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

ID: 
35
Personal Details
First Name: 
Kathy
Last Name: 
Ahern
Specific comments
Specific comments: 
Responsibilities for Institutions in Code

 There is cause for concern over the permissive language used in the draft of the Guide to investigating and managing potential breaches of the Australian Code for the Responsible Conduct of Research.   

 I learned of the role that permissive language plays in the Crime and Corruption Act and Public Interest Disclosure Act in enabling misconduct when I made a PID of academic and research misconduct.  The word “should” is particularly useful in covering up misconduct because it refers to “what people think is the right or correct thing to do”.  There is no requirement to do the right thing. 

The Guide to…Responsible Conduct of Research contains the same loopholes regarding research misconduct.  I urge you to change the permissive wording to terms that require researchers to act with integrity and institutions to investigate alleged research misconduct with due diligence.  For example, the Guide states, “any conflicts of interest that do, may, or may be perceived to jeopardise their impartiality should be disclosed” (p6).  This means that by definition there is no serious misconduct if an officer is subsequently found to have an undisclosed conflict of interest.  The wording (“should”) makes it clear that it is desirable to disclose a COI, but disclosure is not a requirement.

From personal experience, I can attest that the following statement provides one of the biggest loopholes for covering up research misconduct and reprisals for reporting misconduct:  “Investigations should afford procedural fairness at all stages in the process to respondents and, where appropriate, complainants and others who may potentially be adversely affected by any investigation.” (Section 4.2).  It is deplorable that UA, the NHMRC and the ARC do not require procedural fairness in investigations of research misconduct, but merely recommend it.

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 Even the term “Guide” in the title ensures that no research institution or individual researcher has an obligation to act with integrity.  A “Guide” presents research integrity as the preferred option, in contrast with the nomenclature “Standards of Practice”, for example.

 

 Below are some examples of statements that can enable individuals and organisations to downplay, ignore and cover up research misconduct.  If UA, the NHMRC and the ARC are genuinely concerned about lifting the standard of integrity of research in Australia, permissive words (e.g. “should”) will be replaced with directives (e.g. “must” or “shall”).  In addition, guidelines that leave institutions to determine their own definitions of research misconduct must be unequivocal regarding the minimum acceptable standard of integrity.  For example:

 

 “Utilisation of the Guide requires deliberation, exercise of judgement and an appreciation of institutional and disciplinary context.(This statement needs to be made unequivocal that the exercise of judgement and appreciation of context does not provide a loophole to downplay or ignore research misconduct.  A university officer might judge that the Guide is unnecessary in a particular allegation of research misconduct, or an institutional context accepts research activities that are considered questionable by other institutions.

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Examples of permissive (weasel) words in the “Guide” that render research integrity optional

  

  • “This Guide should be used to inform the application of existing institutional processes. For those institutions without relevant processes, it is expected that this Guide be used as a basis for their development.”

  • “Researchers should ensure that their research conduct and practice reflects the principles and responsibilities as set out in the Code.”

  • “Major breaches would typically require investigation.”

  • “…the extent to which a breach represents a departure from accepted practice should be determined.”

  • “Corrective actions should be commensurate with the breach”

  • “…disciplinary actions should be proportionate to the breach”

  • “…any conflicts of interest that do, may, or may be perceived to jeopardise their impartiality should be disclosed”.

  • “Investigations into allegations should be conducted in a timely manner”

  • “Information should not be shared unless required.”

  • “Complaints may be dismissed at any stage of the process for a variety of reasons”

 

 And the especially troubling,

 

  • It is important to document all decisions and reasons for those decisions. 

 

There are many other examples in which the choice of a permissive word or phrase depicts aspects of research integrity as a preferred, but not mandatory course of action.  Breaches of research integrity must lead to predicted and defined consequences.  “Oops” might be an acceptable response when you know you should brush your teeth, but don’t.  It is not an acceptable response for research misconduct.

 



 

Even the term “Guide” in the title ensures that no research institution or individual researcher has an obligation to act with integrity.  A “Guide” presents research integrity as the preferred option, in contrast with the nomenclature “Standards of Practice”, for example.

