The joke that ‘If they could privatise the air, they would’ conveys the criticism that the Conservatives would privatise something which has thus far been able for free, and ironically conveys the hatred of Ed Miliband towards the ‘quick buck society’. Privatised utilities in the business world are considered a failure for a number of reasons. Firstly, it is widely considered that the public sector privatisations were not adequately restructured prior to their privatisation during the Thatcher government in the 90s. Secondly, the end products of privatisations such as railways, gas, water or telecoms have not always been, arguably, in the public’s interests. They are mostly ‘oligopolies’, in other words a few big entities in the marketplace, who can mutually collude in a legal way to keep prices high, not necessarily improve quality in a comparable way, leaving their customers in a worse position than they had previously.
Donating blood in the NHS has always been a rather symbolic ritual in the NHS, made famous by the famous sketch by Tony Hancock in ‘Hancock’s Half Hour’. Mark Kleinman for Sky has reported that the Department of Health has appointed Lazard, the investment bank, to explore a privatisation of Plasma Resources UK (PRUK) in a move that could raise tens of millions of pounds for the taxpayer. In a written statement in the House of Commons yesterday, Simon Burns, the health minister, said a sale was necessary to ensure PRUK “can successfully compete in the global market. An independent review found that the best interests of the company, the taxpayer and patients would be met by investment from private sector”.
The resentment of a private sector influence in the NHS is traditionally resisted by those who argue that such entities are run as businesses in the NHS anyway. As an example, NHS trusts have been in the news because of their risk of insolvency. For example, it was recently announced that South London Healthcare would become the first NHS trust to go into administration “as debts spiral out of control”. Most people can give blood. If you are generally in good health, age 17 to 65 (if it’s your first time) and weigh at least 50kg (7st 12Ib) you can donate. Many of the rules implemented in the UK on who can give blood are a requirement of European law. However, there are a number of expert committees that regularly review the evidence relating to exclusions and deferrals from blood donation. Policies which specifically relate to the safety of blood for patients are recommended to the Government by the independent advisory committee on the Safety of Blood, Tissues and Organs (SaBTO).
The seminal case of Moore v Regents of the University of California (1990) is the US landmark case which dealt with the issue of property rights in one own’s body parts. The judgment has been made widely available. John Moore underwent treatment for hairy cell leukaemia at the UCLA Medical Centre under the supervision of Dr. David W. Golde. Moore’s cancer was later developed into a cell line that was commercialized. The California Supreme Court ruled that Moore had no right to any share of the profits realised from the commercialisation of anything developed from his discarded body parts.
For thousands of years the human body has been considered inviolable, and this seems to represent the majority of societal values as a whole. At one extreme of the argument, prostitution has been called the world’s ‘oldest profession’, but the law over this area has been ‘complicated’ (see for example the Policing and Crime Act, 2009). However, the boundary between what is ‘me’ and what is ‘outside’ me is not clearly defined (Gold, 1996), particularly when internal organs, tissues and reproductive materials can be easily separated from the body and given to another or offered for research and experimentation. People have powerful feelings of ownership over such tissues, as the parents involved in the Alder Hey and Bristol Royal Infirmary child organ scandals have shown. This idea of self-ownership promotes the concept that individuals have a collection of rights that enable them to determine what is done with their bodies (in the seminal work, ‘Medical Law’, Kennedy and Grubb, 1994).
To analyse how English legislation and case law governs the human body and its constituent parts with regard to the use and control of parts once they have been removed, medical lawyers to the fundamental principles that guide property law. According to Grubb (1998), the rules of private property operate to distribute in society those resources that are valuable and for which there is greater demand than supply. Grubb explains that ‘property’ is used to describe the relationship between a thing and an individual, and that this generates a range of legal rules that govern that relationship, in particular the person’s right to use the thing, exclusively control it and dispose of it.
It could be argued that this general reluctance to regard the body as property (Dworkin and Kennedy, 1993) is founded on historical respect for the body (Nuffield Council on Bioethics, 1995). This, in turn, implies that the body should not be used at will or abused and suggests that property rights may encourage the commercialisation of the body, turning it into a commodity. More recently, the law has recognised that regenerative body materials, such as hair (R v Herbert, 1961), blood (R v Rothery, 1976) and urine (R v Welsh, 1974), can all be the subject of property rights and are capable of being stolen.
So, when you donate blood in future, you might also have to enter into paperwork over who owns your blood, and it will be interested to see how this is dealt with. For example, City law firms have been known to make enormous sums of profit in trading over rather abstract things such as “carbon credits”, and you can legitimately argue that blood is less abstract than a carbon credit. An interesting question is who owns the blood you have already donated; in other words, whether the new ownership rules might have retrospective effect. A parallel can be seen in natural resources such as water, what Harold Macmillan, in reference to Thatcher’s ideological drive to privatisation, used to call ‘selling off the nation’s China’ in a very unapproving way. A number of things have been done in the name of austerity – such as the legal aid cuts which have seen welfare benefits for disabled citizens being taken out of scope with a record number of proven appeals for benefits being withdrawn completely illegitimately. Whose blood is it anyway? We live in interesting times.
