Nicholas Blomley, Geography and Steven Davis, Philosophy
In early 1994, Russel Ogden, a MA student in the School of Criminology at SFU, completed a path breaking and controversial study on assisted suicide that received international attention. His research relied upon interviews with people actively participating in the process. Shortly following his successful defense, he was subpoenaed to appear before a Coroner's Inquest. When he appeared, the Coroner asked him to reveal some of his sources. He refused, based on his pledge of confidentiality to the participants of the study, a pledge that Ogden maintains was in accordance with University policy. Before appearing before the Coroner's Inquest, he requested financial, moral and legal support from Simon Fraser University to assist him in preparing for the hearing. The University declined to be either actively involved in his case, or to appear as a third party, and chose to offer him only $2000 to help him, on 'compassionate' grounds, with his legal costs. It is this decision that we have been asked to review.
Our terms of reference are to be found below (APPENDIX 1). We have focused our review on the period in 1994, when the Ogden decision was made. We have interpreted 'decision' to mean the period during which the Ogden case was under active consideration by the University from March to July of 1994. For the purposes of this review we understand by 'the University' the senior administration, including the president, vice-presidents and associate vice-presidents who were actively involved in the Ogden case. We have not assigned responsibility for the Ogden decision to any particular senior administrators, but treated the group collectively. We have tried to make sense of the context in which the decision was made, which includes an attention to the University policy governing research on human subjects, R20.01, in force at the time, the circumstances surrounding Ogden's ethics approval in 1992, and Ogden's graduate supervision. Further, we have considered the broader context within which the decision was made by the University, and traced the process and specified the reasons for the decision.
To that end, we have constructed a chronology of salient events
and documents (APPENDIX 2), based on our review of the material
available to us. To the best of our knowledge, we have looked
at every relevant document. We have also conducted interviews
with a number of people (APPENDIX 3).
II University Policy On Research on Human Subjects
The University policy on ethical research on human subjects in effect at the time that Ogden submitted his research proposal is R20.01. Section 4 of R20.01 (Ethical Policy Considerations) is the most significant part of the policy; it specifies that the purpose of ethics review is an evaluation of "the risks to physical and physiological well-being, and the cultural values and sense of propriety of the persons who are asked to participate in and/or be the subject of research" (our emphasis). From this, we understand the protection of the research participants to be the central goal of SFU's research ethics policy. Moreover, the policy holds that a research proposal "must demonstrate that appropriate methods will be used to protect the rights and interests of the subjects in the conduct of research. In general, the primary ethical concerns respecting research on subjects relate to: informed consent, deception, privacy, confidentiality, and, anonymity."
Section 4 goes on to note:
In particular, informed consent is required when there is any possibility that research could result in bodily or psychological harm. Before consent is required, the subjects should be fully informed about the nature of the research methods, the likelihood, nature and possible degree of bodily or psychological harm, the purposes and potential value of the experiments proposed and their right to withdraw during the course of the experiment.
Where research may involve invasion of privacy of a subject, the research proposal must contain provisions that the subject will be fully informed, in advance, of the nature of information required and the subsequent use of that information. Each subject is to be given the freedom to decide for himself or herself what information which is not already in the public domain or available to an ordinary member of the public and which relates to his or her physical or mental condition, personal circumstances and social relationships shall be communicated to or withheld from others. No information shall be withheld from subjects nor should they be intentionally mislead regarding the procedures of purposes of research unless there is a valid methodological reason for doing so (our emphasis).
The Ethics Policy is to be administered by the University Research Ethics Review Committee (URERC). All research involving human subjects is to be directed to this committee. In the case of graduate research, section 6d holds that research proposals are to be submitted with the student advisor's recommendation to the Committee. In R20.01 'Researcher' is defined so as to include faculty and students.
III Circumstances surrounding the URERC's Approval of Ogden's Research Protocol.
During August and September of 1992, Ogden submitted for approval four drafts of his research proposal to his then advisor, Brian Burtch.
Prior to September 14, 1992, Dr. Peter Harmon informally reviewed
Ogden's ethics submission and found it to meet the University's
requirements, based on Harmon's experience as a member of URERC.
On September 18, 1992, the URERC received Ogden's ethics submission, which contained the following documents:
a) covering letter dated September 14 1992
b) MA thesis proposal
c) SFU Request for Ethical Review of Research
d) SFU Checklist for Student Research
e) SFU Research Ethics Review Committee Subject Feedback Form.
