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Review of the Australian Code for the Responsible Conduct of Research Submission

ID: 
32
Personal Details
First Name: 
Kerry
Last Name: 
Breen
Specific comments
Specific comments: 
Principles in Code

Please see general comments

Specific consultation questions
Question 1: Do you like the new approach to the Code, namely the principles-based document being supported by several guides that provide advice on implementation?: 
Response: I do not support this approach. I would much prefer to see the new principles section used as the introduction to a revised version of the 2007 Code, followed by the existing chapters 2-8, updated as necessary. Unless all the material in the 2007 Code is kept in some form or another, you will not be able to call the new document “The Australian CODE for the Responsible Conduct of Research”.
Question 2:The draft Code is intended to be used by all research disciplines. Do the principles adequately capture the expectations for responsible research across all research disciplines?: 
No response.
Question 3: The draft Guide refers to breaches of the Code rather than providing a definition of research misconduct, and states that institutions can decide whether or not to use the term research misconduct in their own processes.: 
Response: As intimated in my general comments, this is a retrograde step that can only lead to loss of confidence on the part of the community. As stated in my general comments, the draft new version creates the impression that research misconduct is either not important or does not exist in Australia.
Question 4: Do you think the process described for investigating and managing potential breaches of the Code is clearly described and practical?: 
Response: Please see my general comments also. The layout and flow of the revised Part B has the potential to be a much better document than the existing one BUT it needs to be written as statement of the responsibilities of institutions in receipt of NHMRC or ARC funds and not some optional guide that can be used if desired. If this is accepted, then a better title would be “Implementing and enforcing the Australian Code for the Responsible Conduct of Research: Investigating and managing allegations of research misconduct”. The working party should seek legal advice on this document. As mentioned in my general comments, I believe that when an inquiry panel is examining serious allegations which if proven could lead to loss of reputation or livelihood, then that panel is effectively a disciplinary tribunal and should conduct itself as such. If there is no legally qualified member, then a counsel-assisting becomes crucial.
Question 5: The Code Review Committee and working group are considering what additional resources should be developed to support implementation of the Code and Guide.: 
Response: I do not support the use of case studies within the Code. Their use separately on a website is a different matter upon which I have mixed views.
Question 6: Are the mechanisms for review of an investigation clearly and correctly described in Section 7.6 of the Guide? If not, where are the inaccuracies?: 
Response: Again here the working party will be helped by getting legal advice, especially in regard to the last paragraph.
Question 7: Please comment on which three topics you would nominate as being the highest priority and why.: 
I have made it clear above and in my detailed general comments that I oppose making these new “guides” separate from the Code of Conduct. I believe that all the material in chapters 2-8 of the 2007 Code remain relevant and important although I also can see that several may need amendment after ten years of experience. In biomedical sciences, the problem with the chapter on authorship is that most medical authors are ignorant of its existence or choose to ignore it.
General comments
Comments: 

Personal submission:  Dr Kerry Breen*

(* I declare the following interests in this subject. I was a member of the working party that developed the 2007 edition of the Code and I am currently a member of the Australian Research Integrity Committee. The views expressed in this submission are personal ones.)

General comments

Overall, the present draft reads as if it has the interests of the universities and the research institutes as its primary focus. In my view, if the present draft becomes the revised Code, it will represent a turning away from the necessary standards set in 2007, at a time when there is world-wide concern at the rising incidence(1,2) of research misconduct and research fraud, and at the inability of institutions(3) to promptly, fairly and without bias adjudicate allegations of research misconduct. If there have been problems with applying the current Code within our institutions (as the working party states), it would be helpful to be informed what those problems were, who identified and confirmed them, and whether the problems related to the Code or to the people applying the Code. In my view, unwillingness on the part of the institutions to address their own conflicts of interest in dealing with allegations of misconduct is likely to contribute to any perceived problems.  

The most obvious weakening of the Code lies in three aspects:

  •        abbreviation of the document with the negative impacts described below,
  •        changes in language and  terminology such that the impression is created that research misconduct is not a serious matter and, and
  •         reduction in accountability and external oversight of institutions.

