On October 2nd 1997, the Simon Fraser News published an open letter John Lowman wrote to President pro tem Jack Blaney asking him to reverse the University's decision not to reimburse legal fees sustained by former SFU graduate student Russel Ogden as a result of defending the integrity of SFU Ethics Policy in Coroner's Court. President Blaney asked Dr. Bruce Clayman, the VP Research and Chair of the SFU Ethics Review Committee to reconsider the University's decision. In a letter to Dr. Lowman dated October 28, 1997, Dr. Clayman upheld President Stubbs' decision not to reimburse Mr. Ogden's legal fees. On October 30, 1997, an exchange of opinion between Mr. Ogden and Dr. Clayman was published in the Simon Fraser News. We believe this exchange raises several issues that cut to the very heart of the human research enterprise, academic freedom, and the relationship between a research ethics policy and the "law of the land." Here are our thoughts on Dr. Clayman's account.
In his response to Russel Ogden's An Insult To Free Inquiry, Bruce Clayman's The Law Of The Land asserts unequivocally that, "No University can, or should, empower researchers to disobey the law." Dr. Clayman's opinion is no doubt held by most of us, including Mr. Ogden. Nonetheless, how is this a response to An Insult to Free Inquiry? Where did Mr. Ogden say that a university should empower researchers to disobey the law? It is apparent to us that Dr. Clayman has confused two very different issues: a) disobeying the law; and b) using legal means to assert researcher-participant privilege when fundamental issues involving academic freedom and protection of research participants are at stake. Although Dr. Clayman's casts it as the former, Mr. Ogden's article was about the latter.
Dr. Clayman has demonstrated a profound misunderstanding of the issues being raised. This misunderstanding pervades his claim that the SFU Research Ethics Review Committee, by redefining "confidentiality," has made only "procedural" changes to SFU Ethics Policy. And it pervades his response (Letter of 28 October 1997) to Dr. Lowman's request that the University reconsider President Stubbs' decision not to pay Mr. Ogden's legal fees. We will comment on the two issues in that order.
Strict "absolute, perfect or complete."
Confidential "entrusted with secrets" or "intended to be treated as private."
Dr. Clayman suggests that Mr. Ogden is wrong to interpret certain "additions" to the Ethics Policy as "changes" to the policy. The key "additions" are as follows:
a) Addition of a new item on a checklist asking: "Does information to be obtained from subjects include information on activities that are or may be in violation of the law?"
b) Addition of a sentence to the template for the subject consent form informing the researcher, if the above question is answered in the affirmative that subjects be informed, either verbally or in writing, that: "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."
In contrast to this wording, in 1993 when a researcher signed a Request for Ethical Approval of Research form, s/he undertook to "maintain in strict confidence the responses of individual subjects," (emphasis added). This interpretation is consistent with the text of R. 20.01, which does not limit confidentiality in any way. The concept of confidentiality now being employed confidentiality to the extent permitted by law, which Dr. Clayman interprets in its narrowest sense as when a researcher is challenged by a court is not the same. Dr. Clayman argues that the change is merely "procedural." How can this be? From our perspective as researchers, these procedural "additions" actually change the meaning of the Policy and the research we can do under it. In particular, we believe the changes profoundly affect:
a) the type of research that is viable;
b) our ability to comply with the Ethics Policy requirement (R 20.01 2) that researchers "adhere to the ethical norms and codes of conduct appropriate to their respective disciplines" (in our case, criminology and the sociology of deviance);
c) our ability to adhere to the Ethics Policy (R. 20.01 4) expectation that we all (the Ethics Review Committee included) respect "the cultural values and sense of propriety of the persons who are asked to participate in research;" and
d) the type of research we can get approved.
