Bulldozers in the Garden:

Comments Regarding the Tri-Council Working Group's July 1997 Draft Code of Ethical Conduct for Research Involving Humans

Ted S. Palys, Ph.D., Simon Fraser University [see Footnote 1]

As a methodologian and scholar interested in the sociology of science, I have watched the three granting councils and their Tri-Council Working Group (TCWG) with both trepidation and interest. There is no doubt that the prospective adoption of the Code, and the process by which it was generated, whether one likes them or not, and whether they are adopted in full or not, represent events of historic import to the workings of research in this country. Accordingly, I am pleased to comment on the 1997 draft of the TCWG's Code of Ethical Conduct for Research Involving Humans.

The councils request that responses to the 1997 draft be focussed on "three essential questions":

(a) Will the Code enhance the protection of participants in research?
(b) Will the Code allow research to be carried out without unreasonable constraints?
(c) Will the Code provide effective mechanisms to review ethical requirements and enhance the accountability of universities, research councils, and researchers?

Although these are not the only questions that could be asked, nor even necessarily the three most important, the simple answers to them are

(a) In some areas, but not others.
(b) For some types of research, but not others.
(c) No.

The remainder of this submission explains and expands on those responses.

Some Basic Problems

A Unilateral Process

The difficulties that remain with the TCWG 1997 draft Code are rooted in the process from which it was generated. The three granting councils, whether at the behest of their Ministries [see footnote 2] or of their own accord, "collectively appointed a multi-disciplinary working group (the TCWG) and gave it the mandate to develop new policies and regulations to replace the Councils' existing guidelines for research involving humans." (TCWG, 1997, p.1) The policies and regulations articulated in the 1997 draft have a potentially huge influence on the research enterprise in Canada, most notably the universities, who gain a significant proportion of their research funding through one or more of the three granting councils, and from the federal government more generally.

A simple fact that the TCWG's 1997 draft again fails to address, is that the process the three councils have followed falls short of their own criteria for an ethical interchange. Scores of thousands of students and professor/researchers, not to mention their "cultures" and structures, and "science" itself, are affected by imposition of something like the draft Code. The councils' major concession is to allow those affected to speak, in a process of "consultation," but the need for a process in the first place is never a matter of consideration. And we know already who will not be in the room when the final report is written. This unilateral decision-making is in stark contrast to the ethical Code the TCWG puts forth, which affirms the need to treat collectivities with mutual respect; to do no harm; to negotiate terms of access in a fair and equitable manner; and to avoid imposing oneself on others without their informed consent. The irony would make it humorous, if the matter were not so serious; its hypocrisy is astounding.

A Limited Range of Voices

That it is the three granting councils who have taken the initiative, and would seem to have the power to impose their will, adds to the problem in several ways. First is that those who are responsible for drafting the Code by no means reflect the range of research conducted in Canada, or the researchers who perform it, and this shows in both the 1996 and 1997 draft Codes. Many other critics of the TCWG Code (e.g., ACCUTE, CAUT, Vice-Presidents of Research from across the country) have already drawn attention to the way an assumed biomedical model of research dominates the Code - from the kinds of situations that are anticipated, to the kinds of examples that are drawn to illustrate principles - and I agree with them.

But other sources of perspectival bias also exist. Membership in the TCWG is a reflection, in part, of a certain degree of connectedness to the three granting councils, but research funded by the three granting councils is by no means representative of all the types of research done in Canadian universities. It is biased toward (a) capital-intensive research, in which researchers often run "labs" or have "research teams," which tend to be more hierarchical in their structures and "research programme" oriented in their pursuits; and (b) hardware-intensive research that requires computing equipment for more than simple word-processing and Internet access, and other types of apparatus specifically designed to take measurements, store information, administer trials, and so on. Two-thirds of the members of the TCWG are from the natural sciences, engineering, and medical fields, even though such persons represent a substantially smaller proportion of the research community in your typical Canadian university. Conversely, the TCWG under-represents those involved in critical research, field research, text- and performance-based research, as well as those who generally seek funding elsewhere or are self-funded.

Although its members may have an intellectual understanding about doing other kinds of research, it is doubtful one can understand the dilemmas that are unique to certain research methods and research perspectives in the same manner, or to the same extent, as those who have lived the life. As a social scientist who tries to read broadly enough to encompass research and research issues in other areas, for example, I understand many of the design issues that face researchers involved in drug trials or genetic testing and manipulation, and could speculate on the range of ethical issues that such persons might encounter in their day-to-day lives. But I could never put together a Code of Ethics that would capture the nuance of issues, or even the existence of some issues, that may seem self-evident to persons in the field; nor would I seek to impose entirely my view about what such research should be.

If our positions were reversed, and those in the natural and medical sciences were awaiting the imposition of a Code of Ethics designed by a group dominated by anthropologists, historians, criminologists, and linguists, I suspect they would feel some degree of chagrin that their only participation in the process was to let them comment periodically on each draft that emerged. The tri-councils seem to have less problem with that issue, but ignoring the problem does not make it go away. In the end, however hard it may have tried, the TCWG simply has nothing to say to some researchers, and often inadvertently makes the research task more onerous because of poor translations from one model of research to another.

Unintended Consequences

One example is evident in the response of the Association of Canadian College & University Teachers of English (ACCUTE) to the TCWG's 1997 draft document. ACCUTE researchers, whose work appears to be included under the broad definitions of "research" and "research participants" used in the TCWG draft Code, engage in text- and performance-based research. None of the individuals who served as part of the TCWG do such research, and ACCUTE's response shows a potentially appalling impact - much of it unintended, I'm sure - that would appear to have the potential to virtually shut down certain areas of research. And indeed, that is part of the point. The TCWG and the three granting councils know not what they do. However well-meaning their intent, they do not understand the nature of the beast they are prepared to manipulate.