 

The 2007 Code covers in detail the standards expected for responsible research conduct and the allocation of those responsibilities to institutional management, researchers and research trainees. It serves as an educational tool and in content and format is consistent with the three complementary documents that make up Australia’s framework for research governance: namely the National Statement on Ethical Conduct in Human Research; Values and Ethics: Guidelines for Ethical Conduct in Aboriginal and Torres Strait Islander Health Research; and the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes. The revised Code pares the standards down from eighteen pages to three pages of principles, suitable perhaps as a wall chart but insufficient to serve as a useful reference guide or as an educational instrument, let alone a code of conduct against which allegations of unacceptable conduct can be tested. The sections advising institutions and researchers of their responsibilities contain only motherhood statements, while the responsibilities of research trainees have been omitted. Referring to this new version as “aspirational” removes the requirement for rigorous application of standards, instead creating a sense that the standards are optional.

The draft Code promises a link to a series of ‘better practice guides’.  Until these are made available, judgement must be reserved, but the use of the term ‘better practice’ and  tenor of the new draft Code, including the revised Part B, suggests that these ‘guides’ will not carry the same weight as the existing Code. The very fact that they will be attachments, and not a core part of the Code, immediately risks downgrading their status.  The title ‘guide’ reinforces this lesser status.

The change in terminology sees the abandonment of the concept of research misconduct. In its place researchers can only be accused of, and found guilty of, ‘breaches of the Code’. In my view, the claim that omission of any reference to research misconduct is because ‘there is not one universally agreed definition of research misconduct’ does not stand up to scrutiny. Anyone who is familiar with the international history and literature on research misconduct should be aware that there is quite close agreement on a definition with the exception of the USA  where very strong lobbying by scientists thirty years ago led to a narrow definition set rigidly in legislation in the USA confined to ‘fabrication, falsification and plagiarism’(4). As evidence of this general agreement, attachment A below provides samples of definitions from a small selection of major institutions in Europe. These definitions are consistent with the definition contained in the 2007 Australian Code.

The use of ‘breach’ in preference to ‘research misconduct’ seems to me to be an arbitrary decision based solely on its current use in Canada. While the revised document admits that breaches may range from the least to the most serious, the absence of a definition of research misconduct, combined with a much abbreviated Code expressed as principles without qualifying or explanatory text, creates an overwhelming impression that research misconduct is to be downplayed as an issue in our institutions.

Part B is now to be issued as a stand-alone document entitled ‘Guide to investigating and managing potential breaches of the Australian Code for the Responsible Conduct of Research’.  While much of the new draft Part B is an improvement on the 2007 version (which in hindsight could have been better structured and more clearly written), it too has sections that represent a turning back of the clock, as follows:

  • In the introduction, emphasis is now placed on this being a description of a ‘model process’ and thus is not in the slightest way binding on institutions. This is a retrograde step and can only lessen the confidence that the community (and the NMHRC and ARC) need to have in the processes used by institutions.
  • The concept of external inquiry panels for the more serious allegations has almost completely disappeared, another retrograde step.
  • The use of the term an ‘investigation’ in place of an ‘inquiry’ and calling the hearings of any investigation panel ‘meetings’ suggests a reversion back to such processes being assessment by ‘scientific dialogue’ (5) and not what most informed observers would call a disciplinary inquiry, especially where serious misconduct is alleged. This runs contrary to worldwide experience. 
  • In the work of such panels, the role of a person with legal expertise in disciplinary processes (‘legal counsel’) is also diminished, no longer being permitted to be present at ‘meetings’ when witnesses are giving evidence. When an inquiry panel is examining serious allegations, which if proven could lead to loss of reputation or livelihood, then that panel is effectively a disciplinary tribunal and should conduct itself as such. If there is no legally qualified member of a panel, then a counsel-assisting becomes crucial.
  • While the question of whether an accused person should have legal representation is a vexed one, the new draft errs too much in one direction without consideration of the rights of the accused whose livelihood might be in jeopardy. The draft document also suggests ambivalence about any right of appeal over panel decisions.

