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Complainant anonymity in misconduct proceedings depends on the forum0

 

Prof. Colin Thomson AM, Senior Consultant, AHRECS

This news item, while identifying the fact that the decision relates to court proceedings and not to university processes, leaves out some informative facts.

Two members of the La Trobe academic staff lodged complaints about bullying by Professor Keyzer, whom the university suspended.  In turn, Professor Keyzer commenced proceedings against the university in the Federal Court to challenge the way it had handled the complaint. The complainants were not parties in these proceedings.  However, they sought to intervene in the case (Keyzer v La Trobe University [2019] FCA 646) to request that the court order that their names not be published.  They were represented at the hearing but both the university and Professor Keyzer were not.

The court needed to decide whether to allow the complainants to intervene in the case and, if they were allowed, whether there was a case to suppress their names in the court hearing and record.  The court allowed them to intervene but did not order suppression of their names.

The question of suppression of the complainants’ names raised, and was ultimately decided on, the fundamental difference between proceedings in institutional investigations and those in superior courts.  That difference is that publicity of court proceedings is seen to be central to the administration of justice in Australia, and characteristic of the English common law tradition that informs Australian court proceedings.

In concluding his comprehensive judgement, that contains a thorough account of the open justice principle at stake and the exceptions that have been permitted, Anastassiou J said:

I echo the sympathy expressed by Mahoney JA for the “great pain” that is often felt by those subjected to publicity surrounding court proceedings. However, the power conferred by s 37AF is constrained by the grounds under s 37AG and by the overlay of priority to be given to the public interest served by open justice pursuant to s 37AE. In my view, s 37AG(1)(a) makes clear that the public interest served by open justice may only be qualified where it is necessary in the strictest sense to prevent prejudice to the proper administration of justice. The legitimate personal interest of the interveners in maintaining their privacy in connection with the complaints process is not sufficient to conclude that the protection of their interests is necessary to prevent prejudice to the administration of justice.

The following is the text of sections referred to:

37AE  Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

37AF  Power to make orders

(1)  The Court may, by making a suppression order or non-publication order, on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

    • information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b) information that relates to a proceeding before the Court and is:

(i)   information that comprises evidence or information about evidence; or

(ii)   information obtained by the process of discovery; or

(iii)   information produced under a subpoena; or

(iv)   information lodged with or filed in the Court.

(2)  The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

37AG  Grounds for making an order

(1)  The Court may make a suppression order or non-publication order, on one or more of the following grounds:

(a)  the order is necessary to prevent prejudice to the proper administration of justice;

(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)  the order is necessary to protect the safety of any person;

(d)  the order is necessary to avoid causing undue distress or embarrassment to  a party  to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Concluding observation

Within the scope of a university’s own investigation or disciplinary procedures, the assurance of confidentiality in internal procedures and policies can be relied upon. However, when proceedings in relation to staff misconduct are brought in an Australian superior court, such as the Federal Court or a State Supreme Court, the priorities among principles changes. In those courts, the principle of preserving the “proper administration of justice” is fundamental and has priority over the principles that governed the conduct of institutional proceedings. In such courts, the grounds on which exceptions can be made to that principle, such as orders that suppress the name of a person, as this case illustrates, are few.

This post may be cited as:
Thomson, C. (24  May 2019) Complainant anonymity in misconduct proceedings depends on the forum. Research Ethics Monthly. Retrieved from: https://ahrecs.com/research-integrity/complainant-anonymity-in-misconduct-proceedings-depends-on-the-forum

The Ethics of Evaluation Research0

 

Evaluation research is used to assess the value of such things as services, interventions, and policies. The term ‘evaluation research’ makes it seem homogeneous but in fact evaluation research draws on a range of theoretical perspectives and a wide variety of quantitative and qualitative methods. However, there are three things evaluation research usually does that set it apart from other kinds of research. It:

  1. asks what is working well and where and how improvements could be made;
  2. involves stakeholders; and
  3. offers practical recommendations for action.