Another example can be given from the social sciences. A distinction for which I argued in my earlier submission to the TCWG [see footnote 3] - the distinction between situations where the researcher is powerful and the participant vulnerable, versus the opposite situation where the participant is powerful and the researcher vulnerable - is indeed made (on p.VII-4) in the new draft, but the TCWG can say nothing better than

As already noted, some collectivities cannot usually be considered vulnerable. Thus, the following articles would not apply ...

But what does apply? And what does the TCWG believe an REB will do when faced with a proposal in which the researcher asserts s/he is dealing with a powerful collectivity? They will look for advice in the TCWG Code and, finding none, will choose to err on the safe side (which most certainly will be advised by the lawyer the TCWG requires on the REB), which will probably involve applying the guidelines they have, however inappropriate that may be. Certain kinds of research - especially more critical areas of inquiry, where "critical" almost by definition involves the questioning of status quo structures and the bases of power - are the losers, as is the scientific enterprise more generally because of the pressure to homogeneity that is created.

Conflict of Interest

Yet another problem that arises from the very process the TCWG has enacted is conflict of interest. The TCWG points out, and rightly so, that researchers, members of REBs, and their institutions should avoid both real and apparent conflicts of interest (see TCWG, 1997, Section IV). I appreciate their affirmation of the need for independence of institutional REBs from administrative forces within the same institution. And yet the TCWG did not take the next step, i.e., to turn the lens on themselves and ask whether it is a conflict of interest for them to be generating and unilaterally imposing an ethical code on the universities and researchers of this country. There are many ways such a conflict exists; I will note only three of them here.

First, a large proportion of the research done in this country's universities is federally funded, and, very often, the object of funded research is some element or creation of the government itself. In the area of programme evaluation, for example, it is not unusual for researchers to be involved on a grant or contract basis to evaluate the impacts of a certain programme, or to assess whether a programme or other intervention (e.g., a legislative change) is operating with intended effect. A brochure recently produced by the office of Simon Fraser University's Vice-President of Research (1997) entitled SFU Research Matters reveals that 66.2% of SFU research funding over the last 11 years came, in one form or another, from the federal government (p.3), and that more than a third of research contracts administered through the university in the last three years were with the federal government as client (p.4). As such, some significant proportion of research done by university researchers in government settings will now be expected to go through a review process according to rules generated and imposed by an agency of the federal government! So much for the "egalitarian negotiation" the TCWG tells us to aspire to. Apparently the same rules do not apply to those who create the document in the first place.

A second place where the federal government's and tri-councils' conflict of interest is evident appears in the section on collectivities. The examples the TCWG uses to justify that section are replete with instances of the vulnerable getting shafted - Aboriginal communities victimized by "parachute scientists" who exploit the community for its data and leave nothing behind; dissidents in countries with oppressive regimes who are adversely affected by a project. These are legitimate examples, and the participants in those communities deserve ethics protection, even to the point of acknowledging they have collective rights in addition to their individual rights. But when the TCWG comes to define a "collective," they assert that the rules regarding a collective are to be enacted whenever "one or more of the following applies":

(a) property or private information belonging to the group as a whole is studied or used;
(b) the research requires the delegated participation or permission of those occupying positions of authority, whether formal or informal, in the group; or
(c) the research involves the participation of members acknowledged as representatives of the group as a whole. (Article 7.1, p.VII-3)

And while the definition does indeed apply to Aboriginal communities, dissident groups, and such, to whom else does it apply? The federal government and its three granting agencies, of course! To that extent, the TCWG document writes its own rules, and is clearly doing so in its self-interest. Doing so makes the TCWG Code a managerial document, not a document whose choices are borne from ethics; instead "ethics" become the conduit through which other considerations - an aversion to criticism, an aversion to questioning existing structures, an aversion to considering other ways the world might be, and an interest in researcher discipline - can be put into play. As the CAUT (1997) asserts in their most recent submission to the TCWG:

[T]here is still a strong tendency [in the TCWG 1997 draft Code] to define the rules in such a manner as to defend the status quo and the powers that be and to make it difficult to undertake critical research about collectivities. We are particularly concerned about the inclusion of governments and corporations as collectivities for the purpose of this section [Chapter VII]. We note the argument that these and many other bodies are collectivities in practice or law. We agree, but we do not think that these bodies need the protection of a university REB, and that they are likely to try to use this chapter as a device to limit free discussion of their activities.

A third instance where a conflict of interest is evident is in the jurisdiction that the TCWG imposes. Probably as much research is undertaken by the federal government in-house as is done in all the universities in the country - everything from programme evaluations, to the census, to Statistics Canada's Opinion Research Unit opinion polls, to simple information gathering exercises about any of myriad groups or phenomena that happen to interest the federal government in the execution of its mandate. Let us assume for the moment that the TCWG Code is indeed an adequate one, that it is indeed what the TCWG believes it to be - a set of high standards and structures that should govern research in this country. Do the citizens of Canada not have a right to expect that their government's researchers will undertake research in an ethical fashion? If the TCWG Code is a reflection of what structures and mechanisms the federal government and its granting councils believe are essential to ethical practice, why is research conducted by the federal government not included in its jurisdiction? Clearly, a conflict of interest is operating here - controls are fine when imposed on others, but the federal government and its granting agencies seem reluctant to apply them to themselves.

No Moral Authority

For an ethical code to encourage and reach the high ethical standards of practice to which it aspires, it must have moral authority. For all the reasons noted above, the TCWG Code does not have that authority, and, as a result, it lacks the heart of what it purports to represent.

With my enduring objections about the process as a whole noted, I'll now turn my attention to the substance of the 1997 draft Code itself. Not surprisingly, many of its difficulties emerge from the limitations noted above.

Thou Shalt Do No Harm

In response to the question of whether the TCWG (1997) draft Code would better protect research participants, I stated "In some areas, but not others." That issue cannot be addressed without simultaneously considering the second question, "Will the Code allow research to be carried out without unreasonable constraints?" - to which I also responded, "In some areas, but not others."