Despite the stated wish that investigation panels be impartial, be transparent and maintain confidentiality, problems here can also be anticipated. To expect a panel drawn entirely from within an institution to guarantee impartiality is an oxymoron, while it is probably impossible to be transparent and maintain confidentiality at the same time.  The call for transparency is undermined by a policy of requiring the release of only very limited information to  the outside world as is reflected in the advice that institutions ‘should consider whether a de-identified public statement should be made to communicate the outcome of an investigation’. This needs a lot more thought.

If the universities wish to have an ‘aspirational’ code by all means let them create one for their own use but what the NHMRC and ARC need is a code of conduct that makes it quite clear what the minimum standards of acceptable conduct are. Having such a Code in place makes it a simpler task for panels asked to adjudicate on allegations of research misconduct.  To demonstrate how a code of conduct differs from a code of ethics (an ‘aspirational code’ perhaps), I have reproduced below an extract from Good Medical Practice: a code of conduct for doctors in Australia, issued by the Medical Board of Australia (http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx):

“1.2        Use of the code

Doctors have a professional responsibility to be familiar with Good medical practice and to apply the guidance it contains.

This code will be used:

• to support individual doctors in the challenging task of providing good medical care and fulfilling their professional roles, and to provide a framework to guide professional judgement

• to assist the Medical Board of Australia in its role of protecting the public, by setting and maintaining standards of medical practice against which a doctor’s professional conduct can be evaluated. If your professional conduct varies significantly from this standard, you should be prepared to explain and justify your decisions and actions. Serious or repeated failure to meet these standards may have consequences for your medical registration

• as an additional resource for a range of uses that contribute to enhancing the culture of medical professionalism in the Australian health system; for example, in medical education; orientation, induction and supervision of junior doctors and international medical graduates; and by administrators and policy makers in hospitals, health services and other institutions.”

References

1.       DL Roberts, FAV St. John. Estimating the prevalence of researcher misconduct: a study of UK academics within biological sciences. Peer J 2014; 2: e562.

2.       D Vaux. From fraud to fair play: Australia must support research integrity. https://theconversation.com/from-fraud-to-fair-play-australia-must-support-research-integrity-15733

3.       I Freckelton. Scholarly Misconduct, Law, Regulation and Practice.  Oxford University Press, Oxford, 2016.

4.       D Rennie, CK Gunsalas.  What is research misconduct? Chapter 3 in Fraud and Misconduct in Biomedical Research. Eds F Wells. M Farthing.  Royal Society of Medicine Press, London, 2008.

5.       D Rennie. An American perspective on research integrity. BMJ 1998; 316: 1726-8.

 

 

Attachment A

The current terminology for referring to allegations of research misconduct and some definitions of research misconduct across the world

The following documents were identified in a quick search of the term ‘code of research misconduct’ using the Google search engine. The search looked for codes from a range of countries and a range of organisations (government agencies, universities etc). All the material is available at the websites listed. Direct copy of material drawn from each code is identified through the use of italics.

  1. The European Code of Conduct for Research Integrity (issued by the European Science Foundation)

http://www.esf.org/fileadmin/Public_documents/Publications/Code_Conduct_ResearchIntegrity.pdf

1.3 Misconduct

Research misconduct is harmful for knowledge. It could mislead other researchers, it may threaten individuals or society – for instance if it becomes the basis for unsafe drugs or unwise legislation – and, by subverting the public’s trust, it could lead to a disregard for or undesirable restrictions being imposed on research. Research misconduct can appear in many guises:

• Fabrication involves making up results and recording them as if they were real;

• Falsification involves manipulating research processes or changing or omitting data;

 • Plagiarism is the appropriation of other people’s material without giving proper credit;

• Other forms of misconduct include failure to meet clear ethical and legal requirements such as misrepresentation of interests, breach of confidentiality, lack of informed consent and abuse of research subjects or materials. Misconduct also includes improper dealing with infringements, such as attempts to cover up misconduct and reprisals on whistleblowers;

 • Minor misdemeanours may not lead to formal investigations, but are just as damaging given their probable frequency, and should be corrected by teachers and mentors. The response must be proportionate to the seriousness of the misconduct: as a rule it must be demonstrated that the misconduct was committed intentionally, knowingly or recklessly. Proof must be based on the preponderance of evidence.

