In SFU's Ethics Review Committee: A Law Unto Itself, we describe the apparent conflict of interest that exists for the roles of Chair of the Ethics Committee (which calls for its highest priority to be attached to ethics) and of Vice-President of Research (VP-R) (which involves other interests that compete with ethical practice), both of which positions are currently occupied by Dr. Bruce Clayman. In this paper, we offer a more detailed description of this conflict of roles, one that has been evident throughout the Ogden case, continues in the VP-R's handling of current ethics policy issues, and should be addressed immediately.
Although we have written about this conflict, and discussed it with Dr. Clayman, the recognition of its existence extends beyond the three of us. The Tri-Council Working Group (TCWG), for example, whose most recent (1997) Code of Conduct for Research Involving Humans may soon be imposed on the universities, also explicitly recognizes the existence of such a conflict, and its members have stated in a public forum that the current structure at SFU would contravene its Code. To rectify the situation, the TCWG believes that "Both the authority and the mandate of the REB should be established by the highest officer in the institution," (TCWG, 1997, p.II-2) i.e., at SFU, the President. We support that view, albeit supplemented by the CAUT's position that the President's recommendations should require ratification by Senate. The remainder of this brief amplifies on these points.
The notion of conflict of interest underrides the frustration many of us have continued to feel over the Russell Ogden case for years, and which continues in Dr. Clayman's most recent reconsideration of that case at the President's behest. Yet again, Dr. Clayman's letter of 28 October 1997 to Dr. John Lowman leaves the impression that he, too, is prepared to subjugate ethics to administrative convenience.
We should not forget that the whole process formally began when Russell Ogden, then a graduate student in criminology, submitted his Master's thesis proposal to the Ethics Committee for its consideration. It approved his protocol, in which Mr. Ogden anticipated the possibility of efforts being made by justice authorities to subpoena information gained in the course of his research, guaranteed "absolute confidentiality" nonetheless, and kept to that protocol. When he was subpoenaed by the Coroner, Mr. Ogden moved to what we believe any ethical researcher would see as the next step - to vigourously defend his research participants' right to confidentiality, and his own promises of confidentiality, by invoking the Wigmore criteria. The university was conspicuous by its absence at those proceedings, and Russell Ogden was, with the exception of token offerings made on "compassionate" grounds, left alone. Mr. Ogden anticipated it all, was forthcoming about that possibility to the Ethics Committee, behaved ethically, and was abandoned. Why?
It is instructive to look at the testimony of Dr. Clayman and Dr. Stubbs in the legal suit of Russell Ogden versus SFU (testimony 1996; decision pending), where the two are questioned under oath about that very question.
Dr. Stubbs recalled that "many factors" were involved in the university's consideration of Mr. Ogden's plight. A major area of concern, however, was how the university would look if the media seized upon the case. The following interchange among Mr. Ogden (representing himself, questioning), Dr. Stubbs (as witness), and the trial judge, pertain to that topic:
OGDEN: What was the perceived threat to the university if the media were to give attention to this issue?
STUBBS: Well I think - again I can only talk in generalities and as I said in my earlier answer, the questions that you were examining in your research are issues that - that excite a great deal of public discussion and interest and the - the question of the whole area is a very emotive area and then when the issue of your involvement in the courts became visible, that certainly added another layer of complexity to the issue because it draws attention to the fact of the work you're doing and the attention that that work is generating in the media and that raises questions because, as I say, it's a hotly debated subject as you know better than any of us.
JUDGE: But what's the answer to his question? The question was not would it generate a lot of controversy but the question was -
OGDEN: What was the perceived threat, Your Honour.
JUDGE: - what was the threat? What was the - what would be the downside, assuming there was controversy -
STUBBS: Yes.
JUDGE: - controversy that boiled up, what was the threat to the university is the question.
STUBBS: Well the threat ultimately to the university is that we end up - there is a court issue that has arisen and the university, depending on what action is taken, is involved in taking a position that is - I'm sorry, I don't know the legal language, but that is challenging the legal process and that kind of publicity is something that doesn't do the university - doesn't necessarily do the university a lot of good. (Testimony of John Stubbs in Russell Ogden v SFU, 27 June 1996, p.11)
Dr. Clayman's testimony began with his response to questions concerning what he believed the university, and especially its research mission, was all about:
OGDEN: Could you describe for me what the missions or purposes of the university are?