If these changes are only "procedural," why is it that their addition means we can no longer do some of the research we did before the additions were made? For example, one research project for which Dr. Lowman received Ethics approval in 1993 would not be viable under the doctored policy. The subject in that study agreed to participate because information he gave Dr. Lowman would be "strictly confidential." If Dr. Lowman had told the participant that confidentiality would be maintained only to the "extent permitted by law" or until a court challenged the researcher to reveal confidential information, the subject would not have agreed to participate. The example is not an isolated one, nor is it limited to "deviant" or "marginalized" populations. For example, some of our research involving police officers is no longer viable: what police officer would agree to participate in research if they thought the University would require a researcher to "squeal" on them the first time a court ordered them to do so? Worded the way it is, the informed consent form pretty much spells the death knell for key areas of research.
The SFU Ethics Policy (R. 20.01 2) states that:
There is a professional responsibility of researchers to adhere to the ethical norms and codes of conduct appropriate to their respective disciplines.
The disciplinary orientation of much criminological research is sociological. We put Mr. Ogden's work on assisted suicide in this disciplinary box. Here is the American Sociological Association's ethical norm and code of conduct (principle E5) pertaining to confidentiality at the time Mr. Ogden was doing his MA research:
Confidential information provided by research participants must be treated as such by sociologists, even when this information enjoys no legal protection or privilege and legal force is applied. (1990: Ethical Principles in the Conduct of Research with Human Participants)
Because of the code of strict confidence that was employed in the Research Ethics Review process, we believed that R.20.01 was consistent with the disciplinary code of conduct of the ASA, the code to which R.20.01 required Mr. Ogden to adhere. The same cannot be said for R.20.01 now that the Research Ethics Review Committee has changed it.
Under the 1993 policy, when SFU researchers signed an undertaking to maintain strict confidentiality, they resolved to keep the information in strict confidence. We understood this undertaking to be consistent with the ethical codes of conduct and norms of sociological criminology. Had a court intervened, we would have expected the University to fight to uphold researcher-participant privilege because it is vital to the protection of research participants, and the sort of academic freedom that Mr. Ogden described in An Insult to Free Inquiry. Thanks to Mr. Ogden's invocation of those criteria and their acceptance by the court, we now know that the Wigmore test can be applied for this purpose.
Also, the University has an ethical responsibility to stand behind its own Research Ethics Policy. Had a Court prevailed, and ordered us to divulge confidential information, we agree that the University could not compel a researcher to break the law. But as it is presently written, R20.01 does not preclude a researcher from choosing to do so or at least, not until the Research Ethics Review Committee made "additions" to R.20.01 in a way that implies researchers must adhere to any court request that they violate confidentiality. In the interest of academic freedom, that decision must be left to the conscience of the researcher. The university's responsibility is to protect the research participant, and the integrity of its policies, in this case by using legal means to assert researcher-participant privilege. By not showing up in Coroner's Court, the University abrogated its responsibility to protect Mr. Ogden's research participants, particularly his guarantee of strict confidentiality as approved by the Research Ethics Review Committee.
In his article on the The Law of the Land and elsewhere, why did Dr. Clayman neglect to mention that R.20.01 required Mr. Ogden to follow the ethical code of sociology?
The Ethics Policy states that:
The purpose of ethics review of research is to consider the risks to physical and psychological well-being, and the cultural values and sense of propriety of the persons who are asked to participate in and/or be the subjects of research (emphasis added).
When it took it upon itself to change the informed consent form, did the Research Ethics Review Committee consider the cultural values and sense of propriety of police officers and offender populations and how these might shape the research enterprise? In both cultures, "ratting" or "snitching" on a person with whom you are in a relationship of trust is a serious offence, the commission of which could have dire consequences for the health of the researcher, and for the integrity of researchers in general.
As a result of (b) and (c), in order to comply with R.20.01 surely we should refuse to use the informed consent form containing the "additions," in which case we would not get Ethics approval.
A conflict of interest occurs when a university administrator serves as head of the University Ethics Committee. Indeed, under the policy recommended by the Tri-Council Working Group (TCWG) on Ethics, the current arrangement at SFU, where the VP Research Chairs the Ethics Review Committee, would not be permitted. Under the proposed TCWG Code, a university Research Ethics Board (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.
