Genetic databases would not exist without the input from donors. Their samples and their associated information are the foundation of their existence. Genetic databases contain very personal, sensitive information and, if misused, could lead to any number of potential harms for the donor. Consequently, the operation and use of genetic databases should meet the highest ethical standards backed up by effective regulations and legislation. The aim of this chapter is to first describe genetic databases and their function before turning to two of the most controversial ethical issues that surround genetic databases, namely privacy and informed consent, and describe how the Australian Government has so far responded to these challenges. It will close by turning to an explicit example, the National Criminal Investigation DNA Database (NCIDD), which is one of a web of databases overseen by the CrimTrac1 agency of Australia.
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Notes
CrimTrac agency, About us, available at <http://www.crimtrac.gov.au/aboutus.htm>, cited 3 May 2004.
deCODE Genetics, Homepage, available at <www.decode.com>, cited 8 April 2004.
Estonian Genome Foundation, Genome Project, available at <www.genomics.ee/index. php?lang¼eng&show¼20>, cited 8 April 2004.
The UK Biobank, available at <www.ukbiobank.ac.uk>, cited 8 April 2004.
Australian Bureau of Statistics, 2005. Population by age and sex, Western Australia— electronic delivery, available at <http://www.abs.gov.au/Ausstats/abs@.nsf/0/a4d377caaa 8b667fca256d81007eb5b7?OpenDocument>, cited 11 September 2005.
Ibid.
GenomeEUtwin, Homepage, available at <http://www.genomeutwin.helsinki.fi/>, cited 15 April 2004.
For a discussion on cross-national research collaborations, human gene banks, ownership, and the consent process, see Maschke, K. J. 2005. Navigating an ethical patchwork—human gene banks. Nature Biotechnology 23 (5): 539–544.
McEwen and Reilly, 1994, cited in Gesche, A. 2001. Genetic testing: a threat to privacy. In: Hindmarsh, R. and Lawrence, G. (eds.), Altered Genes II: The future? Melbourne: Scribe, 105.
For example, genetic patient information and karyotypes are kept for 3 years, microscope slides for 5 years; DNA extracts for molecular genetics minimum 1 month (but can be retained at the laboratory’s discretion); bone marrow slides and reports and frozen section tissue samples for 20 years. National Pathology Accreditation Advisory Council, 2002. Guidelines for the Retention of Laboratory Records and Diagnostic Material. Canberra: Department of Health and Ageing, available at <http://www.health.gov.au/npaac/pdf/ retentionlab.pdf>, cited 2 May 2004. How many are stored in pathology laboratories? No figures are available for Australia, but Barlow-Stewart (2001) reports that in 1999 US pathology archives held 282 million genetic samples and information about these samples.
The Guthrie cards are stored for a period of up to 25 years. National Pathology Accreditation Advisory Council, ibid.
An oft-cited case is the Moore Versus Regents of the University of California Case, where Moore sued the University of California, which patented a cell line derived from his tissue sample. In this case, the Supreme Court of California found that Moore did not have a property right over his tissue, only a right to be informed about what the researchers intended to do with his tissue. Cited in Australian Law Reform Commission, 2004. Gene patenting and human health. Discussion Paper 68, section 3.65. Canberra: SOS Printing Group.
Australian Law Reform Commission, 2004. ALRC 99: genes and ingenuity. Gene patenting and human health. Ibid., section 3.63.
Ibid.
Ibid.
Ibid., section 3.70.
For innovative recent suggestions of how to equitably balance the interests of researchers and donors, see Bovenberg, J. 2005. Whose tissue is it anyway? Nature Biotechnology 23 (8): 929–933.
See the debate in Levine, C. 2001. Taking Sides: Clashing Views on Controversial Bioethical Issues, 9th edn. Guilford: McGraw-Hill/Dushkin, 214–226.
Gesche, A. 2001. Genetic testing: a threat to privacy. In: Hindmarsh, R. and Lawrence, G. (eds.), Altered Genes II: The future? Melbourne: Scribe, 105–110.