Research misconduct should not include honest errors or differences of opinion. Misbehaviour such as intimidation of students, misuse of funds and other behaviour that is already subject to universal legal and social penalties is unacceptable as well, but is not ‘research misconduct’ since it does not affect the integrity of the research record itself.

  1. UK Research Integrity Office

CODE OF PRACTICE FOR RESEARCH Promoting good practice and preventing misconduct

http://ukrio.org/publications/code-of-practice-for-research/

Since the publication of the Code in 2009, it has been used or adopted by many research organisations, including over 50 universities, and endorsed by research funders and other bodies. It is noteworthy in that it is detailed and runs to 19 pages. The term “breach” is not used.

Organisations should define what they consider to be misconduct in research and make it known to researchers. UKRIO defines misconduct in research as including, but not limited to:

a) Fabrication;

b) Falsification;

c) Misrepresentation of data and/or interests and/or involvement;

d) Plagiarism; and

e) Failures to follow accepted procedures or to exercise due care in carrying out responsibilities for:

i) avoiding unreasonable risk or harm to: • humans; • animals used in research; and • the environment; and

ii) the proper handling of privileged or private information on individuals collected during the research.

  1. European University Institute

Code of ethics in academic research

http://www.eui.eu/Documents/ServicesAdmin/DeanOfStudies/CodeofEthicsinAcademicResearch.pdf

 Comment: It is noted that this Code identifies minor and major violations of good academic practice. The use of the term violation is clearly much stronger than “breach”.

I. DefInItIon of research mIsconduct

Misconduct in academic research implies (and is not limited to) fabrication, falsification, plagiarism or deception in proposing, carrying out or reporting results of research and deliberate, dangerous or negligent deviations from accepted practice in carrying out research. It includes failure to follow an agreed protocol if and when this failure results in unreasonable risk or harm to persons, the  environment, and when it facilitates misconduct in research by collusion in, or concealment of, such actions by others. Misconduct also includes any plan or attempt to do any of these things. It does not include honest error or honest differences in interpretation or judgment in evaluating research methods or results, or misconduct unrelated to research processes.

Misconduct includes (and is not limited to) the following acts:

plagiarism

The deliberate copying of ideas, text, data or other work (or any combination thereof) without due permission and acknowledgement.

piracy

The deliberate exploitation of ideas from others without proper acknowledgement

abuse of intellectual property rights Failure to observe legal norms regarding copyright and the moral rights of authors.

abuse of research resources Failure to observe the terms and conditions of institutionally licensed research resources.

defamation

Failure to observe relevant legal norms governing libel and slander.

misinterpretation The deliberate attempt to represent falsely or unfairly the ideas or work of others, whether or not for personal gain or enhancement.

personation

The situation where someone other than the person who has submitted any academic work has prepared (parts of) the work;

fabrication and fraud The falsification or invention of qualifications, data, information or citations in any formal academic exercise.

sabotage

Acting to prevent others from completing their work. This includes stealing or cutting pages out of library books or otherwise damaging them; or wilfully disrupting the experiments of others; or endangering institutional access to licensed research resources by wilfully failing to observe their terms and conditions.

professorial misconduct Professorial acts that are arbitrary, biased  or exploitative.

denying access to information or material To deny others access arbitrarily to scholarly resources or to deliberately and groundlessly impede their progress.

misconduct in formal examinations Includes having access, or attempting to gain access during an examination, to any books, memoranda, notes, unauthorised electronic devices or any other material, except such as may have been supplied by the invigilator or authorised by the Academic Department. It also includes aiding or attempting to aid another candidate or obtaining or attempting to obtain aid from another candidate or any other communication and conversations that could have an impact on the examination results.

