The consequences of knowing: Ethical and legal liabilities in illicit drug research

~ Pergamon S0277-9536(96)00055-X

Soc. Sci. IVied. Vol. 43, No. I1, pp. 1591 1600, 1996 Copyright © 1996 Elsevier Science Ltd

Printed in Great Britain. All rights reserved 0277-9536/96 $15.00 + 0.00

THE CONSEQUENCES OF KNOWING: ETHICAL AND LEGAL LIABILITIES IN ILLICIT DRUG RESEARCH

J O H N F I T Z G E R A L D and M A R G A R E T H A M I L T O N

Drug and Alcohol Research & Teaching Unit, Department of Public Health & Community Medicine, University of Melbourne, Parkville 3052, Australia

Abstract--Ethnographic research into illicit drug use necessarily involves the researcher being aware of illegal activities. Information about illegal activities is obtained through the establishment of confidential relationships with research participants; however there are legal and ethical obligations on researchers to breach confidential relationships formed in the research environment. The recent suspension of a research project by an Institutional Ethics Committee serves to illustrate some of the processes that form the research process, shape the boundaries to legitimate knowledge and some of the consequences of knowing about illegal activities. Copyright © 1996 Elsevier Science Ltd.

Key words--ethics, confidentiality, ethnography, illicit drug use.

INTRODUCTION

Research into illicit drug use necessarily involves the researcher being aware of illegal activities. However, the ethical and legal obligations of ethnographers and clinicians especially in the area of confidentiality of data are unclear [1, 2]. In most professional codes of ethics it is a requirement for the proper ethical conduct of the study to enact measures to safeguard the anonymity of participants and the confidentiality of information obtained in the research setting [3, 4]. The Australian National Health and Medical Research Council ( N H M R C ) [5], the governing body for medical and epidemiological research in Aus- tralia, states in its guidelines for epidemiological research that:

Point 8 The use in an epidemiological study of confidential or personal information should not be allowed to cause material, emotional or other disadvantage to any individual.

Point 9 Information that is confidential or personal, obtained for research, must not be used for all purposes other than those specified in the approved protocol. If the information is to be used for new research, a new protocol must first be approved by an Institutional Ethics Committee.

Point 10 Investigators and their associates must preserve the confidentiality of information about research subjects. The confidentiality of records used in epidemiological research, both in the short term and long term, must be at least as secure as it was in the sources from which the records were obtained.

However, the extent to which the confidentiality of information obtained in a research setting can be maintained has recently been questioned [2, 6]. In particular, health professionals face legal obligations

to breach confidentiality [7]. Obligations such as statutory requirements for mandatory reporting [8], duty to protect a third party [9, 10] and civil liabilities related to workplace practices [11], make ethnographic research into illicit drug use increasingly difficult to conduct, often with the responsibility for these issues being shouldered by the researcher rather than by the institution [1 I, 12].

The present article reports on a qualitative study of hallucinogen users that was suspended when some novel ethical and legal questions were raised by the investigators about legal and ethical obligations. A legal opinion on the questions raised was obtained and may serve to inform other researchers of the limits of confidentiality, at least in an Australian context. This article also describes the process by which the questions arose, and how the process of forming ethical questions can affect the conduct of the research. The process of asking questions about the factors that contribute to the knowledges and voice of the author refers to a strengthening reflexive tradition in anthropology and the social sciences where there is reflection not only on what we know, but how we think we know [13, 14]. Thus, the legal advice received in the course of our ethnographic study, is accompanied by a discussion of how that process of questioning affected the data collection and the conduct of the study.

The project in question was a 12-month qualitative study ("An Exploratory Study Of Hallucinogen Users In Melbourne") funded through the Victorian Government ' s Drug Rehabilitation and Resea, rch Fund. Data collection was suspended for 6 months by the university department in which it was situated, it is argued in this paper, for a variety of legal, ethical, political and moral reasons.

Thus, the present article will endeavour to tell three

1591

1592 John Fitzgerald and Margaret Hamilton

stories; the story of the conduct of the research; to impart one of the products from the research, and a discussion of the relationship between the products of the research and the conduct of the research. This self-reflexive approach, at first thought to be a brief excursion with observational data, became, as the story of the research will reveal, more a necessity than a theoretical position planned at the beginning of the study.

THE RESEARCH GRANT APPLICATION

The Drug Rehabilitation and Research Fund was a Victorian State Government funding body special- ising in short term projects (under 12 months) with budget ceilings of less than AUS$50,000. Money for the fund came from assets seized through law enforcement activities in the drug arena. The advisory committee consisted of drug and alcohol researchers, a senior lawyer, health department advisers and two senior police officials.

Prior to the research grant being submitted, the funding body was consulted for any relevant advice. We were asked to talk with the Victoria Police drug squad who were helpful in providing some important background information. It became clear that while the drug squad did not hold hallucinogen use to be a priority there was a level of concern within the Victoria Police about the use of hallucinogens, because of their use in social worlds inaccessible to the police drug squad, such as the "warehouse party" or "rave" scene. In 1992 the Victoria Police mounted a 12-month undercover operation ("Operation flashback") demonstrating the level of this concern.

