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Atkin, B --- "The Law of Research: A Guide" [2004] OtaLawRw 14; (2004) 10 Otago Law Review 687

The Law of Research A Guide

(edited by

John Dawson and Nicola Peart, Otago University Press, Dunedin, 2003)

Research used to just happen. People got on with it and produced results. This was especially true in the university context but was probably largely true elsewhere as well. There were of course checks and balances, especially in the scientific and medical areas but these did not seem to dominate.

Today, the picture appears very different. There are regulations, funding bodies, policies and pressures that were less evident before. For example, the Foundation for Research, Science and Technology has large sums of money to dole out but has brought with it a bureaucratic mindset that sees vast time and energy going into the effort to grab some money. In the tertiary context, the Tertiary Education Commission and the performance based research fund (PBRF) are rapidly taking centre-stage, costing heaps and boding doubtful returns. The insidious expansion of contract-based research threatens to overwhelm the supposed goals of universities. At the same time, there are genuine concerns in the community about research in general and certain topics in particular. The march of progress heralds not only designer crops but also designer babies. Ordinary people cannot keep up and are worried. It is fair enough therefore that there be controls on these cutting-edge leaps into the unknown. The Cartwright inquiry into the cervical cancer “experiment” at National Women’s Hospital also highlighted the need for research to respect the dignity of participants. Understandably, therefore, there has been the widespread establishment of ethics committees, not just in the health sector. The picture becomes somewhat more confusing when we consider unpopular research. The cause célèbre in New Zealand has been the Hayward saga at Canterbury. How should the system cope with a thesis that we are told challenges received wisdom about the Nazis and the Jews? Should such research be encouraged, banned or simply ignored? How should unpopular research impact on the gaining of qualifications, publication of results and employment of the individuals concerned? All this is part of the backdrop to the timely release of The Law of Research. It has been written largely by members of the Otago Law School and fills a clear gap in the literature. According to the Minister of Research, Science and Technology, the Hon Pete Hodgson in his Foreword, it “will strengthen the interface between law and science”. More than this, the Government wants “to encourage innovation, which inevitably involves an element of risk, yet,” says the Minister, “we also need to regulate to protect the public and the environment from that risk”. Risk therefore raises the need for laws, and consequently the need for a book about those laws. That is indeed the goal and the achievement of The Law of Research. It is not a “how to do research” book as such nor is it a book about legal research. It examines a broad spectrum of different types of research and its focus is “the conduct and the governance of research”. (p 13)

The book is divided into two parts, “The public law structure of research” and “The private law structure of research”. The first part covers such issues as hazardous substances, new organisms, research on animals, clinical trials, privacy and Treaty of Waitangi issues. The second part looks at consent, intellectual property and research contracts, among other topics. The latter also contains a valuable chapter on liability for misconduct. The public/private divide is a familiar one but not always that clear-cut, and the division into two parts is a little redundant. For example, it is hard to talk about clinical trials without also mentioning consent and the consequences when things go wrong. There are obvious connections between health and safety, which is in the first part, and employment, which is in the second. Some of the chapters are straightforward descriptions of the current regulation of an area. This is particularly true of the chapters on “Environmental law: The research facility”, “Environmental law: Field work” and “Research with animals”. As in other parts of the book, clear charts and diagrams aid understanding. There are sound chapters on “Consent and information disclosure” and “Children as research participants”. In the consent chapter, Professor Skegg notes that, while consent is usually required, there is “no general legal rule whereby all non- invasive research on human beings requires consent” and gives the example of observing how people position themselves in lifts. (p 236) However, he also refers to section 10 of the New Zealand Bill of Rights Act 1990 which gives individuals

“the right not to be subjected to medical or scientific experimentation”. In his view, this “need not, and should not, be taken to exclude incompetent patients from the benefits of medical or other scientific advances”. (p 250) While the Act “is an important aspect of the legal environment”, he does not see much likelihood of researchers or institutions paying public law compensation for its breach. (p 235)

