Russel Ogden v. SFU
The
Russel Ogden Case
A
fascinating case study involving ethics regulation in the universities has
occurred over the last few years at Simon Fraser University. The basics of the
case are that Russel Ogden, a former graduate student
in the School of Criminology, did his MA thesis on the topic of assisted
suicides among persons suffering from HIV/AIDS. His proposal, which he
submitted to the SFU Ethics Committee, noted that he would offer his research
participants "absolute confidentiality." Subsequent to completing his
thesis, Ogden was supoenaed to appear in Coroner's
Court, and asked to share information with the court regarding a death about
which it was thought he might have knowledge. He refused to testify, and was threatened with
charges of contempt of court. SFU's administration and Ethics Committee quickly
disappeared, leaving Ogden to face the charges on his own. Ogden invoked the Wigmore
criteria in support of his assertion that the information he gained was
subject to researcher-participant privilege, and eventually won his case,
becoming the first and only researcher in Canada ever to have
researcher-participant privilege recognized in common law. SFU's only response
to the situation was to give Ogden $2,000 on "compassionate" grounds
(against his legal expenses, which amounted to approximately $11,500), and then
to change SFU's Ethics Policy in a way that precluded researchers guaranteeing
confidentiality to research participants in the future.
A
colleague (John Lowman) and I believe that the behaviour of SFU in this case
was inappropriate, both in its unjust treatment of Russel
Ogden, and the way the university's actions in the Ogden case and thereafter
seriously undermine the provision of confidentiality, which is one of the
cornerstones of ethical practice, and a fundamental requirement for many types
of socially valuable research. Much paper has been generated arguing these
points. See the following for some views on these matters:
A series
of three articles in Simon
Fraser News:
|
|
An
Insult to Free Inquiry,
by Russel
Ogden |
|
|
The
Law of the Land, by
Bruce Clayman (SFU's VP-Research, and then-Chair of
the Ethics Committee) |
|
|
A
Law Unto Itself, by
John Lowman and Ted Palys |
The
following article appeared in The
Bulletin (Vol. 11, Issue 1, 1998), a co-publication of the Social Policy Issues and
Ethnic and Intercultural
Relations programmes at Simon Fraser
University:
|
|
Abandoning
"The Highest Ethical Standards": Research Ethics at SFU |
The
following article gives a slightly different slant on the issues. It appeared
in the Canadian Association of University Teachers (CAUT) Bulletin (June, 1998),
which is distributed to all university faculty members across Canada.
|
|
Russel Ogden sued the
university in Provincial Court (Small Claims) to recover more than $9000 in
legal bills he incurred in order to defend his research participants and the
principle of research confidentiality in Coroner's Court. Ogden, who
represented himself, argued the case as a point of contract: since he was
undertaking research as he was required to do as a graduate student, according
to professional standards that he had been taught were appropriate, and
submitted his proposal to the Ethics Committee as he was required, was not the
university obliged to stand beside him in court to defend all that his case
stood for? On that point of contract, the judge said "No." The
university makes its own decisions about how to safeguard "the highest
ethical standards" it is charged with upholding, and has no particular
obligation to pay the legal bills of a graduate student who ends up in court,
however noble the cause. Judge Steinberg did not stop there, however. The final
portion of the written decision contains an obiter dictum, the Judge's
observations/opinions about the case over and above the narrow legal issues
involved in the adjudication of the case. The entire decision, including his
extremely critical observations about the university's behaviour in relation to
the Ogden case, deserves to be read. We thank Judge Steinberg for his
permission to reproduce the decision here.
|
|
REASONS FOR JUDGMENT OF THE
HONOURABLE JUDGE D. STEINBERG in the case of Russel
Ogden (Claimant) versus SFU (Defendant) in the Provincial Court of
British Columbia (Small Claims), Burnaby Registry, No.26780, 10 June 1998. |
Following the release of Judge
Steinberg's decision, the university issued a press release that announced the
university's victory, and noted that, consistent with Judge Steinberg's
suggestion, Dr. Blaney (the SFU President) had
established an independent two-person panel to review the Ogden case. The press
release was something of a gloss, however, and failed to fully capture the
spirit of Judge Steinberg's condemnation of the university's actions. To
rectify those omissions, Lowman and I did the following article, which was
published in the July 16th edition of Simon Fraser News:
|
|
Dr. Bruce Clayman,
the VP-Research, and one of those stung by Judge Steinberg's rebuke, wrote a
response to our article, which appeared in the same issue:
|
|
Lowman and I took exception to
Dr. Clayman's response, in part because of its
inaccurate reporting of events, and the misunderstanding of law it revealed,
and set out to set the record straight. We sent a short "letter to the
editor" to Simon Fraser News summarizing some of these problems,
which they published in the September 10th issue, and prepared a more
detailed rejoinder to Dr. Clayman, which we reproduce
here:
|
|
The Russel
Ogden saga ended with the release of the Russel
Ogden Decision Review, an independent review of the Ogden case conducted by
Drs. Nick Blomley (Geography) and Steven Davis
(Philosophy) at the behest of SFU President Jack Blaney.
The authors do an excellent job of identifying issues of importance to us all
that permeated this case. They conclude with three recommendations -- (1) that
Ogden be given a written apology; (2) that he be paid retroactively for his
legal fees and lost wages; and (3) that the university guarantee that, in
future, graduate students who have received ethical approval and whose academic
freedom is challenged by a third party will be entitled to legal defense.
|
|
President Blaney
accepted all three of the authors' recommendations and received a standing
ovation from the Faculty when he announced it at a general meeting to which all
members of the university were invited. Better late than never. By accepting
these recommendations, SFU went from being a university that let its graduate
students twist in the wind, to the university whose graduate students have
better guaranteed legal protection than, as far as we know, any other
university in the world. Good job, SFU. The university’s apology and pledge to protect grad
students’ academic freedom marked the end of this particular case at
SFU, though the debate about what the implications were for confidentiality
have been reverberating ever since, as will be discussed in a book that Palys
and Lowman are writing about the law and ethics of research confidentiality entitled
Going the Distance.