The research literature did not suggest a significant rise in hallucinogen use over time in the general population, rather a maintenance of use prevalence similar to amphetamine [15]. Anecdotal evidence and reports from small world studies [16, 17] suggested, however, that the use of hallucinogenic substances may have increased in particular social worlds particularly those associated with dance music (such as "techno", "trance" and "rave" music) and that the ethic around using hallucinogens may have changed because of a reported reduction in the dose size (State Forensic Science Laboratory, personal communication).

The study was designed to explore hallucinogen use in Melbourne. The aims were firstly, to describe the patterns of hallucinogen use in Melbourne, to describe the social worlds in which LSD is being used, to become aware of the factors that control the use of LSD and finally to gain an understanding of the social environment surrounding LSD use in order to develop recommendations for harm reduction strategies.

A sample of 100 hallucinogen users would be contacted through a peer referral or "snowball" methodology [18]. Each participant would take part in a semi-structured interview at a mutually agreed

upon location. Interviews would be taped and transcribed, and the transcripts would be analysed for themes around the central concepts of general history of drug use, the actual drug experience, supply and price, attitudes towards drug use and social environments of use. A self-completed questionnaire was also to be used to collect background information such as demographics, leisure and work activities and general health. The application for funding was lodged with a 12-month time-line of which 10 months were allocated to data collection. Data analysis was to continue throughout data collection consistent with a grounded theory approach [19].

ETHICS APPROVAL

Prior to being notified about the success of the grant application, work began on ethics approval. Gaining approval to conduct research involving human subjects required the submission of an application to the Melbourne University Human Research Ethics Committee (HREC) in accordance with the guidelines outlined by the National Health and Medical Research Council [5]. The application articulated the details of the project, its aims, methods, and a description of the research process.

The HREC application required specific information about potential risks associated with the project, both to the participants and the researchers. The only risks perceived by the researchers at the time were legal risks. Specifically, those risks were associated with disclosure of information about illegal activity. It was stated that those risks would be minimised by maintaining participant anonymity throughout, through the removal of identifying features from tape recordings and interview transcripts.

The completed ethics application was scrutinised by the Departmental HREC, which consisted of the Head of Department, the Deputy Head of Depart- ment and the Heads of major research and teaching units within the department. After approval from the Departmental HREC the application was referred to the University HREC with a recommended status as a minimal risk project. The University HREC has different procedures for handling project applications of different risk status. Minimal risk projects are approved at the discretion of the chair of the HREC, while high risk projects at that time were required to be tabled at meetings of the University HREC.

The HREC approved the project in April 1993. Additional procedures to document informed con- sent were required before ethics approval was granted. The additional procedures involved taping a verbal response from the participant that they agreed to take part in the study, and that they had been fully informed about the aims and procedures of the study. No other ethico-legal questions were raised by the University HREC at that time.

Ethical and legal liabilities in illicit drug research 1593

DATA COLLECTION

Based on existing reports [16, 17], a targeted sampling approach was adopted [20]. Several target groups were identified: those in the gay male nightclub scene, the heterosexual nightclub scene, the grunge music scene, the jazz scene, students, and the dual diagnosed (those with both psychiatric disability and alcohol and drug problems). Entry into social settings was crucial as interviews were to be conducted at locations agreed upon by both the researcher and the participant. In many instances interviews were conducted in the participants' own homes. A high level of trust was paramount to allow this to occur. The contact with users in a variety of social settings led the researchers to develop more formal procedures for note taking and debriefing after interviews.

The context in which information was obtained was acknowledged as an important factor in shaping the type of information being collected. This was an important stepping stone in the generation of a line of research questioning that shaped the direction of the project. The position of the researcher became integral in the construction of the research dialogue:

As field researchers, we both actively construct and are constructed by the discourses we embody and the metaphors we enact. We are, in effect, both the subject and the object of our research [21].

As part of the study, the researcher's own story was documented, to acknowledge the impact of the researcher on the research process and to document the dialogic nature of gaining an understanding of the phenomenon. In accordance with this tradition, a more detailed inspection of the ethical and legal placement of the researcher in collecting this information was embarked upon.

LEGAL VULNERABILITY

The potential vulnerability of the ethnographer became apparent prior to the commencement of the study, when the Research Officer was approached by a police undercover operative. The undercover police officer suggested that a trade of information could be done: the undercover officer would introduce the ethnographer to drug users to interview in exchange for information that the ethnographer could pass on to the police. It was apparent that the police may value the information being collected by the researcher. The extent to which they would value the information was at question: would they value it to the extent of getting a warrant for the data or even to the extent of placing surveillance on the ethnographer?

Early in the course of the study the research officer gave a paper at a one day conference on lllegal Drug Markets in Australia [22]. The conference was attended by Federal and State law enforcement personnel and public health researchers. The paper

presented discussed the difficulties of conducting ethnographic research in an environment of legal vulnerability to the researcher. Three specific areas of vulnerability were identified in situations:

• where the researcher was in the presence of illegal drug transactions.

• where the researcher was in possession of knowledge about illegal activities.

• where there is no legal protection for information collected.

Moore [12] has previously noted the ethical problems of establishing a dialogue with law enforcement when conducting ethnographic research into illicit drug use. However, other than ethical questions, a number of practical questions arose about the conduct of the researcher. In particular: "What would you do if there was a police raid on a house when you were conducting an interview?" and "What do you do if someone tells you that they're bringing in a delivery of ecstasy into Melbourne in a week's time?" While data collection was continuing, a line of questioning arose trying to address some of these questions.

