Previous research to consider
To my knowledge, there has only been one recent qualitative study on the roles of members of RECs, by Janssens et al. (2020). This study asked members of a REC in the Netherlands about their roles and responsibilities in the committee, and identified five roles: protector, facilitator, educator, advisor and assessor. According to the authors, these roles may overlap in practice, but are helpful to keep in mind for analysis and to prevent single roles from being too dominant in the discussion. The results of my study show that at least four of the five roles can be found in the participants’ self-assessment: being primarily responsible for the patients’ information and informed consent puts them in the role of protector, not being stricter or even less strict than other members puts them in the role of facilitator, highlighting their specific competencies puts them in the role of advisor and the whole description of the process of reviewing studies, bringing their respective knowledge together and striving for consensus puts them in the role of assessor. Only the role of educator wasn’t visible in the interviews, because the focus was more on the dialogue within the committee and not so much on the one with the researcher. All in all, the interviews also confirm the result of the previous study, according to which the roles overlap and can’t be assigned to individual members.
Strengths and limitations of the present study
Talking to philosophers about philosophy as a philosopher has certain qualities to it that can be seen both as strengths and as weaknesses. Unlike non-expert participants in interview studies, they cannot only talk about their experience but possibly have also reflected on them or are able to reflect on them at a high level. Unlike with other expert interviews, here the interviewer was also a philosopher and therefore may be seen by the participants more as a conversational partner on equal ground. This has the potential both to uplift the quality of the data, providing a high amount of insight into the interviewees’ perception, but also to distort facts about the processes due to too many layers of analysis. Additionally, the study’s aim of finding out how important philosophers are in research ethics committees certainly has the potential to cause defensiveness in the interviewees, triggered by feeling like the worth of their work is being questioned. This, again, could have distorted their answers. But another advantage of the interviewer also being a philosopher is that this might have given the interviews more of the character of self-reflection than of an inquiry from outside.
As with all qualitative research, the results can only show what is and not what isn’t. Nothing can be said about things that the participants did not mention. So even when the interviewees are unanimous in their answers this doesn’t mean that their answer is the correct or the only possible answer. The number of participants in the study was rather small, in part due to the fact that there aren’t many philosophers in research ethics committees, but in part also because there was no clear way to find all potential participants, especially former members of committees. It also lies in the nature of qualitative research that the results are strongly dependent on the researcher and can be distorted by biases both in the questions asked and in the interpretation of the answers. Even though a lot of care has gone into identifying and removing any built-in biases, the results are undoubtedly shaped by subjectivity to a certain extent.
So the data from the interviews cannot simply be generalised. But what it can do is prompt new questions and point towards directions where there is more theoretical work to be done. In my view it particularly opens up three questions or themes which I would like to elaborate on briefly. The first one is the question of ethics expertise. Are the interviewees really not experts or is there perhaps a more fruitful way of understanding the term? The second one is the question of where the skillset they share belongs. Does it belong to philosophy or to medical ethics, and what is the difference between the two? The third part of the discussion touches on the relationship between ethics and law in the context of RECs.
The interviewees didn’t see themselves as ethics experts, but there also seemed to be a certain concept of ethics expertise underlying this assessment, namely one according to which an ethics expert is someone who knows what’s right or wrong, at least better than non-experts. Yet in practice the interviewees were all called into the committee on account of their knowledge or experience in the field of ethics in one way or another. This suggests that whoever called them into the committee might have attributed at least something similar to expertise to them, and also that third parties (other members of the committee or society in general) might have expectations that revolve around some concept of expertise relating to members of a committee who are in the committee on account of their academic knowledge. Furthermore, the interviewees also broadly agreed on the fact that they do have some competencies that they can contribute due to their background. So in order to manage expectations of what a person with a background in ethics can do, it might be helpful to look into alternative, broader concepts of ethics expertise.
Only very few authors have actually argued for the view that philosophers’ ethical judgments are truer or more likely to be true than those of non-philosophers (e.g. Singer 1972; Gordon 2014). Different reasons have been brought forth against the notion of ethics expertise. Some of them are conceptual reasons, like the claim that in order to be an ethics expert one needs to command special knowledge about moral facts, which isn’t possible either because there are no moral facts or because there is no way of knowing them or of knowing whether someone who claims to know them really does so (see for example Cholbi 2007; Iltis and Sheehan 2016). But there are also normative reasons brought forth as to why we shouldn’t assume that there is expertise in ethics. The idea that some people know better than others what is right or wrong, like philosopher kings or queens, is of course one with very problematic implications. David Archard (2011) argues that the idea of ethics expertise in the sense that a few experts decide what’s right and wrong runs counter to the democratic ideal that thrives on people’s capacity to govern themselves. Similarly, there has been discussion whether the idea of ethics experts or the practice of receiving ethics support threatens people’s autonomy (see for example Driver 2006; Rasmussen 2011).