In his Request for Ethical Approval of Research, Ogden notes that
anonymity and confidentiality will be assured with each participant...[and]... that interviews with persons administering aid in dying will give insight into their motivation to perform an act that is not only laden with moral implications but also punishable under the homicide provisions of the Criminal Code.
In his 'Informed Consent' form, Ogden advises potential participants that they
may reveal information that could be regarded as illegal behavior. For the protection of all participants, no identifying information is required. In the event that the identity of participants becomes known to the researcher, such information shall be secured in locked storage, the location of which shall be known solely to the researcher. Only the researcher will have knowledge of the identity of participants -- anonymity and confidentiality will be respected.
In Appendix B to Ogden's research proposal, Ogden acknowledges that there are "serious ethical considerations" in his proposed project.
Absolute confidentiality of all participants will be assured. It is recognized that the proposed research project involves data about illegal behaviour; aiding and abetting a suicide, and homicide are potential charges stemming from identification of subjects. For the protection of participants and the researcher, no participant will be required to give information regarding their identity... The researcher will advise participants of the possibility of court action ordering the researcher to produce a list of participant names.
Ogden wrote a covering letter to the URERC to accompany his application for ethical approval of his protocol. Since this letter plays a very important, if not the central role, in the University's decision about whether to aid Ogden and about the extent of the aid, it is necessary to be clear about how the letter arose and its content.
a) How the Letter Arose
At the time at which Ogden was seeking URERC approval of his research protocol it was normal practice for graduate students in the School of Criminology who were submitting protocols to the URERC to discuss them with a member of the School on the URERC before formally submitting them to the committee. Because of this, Ogden met with Ray Corrado, a faculty member in the School of Criminology and a member of the URERC. As a result of his discussion with Corrado, Ogden prepared a covering letter as part of his application, dated September 14, 1992, addressed to the URERC. Corrado reports that he urged Ogden that he seek legal advice about possible legal complications and about the question of accountability, since, as Ogden notes in his covering letter to the URERC, his research " may result in my learning of criminal behaviour such as aiding suicide or murder -- how might I, or the University, be held accountable." Neither Corrado nor anyone else, as far as we can determine suggest to Ogden that he write the letter. In addition no one saw the letter before Ogden submitted it as part of his application of ethical approval to the URERC, including Corrado or Burtch, Ogden's thesis supervisor at the time.
b) The Contents of the Letter
There are two aspects of the content of the letter that are
of importance here. In the letter Ogden remarks that the legal
advice he obtained informed him that there is no precedent requiring
"individuals to share information with Crown Counsel. Nor
is there any statutory
obligation to report criminal activity." Moreover, Ogden closes his letter by saying,
It is a remote possibility that Crown Counsel or the Coroner's Office may request cooperation with an investigation. In such a circumstance, I accept full responsibility for any decision I make with respect to the sharing of information...
As we shall see, much turns on this statement.
Nancy McNeil, Research Grants Officer, Ellen Loosely, Director of Research Services, and William Leiss, the then VP-Research, discussed the proposal. Leiss decided not to send it to the full committee for review. (It should be noted that the decision not to call upon the entire Committee is within the terms of R20.01.) On September 23, 1992, McNeil, called Ogden to request revisions to the proposal. These related to the need to maintain confidentiality that might have been put at risk by his use of snowball sampling methodology. On September 24, 1992, Ogden provided the requested revisions and on the same day, Leiss, in his capacity as Chair of the URERC, acting on delegated authority from the Committee in accordance with R20.01, granted ethics approval to Ogden's proposal.
In the spring of 1991, Brian Burtch wrote a letter of recommendation to the School of Criminology recommending acceptance of Ogden to the MA programme. Burtch agreed to supervise Ogden in a tentative research programme into euthanasia and AIDS. In September 1991, Ogden enrolled in the MA programme. His initial senior supervisor was Robert Gordon. In February 1992, Burtch and Gordon were appointed as Ogden's Supervisory Committee. In September 1992, Simon Verdun-Jones replaced Gordon on Ogden's Supervisory Committee. On October 9, 1992, after an oral defense, the School of Criminology approved Ogden's research proposal. On December 8, 1992, Burtch withdrew from Ogden's Supervisory Committee. On February 10, 1993, Verdun-Jones became Senior Supervisor, and William Glackman was added as the second member of Ogden's Supervisory Committee. In February 1994, Ogden successfully defended his MA thesis. We have found nothing of significance in the fact that Ogden's committee changed so frequently during his MA research. Ogden's supervision appears to have been competent and informed. There is no indication that Ogden's decision not to reveal his sources at the Coroner's Inquest arose from instructions that he was given by any member of his advisory committee.