 

Below are some examples of statements that can enable individuals and organisations to downplay, ignore and cover up research misconduct.  If UA, the NHMRC and the ARC are genuinely concerned about lifting the standard of integrity of research in Australia, permissive words (e.g. “should”) will be replaced with directives (e.g. “must” or “shall”).  In addition, guidelines that leave institutions to determine their own definitions of research misconduct must be unequivocal regarding the minimum acceptable standard of integrity.  For example:

 

“Utilisation of the Guide requires deliberation, exercise of judgement and an appreciation of institutional and disciplinary context.(This statement needs to be made unequivocal that the exercise of judgement and appreciation of context does not provide a loophole to downplay or ignore research misconduct.  A university officer might judge that the Guide is unnecessary in a particular allegation of research misconduct, or an institutional context accepts research activities that are considered questionable by other institutions.


 [NHMRC has removed personal information] 

 

Examples of permissive (weasel) words in the “Guide” that render research integrity optional

 

  • “This Guide should be used to inform the application of existing institutional processes. For those institutions without relevant processes, it is expected that this Guide be used as a basis for their development.”

  • “Researchers should ensure that their research conduct and practice reflects the principles and responsibilities as set out in the Code.”

  • “Major breaches would typically require investigation.”

  • “…the extent to which a breach represents a departure from accepted practice should be determined.”

  • “Corrective actions should be commensurate with the breach”

  • “…disciplinary actions should be proportionate to the breach”

  • “…any conflicts of interest that do, may, or may be perceived to jeopardise their impartiality should be disclosed”.

  • “Investigations into allegations should be conducted in a timely manner”

  • “Information should not be shared unless required.”

  • “Complaints may be dismissed at any stage of the process for a variety of reasons”

 

And the especially troubling,

 

  • It is important to document all decisions and reasons for those decisions.

 

There are many other examples in which the choice of a permissive word or phrase depicts aspects of research integrity as a preferred, but not mandatory course of action.  Breaches of research integrity should lead to predicted and defined consequences.  “Oops” might be an acceptable response when you know you should brush your teeth, but don’t.  It is not an acceptable response to research misconduct.

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?: 
No. Principles need to be operationalized as concrete actions.
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.: 
I foresee, based on personal experience, that "breaches of the code" underestimates growing community outrage about research misconduct, especially where misuse of public funds and other illegal activities occur as part of the research misconduct.
Question 4: Do you think the process described for investigating and managing potential breaches of the Code is clearly described and practical?: 
No. Steps of investigation of research misconduct should be mandatory and not optional, as the permissive wording of the Guide implies. The passive observation that "It is important to document decisions and reasons for decisions" is a far cry from a directive to "Document actions and decisions." In patient care, documentation of clinical interventions is legally required. Why should investigations of potential breaches of research integrity that might have an impact on patient wellbeing be exempt from a requirement to document processes, evidence and decisions?
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.: 
Yes. I would like to see case studies where investigations of alleged research misconduct were NOT conducted in keeping with the Code and Guide. That would obviate the "I found this loophole in the wording of the Code and Guide" excuse. Every time a loophole is exploited, a new case study can be written. Whistleblowers would be an excellent resource in this endeavour.
Question 7: Please comment on which three topics you would nominate as being the highest priority and why.: 
1. Protecting people who report alleged research misconduct. All that was required to negate my legal protections as a whistleblower were for a university officer to "forget" to document the allegations as a PID. 2. Conflict of interest in institutions undertaking internal investigations of alleged research misconduct. Self-investigation (by an employee of the institution) when the institution has competing interests of institutional reputation, research quantum (income) and student enrolments (income) creates an automatic conflict of interest. Investigations of allegations of research misconduct must be conducted by external, INDEPENDENT agents. 3. The role inadequate research training plays in fostering negligence in research practice. In health, clinicians are not allowed to undertake procedures for which they are not sufficiently trained/skilled. In research, samples with insufficient power, or instruments lacking validity are common in my field because the research training is totally inadequate. Researchers don't know what they don't know. They have no reason to find out because there is no research equivalent for "duty of care", "breach of duty of care", and "harm" which "results from the breach of duty of care" (the components of negligence in health care). Researchers have a duty of care to the potential consumers of products of research outcomes, and also to the public who fund research in Australia through their taxes.

Page reviewed: 17 September, 2018