Accounting for Ethos or Programmes for Conduct? The Brave New World of Research Ethics Committees

Abstract

This paper examines the operation of power and its consequences arising from the growth of new ethical bureaucracies in universities. We use the UK as a case study to illustrate more general points about the globalised nature and impact of such bureaucratisation. Our focus is on the social sciences as this is where, we argue, the impact is likely to be most marked. The paper is organised in five sections. The first introduces our concerns. Section 2 traces the genealogy of these new regimes of control in the UK. We then problematise the new ethical bureaucracies, making an analysis in terms of the shift in the locus of power away from researchers to becoming centralised in bureaucratic structures. In section 4 we explore some of the ways in which researchers might respond to the changing regimes of ethical control. Finally, we offer considerations of the ways in which ethical governance of research might be differently conducted so as to avoid the adverse consequences of new regimes of control on research practice. Our aim is to provoke debate and thereby contribute to a platform from which to reassert ways to ensure that research is ethical and that do not interfere with the production and consumption of critical social science.

What can the ethics of an intellectual be … if not … to render oneself permanently capable of self-detaching? … To be at the same time an academic and an intellectual is to try to engage a type of knowledge and analysis that is taught and received in a university in a way so as to modify not only the thought of others but one's own as well. This work of modifying one's own thought and that of others seems to me to be the intellectual's reason for being’ … ‘After all what would the value of the passion for knowledge be if it resulted only in a certain amount of knowledgeableness and not, in one way or another, and to the extent possible, in the knower straying afield of himself (égarement)? (Foucault, cited in Rabinow, 2000: xxxix).

1. Introduction

Globally, higher education is subject to proliferating management control technologies (Epstein et al., 2007). Whilst the audit of teaching and research (Shore and Wright, 2000) and growing financial control mechanisms (Boden and Epstein, 2006; Nedeva and Boden, 2006) are familiar manifestations of these new regimes, a further and more insidious aspect is the burgeoning machinery of ‘research ethics’. Foucault stresses the desirability of égarement,¹ of straying afield or distancing oneself from normative definitions of morality and reason in order to take a critical, usefully knowledgeable perspective. Égarement amongst academics and intellectuals is contingent upon them having the freedom so to stray, albeit within a professional, philosophically grounded ethics arising from histories of, debates within and negotiations with a research community ethos (de Laine, 2000; Israel and Hay, 2006). However, the new ethics regimes taking root in universities sediment rules and codes in centralised policies, bureaucratic procedures and processes that delimit academic freedom to roam critically and creatively. In academic contexts such as those in the UK, Australia and North America, this transition in ethics has been rapid and is of particular significance given their historical traditions of academic freedom and discretion (Jacob and Riles, 2007).

Despite their potentially serious consequences, academic critique of new ethical bureaucracies has been limited to work deriving from philosophical and methodological perspectives, with relatively little from sociologists (see, however, Lincoln and Tierney, 2004; Bosk and de Vries, 2004; Israel and Hay, 2006) and has largely failed to account for the reasons why these bureaucracies have grown relatively unchecked by researchers and been embraced by university bureaucracies (Bosk, 2007). Whilst such work is essential, and generally well done, an explication of the operation of power through ethical bureaucracies and its impact on knowledge creation is now critically important. Accordingly, in this article we examine the operation of power and its consequences arising from the growth of ethical bureaucracies in UK universities. We focus on the social sciences, as this is where, we argue, the impact is likely to be most marked. Our considerations are grounded in our experience in critical ethnographic and qualitative research and the paper is intended as a provocation and stimulus to debate in the social sciences generally about the role and consequences of ethical regulation as enacted through the new ethical bureaucracies.

This article is organised into four further sections. Section 2 traces the genealogy of these new regimes of control in the UK. Section 3 problematises the new ethical bureaucracies, making an analysis in terms of the shift in the locus of power away from researchers and becoming centralised in bureaucratic structures. In section 4 of the paper we explore some of the possible ways in which researchers might respond to the changing regimes of ethical control. By way of conclusion, we offer consideration of the ways in which ethical governance of research might be differently conducted so as to avoid the adverse consequences of new regimes of control on research practice.

