The following article was published 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. We thank Arlene McLaren and Richard Coe for their comments on an earlier version of the manuscript.
Researchers at SFU who engage in research with human participants are expected to adhere to "the highest ethical standards" (SFU Policy R60.01: Integrity in Research and Misconduct in Research). Some of these standards are codified in SFU's Research Ethics policy (R20.01), which outlines the rules for protecting research participants:
The purpose of ethics review of research is to consider the risks to the physical and psychological well-being … of persons who are asked to participate… A research proposal must demonstrate that appropriate methods will be used to protect the rights and interests of the subjects… In general, the primary concerns respecting research on subjects relate to: informed consent; deception; privacy; confidentiality; and, anonymity… In particular, informed consent is required where there is any possibility that research could result in bodily or physical harm… No information shall be withheld from subjects…
Ethical criteria alone are supposed to govern the administration of the Research Ethics policy, but there are times when other administrative criteria, such as liability, contaminate the ethical review process. This article recounts one such instance. It involves a situation where SFU's administration failed to defend the core mandate of the university: collecting and publicly disseminating information (for comparable cases in the US, see Leo, 1995; Scarce, 1994). It is a seminal case, because it puts Canadian researchers at the crest of a slippery slope, down which academic freedom, a large chunk of the research enterprise, and a few research participants might slide.
The case involves Russel Ogden, a Criminology MA student who interviewed people who had assisted in the suicides and euthanasia of persons with AIDS. This ground-breaking research illuminated a highly controversial practice to which no one, other than the participants, would normally ever be exposed. Knowing something about this niche of life — the circumstances of its occurrence, and the perspectives of those who engage in it — provides important information that enriches the quality of public debate, and our understanding of law in context. Such research is impossible without the assurances of confidentiality, privacy and anonymity provided for by the Research Ethics Policy, and the trust that participants have in researchers' and the university's adherence to those principles. Because the very freedom of research participants is at stake, the ethical burden on researchers who undertake such research is high.
All research undertaken at SFU involving human participants requires ethics review, and Russel Ogden's was no exception. Regarding informed consent, Ogden proposed to tell participants there was no obligation for them to disclose identifying information, that there was a chance he might be subpoenaed, and that he would protect anonymity in any event. Because this research could not be done without a meaningful assurance of confidentiality, Ogden made it clear to the Ethics Committee that he would offer "absolute confidentiality" to his research participants.
But could Ogden be trusted to maintain confidentiality in the event that a court applied pressure for him to reveal it? How might the University be affected if Ogden failed to live up to his promise? A Committee member communicated these concerns to Ogden. In response, Ogden submitted a letter to the Committee stating he would accept "full responsibility for any decision I make with respect to the sharing of information." If he failed to maintain confidentiality, he alone would take the blame. His research proposal was clear that he did not intend to violate the trust of his research participants even if a court ordered him to do so. The Committee approved Ogden’s proposal.
After a newspaper article appeared describing his research, Ogden received a subpoena to give evidence at a Coroner’s inquest. So far, we have yet to find any other case in which a researcher has been asked by a Canadian court to divulge confidential information. [If any reader knows of one, we would appreciate hearing of it.] Faithful to his undertaking of absolute confidentiality, Ogden declined to identify his sources. He was promptly charged with contempt of court.
Ogden asked the University for help in protecting his research participants, and the integrity of the ethics policy, but, instead, was abandoned. The University refused to provide a lawyer, refused to reimburse Ogden's legal fees (the University gave him $2,000 on compassionate grounds), and no one from the Ethics Committee or the administration showed up in court. Nonetheless, Ogden resolved to keep his promise to maintain absolute confidentiality. To betray his research participants would be contrary to his discipline's code of ethics, and a betrayal of all researchers who collect sensitive information in confidence (e.g., see Leo, 1995; Scarce, 1994).
Researcher-participant privilege is not explicitly recognized in Canadian law. Any claim of privileged communication is considered on a case-by-case basis using the Wigmore criteria, which require that:
Ogden argued his research met these criteria, and the Coroner agreed: research of this sort is valuable, and cannot be done without guarantees of confidentiality. Ogden was given a privilege to protect the confidentiality of his research participants, and the Court "release[d] him from any stain or suggestion of contempt." (Inquest of Unknown Female, 20 October 1994; Oral reasons for judgement of the Honourable L. W. Campbell, 91-240-0838, Burnaby, B.C., p.10).
