DWP’S fake psych “test” breaks EU and British consent law?Posted: May 2, 2013
It’s been a big day. My articles on the fake psychometric ‘test’ that the Department of Work and Pensions (DWP) is forcing unemployed people to take on pain of losing their benefits were picked up by the Guardian’s Shiv Malik, and subsequently by theHuffington Post’s Felicity Morse. As a result of Shiv Malik’s article, the Guardian asked me to write a brief piece for its ‘Comment is free’ section – my first ever piece of mainstream journalism.
Malik’s article was the most-read of the day in the newspaper’s ‘Society’ section. Clearly the unethical actions by the DWP have struck a chord in people – and rightly so. It’s been great to see such a spotlight shone on such a fundamental issue as the way in which the government is cynically manipulating – and nakedly threatening – disadvantaged people.
However, it appears that the government’s behaviour in this instance is not only unethical but also illegal.
The fake ‘test’ was initially launched as a ‘randomised control trial‘ in Loughton, Essex and – according to the government – such a roaring success there that it was rolled out all across Essex and also in Teesside (my home area).
A Cabinet Office blog about the ‘success’ of its trial lists 3 key parts of the experiment. Step 3 is described as follows:
3. Building psychological resilience and wellbeing for those who are still claiming after 8 weeks through ‘expressive writing’ and strengths identification.
The blog goes on:
Following these results, we are about to launch a much bigger trial across all of Essex, alongside even larger trials in the North East.
Note, because it’s very important, that the government is here recognising – repeatedly – that the ‘tests’ form part of a ‘randomised control trial‘. In other words, the test itself is not the point – what is being trialled here is the supposed effect of going through it on the subjects of the trials – the unemployed people being made to participate.
EU ‘informed consent’
This is critical because it essentially forms the government’s admission that it has behaved entirely illegally.
Directive 2001/20/EC of European law defines the ‘informed consent’ that must be expressly given before anyone can participate in any kind of clinical trial. It defines that consent very clearly:
Informed Consent is the decision, which must be written, dated and signed, to take part in a clinical trial, taken freely after being duly informed of its nature, significance, implications and risks and appropriately documented, by any person capable of giving consent or, where the person is not capable of giving consent, by his or her legal representative; if the person concerned is unable to write, oral consent in the presence of at least one witness may be given in exceptional cases, as provided for in national legislation.
The requirements are set out in Schedule 1 to the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I.2004:1031) as amended by S.I.2006:1928, S.I.2006:2984 and S.I.2008:941. The Regulations transpose the provisions of the European Clinical Trials Directive (EC2001/20) into UK law.
You may be thinking, ‘So what? These regulations refer to clinical, medicinal trials.’ You’d think so, but you’d be wrong.
As a document on clinical ethics by CORDIS, the EU’s Community Research and Development Information Service, points out:
The principle of “informed and free decision” remains valid for any other kind of research.
Another issue is the handling of data and the obtaining of informed consent on what data is to be gathered and how it is to be handled. The University of Southampton’s Sociology department published a paper addressing this issue. It notes:
In terms of legal frameworks, Article 8 of The Human Rights Act 1998 and the Data Protection Act 1998 have relevance to consent in relation to all research (see Montgomery, 2003).The Human Rights Act protects the right to respect for private and family life and thus supports the need for consent to participate in research (Masson, 2004).In relation to the Data Protection Act (DPA), specific issues relating to consent concern the disclosure to researchers of data or information about potential participants, the need to ensure consent to individual’s data except in very specific circumstances, the use to which data is put (i.e., that this should be limited to that for which consent has been sought) and the storage of data (see, Masson, 2004; for a detailed discussion of these issues within a health context see Montgomery, 2003).
Clearly, no consent has been sought from those instructed to complete this test for their participation in the first place, nor for how the data is handled. It is emailed in plain format to a case-handler and clearly stored somewhere for the Behavioural Insight Team’s measurement of the results of the trial and for who knows what other purposes – all without any consent being given, or even sought.
It appears that the case is as ‘open and shut’ as any could be on the data protection aspects of the DWP’s behaviour, and that there’s a strong argument at least that it also breaches EU and UK law on informed consent for participation in trials:
- The Cabinet Office’s own publication states clearly that having jobseekers complete the ‘strengths test’ is a trial to see what effect it would have on employment – the very definition of a trial.
- EU and UK law on ‘informed consent’ states that consent to participate in trials must be given freely and only ”after being duly informed of its nature, significance, implications and risks“. Not only that, but this consent must be given in writing unless the participant is unable to write.
- Data protection law also mandates that consent must be obtained for any collection or use of an individual’s private information.
- Neither the jobseekers in Loughton, nor in the rest of Essex, nor in Teesside, were either asked for or gave consent, written or otherwise, to be ‘guinea pigs’ in this trial.
- At no point was it explained to them that they were participating in a trial, nor were the “nature, significance, implications and risks” of the trial explained to them.
- Not only did they not consent, but they were coerced into participating by the threat of having their benefits removed – the very opposite of any definition of consent.
It seems beyond question – and supported straight from the “horse’s mouth” of the Cabinet Office, although undoubtedly unintentionally – that the DWP and therefore the government have been acting in clear, direct contravention of UK data protection laws and probably UK/EU ‘informed consent’ laws by imposing this trial on unknowing, vulnerable benefit claimants.
In other words, illegally.
This government has behaved like a bunch of crooks since it took office. But now it appears not only to be literally breaking the law, but also boasting about it.
This is a government that appears to have as much contempt for the law as it has for those it considers unworthy, as demonstrated its decision to rush through unprecedented ‘retrospective’ law to avoid having to pay back money it sanctioned unfairly after it lost a landmark ‘workfare’ case – and now by its decision to make unwitting, unwilling ‘lab rats’ of unemployed people.
Anyone whose benefits have been sanctioned – or for that matter who has suffered distress – because of this unlawful and unethical behaviour by the DWP should be seeking immediate legal redress. Oh, except that the government is removing legal aid.