2. How did we get to this place?

In their useful account of social research ethics and ethical regulation in North America, Australasia, South Africa and parts of Europe, Israel and Hay (2006) note the many similarities in the origins and growth of ethical regulation internationally:

[I]t is possible to point to some recurrent themes. First, many early regulatory initiatives were responses to crises, often caused by biomedical research practices. More recently, ethical regulation has emerged as part of broader social trends towards individual and organizational ‘accountability’, public scepticism of science and authority and institutional risk-driven anxieties. Second, in several of the countries surveyed, ethical review strategies based on biomedical experience are being applied to the work of social scientists… . Cynically interpreted, funding support has been used coercively by biomedical agencies to apply their views of the world [to] other disciplines. Third, approaches to ethical regulation have been dominated by either a ‘top-down’ … or a ‘bottom-up’ … character… . However recent developments in South Africa and the United Kingdom suggest a shift away from ‘bottom-up’ arrangements to more uniform national regulation (Israel and Hay, 2006: 40–41).

This shift in the UK had its genesis in the late 1990s, when there was a crisis in public confidence in the ethical practices of medical practitioners and researchers. This started with a scandal when it emerged that nine out of thirteen babies on whom doctors at Bristol Royal Infirmary (BRI) had conducted a ‘pioneering technique for open heart surgery for infants … over an 18-month period prior to 1993’ had died (Prasad and Butler, The Guardian, 2002). At the ensuing public inquiry it emerged that the Bristol doctors had persisted in their work despite knowing that their mortality rates were particularly poor compared with other surgeons in the same field – behaviour that, in the commonsense understanding, was unethical. The scandal deepened and broadened when Sir Robert Anderson, then President Elect of the British Paediatric Cardiac Association, Professor of Morphology at Great Ormond Street and Joseph Levy Foundation Professor of Paediatric Cardiac Morphology, University College, London, was called to give a technical briefing to the Inquiry panel. His evidence shows that he was participating in what Kewell (2006: 365) has identified as ‘a language game about the ethics of organ retention at [Bristol Royal Infirmary]’:

15 The benefits accruing from and the consequent importance of the post-mortem examination were emphasised in the evidence to the Inquiry.

16 Professor Robert Anderson … explained the benefits of retention of human material:

‘we examine them for the purposes of our research. We demonstrate them. We make them available for others to study… . [but] to a certain extent they become damaged … which is why I believe it is essential that we keep on adding to these collections so that we have the capability of teaching tomorrow's surgeons and tomorrow's paediatric cardiologists better than we have been doing at the present time.’

17 As to longer-term retention, in the case of cardiac surgery the Inquiry also heard evidence from Professor Anderson regarding the benefits of retaining hearts for the purpose of study and teaching. He considered that one of the many reasons for improvements in mortality in centres of excellence for cardiac surgery was the knowledge that had accrued from the study of retained hearts. He gave evidence as to the scale of the retention of congenitally malformed hearts in this country. He estimated that the largest collection was at Alder Hey Children's Hospital with approximately 2,500 hearts; he himself had built up a collection at the Royal Brompton Hospital of some 2,000; there were collections at Great Ormond Street of 2,000, at Birmingham Children's Hospital of about 1,500 and other, smaller collections, in Leeds, Bristol, Southampton, Newcastle and Manchester. (Bristol Royal Infirmary Inquiry, 2001: Annex A, Part 1, paras 15, 16 and 17)

Anderson's ingenuous revelation that British doctors and medical researchers had amassed significant ‘collections’ of babies' hearts led to the discovery that, in many instances, parents had not been asked for their consent to the harvesting of their babies' body parts or their retention for research and teaching. At Alder Hey hospital in particular, it emerged that, in some cases, all the babies' internal organs had been removed and retained without parents being informed or giving their consent. Parents were understandably distressed to discover that they had not held funerals for their entire baby. Others were traumatised by having to hold further, sometimes multiple and sequential, funerals as body parts emerged piecemeal from the Alder Hey repository. The Government ordered a further public inquiry.

