Rejoinder to Bruce Clayman
Ted Palys and John Lowman
In the July 16, 1998 Simon Fraser News (Volume 12, No. 6) we published an opinion article entitled "The Liability of Ethics" which reported Judge Steinbergs criticisms of the SFU administration, and alerted researchers to the way that liability considerations are still contaminating the research ethics approval process. In the same volume, Bruce Clayman responded to our article. The text of his response is reproduced below in italics, with our rejoinder in regular font interspersed throughout.
by Bruce Clayman
Some points in the opinion piece by Drs. Lowman and Palys require clarification and comment:
The dismissal by small-claims court Judge Steinberg of the claim by Russel Ogden occurred after his detailed consideration of the substance of the specific case -- as described in the first 21 pages of his text -- not on 'technical grounds,' as they assert.
We say the case was dismissed on technical grounds for two reasons: a) Because the case was fought out in small claims court, it was conceptualized solely in terms of the law of contract. In large part, Judge Steinberg based his judgement on the Universitys argument that Russel Ogden issued a "liability waiver" prior to commencing his research. Consequently, from a technical legal point of view, Judge Steinberg felt "bound" to dismiss the claim (p.22). b) An affidavit from Dr Peter Harmon, an Ethics Committee member of fourteen years standing, was ruled inadmissible when the University lawyer objected that Ogden submitted it too late. This affidavit refuted the argument that Ogden issued a "liability waiver:"
in late May of 1994, Dr. Clayman advised me that Mr. Ogden freed the University from all responsibility with a waiver. This was news to me and I was not aware that the Ethics Review Committee ever granted ethics approval on the basis that researchers accept sole responsibility for legal complications arising from research. To me, a waiver indicated that perhaps the committee should not have permitted the research project to be undertaken If the University granted Mr. Ogdens ethical approval on this basis, it was not approved by any committee of which I had membership I believe that as a result of this waiver the University has changed its ethical approval process.
We agree with Dr. Harmon that the University did indeed change the ethics policy, and without going through the appropriate channels.
We ask members of the University community to reflect on what happened here. The University was not involved in a search for the "truth" in the name of doing "justice." Rather, it was involved in a legal game aimed at winning, and if that meant disqualifying evidence on purely technical grounds, it was happy to do so. From a technical point of view, the Universitys tactic may have been "legal," but in our view, it was not ethical. And given the Judge's caustic comments about the SFU administration in the final six pages of his judgement, he also believed that the legal finding he was "bound" to make was not just. Law does not inevitably produce justice.
The judge's comments, presented in the final six pages of his text, are indeed critical of the university's prior actions in the Ogden case. They will no doubt be of interest to the persons currently reviewing those actions. It is important to note that the judge's comments are his own personal views and have no legal status whatsoever.
While the characterization of Dr. Claymans approach as "hollow and timid" most certainly is the Judges personal opinion, we are very concerned that Dr. Clayman has discounted the legal opinion contained in the concluding six pages of the decision.
Judge Steinbergs reminder to the University that it has a duty to facilitate and promote original research under section 46(c) of the University Act, and that it failed to live up to that responsibility in Ogdens case, is a legal opinion (p.25). It suggests to us that the University could not have survived a judicial review of its decision not to support Ogden in Coroners court. In a judicial review, the courts deliberations would not have been restricted to the law of contract, but could have engaged in a broader examination of whether the University complied with the University Act and its own policies.
Then there is the matter of the University construing the law as extant code. This is the view espoused by Dr. Clayman, as well as by Dr. Adam Horvath, the current Chair of the Ethics Committee. According to this position, because researcher-participant communications are not protected by a class privilege encoded in a statute, a researcher should hand over information as soon as a court or other public body asks for it. Against this kind of view, Judge Steinberg explains that the law is dynamic:
It is self-evident that the rule of law includes the right to determine what the boundaries or the extent of academic privilege might be by way of a court challenge. This can only be determined by challenging in a particular matter a request to obtain what a researcher considers privileged information. Only if the challenge has been lost in the highest court in which the challenge is being made, would the rule of law say that the boundary of privilege in the particular case has been set (p.24).
What concerns us most about Dr. Claymans position is that he has rejected out of hand the potential for using the Wigmore criteria to maximize protection of research participants, and their rights and interests. In its 1991 ruling in R. v. Gruenke, the Supreme Court of Canada clarified that the Wigmore criteria provide the appropriate test for establishing privilege on a case-by-case basis. Writing for the Supreme Court, Justice Lamer noted:
This is not to say that the Wigmore criteria are now "carved in stone", but rather that these considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the Court. Nor does this preclude the identification of a new class on a principled basis (cited in Sopinka et al., The Law of Evidence in Canada, 1992, Toronto: Butterworths, p.635).
We would ask Dr. Clayman to pay particular attention to Justice Lamers final comment about the possibility of a new class of privilege being identified. How does Dr. Clayman think that lawyer-client privilege was won in common law other than by fighting for it? The whole point of vigorously defending research confidentiality in court is to try ultimately to establish a class privilege in common law.
