by Selwyn Manning
This erosion of “the spirit” of Privacy Act rights must surely be destined for a legislative tidy-up. That’s clearly the next step necessary in the DNA-Blood-Library paternity case debate consuming the minds of Auckland’s legal fraternity this week.
On Friday the Auckland High Court created a precedence by allowing DNA evidence permissible after it was retrieved from blood samples collected at birth and held at National Women’s Hospital.
A lawyer representing the mother fighting a paternity case, Frances Joychild, says the baby’s DNA was accessed without the mother’s wishes.
Ms Joychild says most people would not know that their baby’s blood is held on file. But the fact is, she says, a library exists which stocks blood files of almost all New Zealanders under the age of 28 years.
At birth a routine blood sample is taken from babies and is tested for diseases then stored on file.
Ms Joychild says the High Court ruling, by allowing access to the information within the DNA of the blood samples, breaches the spirit of the Privacy Act, and that the decision also opens the way for such samples to be used by the police in criminal prosecutions.
There should be, she says, more information provided to mothers about what the sample could be used for. If this is done then the mother can make an informed choice.
The consequences of the High Court ruling are however still being debated within the legal fraternity.
Law Society’s chairperson of its criminal law committee, Judith Ablett-Kerr QC, says it is “unlikely” that blood routinely taken from babies can be used for DNA testing in criminal cases without consent.
She says there are different standards for admitting evidence in criminal cases. In 1991 the High Court ruled that the police could not have a sample DNA-tested against the wishes of a suspect.
But the Maternity Services Consumer Council says the Civil Law precedence still raises serious issues. It was surprised the High Court ruled against the mother and the issue needs to be clarified by the Privacy Commissioner.
The finer points of the ruling raise more questions than direction.
Here, as in the absence of clear common law precedence, legislation is obviously required to provide legal directives where issues of privacy need to be considered and or preserved.
This is particularly so as is shown in this case; where evidence is gathered without consent, from a blood sample taken which was intended for another purpose other than what was or is before the courts.
Here surely is highlighted a grey legal area. The question is will the public’s interest be served by leaving the course of law, and on the other hand confidence in consistent recourse, to be established via the judiciary’s common law conservatism?
There is clearly a series of ethics which require consideration and the forum of select committee and Parliament would perhaps be more closely aligned to the wishes of society than rulings made by judges on a case by case piece-train. There, via the Parliamentary procedure, weight toward a rightful outcome could be added to by interested groups through making submissions and the very ethics committees attached to hospitals, which are charged with the responsibility for taking the blood for honourable purposes, would be empowered to have their voice considered. Such a luxury is obviously denied via the common-law train of events.
Questions that spring to mind: Should a division exist between Civil or Criminal court purposes in the issue so raised here?
If such access is allowable in criminal cases, will this be one way to fast track detection of offenders in serial rape and other serious criminal investigations which rely almost solely on forensic identification? Perhaps the benefits to society is such cases will outweigh individual breaches of privacy.
In civil cases such as in paternity suits, should the individual’s right to privacy outweigh another’s desire to seek proof of parenthood through evidence from blood samples containing DNA - when this is against the consent of the child’s legally accepted parent or guardian? And when such evidence is derived from samples taken for a purpose other than for identification purposes?
There is much to be considered before acceptability of the consequences of last Friday’s High Court decision rests easy on the majority.
However, already publicity surrounding the debate has compelled a tidy up of issues surrounding informing mothers of what the heel prick blood samples can and may be used for.
That announcement certainly only came about due to those revelations by the Auckland lawyer that the database of blood can now be tapped into for DNA evidence in civil cases.
The Health funding Authority’s national testing centre [which collects the blood and stores the information] is to alter its procedures by reviewing how it informs people about the purposed of the blood and DNA samples.
National testing centre director, Diane Webster, says it does give parents a pamphlet on the screening programme. But she says in light of the recent court case, the centre will look at including more detail in its brochures.
This is a large step toward honouring the
individual’s right to informed choice.