This reported that

[t]he development of new drug therapies, diagnosis of existing conditions and the training of medical professionals relies heavily on the donation of tissue and organs. In the past, families have not always been asked for their consent for organs to be removed during a hospital post-mortem examination. Legislation in much of this area is unclear and is now being comprehensively reviewed.

It is imperative that, while recognising the legitimate expectations of patients and families, this area of medicine is safeguarded for the long-term protection of our health but the approach taken must have the full support of the public, patients and families… .

Specifically, it emerged that a more extreme situation existed at Alder Hey Children's Hospital in Liverpool. The Alder Hey Inquiry has found that collections of children's hearts and other organs had been accumulated over several decades, in some cases as long as 50 years. The Inquiry established that it had been common practice to retain organs without express parental knowledge and agreement. (Department of Health, 2002: Section 1)

This routine and mundane storing of hearts for research and teaching occurred despite the existence of long-standing ethical regulatory machinery governing the use of patients or their parts in medical research. On the recommendation of the Medical Research Council, research in medicine had been regulated by ethics committees since 1968 and clinical practice for much longer through doctors' own self-governance (Committee of Privy Council for Medical Research, 1964)

This story is symptomatic of a very particular set of social relations between doctors, medical researchers and families of dying and dead babies. Specifically, it suggests that the doctors/researchers did not see either the babies or their families as persons; through processes of objectification they were unable to see parents as people – people who needed, and had the right to make decisions about what happened to their dead children's bodies. The term ‘collection of hearts’ used by Anderson and then Donaldson effaces the complex cultural meanings of the relationships of professionals to the people they serve, of babies to their parents, and of body parts to persons. The babies' hearts were detached through processes of objectification from the lived bodies (see Leder, 1992) of the children and from their parents from whence they came. They then became parts of the ‘corps’ – the biomedical, depersonified body (Leder, 1992).

This process of objectification can be problematised as an ‘attitude’ (Foucault 1984) that displaces the humanity of children and their families. It is an attitude embedded in a particular ethos, a specific community of medical research. This ethos cannot switch from seeing a heart as an object, a part of the medical ‘corps’, back to remembering them as the fleshy parts of persons. This switching back and forth is all important to the ‘normal ethics’ of medical research and practice (Latimer, 2008). The events at Alder Hey can be seen as symptomatic of an ethical dysfunction at a deep organisational level related to the privileging of the body as object and the marginalisation of the embodied person.

Sadly, the response to the scandal was not to find ways of reconstructing social relations between doctors, researchers, patients and their families so that the professionals could reconceptualise patients and their families as persons rather than objects. There has been no purposive attempt to change the plane of interaction at a level endogenous to the different social beings involved.

Rather, the attempted solution has been the elaboration of yet more regulatory machinery which embeds rules and codes in policies and procedures through the Research Governance Framework for Health and Social Care (Department of Health, 2001).

In his introduction to this Framework, Lord Hunt. a health minister, stated

[R]ecent events have made us all painfully aware that research can cause real distress when things go wrong. The proper governance of research is essential to ensure that the public can have confidence in, and benefit from health and social care research. (Department of Health, 2001: i)

This document set in place a comprehensive regulatory framework for research ethics in the National Health Service (NHS). The use of ‘governance’ in its title is significant. The OECD defines ‘governance’ as ‘the exercise of political, economic and administrative authority necessary to manage a nation's affairs’, considering it to be ‘the process by which public institutions conduct public affairs and manage public resources’ (bibr50, accessed 5 not_found). In other words, the term refers to formalised systems for making decisions. The governance regime instituted by the Framework requires that researchers wanting access to NHS staff, patients (including their families), premises, data or tissue samples complete a 40 page (reduced from 57 page) form with 79 questions. These forms are then examined by a network of NHS constituted local Research Ethics Committees (RECs) with the power to grant/refuse ‘ethicalclearance’. University-based researchers are also required to gain ethical approval from their own institutions before approaching the RECs (National Patient Safety Agency – National Research Ethics not_found).

