the process for doing this
  • be aware of the consequences for people affected by decisions and the capacity of those affected to do the things they have good reason to value.

Conclusion

Fairness is a moveable target which reflects different sets of religious, philosophical and political beliefs. There is no one moral description of justice as fairness to which we universally agree, although the maxim ‘do unto others…” does underpin many moral and ethical traditions.

I have proposed in this article a set of questions which can be used to decide if we are acting fairly based on the justice as fairness principles espoused by Rawls and Sen. I have noted that these principles align with Catholic moral teaching. I have discussed various secular approaches to justice and fairness while arguing that these don’t fully encompass the Christian perspective.

Fairness is a complex business and many authors have tried to provide moral, ethical and legal lessons to guide us. Jesus has provided a lesson on fairness in the parable of the workers in the vineyard. His demonstration of love, mercy and grace for all the actors in the story is a most powerful demonstration of justice as fairness.

Dr Greg Coyle completed a doctoral thesis in 2011 examining how government funded public health agencies distribute health resources to citizens. He is employed by The New Zealand Salvation Army as Principal Advisor to the Social Programme.

Endnotes
1 Gauld, R. (2004). Health Care Rationing Policy in New Zealand: Development and Lessons. Social Policy and Society, 3(03), 235-242. Accessed on 18 July 2013.
2 Romano, C. (2009). Amartya Sen shakes Up Justice Theory The Chronicle Review, September 14, http://chronicle.com/article/Amartya-Sen-Up-Justice/48332/ Accessed on 21.09.2011.
3 Lamont, J (2007). Distributive Justice. Stanford Encyclopedia of Philosophy. Retrieved from https://plato.stanford.edu/entries/justice-distributive/ Accessed on 12.09.2009.
4 Russell, B. (1946) History of Western Philosophy, London: Routledge.
5 Gillon, R (2006) PHARMAC and the Funding of High Cost Medicines. Information from PHARMAC’s 2006 High Cost Medicines Review. http://www.pharmac.govt.nz/2009/06/08/Information Accessed on 13/5/2007.
6 Wilkinson, R., & Pickett, K. (2007). The problems of relative deprivation: Why some societies do better than others. Social Science and Medicine, 651965-1978. Doi: 10.1016/j.socscimed.2007.05.041
7 Hamilton, C. (2003). Growth Fetish. Crows Nest, NSW: Allen & Unwin. p124.
8 Rawls, J. (1971). A Theory of Justice. Oxford: Oxford University Press.
9 Sen, A. (2009). The Idea of Justice. Cambridge, Massachusetts: Harvard University Press.
10 Blackburn, S. (2001). Ethics: A Very Short Introduction. Oxford: Oxford University Press. p.101. ISBN 978-0-19-280442-6.
11 Pontifical Council for Justice and Peace. Compendium of the Social Doctrine of the Church. (2004). London: Burns & Oates. Chapter Four.

We Need Better Arguments to Debate Big Ethical Issues [SYNOPSIS ONLY]

In this article, Dan Fleming convincingly posits that we can contribute to euthanasia debates with better arguments.  He explores different ethical and philosophical frameworks that are employed in the physician-assisted suicide and euthanasia debate: deontology, consequentialism, and virtue ethics.  He also contests the assumption that only those with a religious worldview oppose euthanasia legislation.

The full article is available by subscription to The Nathaniel Report

Living with Freedom [SYNOPSIS ONLY]

In this article, Gerard Aynsley offers an incisive analysis of our understandings of freedom within the context of euthanasia.  In tracing two streams of thought from the Enlightenment and the Christian faith tradition, he argues that these two approaches need not be polemical; both are intertwined with thinking about what it means to be a person.

The full article is available by subscription to The Nathaniel Report

Going to pot? The Social Setting and Implications of Cannabis Law Reform Lynne Bower and Deborah Stevens, New Zealand Centre for Science and Citizenship

Introduction
In 2020, the people of New Zealand will be asked to take a stand on the legalisation of cannabis for recreational purposes. Changing the legal status of cannabis, and the laws around growth, supply and consumption is a complex issue. It requires careful consideration of what legalisation means in our current socio-political-economic climate. The debate around cannabis law reform has increasingly been framed in terms of seeing cannabis use as a ‘health issue’ rather than primarily a ‘justice issue’. Essentially, this approach involves moving away from a criminalisation method of deterring drug use through penalisation, toward a method “to protect the health of, and minimise harm from, drug use to individuals”.1

Rather than framing cannabis use as either a justice or a health issue, this article deems cannabis use to be a social issue that has broad societal implications.

