Strict Confidentiality: An Alternative to Pre’s “Limited Confidentiality” Doctrine
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In “Advisory Opinion on Confidentiality, Its Limits and Duties to Others” the Canadian Interagency Advisory Panel on Research Ethics (PRE) articulates a rationale for a priori limitations to research confidentiality, based largely on putative legal duties to violate confidentiality in certain circumstances. We argue that PRE promotes a “Law of the Land” doctrine of research ethics that is but one approach to resolving potential conflicts between law and research ethics. PRE emphasises risks that have never materialized, and ignores jurisprudence on challenges to research confidentiality. When we examine what the courts have actually done with research-based claims of privilege, we find they clearly recognize and affirm researchers’ ethical obligations to maintain strict confidentiality and protect research participants. Ironically, the one exception – where the court ordered that information be disclosed – occurred precisely because the researchers had limited confidentiality. The passive approach PRE espouses leaves vital questions about what protecting confidentiality to the “full extent possible in law” means, and leaves the impression that academics should accept whatever limitations the courts may impose without participating in the courtroom dialogue determining where those limits are drawn. In contrast, we believe confidentiality is so important to the protection of research participants and the integrity of the research enterprise that it is worth fighting for. The “ethics-first” doctrine of “strict confidentiality” we describe adheres to the social sciences’ and humanities’ longstanding commitment to research confidentiality and duty to the research participant.
KeywordsStrict confidentiality Limited confidentiality doctrine Canadian research ethics Interagency Advisory Panel on Research Ethics
Thanks to Russel Ogden for his comments on this paper.
- Blomley, N., & Davis, S. (1998). Russel Ogden Decision Review. Report prepared for the President of Simon Fraser University. Online at <http://www.sfu.ca/~palys/ogden.htm>. Accessed 1 February 2007.
- Clayman, B. (1997). The law of the land. Simon Fraser News 5, October 30th.Google Scholar
- Cohen, S. (1985). Visions of social control. Cambridge: Polity Press.Google Scholar
- Edwards, S. (2005). Freed reporter talks to CIA leak inquiry, Vancouver Sun, A15, October 1st.Google Scholar
- Herbert, P. B. (2002). The duty to warn: A reconsideration and critique. Journal of the American Academy of Psychiatry Law, 30, 417–424.Google Scholar
- Jackson, M., & MacCrimmon, M. (1999). Research confidentiality and academic privilege: A legal opinion. Legal opinion commissioned by Simon Fraser University (SFU) Research Ethics Policy Revision Task Force, online: <http://www.sfu.ca/~palys/JackMacOpinion.pdf>. Accessed: 1 February 2007.
- Jones, D., & Interagency Panel on Research Ethics. (2007). Interface of law and ethics in Canadian research ethics standards: An advisory opinion on confidentiality, its limits, and duties to others. McGill Health Law Publication, 1, 101–105 <http://mhlp.mcgill.ca/pdfs/jones-pre.pdf> Accessed 20 August 2007.Google Scholar
- Lowman, J., & Palys, T. S. (2000). Ethics and institutional conflict of interest: The research confidentiality controversy at Simon Fraser University. Sociological Practice (A Journal of Clinical and Applied Sociology), 2, 245–255.Google Scholar
- Lowman, J., & Palys, T. S. (2001b). Limited confidentiality, academic freedom, and matters of conscience: Where does CPA stand? Canadian Journal of Criminology, 43, 497–508.Google Scholar
- Medical Research Council (now the Canadian Institutes of Health Research), Natural Sciences and Engineering Research Council of Canada, Social Sciences and Humanities Research Council of Canada (1998). Tri-council policy statement: Ethical conduct for research involving humans (with 2000, 2002 and 2005 amendments). Retrieved 13 November 2006, from http://www.pre.ethics.gc.ca/english/policystatement/policystatement.cfm.
- Norway, National Committee for Research Ethics in the Social Science and Humanities. (2001). Guidelines for Research Ethics in the Social Sciences, Law and Humanities. Online: http://www.etikkom.no/English/NESH/Publications/NESHguide.
- Ogloff, J. (1996). New threats to confidentiality safeguards. Psynopsis online: Canadian Psychological Association http://www.cpa.ca/Psynopsis/safeguar.html.
- Palys, T. S., & Lowman, J. (2000). Ethical and legal strategies for protecting confidential research information. Canadian Journal of Law and Society, 15, 39–80.Google Scholar
- Palys, T. S., & Lowman, J. (2001). Social research with eyes wide shut: The limited confidentiality dilemma. Canadian Journal of Criminology, 43, 255–267.Google Scholar
- Popkin, S. (2001). Interview with Samuel Popkin. In B. Schultz & R. Schultz (Eds.), The price of dissent: Testimonies to political repression in America (pp. 339–347). Berkeley: University of California Press.Google Scholar
- Social Sciences and Humanities Research Ethics Special Working Committee (SSHWC). (2005). Reconsidering Privacy and Confidentiality in the TCPS: A Discussion Paper. Prepared for PRE for a national consultation. [Online at http://pre.ethics.gc.ca/english/pdf/sshwc_consultation_eng.pdf].
- Wigmore, J. H. (1905). A treatise on the system of evidence in trials at common law, including the statutes and judicial decisions of all jurisdictions of the United States, England, and Canada. Boston: Little, Brown and Company.Google Scholar
- Zinger, I., Wichmann, C., & Andrews, D. A. (2001a). The effects of administrative segregation. Canadian Journal of Criminology, 43, 47–83.Google Scholar
- Zinger, I., Wichmann, C., & Gendreau, P. (2001b). Legal and ethical obligations in social research: The limited confidentiality requirement. Canadian Journal of Criminology, 43, 269–274.Google Scholar
- Atlantic Sugar, Ltd., v. U.S., 85 Cust. Ct. 128 .Google Scholar
- Garner v. Stone . Georgia State Court (DeKalb County). No. 97A-30250-1.Google Scholar
- M.(A.) v. Ryan  1 S.C.R. 157.Google Scholar
- Ogden v. Simon Fraser University B.C.J. 2288 Burnaby Registry No. 26780. Retrieved 1 February 2007 from http://www.sfu.ca/~palys/steinbrg.htm.
- Slavutych v. Baker,  1 S.C.R. 254.Google Scholar
- Smith v. Jones  1 SCR 455.Google Scholar
- Tarasoff v. Regents of California [Cal. 1976] 551 P.2d 334.Google Scholar