Whilst the Framework applies only to the NHS, its impact has been widespread. It imposed an enhanced system of regulation on virtually all NHS-related research, from undergraduate projects to major funded research programmes, whether clinical or social. For example, projects about pedagogies in nurse education or the employment, management and accounting practices of hospitals are now subject to exactly the same forms of governance as clinical trials of drugs. Consequently, governance regimes introduced supposedly to enhance transparency have had the paradoxical effect of constraining investigation in areas where research could and should make a major contribution to public accountability (Dingwall, 2006).

Universities must comply with the Framework or lose valuable NHS funding. But many universities have gone beyond this and have enthusiastically embraced this approach and applied it ubiquitously. They are developing and embedding new and extensive research ethics bureaucracies, which encompass all research involving ‘human subjects’, whether NHS-related or not. This approach has extended to meta-level social science organisations such as the Economic and Social Research Council, which, while not making formal ethical, bureaucratic approval an absolute requirement, nevertheless strongly endorses the involvement of Research Ethics Committees, saying:

Normally, research proposals involving human participants would be reviewed and approved by a REC which has been established and operates in accordance with this Research Ethics Framework (ESRC 2005: 7).

This rolling out of bureaucratic ethical control has happened at an unprecedented speed and with little, if any, cogent or convincing explanation of its added value.

In sum, the response to the disturbing, distressing and distasteful events at the BRI and Alder Hey was the creation and embedding of new forms of managerialist ethical regulation that failed to address issues of the objectification of bodies by medical professionals. By elision, medical scandals have also embedded and legitimated a new regulation of social research ethics. These new ethical bureaucracies, we now argue, risk catapulting UK social science research into new and potentially highly destructive modes of practice.

3. Problematising new ethical bureaucracies

Procedures for assessment have social consequences, locking up time, personnel and resources, as well as locking us into the moralities of public management. Yet by themselves audit practices often seem mundane, inevitable parts of a bureaucratic process. It is when one starts putting together the larger picture that they take on the contours of a distinct cultural artefact (Strathern, 2000: 2).

While it is clearly not the case that social researchers always behave ethically or that social research is never harmful, the tradition of engagement with what is and is not ethical constitutes an important element in its history and development. There are several different philosophical accounts of ethics from which social scientists draw (see Israel and Hay, 2006: chapter 2 for a full discussion of these) ranging from the utilitarian through debates about the meaning of ‘good’ and of ‘virtue’ to feminist positions in which the ethics of care are primary (for example, Gilligan, 1982; Noddings, 1984) and Bauman's (1993) notion of Postmodern Ethics.

Critical qualitative research traditions, in particular, constitute decisions about ethical behaviours as inherently local, specific, contextual, processual and contestable (Mauthner et al., 2002). For such researchers, ethical conduct evolves in the context of the ongoing relationships between researchers and the researched, and a community of practice (American Anthropological Association, 2004). Consequently, only some limited aspects of ethical conduct can be settled a priori and even these may be subject to scrutiny and change as the research progresses. Ethics, rather than being reified, are subject to constant rewriting and reinterpretation as understandings unfold (see for example, Holstein and Gubrium, 1995). This constant care and attention permits the ethics arising from this paradigm to be robust, reliable and rigorous while making no claims for ethical infallibility.

In contrast, new ethical bureaucracies purport to be objective and ‘technorational’. They reduce and codify ethics into sets of highly scripted rules, procedures and behaviours. Whilst they invoke an aura of objectivity, reliability and justifiability, we argue that this is a chimera because such schemes invariably mask the hidden operation of subjective power.

Hammersley (2006) makes at least four highly pertinent points about these new regimes. First, he addresses the contested and subjective nature of what constitutes ethics and ethical practice. Second, he highlights the fact that different groups may have conflicting needs and interests and that powerful groups may use ethical regulatory processes to evade becoming the subjects of research themselves. Third, he reminds us that researchers must make practical decisions in the field that may well not be amenable to codification under sets of rules. And fourth, he points out that ethical decisions are inherently subjective and contextual but regulatory ethical bodies, remote as they are from the research process, can know little or nothing of such important contextual detail. In sum,

[w]hat is involved here is, to a large extent, a matter of pretence: ethics committees are to operate as if making research decisions were a matter of applying a coherent set of ethical rules that do not conflict with any other considerations, or that override them, and that good decisions can be made without having much contextual knowledge. (Hammersley, 2006: 6)