Verdun-Jones indicated to us that he and Glackman, as soon as they joined the Supervisory Committee, were aware that legal complications might arise from Ogden's thesis. It is our understanding from Verdun-Jones that he approached Stubbs fairly early on during Ogden's research concerning the issue of University support for Ogden in the event of legal complications, and received informal and unspecified indications of support. We were informed that Ogden was not advised by any members of his supervisory committee that the University would provide automatic and full support.
V The Ogden Decision
The full chronology of events and documents is provided in Appendix 2. To summarize: The first request for University support for Ogden came on January 17, 1994, when Verdun-Jones spoke informally to Stubbs, although it appears that Verdun-Jones had advised Stubbs of the possibility of legal complications earlier. Again on February 14 Verdun-Jones discussed with Stubbs possible legal problems that Ogden might have. On March 18, Stubbs received information that Ogden was probably going to refuse to reveal his sources before the Coroner's Inquest, if subpoenaed, and subsequently, on March 27 advised Bruce Clayman, the VP-Research, and John Munro, the then VP-Academic, about Ogden's possible involvement in a Coroner's Inquest and informed them that "we will need to think about this." On May 12, Verdun-Jones phoned Clayman to ask that SFU assist Ogden with his legal costs in preparation for the Coroner's Inquest. On May 13 Clayman sent an e-mail to Stubbs, Munro and Judith Osborne, the Associate VP-Academic, suggesting that the University offer Ogden $2000 "on compassionate grounds or possibly based on support for his academic freedom" and noting that Ogden's submission to the URERC included a "waiver letter." On May 24, at a VPs meeting (present: Stubbs, Blaney, Munro, McDonald, Ward, Clayman) it was decided not to offer Ogden any support. This was overturned on May 25 following a conversation between Verdun-Jones and Stubbs when $2000 was offered. On May 25 Ogden received a subpoena to appear before the Coroner's Inquest on 1 June. On July 22, SFU declined Ogden's suggestion that the University's lawyers contact Ogden's lawyer to obtain information about the brief that Ogden's lawyer was going to present to the Coroner's Inquest. On July 27 a VPs meeting confirmed the earlier decision to maintain funding at $2000.
b) Framing the Issue
The issues involved in the Ogden decision appear to have been framed in a particular way by the University. This shaped both the response that the University gave to Ogden, and the ensuing discussions concerning the decision. The question that the University appeared to pose centred on whether it had any legal obligations to assist Ogden. Moreover, the issue seems to have been framed somewhat negatively - that is, as a potentially burdensome obligation.
Viewed as a negative issue, the concern seemed to be that of
limiting any legal obligation to Ogden and by extension to anyone
in the future in a similar position. Thus, the payment made to
Ogden was cast as an act of compassion, rather than a formal undertaking
of support. In this context, the importance of Ogden's covering
letter to the URERC in his application for ethical approval becomes
clear. The University interpreted the letter to mean that Ogden
was taken to have committed himself to take full responsibility
for his actions, including any legal consequences that might arise
from them. Consequently, the University thought that it was not
legally required to assist him any further. The letter came to
be regarded by the administrators involved in the decision as
a 'waiver' letter.
It appears that there was no point at which the issues involved in the decision were framed positively as, for example, an opportunity for the University to explore through the courts the extent and the limits of academic freedom, to go to the defense of one of its researchers whose academic freedom was being put at risk or to protect the rights and interests of research participants in University approved research. In fact there is evidence that the University did not consider academic freedom or the protection of the rights and interests of research subjects as a central issues in the decision and that for this reason there was very little discussion of them in the VPs meetings at which the Ogden decision was considered or in the emails that circulated among the administrators about the decision. Moreover, we cannot find any indication that the University obtained legal advice during the period at which the decision was made, roughly, March 27 to May 25, or even at a later state, about their obligations to Ogden, about the 'Wigmore criteria' that played such a central role in the Coroner's finding that the information that Ogden had gained in his research was privileged and need not be revealed, or, more generally, about academic freedom and the potential tensions between it and legal disclosure. In addition we do not find any analysis of the significance of R20.01 in the context of Ogden's 'waiver' letter, or any wider discussion of the ethical obligation to research participants to protect their rights and interests. We find it remarkable that such issues were not raised, especially the issues of the protection of the rights and interests of research participants and of academic freedom. The obligation to protect the rights and interests of research participants is laid out in detail in R20.01, the University's policy that contains the ethical principles that apply to research on human subjects. Moreover, Ogden raises the issue of academic freedom quite clearly in a letter of May 24, 1994, that he wrote to protest the initial decision to deny him support.