But understanding ethics expertise in this autonomy-threatening way is not a given. There are other, more nuanced and less robust understandings of ethics expertise. I suggest to call the robust kind of expertise moral expertise, because it focuses on a substantial normative answer to a moral question. Assuming that ethics is to be understood as the methodological reflection on morality, ethics expertise, as I understand it, focuses more on the kind of knowledge that helps one come to a justified verdict on moral matters. This would include but might not be limited to the competencies that the interviewees named when asked what they contribute to the committee: hermeneutical skills, argumentative skills, knowledge of debates and principles and the ability to “think outside the box”. This understanding has also been present in the discussion on ethics expertise, but rarely has the distinction been made explicit by giving the two types of expertise different names.
One author who has also made this distinction is Lisa Rasmussen (2011), who developed a concept of ethics expertise for the context of clinical ethics consultation [the equivalent of what I have called health care ethics committee (HCEC)]. She identifies four ways in which ethics experts fare better than laypeople when it comes to making recommendations about moral questions without relying on knowledge about moral facts. According to Rasmussen, clinical ethics consultants are better than laypeople at:
Identifying clearly wrong answers
Reasoning “from a given moral premise to its implications, based on context”
Identifying “the full range of moral values and stakeholders involved in a situation”
Finding creative solutions to dilemmas
This expertise, according to Rasmussen, is based on “knowledge relying on the clinical context […], institutional policy, state and national law, norms of human behaviour […], and implications of moral premises and principles” (Rasmussen 2011).
And in fact, this does sound quite similar to the competencies that the interviewees mentioned as being particularly helpful in RECs: Being able to identify clearly wrong answers (1) and reasoning from a premise to its implications (2) comes with the ability to look for stringency and coherence. The ability to identify “the full range of moral values and stakeholders”(3) is similar to the detection of imbalances and maybe the role as medical layperson and patients’ advocate. Merely the fourth point, “finding creative solutions to dilemmas”, doesn’t correspond to anything the interviewees said. Maybe this is due to the fact that RECs have a smaller scope of decision-making due to their essentially being an administrative institution. There are also other differences between clinical ethics consultation and RECs that might result in different requirements for ethics expertise. First, ethics consultation is focused on the clinical context, while RECs are focused on research. So the knowledge of clinical context, institutional policy and norms both of law and of human behaviour that is required of the ethics expert would have a different focus. While a clinical ethics consultant (CEC) might need knowledge on medical treatment and laws concerning, say, euthanasia, an ethics expert in a REC rather needs knowledge on research methods and laws concerning medical research. Second, clinical ethics consultation is focused on an individual patient, and the aim is to find out their values and preferences, whereas RECs have to decide on and in line with general principles.
These differences, which I could only briefly sketch here, call for a more detailed investigation of what ethics expertise in RECs entails in contrast to clinical ethics consultation. But what seems undeniable to me is that there is some sort of expertise around ethics that is required in RECs, and for lack of a better term I am in favor of calling it ethics expertise, while clearly delineating it from moral expertise.
Medical ethics versus philosophy
Given that there is some need of ethics expertise in RECs, or as it says in the statutes, a person with experience in the field of medical ethics, this raises another set of questions: who qualifies for this job? Which profession is it a part of? And where does the qualification stem from?
The interviewees were all quite unanimous in stating what their skillset included. How and where these skills were best acquired was seen in differing ways. Some of the participants viewed their skills as genuinely philosophical, while others thought of them as applied ethical, medical ethical, or research ethical. There was also dissent about whether or not applied ethical skills are also philosophical skills. Thus, while there seems to be some level of consensus on the kind of skills that ethics expertise entails, what is not clear is how and where to acquire this skillset and what profession it belongs to. However, it would seem to be vital to know this if one wants to reliably meet the need for ethics expertise mentioned above.