Hammersley's powerful and persuasive critique, from a philosophical, ethicist and methodological perspective, makes a strong case against the impossibilities and impracticalities of the new ethical bureaucracies. Similarly, Spicker (2007: 4) argues convincingly that ‘consent cannot [and should not] be taken as the default position’. But such critiques risk leaving open the opportunity to address the deficiencies they highlight by ‘tweaking’ or ‘improving’ managerialist practices. For instance, the Framework states that poorly designed research is inherently unethical. In the context of, say, pharmaceutical testing, this is undoubtedly true as a poorly designed trial might risk more people than is strictly, statistically, necessary. This principle cannot be sensibly or automatically translated to the social sciences, yet this happens. One of our students was denied ethical approval by an REC on the grounds that the number of semi-structured interviews proposed was ‘too small’ to yield ‘representative data’ and, therefore, the research was deemed ‘unethical’. Similarly, one of us was asked by an ethics committee to attend to the layout of a questionnaire, whose draft questions had been submitted with the ethical approval application. Such responses are more about the power of the ethics committee to comment and make conditions than about any ethical considerations.

Both Bosk and de Vries (2004) and Israel and Hay (2006) propose, amongst other approaches, that social scientists should be more involved in ethical bureaucracies and should educate other members of such committees in (qualitative) social science methodologies. Such approaches might work at a pragmatic level to mitigate the worst practices of research ethics committees and institutional review boards. But the problems is that such ‘tweaking’ fails to address the issue of who has power to determine what constitutes appropriate research methodologies. An analysis of why and how these new regimes so quickly became embedded and of their operation in terms of power dynamics is therefore crucial to resisting their potentially dysfunctional effects. Building on Hammersley's work, we now focus on how such an analysis might be constructed.

For medical researchers and professionals the Framework and the new ethical regimes within universities represent little more than a strengthening and reinforcement of the approaches that pre-existed the BRI and Alder Hey scandal. In contrast, these reforms represent a step-change in social sciences, arts and humanities ethical practice. Our particular focus therefore is the social sciences, especially their critical and qualitative aspects.

Our first question is ‘why was this approach applied to the social sciences?’ Whilst it is plainly difficult for social scientists to kill or physically harm participants, there are inherent risks: it is possible to do emotional or reputational damage to respondents and knowledge may be harmfully deployed.

But these risks do not even imply the inevitable rectitude of new ethical bureaucracies. First, such risks are subjective and may arise unpredictably as knowledge is used. For instance knowledge, however ethically produced, may be used subsequently to sell us things that, arguably, we do not need and cause us harm, or to vilify certain groups.

Second, social science has a long and creditable history of praxis on ethical issues, both in terms of research conduct and consideration of how the resulting understandings may be deployed. Examples of such work are evident in ethical guidelines produced within the various epistemic communities such as the British Sociological bibr10). Such guidelines are the product of scholarly traditions of work on ethics and power relations in research (for example, bibr2; bibr25; bibr35; de not_found; Mauthner et al., 2002; bibr49; bibr56; bibr62; bibr61) These guidelines are widely drawn rather than prescriptive, calling upon social researchers to work reflexively and with attention to the detail of ethical considerations, while recognising that those in the field often need to make rapid, pragmatic and immediate decisions that require a grounding in good ethical principles.

Clearly, there are examples of unethical practice, which need to be addressed, and, as Israel and Hay (2006: 10) argue, ‘researchers need to develop better understandings of the politics and contexts within which ethics are regulated’ and ‘also need to be reflexive, holding up their activities to ethical scrutiny’. In making this critique of new ethical bureaucracies, we are not arguing that there should be no accountability – rather, we question whether accountability in any democratic sense is served through the imposition of these new forms of bureaucratic regulation and control.

Furthermore, the absence of any significant scandal and a heavily circumscribed potential for physical harm, combined with this long and weighty tradition of addressing ethical issues raise the question of why the treatment of ethics has been changed and, in particular, why the locus of power in the shaping and governance of research ethics has shifted from being endogenously controlled by communities of disciplinary practice to exogenously determined regimes of control in the form of new ethical bureaucracies. In sum, why has power been relocated, with managerial control replacing epistemic self-regulation?