CLAYMAN: Traditionally, they are the generation of new knowledge, the dissemination and custody of that knowledge, and service to the community.
OGDEN: So, in simple language, research and teaching?
CLAYMAN: And service.
OGDEN: And service. With respect to research and research ethics, what are the primary areas of concern when dealing with research that involved human subjects?
CLAYMAN: Protection of the subject and protection of the research enterprise.
OGDEN: Would protection of the research enterprise extend to protection of the researcher?
CLAYMAN: In my opinion, it would, obviously depending on the circumstances.
…
OGDEN: You say in some circumstances that protection of the research enterprise would extend to protection of the researcher. What might those circumstances be?
CLAYMAN: Well, I guess the normal circumstance in which the researcher does his or her research in an ethical fashion. (21 June 1996, pp.64-65)
Given this perspective, with which we agree, a full consideration of the Ogden case and a choice among alternative courses of action clearly should require:
Did those occur?
The question of whether Mr. Ogden had taken steps to adequately protect his research participants would seem to have been addressed in his original proposal, in which he said he would offer "absolute confidentiality" to his participants. The Ethics Committee accepted that guarantee, which was, of course, consistent both with SFU's ethics policy of the time (which required that "strict confidentiality" be observed), and the requirements of Mr. Ogden's own disciplinary perspective. Subsequent events - where Mr. Ogden asserted his and his participants' rights in coroner's court even when left to do so on his own - show that he kept up his end of the bargain. Curiously, however, there is no mention anywhere in the court transcripts of the university, when it came time to decide what to do regarding the subpoena that Mr. Ogden received, actually considering what action on their part would be in the best interests of the research participants. How could it be anything but a concerted effort by the Ethics Committee to protect the participants' confidentiality? Surely these are issues on which the Ethics Committee should have input. Why was it not solicited? Where was its Chair?
Regarding the protection of the research enterprise, there is a similar void. Dr. Clayman's testimony included the following interchange:
OGDEN: Would it not be in the interests of the university to consider whether challenging a subpoena is appropriate?
CLAYMAN: Well, we certainly did consider it. I didn't say we didn't consider it.
OGDEN: Just didn't arrive at a conclusion?
CLAYMAN: We arrived at a conclusion that was not - well, you know the conclusion we reached.
JUDGE: Well, I think you're going to have to spell it out because you're the witness.
CLAYMAN: Yeah, of course. The question of the welfare of the research enterprise was considered. It was a factor. It wasn't a primary factor, and it was never - as I said before - it was never concluded one way or the other whether your performance of your research was in the interest of the enterprise or not. (p.67)
It thus would seem that the welfare of the research enterprise was not a primary consideration, and may not have been a consideration at all, given that the university never even came to a conclusion on the issue. Where was Dr. Clayman?
The third issue noted above was the question of whether Mr. Ogden had acted ethically since, as Dr. Clayman had testified, and as common sense and equity would surely suggest, an individual who acted ethically in all respects and with the approval of the university should surely expect to be backed by the university when a request was made by the court for that confidential information. In the following interchange, Mr. Ogden wonders whether the ethics of his behaviour was ever considered:
OGDEN: There has been considerable discussion concerning this issue of the coroner's decision, the defense that I put before the coroner, perhaps even the process concerning how the project received ethical approval. It seems unusual in all of that discussion, there doesn't seem to have been any consideration as to whether what happened was correct in the eyes of those who interpret the university policy.
CLAYMAN: You're making an observation?
OGDEN: I'm asking you if my observation is correct, yes, that there doesn't appear to have been any - was there any conclusion drawn by those who interpret the university policy as to whether the position I took before the coroner was a proper one in light of the policy and in light of the eyes of those who interpret the policy in the administration of the university, in particular, in your office?
CLAYMAN: Well, certainly the Ethics Committee do not consider that question. The vice-president's group and the president that made decisions about support for you -
OGDEN: I'm not asking about support, Dr. Clayman. I am asking -
JUDGE: Well, no, no, he simply is identifying a group.
CLAYMAN: If you let me finish. That group which had that discussion did involve, did include consideration of that issue, but it also involved consideration of other issues as well.
ODGEN: What were the conclusions drawn from those considerations?
CLAYMAN: Well, as you know, the conclusion was initially by the president that financial support wouldn't be forthcoming. It was never addressed individually whether your performance of your project was or wasn't unethical.
JUDGE: So what you're saying is the decision was independent of whether he was completely ethical or not?
