This article originally appeared in the Canadian Association of University Teachers (CAUT) Bulletin, June/1998. We thank Richard Coe and Russel Ogden for their comments on an earlier version of the manuscript.
When Research Ethics & the Law Conflict
by
John Lowman and Ted Palys
Simon Fraser University
Russel Ogden, a graduate student in Criminology at Simon Fraser University, was subpoenaed in 1994 to appear before Vancouver Coroner’s Court to ascertain whether he could throw light on the cause of death of "Jane Doe." The Coroner was told that two persons associated with the death had participated in Ogden’s thesis research on assisted suicide and euthanasia in the AIDS community. As far as we know, Ogden is the only Canadian researcher to have been asked by a court to divulge confidential information.
Because Ogden had promised absolute confidentiality to his research participants, he refused to divulge confidential information and was promptly charged with contempt of court. In his defence, Ogden successfully argued his communications passed the Wigmore test, which lays out the criteria required to establish, "a privilege against disclosure of communications between persons standing in a given relation."
This article alerts Canadian researchers to the issues raised by the Ogden case and hoists a red flag over regimes of "limited confidentiality," such as that the SFU Ethics committee imposed on researchers in the wake of the Ogden subpoena. It also raises issues that will assuredly come to the fore when Canadian universities respond to the Tri-Council’s final recommendations.
‘Limited Confidentiality’
When Ogden was subpoenaed, no one from the SFU administration or ethics committee appeared in court to assert the importance of confidentiality to the research enterprise or defend the ethics committee's decision to allow Ogden to guarantee "absolute confidentiality" to his research participants.
And instead of waiting for the Coroner’s decision, the ethics committee, then under the chairmanship of the vice president research, set about changing the way ethics applications are processed. At its meeting of Sept. 9, 1994, the Committee reviewed issues related to research where participants are asked to disclose information involving illegal activity. Under the heading, "limited confidentiality issues," the minutes report that:
"The question was raised as to what the ethics committee can do in such cases to protect the interests of subjects, the researcher and the University…. (I)t was agreed that causing the researcher to provide limited confidentiality in appropriate cases would protect the subjects, the University and the researchers" (emphasis added).
"Appropriate cases" became defined operationally as those where researchers respond positively to the ethics review screening question, "Does information to be obtained from subjects include information on activities that are or may be in violation of criminal or civil law?" Researchers who said "yes" were required to add the following, or a variant thereof, to their informed consent statement:
"Any information that is obtained during this study will be kept confidential to the full extent permitted by law. … However, it is possible that, as a result of legal action, the researcher may be required to divulge information obtained in the course of this research to a court or other legal body."
Although members of the Committee have asserted that, in theory, there are times when researchers of conscience might ethically refuse to testify, in practice the Committee provided no mechanism for researchers to do this. Indeed, they made it impossible, apparently because the committee believed that research ethics should be subservient to law. As one member was quoted in the Simon Fraser News as saying, "As a public institution it would be morally and ethically wrong to assume that our research activities are above the law of the land."
We find this particular spin highly misleading — researchers who subject themselves to court procedures and possible imprisonment are hardly "above the law." More importantly, we are troubled by the implication that, if ordered by a court to do so, researchers should be expected to divulge confidential information.
Although the committee has argued these informed consent requirements represent merely a "procedural" change, we suggest that "causing the researcher to provide limited confidentiality" is tantamount to making a substantive change to our ethics policy without the approval of the university senate. The current policy does not impose any a priori limitation on confidentiality. Worse, the imposition of limited confidentiality represents an assault on academic freedom and abdicates the university’s responsibilities under its own policies to "encourage the highest ethical standards" and "endeavour to provide a working and learning environment that is supportive of scholarship and research."
The Wigmore Test
SFU's ethics policy asserts that, "the primary ethical concerns respecting research on subjects relate to: informed consent; deception; privacy; confidentiality; and, anonymity." Heeding only the first of these, the ethics committee argued that informed consent requires prospective participants be told that a researcher might be required to divulge information. Although this is ostensibly designed to protect participants' right to informed consent, we believe the committee traded away participants' right to confidentiality by undermining their only legal protection, the so-called "Wigmore test."