The current legal context regarding cannabis use in New Zealand
Currently in New Zealand, unauthorised possession of any amount of cannabis for any purpose is illegal. The exception to this is a statutory defence for the terminally ill, and people receiving palliation, to possess and use cannabis if it is deemed to improve their situation. This exception came into effect with the passing of the Misuse of Drugs (Medicinal Cannabis) Amendment Bill, on December 18th 2018.2,3

However, the Misuse of Drugs Amendment Bill 20194 – which has progressed to ‘second reading’ stage in Parliament at the time of writing – proposes that those caught in possession of and/or using a small amount of any controlled drug, including cannabis, should not be prosecuted unless it is in the public interest to do so. Police will be given the discretion to make this call.5 Removing the criminal penalties for possession and use effectively decriminalises cannabis possession and use in certain proscribed circumstances without actually making them legal. We should note that there is already a practice of ‘diversion’ in New Zealand that is used to keep people out of the criminal justice system. Where cannabis is found in small amounts and it is the first infraction for the person concerned, consequences other than prosecution, such as fines and health referrals, are used. However, diversion schemes have not been applied consistently across New Zealand.6

The Minister of Health, David Clark, has stated that the Misuse of Drugs Amendment Bill 2019 is in line with the changes the government want to make towards a health-based response to drug use.7 However, not all people agree that making cannabis use a health issue is the correct way forward. The effective decriminalisation of cannabis possession and use has been criticised from several perspectives. Janell Dymus-Kurei, the kaiwhakahaere of Hapai Te Hauora (Māori Public Health), has a health workforce who believe that drug issues should remain justice issues.8


Police Association President, Chris Cahill, has stated that “if there is a wish to decriminalise drug use, then that needs to be debated publicly, rather than slipped in under a discretion, which we believe this [Bill] does.”9 We agree. If it is deemed that decriminalisation would achieve positive social goals, specific details around this need to be publicly debated including: how much cannabis counts as ‘a small amount’?; how are repeat offences to be treated?; how will it be ensured that appropriate/ helpful and culturally responsive consequences to cannabis possession and use are put in place and carried through?; and do we need to decriminalise the growth, supply, possession and use of cannabis for decriminalisation to be completely effective?

Chris Macklin from the Law Society finds the notion of ‘police discretion’ problematic. Macklin notes that although there has been work done to help police identify and address unconscious bias as they exercise their powers, unconscious bias still remains a risk when police are asked to implement ‘discretion’.10 The drug foundation’s Māori advocacy advisor, Jack MacDonald, concurs, stating that “police discretion is usually applied unevenly … and sometimes in an outright discriminatory and racist way, so discretion for Māori is something we need to keep a close eye on”.11

Legalising cannabis?
It is one thing to decriminalise the possession and use of a drug, and another to legalise it. Legalisation condones and regulates the sale, use and supply of drugs in a way that decriminalisation does not.

Legalisation of cannabis will be voted on in a referendum in 2020. The government has indicated that the referendum question will be based on draft legislation (still being developed) that will enable people over the age of 20 to purchase cannabis from licensed premises. It will proscribe where cannabis can be consumed, and whether and under what regulations cannabis may be grown for personal use.12 Without knowing the referendum wording, Chris Fowlie, spokesperson for the pro-cannabis group ‘Norml NZ’, manager of The Hempstore, and CEO of the medicinal cannabis startup PharmaCann New Zealand, states that “We are ready to campaign for a Yes vote, but we have concerns about the details, and we will work to ensure the legislation is the best it can be”.13

At this point it is important to ask ourselves: What is the purpose of the law? One of the most significant roles that the law should fulfil is to convey what it is, as a people, we value. For values to be meaningful and worthwhile, they must be oriented toward the preservation and sustenance of people and place, guiding and enforcing responsible action. Anything other would be pathological, as it would be mandating societal demise.