Ibid., 216–218.
Australian Huntington’s Disease Association NSW Inc. Frequently asked questions (FAQ) about Huntington’s disease, available at <http://www.ahdansw.asn.au/information/faq_onset.html>, cited 1 September 2004.
Warren, S. and Brandeis, L. 1890. The right to privacy. Harvard Law Review 5 (5), available at <http://www.lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html>, cited 1 September 2004.
Beauchamp, T. and Childress, J. 1994. Principles of Biomedical Ethics, 4th edn. New York: Oxford University Press, 406.
Ibid., 407, 410.
Clarke, R. 2000. Roger Clarke’s dataveillance and information privacy Pages, available at <http://www.anu.edu.au/people/Roger.Clarke/DV/index.html>, cited 2 February 2004.
Spinello, R. A. 1995. Privacy in the information age. In: Spinello, R. A. Ethical Aspects of Information Technology. Englewood Cliffs, NJ: Prentice-Hall.
National Center for Biotechnology Information, 2004. One size does not fit all: the promise of pharmacogenomics, available at <http://www.ncbi.nlm.nih.gov/About/primer/pharm.html>, cited 30 April 2004.
Lewis, R. 2003. Human Genetics: Concepts and Applications, 5th edn. New York: McGraw- Hill.
Menzies Research Institute Homepage, available at <http://www.menzies.utas.edu.au>, 1 September 2004.
In Australian Law Reform Commission, ALRC 96 Essentially Yours: The Protection of Human Genetic Information in Australia, Chapter 18, available at <http://www.austlii. edu.au/au/other/alrc/publications/reports/96/>, cited 12 April 2004.
Eder, P. 1994. Privacy on parade. The Futurist 28: 38–42. Cited in Gesche, ibid., 103.
ALRC 96, ibid., 9 of 22.
The ALRC is a permanent, independent federal statutory corporation that provides advice to government on federal laws and legal processes. Some of its aims are to ‘‘simplify and modernise the law’’ (Australian Law Reform Commission Homepage. No date. About the ALRC, available at <http://www.alrc.gov.au/about/index.htm>, cited 3 September 2004). The NHMRC is Australia’s most respected supporter of health and medical research and an important funding body. It is also an independent statutory authority that allocates Commonwealth funding for medical research, provides guidelines and advice on matters relating to human health, health care, public and medical health research, and health ethics, and promotes community debate on certain issues. The AHEC, a subcommittee of the NHMRC, inquires into ethical issues and, from time to time, develops and reviews highly influential ethics guidelines relevant to specific issues (National Health and Medical Research Council Act 1992), available at <http://scaleplus.law.gov.au/html/pasteact/0/379/0/PA000130.htm>, cited 7 July /2004.
In February 2001, the Attorney-General and the Minister for Health and Aged Care asked the ALRC and the AHEC to jointly inquire into primarily four areas of human genetic information: the protection of privacy of genetic samples and genetic information; the prevention of unfair discrimination from the use of genetic samples and genetic information; the balance of different ethical considerations across a number of different context; and the possibility that changes to the current regulatory framework may be required (ALRC 96, ibid., Terms of Reference; also Opeskin, B. 2002. Ten signposts to better law reform in relation to human genetic information. Conference paper. Einshac and the Istituto di Psicolgia Conference, Rome, 21–22 March, available at <http://www.alrc.gov.au/events/ speeches/BRO/20020322.htm>, cited 8 July 2004.
ALRC & NHMRC, 2002. Protection of human genetic information: discussion paper 66. Canberra: Commonwealth of Australia, section 15.34.
The Office of the Federal Privacy Commissioner. 2004. Information privacy principles, available at <http://www.privacy.gov.au/publications/ipps.html>, cited 30 April 2004.
Privacy Amendment (Private Sector) Act 2000, available at <http://www.privacy.gov.au/ publications/is15_02_print.html>, cited 15 April 2004.
The Office of the Federal Privacy Commissioner, National Privacy Principles, available at <http://www.privacy.gov.au/publications/npps01.html>, cited 15 April 2004.