The American Evaluation Association (AEA), with members from over 60 countries, has five ‘guiding principles’ which ‘reflect the core values of the AEA’ (2018):

Systematic inquiry: evaluators conduct data-based inquiries that are thorough, methodical, and contextually relevant.

Competence: evaluators provide skilled professional services to stakeholders.

Integrity: evaluators behave with honesty and transparency in order to ensure the integrity of the evaluation.

Respect for people: evaluators honour the dignity, well-being, and self-worth of individuals and acknowledge the influence of culture within and across groups.

Common good and equity: evaluators strive to contribute to the common good and advancement of an equitable and just society.

The question of how research ethics review processes should engage with evaluation research has not yet been definitively decided in many research institutions in Australia and New Zealand. Helen Kara’s article alerts us to the degree to which evaluation researchers encounters novel ethical issues. We shall explore some of the possible institutional approaches in a forthcoming Patreon resource.

This is unusual in being thorough – there is much more explanation in the document – and up to date. The Australasian Evaluation Society (AES) has Guidelines for the Ethical Conduct of Evaluations which were last revised in 2013. This is a much more discursive document – 13 pages to the AEA’s four – which offers guidance to evaluation commissioners as well as evaluation researchers. The AES guidelines also refer to and include Indigenous ethical principles and priorities. In particular, reciprocity is highlighted as a specific principle to be followed. This is another difference from the AEA document in which Indigenous evaluation and evaluators are not mentioned.
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The United Nations Evaluation Group also specifies evaluation principles in its ethical guidelines (2008) but they are 10 years older than the AEA’s. Beyond these, there are few codes of ethics, or equivalent, readily available from national and international evaluation bodies. Also, evaluation research rarely comes within the purview of human research ethics committees unless it’s being conducted within a university or a health service. And books on evaluation research rarely mention ethics.
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Recent research has shown that a proportion of evaluation researchers will assert that ethics does not apply to evaluation and that they have never encountered ethical difficulties in their work (Morris, 2015, p.32; Williams, 2016, p.545). This seems very odd to me, as I have been doing evaluation research for the last 20 years and I have encountered ethical difficulties in every project. It also seems worrying as I wonder whether the next generation of evaluation researchers are learning to believe that they do not need to think about ethics.
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In my recent book, Research Ethics in the Real World (2018), I demonstrated that ethical issues exist at all stages of the research process, from the initial idea for a research question up to and including aftercare. This applies to evaluation research just as much as it does to any other kind of research. I also demonstrated that there are some ethical considerations at the macro level for evaluation research, such as funding, stakeholder involvement, and publishing.
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Well-funded organisations or projects can allocate money for evaluation; poorly-funded ones cannot. This means that evaluation research is routinely done where funding is available rather than where evaluation is most needed. In the United Kingdom, where I am based, we have been undergoing an ideological programme of austerity involving massive cuts to public services over the last nine years. This has come from successive governments that have also prioritised evaluation research, funding expensive national ‘What Works’ centres on themes such as ageing, health, and childhood, right through the austerity years. Yet to the best of my knowledge there has been no evaluation of the impact of any service closure. This seems short-sighted at best – though it does illustrate my point that evaluation happens where money is being spent. Also, an explicit purpose of evaluation research is often to provide evidence to use in future funding negotiations, which means that results are effectively expected to be positive. This means that pressures associated with funding can introduce bias into evaluation research right from the start. Combine this with an evaluator who needs to be paid for their work in order to pay their own bills, and you have a situation that is well on its way to being a money-fuelled toxic mess.
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Involving stakeholders is a key principle of evaluation research. The AEA define ‘stakeholders’ as ‘individuals, groups, or organizations served by, or with a legitimate interest in, an evaluation including those who might be affected by an evaluation’ and suggest that evaluators should communicate with stakeholders about all aspects of the evaluation (2018). Again, here, the use of a single word implies homogeneity when in fact evaluation stakeholders may range from Government ministers to some of the most marginalised people in society. This can make involving them difficult: some will be too busy to be involved, some will be impossible to find, and some will not want to be involved. Which leaves evaluators caught between an impractical principle and an unprincipled practice. There is some good practice in stakeholder involvement (Cartland, Ruch-Ross and Mason, 2012:171-177), but there is also a great deal of tokenism which is not ethical (Kara, 2018:63). Also, even when all groups of stakeholders are effectively engaged, this can bring new ethical problems. For example, their values and interests may be in conflict which can be challenging to manage, particularly alongside the inevitable power imbalances. Even if stakeholders work well together such that power imbalances are reduced within the evaluation, it is unlikely those reductions will carry over into the wider world.
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Commissioners of evaluation are reluctant to publish reports unless they are overwhelmingly positive. I had an example of this some years ago when I evaluated an innovative pilot project tackling substance misuse. From the start my client said they were keen to publish the evaluation report. I worked with stakeholders to collect and analyse my data and made around 10 recommendations, all but one of which said words to the effect of ‘good job, carry on’. Just one recommendation offered constructive criticism of one aspect of the project and made suggestions for improvement. My client asked me to remove that recommendation; I thought about it carefully but in the end refused because it was fully supported by the evaluation data. We had two more meetings about it and in the end, my client decided that they would not publish the report. This was unfortunate because others could have learned from the evaluation findings and methods, and because failure to publish increases the risk of work being duplicated which results in public funds being wasted. Sadly, as a commissioned researcher, I had signed away my intellectual property so it was out of my hands. Everyone involved in evaluation research can tell these kinds of tales. However, it is too simplistic to suggest that publication should always be a requirement. In some cases, the publication could be harmful, such as when a critical evaluation might lead to the economy of service closure, to the detriment of service users and staff, rather than to more resource-intensive improvements in policy and practice. But overall, unless there is a good reason to withhold a report, the publication is the ethical route.
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As the AEA principles suggest, evaluation researchers are in a good position to help increase social justice by influencing evaluation stakeholders to become more ethical. I would argue that there are several compelling reasons, outlined above, why all evaluation researchers should learn to think and act ethically.
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References

