Content area
Full Text
(ProQuest: ... denotes formulae and/or non-US-ASCII text omitted; see image)
Articles
*. The authors thank the editor and two anonymous reviewers for their thoughtful comments on an earlier draft.
A First Legal Challenge to Research Confidentiality
The previously theoretical threat of authorities in Canada using legal mechanisms to seek disclosures of confidential research information became real in 1994. It arose in the context of an inquest the Vancouver Coroner was conducting into "the death of the unknown female." He initiated the inquest because of an article that had appeared in the Vancouver Province newspaper describing the assisted suicide of an unnamed woman with AIDS.1The article described how a sympathetic doctor had "prescribed enough Seconal to kill half of BC," and how a friend of the woman oversaw and assisted in her death at her request.
The inquest marked the first time in Canada a researcher was subpoenaed and asked to divulge information the researcher had promised to keep confidential. The researcher was Russel Ogden, a former graduate student in Criminology at Simon Fraser University whose Master's thesis included interviews with individuals who had participated in assisted suicides of persons with HIV/AIDS. Given the lack of both a body and the name of the deceased, the Coroner wondered whether Ogden might know the names of the two individuals who assisted in the death of the unknown female, and subpoenaed him to ask that question under oath. Ultimately, the case would raise important questions about the relationship between ethics and law, and of the ethical obligations that surround the relationship between research participants, researchers, and university administrations.2
Despite being effectively abandoned by his university,3Ogden attended the inquest and responded to the Coroner's questions regarding his general research findings and knowledge of the literature. However, he refused to name either of the persons involved in the death on the basis of his ethical promise of confidentiality, at which point he was threatened with a charge of contempt. In the absence of any statute-based privilege in Canada for the researcher-participant relationship,4Ogden argued that a public interest privilege for the researcher-participant relationship should be recognized in this instance. He did so by invoking the Wigmore criteria, a common law test devised by former...