Research and confidentiality: Legal issues and risk management strategies.

Abstract

Maintaining the confidentiality of research subjects and research data is essential to the research process. However, the legal landscape surrounding the concept of confidentiality is a dynamic one. This article discusses why confidentiality in research is important, various threats to it, efforts to protect it through a privilege, as well as other statutory and regulatory provisions relevant to research confidentiality. The article concludes with a discussion of risk management tools that researchers concerned with maintaining confidentiality can use in the design and implementation of research. Ogden has continued his research on assisted and is now studying the consensual deathing industry. Part of this research involves scrutiny of social reactions to those involved in consensual death, as occurs when persons are charged with crimes such as counselling suicide or aiding and abetting a suicide, a violation of section 241(b) of the Criminal Code of Canada. When such charges were laid against a Vancouver Island woman, Ogden attended the preliminary hearing early in 2003 to observe and take notes. Outside the courtroom the Crown prosecutor informed Ogden that he was a person of interest in the case because of his presumed research-related knowledge, and subsequently subpoenaed him, apparently in the vague hope that he might have information that could aid the prosecution. 1 Russel Ogden is a Canadian researcher whose work has been subpoenaed several times by prosecutors. He has resisted the subpoenas, which have eventu- ally been withdrawn, and the matter has caused considerable commentary in Canada about whether researchers should have a privilege against being forced to disclose their notes and related materials in legal proceedings. 2 Ogden's case, and others like it 3 raise important issues regarding the confi- dentiality of research data. Researchers have long assumed that maintaining