There exists little or no systematic empirical evidence as to the drivers of this translation of power. However, it parallels many similar shifts in higher education (see for example, Ciancanelli, 2007; Nedeva and Boden, 2006; Nedeva, 2007). It can also be seen, for example, in the processes associated with ‘quality assurance’ in teaching, where ‘learning outcomes’ must be stipulated but neither the situated position of students nor the pedagogical processes are taken into account.² It could be argued that the accretion of power by institutional managers is the product of the rise of managerialism and declining trust in professionals within the context of what Beck (1992; see also Giddens, 1991) terms the ‘risk society’. The all too evident unethical behaviour by medical scientists at BRI and Alder Hey can be construed as the degeneration of traditional professional communities of practice. The now common response to the social ‘risk’ that such collapses pose is the construction of new modes of control and organisation that frequently operate through managerial decision-making technologies. Of course, the alternative to this benign reading is that this exercise of control subverts existing practices and structures, causing their collapse by stripping them of power. In UK universities, management regimes are increasingly adopting such technicist, risk-based approaches to ethics. Of course, the discourse of ‘risk’ then becomes a legitimising mechanism for the centralisation and managerialisation of power and the enhancement of levels of audit and control (Power, 1997).

Our second question is ‘how did this translation of power occur?’ Here we find the concept of passive revolution (Gramsci, 1971) useful. Gramsci argued that ideas developed by progressive forces are regularly taken up by ‘the ruling class’ and recast in a new mould, transforming them from progressive to reactionary ideologies that, crucially, use the same language thereby making resistance difficult. An example of such a passive revolution might be the recasting of the ‘choice agenda’ as an ideology of the Right (Rose, 1999). Gramsci argues that passive revolution plays an important part in achieving rule by consent, that is, hegemony.

As with improving ‘quality’ in teaching, no researcher would want to stand, or at least be seen to stand, against the improvement of how we ‘do ethics’ in social science. There is a potential seductiveness in new ethical bureaucracies that offer rational, calculative answers to very complex and troubling research dilemmas. There is an intuitive appeal in that which offers the fantasy of ethical purity through a therapeutic and redeeming process, especially against a backdrop of shocking medical scandals. There is relief to be gained from effectively abrogating responsibility for safeguarding ethics to a paternalistic external authoritative body in the form of the ethics committee.

No small wonder then that social scientists have been complicit in this process, a complicity that takes many forms. Those active in embedding new ethical bureaucracies may have malign (power-seeking) intent or may be seeking helpfully to adapt and steer the processes in a positive direction. And all of us who fill in the forms, advise our students, attend the committees and such like are similarly enfolding ourselves within these new disciplinary regimes.

Our third question then is ‘how does power operate and with what effect in these contexts?’ Lukes' (2005) three dimensions of power have analytic value here. The first, positivistic, dimension of power identifies only power's overt operation – in this case that which works through the Framework. The changes within universities but outwith the Framework might be construed, under such a lens, as simply the democratic choice of academics. The second dimension usefully identifies the new ethical bureaucracies as the ‘mobilisation of bias’ (Schattschneider, 1960) – structures that facilitate coercion. However, useful as such an approach is, it neither explains how such structures come into existence, nor why we have enfolded ourselves within them.

Lukes' third, hidden, dimension of power addresses what Foucault might have described as discursively constructed regimes of truth. Passive revolution is a classic example of such a third dimension of power. A keystone of this hidden operation of power in research ethics is the discourse of individualisation (Beck and Beck-Gernsheim, 2002). This has two aspects. First, there is a legitimising discourse of giving power and rights to individual respondents and participants, and protection to them. The disingenuousness of this is revealed by lexical consideration of the widespread use of the word ‘subject’ to describe such people. It can be argued that the reduction of responsible relationships between researchers and participants to sets of highly formalised roles and responsibilities determined by and in the hands of ethical bureaucracies actually removes power from respondents.