It is arguable that, in our current market-driven society, the law is becoming more and more an instrument of corporate economic and political ‘systems’ in the service of profit and uncoupled from nurturing people and place. Questions concerning meaningful and worthwhile values have been replaced by cost/benefit analyses and financial management questions. If those who propose, write and implement New Zealand law are to uphold the integrity of the law, any changes to the law must only be made after contemplation on the kind of world we want to live in and the kind of people we want to become, rather than in light of a partial (political and economic) cost-benefit analysis.

It is possible to understand the desperation of people advocating to change the law around cannabis possession and use, as significant harms come from the current and largely punitive approach. A drug conviction has serious repercussions for a person’s future possibilities; it narrows life opportunities, making it more difficult to get employment, to travel and to move into more life-affirming and sustainable social spaces. Further, if imprisoned, individuals are exposed to more ‘hardened’ criminals and little is done to address the impetus for drug use. Such negative repercussions have been noted by the Law Commission, who state that individuals who receive criminal convictions as a result of their possession or use often experience levels of harm quite disproportionate to their offending.14 Extending beyond the individuals involved, the harms from a punitive approach to drug use also become woven into families and communities, becoming entrenched with each generation, all of which further alienates those concerned. Statistics show that many of those convicted on charges relating to cannabis possession and use are young people from already marginalised groups.15

These statistics also show that the level of cannabis use in New Zealand is climbing. During 2016/17, 12% of adults in NZ used cannabis. This figure is up from the 8% it was in 2011/12.16 Ministry of Justice figures show that around 1,800 people are convicted for cannabis every year.17 New Zealand is now estimated to have the highest use of cannabis in the world, which is why many argue that criminalising cannabis is not actually effective in deterring people.18 In 2011, the Law Commission also concluded that the criminal justice approach to preventing and reducing harm from drug use was not fit for purpose.19 Empirical evidence supports this. For example, drug checking at festivals in the year 2017-2018, (currently undertaken by volunteers), identified 44 different psychoactive substances. Twenty of these were identified for the first time.20 The Ministry of Health’s 2016 Drug Harm Index (DHI) estimated that the total harm and intervention costs of illicit drug use in NZ to be $1.8b. Note here how harm is being measured fiscally, and not in terms of the impact on the lives of individuals and communities.

Reframing cannabis as a health issue
If a punitive deterrent model is not working, as shown by the upward trends in drug consumption, it makes sense to take a different approach. The New Zealand Drug Foundation contends that it is time to move the conversation on from ‘should we reform?’ to ‘how should we reform?’,21 and recommends removing the criminal penalties for “possession, use and social supply” of low-level drugs including cannabis. Their suggestion is that people found with a small amount of drugs on them should be given a health referral and offered support, not a conviction.22

However, there is a problem with reframing cannabis use as a health issue. In our current society, health issues are viewed as medical issues, and the medical model typically views problems that manifest in a person as problems internal to that individual. The individualising of the problem of cannabis use ‘flattens’ the complexity of a person’s situation. In reality, our situations are always shaped by historically informed socio-political-economic forces, and the practices, institutions and relationships these forces configure. The practices and institutions we inherit structure the possibilities that are open to us, as well as the possibilities that are closed off. We come to understand ourselves and what we can do as we live and move within these socio-political-economic configurations. Thus, when considering someone caught up in cannabis use, the proper question is not ‘What is wrong with this person?’, but rather, ‘What has happened to this person that has put them on a trajectory of cannabis use?’ A medical approach focused on the individual will not achieve this.

To consider this latter question, we need to look at the shape of contemporary New Zealand society, which has been formed on the basis of an individualistic, competitive, market-driven ideology. This ideology – known as neoliberalism – has constructed a way of thinking and living that views people as ‘consumers’ of everything, from healthcare to electricity to information. Neo-liberalism has been extremely useful for governments and corporate elites concerned with making profit out of human activity. However, it has consistently concealed our vulnerable, interconnected human existence – the ways in which the vicissitudes and distresses of life confront us through our dealings in the world – and the way in which socio-political-economic structures and institutions can enhance or diminish our ability to live well together.23

A society structured on a competitive market model oriented towards rampant consumption will always generate ‘winners’ – those who happen to be ‘successful’ in finding well-paid work that allows them to play the consumer game – and the ‘losers’ – those who aren’t. This results in inequality and the social marginalisation of large groups of people, and introduces significant stressors into people’s lives.