II. Identifying levels of violations of good    academic practice

Two levels of violations of good academic practice can be distinguished.

minor violations Minor violations may occur because of inexperience or lack of knowledge of the principles of academic integrity and are often characterised by the absence of dishonest intent on the part of the person committing the violation. They may result from:

a. Weak procedures and methods which may jeopardise the integrity of the research but are not undertaken deliberately or recklessly;

b.  Weaknesses which present no major risks to either subjects or policies which they may influence.

On the whole, these minor violations can be seen as failings which may reflect only poor, rather than unacceptable practices and therefore mainly require further training and development rather than any formal disciplinary action.

Examples of minor violations include:

  Minor plagiarism defined as a small amount of paraphrasing, quotation or use of diagrams, charts etc. without adequate citation. Minor plagiarism may result from poor scholarship (i.e. when a student, through inexperience or carelessness, fails to reference appropriately or adequately identify the source of the material which they use);

  Inaccurate claims to experience, qualifications or contributions in a context where the person committing the violation cannot expect major benefits (such as winning a competition for a prize or job);

  Inaccurate representation of findings without deliberate distortion;

  Lack of diligence in declaring relevant conflicts of interest.

Such violations may present no risks to subjects, the wider community or the environment, but they may warrant some penalty or sanction at institutional level.

major violations Major violations are breaches of academic integrity that are more serious in nature or that affect a more significant aspect or portion of the academic work compared with minor violations. Key examples are:

a. Deliberate, reckless or grossly negligent conduct which would clearly pose a significant risk in one form or another to the integrity of the research.

b. Conduct that may pose risks to subjects, the wider community, the environment, or to the research reputation of the institution and research in general.

c. Major plagiarism defined as:   Extensive paraphrasing or quoting without proper citation of the source;  Lifting directly from a text or other academic source without reference;   The use of papers (or parts thereof) from essay banks, either downloaded from the internet or obtained from other sources;   Presenting anothers designs or concepts as one’s own;   Continued instances of what was initially regarded as minor plagiarism despite warnings having been given.

Other examples of major violations are:

1. The wilful destruction of data (except where required by the legitimate data provider or where norms of privacy might otherwise be endangered); 2. Fabrication or falsification of data; 3. Falsification of ownership; 4. Defamation; 5. Systematic abuse of the terms and conditions of licensed research resources; 6. Other systematic violation of the intellectual property rights of third parties.

     4.  Oxford University
Below is an extract that demonstrates the use of the term “research misconduct” and its definition.

https://www.admin.ox.ac.uk/researchsupport/integrity/

The University of Oxford expects all its members to observe the highest standards in the conduct of their research, as set out in its Academic Integrity in Research: Code of Practice and Procedure. 

Not upholding such standards, either intentionally or through lack of knowledge, damages the scientific process and may harm research participants, colleagues, the University and society as a whole.

The University's code also defines the procedure for handling allegations, investigations, and the reporting of research misconduct.

Definition

Misconduct for the purpose of the University’s Code and Procedure means fabrication, falsification, plagiarism, or deception in proposing, carrying out, or reporting results of research, and deliberate, dangerous or negligent deviations from accepted practice in carrying out research.

It includes failure to follow an agreed protocol if this results in unreasonable risk or harm to humans, other vertebrates or the environment, and facilitating of misconduct in research by collusion in, or concealment of, such actions by others. It also includes any plan or conspiracy or attempt to do any of these things. It does not include honest error or honest differences in interpretation or judgement in evaluating research methods or results, or misconduct (including gross misconduct) unrelated to research processes.

