The concept of Datenherrschaft of patient information from a Lockean perspective
| Published date | 14 March 2016 |
| Pages | 70-86 |
| Date | 14 March 2016 |
| DOI | https://doi.org/10.1108/JICES-06-2014-0029 |
| Author | Jani Simo Sakari Koskinen,Ville Matti Antero Kainu,Kai Kristian Kimppa |
| Subject Matter | Information & knowledge management,Information management & governance |
The concept of Datenherrschaft
of patient information from a
Lockean perspective
Jani Simo Sakari Koskinen
Department of Information Systems Science, University of Turku,
Turku, Finland
Ville Matti Antero Kainu
Turku School of Economics, University of Turku, Turku, Finland, and
Kai Kristian Kimppa
Department of Information Systems Science, University of Turku,
Turku, Finland
Abstract
Purpose – The purpose of this paper is to analyse the current status of ownership of patient
information from a Lockean perspective and then present Datenherrschaft (German for “mastery over
information”) as a new model for patient ownership of patient information.
Design/methodology/approach – This paper is theoretical in approach. It is based on arguments
derived from Locke’s Two Treatises of Government. Legal examples of the current situation are derived
from Finnish, UK and Swedish legislation.
Findings – Current legislation concerning patient information is not clearly formulated and so
recognising a new right on the part of the patient, Datenherrschaft, would be an ethically justiable way
of remedying the issue.
Research limitations/implications – The legal analysis was limited to Finland, the UK and
Sweden, and so other legislation should be looked at in future research. Datenherrschaft is used as an
example of an ethically justied way of regulating patient information ownership and should be
analysed further.
Originality/value – Patient information ownership is an issue that is not unambiguously solved in
many countries, nor has it, in our view, been ethically justied. The potential solution presented in this
paper is clear and has strong ethical justications.
Keywords Ethics, Locke, Ownership, Intellectual property, Datenherrschaft, Patient information
Paper type Conceptual paper
1. Introduction
Hettinger (1989) states that:
Property institutions fundamentally shape a society. These legal relations between
individuals, different sorts of objects, and the state are not easy to justify. This is especially
true of intellectual property.
The aim of intellectual property rights (IPRs) is not just to promote arts and sciences or
secure the livelihood of authors, but also to enable individuals and organisations to buy
and sell rights over works and inventions. The main aspect of debate concerns justifying
The current issue and full text archive of this journal is available on Emerald Insight at:
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JICES
14,1
70
Received 16 June 2014
Revised 2 December 2014
23 February 2015
Accepted 11 March 2015
Journalof Information,
Communicationand Ethics in
Society
Vol.14 No. 1, 2016
pp.70-86
©Emerald Group Publishing Limited
1477-996X
DOI 10.1108/JICES-06-2014-0029
nancial issues and how economic compensation is implemented and regulated. Even
though there have been different approaches, such as the social functions of IPRs
(Geiger, 2013), the nancial issues are still at the core of the discourse.
Justifying the property rights status of patient information ownership is a different
undertaking to that of justifying traditional IPRs and thus needs its own discourse when
compared to intellectual property (IP) as a whole. One, perhaps the most important,
reason for this is that some of the fundamental demands and values in health care are not
similar to those in general IPRs or common property rights outside of IP. The raison
d’être of health care is not the promotion of economic activities or to secure individuals’
compensation for their contribution, which are protected by IPRs. Health care’s purpose
is instead the delivery of care for people and the promotion of well-being.
Alexander and Penalver (2012) have found that property rights are usually justied
based on the following theories: utilitarian-based, person-based, Lockean-based,
Kantian-based or based on the Aristotelian concept of human ourishing. In this paper,
the argument is based on Locke because it has been widely used in justifying property
rights (including IPs) and many of Locke’s arguments are seen as part of the basis for the
justication of liberal democratic societies – which seems to be a relevant model of
society in this context.
This paper argues that ethical demands would be better served by clearly dened
regulation governing patient information and patient information databases. A clearer,
re-dened concept of ownership than that which currently prevails is needed to
overcome the problems of regulating patient information. In the current situation,
unclear regulation leads to the dismissal of the special aspects of the ownership of
patient information in many countries. (Rodwin, 2009,2010;Koskinen and Kainu, 2013).
The analysis starts by using the IPR sense of the word “ownership”. It is obvious that
the concept of ownership is complex and allows room for different interpretations. Our
response to this problem is a new denition of ownership of patient information via
Datenherrschaft (mastery over information). Datenherrschaft, as we dene it, is
proposed as a viable and ethically justied solution to the problem of patient
information ownership.
The aim of the present paper is to analyse the problem of ownership of patient
information and offer a solution that endorses moral legitimacy in health care and
avoids problems that arise from unclearly dened ownership. To achieve this, a
comparison between ve alternatives for ownership of patient information is offered.
These alternatives owners are:
(1) the state, to which the citizen belongs;
(2) the healthcare worker whose intellectual product the data are;
(3) the healthcare provider organisation (public or private) who supplies the
environment for the care;
(4) the organisation that provides the database (within the information system); and
(5) nally, the citizen whom the information concerns.
This paper argues that each citizen has the strongest ethical claim to ownership of
information about themselves. We argue that the ownership – or rather Datenherrschaft – of
patient data should be granted to the citizen because this solution is ethically superior (based
on Locke) to the other alternatives presented.
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information
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