HIATUS WITH THE LAW

A briefing paper was prepared for the Head of the Department which detailed the current understanding of the legal position of field researchers and requested funding for a senior legal opinion. The briefing paper was based on both formal and informal consultations with a number of people representing several sides to the question of legal placement. Of key importance were contributions from the Assistant Commissioner of Victoria Police, the University Solicitors Office, and a private solicitor experienced in criminal law relating to illicit drug use. At that time two main areas of concern were identified, criminal and civil liability.

There were two areas of criminal liability identified. The first is "Contempt of court", where a refusal to provide evidence to a court, if requested, may constitute a criminal offence. As there was no confidentiality legislation for epidemiological studies in Victoria, protection of the information was not available. The second area of criminal liability was thought to be related to the law of aiding and abetting, where simply being in possession of information about illegal activities may constitute aiding and abetting.

In response to the briefing paper the Head of Department sought legal advice, consulted with the Dean of the Faculty and issued a memorandum to the researcher to cease research activities on the project until definitive legal advice was obtained.

The issues around the maintenance of confidentiality had brought to a halt two projects in the research unit as another research project collected detailed information about criminal behaviour related to drug


use with a standard instrument (the Opiate Treatment Index) developed by the National Drug and Alcohol Research Centre [23].

Further communication with the Assistant Com- missioner of Police clarified some issues and an informal review of the Police Commissioner's position through the Law Faculty at Melbourne University offered a more detailed understanding of what laws may possibly be involved. Regardless of the real risks for prosecution (which we had all along been advised were very remote), we thought we had a more definitive understanding of what were the possible areas of vulnerability.

Criminal liability

Further consultation suggested a number of specific areas of criminal liability. The first was in the law relating to "contempt of court". This was thought relevant for the situation where through not revealing information about study participants when required to by a court, the researcher could be held to be in contempt of court [Magistrates Court Act (Vic) 1989, s335]. The second was through the law of "aiding and abetting", where the researcher may be criminally liable if s/he could be seen to be commissioning a crime such as illicit drug use, by not reporting it. This interpretation of the law of aiding and abetting relies on a perception that by actively not condoning a criminal act, a researcher may be seen to encourage or even commission the crime [Crimes Act (Vic) 1958, 3323-324; Drugs, Poisons and Controlled Substances Act (Vic) 1981, s80]. The third area was through the law of "concealment for benefit", which replaced the laws of "misprision of felony" and "compounding". Concealment for benefit was designed to prosecute those who receive material benefit for not disclosing serious crimes (e.g. being "paid off for keeping quiet"), 'serious' crime being that crime which would result in a term of imprisonment of 5 years or more [Crimes Act (Vic) 1958; s326].

Civil liability

Clarification was needed for the insurance cover of staff (researchers) who, as part of their ethnographic research, may be in special environments and taking part in activities that may not be covered by the University insurance policy. Two specific areas of clarification were required; firstly, whether by carrying out research activities in unusual work environments (e.g. drug users homes or in nightclubs) was the researcher still covered for damages attained in the course of work activities? Secondly, in regard to the University's General and Products Liability Insurance, the "insured" under the University's policies refers to all members of staff whilst carrying out activities in the course of their employment. This liability insurance protects staff members and the products of their research from being subject to personal litigation if damages result from their

actions as staff members of the University. In our situation, were the specific activities of researchers in these research projects covered in case there was a claim made against any of the individual researchers?

FURTHER CONSULTATION

One issue we were becoming particularly conscious of was the seemingly unprecedented nature of the legal problems being presented. Moore [12] had mentioned the dilemmas of being aware of crime in this field, but had offered no legal solutions. We were unaware of other drug and alcohol researchers having gone down this path of questioning, and furthermore, we had never anticipated that simply asking these questions would result in the suspension of our research activities. We contacted members of the research community, sensitive of course that other researchers conducting similar research may very well be unwilling to become involved in the problems we were having, on account of their own vulnerability.

The initial response of some colleagues to the situation as described was "that 's absurd", others responded with "oh no, you're opening a can of worms" while others simply did not want to know about it, and did not want to be included in the debate for fear of having their own study suspended. A pleasant surprise was in store to find some drug and alcohol researchers in Perth and Sydney who were willing to give access to previous consultations with lawyers on issues of confidentiality and legal protection of research data.

Legal advice from private solicitors in 1991 consulted during a study conducted through the National Centre for Research into the Prevention of Drug Abuse (NCRPDA), in Perth, Western Australia suggested that even the accepted techniques of ensuring anonymity were not foolproof. Legal advice from Western Australia suggested that using the techniques of passwords on files and hidden information may still leave the researcher open to prosecution. The concluding paragraph of the advice was telling, considering the continuation of the Perth study in light of the advice they had been given:

The only certain way to protect researchers from criminal liability is the passing of legislation to that effect. Our research shows no legislation has been passed to date.

Thus there may be a possibility, albeit remote that maintaining confidentiality when conducting research into illicit drug use and associated behaviours may become a crime under a number of jurisdictions.