We suggest that what has happened to the Ethics Review process at SFU over the past six years is a good example of why this role conflict should be avoided. It puts the VP Research in the very awkward position of keeping separate two different roles: i) Chair of the Committee that oversees implementation of the Ethics Policy; and ii) the administrative functions that go along with being VP Research. Our perception is that Dr. Clayman and several Research Ethics Review Committees have confused these two roles (for a more detailed discussion of this role conflict, see Palys and Lowman, When Roles Conflict: Research Ethics at SFU, which accompanies this brief). We believe this role conflict is responsible for the way concern about liability has contaminated the Research Ethics Review process.
Dr. Clayman portrays the decision to change the informed consent form as reflecting a concern that the research participant be fully apprised of all information necessary to facilitate informed consent. However, we believe that if Research Ethics Review Committee members were asked about the rationale they followed, it would look like this: one of the main reasons (the main reason?) for changing the informed consent form related to concerns about the liability of the university, as expressed to the Committee by University lawyers through the Chair of the Committee. Both in his testimony in Small Claims Court and in his article in Simon Fraser News, a concern about liability suffuses Dr. Clayman's response to Mr. Ogden's research.
By apparently prioritizing legal liability and things like insurance risk, the Ethics Review Committee seems to have forgotten that its primary function is to administer R.20.01, the Ethics Policy. Where does R.20.01 state that legal liability and insurance risks are criteria to be applied in the Ethics Review process? This is not to minimize their relevance to University administrators (nor to overstate them, either). Rather, it is to suggest that if the administration is worried about liability, the Ethics Review Committee is not the place to deal with it. It is vital that the Ethics Review Committee be seen to be making judgments about research ethics according to the Ethics Policy, not what is convenient to administrators who have to worry about liability and insurance issues, or worse, might bring political pressure to bear on the Ethics approval process. Indeed, President Stubbs' testimony in Small Claims Court gave us the impression that political pressure from the University administration was brought to bear on the Ethics Review process in Mr. Ogden's case. These same considerations came to the fore in the reaction of the Stubbs-Clayman regime to Mr. Ogden when he was required to appear in Coroner's Court. From his testimony, it is evident that President Stubbs wanted to distance the University from Mr. Ogden's research, which he viewed as a public-relations hot potato.
In the interest of open governance, the University community now ought to be informed how and under what circumstances liability became a factor for the Research Ethics Review Committee.
R. v. Gruenke (67 C.C.C. (3d) 1991) involves a case where the Crown sought to introduce as evidence incriminating statements an accused murderer had made to a counselor and the pastor of her church. At issue was whether the Wigmore criteria protected this communication. In this case it was concluded that the communications did not satisfy the first criterion of the Wigmore test - that the communications must originate in a confidence that they will not be disclosed - because "the pastor and the counselor were unclear as to whether they were expected to keep confidential what the accused had told them about her involvement in the murder 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."
In light of the decision in Gruenke, we have realized that, ironically, by telling research participants that, "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," the Ethics Committee has ensured that researcher-participant privilege will not pass the first Wigmore criterion because,
.... it is absolutely crucial that the communications originate with an expectation of confidentiality (in order for those communications to qualify as "privileged" and to thereby be excluded from evidence). Without the expectation of confidentiality, the raison d'être of the privilege is missing. (Gruenke, p. 307)
Only by guaranteeing absolute confidentiality was Russel Ogden's research able to pass the first Wigmore criterion.
Substantive changes to SFU policies have to be approved by Senate. To the extent that "additions" to the checklist and informed consent form redefine confidentiality and apparently undermine the protection afforded by the Wigmore test, they alter the meaning of, and protections offered by the SFU Research Ethics Policy. We question the authority of the VP-Research and the Research Ethics Review Committee to redefine "confidentiality" in a manner that is not guided by "ethics," and which requires researchers to violate their own disciplinary codes of conduct. The Committee's action amounts to policy change by administrative fiat. Consequently, we question the authority of that Committee to enforce its definition of confidentiality as described on the informed consent form now in use.
Because the "additions" are procedurally invalid, we believe that the SFU Ethics Policy still requires that researchers maintain "strict confidentiality," not "confidentiality to the extent permitted by law," or confidentiality up to the point it is challenged by a court.