Ogden then sued the University. His suit hinges on the narrower issue of whether the university had a contractual obligation to support his ethical stand. What concerns us is not the contractual issue per se, but the ethics of the university's actions. University administrators who testified at the trial did not defend academic freedom or the Ethics Committee’s decisions. Instead, they revealed that a primary consideration in dealing with Ogden’s subpoena involved limiting the University’s liability (Testimony of Vice-President Bruce Clayman in Russel Ogden v. SFU; 21 June 1996, pp.66-67).
The final decision whether to support Ogden’s research participants rested with then-President John Stubbs, who testified that his primary concern was to avoid the controversy he felt might arise if the university was portrayed in the media as challenging legal authorities, and/or if its support for Ogden and his research participants was interpreted as somehow supporting a contentious and currently illegal practice (Testimony of John Stubbs in Russell Ogden v SFU; 27 June 1996, p.11). His justification for doing so was accomplished, in part, by appropriating Ogden's ethical undertaking to "take full responsibility for any decision I make with respect to the sharing of information," seizing upon the words "full responsibility," and interpreting it as a "waiver" of liability. But in terms of the criteria laid out in SFU's Research Ethics policy, is this interpretation "ethical?"
SFU's Research Ethics Policy affirms the importance the university allegedly attaches to protecting research participants from harm. To facilitate informed consent, the policy requires that all relevant information be supplied to potential research participants about what harms they might suffer. As one member of the Committee put it:
If the participant can ever say that "but for the piece of information you withheld from me, I would not have agreed to participate," we have done the person a disservice… (Ogloff, December 18, 1997)
Ogden’s research involved persons disclosing information that could potentially lead to criminal charges of homicide. We wonder how the university can reconcile its obligation according to policies R20.01 and R60.01 to protect research participants, with its decision to abandon them in court. Displacing the entire responsibility for protecting research participants onto a graduate student via the alleged "waiver" neglected the university’s own obligation to do so.
It is noteworthy that the University administrators who asserted Ogden’s undertaking represented a "waiver" were not members of the Committee that approved Ogden’s research. Indeed, two members of that Committee — the only two to speak out on this subject to date — both deny that financial liability figured in the Committee's approval of Ogden’s research proposal (Harmon, 28 May 1996; Horvath, no date). It is unfortunate Harmon's assertions — in a witnessed affidavit — were not allowed in court because of a procedural objection by the university's lawyers. In it, Harmon observed that obtaining such a "waiver" would have been an abuse of power by the university: because it is bound by its own policy, the university cannot trade away protection of research participants in return for freedom from financial liability. The Ethics Policy requires that the rights and interests of research participants to confidentiality be protected. The Policy on Integrity and Misconduct in Research (R60.01) obliges the University to support researchers in this endeavour. The University did not.
When Ogden informed potential research participants that the Ethics Committee had approved his guarantee of absolute confidentiality even though he might be subpoenaed, surely it would be reasonable for participants to expect the University to stand behind that undertaking. Did the University inform Ogden and his prospective research participants that it was interpreting a statement solicited by the Ethics Committee as part of an ethics review as a waiver of financial and legal liability? It did not. Should the University have declared its intentions to Ogden and his research participants if that's what was intended? We think so. By withholding this information, the University violated its own policy, which says that, "no information shall be withheld from subjects…" The SFU research community should be eternally grateful that Ogden could be trusted when the administration could not.
Even though Coroner’s Court is unlikely to set precedents for higher courts, its decision represented external confirmation of the importance of confidentiality to the research enterprise. But for SFU, the incident represented something else: it made the threat of being subpoenaed concrete. Instead of trying to consolidate the protection of research participants, the Ethics Committee added a new "screening" question to the ethics review application form, asking: "Does information to be obtained from subjects include information on activities that are or may be in violation of criminal or civil law?" Anyone who answers in the affirmative must make the following verbal or written statement to prospective participants:
Any information that is obtained during this study will be kept confidential to the full extent permitted by law... It is possible 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. (Ethics Form 1)
Instead of reaffirming the importance of confidentiality and engaging in a vigorous defence of research participants, the Ethics Committee has required that researchers keep information confidential only until a court or "other legal body" (what exactly is that?) asks for it. This choice of wording troubles us for its apparently eager acceptance of a doctrine that subjugates ethics to law. 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. At times they gamble their liberty on no more than the integrity of our word. Our ethical obligation is to safeguard that trust, and ensure no harm comes to them for their participation.