The Wigmore test consists of four criteria to determine, on a case-by-case basis, whether a communication is privileged:
The legal commentary we have seen (see endnote 1) indicates there must be clear evidence on each criterion in order for communications to be privileged. By requiring researchers to tell research participants that a researcher "may be required to divulge information … to a court or other legal body," the raison d’être of the Wigmore test is missing. By denying researchers the opportunity to make unqualified guarantees of confidentiality, the ethics committee actually exposes participants to harm.
Also, the committee's actions may undermine the second Wigmore criterion. If a university will so easily give away participants' rights to confidentiality, how important can confidentiality be to the researcher-participant relationship? To the extent that the SFU regime of limited confidentiality could be used as evidence that confidentiality is not essential to that relationship, the ethics committee has endangered research participants at other universities as well.
Ogden Sues SFU
In 1996 Ogden sued the university to recover the legal bills he incurred in Coroner’s Court. The university’s defence included appropriating an undertaking Ogden made to the Ethics committee to take, "full responsibility for any decision I make with the respect to the sharing of information," seizing the words "full responsibility," and arguing that it constituted a waiver of liability. To sustain this argument, the university successfully excluded from evidence, on procedural grounds, an affidavit from a member of the 1992 committee that denied Ogden’s undertaking was a waiver of liability, and asserted the extraction of such a waiver would have been an abuse of the committee’s power.
Whether the university’s waiver argument and the other arguments it presented will be successful remains to be seen, as the judge has not yet issued a decision. Whatever the outcome, the court’s jurisdiction is limited to contractual issues and cannot resolve questions about the university’s ethical responsibilities to researchers and research participants. (see endnote 2).
Although the ethics committee insists that the rationale underlying limited confidentiality concerns prospective participants’ rights to informed consent, the committee meeting minutes of Sept. 9, 1994 justify limited confidentiality not just in terms of the committee’s mandate to protect research participants, but protecting the university, too. However, according to the policy, its sole purpose is to "protect the rights and interests of the subjects in the conduct of research."
The contamination of the ethics approval process by extra-ethical criteria has proven particularly problematic at SFU because, until recently, the vice president research also chaired the ethics committee. Under SFU's ethics policy, the chair is empowered to make decisions without consulting the committee, which is exactly what the office of the vice president research did with the overwhelming majority of ethics applications.
In one case we have had access to, liability considerations appear to have loomed large in the outcome of the decision. This reaffirms the wisdom of the Tri-Council Working Group's 1997 draft recommendation that, in order to ensure that only ethics criteria govern the ethics approval process, there be a clear division between ethics approval and administrative decision making. The vice president research recently resigned as chair of the committee in recognition of the institutional conflict. Unfortunately, the appearance of conflict remains, as under the current policy the vice president research still appoints the committee and hears appeals of its decisions.
What is at Stake?
The researcher-participant relationship is unique to the extent we have little to offer participants beyond our interest and understanding, and the opportunity we provide for their voices to be heard. Sometimes participants risk their liberty by trusting our word. A priori limitation of confidentiality alters the research landscape in a way that exposes research participants to harm and infringes academic freedom. Limiting our allegiance and willingness to protect our charges is anathema to the research mission and, in certain circumstances, would make the researcher little more than an agent of the state.
Maintaining the core traditions of the university requires the courage of our convictions. The reign of limited confidentiality at SFU reveals an institution prioritizing liability management over ethics, and leaving researchers to twist in the wind when they take seriously their responsibility to protect research participants from harm. We believe it is not only morally wrong for the university to foist this responsibility entirely onto researchers in the way that it did to Russel Ogden, but also abrogates its obligation to create an environment in which researchers can collect and publicly disseminate information about all aspects of society.
The SFU Ethics Task Force
SFU’s new president, Jack Blaney, has brought two elements to the presidency that make us optimistic. First, he has acted on his commitment to open governance. The positive experience of the Harassment Policy Task Force (see "The Real Story of Harassment at SFU," Bulletin, May 1998) is due in no small part to the inclusiveness and openness of its proceedings.
Second, he has set up a two-person panel to review the Ogden case, and the university's decision to cut Ogden adrift when he was subpoenaed.
Third, President Blaney has decided to establish a Research Ethics Policy Revision Task Force to begin the process of overhauling our ethics policy, and to consider the Tri-Council recommendations. The Task Force mandate is expected to include scrutiny of how the policy has been administered in the past, including the reign of limited confidentiality. For this reason researchers should pay close attention to the SFU task force recommendations, especially as Canadian universities prepare to grapple with the Tri-Council’s policy statement on ethics.