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  • Thomas Cheney

Informed Consent and the UK Space Industry Act 2018

Introduction


The UK Space Industry Act 2018[1] is the foundation for the regulatory framework for commercial human spaceflight from the UK. One of the concepts it introduces is ‘informed consent’. This means that commercial spaceflight operators are required to provide information to their customers regarding the potential risks of flying in their vehicle and receive written confirmation and consent that their customers are willing to undertake those risks. However, ‘informed consent’ is a relatively novel concept outside of medical law in the UK. Therefore, there needs to be consideration as to what it actually means as well as some of the issues that may arise.


US Law


US law is slightly more detailed in this area than the new UK legislation. For starters they make a differentiation between crew and ‘participants.’ In fact the US law details three different types of ‘astronaut.’ The first type is the traditional variety, labelled ‘government astronaut. These are employees of the US government either through NASA or the US military or some related agency or organisation of the US government (presumably giving scope to other types of ‘government astronauts’). It also includes foreign government astronauts who are launched under similar schemes. This would cover astronauts like those form the European Space Agency who might be launched on a US government mission to the International Space Station. (such as the Space Shuttle back in the day or under one of the various human space vehicles being developed such as ‘Crew Dragon’ or ‘Starliner’.)[2] Then there is the category of ‘crew’ these, during the course of their employment, operate the space vehicle which carries humans. They have responsibility for the operation and safety of the vehicle and are similar to the crew on ships and aircraft.[3] They are to be clearly distinguished from spaceflight participants who are essentially passengers.[4]

US law requires that crew meet certain training requirements and medical standards (although these are to be elaborated later and elsewhere).[5] Further, operators are required to inform the crew in writing prior to establishing a contract with them that the vehicle they are to work on has not been certified as safe for carrying crew or spaceflight participants by the US government.[6] Similar requirements are in pace for spaceflight participants. They must be provided with written information of the risk and the probability of loss during each phase of flight.[7] They must also be informed in writing prior to being required to pay anything that the US government has not certified the vehicle as safe for carrying crew or spaceflight participants.[8] Finally they must also obtain written informed consent from the spaceflight participant regarding the assumption of risk.[9]


Unfair Contract Terms Act and Negligence


The Unfair Contract Terms Act 1977 stipulates that “a person cannot by reference to any contract term or to a notice given… exclude or restrict his liability for death or personal injury resulting from negligence.”[10] This is potentially not too much of an issue save for the fact there is a question of what constitutes ‘negligence’ in the context of commercial spaceflight. Commercial spaceflight is a new industry and standards have yet to emerge, therefore the courts will have to determine what constitutes ‘negligence’ for this industry. Milas highlights some of the issues that extreme sports have in the arena saying that

The less known the extreme sport, the more likely the judge will struggle with determining the inherent risks associated with that sport… A judge, even with expert witness testimony, cannot be expected to learn the nuances and risks in an extreme sport in such a short amount of time… This determination presents a problem for extreme sports and creates inconsistent rulings depending on the judge’s perceived risks of the sport.[11]

Informed Consent and Extreme Sports


While it is unclear what exactly ‘informed consent’ means it does seem generally agreed that it means that an explanation of the risks involved that are “specific, obvious, direct, unambiguous, easy to understand, simple and complete.”[12] Furthermore, such explanations will “have to be in clear understandable wording that any ‘average’ person, (the ‘reasonably prudent person’) can understand.”[13]

As Tracey Knutson has discussed, ‘informed consent’ in the adventure sports industry means more than signing a form waiving the right to sue the provider. Participants have a right to know and understand, morally and legally, what risks they are taking and as Knutson argues they are asked to actually shoulder some of the responsibility. Now this is possible in the white-water rafting business, for example, as ‘participants’ actually have a role to play, whereas despite being titled ‘spaceflight participants’ they will be little more than passengers.