      5.  European Network of Research Integrity Offices

Comment: This website links to the codes of research integrity in many European countries. I have used these links to extract relevant information from the code in Germany which uses scientific misconduct as its preferred term.

http://www.enrio.eu/codes-guidelines-3/national-codes

Germany

Universities and research institutes shall establish procedures for dealing with allegations of scientific misconduct. They must be approved by the responsible corporate body. Taking account of relevant legal regulations including the law on disciplinary actions, they should include the following elements:

1 Recommendations

 a definition of categories of action which seriously deviate from good scientific practice (Recommendation 1) and are held to be scientific misconduct, for instance the fabrication and falsification of data, plagiarism, or breach of confidence as a reviewer or superior,  jurisdiction, rules of procedure (including rules for the burden of proof), and time limits for inquiries and investigations conducted to ascertain the facts,  the rights of the involved parties to be heard and to discretion, and rules for the exclusion of conflicts of interest,  sanctions depending on the seriousness of proven misconduct,  the jurisdiction for determining sanctions.

         6.  Research Councils of the UK

Comment: This is an exception in that the Councils use the terms “unacceptable research conduct” and “allegations of poor research conduct”. However, this has a quite different ring to it than “concerns about breaches”.

http://www.rcuk.ac.uk/Publications/researchers/grc/

GUIDELINES ON THE REPORTING AND INVESTIGATION OF UNACCEPTABLE RESEARCH CONDUCT Allegations of poor research conduct

UNACCEPTABLE RESEARCH CONDUCT The spectrum of inappropriate behaviour is wide, ranging from minor misdemeanours which may happen occasionally and inadvertently, to significant acts of misappropriation or fabrication. Poor research practices, such as weak procedures, inadequate documentation of procedures, or inadequate record-keeping4, might only require further training or development rather than formal disciplinary action, and are normally a matter solely for the employer. 

This document therefore concentrates on entirely unacceptable types of research conduct. Individuals involved in research must not commit any of the acts of research misconduct specified here.

Unacceptable conduct includes each of the following: 

Fabrication

This comprises the creation of false data or other aspects of research, including documentation and participant consent.

 Falsification

This comprises the inappropriate manipulation and/or selection of data, imagery and/or consents.

 Plagiarism

 This comprises the misappropriation or use of others’ ideas, intellectual property or work (written or otherwise), without acknowledgement or permission.

 Misrepresentation, including:

 • Misrepresentation of data, for example suppression of relevant findings and/or data, or knowingly, recklessly or by gross negligence, presenting a flawed interpretation of data • Undisclosed duplication of publication, including undisclosed duplicate submission of manuscripts for publication • Misrepresentation of interests, including failure to declare material interests either of the researcher or of the funders of the research • Misrepresentation of qualifications and/or experience, including claiming or implying qualifications or experience which are not held • Misrepresentation of involvement, such as inappropriate claims to authorship and/or attribution of work where there has been no significant contribution, or the denial of authorship where an author has made a significant contribution

 Breach of duty of care, whether deliberately, recklessly or by gross negligence:

 • Disclosing improperly the identity of individuals or groups involved in research without their consent, or other breach of confidentiality; • Placing any of those involved in research in danger, whether as subjects, participants or associated individuals, without their prior consent, and without appropriate safeguards even with consent; this includes reputational danger where that can be anticipated • Not taking all reasonable care to ensure that the risks and dangers, the broad objectives  and the sponsors of the research are known to participants or their legal representatives, to ensure appropriate informed consent is obtained properly, explicitly and transparently • Not observing legal and reasonable ethical requirements or obligations of care for animal subjects, human organs or tissue used in research, or for the protection of the environment • Improper conduct in peer review of research proposals or results (including manuscripts submitted for publication); this includes failure to disclose conflicts of interest; inadequate disclosure of clearly limited competence; misappropriation of the content of material; and breach of confidentiality or abuse of material provided in confidence for peer review purposes

 Improper dealing with allegations of misconduct: 

 • Failing to address possible infringements including attempts to cover up misconduct or reprisals against whistle-blowers • Failing to deal appropriately with malicious allegations, which should be handled formally as breaches of good conduct.

 

Page reviewed: 17 September, 2018