Five years ago when Roger and I finished our first book together, The Crisis of Innovation in Water and Wastewater, we included some material about arsenic contamination of groundwater in Bangladesh. Our point there was whether this case, which involved the British Geological Survey and well water survey research carried out as far back as 1991/1992, would set any precedent about ‘duty of care’ in international water projects. We pointed out at the time that the World Health Organization (WHO) had already called this situation ‘the world’s largest mass poisoning of a population in history’.

At the time the BGS’ ‘parent’ body, the Natural Environment Research Council (NERC), planned to ‘vigorously defend’ accusations by a Bangladeshi NGO that it had been negligent in not testing for arsenic during its well water surveying. (The original survey work was funded by the then Overseas Development Agency, as outlined in this interesting piece in The Guardian.)

The health impacts of arsenic poisoning have continued to be explored since our book came out of course. For instance a new article in The Lancet has just been reported by the news service, WaterLink International. This article has confirmed that ‘[c]hronic arsenic exposure through drinking water‘ during the course of a longitudinal study ‘was associated with an increase in the mortality rate‘. Seeing this particular article today in fact reminded me to follow up on our original material for this post…

So what happened to the Bangladeshi/BGS case? In our book we could only write at the time that the High Court had dismissed NERC’s application to strike out the action in 2003; that this was overturned by a Court of Appeal in 2004; and that lawyers for the Bangladeshi villagers intended to go to the House of Lords in 2005. Doing a quick bit of follow-up research it seems that after the initial ‘success’ of an individual villager complainant being allowed to take his case to the House of Lords (determined on 25 January 2005) the Lords later threw the case out in July 2006.

A comprehensive write-up of the story by the BBC indicates that Lord Hoffman’s ruling at the time was that the relevant agencies, such as the BGS, in cases like this were ‘liable only for the things they did and the statements they made, not for what they did not do‘. For the Bangladeshi complainant concerned, this sadly led to a conclusion that there was ‘no reasonable prospect of satisfying a court that in all the circumstances the NERC owed him a duty of care‘. At the time, NERC’s Chief Executive was also quoted as saying that this ruling confirmed that ‘scientists cannot be held responsible for the research they decide not to do‘.

As well as removing the prospect of a legally-defensible ‘duty of care’ for this kind of international water project, this does raise questions of how the legal system views research methods and the nature of science. Most academic institutions require ethical approval before research fieldwork is undertaken – particularly when it is especially invasive or has significant health implications for the people or population studied. The research design and methodology behind any framework is where it is systematically determined what to do and what not to do. Surely that means there is a transparent process around which a ‘duty of care’ can be contested? After all, during this process, someone somewhere decides what to include or not include in a research project – and justifies (academically at least, if not morally etc.) this choice. I’m surprised that this point was not raised (or if it was, was not accepted) in this particular case. It seems fundamental to the argument.

Of course critics and sceptics of this case quickly pointed out that the agenda here was unlikely to have ever been about ‘duty of care’ but rather was about cushioning British taxpayers from potentially huge claims for compensation. A write-up I found by the law firm Davies Arnold Cooper put it like this:

This case is a clear indication of the English courts’ reluctance to open the floodgates to mass litigants from overseas, particularly when the cost to the British taxpayer is potentially so great. […] For the time being, organisations and companies with overseas concerns will be relieved by this ruling.

A separate website news story went even further:

If the legal action had been successful it could have cost the British taxpayer millions of pounds in compensation. It would also have set a precedent in making development aid more accountable.

The one slight ‘silver lining’ to this unpleasant business is that at least some research is ongoing to determine the mechanisms whereby arsenic is getting into drinking water in Bangladesh. For example, MIT research work reported late in 2009 has shown that ‘human alteration to the landscape, the construction of villages with ponds, and the adoption of irrigated agriculture are responsible for the current pattern of arsenic concentration underground‘.

Disappointing though this all this, for the time being, we’ll have to just keep an eye out for any further developments on this Bangladesh arsenic issue. We’ll report back as and when there’s something new to share…

Update (15/11/2016): Featured image added from this source.

Duncan Thomas

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