October 30, 1997 * Vol . 10, No. 5


The law of the land

No university policy can, or should, empower researchers to disobey the law, replies SFU's vice-president, research

by Bruce Clayman

(Note: this column responds to another Opinion column in the same issue, by former grad student Russel Ogden. See: An insult to free inquiry)

MR. OGDEN RAISES CONCERNS about proposed revisions to SFU policy R20.01 and the procedural changes that were implemented following his being called to testify. There has been no change to policy R20.01.

The university research ethics review committee approved a large number of proposed changes to the policy in 1995. At the time, the draft policy was circulated to all employee and student groups for comment from interested parties. No comment was received. However, the revisions were withheld from further consideration and approval, pending the completion of a process initiated by the three federal granting councils to establish a uniform code of conduct for research involving humans. This process is still underway.

Once the councils decide on the adoption of some version of the code of conduct -- expected early in 1998 -- the ethics committee will resume its consideration of changes to R20.01 in light of the requirements of the new code. There will be full consultation with members of the university community prior to any recommendations to the board of governors on changes to the policy.

Following Mr. Ogden's being called to testify, the university research ethics review committee made two changes to the forms comprising the 'Request for ethical approval of research.' These were:

a) Addition of a new item on a checklist asking: "Does information to be obtained from subjects include information on activities that are or may be in violation of criminal or civil law?"

b) Addition of a sentence to the template for the subject consent form informing the researcher, if the above question is answered in the affirmative, that: "...you must either inform your subjects verbally of the following or add the following paragraph, or some appropriate variant to the consent form: Any information that is obtained during this study will be kept confidential to the full extent permitted by law. Knowledge of your identity is not required. You will not be required to write your name or any other identifying information on the research materials. Materials will be held in a secure location and will be destroyed after the completion of the study. However, it is possible that, as a result of legal action, the researcher may be required to divulge information obtained in the course of this research to a court or other legal body."

Mr. Ogden has interpreted these additions as a change in policy through which the SFU research ethics policy is subordinated to law. I do not view them as changes in policy. Point a) is a procedural device designed to alert the committee explicitly to the particular situation. Point b) provides suggested wording to be used to alert potential subjects about a risk to which they would expose themselves -- under Canadian law -- if they agree to participate in the research.

It was the belief of the committee that, since we live in a society governed by laws, enacted through democratic means, we are obligated to obey those laws or be prepared to suffer the consequences of violating them. It was also the opinion of the committee that researchers may not be prepared or able to bear the legal consequences of offering participants protection beyond that sanctioned by law. In any event, the university itself could not be placed in the situation of requiring one of its employees or students to refuse to comply with lawful process.

I quote a committee member, upon considering this issue: "As a public institution, it would be morally and ethically wrong to assume that our research activities are above the law of the land." Hence, the warnings to researchers and to potential subjects of these limits.

Sometimes individuals choose to violate laws or policies as a means of changing what they consider to be bad laws or policies. In my experience, they are usually prepared to deal themselves with the consequences of such violations. In some cases, I personally have agreed with their positions and have supported them morally and financially. However, as noted above, I believe it would be irresponsible for the university to promote through its policies a position that encouraged or required our researchers to operate in opposition to law. Individuals may make that choice for themselves -- and must then be prepared to take responsibility for their actions.

The ethics committee will meet in late November to hear arguments from some concerned faculty members that the changed wording be removed or amended. It will also consider similar points raised by Mr. Ogden in this issue of Simon Fraser News. The committee will then be free to take whatever action it finds appropriate.

Bruce Clayman is SFU's vice-president, research.

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