Legislative pro tec t ion for da t a collected in epidemiological studies funded by an Aus t ra l ian C o m m o n w e a l t h Gove rnmen t agency can be ob ta ined th rough studies being listed under the Epidemiological studies (Confidentiality) Act 1981. Two past studies o f illicit drug use have been listed under the Act; however, the 18-month wait ing per iod for studies


to be listed under the Act made this facility unusable for studies of short duration, and the Act only covers studies funded by the Commonwealth Government. As the Hallucinogen study was funded through the State Government, this avenue was not open to us.

In response to the publication of an article [24] on the problems that we were confronting, we received information about other researchers who had experienced similar ethical and legal problems. In one such case still proceeding at the time of writing of this article (consequently, few details can be disclosed), an outreach worker conducting peer HIV/AIDS edu- cation with intravenous drug users was charged with the possession of illicit substances. It has been alleged that the identification of the worker by police, and ultimately the conviction of the outreach worker, came as a result of the workers' employment as a peer educator. In this situation, the ethical and legal responsibilities of the health authority to the outreach workers are apparent; however, the health authority certainly did not represent the worker in court. Equally apparent perhaps, is the potential civil liability of the employer in not providing a safe workplace.

PERSONAL POLITICS AND MORALITY

Including discussion of personal politics within an academic paper is difficult and fraught with legal danger. Personal and professional slights were apparent in heated discussions as to whether researchers had a moral obligation to report illegal activities to the police. In order to limit the damage that a discussion of this type could have on the relationships between researchers around this project, minutes of meetings and discussions, recorded at the time of the project have not been documented in this paper. The extent to which personal morality can be discussed in this paper has been limited by a heightened sensitivity to breaches of confidence (and subsequent legal recourse) within the research team and the need to maintain working relationships between university researchers. In fact, legal advice was sought on three occasions prior to the publication of this article. This text is itself very much a cultural product [14].

The reduction in the scope of the questions being asked in the project seemed to be related to a central question in criminological/ethnographic research into illegal behaviours: is it ethical to collect information about illegal activities, and be prepared not to report those activities to law enforcement? The Chair of the Departmental HREC suggested that it was unethical to know about serious crime and not report it to police. Discussion centred then, not on a legal obligation to breach confidentiality, but on a moral obligation of researchers to breach confidentiality, when they became aware of serious crime. Discussion of the morality of the research act is a central part of the ethical mandate given for Institutional Ethics

committees under Point 1 of the NHMRC statement on human experimentation:

The research must conform to generally accepted moral and scientific principles. To this end institutions in which human experimentation is undertaken should have a committee concerned with the ethical aspect and all projects involving human experimentation should be submitted for approval by such a committee.

Thus, it is clear that beyond the legal consequences of knowing about illegal activities, within the ethical consequence of knowing, there are moral and political realms to be considered.

LEGAL ANSWERS TO LEGAL QUESTIONS---CRIMINAL LIABILITY

The University sought further legal opinion following advice from the Chair of Criminology. In relation to the questions about criminal law, the advice suggested that:

• Gathering facts is not an offence known to law. • Researchers are not liable under the laws relating

to aiding and abetting a crime. Interviewing a person who has committed offences or may commit offences in the future cannot constitute the relevant a c t u s reus of aiding and abetting any offence committed or to be committed by that interviewee.

• The Victorian Director of Public Prosecutions (DPP) would not permit the bringing of charges against researchers because the Victorian Govern- ment through funding the research has given approval to the research and the existing guidelines followed by the DPP dictate that it is not in the public interest for charges to be laid.

• The researcher must not, however, accept any material benefit in return for non-disclosure of the commission of serious indictable offences.

• The researcher must not encourage or instigate criminal conduct.

• Researchers' data can still be searched by police if a warrant is issued. Any assurances of confidentiality must be considered worthless if this is to happen. If the researcher is subpoenaed, the researcher is obliged to reveal the identity of the interviewees. In this situation, refusal to answer may result in contempt of court charges. There is no medical or other privilege which would enable a researcher to refuse to identify sources. Consequently, accepted procedures to maintain anonymity must be adopted.

Whilst a number of the questions about criminal liability were resolved and the research project was able to continue, there still remain some crucial ethical and legal liabilities for ethnographers. A researcher cannot guarantee absolute confidentiality to participants, so how can they knowingly put informants at risk by asking them to reveal information that potentially may incriminate

SSM 43/ll D


themselves. Likewise, in knowing about illegal activities, the researcher may be potentially at risk of criminal prosecution. If a researcher is called upon to identify study participants in a court of law and fails to identify informants, as the researcher is bound to do if s/he keeps by ethical codes of conduct, the researcher may be subject to contempt charges. If researchers, are required by law to identify research participants, researchers are placed in the same position as journalists.

Similarly, is it ethical (or legal?) for a research institution to employ an ethnographer to collect information about illegal activities, and thereby put their worker at risk of criminal charges? Given that the worker will want to abide by the professional code of ethics that s/he is bound to, it seems likely, that prosecution may be a possible outcome.

Thus there seems a possibility, albeit remote, that research into illicit drug use and associated behaviours may become a crime under a number of jurisdictions. It may well be that legislation may be the only way to guarantee researchers that they can continue research in confidence.

LEGAL ANSWERS TO LEGAL QUESTIONS--CIVIL LIABILITY

A critical factor in the questions being raised was whether the University would still provide insurance for the activities of researchers conducting research in social environments associated with illicit drug use. These questions were taken by the University Solicitors Office to the University Insurer. In summary:

• In regard to the public and products liability, there appears to be nothing in the project activities which is likely to void this cover. Whether a claim could be denied because of breach of a condition is something that could only be determined from the circumstances at the time of the happening.