In areas such as medical research, manipulative experimental research, and drug trials, and other areas where exploitative possibilities and power inequities that favour the researcher and his or her institution exist, then the TCWG's 1997 draft Code would appear to do a good job of ameliorating that imbalance. In other areas, the Code engages in overkill by providing protections where no further protections are required. In still others, the TCWG Code places researchers in a catch-22, where the TCWG's Code places them in such a position that nothing they can do would be considered "ethical."

It all begins with that phrase - "the protection of participants" - which seems so reasonable and makes so much sense when viewed in the bio-medical context the TCWG champions. Yet that same concept becomes a pariah when applied in many areas of the social sciences and humanities, particularly given the incredibly broad definitions that are given to "research" and "participant." Much research about society, its institutions, and the people and groups who occupy it/them will become much more difficult if not impossible to do, particularly more critically-oriented research, field research, and policy research.

The TCWG pretty much gives "research participants" veto power over what is said about them by requiring their permission before research commences, since this requirement of permission invites participant control over what is said. And while there are times that such a sharing of control may well be desirable, and even more times where giving persons or groups who are the subject of analysis an opportunity to comment on drafts will aid both the ethics and quality of the analysis, there are also times where such a requirement seems ludicrous. Those who await permission from Saddam Hussein, or Jean Chretien, or Preston Manning, will no doubt be waiting a long time. The TCWG's singular dictum to "protect research participants" may well be consistent with the admonition that Thumper the rabbit hears from his mother in Bambi - "If you can't say anything nice, don't say anything at all" - but, in the social sciences, represents an inappropriate suppression of critical analysis. Indeed, if researchers are not able to say anything that a particular individual or collective might not want to hear, the end result of the TCWG's exercise will be to deny researchers - who are professionally bound to make their assertions on the basis of evidence that must survive peer review - the same rights that are held by other members of society to state their opinion on matters that interest them. [see footnote 4]

Part of the problem comes from the notion of "do no harm" (e.g., see TCWG, 1997, p.12), which the TCWG imports from the biomedical field. [see footnote 5] The principle is a relatively simple one when viewed in the context of the biomedical model, where the harms that might be done are fairly specific and measurable, and where it is quite clear who the "participant" is one does not wish to harm. In the social sciences, however, what some participants might construe as "harm" may well be done simply because of the evidence that is gathered.

To cite an example I used in my earlier submission to the TCWG, a former graduate student in our department, George Rigakos, did research with a local police department concerning their response to calls for service from battered women who had received protection orders from the courts, but whose former partners had violated the terms of the orders. The research was done with the willing participation of the police department, and Rigakos was pleased to solicit and entertain their input at each stage of the process. It soon became evident that the police were doing little if anything to assert the orders and protect the women, and Rigakos said as much. When asked to critique a draft report, the police department did not challenge his conclusions, and seemed to appreciate having the problem drawn to their attention.

Six months later, however, when Rigakos and his research started receiving press coverage because of an award Rigakos won for the excellence and timeliness of his research, the situation changed. Suddenly, the police started demanding that he retract his findings, and even threatened him with the possibility of legal action. The threats were baseless and went nowhere, at the time, at least, but does the TCWG not now give the police the ammunition they would need to thwart publication and dissemination of the report, both because the police now can be considered a "collective," and because the results might be construed as potentially "harming" their reputation?

And although one might respond by saying, "Yes, but the police are not a vulnerable collective, and hence the same rules do not apply," we are then led to the problem that the concept of "vulnerability" is open to social construction. One can imagine the police arguing that, if their reputation can be harmed, does this not suggest they are de facto "vulnerable"? White middle-class males might argue the same point in this age of "political correctness" - i.e., asserting that they are indeed the vulnerable collective these days, given the power that "special interest groups" are alleged to hold. Similarly, politicians and other public figures often see themselves as victims of the media, and especially vulnerable because of their accessibility to public view. [see footnote 6] I see these assertions as baseless, but mention them to make the point that, as is the case with the vulnerable-powerful distinction, the TCWG's report is replete with constructs that may be well-intended, but are not "street-wise." One of the costs of generating a lengthy legalistic document that is short on principle and long on procedure is that it will invite a splitting of hairs and legal challenge. Although I understand and appreciate the Councils' efforts to recognize some of the distinctions that I - and other commentators - made on the 1996 draft, particularly with respect to making the language of the new Code less dogmatic and autocratic, the TCWG must also now recognize that the matter is not so simple that one can define a term as one wishes, or can assume that the meaning of any given concept is shared by all. I would encourage the tri-councils to heed the CAUT's (1997) advice on that point.

Similar dilemmas arise in other areas. For example, one colleague - Robert Menzies - has engaged in research in a forensic psychiatric clinic. The work Dr. Menzies does is exemplary in its comprehensiveness and quality. It is multi-methodological, involving interviews with all the persons involved in the psychiatric assessment process (e.g., patients, police, psychiatrists), observations of assessment interviews, and analysis of archival data (i.e., forms filled and records kept throughout the process). It also ended up being highly critical of the psychiatrists who, it appears, are heavily influenced by the report of the police officer who brings the client in, and who accurately predict "dangerousness" of offenders little better than anyone off the street. Given his findings, how is Dr. Menzies supposed to meet the dictum to "do no harm"? If he honestly reports his data that show psychiatrists predict dangerousness no better than a roll of the dice, might he not be accused of "harming" the reputation of the psychiatric community (as they, in fact, have argued at conferences and in journals where he has presented his findings)? But if he fails to report his data, would he not be "harming" the clients, who are also his research participants, by not pointing out the injustice of the process in which they are compelled by the courts to participate? According to the TCWG, Dr. Menzies is damned if he does, and damned if he doesn't. The TCWG show naivete about such situations by espousing sets of singular principles, not recognizing that the field always involves competing principles whose complexity defies a formulaic response, and must be resolved by the ethics of the researcher.