In this competitive ideological climate, one’s place in the world can be threatened or overwhelmed by a fraught situation such as: losing a job through no fault of one’s own, but due to the slings and arrows of financial markets; working excessive hours to keep a family warm, fed and clothed; or being left unable to participate in the ‘consumer’ world at an acceptable level. In such situations, it is possible to see how rendering oneself numb to one’s reality through the use of mind-altering substances such as cannabis, might be less an ‘individual choice’, and more a way of dealing with an unkind world. Similarly, when our young people find themselves in an environment in which they are consigned to grinding poverty, amidst family members who are hurting, along with a pervasive sense of helplessness, all contributing to a precarious future, smoking a joint to get through each day might present itself as a ‘better’ reality.

It is also highly plausible that a number of people who appear to be ‘successful’ in the individualistic, competitive neo-liberal game we have constructed are suffering just as much as those on the margins, albeit from different pressures. In many situations, being ‘successful’ requires putting work goals ahead of family life, taking work home in order to meet deadlines, or trying to outshine one’s colleagues in order to keep one’s job. In such situations, rendering oneself comfortably numb through one’s drug of choice may be seen as the best way of coping.

If we are serious about the well-being of our people, then we should think twice about a regime that will ultimately create more ‘market-opportunities’ for ‘consumer choice’ by bringing cannabis into the profit-driven realm. Rather, we need to think about how we can better address our growing social inequalities, and ask ourselves whether it is more ‘choice’ people need, or more kindness.

The concept of ‘consumer choice’ that permeates every aspect of contemporary life is a necessary tool in the arsenal of neoliberal ideology. The prospect of cannabis law reform does not escape from the neoliberal gaze. Typically, the question of “what kind of world do we want to inhabit, as a people?” does not arise. Instead, the discussion is shaped in terms of “how can we best make money from cannabis activity?”

The economy and cannabis law reform
Shamubeel Equab’s economic assessment, undertaken on behalf of the NZ Drug Foundation,24 suggests that there would be no net benefit to the New Zealand economy if cannabis is simply decriminalised. In order to tap into the increased tax revenue – which, ironically, it is stated is necessary for drug education programmes and the establishment of health services to deal with drug use – cannabis needs to be legalised. Research commissioned by Helius, a medicinal cannabis company, estimates that the recreational market in New Zealand could be worth $700m.25 The focus is on profit and the market-economy, not individual and community well-being.

The potential loss of revenue to the New Zealand government through not legalising cannabis has caught the attention of a number of commentators. It has been argued by Matthew Beck, from the University of Otago, that the current annual cost of cannabis prohibition to New Zealand is about $400m, which is the estimated amount being circulated on the black market.26 To actualise the benefits of legislation, the price of cannabis would need to reflect the black market price, or else people would continue to use the black market.27 However, Beck suggests that “consumers are likely to prefer legal cannabis as the quality, consistency and range of products will be improved.”28 Beck contends that “consumers” will pay a premium to avoid purchasing cannabis from criminals. Beck also proposes that legalising cannabis would also provide considerable potential benefits to New Zealand from cannabis tourism.29

When profit maximisation becomes the focus, benefits to the economy are frequently over-stated, and the potential threats to individuals and communities are overlooked or played down. If adequate consideration and discussion of the deeper issues associated with commodifying cannabis does not occur, we may end up with a law and policies that further compromise individual and societal well-being.

Whilst still accepting the commodification of cannabis, Chris Wilkins of Massey University has suggested that a not-for-profit model is needed for the sale of recreational cannabis.30 This would allow regulated cannabis products to be sold by organisations structured in a similar way to how ‘Pokie’ trusts operate, which return about $260m to community groups annually.31 Wilkins proposes that, in addition to government levies, money from cannabis sales would be distributed to drug treatment and to community groups.

Like Beck, Wilkins also recommends a price in line with current black market pricing, and thinks that people would move to the legalised outlets as they would be ensured “product innovation, different types of products, accurate labelling, and they will be safely cultivated under agricultural standards in terms of pesticides and fertilisers and other contaminants.”32 Wilkins also suggests no internet sales and that local government authorities should determine the number of retail outlets in their area.

