The National Statement on Ethical Conduct in Human Research (National Statement) identifies three types of research where the disclosure of gathered information may lead to legal consequences for participants and researchers:
- Research intended to study illegal activity (such as illegal drug use or drink-driving)
- Research not specifically intended to discover illegal activity but likely to do so (such as a study that collects information about substance use)
- Research where illegal activity is inadvertently and unexpectedly discovered (such as a 'lifestyle' study where the participant volunteers the information without being specifically questioned about it).
Legal consequences for research participants
During a criminal investigation, police may discover a participant's involvement in illegal activity and their involvement in a research project. Alternatively, they may learn that research focusing on illegal activity is being conducted or capture evidence.
If a participant reveals they have participated in illegal activity or you witness them engaging in it, you could be required by law to disclose this (such as via search warrant or subpoena), which may expose them to criminal proceedings.
Information about the illegal activity may also be relevant to:
- Family Court proceedings
- child protection
- matters before the Queensland Civil and Administrative Tribunal (QCAT)
- matters in the Coroners Court
- employment or insurance claims.
Your research could also have legal consequences if it investigates legal activity that nonetheless gathers information that could be used as evidence against a participant (such as the cause of a motor vehicle accident).
No incidents of this nature have occurred at QUT to date, but Australian projects have previously attracted the interest of law enforcement.
In one instance, an undercover police officer informally asked for research data from a Victorian researcher. The researcher immediately stopped the study and sought legal advice (Fitzgerald J, Hamilton M. The consequences of knowing: ethical and legal liabilities in illicit drug research. Social Science & Medicine 1996; 43(11):1591-1600).
Legal consequences for researchers
Participating in a legal proceeding
Information you receive or witness during your research might be required as evidence in a legal proceeding. While there may be legal argument about whether the information can be used, if the court decides it can be, then the evidence may be given in open court and become public information.
You may also be required to give evidence on oath about the study, the way the information was obtained, the results of the research and information about the participants. For most research, this likely won't be a concern but will depend on the circumstances.
If you choose to promise absolute confidentiality to your participants, be aware that ethics approval does not ensure the University will support you in a legal context if action is taken against you.
Other steps to preserve confidentiality may also put you at legal risk. For example, if you are aware of legal proceedings to access your data and rendered it non-identifiable in response, you may incur legal action.
But in most cases, it's appropriate to follow standard ethical practices to protect confidentiality by ensuring information is not readily identifiable (such as by using pseudonyms or codes). Don't discount accepted protection methods (such as those recommended in section 4.6.4 of the National Statement) out of fear of breaking the law.
If in doubt, seek legal advice from QUT's Governance and Legal Services.
Choose a particular approach to confidentiality. If you're considering providing absolute confidentiality to participants, be aware that you:
- might have to provide information if ordered to by a court (such as in the case of a search warrant or subpoena) or required by legislation
- might feel you have a moral obligation to 'breach' confidentiality in certain cases, such as if a research participant discloses they are suicidal or puts others at risk
- can legally disclose information in some circumstances, such as to prevent serious harm to the participant, another person, or the community.
Perspectives differ on the extent to which researchers should protect participant's information. Some believe that researchers should unconditionally offer to protect confidentiality - even to the extent of being prepared to be imprisoned - or otherwise not do the research. Others think researchers should clearly explain to participants that they will protect confidentiality but that protection is not absolute and they may be required by law to disclose information.
However, only you can determine and justify what position you will take. If in doubt, seek legal advice from QUT's Governance and Legal Services.
Planning your research
While planning your research focus and designing your methodology, establish all possible safeguards by:
- ensuring identities cannot be determined by:
- not collecting names and other identifying information (where risks are particularly high, verbal consent may be preferable to written consent)
- using pseudonyms
- storing data in coded rather than identified form
- protecting links between names and data and storing them separately from other research materials
- identifying any circumstances where researchers would be prepared to breach confidentiality
- obtaining statutory confidentiality protection, if available
- seeking assurances before you begin that authorities will not attempt to obtain research information
- weighing the importance of data verification against that of participant confidentiality and anonymity
- collecting information in the most 'general' form possible (such as month or year of birth rather than date and phrasing questions to elicit opinions rather than personal disclosures)
- ensure you will obtain accurate information, as people are unlikely to participate or give honest answers if they may suffer adverse consequences
- restrict the collection and retention of 'risky' information to what is necessary to answer your research questions
- giving confidentiality assurances sparingly in compliance with QUT policy
- maximise data security
- where possible, satisfy the research question without the participant risking self-incrimination by using phraseology in a survey or designing a data collection tool.
Remember that asking participants to put themselves at risk for the sake of the research is unethical, particularly when they are unlikely to derive any personal benefit.
Potential participants in a study that will likely collect information about illegal activities must be made aware of the risk they accept by taking part. You can do so by asking them some of the questions in the study or by performing certain tests.
When considering the risk of participants being identified, the following risk matrix shows a range of risks in a cycling scenario from most invasive to least invasive:
Advising potential participants
Warn potential participants appropriately about the limits to confidentiality and the potential legal consequences of participation so they are equipped to assess the extent of any risk.
Ensure information and alerts are appropriate to the participant group and context. Examples or expanded information may be required. For example:
- a 16 year old may not understand what a subpoena is or what 'as required by law' means
- participants in a correctional context may need more details about disclosure due to the power imbalance in their environment.
Verbally reiterate key information about risk during the consent process or pre-interview discussion. If participants may reveal information that is irrelevant to the research and 'legally problematic' (such as their experiences perpetrating violence when asked to merely describe violent acts), it may be appropriate to specifically advise them not to broach certain topics or provide specific details.
In most cases, you must not disclose participant information (MOPP D/2.6 QUT Code of Conduct for Research). The general rule regarding confidentiality of patients as participants is in section 142(1) of the Hospital and Health Boards Act 2011 (Qld): information must be kept confidential, unless a specific statutory exception applies. It is an offence to breach section 142(1).
You must disclose participant information if required by law when:
- you receive a court order, such as a subpoena or search warrant
- you have a mandatory reporting obligation, such as in cases of notifiable infectious diseases or suspected child abuse.
If you fail to disclose under these conditions, you will face legal consequences.
Receiving a legal order
If you ever receive a request for information such as a subpoena, summons, search warrant or an informal approach by law enforcement or similar agencies, seek advice from QUT's Governance and Legal Services before responding. Refer to the Legal Glossary in the expandable menu below.
You can choose to disclose patient or participant information if:
- you reasonably believe that disclosure is necessary to prevent a serious and imminent threat to anyone's life, health, safety or welfare or a serious threat to public health, safety or welfare
- legislation expressly permits disclosure, such as giving information to the hospital's insurer regarding a potential claim or giving information to enable further treatment of a patient or research participant.
Before disclosing information under this discretionary option, consult the Office of Research Ethics and Integrity.
|Legal Glossary - How the legal system works|
|Reporting Requirements - Mandatory Reporting Obligations|
|Completing Participant Information and Consent Forms|