The chapter on children is interesting because it takes fully on board the landmark House of Lords’ decision in Gillick v West Norfolk and Wisbech Area Health Authority,[1]which allows children to consent according to their level of maturity. (p 272) The Care of Children Bill, currently before Parliament, is mentioned in this context, but, in the reviewer’s opinion, whether the express terms of this legislation sit easily with Gillick is sadly not at all clear. The authors of this chapter also tackle section 10 of the New Zealand Bill of Rights Act 1990, pointing out that it has not been tested in court, thus leaving some uncertainty about experiments on children who lack the capacity to consent other than through a guardian. (p 277) Afascinating chapter by Selene Mize is about the use of deception in research. This is a particular favourite of psychologists but not exclusively so. It inevitably involves a lack of consent or informed consent, yet this will be essential to the success of the project. The example is given of a secret counter to check whether patients complied with instructions about using inhalers. If patients had known about the counter, the credibility of the results would have been nullified. More controversially, a researcher studying sex in men’s toilets disguised himself as a “watch queen” who would cough if the police approached. He later, also in disguise, traced some of the men home and interviewed them. Without the deception, the data could not have been obtained. (p 255) The chapter runs through a range of possible legal challenges to deception, including breach of contract, intentional infliction of emotional distress, invasion of privacy, trespass, battery, deceit, breach of fiduciary duty as well as possible criminal liability. Michael Robertson has written one of the more polemical, but nevertheless enjoyable, chapters entitled “Research and academic freedom”. He cites section

161 of the EducationAct 1989, which gives academic freedom statutory backing to the advantage of tertiary institutions, staff and students. There are inevitably some justified limitations on academic freedom. “Academic freedom does not permit an academic to make contentious and disturbing claims without any grounds which would be recognised as such by their peers”. (p 30) Furthermore, the highest ethical standards must be maintained,^{[2 ]}a topic explored further in chapter

3; research must be undertaken with some cultural awareness, explored in chapter

4 entitled “The Treaty of Waitangi and research”; and the law of privacy must be respected, the subject of chapter 5. On the other hand, Robertson highlights real problems arising from the engagement of universities with the private sector in order to raise income, with an attendant “clash of cultures between commercial enterprises ... and academic researchers”. (p 39) A good example of this is where publication of results unattractive to the outside contractor is blocked or heavily edited. “So far”, says Robertson not without justification,

“New Zealand commentators have tended to focus on the potential benefits of these relationships, with little attention given to the dangers to academic freedom posed by the private funding of university research”. (p 37)

The book’s predominant emphasis is on health and scientific research and rather less on the social sciences and humanities. This may make sense as there is little risk of the kind in the Minister’s quote mentioned above when researching the classical allusions in a Shakespeare play, but there may well be in research on, say, violence and sexual abuse. Little attention is paid to researching the business world, although there may be risk here, especially if the research involves confidential commercial dealings. Journalism is outside the parameters of the book. Journalists and the media do research of a kind, which is sometimes intrusive, and the public can be exposed to dubious results in a comparatively unregulated market. Student research is a marginal topic. Students are not “employees” (p 287); they may face disciplinary action for misconduct in research (p 343); and there is the tricky position of a doctoral candidate whose thesis is part of contract research, which also rates passing reference. (p 359). What remedies might a student have, one wonders, for something like poor supervision? There is the odd glitch in the preparation of the book. For example, the footnote numbering on pages 73-75 and pages 324-326 has gone awry and other editing errors andAmerican spellings occasionally creep in. These are minor, however, as the overall product is a quality one. The Otago Law School is to be congratulated on the collegial effort in producing the book. It should be an invaluable resource for many researchers from disparate disciplines and enterprises, informing them of the guiding principles and regulations that they need to observe.

Bill Atkin, Faculty of Law,

Victoria University of Wellington

Endnotes

[1][1985] UKHL 7; [1986] AC 112.

[2]Section 161(3)(a), Education Act 1989.