The Special Situation of Student Research

The TCWG 1997 draft Code also errs in extending its protection to persons who need no greater protection than is currently in place, and in needlessly bureaucratizing research that has an extremely low likelihood of causing ethical problems. In its general jurisdictional principle that, "All research involving humans as research participants requires ethics review" (p.3), its extremely broad definitions of "research" and "participants" (see p.3), along with its subsequent assertion in Article 2.4 that "REB decisions concerning research ethics must be reached in face-to-face meetings…" (p.II-6), the TCWG engages a bureaucratic process that would have to deal with thousands of research projects in every university every year, regardless of the degree of risk that is involved.

For example, I teach research methods courses at every level from undergraduate to doctoral in my department, and I believe it is important for students to engage in research, however modest, in order to understand principles of design and interpretation better than they would by only reading a text. On average, my teaching assistants and I supervise about 200 student research projects per year. About 90% of those would be undergraduate research projects which I intentionally constrain in scope, because they are often the students' first opportunity to be involved in research. Accordingly, I discourage undergraduate students from coming up with research projects that involve children or those under the age of consent; captive audiences; deal with intimate, threatening, or sensitive topics; involve deception; or involve observation in anything other than a "public" setting.

Before commencing their research, students must give me a brief written research proposal telling me what they will be doing, and what/whom their sources of data will be. The projects themselves are discussed on an ongoing basis in tutorial groups throughout the semester, so that all students can hear about the problems and solutions that other students are having and generating, which also gives me a way to monitor their progress and be alerted to any significant problems. Their research, by my design and intent, is pretty innocuous, and, in 15 years of teaching such courses, I have never yet had a project of this sort blow up in my face. On occasion, when students come up with proposals that raise red flags for me, I have no difficulty dissuading them - not by telling them that their research is impossible or somehow unworthy, but by encouraging them to wait until they have more research experience, and/or can receive closer supervision (e.g., in a smaller seminar course; on their Honour's or graduate theses) before they move into areas that are potentially more ethically complex and problematic.

The new TCWG Code would hamper that process. Now, every research project would have to be examined by two committees - a departmental REB that would probably be established to examine such proposals, and the university REB, which is obliged to at least monitor the decisions of all the departmental committees (p.II-5). Given that I am not the only professor in my department who teaches research methods and requires his/her students to undertake research, and that my department is not the only one in the university that operates in that manner, I would appreciate if the TCWG would advise us how we might accomplish those goals in an expedient manner that ensures our courses will not be over by the time each of our students finally receives ethical approval. And notwithstanding all the TCWG's admonitions about "a proportionate approach to assessment," in order to determine whether any given project warrants full or minimal scrutiny, the student still has to do a formal proposal, and each and every proposal must be examined by the departmental or institutional ethics committee, simply to find out that no further review is required. The review I now give, apparently quite effective if history is any judge, is done in two or three days; I cannot see how the TCWG's process can do the same in less than two or three weeks.

The creation of such a bureaucracy would literally paralyze my department in the first month of every semester, with the probable impact that much less research would be done by students in the course of obtaining their undergraduate degrees. When they go on to graduate programmes and undertake their theses or dissertations - where they are expected to engage in non-trivial research on complex issues that make substantial original contributions to their discipline - they will not have the same depth of experience they have now. But understanding the nuance of ethical issues, and what to do when some dilemma drops in your lap in the middle of a project, takes experience as well as theory. The end result is that the TCWG will have played a role in maximizing the incompetence of students at precisely the time when they are at the level of doing ethically complex research, and would most benefit from having the experience.

Welcome Changes in Tone Bring Their Own Problems

One aspect of the TCWG's 1996 draft Code that I chided was its often dictatorial tone. I thus acknowledge with appreciation that the 1997 draft is written in a very different, and far less autocratic language. While the earlier version sounded almost anti-research and anti-researcher, with the general tone being one of suspicion and mistrust, the new document acknowledges greater diversity in research goals than its predecessor, and there are numerous affirmations of the benefits of research to society. The newer draft is definitely less arrogant and dogmatic. Indeed, one even sees a certain amount of discretion built in, such as whether a given REB chooses to follow the one-step (ethics only) or two-step (ethics + scholarship) model of evaluating proposals (TCWG, 1997, p.18 and p.II-4).

That all sounds very nice, but my colleagues and I worry that the outcome will be very different than what the TCWG might allow. This emerges from two elements of the TCWG draft Code: (1) its preferences for centralization of authority [see footnote 7] and bureaucratization of the ethics review process; and (2) the requirement that a lawyer be a member of each REB. The Canadian Association of University Teachers (CAUT), for example, asserts:

We agree that REBs should consider scholarly standards when the research poses risk of harm above the threshold of normally acceptable risk. We disagree with your solution for research that does not pose risk of harm above the threshold of normally acceptable risk, namely that REBs can decide for themselves whether or not they will consider scholarly quality as well as ethical probity and professionalism. This is an invitation to increased bureaucracy. In disciplinary areas where there is a tradition of examining scholarly quality through peer review outside of REBs, REBs should be forbidden to impose a second quality review. (CAUT, 1997: Comments on Part 1; my emphasis)

I agree with the CAUT regarding the likelihood of REB preferences for bureaucratic safety, but disagree with their call for TCWG intervention. Such issues, in my mind, are best resolved within the universities, as are questions of ethical review.

Using Bulldozers in the Garden

I did not choose my title of "Bulldozers in the garden" because of its subtlety, but because I thought it captured well what the TCWG's entry into the ethics arena might mean for the research enterprise in this country. One can always use a bulldozer in a garden, but surely it is a more gross implement than is necessary, and surely its end result is to do more harm than good. The one exception might be the case where the garden is so full of weeds and other problems that only a bulldozer is capable of getting rid of it all and allowing a fresh start, but issues of ethics in the universities do not have problems of that magnitude.