American Evaluation Association (2018) Guiding Principles. Washington, DC: American Evaluation Association.

Australasian Evaluation Society (2013) Guidelines for the Ethical Conduct of Evaluations. www.aes.asn.au

Cartland, J., Ruch-Ross, H. and Mason, M. (2012) Engaging community researchers in evaluation: looking at the experiences of community partners in school-based projects in the US. In Goodson, L. and Phillimore, J. (eds) Community Research for Participation: From Theory to Method, pp 169-184. Bristol, UK: Policy Press.

Kara, H. (2018) Research Ethics in the Real World: Euro-Western and Indigenous Perspectives. Bristol, UK: Policy Press.

Morris, M. (2015) Research on evaluation ethics: reflections and an agenda. In Brandon, P. (ed) Research on evaluation: new directions for evaluation, 31–42. Hoboken, NJ: Wiley.

United Nations Evaluation Group (2008) UNEG Ethical Guidelines for Evaluation. http://www.unevaluation.org/document/detail/102

Williams, L. (2016) Ethics in international development evaluation and research: what is the problem, why does it matter and what can we do about it? Journal of Development Effectiveness 8(4) 535–52. DOI: 10.1080/19439342.2016.1244700.
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Recommended reading

Morris, M. (ed) (2008) Evaluation Ethics for Best Practice: Cases and Commentaries. New York, NY: The Guilford Press.

Donaldson, S. and Picciotto, R. (eds) (2016) Evaluation for an Equitable Society. Charlotte, NC: Information Age Publishing, Inc.