• The beneficiary should comply with all statutory requirements. It is also appreciated that Dr Fitzgerald will be working in an area which could possibly put him at odds with the law.

• Should Dr Fitzgerald be injured in the course of his employment and this project presumably is all a part of his employment with the University he should be entitled to claim Workcover benefits. . . .the broadened scope of Dr Fitzgerald's activities for this particular project is unlikely to reduce the University's liability to pay Work- cover benefits.

It seems, therefore, that there is no change to the insurance and Workcover responsibilities for researchers involved in this type of research project; however, there is also the inevitable "each case must be considered" clause.

A more worrying caveat is the need for a beneficiary to comply with all statutory requirements,

that is, the beneficiary will not be insured if s/he is breaking the law. While there is no clarification that the research act is completely lawful, is there then only a limited assurance that a researcher can be covered by the institutions' Public and Products Liability insurance?

The hallucinogen project was recommenced upon receipt of the above legal advice and subsequent ethical clearance 6 months after it was suspended. The project was reclassified by the University Ethics committee as a "risk" study, the highest risk category for approved research projects.

CONCLUSIONS/DISCUSSION

Confidentiality and ethics

There is no absolute confidentiality that can be offered to the individual as either a patient or an informant [2]. A question arising from this study is whether it is ethically justifiable to ask people who commit crimes to participate in research, on the understanding that they could be prosecuted in the future. Anonymity measures can be undertaken that remove identifying features from data; however, for ethnographers and interviewers, with face to face and repeated contact with informants, these measures are meaningless. A number of anthropological ethical codes, such as the New Zealand Principles of Professional Responsibility and Ethical Conduct specify that:

In their work, anthropologists' paramount responsibility is to their research participants. When there is a conflict of interest, these individuals must come first. Anthropologists must do everything in their power to protect their physical, social and psychological welfare and to honour their dignity and privacy.

How is this position reconcilable with the legal requirements to breach confidentiality? Is it unethical therefore to allow ethnographic research into illegal behaviours to continue, given that the basic design of these studies is to know about illegal activities, and that in revealing that information in that context will make a participant open to prosecution. Robinson [2] suggests that there are ethical grounds for professionals to break the law (and not to disclose confidential information), in the face of an unjust law. However, is it ethical then to ask professionals to break the law, in order to do their job.

There is, however, a legal justification for breaking the law in the face of the potential for a greater harm arising from respecting the law. The legal justification of "necessity" is defined by the American Law Institute Model Penal Code (s 3.02) cited in [25]:

(1) Conduct which the actor believes to be necessary to avoid an evil to himself or to another is justifiable, provided that: (a) the evil sought to be avoided by such conduct is greater

than that sought to be prevented by the law defining the offence charged; and

(b) neither the code nor other law defining the offence


provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offence for which recklessness or negligence, as the case may be, suffices to establish culpability.

In the context of research into illegal behaviours, the necessity justification could be used to defend the actions of a researcher who refuses to disclose confidential information when requested to do so by a court. The necessity argument would purport that the harm arising from disclosing confidential information, and thus endangering the future capacity to conduct research into illegal behaviours (because of a fundamental distrust arising from the incapacity to provide guarantees of confidentiality) would outweigh the harm done by refusing to respect a court's request to disclose confidential information and be in contempt of court. The defence of necessity would have to demonstrate that the public need for research into illegal behaviours outweighs the public need to prosecute bona f ide researchers that do not comply with court evidence procedures. As Bannister and Milanovanovic [26] state:

the defendant's position in a necessity defence case is that her or his conduct was necessary for the public good even though it violated a criminal law...[If] the court finds that social utility is maximised by the defendant's actions, the actus reus requirement of criminal law is negated and the defendant is acquitted.

It is unclear how relevant the necessity defence may be in the current circumstance, given its failure in a recent prosecution of an ethnographer for withhold- ing information from a grand jury in the United States of America about the illegal activities of a radical animal rights group [27, 28]. There are, however, qualifications to the failure of the necessity defence in the above case. The graduate student ethnographer involved did not have ethical approval from his University, and the research was not government funded, and therefore not mandated by the State.

The necessity defence used in the above case [28] relied on the argument that even though the study was not officially mandated by the public, there was a privileged need for that knowledge, akin to the public need for the freedom of the press to provide knowledge. The defence failed on the grounds that the court held that there was no privilege derived from a greater good arising from his position as journalist/scholar. The ethnographer was charged with contempt of court and jailed for 159 days.

There may, however, be a different deliberation on research that has been mandated to be in the public good if the research is funded by the State or when it is approved by an institutional ethics committee. If research has been judged to be ethically sound, it has

presumably, been mandated to be in the public good. It may be possible that a researcher engaged in a study that has been approved by an ethics committee may potentially be able to utilize a necessity defence on the grounds that the research was mandated to be in the public good. The temporal nature of ethical soundness as evidenced in this study, reinforces an argument that an institutional ethics committee can provide dynamic evaluation of the ethical conduct of research and thus provide a suitable mandate for research to be in the public good. The ethical status of the current study shifted three times in the course of its progress. Upon initial ethical clearance, the study was ethically sound; however, when data collection was suspended upon receipt of the first briefing report, the project became ethically unsound, because it was not clear as to whether the activities were legal. Finally, when recommenced after receipt of legal opinion, the study became ethically sound once more. Thus the temporal nature of what it means to be ethical rests on the authority of the institutional ethics committee. Consequently, if the authority of the ethics committee is to reflect the public needs for research, then ultimately the institutional ethics committee could be seen to arbitrate on the capacity of a study to be in the public good.

