A recent challenge to the protection of information gathered on people living with HIV during research has called into question the legal concept of researcher privilege.
While common law does not expressly allow for researcher privilege in the way that a lawyer or doctor enjoys the assurance that their interaction is protected confidential information, it has been a commonly held belief that researcher privilege would not be challenged except under extraordinary circumstances.
That circumstance seems to have arrived with the recent court ruling pertaining to the Luka Magnotta case scheduled for trial in the Fall of 2014. Briefly, the case is about a search warrant issued to obtain the information allegedly given by Luka Magnotta during a research study in 2006.
During the proceeding initiated by the Principal Investigators of the research project to quash the search warrant, a set of questions were put to the legal test to determine if the information should be allowed at the upcoming trial. This legal test is known as the “Wigmore Criteria” and features four separate criterion, which when answered, establish the basis of the judgment on whether or not the information contained in the research would be allowed as evidence for the prosecution.
Basically, in plain English, the Wigmore Criterion ask the following questions relating to the issue:
Criterion One asks: Does the research participant believe that their information will be kept confidential, and is their participation in the research dependent upon this belief?
Criterion Two asks: Would the research project have been able to proceed without the promise of confidentiality, and would future participation in research studies be jeopardized if this promise was broken?
Criterion Three asks: Should the relationship between researcher and participant group(s) in the project be deliberately, consciously fostered and protected in the public interest?
Criterion Four asks: Do the benefits of allowing the information to be used in the interest of public safety, outweigh the protection of the researcher/community relationship?
In this case, the court ruled that the Wigmore Criteria had been satisfied, and the search warrant was quashed. The case is currently under appeal.
With the rise in criminalization of HIV and an increase in prosecutorial cases on non-disclosure, the bigger concern is what this means for peer researchers who are employed on projects because of their ability to elicit richer responses to qualitative inquiries, and are often privy to disclosure information with potential negative legal ramifications. What can we do to protect ourselves in this situation, and what is the best way to handle the risk involved with collecting information from participants that may be viewed as criminal activity and compelled in a court of law?
A few simple guidelines for peer researchers:
· The “duty to disclose” this type of activity does not apply here, except in very rare cases with specific detailed information
· Consider adopting a policy of immediately referring any disclosure concerns you may have directly to your research team supervisor/mentor to handle
· Develop skills on how to re-direct responses away from potentially criminal activity, and back to the purpose for information collection
· Always immediately turn over collected information to the research team to be secured according to the data collection and storage protocol of every research project, and out of your immediate possession
These few simple guidelines can help protect the promise of confidentiality crucial to conducting HIV research, and protect the peer researchers collecting information in our community, from possibly being compelled to testify in a court case.
This important issue warrants further discussion in the HIV research community, and the development of rigorous participant consent forms highlighting the legal limits of confidentiality promises for both participants and peer researchers.
New training protocol for peer researchers on data collection and storage, responsibly re-directing participant responses, and confidentiality promises on consent forms need to developed and implemented as standard practice when employing peer researchers. Research with us, and about us, needs to also include awareness of the risks and appropriate protection against criminalization while we are meaningfully engaged.
About the author: Terry Howard is the Director of HIV Community Based Research for Positive Living BC and not a legal expert. He sits on the Research Ethics Board of Langara in Vancouver BC, and has a keen interest in protecting peer researchers working in HIV research, and promoting the meaningful engagement of people living with HIV in research.
Superior Court, Province of Quebec, District of Montreal, January 21, 2014
Case: 500-36-006329-125: Parent/Bruckert v. Crown and Magnotta judgment: a certiorari application to quash a search warrant
Also, I received legal accuracy advice from Micheal Vonn, BC Civil Liberties, a recognized expert in the field of HIV criminalization on the content of this article.