Contributor
Helen Kara, Director, We Research It Ltd | profilehelen@weresearchit.co.uk

This post may be cited as:
Kara, H. (26 January 2019) The Ethics of Evaluation Research. Research Ethics Monthly. Retrieved from: https://ahrecs.com/human-research-ethics/the-ethics-of-evaluation-research

The value of respect in human research ethics: a conceptual analysis and a practical guide0

 

Pieper, I J and Thomson CJH The value of respect in human research ethics: a conceptual analysis and a practical guide Monash Bioeth. Rev. (2014) 32:232–253

A Series on the Four Principles of the Australian National Statement on Ethics Conduct in Human Research

In this issues of the Research Ethics Monthly, Ian Pieper and Colin Thomson continue their series of short summaries of each of their four co-authored articles on the principles that underpin the Australian National Statement, namely, research merit and integrity, justice, beneficence and respect.

The articles were originally published in the Monash Bioethics Review and remain available to subscription holders to that journal. The publisher, Springer, has generously agreed to place each of the four articles on Free Access for one month after the corresponding short summary is published in the Research Ethics Monthly. Last month they revisited their paper entitledBeneficence as a Principle in Human Research.  This month they revisit the paper exploring the principle of respect for humans in the context of human research. The full paper can be found here.

Respect for human beings is an essential component of human research ethics.  It was emphasised in the Nuremberg code and has been continually recognised in all authoritative international and national guidelines since then.

Although primarily reflected in requirements for consent, the central concept is respect for personal autonomy, that is, for the capacity of individuals to be able to put their principles and values into practice. Sometimes the concept of dignity is added, recognising respect for a person’s ability to live in accordance with their desires and values and requiring more than a focus merely on consent.

Individual autonomy has both a volitional component, requiring a decision to be voluntary and not made under compulsion, threats or coercion, and a cognitive component requiring a decisionmaker to have both the capacity and sufficient information to make a decision.  It is important that all stakeholders involved in assessing consent in human research understand these foundational elements of ethically sound consent.

 

This paper outlines and discusses the guidance provided within the National Statement around what is sufficient information and how that should be disclosed, the need for adequate understanding, the assessment of capacity and the requirement of voluntariness including the relevance to decision-makers of relationships with others. The discussion of capacity includes consideration of circumstances involving children, people dependent on medical care or who may have cognitive impairments.

The requirement of voluntary choice and possible impacts from coercion, inducement, dependency, and vulnerability are examined.   In this context, the paper offers a reminder that respect requires more than a focus on consent.  It explores circumstances where a limited disclosure or waiver of the requirement for consent can be granted in order to facilitate important research in ways that are ethically justified.

Ian and Colin have produced an activity sheet to accompany this post. It can be found in the subscribers’ area (https://www.patreon.com/ahrecs). A subscription of only USD15/month (approx AUD21/month) provides access to a growing library of activity items, reflections on papers and news, and other resource items. At least two items are added to the library every month.  These are shared on a creative commons basis, so you are free to use them internally without otherwise engaging AHRECS. These items would ordinarily cost more than AUD500. So becoming an AHRECS patron not only helps AHRECS stay a constructive voice for change it’s a way to get access some terrific items for a great price.

Email gary.allen@ahrecs.com for further information.

Contributors:
Ian Pieper, AHRECS Consultant, Ian’s AHRECS profile
Colin Thomson AM, AHRECS Senior Consultant, colin.thomson@ahrecs.com | Colin’s AHRECS profile

This post may be cited as:
Pieper, I & Thomson C. (25  October 2018) The value of respect in human research ethics: a conceptual analysis and a practical guide. Research Ethics Monthly. Retrieved from: https://ahrecs.com/human-research-ethics/the-value-of-respect-in-human-research-ethics-a-conceptual-analysis-and-a-practical-guide

We invite debate on issues raised by items we publish. However, we will only publish debate about the issues that the items raise and expect that all contributors model ethical and respectful practice.

Release of the National Statement on Ethical Conduct in Human Research 2007 (updated 2018) – With interview0

 

The revised National Statement on Ethical Conduct in Human Research 2007 (updated 2018) was released on 9 July 2018.