Christopher Milas comparative examination of California and Switzerland’s approach is informative. Milas reports that California has a ‘no-duty’ rule for sports including extreme supports which results in participants being left with no legal recourse in the event of negligence only if there is intentional harm or recklessness.[14] This is on the basis of a primary assumption of risk for sports which essentially stipulates that there is an acceptance of risk when opting to take part in a sport. California courts have given this a broad application with regards to sports.[15] Milas criticizes the fact that there is no differentiation between ‘normal’ sports and ‘extreme’ sports, similarly there is no appreciation for the role that guides and instructors can play in participants safety and the ways in which than can vary depending on the activity in question.[16]


… should this ‘no-duty’ approach extend to guides and instructors who are solely responsible for their participant’s safety? California does not seem to treat a guide or instructor’s duty any different than a coach or co-participant.[17]

By way of contrast “Switzerland does hold their guides and instructors to a higher level of care when it comes to participant safety.”[18] Swiss waivers, similar to the UK, cannot exclude liability for gross negligence.[19] The Swiss system works more in line with Knutson’s suggestion that the degree of ‘responsibility’ placed on operators varies by how much control the operator has and the role that the participant plays.

ITAR?

One potential issue that was raised by Sa’id Mosteshar of the London Institute of Space Policy and Law, he pointed out that in order to provide sufficient information to satisfy the ‘informed consent’ criteria the information provided to the spaceflight participant could constitute an export under the US International Traffic in Arms Regulations (ITAR) if the vehicle(s), spacecraft systems and/or associated equipment is operated or manufactured by a US firm or even if the spacecraft contains some US technology regulated by ITAR. If this was to be the case, there would be restrictions on what information could be provided to a foreign national even when the informing is being conducted in the UK.[20]


Final Thoughts


Informed consent is an important concept especially for potentially dangerous activities like commercial human spaceflight. However whether the highly technical nature of spaceflight, particularly in these early, experimental phases, can be distilled in a way the average layperson can truly understand is a question worth asking, especially since the first spaceflight participants are likely to be enthusiasts who may be so eager to ‘go to space’ that they are willing to ignore whatever risks may be involved. There is also the risk that the facilitators of the spaceflights may downplay these risks. As for models there is a logic to looking at the way Switzerland treats extreme sports, specially for the United Kingdom. However, it is important to consider the role of ‘spaceflight participants’ who have more in common with ‘passengers’ that true participants and therefore the burden of care rests on the shoulders of the space flight operators.

For the industry it is important to consider questions such as what constitutes negligence. It would be in their interest to be proactive on this front rather than leaving it to courts who will not be overly familiar with commercial human spaceflight and who may hold it to similar standards as commercial aviation. Therefore it would be prudent for them to consider developing some sort of industry guidelines or standards even if they are voluntary in nature.


It would also be sensible for the UK government to reach out to the United States to discuss the potential ITAR related issues given that the vehicles that are likely to conduct commercial human spaceflight from the United Kingdom are likely to be US in origin and therefor potentially subject to ITAR restrictions.


The opinions expressed in these blogs posts are those of the author and do not necessarily represent the views of the Centre for a Spacefaring Civilization or anyone else.


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[1]Space Industry Act 2018 Chapter 5 - http://www.legislation.gov.uk/ukpga/2018/5/contents/enacted


[2]51 USC § 50902(4)


[3]51 USC § 50902(2)


[4]51 USC § 50902(2)


[5]51 USC § 50905(4)(a)


[6]51 USC § 50905(4)(b)


[7]51 USC § 50905(5)(a)


[8]51 USC § 50905(5)(b)


[9]51 USC § 50905(5)(c)


[10]Unfair Contract Terms Act 1977 Chapter 50, Section 2(1)


[11]Christopher Milas, ‘A Tale of Two Extreme Sport Locales: California’s No-Duty Rule in Extreme Sports and Switzerland’s Even-Handed Approach’ (2018) 48 Cal. W. Int’l L.J. 399421


[12]Tracey Knutson (2007) ‘What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry’ 33 Journal of Space Law 105, 118


[13]Ibid, 118


[14]Christopher Milas, ‘A Tale of Two Extreme Sport Locales: California’s No-Duty Rule in Extreme Sports and Switzerland’s Even-Handed Approach’ (2018) 48 Cal. W. Int’l L.J. 399, 402


[15]Ibid, 402-405


[16]Ibid, 405-413


[17]Ibid, 406


[18]Ibid, 406


[19]Ibid, 413-414


[20]Sa’id Mosteshar (2011) ‘An Academic Perspective on Commercial Spaceflight: Liability and Waivers’ Presented at ECSL Practitioners Forum, 18 March 2011, available at: http://www.space-institute.org/app/uploads/1399882859_Academic_Perspective_-_ver3.pdf

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