There is a supreme irony in the Ethics Committee's decision: although couched in the language of "informed consent," and ostensibly designed to avoid litigation and protect the rights of participants, it does exactly the opposite. We base this assertion on R. v. Gruenke (67 C.C.C. (3d) 1991), a case where the Crown sought to introduce as evidence incriminating statements an accused murderer had made to a counsellor and her pastor. The Supreme Court concluded the statements were not privileged because they did not satisfy the first criterion of the Wigmore test, i.e., the communications did not originate in a confidence they would not be disclosed: "The pastor and the counsellor were unclear as to any expectation of confidentiality," and "there was no evidence that the accused made her admissions to them in the confident belief that they would be disclosed to no one else." (Gruenke, p.307) The implication of this ruling is, by telling research participants, "the researcher may be required to divulge information obtained in the course of this research to a court or other legal body," a researcher would have to do exactly that (see also Marshall, 1992). Without the expectation of confidentiality, the raison d’être of the Wigmore privilege is missing.
The Ethics Committee's actions may also undermine the second Wigmore criterion, i.e., that confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. If a university will so easily give away participants' rights to confidentiality, how important can confidentiality be to the research enterprise? And notwithstanding that the limitation of confidentiality is apparently unique to SFU, could Crown counsel in other jurisdictions point to SFU as an example of the limited importance that confidentiality holds to the research process?
Of course, the supporters of limited confidentiality do not see themselves as "unethical." They explain that researchers are not "above the law" (e.g., Clayman, 1997; Horvath, no date), and assert that informing research participants of the possibility their information could be "required" by the court merely informs participants about the risks entailed in their consenting to provide information (see also Ogloff, 18 December 1997).
We agree that researchers are not above the law — submitting to court procedures and risking potential imprisonment shows respect for law, but a greater respect for ethics. We also agree that researchers who believe ethics are subservient to law, and would accede to any form of legal challenge, should warn potential research participants their assertions of confidentiality are good only as long as no legal body asks for the information. But to us the ethical allegiance of researchers is clear. If "the highest ethical standards" oblige us to protect the rights and interests of our research participants, how could we surrender their right to confidentiality merely to save our own skins? Maintaining "the highest ethical standards" requires confidentiality without adjectives — not "limited" confidentiality, not "partial" confidentiality, nor any other kind of "confidential-until-someone-asks" confidentiality, but "confidentiality," period.
The only qualification we would make to this position is that, when there is a specific reporting requirement, as there may be in the case of child or elder abuse, the researcher should attempt to obtain a waiver from the requirement before commencing the research. Nevertheless, we would make no a priori limitation of confidentiality: a researcher’s primary ethical obligation is to protect the welfare of vulnerable research participants.
SFU Policy R60.01 supports and encourages researchers to adhere to the "highest ethical standards." "Limited confidentiality" does not meet that expectation. It allows researchers to justify ethical standards lower than traditional academic conventions warrant. It absolves researchers of the responsibility to protect research participants from harm. And it sets a lower standard than journalism, where limited confidentiality would be an affront to the reporter’s ethical code. In these various ways, "limited confidentiality" is unethical.
"Limited confidentiality" promises to have considerable impact on certain types of research. Many ethnographic and related types of criminology would no longer be possible, and it would be anathema to most critical and most feminist research. Many criminological and sociological classics — e.g., Howard Becker's Outsiders, Richard Ericson's Reproducing Order, William Foote Whyte's Street Corner Society — could not have been written under a regime of limited confidentiality.
Limited confidentiality is a doctrine that subordinates ethics to law. The losses to be incurred by regimes of limited confidentiality represent an abdication of our academic mission to collect and publicly disseminate information about all aspects of society. To accept limited confidentiality is to allow only some persons to tell their stories while others are silenced, lest their revelations later become evidence to be used against them in court. This spells the end of confidentiality for many marginalized populations and for many state employees, seriously compromises the university's traditional role as social critic, and abandons those research participants whose trust we have carried. In doing so, the imposition of limited confidentiality violates academic freedom, and undermines the independence of the university from the state. We continue to resist that imposition.
Clayman, B., 1997. The law of the land. Simon Fraser News, 10(5), pp.5-6.
Harmon, T.P., 28 May 1996. Affidavit prepared for the Court in the case of Russel Ogden v. SFU.
Horvath, A., no date. Responses to [Lowman and Palys]. Memorandum to members of the SFU Ethics Committee and observers.
Leo, Richard A., 1995 "Trial and Tribulations: Courts, Ethnography, and the Need for an Evidentiary Privilege for Academic Researchers." American Sociologist 26(1), pp. 113-134.
Marshall, M., 1992. "When is a secret not a secret?"
http://www.arcacia.com/newsletters/issue6-1992/secret.htmOgloff, J., 18 December 1997. Response to ethical concerns. Memorandum to members of the SFU Ethics Committee and observers.
Scarce, R. 1994. "(No) Trial (But) Tribulations: When Courts and Ethnography Conflict." Journal of Contemporary Ethnography, 23(2), pp. 123-149.