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Content of the updated National Statement

The National Statement consists of a series of guidelines made in accordance with the National Health and Medical Research Council Act 1992 and is subject to rolling review. This means that parts of the National Statement are updated as needed, in accordance with strategic planning, or in response to user feedback or national or international developments in research or ethics.

Since 2007, Section 3 of the National Statement has addressed ethical considerations specific to research methods or fields. The 2018 revision provides a new structure for Section 3, based on the elements of a research project (from conception to post-completion). The revised Section 3 begins with a chapter that addresses ethical issues in all research, followed by specialised guidance for research involving human biospecimens, genomics and xenotransplantation.

This approach emphasises that researchers, Human Research Ethics Committees (HRECs) and other users of the National Statement must take account of the principles and major themes in research ethics addressed in Sections 1 and 2 of the document as the foundation of the guidance in Section 3 and then, in turn, consider the guidance provided in Chapter 3.1 as a base for the guidance provided in the other chapters included in this section.

While significant changes have been made to all aspects of the guidance provided in Section 3, we note, in particular, the additional guidance that has been provided in relation to collection, use and management of data and information and to management of the findings or results arising from genomic research.

As part of this update, changes have also been made to Chapters 5.1, 5.2 and 5.5 in Section 5, the Glossary and the Index as a consequence of the revisions to Section 3.

Revisions to the National Statement were informed by working committees and through public consultation in accordance with requirements of the National Health and Medical Research Council Act 1992.

Currency and effective date

All users of the National Statement, including HRECs, research offices and researchers are expected to ensure that the current version of the National Statement is being used in developing research proposals, making submissions for ethics review and undertaking ethics review. However, as a consequence of the scope of the revisions to Section 3, we expect that users of the National Statement will gradually integrate these revisions into their proposals, submissions and review over the period from July to December 2018, with full implementation expected by 1 January 2019.

This timeline is intended to give researchers and HRECs an opportunity to familiarise themselves with the new guidance prior to the revocation of the version of the National Statement updated, most recently, in 2015. To facilitate this transition, both the current version of the National Statement and the updated version are available on the NHMRC website at http://nhmrc.gov.au/guidelines/publications/e72.

Use of the National Statement is also linked to the Human Research Ethics Application (HREA), released in December 2016 to replace the National Ethics Application Form.

To coincide with the release of the revised National Statement, questions in the HREA will require revision and users of the HREA will be advised when the revised HREA is online.

Institutions and HRECs are encouraged to allow a transition period for researchers while the revisions to the HREA take effect. The provision of a transition period, how it will be managed and its timeframe are at the discretion of individual Institutions/HRECs.

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Context

Australia’s research integrity framework is underpinned by three national standards developed by NHMRC and its co-authors, the Australian Research Council (ARC) and Universities Australia (UA). Together these three standards provide guidance on responsible and ethical research conduct for both humans and animals.

The overarching document is the Australian Code for the Responsible Conduct of Research, 2018. The Code is the leading reference for researchers and institutions across all disciplines about the expectations for responsible research conduct and the handling of investigations into research misconduct. After 10 years in operation, the Code has been reviewed and the 2018 edition was released in June 2018. The other two documents are the National Statement and the Australian code for the care and use of animals for scientific purposes (also endorsed by CSIRO).


INTERVIEW

AHRECS (While we know it predated the recent work on s3) What drove the decision to conduct a rolling review, rather than a review of the entire document?

NHMRC During the revision of the National Statement that was completed in 2007, it was determined that a more flexible, more efficient approach to revising the document would be a good innovation. We wanted to be able to both respond to the needs of users for more limited changes – from a word, to a paragraph, to a single chapter – without having to review the whole document and to be able to integrate or modify the content in response to changes nationally or internationally in research, research ethics or government regulation. Review of the 1999 National Statement took three years from start to finish and we thought we could improve on that timeline! We have found that this approach has, in practice, enabled us to make both minor changes and significant changes to single chapters of the document, as well as to review one of the five sections of the document, as we have just done.