However, the fact that we already have a system in place that utilises the actions of a particular group of people – those that gamble using pokie machines – does not mean that this practice is a good one and should be emulated. Money from pokie machines is collected from a very vulnerable group of people – people who are already living an unsustainable existence, basing their hopes and aspirations on the promise of a fast influx of cash, which, they are led to believe will solve all their problems. In reality, most of the time these people lose more than they gain and return to their homes and families to face life’s struggles with less finances than they began with.

Exploiting people’s vulnerability, a vulnerability which is all too often a product of systemic injustices, whether in the form of gambling or cannabis use, simply adds another layer of injustice that further distorts societal well-being.

As we are going to be asked to deliberate on the legalisation of cannabis growth, supply and use in NZ, there are many questions to consider. These include:

  • Do we need to legalise the growth, possession, use and supply of cannabis, or can we achieve our social goals by way of decriminalisation of these practices? Is there another way forward?
  • To what extent is the push for legalisation in our current political and economic climate driven by financial considerations rather than social ones?
  • If we take the legalisation route, will there be restrictions or prohibitions in regard to cannabis use around particular situations, for example: in relation to driving or operating machinery; being pregnant; in the workplace; in the sporting arena? How will these restrictions/prohibitions be enforced?
  • If we are to legalise cannabis, how is it to be monitored and regulated for strength and safety of use?
  • What is an acceptable age in relation to growing, possessing, using and selling cannabis?
  • If we legalise cannabis will this lead to a logical progression of legalising all drugs?
  • In what places can cannabis be consumed as a ‘recreational’ practice?
  • At what point does ‘recreational use’ move into an addiction?
  • Would the production and sale of cannabis be prohibited by individuals and taken over by corporations or other entities?
  • If New Zealand follows other jurisdictions that have legalised cannabis for recreational use, a range of products containing CBD and/or psychoactive THC33 could be put on the market. These include edibles, beverages, cosmetics, non-prescription health supplement and so forth. Are we happy to sanction this?

Conclusion
The rhetoric around cannabis decriminalisation and legalisation is framed in terms of moving cannabis use from a ‘justice issue’ to a ‘health issue’. It is our view that an informed response to cannabis use in New Zealand has to go beyond the idea of a law change and the framing of cannabis use as an individual health issue. We also need to reflect on the purpose of the law, and the overall societal message we want to convey with regards to cannabis use. Laws informed primarily by politico-economic cost-benefit analysis are a travesty of justice.

We must also seriously consider the world we have come to inhabit, challenging the thinking around our current socio-political-economic structures and institutions that privileges financial outcomes over a richer understanding of well-being. A trajectory of cannabis use can be a consequence of the situations people find themselves in and the possibilities (or lack of) that present themselves to them. Our current socio-political-economic situation, based as it is on a market-driven competitive individualism, marginalises certain people and causes huge stresses in people’s lives. Using cannabis (and other drugs) will, for many people, be a way of dealing with these stressors, if only for a while. In a caring society, it is more appropriate to address the underlying socio-political-economic factors and the inherent stressors, instead of framing the issue of cannabis use as a health issue internal to an individual whilst, ironically, setting up legal structures and social institutions that condone and supply that ‘issue’.

The NZ Drug Foundation, who advocate for a strictly regulated cannabis market,34 have acknowledged that to address drug use we need to make sure we address other social factors such as, housing, work, economic development and education, especially keeping young people in school and keeping them safe.35 Te Rau Ora’s chief executive Maria Baker also argues that tinkering with Aotearoa’s drug laws is not good enough for tangata whenua. Instead a complete overhaul is needed. This overhaul involves a shift away from an individualised way of thinking to one that embraces the larger social context that a person is embedded within.36

What we do right now – or fail to do – in relation to taking action to transform our socio-political-economic structures, will determine what kind of world we inhabit, what kind of people we become, and what kind of message we leave behind for others. The debate about decriminalising or legalising cannabis is about so much more than the proper regulation of its use for individuals within a health framework.