Indeed, although the TCWG has commonly alluded to "problems" involving ethical issues in the preambles to its various reports, apparently to justify its entry in an arena where nobody asked it to go, particular problems or problematic incidents are never named. This does occur, however, in some of the press coverage that the TCWG has been receiving, and it is instructive to examine that coverage. The Vancouver Sun, for example, recently published an article entitled Scientists to get code of ethics for studying humans (26 September 1997, p.A10), in which Dr. Michael McDonald of the TCWG was interviewed. [see footnote 8] Consider the following from that article:

The list of immoral, invasive and dangerous experiments on human beings is long in the United States and Canada.
But there's been little outcry in this country. Thanks to pressure from animal-rights activists, said University of BC applied ethicist Michael McDonald, there are more ethical rules governing experiments on animals in Canada than there are moral guidelines for studying humans. [see footnote 9]
McDonald is a key member of a team of Canadian philosophers, scientists, doctors, law professors, anthropologists and psychologists that's nearing the end of a three-year, $500,000 process aimed at filling the ethical gap.

Pardon me? If the "list of immoral, invasive and dangerous" experiments is indeed so "long", then why, in the article, must Dr. McDonald reach to the United States to find examples, and to research that was initiated 40 years ago (the Tuskogee syphilitic study; the McGill-CIA brainwashing experiments), and to "old classics" such as the Humphreys (1970) study on Tearoom Trade? Indeed, readers who go to the ethics chapter in a research methods text I wrote [entitled Research Decisions (Palys, 1992, 1997)], will see those very same studies described. Why? Because they are so rare, and that particular list of studies is either so compellingly horrendous (e.g., the Tuskogee and McGill-CIA studies), or so controversial as to whether they were "ethical" or not (e.g., the Humphreys research), they are legendary. But a "long list" of examples? I'm afraid not. Indeed, given the thousands upon thousands of research projects undertaken every year in North American universities [see footnote 10], the enterprise as a whole seems to have an astonishingly clean record.

One can also wonder why the impression is given in the article that there are no guidelines pertaining to ethics in the country at the moment. Dr. McDonald's statement that "there are more ethical rules governing experiments on animals in Canada than there are moral guidelines for studying humans," or the statement that the TCWG process is designed to "fill the ethical gap," leave the uninformed reader with the impression the federal government and their granting councils are saviours for bringing some rules to keep these frontier researchers in check. But is there anything further from the truth? The involvement of the research disciplines in codifying ethics principles predates the federal government's interest by at least decades, and to say there is some need to "fill the ethical gap" ignores the Codes of Ethics that have been created by every disciplinary association, and the procedures for ethical review that have been in place in every university in the country for at least three decades.

The TCWG's Aspirations for One Big Code

Given this length of experience in the disciplines and the universities, it seems to me that two questions can be asked about the aspirations of the TCWG for producing One Big Code, as well as for its specific proposals.

The first question is whether the TCWG has offered anything new in the way of insights about ethics that have not already been known or addressed for at least twenty years. I cannot speak for the bio-medical area - and especially for areas dealing with human genetic research or drug trials - but I do know that, with respect to the social sciences, the answer would be an unequivocal "No". Indeed, if anything, my general impression is that the TCWG is astonishingly naïve with respect to the dynamics of any social science research beyond behavioural research that follows the bio-medical model (e.g., such as experimental research in psychology).

But the second question, and the more important one from my perspective, is whether the TCWG aspiration to develop the One Big Code is in keeping with contemporary developments in the social sciences. And it is not. Looking for the One Big Code is consistent with aspirations that characterized the social sciences from around the turn of the century to about the 1960s, when the positivist domination of the social sciences was manifest in the search for the One Big Theory, and the One Big Method, that would make our understanding of the world both simple and complete. It continues to be consistent with the paradigmatic approach that characterizes the natural sciences who are so well-represented on the TCWG - consider, for example, Stephen Hawking's (e.g., 1988) assertions of physicists' aspirations for finding the One Big Theory that will explain everything from the behaviour of sub-atomic particles to the dynamics of the cosmos - but is quite out of step with developments in the social sciences.

Regarding the latter, I would argue (e.g., see Palys, 1992, 1997) that the last two to three decades have seen the development of much greater interest in and respect for pluralism in the social sciences - perspectival, theoretical, epistemological, and methodological - to which the aspiration for One Big Code is anathema. Imposing One Big Code is tantamount to imposing the One Big Set of Values and the One Big Way of Looking at the World, and the social sciences have recognized collectively that these things simply do not exist. The more imperialist among us may be hoping for such a thing, but the world is not so simple, and the aspirations of the world's people and peoples are far more complex. Even smaller units such as disciplinary associations have difficulty reconciling the variation of perspective that exist among their members, so the idea of developing one big trans-disciplinary, trans-perspectival, trans-methodological, trans-epistemological Code seems ludicrous. Surely the post-modern world is, if nothing else, at least highly skeptical of One Single Anything.

A consideration of ethics more in keeping with that contemporary sense in the social sciences is evident in Anthropology, where the American Anthropological Association (AAA) has developed a revised code of ethics for its members. In considering their objectives in creating a Code, the AAA concluded there were two purposes served by such codes:

A professional code of ethics should be a useful educational document, laying out rules and ideals as to what is expected of persons in the field to which the code applies. A code of ethics can also be the basis for adjudicating claims of unethical behaviour. (AAA, 1996, p.3)

Their 1967 Statement of Ethical Principles was intended to serve both purposes. By 1996, however, the AAA's revised code accepted the first purpose, but rejected the second, on the grounds that it was doubtful the AAA would be able to construct and administer an adjudication programmes that would be both "fair and legally defensible." The result is a draft document that emphasizes educating/sensitizing researchers about ethical issues, and offers guidelines for the resolution of ethical dilemmas. In the words of the AAA (1996),

