Mad Cows and Variant Creutzfeldt-Jakob Disease - The New Stature of the Precautionary Principle in European Law and Health Practice

Capitalistic/laissez faire excesses prompted revision of conventional risk analysis

Capitalistic excesses and the advance of technology have inspired a modification of conventionally retrospective risk analysis. The relatively recent Precautionary Principle shifts the burden of proving safety to the individuals or corporations who are contemplating actions that could conceivably harm the public’s well-being. The Principle arguably has merit in dealing with conceivably risky applications of technology and entrepreneurship.

Mad Cow Disease has established Precautionary Principle in European law

The Precautionary Principle recently made its way into European law, achieving its first significant legal victory during the United Kingdom’s Mad Cow epidemic. The United Kingdom’s sad experience with (a) “mad cows” infecting human beings and (b) inadequate public health controls demonstrated that the precautionary thinking its government rejected actually had merit.

Precautionary Principle defined

The Precautionary Principle posits that people should protect health and environment even in the absence of clear evidence of harm, and the burden of proving the safety of an action should fall on the one who proposes it. [1] The Principle is intended for those situations where risks cannot be reliably estimated, when science is ignorant and risk probabilities undiscovered. The concept's preventive rigor varies along a spectrum. [2] On the radical end, all risks to the environment should be minimized, even if proof of a causal link to damage or safety is inadequate. [3] On the more workable end, proportionality and cautionary costs are figured in. [4]

Basic elements of precautionary decision-making

Generally speaking, precautionary decision-making may be characterized by: [5]

(1) a duty to act cautiously when faced with uncertain consequences;

(2) setting goals for environmental and health protection;

(3) shifting proof of safety to the initiator of possibly harmful action;

(4) requiring the assessment of alternatives to the proposed action;

(5) evolving appropriate analytical techniques and decision-making criteria;

(6) using damage-minimizing methods in actions of any kind;

(7) applying economic incentives to promote environmental/public health;

(8) monitoring the effects of actions underway; and

(9) involving the public in decision-making.

Under this scheme, society develops a vision of where it wants to go and works analytically backward from that vision, delineating the steps necessary to achieve it. [6]

Elements required for successful application of the Precautionary Principle

In practice (as this essay will demonstrate), the Precautionary Principle requires widespread agreement regarding the following general principles:

(1) Precautionary thinking has a vital place in protecting health and environment, when society agrees that preserving or enhancing both are overarching goals.

(2) Open transparency is the most vital component of precautionary thinking.

(3) To be effective, the Principle requires an existing political and administrative infrastructure accustomed to thinking in anticipatory terms in the face of uncertain data.

(4) Each subunit of this structure must have clearly established chains of accountability, and the whole must flow toward placing ultimate responsibility in the premier political institutions of the nation.

(5) Administrative/executive structures must have timely access to in-house scientific expertise, which itself can draw upon readily-identified outside experts.

(6) Anticipatory thinking requires participants who:

(a) have an intensely practical knowledge of how the world's workplaces operate;

(b) are willing to research and manage by walking around;

(d) are biased in favor of quickly reacting to inchoate emergencies;

(e) and are accustomed to flowcharting processes and materials to ensure that all conceivable bases have been covered.

(7) And finally, the legal/judicial system must be willing to facilitate precaution. [7]

In contrast, in the past, damage tended to come before prevention and mitigation

In the past, in contrast to the above elements of precautionary thinking, risk prevention or mitigation generally occurred only after (a) damage had been provably done or, alternatively, (b) when caution-inspiring data were already substantially provable. Risk analysis left it to society (rather than entrepreneurs and technologists) to prove that certain actions were harmful before mitigating efforts were put in place.

Risk analysis tended to weigh provable (rather than conceivable) risks against the costs of mitigating them. The process generally lacked a coherent idea of what the overall societal picture should be. It was and continues to be reactively ad hoc.

Is the Precautionary Principle too vague to be useful?

The Precautionary Principle is often attacked on grounds of vagueness and inadequate content. It is not definite enough to guide, [8] and too subject to conflicts in regard to definitions of competing "goods" to be useful. It is not even clear when precaution should be triggered. What level of proof of potential harm is required before preventive or mitigating action is taken? Should the anticipated harm be proved (a) beyond a shadow of a doubt, (b) beyond a reasonable doubt, (c) by the preponderance of evidence, or (d) without any rational empirical basis? [9]

Ridiculous though the last element might seem, some things may be so precious that we should not risk losing them. [10] Preciousness justifies shifting the burden of proving safety to the one who proposes doing the action. [11] The shift in burden of proof protects against the tragedy of the commons. [12]

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Mad Cows and Variant Creutzfeldt-Jakob Disease - The New Stature of the Precautionary Principle in European Law and Health Practice