Office of the Federal Privacy Commissioner. 2001. Health Information and the Privacy Act 1988, available at <http://www.bordergp.org.au/PCP/DOCS/Health%20Info%20and%Privacy%20Act%201988.pdf>, cited 1 September 2004.
The NPPs were compiled for general application across all private sector organizations. While NPP6 and NPP10 make reference to health information, the principles are not intended to be specific to genetics. Consequently, they do not provide specific guidance on privacy issues related to genetic testing and genetic databases. In addition, any reference to genetic information would have been premature, given that the major ALRC/NHMRC inquiry into the protection of human genetic information was still underway.
For example: Health Records Act 2001 (Vic), Health Records and Information Privacy Act 2002 (NSW), Health Records (Privacy and Access) Act 1997. Cited in Skene, L. Genetic testing and privacy rights. Conference. The Body as Data. Melbourne, available at <http:// www.privacy.vic.gov.au/dir100/priweb.nsf/download/493EFC9F05D954F6CA256DEC0002A88B/$ FILE/Loane%20Skene%20paper.pdf>, cited 30 April 2004.
Ibid.
Cited in ALRC 96, ibid., Sections 8.11 and 8.12.
Australian Law Reform Commission and Australian Health Ethics Committee Report Essentially Yours: The Protection of Human Genetic Information in Australia: Government Response to Recommendations, <http://www.ag.gov.au/agd/wuagdhome.nsf/All Does/ Df.C5F37153385647CA2570CA0076BC77? Open document, 20 March 2006>
NHMRC. 1999. National statement on ethical conduct in research involving humans, available at <http://www.nhmrc.gov.au/publications/pdf/e35.pdf>, cited 15 April 2004.
Ibid.
Centre for Law and Genetics, Submission G255, 21 December 2002, ALRC 96, ibid.
ALRC 96., ibid.
Furthermore, the Privacy Commissioner also comments on proposed legislations and inquiries, which deal with privacy issues. The Office of the Federal Privacy Commissioner Homepage, available at <http://www.privacy.gov.au/about/index.html>, cited 3 September 2004.
Skene, L.Genetic testing and privacy rights.Conference. The Body asData.Melbourne, available at <http://www.privacy.vic.gov.au/dir100/priweb.nsf/download/493EFC9F05D954F6CA256- DEC0002A88B/$FILE/Loane%20Skene%20paper.pdf>, cited 30 April 2004.
‘‘Cth’’ indicates Commonwealth law.
Australian Broadcasting Corp versus Lenah Game Meats Pty Ltd 185 ALR 1. Cited in ALRC & NHMRC, 2002, ibid., 228.
Office of the Federal Privacy Commissioner, 2001. Guidelines to the National Privacy Principles. Sydney: Office of the Privacy Commissioner.
Mappes, T. A. and DeGrazia, D. 2001. Biomedical Ethics, 5th edn. Boston, MA: McGraw- Hill, 100.
Office of the Federal Privacy Commissioner, 2001. Guidelines to the National Privacy Principles. Sydney: Office of the Privacy Commissioner.
The Australian National Health and Medical Research’s Council. 1999. National Statement on Ethical Conduct in Research Involving Humans. Canberra.
Ibid., Paragraph 15.6.
Ibid., Paragraphs 16.10(j), 16.12, and 16.16.
Ibid., Paragraph 16.10(k).
Cited in ALRC 96, ibid.
No uniform Human Tissue Act exists. Each Australian state has its own Act. For example, in New South Wales, the Human Tissue Act 1983 applies, in Queensland it is the Transplantation and Anatomy Act 1979, and in Victoria it is the Human Tissue Act 1982. Cited in ALRC 96, ibid., Chapter 18, 18 of 22.
Ibid.
Children’s Hospital at Westmead Tumour Bank, Submission G276, 17 December 2002. Cited in ALRC 96, ibid., Chapter 18.