These statements by the Supreme Court, in conjunction with Russel Ogdens success at invoking the Wigmore criteria in Coroners Court, lead us to suggest that Canadian Universities will be remiss if they do not design their research ethics policies with the Wigmore criteria in mind. This requires some courage on the part of universities and researchers, since researchers must make ethical decisions at the outset, whereas the law, if it becomes involved at all, is formulated after the fact. The most important point about using the Wigmore criteria to protect research participants, as was also established in the Gruenke case, is that there has to be an expectation of unlimited confidentiality for a communication to be privileged. This is why limitations of confidentiality, such as the ones imposed on researchers by the SFU Ethics Committee, are foolhardy at best: they expose research participants to serious harm, and give up, by default, the possibility of establishing a class privilege for researchers and their research participants through common law. We believe that such a privilege would be invaluable for protecting the rights and interests of research participants, and of maintaining the diversity and integrity of research. In short, it is worth asserting and fighting for in court.
The key message that I get from the opinion piece is that Drs. Lowman and Palys want to recruit participants (formerly called 'subjects') for their research by promising them absolute confidentiality; that is, without informing them of the possibility that the information that they provide to the researchers could be subject to court action that may lead to the requirement to disclose the information.
Dr. Clayman has misrepresented our position. The Ethics Committee will confirm that the consent statement we propose to use in our research most certainly does warn prospective participants that a court or other public body may order the disclosure of confidential information. Our problem with the consent form foisted on researchers by Dr. Clayman and his Ethics Committee is that it falls short of providing the information necessary for informed consent, in two respects.
First, we find it problematic that Dr. Clayman (and the Ethics Committee) would give away research participants' right to assert privilege without ever informing them of that fact. We note that, with lawyer-client privilege, the privilege lies not with the lawyer, but with the client, and hence can only be waived by the client. Similarly, we suggest that researcher-participant privilege resides with the participant, and can only be waived by the participant. Dr. Clayman and the Ethics Committee make the waiving of the research participants right to claim privilege a prerequisite for participation in research, but neglect to inform participants of that fact. This violates the ethical principle of informed consent.
Second, it is not enough to warn prospective research participants that a researcher might be ordered to disclose information. Researchers also need to inform participants what the researcher and the university will do in the event that an attempt is made by a court to acquire confidential information. In this regard, the University ought to heed Judge Steinbergs legal opinions about academic freedom and the right to challenge court-ordered disclosure of confidential research information. We suggest that because the Universitys policies oblige it to "support the highest ethical standards" (see e.g. R60.01) and because of its obligations under the University Act, it cannot displace this responsibility entirely onto researchers. We argue that the University has a legal, ethical and moral responsibility to help protect the rights and interests of research participants, and to defend academic freedom, by resisting court-ordered disclosure of confidential research information.
Despite their assertion that "...a researcher's right to make an undertaking of absolute confidentiality has been recognized in law," there is no 'privileged' communication under Canadian law, other than between lawyer and client.
Dr. Clayman is wrong. Under Canadian law, communications between husbands and wives are privileged, as are those between police and informers. Also, communications between employees of Statistics Canada and research participants are privileged.Section 17(b) of the Statistics Act, entitled, "Prohibition against divulging information," asserts that "no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization." Section 18 is even more assertive:
Information is privileged
18. (1) Except for the purposes of a prosecution under this Act, any return made to Statistics Canada pursuant to this Act and any copy of the return in the possession of the respondent is privileged and shall not be used as evidence in any proceedings whatever.
(2) No person sworn under section 6 shall by an order of any court, tribunal or other body be required in any proceedings whatever to give oral testimony or to produce any return, document or record with respect to any information obtained in the course of administering this Act.
Besides the categories of privilege we have mentioned above, there may be others. For example, one of the grounds of Gillian Guesss appeal of her conviction for attempting to obstruct justice is that juror privilege was violated in the course of her trial (Vancouver Sun, August 25, 1998, p.2).
Questions of whether to compel disclosure are decided on a case-by-case basis, as was Mr. Ogden's. It is therefore my view that assurances of absolute confidentiality cannot be made.
Dr. Claymans personal views are not relevant to how he and the Ethics Committee apply SFUs Ethics Policy. The SFU Ethics Policy does not limit confidentiality in any way, and it is the duty of the Ethics Committee to administer the approved policy, not change it according to the beliefs of its members, and/or the VP-Research, without proper approval. And even Senate and the Board of Governors cannot create policies that subvert academic freedom, as outlined in the SFU Framework Agreement and various university policies (e.g., A30.01, R60.01).
Furthermore, we believe that Dr. Claymans opinion about "absolute confidentiality" is based on a misunderstanding of the law. As we stated in our opinion piece in the Simon Fraser News, a researchers right to make an undertaking of absolute confidentiality has been recognized in law (i.e. in case law this is precisely what Russel Ogden achieved).
Also, as we have explained elsewhere (SFNews, November 27th, 1997; CAUT Bulletin, 6th June 1998), the actions of the Ethics Committee undermine the ability of researchers to use the Wigmore criteria to secure confidentiality on a case-by-case basis.
The ethics committee has the question of informed consent in such matters under active consideration. This will also be a component of the review of ethics policy now underway. I am sure that the review task force will give careful consideration to the views of Drs. Lowman and Palys, as did the ethics committee previously.