The legal representation that I seek has nothing to do with euthanasia, and everything to do with academic freedom and support of the research that SFU members conduct.... In my case, this is an issue of academic freedom.... SFU [has] assume[d] a cowardly position, abandoned a 'former student', and [foregone] the opportunity to be a part of what may crystallize the legal definition of academic freedom.
Despite this, the University seems to have continued to construe
the question as one about its legal obligations to a student.
The information and advice that was gathered seems to have centred
upon this question. Because the issue was considered within a
legal framework, Ogden's covering letter to the URERC, the 'waiver'
letter, became to be one of the most important elements in the
University's reason for its decision. We do not find, however,
before or after the decision any consultation with Ogden, Verdun-Jones,
Ogden's thesis supervisor, or members of the URERC concerning
certain key questions about the letter, such as the context in
which it was written and its meaning in light of the ethical review
of Ogden's research protocol of which it was a part. The limited
information that was gathered appeared to relate primarily to
the narrow question that the University had posed itself about
It might be thought that the University was forced by circumstance arising from Ogden's imminent appearance before the Coroner's Inquest to make a quick decision. Because of this, it was not able to gather the sorts of information which we mention above. In our view the University had ample time to collect this information. The president was informed that legal problems might arise several months before the University made a decision. Moreover, even after Ogden appeared before the Coroner's Inquest the Ogden case was under active consideration by the University until at least July, 1994, when there was a VP's meeting reaffirming the Ogden decision. Consequently, the University had from about the beginning of 1994 to July of the same year, a period of seven months, in which to gather the necessary information to make an informed decision.
c) The University's Reasons for Its Decision
As we noted above, we have taken the Ogden decision to stretch out over the period from March to July 1994, when the Ogden case was under active consideration by the University. The University's most important discussions of the Ogden case occurred in VPs meetings during this period. It has proved, however, a little difficult, given the lack of a written record of the VPs meeting, to reconstruct what was at the time the exact basis for the University's decision. Moreover, the administrators who were actively involved in considering the Ogden case report having had different reasons for their views about the Ogden case. Despite the differences among the administrators, we do not attribute the reasons to individual administrators, but to the University. It has been possible from the interviews and the documents to identify five reasons, of which the alleged waiver letter seems the most important.
i) Negative Publicity
The University was concerned with negative publicity were it to play an active role in Ogden's appearance before the Coroner's Inquest and fully assist Ogden in his defense. The concern was that the University could be seen as taking a public stand on euthanasia and as being associated with a student who was defying a court order.
It is entirely appropriate that the University - a visible and publicly funded institution - be concerned about its public image, particularly given budgetary uncertainties and an imperfect public understanding of issues such as academic freedom. Moreover, euthanasia was and still is a very controversial question.
We are, however, not persuaded that a concern with negative publicity, as construed by the University, was a well thought out reason for its decision.
a) The issue was not to provide legal support to allow Ogden to argue the case for euthanasia, but to provide support to protect academic freedom.
b) At the time at which the decision was made, the University did not have any precise knowledge about Ogden's views on euthanasia. There is no evidence that anyone involved in the decision had read Ogden's thesis. Apparently, the incomplete information about Ogden's views on euthanasia that they had available at the time of the decision were taken from news reports.
c) The University's desire in early 1994 to be actively involved in making Ogden's research available to the media (and presumably benefiting from the positive publicity that ensued) and its subsequent distancing from Ogden once legal complications arose in the Spring of 1994 appear contradictory.
d) The University did not consider the positive publicity that might have arisen had it joined with Ogden in the protection of academic freedom. Since research, one of the central missions of the University, and the principle of academic freedom that protects it are both poorly understood among the general public, the advantages that would flow to the University in being seen to defend these would seem, if not obvious, then, at least, worth exploring. This would even be true were the University and Ogden to have lost their case. The very fact that Ogden's thesis was controversial and receiving international media attention would seem to make the principles of academic freedom that made it possible worth promoting. If the University was so concerned with being associated with Ogden's position on euthanasia, it still could have intervened in the Coroner's Inquest as an interested third party without necessarily committing itself to Ogden's views on euthanasia.
ii) Ogden's Status as a Student
As a graduate student, the University felt that its obligation
to Ogden was less than that to a faculty member. There are some
indications that had he been a faculty member, the University
would have felt compelled to provide support.