D. Catchpoole, Head, Tumour Bank, The Children’s Hospital at Westmead. Email to the author on 4 May 2004.
A careful analysis of informed consent in the clinical setting can be found in: The Values Underlying Informed Consent. Reprinted from President’s Commission for the study of ethical problems in medicine and biomedical and behavioral research, making health care decisions, Volume one: Report (1982), 2–6, 41–45. Cited in Mappes, T. A. and DeGrazia, D. 2001. Biomedical Ethics, 5th edn. Boston, MA: McGraw-Hill, 97–103.
In Levine, C. 2001. Taking Sides: Clashing Views on Controversial Bioethical Issues, 9th edn. Guilford, CT: McGraw-Hill/Dushkin, 2–19, Levine provides transcripts of two opposite views on informed consent in medicine: the proponent view is taken by R. M Arnold and C. W. Lidz (cited in: Informed consent: clinical aspects of consent in health care. In: Warren T. Reich. (ed.), Encyclopedia of Bioethics, Vol. 3, rev. edn. New York: Simon & Schuster, and the opponent view is taken by R.M. Veatch (from ‘‘Abandoning Informed Consent,’’ Hastings Center Report (March–April 1995).
See note 30.
See note 30.
NSW Privacy Commissioner, Correspondence, 4 June 2002. Cited in ALRC 96, ibid., Chapter 19.
Lewis, ibid., 269.
Lewis, ibid., 269–270.
Commonwealth Ombudsman and the Privacy Commissioner, refer earlier notes.
Mobbs, J. D. 2001. Crimtrac-technology and detection. Paper presented at the 4th National Outlook Symposium on Crime in Australia, New Crimes or New Responses. Canberra, 21–22 June 2001.
Ibid. Johnston, A. 2002. Acting Privacy Commissioner. Letter to Forensic Procedures Review Committee Secretariat, 11 September 2002, available at <http://www.law.gov.au/www/ criminaljusticeHome.nsf/0/314E5AA2F814BC9CCA256C400017F7C3?OpenDocument>, cited 4 May 2004.
National Institute of Forensic Science. Forensic Fact File—DNA Profiling.
<http://www.nifs.com.au/FactFiles/DNA/case.asp?page ¼ case&title ¼ DNA%20Profiling>, cited 3 September 2004.
Guillén, M., Lareu, M. V., Pestoni, C., Salas, A. and Carracedo, A. 2000. Ethical-legal problems of DNA databases in criminal investigation. Journal of Medical Ethics 26: 266–271, available at <http://jme.bmjjournals.com/cgi/content/full/26/4/266>.
See the discussion on forms of influence with regards to informed consent by Beauchamp, T. L. and Childress, J. F. 2001. Principles of Biomedical Ethics, 5th edn. New York: Oxford University Press, 94–98.
Each individual carries a unique set of genes, made up of two strands of deoxyribonucleic acid (DNA). Each strand of DNA is composed of active segments that code for functional protein, and seemingly inactive, non-coding regions of DNA. These non-coding regions contain repeated sequences of DNA base pairs, called variable number tandem repeats or VNTRs. The uniqueness of these VNTRs provide the markers of identity known as a DNA fingerprint (Thieman, W. J. and Palladino, M. A. 2004. Introduction to Biotechnology. San Francisco: Pearson Benjamin Cummings, 170).
National Institute of Forensic Science. Forensic Fact File—DNA Profiling.
The Office of the Federal Privacy Commissioner. No date. Tax File Numbers, available at <http://www.privacy.gov.au/act/tfn/>, cited 3 September 2004.
Clarke, R. 1987. Just another piece of plastic for your wallet: the ‘‘Australia card’’ scheme, available at <http://www.anu.edu.au/people/Roger.Clarke/DV/OzCard.html>, cited 1 May 2004.
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Gesche, A.H. (2006). Genetic Testing and Human Genetic Databases. In: Betta, M. (eds) The Moral, Social, and Commercial Imperatives of Genetic Testing and Screening. International Library of Ethics, Law, and the New Medicine, vol 30. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-4619-3_4
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