CLAYMAN: That's correct. (pp.66-67; our emphasis)
This testimony is startling in two respects, both elements of which have been italicized. First is Dr. Clayman's assertion that it is not the role of the Ethics Committee to consider whether Mr. Ogden's behaviour was "proper." Although the word "proper" may include many things, surely at least one element of that consideration should be whether Mr. Ogden's behaviour was "ethical." But both ethics and the Ethics Committees seem to have been considered irrelevancies here, as indicated by Dr. Clayman's response to the judge's last question. Why that would be the case - given the centrality of ethics to the whole Ogden matter, and that the documentation that officially launched his research was submitted to the Ethics committee - is beyond our comprehension. How could Dr. Clayman, as Chair of the Ethics Committee, allow that to unfold? Being over-ruled by the other vice-presidents and the president is one thing, but not even addressing these matters is quite another. And why did the Ethics Committee never have an opportunity to comment on an issue so clearly in their domain?
In sum, it would appear that: (a) although Dr. Clayman indicates that safeguarding the research enterprise is a major role of his office, there were no conclusions made about how Russel Ogden's behaviour or different alternatives considered by the university would impact upon the research enterprise; and (b) although Mr. Ogden's research was launched by his proposal to the Ethics Committee, and his anticipated responses to various scenarios were dealt with in that proposal, the Ethics Committee was never asked to consider whether Mr. Ogden's behaviour at Coroner's Court was an ethical course of action. We have already seen that, in Dr. Stubbs's eyes, avoidance of controversy was a major factor to consider. Dr. Clayman had a slightly different view. Mr. Ogden, upon realizing that what to him were tortuous decisions were, to the university's administrata, irrelevancies, posed the following:
OGDEN: So the university was concerned more with the issue of liability in providing assistance or was concerned with that as an issue and not concerned with interpreting whether my conduct in challenging the subpoena was a correct one?
CLAYMAN: I would say that's accurate, yes. (p.67)
These seem somewhat startling revelations to us, given our perception of the centrality of research and the integrity of that research to the very definition of what makes a university a "university," and we wondered where exactly Dr. Clayman, as VP-Research and Chair of the Ethics Committee, stood on the issue. Was he merely reporting what he saw and interpreted as a member of the vice-presidents group? Or was he party to the view that considerations of liability and controversy should outweigh considerations regarding the integrity of the research enterprise? The question was answered on 28 October 1997, when, in his letter to Dr. Lowman, Dr. Clayman asserted his agreement with Dr. Stubbs's original decision.
In our opinion, the fatal flaw in the current arrangement is the inherent conflict of interest that exists in Dr. Clayman's dual roles of Vice-President of Research and Chair of the Ethics Committee. It is apparent from his testimony that although Dr. Clayman believes the first priorities of his office should be "Protection of the subject and protection of the research enterprise," the pre-eminent concerns of the university were with liability and the avoidance of prospective controversy. A gracious interpretation of these events is that they occurred not because of Dr. Clayman, but in spite of him. However, when we see Dr. Clayman's letter of 28 October to Dr. Lowman, in which he reaffirms the decision of Dr. Stubbs, and continues to give higher priority to liability considerations and image management than to the integrity of the research enterprise, and considerations of ethics, we realized that Dr. Clayman was doing nothing more than giving the stamp of approval to his own decision.
The President will know that the three major Canadian granting councils have struck a Tri-Council Working Group (TCWG) on Ethics, who have created two drafts of a Code of Ethics for Research Involving Humans, which may well be imposed on the universities within the next year. Dr. Palys has been highly critical in his writings of the unilateral nature of this imposition, as well as many specifics of the Code they have generated.
His commentary on the TCWG's first (1996) draft Code included an account of the Ogden case, which was contrasted with the way the university addressed a case several years previous when Dr. Palys happened to have been a member of the Ethics Committee. That case involved a participant who was injured when an experimenter deviated from an approved protocol, and Dr. Palys's submission to the TCWG mentioned how impressed he was at the time that the unanimous concern among members of the Ethics Committee was for the welfare of the injured research participant. That behaviour is consistent with the spirit of every Code of Ethics we have read. Dr. Palys's submission to the TCWG continued:
My university's more recent handling of the Russel Ogden affair gives me concern that fair and ethical treatment have now taken a back seat to concerns about liability, and it is easy to imagine situations where liability concerns and ethical treatment might be in conflict. In the physiological experiment described above, for example, Canada's system of medical care ensures that the injured research participant would have had access to appropriate treatment whether the ethics review committee intervened or not. Could an ethics committee more concerned with liability issues have convinced itself that the more prudent course would be to deny liability and wait for the research participant to take the legal initiative? Before Russel Ogden, I thought not. Now I am less sure.