It is correct to note that the employment relation does place certain contractual duties upon the employer. We do not feel, however, that Ogden's student standing absolved the University of its obligations to him.
a) Academic freedom applies to graduate students and faculty members alike. The framework agreement in force in 1994 between SFU and the Faculty Association extends the protection of academic freedom to all within the university community.
b) R20.01 defines a university researcher as including students.
iii) Unlimited Financial Liability (The 'Bottomless' Pit)
The University was concerned that any undertaking to provide financial support for Ogden, or to join with him in his defense, would open the institution up to a sizable financial liability with respect to his case and an unlimited financial liability if support for Ogden was taken to be a precedent.
It is appropriate (indeed obligatory) that University administrators concern themselves with the financial implications of their decisions. Moreover, it is clear that legal costs can, in some contexts, be an almost open ended commitment. We are not convinced, however, that the financial considerations adduced by the University were a good reason for its decision.
a) Ogden only sought financial support for his appearance at the Coroner's Inquest. This would not necessarily have opened up the University to unlimited liability, although it might have been seen as setting a precedent.
b) If it had been taken to be a precedent, the probability was small that there would have been in the future very many similar cases for which the University would have been held financially liable. The University's own inquiry found no cases similar to Ogden's in North America.
c) There was no attempt, as far as we have been able to establish,
to determine the cost of the likely financial implications of
assisting Ogden in paying his legal fees either in his appearance
before the Coroner's Inquest or any subsequent appearances, if
the case went beyond the Coroner's Inquest.
d) The University could have refused direct financial aid to Ogden, but still could have participated in the Coroner's Inquest as an interested third party. This does not appear to have been actively considered. The Coroner's Act allows third parties to participate in a hearing without committing themselves to make further court appearances at higher levels.
iv) University Research is Not Above the Law
The University maintained that it would have been an attempt
to place university research 'above' the law had Ogden refused
to obey a court order to reveal confidential information obtained
in his research or had the University argued in court that information
gained in research is legally privileged. For this reason, the
University thought that Ogden had an obligation to reveal any
information that he gained in his research, had he been ordered
to do so by the Coroner. Consequently, the University took the
view that there was nothing for the University to defend at the
a) One way in which the limits of academic freedom can be determined is by the courts. Given its legally unsettled nature, the issue requires legal dispute. Ogden's actions at the Coroner's Inquest, we would contend, were an attempt on his part to determine through the courts the extent and limits of academic freedom and by doing so to defend the principle of academic freedom.
b) It is incorrect to suppose that there is no legal protection relating to academic freedom and the confidentiality of information obtained from human participants in doing research. The Wigmore criteria provide some basis for such protection. These proved decisive in Ogden's defense before the Coroner's Inquest. For these criteria to be operative, it should be noted, an undertaking of confidentiality must be in effect.
c) There are many dissimilarities between newspapers and universities.
Most importantly, newspapers are legally responsible for what
they publish; universities are not held accountable for the contents
of faculty or student research. This aside, we believe it is relevant
to point out that newspaper publishers extend legal protection
to their journalists. When journalists are subpoenaed to appear
in court to reveal their sources, publishers retain lawyers to
defend the confidentiality of the journalists' sources. This occurs,
even though the courts invariably find against journalists and
hold them in contempt of court, when they do not reveal their
sources. Despite this, publishers continue to defend journalists.
One of their reasons is to uphold freedom of the press. It would
be difficult, we believe, to argue that the publishers by continuing
to defend the journalists are placing newspapers and the activities
of journalists above the law. It is interesting to note that in
the Coroner's Inquest at which Ogden appeared the Coroner found
that the information that Ogden had obtained in his research was
privileged, but that the information of the journalists who appeared
before him was not. The Coroner ruled that the journalists, but
not Ogden, were in contempt of court.