If a necessity defence was used by a researcher to refuse to disclose confidential information, approval of the research by an institutional ethics committee may be integral in establishing that the research is in the public good. This of course raises a point about the authority of institutional ethics committees. At least in an Australian university context, the institutional ethics committee is a committee of the university and as such carries all the legal liabilities of decisions made by any university committee. Additionally, individual committee members are not liable for decisions made by the committee. Finally, the constitution and procedures of the ethics committee are governed by adherence to the NHMRC statement on human experimentation and supplementary notes [5]. Thus, approval by an institutional ethics committee may well provide adequate support to an argument that approved research is conducted in the public good.

In the present study, it was apparent in most consultations on matters relating to the ethical handling of confidential information that there was a reliance of the university ethics committee on legal precedent and formal legal opinion to establish an ethical position. Thus the law became the final arbiter on an ethical matter. An alternative to this process is posited in the |brm of the logic of the necessity defence. The necessity defence ostensibly suggests that "a wider codification of reality can take place", than that usually accepted in law [26]. The necessity defence enables a balance of values that can entertain moral and social arguments of what is in the public good, not just legal precedent and legal opinion [26].


The necessity defence deviates significantly from formal legal rational logic. This balancing test is also at the core of the ethics of the ethnographic project when dealing with hidden, secret or illegal behaviours [29]. The ethnographer of illegal behaviours con- stantly has to weigh up the consequences of knowing against the consequences of not knowing certain types of information. A fundamental principle that justifies conducting this research is that the research must be in the public good. Determining what is in the public good, however, requires more than a legal directive of what is in the public good. As suggested in this study, there are moral, social and political realms to be considered in determining what is in the public good. Every step in the research process must be justifiable, not simply in a court of law, but in social life. Prescriptive regulations and legal precedent that specify the limits to ethnographic research into illegal behaviours may not be appropriate to the task of identifying what research ultimately is in the public good. The public good for the ethical maintenance of confidentiality should be ascertained on a case-wise basis, however temporal, political, contingent and perhaps unwieldy that process is. Rather than rely on formal legal opinion, the logic of the necessity defence could be used by institutional ethics committees to justify the ethical maintenance of confidentiality in the face of law prohibiting it. If the capacity to conduct research into illegal behaviours is to be sustained, there must be a guiding ethic that acknowledges the shifting priorities of the 'public good' and entertains more than a formal legal process and opinion in establishing the ethical limits of what can and cannot be known.

Civil liability

On the present advice, institutions housing ethnographic research may be held liable for damages attained as part of the normal research activities. It will be interesting to see whether institutions can be held liable for civil damages resulting from criminal convictions (such as contempt of court) imposed on researchers as part of their employment. Given that it is unlikely that an employer will be held liable for the illegal activities of any employee, it seems improbable that there will be civil recourse for researchers prosecuted for activities that were part of their job. Similarly, participants who may be identified or prosecuted because of their involvement with the research activities of the University may not have suitable recourse for damages.

The project

The ethnographic data that were finally collected formed the basis for a small study with reduced scope and less depth of analysis. The ethical handling of the project impacted heavily on the scope of the research reducing the sample size from 100 down to 30, and the target social worlds from 4 down to 1. The effect of the handling of the ethical issues on the data

collection/interpretation was quite apparent. Re- search participants were informed about the ethical handling of the project, which sometimes served as a barrier to the "peer referral" data collection system we were using to get in touch with users. For other participants, the problems formed part of the shared research experience, as depicted in field notes:

Andrea just laughed when I told her about the hassles I was having with the Uni. She couldn't believe that it was still going on and she just laughed. It was good, I felt like there was a good rapport there. She knows the distance in mine and hers and Eugene's relationship is necessary, its the safest thing. I still get the feeling however that she will always be open to talk with me. There's something really solid about Andrea.

The field notes from the last "warehouse party" attended by the Research Officer reveal the t ime-consuming and energy-draining effect of dealing with the ethical issues, whilst also conducting the project.

I was exhausted. I felt like Phaedrus out of Zen and the Art of Motorcycle maintenance. In a lot of ways I think I still see myself like Ph. I don't know how strong I can be. I've made a stand for what I feel is right. I've cut off from friends and certainly have alienated myself from the University community . . . . I certainly felt like I'd burnt my bridges and I would soon be thrown out of the place, if not formally then informally. I was tired and I was sick of the shit that had been going down in the dept. I didn't want to do this job anymore, there was too much stress, and I felt like I'd lost the plot. I was spending so much time playing politics and keeping [the Uni] off my back that my work was suffering.

I didn't want to go [to the warehouse party]. All I wanted to do was sit down and get really drunk. But I knew that I'd never have the opportunity ever again to do what was made available to me. I didn't even bother to get changed beforehand.