Anthropological research, teaching, and application, like any human actions, pose choices for which anthropological researchers, teachers, or individuals applying anthropological techniques and knowledge individually and collectively bear ethical responsibility. Since anthropological researchers, teachers, and practitioners are members of a variety of groups and subject to a variety of ethical codes, choices must sometimes be made not only between the varied obligations presented in the code, but also between those of this code and those incurred in other statuses or roles. This statement does not dictate choice or propose sanctions. Rather, it is designed to promote discussion and provide general guidelines for ethically responsible decisions. (Sec. VI)

It is also noteworthy that the new AAA Code is the only one I have seen that not only acknowledges the rights and responsibilities of researchers to make their own ethical choices, but also includes a skeptical note about itself, and other codes as well:

Anthropological researchers, teachers, and practitioners must be sensitive to and continually assess all appropriate ethical claims on their work. When conflicts or special situations exist, violations of this or any other applicable code of Ethics might be justified. (AAA, 1996, Sec. II)

Competing Claims Regarding "Ethical" Practice

One aspect of the AAA Code I found both striking and insightful was its recognition of the multiple roles that anthropologists (or any of us) occupy, and the often competing claims that can exist among those roles. That recognition of complexity is completely lacking in the TCWG (1997) draft Code and its enduring aspirations for the One-Size-Fits-All Code of Empirical Life. When there is agreement on the paradigm of inquiry, and of the objectives of the research enterprise - as there appears to be among the bio-medical researchers and bio-medical model trumpeted through the TCWG's draft Code - then the idea of establishing one big consensual code may make some sense.

But by whom am I to be guided? The TCWG aspires to be my One Guiding Light, and seems prepared to impose its rule on the universities and university researchers regardless how any of us feel about that prospect. But my university also has its own ideas regarding what "professional conduct" should look like, as does the disciplinary association in which I received my degrees (psychology), as well as the disciplinary associations of the areas in which my research falls (i.e., psychology, sociology, anthropology, criminology), as well as the people with whom I work (e.g., colleagues of varying disciplinary backgrounds, the people of First Nations and other institutions, such as the university, the federal government, criminal justice agencies, the United Nations). Why does the TCWG believe that its perspective on my ethical being is any more appropriate than those others, and why does it believe it has any more right to impose its views on me than any other?

Regarding this last point, I must admit to feeling somewhat bandied about by various territorial incursions these days. University faculty member/researchers are, in my conception of the role, somewhat independent members of the research community - surely our notions of "academic freedom" are no less than a statement of that fact. But if the TCWG feels it has a right to impose its conceptions of ethics on me, apparently for no better reason than that it has the power to do so, is the TCWG not also saying that "adequate power" is the sole legitimizing criterion that any given entity must meet in order to foist its view of "proper" or "ethical" behaviour on others? Is the TCWG prepared to argue that other institutions, agencies, governments, corporations, or whatever, also have a valid claim to my behaviour depending on the extent to which they contribute funding to the universities, whether or not I subscribe to their views, and whether or not I personally am interested in seeking funding from them? Will MacMillan Bloedel or the Donner Foundation or Merck Frosst soon have a legitimate right, as established by TCWG precedent, to impose an ethical Code on the universities because of the significant amounts of funding they contribute to the university research enterprise? I hope not, and I hope that the TCWG will see that their own choice to open that Pandora box, is not a positive, or ethical, choice.

I would hope that the TCWG would understand that the interests of the Canadian research enterprise, within the context of the universities and the social role we, as an institution, play, is best served by the preservation of the autonomy and academic freedom of those researchers, and, hence - given that their mandate is to enhance rather than oppress the sciences and humanities - they will do their part to preserve that freedom rather than undermine it. As a researcher, I work within institutional contexts, and have the free choice to determine with whom I will work, and under what conditions. I have chosen the university as a place to base my work, and although I do not agree with all the choices my university's administrators make, they are at least accessible to me, and I can initiate debate within my institution when matters of ethics (and so on) concern me. By imposing itself on the universities in a manner that extends beyond my own free choice as to whether I want to seek funding from any of the three granting councils, the TCWG undermines the autonomy that defines the university as a social institution and participant in the broader Canadian research enterprise. For all the reasons I have outlined above, will potentially harm my own ability to do the research that interests me, not for any reasons that have anything to do with "ethics" as I understand them, but because of the TCWG's own myopia regarding the breadth of methodological models that are practised in this country. If the Tri-Councils want to unilaterally impose their will on researchers who seek funding from them, then however myopic I believe that to be, it is the Tri-Councils' right to do so, just as it is my right to avoid them when the granting councils' views of ethics are in conflict with my own. They seek a greater jurisdiction than that, however, and as I will assert here again, the imposition is itself unethical.

We Know What's Best For You

The federal government and its agencies have been in the "we know what's good for you" business for a long time. Nowhere is this more evident than in one of my major research areas - Aboriginal/Indigenous issues - where the federal government and their Indian agents did an amazingly good job of completely devastating Aboriginal communities. I doubt sincerely that this was done solely out of malevolence or an overt desire to commit cultural genocide - even though many individual actions can be easily attributed to greed and self-interest - but because the general attitude of the federal government was "we know what's best for you." Now, 125 years after the first Indian Act, the biggest challenge facing Aboriginal communities is how to overcome all the damage that has been done, some of which was intended, and some of which could never have been anticipated.

The universities are a collective in a similar way. [see footnote 11] We have our beliefs, our structures, and our Elders, and we are similarly vulnerable to the external power of government. The university has involved a decentralized system of authority in which each individual researcher has defined his or her own road to truth - and the notion of academic freedom requires that we accept that - and where each person plays his or her own role in mentoring a new generation of scholars, whose main job is to simultaneously stand on our shoulders while chopping out all our beliefs at the knees. Implementing something as monolithic as the TCWG (1997) draft Code in a manner that is neither myopic, self-serving (to the government) or malevolent, requires far more to be known about the sociology and anthropology of science than the TCWG shows evidence of knowing or having considered.