v) Ogden's Covering Letter to the URERC, the So-Called 'Waiver' Letter
The University interpreted Ogden's September 14 1992 covering letter, submitted as part of his application for ethics review, as his voluntary commitment to take full legal responsibility for his actions. In the letter, Ogden notes that he has sought legal advice concerning the degree to which he or the University might be "held accountable". Noting that there is a remote possibility that the authorities might "request cooperation" with an investigation, he accepts "full responsibility for any decision I make with respect to the sharing of information." Given that the University saw the issue as that of determining the extent of the legal obligation that it might have towards Ogden, the letter was interpreted as a waiver on the part of Ogden that absolved the University of legal responsibility.
a) Meaning of the Letter: the University's and Ogden's Interpretations
The University bases its interpretation of the letter as a waiver letter on the words that Ogden used, "I take full responsibility for any decision I make with respect to the sharing of information." It is quite understandable that the University would read the letter in this way, given its apparent wish to limit any legal obligation it might have to Ogden.
In contrast Ogden argues that the that the only appropriate context for interpreting the letter is the URERC's review of his research protocol and R20.01. In his Small Claims Court Testimony in 1996, Ogden argued that there
was no intent to waive anything.... The purpose of the letter, in essence, was to let the ethics committee know that if I broke their policy that I would be responsible for that. I did not break the policy, your Honour. I adhered to it to the letter.
That is to say that, in 1996, Ogden interpreted his letter
to be a strengthening of the guarantee contained in the body of
his submission to the URERC that the information that he would
obtain from the participants in his research would be held in
confidence. As we shall see, there are several reasons to think
that Ogden 's 1996 interpretation of the letter reflects his intention
in 1992, when he wrote the letter and is, thus, the correct interpretation
of the letter.
b) The Meaning of the Letter in Context
In 1992 Ogden submitted the letter as a covering letter for his submission to the URERC and hence, as a part of the ethical review of his research protocol. He addressed the letter to 'Ethics Research Review'. As noted above, the central obligation that a researcher undertakes under R20.01 is the safety and security of the informants. "Sharing of information" - the phrase used by Ogden in his letter - is addressed in R20.01. Read in this context, Ogden's interpretation of the letter seems more appropriate.
Let us for the sake of argument suppose that the University's interpretation is the correct one; Ogden meant the letter as a waiver letter in which he assumed full legal responsibility. If that were the case, the letter would have changed materially Ogden's submission to the URERC. The main body of his submission that was vetted by Burtch, his supervisor at the time, contains nothing about an assumption of full legal responsibility. As we have noted above, graduate students who submit protocols to the URERC for consideration are required by R20.01 to have their supervisor's approval. As we also indicated, Burtch did not see the letter. If the letter had been a substantial change to Ogden's submission, as it would appear to be under the University's interpretation, then Burtch should have seen and approved of the letter. Consequently, on the University's interpretation of the letter, Ogden's application was improperly submitted and Leiss, who was VP-Research at the time, improperly approved of the submission. If as Ogden contends, the letter was meant merely to strengthen his guarantee in the body of the submission to abide by R20.01's strictures on confidentiality, then the letter would not have constituted a substantial change to his submission to the URERC. We find it difficult to believe that had Ogden meant the letter to change substantially his submission, he would not have drawn the letter to the attention of his supervisor to whom he had submitted four versions of his application or to Corrado with whom he discussed his submission. Thus, we think that Ogden's interpretation of the letter is the more plausible one.
Another reason that the covering letter cannot be given the interpretation that the University has assigned to it is that the URERC is not empowered to consider questions of legal or financial obligations of the University, but to enforce R20.01. There is nothing in R20.01 about limiting the University's legal or financial obligations. For this reason, the letter with the interpretation that the University has given to it falls outside the terms of reference of the URERC and should not be considered to be part of Ogden's submission to the URERC for the ethical approval of his protocol. In fact with the University's interpretation of the covering letter the letter does not make any sense as part of a submission to the URERC.
VI Reasons for the University To Assist Ogden
As we have seen, the University interpreted Ogden's letter
as a waiver letter that absolved it of any legal responsibility
towards him. We believe that even if it were granted that the
University did not have a direct duty to Ogden as a student or
researcher, it would still have other obligations to research
informants and to the research enterprise more generally. Moreover,
we shall argue that the obligations that it has to research participants
entail that it had a duty to support Ogden at the Coroner's Inquest
and to appear there as an interested third party.
a) Protecting Academic Freedom
The University has obvious obligations concerning the integrity and efficacy of research and graduate training and maintaining the principle of academic freedom, all of which were compromised as a result of its decision to distance itself from Ogden and the Coroner's Inquest.