Because the new version of R.20.01 requires us to conform to the code of conduct of our discipline, we believe we have no choice but to refuse to submit to the Ethics Review process now in place. As to the issue of liability, if the SFU administration wishes to discourage researchers from undertaking otherwise important research because it entails insurance or liability problems, or because it might bring bad press to the University, it should find some mechanism other than the Research Ethics Review process to achieve these ends. In order to avoid the possibility that the Ethics Review process can become polluted by administrative needs and/or political agendas, we believe that, in future, the Research Ethics Review Committee or its equivalent should be Chaired by a person who does not hold an administrative position (R.20.01, Section 5, allows the VP Research to appoint another person as Chair).
Two of the main reasons why Dr. Clayman has upheld the Stubbs-Clayman decision not to reimburse Mr. Ogden's legal fees are: a) his continuing belief that when Mr. Ogden stated he took "full responsibility for any decision I make with the respect to the sharing of information," he thereby absolved the University of its responsibility to defend in court the integrity of its Research Ethics Policy; and 2) law does not recognize researcher-participant privilege. Neither argument makes sense.
The 1992 Research Ethics Review Committee, Dr. Stubbs and Dr. Clayman are all aware that in his research proposal, Mr. Ogden undertook to guarantee his research subjects absolute confidentiality. By making this undertaking, Mr. Ogden was following R.20.01 which required him adhere to the ethical norms and codes of conduct appropriate at that time to his discipline, sociology. According to the American Sociological Association ethical code of 1990, confidential information provided by research participants has to be treated as such by sociologists, "even when [that] information enjoys no legal protection or privilege and legal force is applied."
In his letter of 14 September 1992 addressed "to whom it may concern" and submitted with his Ethics Review application (the Committee was Chaired at that time by Dr. Bill Leiss), Mr. Ogden said that he would, "accept full responsibility for any decision I make with respect to the sharing of information," (emphasis added, because Dr. Clayman seems to be blind to these words). When we met on October 10, 1997 with Dr. Clayman, he acknowledged that the meaning of this phrase is "ambiguous." However, the ambiguity had entirely disappeared by the time Dr. Clayman penned the opinion editorial that appeared in the Simon Fraser News on October 30. After reflecting on this phrasing, we too have concluded that it is not ambiguous, but that it is Dr. Clayman who has it wrong. Only by taking the phrase "fully responsible" entirely out of context of the rest of the sentence can Dr. Clayman stretch it to include relieving the University of liability should SFU's Ethics Policy be challenged in court. If the University requires researchers to submit to the policy, it has an obligation to defend the integrity of the policy, especially when academic freedom and the protection of research participants are at stake.
It should be remembered that Mr. Ogden submitted this letter as part of a research ethics review. He believed he was talking to the Ethics Review Committee, not the University's lawyers and accountants. Hence, the more obvious interpretation is, Mr. Ogden was not talking about liability which is not mentioned in the SFU Research Ethics Policy but was making an undertaking in the context of R.20.01 to be fully ethically responsible for any decision he might make with respect to sharing information. Just like Mr. Ogden, the University was well aware that this research might be exposed to court scrutiny. Did the University clearly explain in writing to Mr. Ogden that if it came to a court challenge, it would not defend R.20.01, and that it would be left to Mr. Ogden to finance the defense of both the policy and researcher-participant privilege?
No, the University did not do this. Which leaves us with the undertaking that Mr. Ogden actually made. Our understanding is this: If the court had ordered Mr. Ogden to divulge confidential information, then and only then would his undertaking to take "full responsibility for any decision he made with respect to the sharing of information," have any relevance. In Mr. Ogden's reading of the Ethics Policy (the correct reading, in our opinion), one had an obligation to maintain strict confidentiality. However, Mr. Ogden was well aware that no University has the right to require researchers to violate court orders and go to prison. So he made the undertaking that, should push come to shove, and the Coroner's Court require that he divulge confidential information, Mr. Ogden would take "full responsibility for any decision he made with respect to the sharing of information." In other words, if under duress he broke his undertaking to maintain strict confidentiality, he would take full responsibility for his action, and not besmirch the reputation of Simon Fraser University, or the research community more generally. It is shameful that such an honourable undertaking should have been twisted by Dr. Clayman and the university's lawyers to mean something entirely different.