The answer to their question about legal representation is contained in article 17 of the framework agreement with the faculty association: the university will "...provide legal advice, representation and/or indemnification to members of the bargaining unit who encounter problems as a result of carrying out in good faith their responsibilities...." Therefore, as long as their research is carried out in conformity with all relevant SFU policies, the university will assist them in this way. I have previously assured Drs. Lowman and Palys of this.
Dr. Clayman never made any such assurance. Indeed, he has since acknowledged in an e-mail to us that the July 16th SFNews article is, in fact, the first time he has referred us to the legal representation clause in the Framework Agreement.
Now that Dr. Clayman has finally committed something to paper about legal representation, it is worth considering what kind of assurance this actually represents. The first thing to note is that article 17 of the SFU Framework Agreement does not apply to graduate students. The University still has not answered the question we have asked several times, beginning last October, about how the University will respond if a court or other public body tries to obtain confidential research information from a graduate student. How are we supposed to supervise graduate students, and guide them through the ethics application process, when we do not know how the University will act in the event that a court or other public body tries to obtain confidential research information? We need this information so that we can advise graduate students how to phrase a consent statement, and try to help them reconcile the conflicting requirements of the Ethics Committee and R20.01.
As to Dr. Claymans reference to article 17 of the Framework Agreement, note that he says, "as long as their research is carried out in conformity with all relevant SFU policies, the university will assist them in this way." The minutes of the September 9th 1994 Ethics Committee meeting show that the Committee has required certain researchers to limit confidentiality:
"It was agreed that in cases where it can be foreseen that researchers may not be in a position to ensure confidentiality to their subjects* these researchers must be required to provide only limited confidentiality in the wording of the consent form" (emphasis added).
(* i.e.. when they answer "yes" to question 9 on the ethics application checklist, which asks, "Does information to be obtained from subjects include information on activities that are or may be in violation of criminal or civil law?")
This imposition of limited confidentiality is not consistent with policy R20.01, approved in 1992, which does not limit confidentiality in any way. Furthermore, the policy requires that researchers adhere to their own disciplinary codes, some of which recognize that research ethics and law sometimes conflict, especially when it comes to confidentiality and anonymity. In our case, our disciplinary code requires us to maintain confidentiality, even when researcher-participant communications are not legally privileged, and legal force is applied. The Committees imposition of limited confidentiality forces some researchers to violate R20.01, in which case the University could argue that article 17 of the Framework Agreement does not apply.
Also, by its own admission, the Committees limitation of confidentiality was designed in part to "protect the university" (Committee Minutes, September 9, 1994). This is an abuse of the Committees power: its mandate is to protect research participants, not the University. The Committee is still trying to force us to use an informed consent statement that displaces onto us the entire responsibility for fighting court-ordered disclosure of confidential research information. Just as he did in Russel Ogdens case, Dr. Clayman could interpret this statement as a "waiver of liability," in which case article 17 of the Framework Agreement would not apply.
Alternatively, Dr. Clayman, who believes that R20.01 subordinates research ethics to law, could argue that a researcher who does not submit to court-ordered disclosure is not complying with R20.01, in which case, again article 17 of the Framework Agreement would not apply.
In sum, Dr. Claymans "assurance" is no assurance at all. It is thus always with some amusement that we read Dr. Claymans slogan, "SFU Research Matters," to characterize his office at SFU. We suggest that he change it to, "At SFU, Not All Research Matters," as it is clear that certain kinds of human research do not matter enough for the University to fight court-ordered disclosure of confidential research information.
Having said all this, we would note that the membership of the Ethics Committee has changed considerably since February, when Dr. Clayman resigned, and there are indications that it is taking many of our concerns seriously. For example, the minutes of the May 5th 1998 meeting show that, "The Chair will enquire of the Vice-President, Research, the Universitys legal position in defending a researcher whose project was given approval by the University Research Ethics Review Committee and whose data was compelled by the court or other legal body."
We request that the result of this inquiry be made known to all researchers at SFU.
SFU remains committed both to academic freedom and to the ethical conduct of research.
Dr. Clayman states that SFU is committed to the ethical conduct of research. But, as the former Chair of the Ethics Committee, and the person responsible for its appointment, he introduced and supports an interpretation of R20.01 that does not inform participants they are waiving all claims to privilege by their participation, and undermines their interests, thereby exposing them to harm.
We have yet to hear an unambiguous affirmation of Dr. Claymans willingness, as VP-Research, to come to a researchers defence when and if a court challenges their pledge of unlimited confidentiality.
Judge Steinberg's rebuke of Dr. Clayman and the university for their handling of the Russel Ogden case is an expression of disdain for the wide gap between Dr. Clayman's sloganeering support for "academic freedom," versus his and the university's "hollow and timid" defence of it when a golden opportunity arose. If SFU actually is committed to academic freedom and the ethical conduct of research, the university would live up to the slogan, "SFU Research Matters," and immediately announce that it will support graduate students and faculty alike should a court order them to disclose confidential material. We have been asking for that assurance for nearly a year. Again we ask for it now.