A good deal of research involving human participants, especially in a field such as criminology, can only be carried out if the researchers can guarantee to their research participants that the information gained during the research will be kept in strictest confidence. To undermine this guarantee makes it impossible to carry out much of the research in certain fields like criminology. Minimally, the University has an interest in defending and clarifying the issue of academic freedom so that such research can be carried out. By having chosen not to do so, the University sends out a negative message to both faculty and student researchers and to prospective participants in research projects in fields like criminology. Apparently, the School of Criminology at SFU now sends materials about the Ogden decision and about unsettled issues relating to ethics policy to prospective graduate students in their acceptance package to provide them with an informed choice.
The issue extends, however, beyond questions of research in criminology. By raising questions about the University's commitment to confidentiality much of the research involving human subjects is put into jeopardy. If it became to be believed that information gathered by University researchers was not protected and might well be publically revealed, it would be very difficult to obtain the participation of human subjects in research projects.
In addition fundamental questions of academic freedom are at stake here that relate to the entire research enterprise. SFU's Framework Agreement with the faculty, in effect in 1994, defined academic freedom as "the freedom to examine, question, teach and learn...involv[ing] the right to investigate, speculate and comment without reference to prescribed doctrine, as well as the right to criticize the University, the Faculty Association and the society at large." Included are "freedom in undertaking research and publishing or making public the results thereof," and "freedom from institutional censorship." The Framework Agreement between SFU defines academic freedom as applicable to faculty members, but notes that the "University recognizes the necessity of maintaining conditions conducive to the freedom of thought and expression for all members of the academic community."
We have no doubt that the actions of the Coroner constituted a challenge to academic freedom as defined by the University itself. In so doing, more than Ogden's project was at stake. Central freedoms that determine the nature of a university were also at issue. For the University to have distanced itself from a court challenge to those very freedoms seems to us to have put in danger not only the research function at the centre of the University's mandate, but the very principles that distinguish the University from all other institutions.
Challenges to academic freedom can come both from within and without the university. A university can guarantee to protect academic freedom against actions inside the institution that are within its legal and moral jurisdiction. It can, of course, give no such guarantee about threats to academic freedom that come from outside the university. But a university has the obligation to try to protect this freedom from such external threats and challenges. If universities do not take on this obligation to protect such a basic institutional right, who will?
b) The University's Obligations to Research Participants
As we noted above, R20.01, the University's own policy on the
ethical principles that apply to research on human subjects, holds
that a research proposal "must demonstrate that appropriate
methods will be used to protect the rights and interests of the
subjects in the conduct of research. In general, the primary ethical
concerns respecting research on subjects relate to: informed consent,
deception, privacy, confidentiality, and, anonymity." That
is to say, the University places researchers under the obligation
to protect certain "rights and interests" of the participants
in their research projects. The primary justification for researchers
having such a duty is not to protect the research enterprise.
Rather, the University takes it that the researchers' obligations
arise, because their research participants have certain "rights
and interests." Hence, if researchers were not to fulfill
their obligations and thereby were to violate the rights of the
participants in their research projects by, for example, deceiving
them, revealing information gained in confidence or by doing something
to them for which informed consent had not been obtained, then
by the University's own policy the researchers would have acted
We believe that the University, also, has an obligation to research participants to protect their "rights and interests" that are acknowledged in R20.01. It would be very strange, indeed, for the University to lay out a policy in which its researchers have certain ethical obligations to research participants, but for it to argue that as an institution it did not have correlative obligations to them. If the rights and interests of research participants give rise to a duty on the part of researchers to protect these rights and interests, then a fortiori it gives rise to a similar obligation on the part of the institution that approved of and set the ethical guidelines for the research. Hence, the University has a duty to assist researchers in carrying out their obligations to protect the rights and interests of research participants. In doing so it is not acting primarily to provide aid to the researcher, but to fulfill its obligation to protect the rights and interests of research participants. Consequently, in the Ogden case the University had an obligation to assist Ogden in his case before the Coroner's Inquest and to appear as an interested third party. The University had this obligation, even if Ogden's letter were to be interpreted as a waiver letter. The reason is that even on this interpretation Ogden would have only been able to waive the responsibility the University had to him, but he would have been in no position to waive the University's responsibilities to the research participants in his research project.