The ethical issues became part of the project for the participants, who became concerned at the change in the nature of the relationship between themselves and the researcher. Not only were they asked to be the "Other" - - the subject of the gaze of the researcher, but a deviant other who could lawfully be reported to the authorities [30].

I think the most important person of the night was Jane .... When she met me she was really suss [suspicious] on me, very distant. I kept talking nervously, and she knew it. It took me about 3 hours of trying to convince her that doing research was worthwhile. I tended to agree with her analysis that the Government will simply appropriate what they want from the study and disregard anything of substance. She was worried about Geoff because he is a promoter and my study could very well, if taken badly by the Government, act as evidence for cracking down on the techno scene. Which would certainly damage Geoff's life.

What are the products from this research? If this paper is an outcome it is a depiction of some of the factors that can influence the process of questioning [31]. This paper does not, however, discuss issues or events that occurred that were either too sensitive for the researchers and/or too sensitive for the participants to document. Thus, the notion that this paper


is a cultural product makes this text difficult to interpret. Marcus [32] suggested that

The most interesting and provocative theoretical works are precisely those that point to practice, that is, to a bottom-up reformulation of classic questions, which hinges on how the previously taken-for-granted facts of high theory are to be represented. These works constitute renewed assaults on positivist perspectives ... The concepts of structure on which such perspectives depended are really processes that must be understood from the point of view of the actor, a realization that raises problems of interpretation and presents opportunities for innovation in writing accounts of social reality.

The complexity for this article is that the authors are now the "actors". Where once the "subject's" perspective was sought after and analysed, now the author's voice and place are the subject for scrutiny. This position of reflexivity was one that developed through the course of the project. At first, the choice to document the position of the author in the research process was an excursion into murky post-structural waters, rarely experienced in the public health discourse [33]. At the conclusion of the study it was a major source of insight that informed the writing and analysis of the ethnography [34].

A line of questioning began with the simple question of "How does the place of the researcher affect the perception of the phenomenon being studied". In the end the researcher became the phenomenon being studied. Perhaps this line of questioning was required, to enable a step forward in our understanding of how ethnographic research in urban environments is (or is not) conducted in Australia. The consequences of this line of questioning are however, the partial fulfilment of a research contract, the inability to conduct a comprehensive piece of ethnographic research, and finally a shift in the writing of the research away from the subject of research to the process of the research. This line of questioning, and subsequent writing, sometimes called the "postmodern solution" has recently been criticised [35]; however, it does present a very necessary analysis of some applied anthropological questions.

POSTSCRIPT

In response to detailed comments from the reviewers of this article, we would like to make some additional clarifications to place the Australian experience documented in this article within an international framework. Parts of this additional information were made available to the authors by the reviewers.

Civil liability

A range of American laws cover workers compensation claims for injury attained as a part of work: federal statutes govern federal employees and State statutes govern State employees. When

workers' compensation applies, there is no civil liability to an employer, with the applicable statute fixing the awards for damages (Blacks Law dictionary, 6th Edn 1990, p. 712). The situation described in the current article posits a different scenario to a workers compensation claim. In the current circumstance, it is hypothesized that, if an employee (researcher) sustains damages, such as a criminal conviction from a contempt of court charge (for example if they refused to disclose confidential information in a court), s/he may be precluded from obtaining workers compensation because workers' compensation requires that the worker must be obeying statutory law for coverage to apply.

Alternatively, an employee may bring an action for damages at common law against his or her employer, separate from any entitlement to benefit under the Action Compensation Act (Vic) 1985. The employee must prove negligence or fault on the part of the employer and be able to demonstrate serious physical or mental injury or illness (with at least 30% impairment). Workers' compensation benefits could not be paid for the payment of court fines or other penalties resulting from a contempt of court charge.

The civil liability of the university was raised as an issue because, if the researcher were to issue a damages writ on the University for damages relating to a criminal conviction, given that the university employed the researcher to conduct the research even though the university knew that the activities of the researcher "may be at odds with the law", the university may be exposed to liability. The reviewer suggested that this situation may be analogous to the employment of bouncers (private security) at hotels to injure people. As the bouncer is furthering the masters (sic) enterprise and the ensuing harm to the employee or third persons is foreseeable, the law of agency applies. Australian legal advice suggests that if the Univer- sity did ever become liable, a similar consideration would apply. A company acts through its servants and agents, and as such, a criminal act of an employee can constitute a criminal act of the company; however, for the acts of the employee to be regarded as acts of the company, the employee would generally need to have been given the authority to act in that manner by the company. Whether ethical approval would constitute such authority would need to be considered.

Confidentiality and privilege

In America, most states have enacted "shield laws" which allow journalists to refuse to disclose confidential information during a legal proceeding. Scarce [28] suggests, however, that journalists and scholars do not enjoy privilege in grand jury proceedings. No such legal precedents exist in Australia.


REFERENCES

I. Mason J. K. and McCall Smith R. A. Law and Medical Ethics. Butterworths, London, 1987.

2. Robinson I. Confidentiality for whom. Soc. Sci. Med. 32, 279, 1991.

3. British Sociological Association Code of Practice, BSA, London, 1979.

4. Australian Health Ethics Committee. Assessment of Qualitative Research: Information for Institutional Ethics Committees. Draft discussion paper, Australian Gov- ernment Printing Service, Canberra, 1993.