Living in Glass Houses

If there is a single conclusion I am led to after considering the TCWG's various documents at length, it is that the TCWG knows not what it does, in the sense that it does not understand what the impact of its actions might be. The Tri-Councils deal with a single issue - ethics - without any regard to its impact and connectedness to other structures and dynamics with which it is related, and hence promises to do little more than undermine something that has been working astonishingly well for some time. Given the tens of thousands of research projects conducted in Canada this century, does it not seem a little unusual how few horrible examples exist? How everyone who writes about ethics abuses uses the same examples? And how the TCWG has to go to the United States or back in time three decades in order to find enough examples to identify "a problem" that "requires" their intervention?

By centralizing authority in the manner the TCWG Code does, the TCWG risks doing the same to the universities that they did to aboriginal communities - undermining the authority of the Elders (professors) who currently play so significant a role in mentoring generations of students through their degrees/research, destroying the initiative of researchers that is currently fostered by a culture of academic freedom, and imposing major structural changes whose effects they have not fully considered. Each decision to centralize scholarly decision-making undermines the authority of the research professoriat, replaces it with bureaucratic authority, and pushes toward homogeneity rather than diversity. The idea to create the One Big Code is a classic example of single-issue tampering, in a unilateral manner, that is downright imperialistic/colonial. Surely a code of ethics deserves a better pedigree than that.

At the same time, the TCWG is asking us to import a more governmental (i.e., bureaucratic, hierarchical) model. But does the TCWG note the media attention the government has received over the last decade or two regarding the efforts of research departments to constrain, and often suppress the knowledge gained in consultative research? Or to use financial controls to keep researchers in line or cut them off from funding? Or the current controversy regarding fisheries where government scientists are revealing how they are told in advance what conclusions they will come up with, and where contrary data are suppressed? Society needs at least one place within it where academic freedom is operative, where strategic constraints do not apply, where criticism is valued, and where the operating zeitgeist affords us the opportunity to tell people our would-be keepers to at least clean their own house before they start renovating ours.

Thanks, But No Thanks

I said at the outset of this brief that, whether one agrees with the TCWG draft Code or not, and regardless whether the 1997 draft is adopted or not, its creation, along with the reaction of the Canadian research community to it, are events of historic import. Surely it has been a long time since a single event has so galvanized the Canadian university research community, and especially those in the social sciences and humanities, in its solidarity of opposition to the wholesale adoption of the Code, and its imposition on the universities. I do not know a single person who believes that the imposition of the Code on the universities would be a good thing. Research participants (other than perhaps those involved in human genetic or other bio-medical research) will be no better off; the integrity of the research enterprise will certainly be no greater, and may be less; and the main impacts of the Code would be to create a more monolithic and centralized bureaucracy that needlessly thwarts the research enterprise, rather than facilitating it.

Perhaps most disconcerting to me is that various emanations from the granting councils, and particularly the SSHRC (perhaps because it is the one most relevant to me, and, hence, with which I'm most familiar), make me wonder whether my critique above - which assumes that academic freedom is a value to be cherished, and that it is the independent and diverse spirit of the research community that is the engine of the research enterprise - is being heard by people who have those same concerns. Although time limitations preclude my developing this theme at any length here, my general observation is that the councils see themselves as engaging a transition from something of a granting brokerage, where their job was solely to ensure quality control in the dispersion of granting funds to the academic research community, to more of a proactive managerial role, where they see the research community as a resource to be harnessed in the nation's service.

The new president of the SSHRC, for example, is quoted in a recent Perspectives entry, as stating that "SSHRC is open for business," and that the SSHRC he envisions is one in which the research of the nation's academics is guided to an ever-greater degree by targeted objectives and networked partnerships on projects of demonstrable relevance to those objectives. I reject that view of the university research community as much as I reject the TCWG's Code of Ethics. [see footnote 12] However, if one understands the granting councils' aspirations to be of that sort, then the role of the Code becomes clear: it is a managerially useful document in which "ethics" are the vehicle for maintaining researcher discipline. Seen in that light, the "accident" of the TCWG Code that would make critical research more cumbersome, while mainstream research would become that much more viable, is nothing more than a statement of the granting councils' lack of desire to rock the boat, and, instead, to promote research that is supportive of the structures that lead them to be in power in the first place. So narrow a view of the research enterprise should be beneath the dignity of the research councils, and is a black mark in relation to their hallowed tradition in this country.

I am completing this brief to the tri-councils at a time when the general tenor of reaction to the TCWG's 1997 draft Code is evident - it has been rejected as resoundingly as the 1996 draft - and where the new president of the SSHRC, Dr. Marc Renaud, has indicated that

… the granting council presidents will not proceed with the controversial proposed Code of Ethical Conduct for Research Involving Humans in its current form. Rather, it will likely adopt some form of "statement of policy" which will articulate general principles by which the research community will be expected to abide. ...
But totally abandoning new ethics regulations isn't an option because "we'll end up with American-type legislation," Renaud said. So the councils will be looking to approve a less prescriptive "set of guidelines" next spring to outline "general principles, the general criteria according to which ethics boards function. And then, in two or four years, we'll review all of this and maybe then come up with a code." (Perspectives, 1997, Vol.1, No.7)

Dr. Renaud's statement in the final paragraph regarding ethics regulation as the lesser evil to an otherwise inevitable "American-type legislation" is a predictable one. Having spent some time reviewing codes of ethics and the history of their development in the process of preparing my texts on research methods (see Palys, 1992, 1997), I have come to the conclusion that, if I had a dollar for every time some disciplinary association or government agency justified the imposition of its newest policy on researchers by depicting itself as the white knight who does so only to save us from some other, more oppressive option, I would be rich.