As things turned out, Mr. Ogden was not ordered to divulge any information, in which case the idea that he would take "full responsibility" for his "decision" not to share information was not an issue.
In evaluating Dr. Clayman's interpretation of the "full responsibility" clause in Russel Ogden's letter of September 14, 1992, it should be remembered that Dr. Clayman was not a member of the Ethics Review Committee at the time the undertaking was made. So the question remains, how did members of the 1992 Committee interpret Mr. Ogden's undertaking? Dr. Thomas Peter Harmon was a member of the Ethics Review Committee for fourteen years, and has prepared an affidavit describing his interpretation of the 1992 Committee's review of Russel Ogden's research proposal (Dr. Harmon sat on that Committee). In response to Dr. Clayman's assertion that Mr. Ogden had signed a "waiver," here are some key excerpts from Dr. Harmon's affidavit:
The committee's decision-making process is not adversarial and the Committee does not, in my experience, grant approval to projects that are ethically sensitive with the caveat that a researcher assumes sole responsibility for conduct outlined in an approved research proposal...
Mr. Ogden asked me to read a draft copy of his proposal, which I did. The proposal appeared to meet the University's requirements and on a personal level, I considered it to be a subject area of immense social importance. Of particular concern was the issue of confidentiality but knowing Mr. Ogden I was confident that he had the integrity to uphold the University protocol which required that confidential information be protected. I advised Mr. Ogden that the Ethics Committee would need clear assurance that the confidentiality, which was the most sensitive ethical issue of his proposal, would be protected.
In September of 1992 Mr. Ogden notified me that this application had been formally approved by the Ethics Committee. I played no role in that approval because the application did not come to the attention of the full Ethics Review Committee nor myself. In my opinion, Mr. Ogden's application was seen to adequately address the necessary ethical issues and, therefore, did not merit more detailed attention by the University...
... in late May of 1994, Dr. Clayman advised me that Mr. Ogden freed the University from all responsibility with a "waiver". This was new information 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. ... If the University granted Mr. Ogden's ethical approval on this basis, it was not a decision approved by any committee of which I had membership. (emphasis added)
We asserted above that, because it has changed the definition of confidentiality, fundamental changes were made to SFU's Ethics Policy by administrative fiat. Dr. Harmon's affidavit raises questions about whether this change was made by the Ethics Review Committee as a whole, or by its Chair, the VP-Research.
Dr. Harmon's affidavit raises an altogether different issue about changes to the Research Ethics Policy in addition to the change in the definition of confidentiality. One of the main functions of the Ethics Review process is to protect the research participant. In the case of Mr. Ogden's research, if it really did allow a "waiver," can the Committee be said to have properly fulfilled its duty to protect participants? In this regard, Dr. Harmon offered the following opinion:
To me, a waiver indicated that perhaps the committee should not have permitted the research project to be undertaken... It would be inappropriate and unethical to grant approval to a project where there was any potential of serious harm for participants, regardless of a researcher's waiver of liability.... Also, I stated at the time that I felt that student researchers when they have an idea on the research they wish to pursue, will do anything in their power to achieve this end even if it meant signing such a waiver. I believe that as a result of this waiver the University has changed its ethics approval process.
According to this reading, if we are to interpret Mr. Ogden's undertaking as a "waiver," the Research Ethics Committee did not discharge its duty to Mr. Ogden's research participants. And if it did indeed read the "full responsibility" undertaking as a waiver of legal liability, then according to Dr. Harmon's interpretation, the Ethics Committee (or was it just the Chair of a subsequent Committee?) abused its power over Mr. Ogden.