There are at least two different levels on which a possible explanation can be found—a theoretical one and a practical, or institutional, one. On a theoretical level the interviewees might disagree on the relationship between philosophy and applied ethics.Footnote 4 There is some controversy in the literature as to what role moral theory plays in applied ethics. While some authors view applied ethics as a part of moral philosophy (e.g. LaFollette 2005; Archard and Lippert-Rasmussen 2013), others argue that applied ethics is merely concerned with the application of moral theory to concrete cases (cf. Caplan 1980; Kaminsky 2005). Based on this understanding, applied ethics can be seen as located outside of moral philosophy. But it does seem hard to imagine applied ethics being so separate from philosophy that the ethics part does not derive in some way from philosophy (assuming it also does not derive from theology) (cf. Flynn 2021). Arguably, any theories and principles that are used in medical ethics have their roots in moral philosophy. So, when some interviewees explicitly say that the crucial ethics knowledge in the committee is not philosophical knowledge, while others say of the same kind of knowledge that it is both philosophical and applied ethical, perhaps the disagreement is not exclusively located on the theoretical level. It might also be due to a diverging self-understanding on a practical, or institutional, level.
In fact, it might be necessary to differentiate between at least two academic disciplines called medical ethics, specifying one that is a sub-discipline of philosophy and one that is separate from philosophy. All of the interviewees are philosophers by training, but they work in different institutional settings. Generally, those who thought of their skills as applied ethical rather than as philosophical, or differentiated between the two at all, were the ones whose institutional home (as in workplace) was in medical ethics as opposed to in a philosophy department. So one possible reason why the interviewees have such different views regarding their profession or what discipline their knowledge/skills belong to, might be the differences in the institutional culture of their workplace. The interviews seem to suggest that this line could at least loosely be drawn between medical ethics departments and philosophy departments. This would explain why it is mainly those working in a medical ethics setting who view their knowledge as medical ethical knowledge, whereas those working in a more classical philosophical setting view the same kind of knowledge as philosophical knowledge. Methods and content may be similar and also formed by the shared experience of being a member in a standardised research ethics committee. But whether individuals understand themselves or the skills they are applying as applied ethical or philosophical might depend on the institutional culture of their workplace.Footnote 5 Additionally, the different contexts in which medical ethics discourses take place—academic, clinical, and policy-oriented—might also lead to different understandings of the discipline (cf. Flynn 2021).
Gaining some clarity concerning the shared skills and where best to acquire them might be helpful in order to understand what potential expertise in ethics entails and who might have it and as a result of what training. In order to gain such clarity it might be interesting to conduct further research concerning the institutional culture and the views of both medical ethicists with a philosophical background and those with a medical background.
Ethics and law
The previous paragraph has shown that if some of the philosophers in research ethics committees don’t view their ethical knowledge as philosophical knowledge, it is questionable where the ethics and hence the normativity comes from. Some of them have also claimed that what they do in the committee is mostly apply pre-existing principles and guidelines to concrete cases. Combined with the fact that some also find what they do in the committee to be very similar to what the legal experts do, this raises the question of how the ethical perspective can be meaningfully set apart from the legal perspective in the context of RECs.
Putting the question into more concrete terms, one could also ask: Is there an ethical sphere within the legal one? Research ethics committees can in a way also be described as law commissions. Their positive vote is required by law for clinical studies on medication and medical devices,Footnote 6 making their statements administrative acts.Footnote 7 Accordingly, all RECs require at least one person with a degree in law as per their statute. Considering the fact that not all statutes require the committee to have a person with an expertise in ethics, it seems that legal questions have a certain importance in the committee that ethical questions might not have.
Now, when philosophers in research ethics committees say that they are essentially doing the same job, or at least a similar job, as the legal expert, or that they have the same or similar competencies, this prompts the question of where possible differences lie. As we have seen, some interviewees stated that ethical questions are addressed in the committee after the legal questions have been settled (P 1), some say that ethical discussions take place in areas where legal regulations aren’t clear (P 6) and some say that what is done in RECs is mostly the interpretation of legal regulations (P 2). So not much can be said about the relationship, besides that it is very unclear. But the fact that it seems unclear and that the very people involved aren’t seeing eye to eye as to where ethical questions are to be located in relation to legal questions in a committee that is called an “ethics committee” but that is essentially also a law commission, is interesting in itself. In order to bring to shed more light onto this topic it might be interesting to look into it further, for example by conducting more empirical research, systematically analysing the questions that are being discussed in RECs and trying to sort them into ethical and legal questions and see where the two intersect. On a theoretical level, the question that seems most pressing is how ethics and law intersect in the interpretation of law. This, of course, touches on old discussions on legal positivism, but could be fruitful in light of this concrete field of application.