Frankly, I would appreciate it much more if the granting councils would stop spending so much of their time, effort, and money trying to "save" us by inventing more and more policy and regulation. Perhaps then they would have the time to argue vociferously for the remarkably enduring integrity of the research enterprise, and the long-term benefit of having a diversified science policy that values and gives a significant place to a minimally regulated academic freedom. The universities have done as well as they have, survived as well as they have, and enjoy the credibility they enjoy, because, as a whole, they serve no particular interest. As soon as the Canadian public can no longer trust that academics are independent researchers with the academic freedom and lack of vested interest that entails - such as, for example, when there is no longer any difference between university research and government research, or between university research and corporate research - then our credibility will have been lost, and there will no longer be any need for the university as a research institution. I would appreciate if the tri-councils would try and avoid that day, rather than rush to embrace it.

In sum, thanks, but no thanks.


1. I would like to thank several of my colleagues - Margaret Jackson, John Lowman, Robert Menzies, and Russel Ogden - for their comments on an earlier draft and related discussions. The views expressed here are solely mine, however, and do not necessarily represent the opinions of either my colleagues or Simon Fraser University. [Return to text]

2. The role of government in the process is unclear, since the TCWG never addresses the point in their reports. However, in a Globe & Mail article entitled "Dingwall pledges tests will include women" (10 August 1996, p.A1), both the Minister and Deputy Minister of Health are quoted as saying that the Medical Research Council had been "told" by the Minister that they should address the problem of the under-representation of women in drug trial research. The TCWG is also alluded to as a venue for achieving change in that area. And, sure enough, the 1997 TCWG draft includes such a policy. The appearance of conflict of interest here, and the apparent use of ethics policy to achieve health policy goals, however legitimate those goals may be, further undermines the integrity of the process, and of the ethics policy the TCWG is ostensibly trying to create. [Return to text]

3. The submission was entitled The Ethics of Ethics. The tri-councils will have a copy on file. Other readers of this document can download a copy from my web page at http://www.sfu.ca/~palys/codecomm.htm. [Return to text]

4. The only (and reasonable) constraints on that freedom are where the remarks expressed are libelous or incite hatred. That is far less than the TCWG would impose on researchers. [Return to text]

5. The TCWG is quite forthright about those roots in its citation of the Belmont Report, published by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, and Beauchamp & Childress's (1994) Principles of Biomedical Ethics. It is also evident in so far as 90% of the examples cited in the report discuss biomedical scenarios. Other areas of research that would seem to come under the TCWG's assertion of jurisdiction - such as the text- and performance-based research of the humanities - is never referred to by example (e.g., see ACCUTE's response to the 1997 draft Code). [Return to text]

6. If these examples seem ludicrous and far-fetched, one need go no further than the TCWG's section on collectivities. The notion of collective rights is borne from the rights of the oppressed - particularly minorities who assert their rights as peoples living amidst powerful nation states. And while the TCWG only cites such situations among their examples, it seems ironic that the definitions of "collectivities" the TCWG offers can be used by governments and corporations - hardly the oppressed - to usurp the language of collective rights for themselves. [Return to text]

7. The TCWG is depicted as the final authority on numerous issues, e.g., if any doubt about whether a project requires ethical review, ask your REB; on judgments of project importance, ask your REB; on questions of ethical probity, ask your REB. There is little or no room for the conscience of the researcher. [Return to text]

8. It is always an uncertain business relying on press coverage, since one never knows to what extent what one reads is more a reflection of the journalist than the interviewee. Although there may have been much more that Dr. McDonald said that was not included in the article, I will assume the material that did appear was supplied either by Dr. McDonald in the interview, or through a TCWG press release. This seems a reasonably safe assumption, given that the general theme of the article (i.e., there have been research abuses in the past that should be prevented) is quite consistent with the preambular material in the TCWG's reports, and that the article includes information I doubt the average member of the public, or the average journalist, would know without being informed of it by (in this instance) Dr. McDonald or the TCWG. [Return to text]

9. I actually doubt whether this is the case, but, in any event, am bothered by the innuendo that we care more for animals than we do for humans. This is obviously not the case. Perhaps the reason there is so much in the way of guidelines regarding animals is that they epitomize the vulnerable research subject: captive, unable to consent, exploitable, and with no guardians to act as advocates. [Return to text]

10. Of course, not all Dr. McDonald's examples are even from the university. The Tuskogee syphilitic study was done by the US Department of Health, and the CIA was the main one responsible for promoting the McGill LSD/brainwashing studies. Indeed, given all the articles we see in the media lately about federal government intervention in scientific communities (e.g., fisheries) in an effort to suppress data and selectively distort research findings, the federal government might be better advised to get its own house in order first. [Return to text]

11. It is not my intention to usurp the language of the oppressed although, in the current context, it is clear that the university can properly be viewed as a collective, and is most assuredly vulnerable. This points to yet another weakness on the part of the TCWG's notion of "vulnerable" versus "powerful" collectives, i.e., that no collective (or person) is categorically vulnerable or powerful, but that we all (collectively and individually) have some ways, and are involved in some relations, in which we are vulnerable, and others in which we are powerful. [Return to text]

12. I should probably be explicit here that my objection to the attitude of the academy being "harnessed in the nation's service" is not to the notion of "the nation's service," because I believe the diversity of Canadian academe already willingly serves that role, each in his or her own way, but to the idea that it needs to be "harnessed." Nothing is more anathema to the notion of academic freedom than the idea that some centralized authority will decide which are the "appropriate" topics to address (as the SSHRC seems intent on doing), and/or what methods are appropriate to doing so (as the tri-councils seem intent on doing). [Return to text]

From here, you can link to my earlier submission to the TCWG in response to their 1996 draft, entitled The Ethics of Ethics, or return to my Research Papers/Articles page, which lists various papers on ethics issues and other topics. In any event, thanks for your interest in my work. If you would like to e-mail me about this or any other papers, send a note to palys@sfu.ca, or click to an automatic e-mail form here.