AHRECS Are there downsides to that approach?

NHMRC Yes, there are. The major downside is that the document is ‘of a piece’ and changes to any one part of the document invariably require consideration of changes to the other parts, not just in terms of cross-referencing, but in terms of the content itself. This issue of ‘consequential effect’ manifests itself in the need to ensure consistency in our guidance and to consider the impact on the whole document of more philosophical or conceptual changes that have been introduced by the changes. An example in the most recent revision of Section 3 is that our approach to interventional research in Section 3 had a ‘flow on’ effect to Section 5 in terms of where certain guidance belonged, how that guidance should reflect changes in the clinical research sector since 2007 and how it should reflect other guidance documents (e.g. related to safety reporting) that NHMRC has published in the last 12 months.

AHRECS What were you hoping to accomplish with the changes to section 3 (and Section 5 + the Glossary)? Was it achieved?

NHMRC Principally, we were hoping to facilitate a re-thinking on the part of users (researchers and HRECs, primarily) regarding how they conceptualise and address ethical issues in the design, review and conduct of the research. We began with a decision to abandon the idea of ‘categories’ or ‘types’ of research as the main way to package this guidance and to focus on the reality that most ethics guidance applies to ALL research, thereby requiring ALL researchers to consider it, rather than just going to their specialised chapter of the document and, potentially, ignoring the broader issues. We then settled on the ‘life cycle’ of a research project as the best structure – that is, from conception to post-completion stages of a research project. This also enabled us to see more clearly what was not general guidance and encapsulate that extra guidance in separate, specialised chapters that each required consideration of the general guidance as a prerequisite to fully understanding and implementing the specialised guidance content.

The changes that we made to Section 5 and the Glossary were a direct consequence of the revision of Section 3 and we purposefully did not introduce changes to those parts of the document that were independent of the Section 3 revision, even though it was pretty tempting to do so sometimes.

We do think that we achieved our objectives and we are very satisfied with the results of the review process.

AHRECS If you could say just one thing about the work to date what it be?

NHMRC Review of the National Statement, while challenging, involves very stimulating and satisfying dialogue with lots of researchers, reviewers and other users of the document. We are so committed to it that we are almost immediately taking on the review of Section 4 and Section 5 – so, watch this space!

AHRECS When someone says they would have liked examples to better illustrate the new concepts in the update how do you respond?

NHMRC A weaselly response would be: it depends on which new concepts you are talking about; but, to use one example, a good look at Chapter 3.3: Genomic research and the Decision tree for the management of findings in genomic research and health care that we included (on page 52) to address this complex issue provides just such an attempt to illustrate by example. The main impediment to using examples or case studies to illustrate concepts is the difficulty of deciding which concepts to illustrate and with how many examples, as well as potentially expanding the size of the document exponentially in order to do the examples justice.

AHRECS When will a html version be available online?

At present, the 2007 version of the National Statement (updated May 2015) is available in both PDF and HTML format; whereas the version updated 2018 is only available in PDF. We are not 100% sure when the HTML version of the National Statement (updated 2018) will be available, but we anticipate within the next two to three months. Please also note that the current address (https://beta.nhmrc.gov.au/about-us/publications/national-statement-ethical-conduct-human-research-2007-updated-2018#block-views-block-file-attachments-content-block-1) is only temporary, which means that you’ll need to update your bookmarks/links again when the final version of the new NHMRC website is released in late August or early September.


 

This post may be cited as:
NHMRC (31 July 2018) Release of the National Statement on Ethical Conduct in Human Research 2007 (updated 2018). Research Ethics Monthly. Retrieved from: https://ahrecs.com/human-research-ethics/release-of-the-national-statement-on-ethical-conduct-in-human-research-2007-updated-2018-with-interview

We invite debate on issues raised by items we publish. However, we will only publish debate about the issues that the items raise and expect that all contributors model ethical and respectful practice.

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