Just as worrisome is that an REB with liability concerns in the forefront may be more likely to engage in "safe" decisions when asked to examine proposals, in order to protect the university from possible financially untoward consequences. Though one should obviously err on the side of safety when it comes to protecting the rights and health of vulnerable research participants, there are other instances where significant advances require bravery and leaps of faith in order to gain the knowledge or to enable changes in a society that has an imperfect record in the area of social justice. It takes considerable sense of purpose and courage, for example, to stand in front of a judge and, for the sake of a perceived greater good, refuse to divulge sources to whom confidentiality has been guaranteed. It takes a similar sense of purpose and courage for a university administration or their designated REB to stand behind that researcher in court and affirm that it is important, for a perceived greater good, to defend participant rights in a situation that involves protection of a vulnerable and socially marginalized group.
Beyond Russel Ogden's case, I am particularly worried about the impact a liability-oriented decision-making bias would have for more critical social research in general, since the easiest way to manage liability is to engage in preventative decision-making that is obstructive of research that is "too controversial" or has the potential of "rocking the boat." At its most direct, this may involve saying "no" to a project, but may also involve more subtle control regimens as more forms that need to be filled out in greater detail, longer turnaround times, a more complex set of rules to abide by, greater scrutiny during the research process, and fewer rights for their often marginalized research participants, which makes it just that much more difficult for the latter's voice to be heard.
Relationships of REBs to Their Institutions
When viewed in this manner, it becomes an interesting question whether senior university administrators are appropriate heads of REBs, since, in my understanding of "conflict of interest," many of the constraints of their roles (such as risk management) may well conflict with the appropriate execution of their ethical responsibilities broadly defined. My own suggestion is that there be some separation of roles in which REBs and their members are separate and apart from the university administration, with the sort of independent decision-making status that is accorded offices such as Ombudsperson. (Palys, 1996)
The TCWG seems to have agreed. In their subsequent (1997) draft, in a section entitled "Institutional Conflicts of Interest," the TCWG asserts:
The REB must act independently from the parent organization. Therefore, institutions must respect the autonomy of the REB and ensure that the REB has the appropriate financial and administrative independence to fulfill its primary duties.
… As the body mandated to maintain high ethical standards, it is essential that the REB maintain an arms-length relationship with the parent organization to avoid a conflict of interest, real or apparent. (p.IV-2).
In a recent consultative meeting held by the TCWG at UBC to gauge reaction to its newest draft Code, members of the TCWG were asked directly whether SFU's ethics committee structure - where the VP-Research is also the Chair of the Ethics Committee - would still come under the purview of what they meant by "independence." Two members of the VP-R's staff were there to hear the response, which was an unequivocal "no;" i.e., SFU's current ethics structure will not exist if the TCWG Code is adopted. However much the two of us disagree with the unilateral process the TCWG has followed in generating its Code, there are points they make that warrant attention. Two of these are: (1) the need to have an Ethics Committee that makes ethics considerations its highest priority; and (2) the need for that Committee to be at arm's length from administrative forces. And if it is a good idea, then it should be done irrespective of whether the TCWG Code is formally introduced or not, and the sooner the better. In the words of the TCWG, apparent conflicts of interest should be dealt with immediately by "abandon[ing] one side of the interest in conflict." (TCWG, 1997, p.IV-1).
This whole affair is somewhat disconcerting in our desire to address the potential implications of the TCWG on the university, and science in general. Palys (1996) has criticized the TCWG for conducting itself in a manner that doesn't live up to its own Code, and both of us regret the external intervention and centralization of research control they represent. True academic freedom must have some place for the conscience of the researcher. The university is best served when we can deal with these issues ourselves.
There are important decisions to be made in the near future when and if the TCWG Code of Ethics is imposed on the universities. For example, the TCWG acknowledges the existence of different traditions regarding the appropriate timing of peer review - some (e.g., medical science) see it as an inherent part of the ethics review process, while others (e.g., the social sciences) believe it is more appropriate at other stages of the research and publication process. The TCWG note universities can decide for themselves how many Ethics Committees they will have, and what the mandates of separate committees will be, i.e., whether to follow a one-step (ethics only) or two-step (ethics and scholarly evaluation) review process.