Dr. Clayman seems to regard the law as a monolith, an inactive mass against which one must unquestioningly bow. Agreed, there is no statute in Canada recognizing researcher-participant privilege (i.e. there is no absolute protection), but there is more to law than statutes. And that is why the outcome of Mr. Ogden's case in Coroner's Court is so important to the defense of researcher-participant privilege and academic freedom. Why does Dr. Clayman persist in taking the position that law does not recognize researcher-participant privilege? Thanks to Mr. Ogden and no thanks to Drs. Clayman and Stubbs the "law of the land" is that the Wigmore test does apply to social science research, as will be determined on a case by case basis. Is it not in the interests of SFU to ensure that the test is applied vigorously when the research enterprise and the rights of participants (which according to Dr. Clayman's testimony in Small Claims Court, are the two main responsibilities of the Ethics Committee) are at stake?
So the issue is not whether the university empowers researchers to disobey the law but whether it stands firmly behind any researcher who has successfully passed through the Ethics Review process. Does the University stand behind its Research Ethics Policy? This is a pressing question for anyone at SFU engaged in research involving human subjects. The only reason that Dr. Clayman can now argue that, "the legal expenses that Mr. Ogden incurred without any authorization from the University remain his responsibility," is because the university woefully neglected its duty to uphold its policy and seek to defend researcher-participant privilege in court. What will happen the next time a researcher is ordered before a court?
What was being scrutinized in Coroner's Court was the researcher's promise of strict confidentiality to a research participant. One of the corner stones of the SFU Ethics Policy was being put to the test. And yet, as far as we know, no one from the SFU Ethics Committee showed up to explain the SFU Ethics Policy, to defend researcher-participant privilege, or to testify on Mr. Ogden's behalf in his attempt to achieve the same end and this despite that fact that the Ethics Committee had approved a guarantee of absolute confidentiality to Mr. Ogden's research participants. Yes, there was a $2000 donation from the University to Mr. Ogden on "compassionate grounds" (against more than $11,000 Mr. Ogden paid in legal fees), but the Ethics Committee, and ultimately the University, abandoned him. It is disgraceful that the University should have displaced on to Mr. Ogden, a graduate student struggling to keep a roof over his head, the financial and emotional responsibility for defending the integrity of one of its own policies when the policy required him to take the position that he did.
Dr. Clayman believes that researchers should obey the law. He seems to have lost sight of the fact that Mr. Ogden maintained the confidentiality of his research participants and he obeyed the law, an achievement for which the university cannot take as much as a single crumb of credit. The University should have patted Mr. Ogden on the back, paid his lawyers fees, apologized for not having made the case for him in Coroner's Court, and then should have got on with the task of figuring out how the Wigmore test might apply in future cases, and whether there is any other common law that might be applicable in defending researcher-participant privilege.
Instead of doing this, President Stubbs and Vice President Research Clayman have pursued a course designed to displace all legal liability and responsibility for fighting for the integrity of the SFU Ethics Policy on to Mr. Ogden. This is another black eye for Simon Fraser University.
How should we look at the Stubbs/Clayman response to Russel Ogden in light of R.20.01 which can be interpreted as requiring that both the President and Vice President respect the ethical codes that researchers are required to respect, i.e. "the ethical codes and norms of conduct appropriate to their respective disciplines?" One could argue that this requirement applies only to "researchers," but that would leave the University having to support a blatant double standard. Given that the SFU Research Ethics Committee approved Mr. Ogden making a guarantee of absolute confidentiality to his research participants, one that he had to make in order to allow him to respect the ethical code of conduct of his discipline, we suggest it was incumbent on Simon Fraser University, not just Russel Ogden, to defend researcher-participant privilege in Coroner's Court. We ask if the University's failure to do so itself represents a violation of R.20.01.
For the various reasons described above, we appeal to Dr. Blaney to over-rule Dr. Clayman's decision, reimburse Mr. Ogden's legal fees, and restore the integrity of R.20.01, Simon Fraser University's Research Ethics Policy.
17 November 1997
[To see our supplemental brief regarding conflict of interest issues, entitled When Roles Conflict: Research Ethics at SFU, click here.]