 


Endnotes

1 Eaqueb, S. (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model. p. 13. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf Last accessed 28 June 2019.
2 Misuse of Drugs (Medicinal Cannabis) Amendment Act, Dec 2018, NZ Ministry of Health. https://www.health.govt.nz/our-work/regulationhealth-and-disability-system/medicines-control/medicinal-cannabis/ misuse-drugs-medicinal-cannabis-amendment-act.
3 The Misuse of Drugs (Medicinal Cannabis) Amendment Bill also declassified non-psychoactive cannabis-derived products including cannabidiol (CBD) products, and allows medicinal cannabis products to be manufactured in New Zealand.
4 This Bill can be located at http://www.legislation.govt.nz/bill/ government/2019/0119/latest/LMS167550.html. Last accessed July 10th 2019.
5 http://www.legislation.govt.nz/bill/government/2019/0119/latest/whole. html.
6 https://www.drugfoundation.org.nz/news-media-and-events/policediscretion-for-drug-offences-needs-greater-health-funding/.
7 https://www.rnz.co.nz/news/national/386568/maori-health-coalitioncalls-for-less-punitive-drug-law-reform.
8 https://www.rnz.co.nz/news/national/388222/drug-law-change-goestoo-far-police-association.
9 Ibid.
10 Ibid.
11 https://www.rnz.co.nz/news/national/386568/maori-health-coalitioncalls-for-less-punitive-drug-law-reform.
12 https://www.radionz.co.nz/news/in-depth/377347/flying-the-flag-forcannabis-law-reform.
13 https://norml.org.nz/cannabis-reform-group-welcomes-referendumdetails-%EF%BB%BF/.
14 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model, p.8. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf. Last accessed 28 June 2019.
15 https://www.drugfoundation.org.nz/assets/uploads/2019-uploads// STON-2018.pdf.
16 New Zealand Drug Foundation (2019). State of the Nation 2018: A stocktake of how New Zealand is dealing with drug issues, p. 3. Available at https://www.drugfoundation.org.nz/policy-and-advocacy/state-of-thenation-2018/ Last accessed 29 June 2019.
17 Ibid., p. 6.
18 Kiwis World’s Top Cannabis Smokers. NZ Herald June 2012 https://www. nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10815874; United Nations Office on Drugs and Crime, 2014, World Drug Report, UNODC: Vienna; United Nations Office on Drugs and Crime - World Drug Report 2012http://www.unodc.org/unodc/en/data-and-analysis/WDR-2012.html.
19 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model, p. 31. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf Last accessed 28 June 2019.
20 Drug Foundation State of the Nation, 2018, pg 10).
21 https://www.drugfoundation.org.nz/assets/uploads/Whakawatea-teHuarahi-July2017.pdf.
22 These New Zealand Drug Foundation recommendations are in line with the moves made in the current Misuse of Drugs Amendment Bill discussed above.
23 Bowyer L, Gillett G (2015) Suicide: The lonely path. Advances in Medical Ethics 2:3. doi:10.12715/ame.2015.2.3. 24 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf. Last accessed 28 June 2019.
25 https://www.stuff.co.nz/business/112517484/government-wants-toreduce-cannabis-market-through-legalisation-not-grow-it.
26 Matthew Beck. Bachelor of Law (Honours Dissertation), University of Otago, 2016. Available at https://www.otago.ac.nz/law/otago638164.pdf Last accessed June 30 2019.
27 Ibid.
28 Ibid., p. 61.
29 Ibid.
30 Anthony, J. (2018). Cannabis legalisation in New Zealand could bring in up to $240m in tax revenue, economist says https://www.stuff.co.nz/business/ industries/109443403/cannabis-legalisation-in-new-zealand-could-bring-inup-to-240m-in-tax-revenue-economist-says Last accessed June 27th 2019.
31 Ibid.
32 Ibid.
33 Stevens D. & Bowyer, L. (2019). ‘A Cannabis Starter Kit’, The Nathaniel Report, issue 57.
34 https://www.drugfoundation.org.nz/assets/uploads/2019-uploads// STON-2018.pdf.
35 Briefing to the Incoming Parliament 2017. New Zealand Drug Foundation. https://www.drugfoundation.org.nz/policy-and-advocacy/briefing-tothe-incoming-parliament/.
36 https://www.rnz.co.nz/news/national/386568/maori-health-coalitioncalls-for-less-punitive-drug-law-reform.