Which one will be adopted at SFU? The one-step process is more in keeping with social science traditions, is less invasive, and yet continues research traditions of concern regarding ethics. The two-step process is more highly bureaucratized, more invasive, holds greater potential for epistemological conflict, and is less in keeping with social science traditions of independent scholarly review at other stages of the research and publication process. At the same time, the latter involves greater potential for centralized control of research, and affords greater opportunity for the imposition of criteria having nothing to do with ethics, and everything to do with liability management and controversy control. Which Dr. Clayman will show up when it comes time to decide among those alternatives - the one who prioritizes protection of research participants and the welfare of the research enterprise? Or the one who emphasizes the management of liability and controversy? Given his record in the Ogden case, we are concerned he may opt for the latter.
There are many other examples that can be cited. Will an emphasis on liability concerns be manifest in the presumption that informed consent should be written rather than verbal, even though the former (as is recognized by the TCWG) especially in the area of field research, may actually undermine researcher-participant rapport, is contrary to some cultural traditions, and is downright absurd in many situations? Notwithstanding these research considerations, written informed consent clearly holds greater appeal to those for whom liability considerations are at the forefront. Which Dr. Clayman will show up to make the decision? And will the Ethics Committee and the broader research community have an effective voice in that process? Or will they be considered "irrelevant" to the "real" issues of liability and controversy control, as was the case in the Ogden matter, and which Dr. Clayman seems to have supported in his letter of 28 October to Dr. Lowman?
The ambiguity we now feel about where our university stands places us in an awkward position when it comes to assessing something like the TCWG and its Code. In our ideal world, universities would understand and value the research process as much as they do ethics, and outside intervenors like the TCWG would not exist. And yet, there are times we find ourselves looking to the TCWG to protect us from the university's internal excesses, and to articulate standards of conduct that are more in keeping with and respectful of varying disciplinary norms and matters of personal conscience.
An example of such a position is evident in the Canadian Association of University Teacher's (CAUT's) response to the most recent draft of the TCWG Code. Regarding the discretionary choice the TCWG offers between a one-step (ethics only) or two-step (ethics and scholarly evaluation) review process, the CAUT asserts:
We agree that REBs should consider scholarly standards when the research poses risk of harm above the threshold of normally acceptable risk. We disagree with your solution for research that does not pose risk of harm above the threshold of normally acceptable risk, namely that REBs can decide for themselves whether or not they will consider scholarly quality as well as ethical probity and professionalism. This is an invitation to increased bureaucracy. In disciplinary areas where there is a tradition of examining scholarly quality through peer review outside of REBs, REBs should be forbidden to impose a second quality review. (CAUT, 1997: Comments on Part 1; my emphasis)
And yet if those of us in the universities are averse to the sort of external control that the TCWG is attempting to impose, why do we find ourselves asking the TCWG to reduce the number of discretionary choices that are offered, and to impose particular bureaucratic solutions on the universities? The answer is never more apparent than it has been in this university's treatment of Russell Ogden. Although Dr. Clayman heads a committee that calls itself the Ethics Committee, we find that, among the administrata, "ethics" is considered irrelevant at worst, a secondary consideration at best, and has been allowed to become the conduit through which liability and controversy filters are imposed upon research practices. And although people like Russell Ogden fill in their applications for ethics approval with the understanding that it is the ethics of their proposed research that is being considered, and that their affirmations of "taking full responsibility" are, of course, proclamations of ethical responsibility, we find that these become twisted into something else because of the other filters they are passed through.
We acknowledge that recreating the Ethics Committee so that it is an independent body is not necessarily a panacea. Although there are many issues on which all members of the research community might agree - the importance of academic freedom, for example, or that researchers should aspire to the highest ethical standards - it is also the case that differences of perspective exist among members of the research community regarding how those principles should be manifest in practice. It is also the case that academic imperialism exists among some groups of researchers as much as it exists among administrators. There will be much debate about these issues, to be sure. Nonetheless, if SFU were to alleviate the conflict of roles that currently exists in the office of VP-Research by creating an independent Ethics Committee, at least we can be assured that the turf on which these debates will proceed will focus on issues of ethics rather than liability management or controversy control, and that, when the rare cases like Russel Ogden's arise, there will be a voice representing the researcher, the research participant, and the integrity of the research enterprise, that will demand to be heard.
November 17, 1997