The Coroner's Inquest clearly put at risk the "rights and interests" of the participants in Ogden's research project. Ogden, himself, saw matters clearly. At a serious risk to himself he was determined to fulfill his obligation to protect the rights and interests of his research participants, an obligation he undertook by submitting his research protocol to the URERC in accordance with R20.01 and having his protocol approved by the University. Ogden carried out his obligations to his research participants, even though he faced the possibility of being held in contempt of court. Had this occurred, he would have faced the possibility of going to jail and of losing his job as a social worker. Luckily for the University, Ogden showed uncommon moral courage in refusing to reveal his confidential sources at the Coroner's Inquest. The University, however, failed in its ethical responsibility to the research participants in Ogden's research project by not coming to Ogden's assistance and by not appearing as an interested third party in the Coroner's Inquest.
It is conceivable that there are circumstances in which even though researchers and the University have committed themselves to protect research participants' rights and interests, they should be overridden by other rights and interests,. If the University, however, were to believe that it was faced with such an unusual situation, it would be under an obligation to take all due care in making a decision that could result in putting at risk or in overriding the rights and interests of research participants. Consequently, if the University had thought that such a situation had arisen in the Ogden case, it had an obligation to take due care in making its decision not to come to the aid of Ogden and not to appear at the Coroner's Inquest as a third party. There is no evidence that we can find that the University took such due care in its decision making process. For the University to have shown such due care, we would have expected it to have consulted widely with interested parties and with those who had expertise about the matter at hand. As far as we have been able to determine, no such consultation took place. In fact the University declined Ogden's offer to consult with the University's lawyers about the arguments that he intended to use at the Coroner's Inquest. Since Ogden's appearance at the Coroner's Inquest was a legal matter, we would have expected the University at least to have obtained legal advice in which, among other things, the Wigmore criteria and various precedents that had a bearing on the case would have been laid out in detail. The only University consultation that we have been able to find was with a law professor, a consultation for which the University paid no fees. The views of the law professor, in the opinion of the administrator directly involved in obtaining them, did not amount to anything that could be considered to be legal advice. The law professor's views that were conveyed to the University did not touch on any of the complex legal questions that surrounded Ogden's appearance at the Coroner's Inquest. Hence, the University's decision that put at risk the rights and interests of Ogden's research participants was not made with the care that it had an obligation to take. By calling attention to the fact that the University did not take adequate care in making its decision we do not mean to imply that had it taken such care, it would have been able to establish good grounds to override the rights and interests of Ogden's research participants. There is good reason to think that this is not the case. Using the Wigmore criteria, the Coroner found that the information that Ogden obtained during his research was legally privileged and thus, could remain confidential. Consequently, in the decision that it reached and in the way in which it reached it the University failed in its obligations to Ogden's research participants.
There are clear differences of opinion and interpretation in this case. We have found, however, no evidence of malign intent. Yet, decisions that appear principled and consistent can have unacceptable consequences. In offering only limited financial support to Ogden, and declining to appear with him at the Coroner's Inquest, we feel that the University made the wrong decision. It was a mistake as far as its obligations to Ogden as a researcher were concerned, in relation to its obligations under R20.01 to research participants, and in terms of its commitment to sustain academic freedom, graduate training and the integrity of research. While we accept that the intent of the University's decision was to serve the best interests of the institution, this has, regrettably, not been the case. It is important for the University to put the Ogden decision behind it, but at the same time it is necessary that it reaffirm in a clear manner its commitment to protect the central principles of academic freedom that underpin the institution and the "rights and interests" of research participants. It must do this in a way that makes it clear to the SFU community and the public its firm commitment to these principles. To acknowledge these commitments, to correct its errors and to address their consequences, we suggest that the following remedies be undertaken.
VIII Recommendations to the President
a) The University should give Ogden the amount of money for which he sued the University in Small Claims Court as a reimbursement for the balance of his legal fees and for his lost wages arising from his absence from work prior to his appearance at the Coroner's Inquest. This absence was due to an illness caused by the University's decision.
b) The University should write a letter to Ogden in which it
apologizes to him for its decision and for any consequences that
he suffered because of it. Moreover, it should acknowledge that
Ogden's stand in the Coroner's Court was appropriate and principled.
c) The University should extend to graduate students engaged in University supervised and approved research the same legal support and protection that is now guaranteed to faculty members doing research.
We request that the University make our report available to
the University community. Since the Ogden decision has been of
interest beyond the University, we suggest that it be made available
to the wider community as well. To this end it should be diffused
as broadly as possible. In addition we request that the committee
charged with the review of R20.01 be made aware of our findings.