5. National Health and Medical Research Council. NHMRC statement on human experimentation and supplementary notes. Supplementary note 6, Epidemio- logical Research. Australian Government Printing Service, Canberra, 1988.

6. Potter R. H. The promise of confidentiality in criminological research: are we promising what we cannot deliver. Unpublished manuscript.

7. McConnell T. Confidentiality and the law. J. Med. Ethics 20, 47, 1994.

8. Lynch J. B. Trust versus legal obligation: a delicate balance. Publ. Welf. 48, 39, 1990.

9. Kagle J. D. and Kople S. Confidentiality after Tarasoff. Hlth soc. Wk 19, 217, 1994.

10 Stewart T. M. and Repucci N. D. AIDS and murder: decisions regarding maintenance of confidentiality versus the duty to protect. Law hum. Behat'. 18, 107, 1994.

11. Batchelor J. A. and Briggs C. M. Subject, project or self Thoughts on ethical dilemmas for social and medical researchers. Soc. Sci. Med. 39, 949, 1994.

12. Moore D. Ethnography and illicit drug use: dispatches from an anthropologist in the field. Addict. Res. 1, 11, 1993.

13. Gorfain P. Play and the problem of knowing in Hamlet: an excursion into interpretive anthropology. In The Anthropology of Experience. (Edited by Turner V. W. and Bruner E. M.), p. 209. University of Illinois Press, Urbana, 1986.

14. Atkinson P. The Ethnographic Imagination: Textual Constructions of Reality, p. 7, Routledge, London, 1990.

15. National Campaign Against Drug Abuse. 1993 National Drug Household Survey. Australian Government Print- ing Service, Canberra, 1993.

16. Fitzgerald J. L. and Reid J. J. Preliminary results of a qualitative study of ecstasy users in Melbourne. In Proc. 2nd Int. Reduction of Drug Related Harm Conf. Melbourne, 1992.

17. Moore D. Recreational drug use, with particular reference to amphetamines, ecstasy and LSD, amongst a social network of young people in Perth, Western Australia. Curtin University of Technology, Perth, 1992.

18. Biernacki P. and Waldorf D. Snowball sampling: problems and techniques of chain referral sampling. Sociolog. Meth. Res. 10, 141, 1981.

19. Glaser B. G. and Strauss A. L. The Discovery of Grounded Theory. Aldine, Chicago, 1967.

20. Watters J. K. and Biernacki P. Targeted sampling: options for the study of hidden populations. Soc. Probl. 36, 416, 1989.

21. McLaren P. Field relations and the discourse of the other: collaboration in our own ruin. In Experiencing Fieldwork: An Inside View of Qualitative Research (Edited by Shaflir W. B. and Stebbins R. A.), p. 152. Sage, Newbury Park, 1991.

22. Fitzgerald J. L. Methylenedioxymethamphetamine (MDMA) use in Melbourne: a qualitative study. In Australian Illicit Drug Markets Research Workshop (Edited by Bammer G.). National Centre for Epidemi- ology and Population Health, Australian National University, Canberra, 1993.

23. Darke S., Hall W., Heather N., Wodak A. and Ward J. Development and validation of a multi-dimensional instrument for assessing outcome of treatment among opioid users: the opiate treatment index. Br. J. Addict. 87, 593, 1992.

24. Fitzgerald J. L. and Hamilton M. Drug research stopped. Connexions. 14, 3, 1994.

25. Morawetz T. Justification: necessity. In Encyclopedia of Crime and Justice 3 (Edited by Kadish S. H.), pp. 957-961. The Free Press, New York, 1983.

26. Bannister S. and Milovanovic D. The necessity defence, substantive justice and oppositional linguistic praxis. Int. J. Sociol. Law. 18, 179, 1990.

27. Comarow M. Are Sociologists above the law? Chron. High. Educ. 40, A44, 1993.

28. Scarce R. (No) trial (but) tribulations: when courts and ethnography conflict. J. Contemp. Ethnog. 23, 123, 1994.

29. Mitchell R. G. Secrecy andFieldwork, pp. 36-41. Sage, Newbury Park, 1993.

30. Mitchell R. G. Secrecy and disclosure in fieldwork. In Experiencing Fieldwork: An Inside View of Qualitative Research (Edited by Shatfir W. B. and Stebbins R. A.), p. 108. Sage, Newbury Park, 1991.

31. Geddes W. H. Vernacular frames of thought and report writing. In Doing Fieldwork (Edited by Perry J.), pp. 109-134. Deakin University Press, Geelong, 1989.

32. Marcus G. E. Contemporary problems of ethnography in the modern world system. In Writing Culture: The Poetics and Politics of Ethnography (Edited by Clifford J. and Marcus G. E.), pp. 165-193. University of California Press, Berkeley, 1986.

33. Lupton D. Is there life after Foucault? Poststructural- ism and the health social sciences. Aust. J. Publ. Hlth 17, 298, 1993.

34. Fitzgerald J. L. and Hamilton M. H. An Exploratory Study of Hallucinogen Users in Melbourne. Report to the Drug Rehabilitation and Research Fund. Depart- ment of Public Health and Community Medicine, University of Melbourne, 1994.

35. Singer M. Knowledge for use: anthropology and community-centred substance abuse research. Soc. Sci. Med. 37, 15, 1993.

Documents

The consequences of knowing: Ethical and legal liabilities in illicit drug research