Second, individualisation makes individual researchers directly responsible and accountable for ethical practice, while simultaneously locating the power to define what counts as ‘ethical’ in bodies exogenous to them. This process takes no account of the local or contextual (Hammersley, 2006). Consequently, ethical bureaucracies become the locus of much power but little accountability for their impact, adverse or positive, on research. There is a paradox here; managerialism reflects the continuous displacement of power from people as part of communities to depersonalised structures and regimes (though made up of people) which, in turn, profess to be ultimately concerned with the care for and management of the individual.

We now examine five aspects of new ethical bureaucracies that reveal something of the hidden operation of power.

Data is personal (or the personal is data)

New ethical bureaucracies define items such as interview transcripts or observation records as synonymous with babies' hearts; they are ‘personal’, parts of people, rather than inanimate research artefacts. In conditions of individuation, ethical regimes purport to offer individual respondents power and control over what is collected from them, how it is stored and used. This requires the a priori definition by researchers of what is to be collected and how it will be stored, analysed and used.

For researchers, such items constitute research data. In an elision generally engendered by research ethics committees, these personal items and research data have become conflated as ‘personal data’. In the UK, this elisionall owsnew ethical bureaucracies to, often over-ambitiously, invoke the Data Protection Act 1998. This legislation has contributed to the discursive framework within which the new ethical regulation of research has been constructed by creating the legal category of ‘personal data’. Such personal data is, in law, defined as ultimately accurate or inaccurate and controllable by bureaucratic and procedural measures. In fact, the extent of the Act with regard to research data is considerably more circumscribed than most ethics committees maintain.

The transmogrification of data about people into ‘personal data’ (with its legal connotations and injunctions to individuated control) is problematic for social scientists for a number of reasons. Firstly, social researchers very often cannot, and indeed should not, predict what specific data they will collect. As a researcher, one does not necessarily know in advance precisely who one will want to speak to, how they will respond or what one will observe in the course of ethnographic fieldwork. Yet new ethical bureaucracies require such a priori precision. Researchers are challenged by this exercise of power: either they can alter their research processes to ‘fit’ with regulatory regimes or they can avoid being absolutely honest with the authorities regarding what they are doing and face possible disciplinary consequences.

Second, social science data is not simply ‘out there’ waiting to be harvested by researchers. Rather, it is constructed in the course of its collection and subsequent analysis. Social researchers analyse what people do and say in relation to their location as social beings, positioned in and by structural effects, relations of power or discourse. Social research data is thus necessarily continuously constructed, defined and redefined throughout the entire research process and is framed by and produced through social relationships and ongoing processes of analysis and writing, into and through the literature. The requirement for a priori definition of ‘data’ therefore runs the risk that the processes of ethical bureaucracy will prohibit or inhibit the collection/construction of data as currently understood, replacing it with only that which is imagined to be amenable to control and audit.

Third, ethics committees frequently assert that because data is personal to research participants they should have an enduring right to decide whether or not it is used (the right to ‘withdraw’) on the basis of accurate information given them by the researcher. Such rights are often labelled ‘ownership’.

Such notions of ownership are deeply problematic in the social sciences. Given the complex processes of data construction, it is seldom possible to disentangle the respondent's contribution from that of the researcher. For instance, a respondent may wish to withdraw their interview responses from a study, but if that information is already in the mind of the researcher, in their conceptualisations or in their published writings then withdrawal is not possible. In reality, the respondent has few ‘rights’ of control under such regimes: little or no power has been transferred to them.

Indeed, it could be argued that before these new regimes respondents had greater power because research was regarded as a process of relationship between the researcher and the researched. In that context, the researcher and participants had the freedom to negotiate about how data would be used. Under the new regimes, the formalisation and codification of how data should be treated leaves both researcher and researched in subordinate positions to the committees which determine what their respective ‘rights’ are. It is possible to envisage a situation where ethical bureaucracies, in the name of respondents' rights, actively dictate how material generated from them is to be used.

Informed consent

It follows from the notion that research data is personal data that respondents must give their ‘informed consent’ for their involvement in the research. Consent is both to participation in the generation of research material – interviews, observations, details of the things they make, examination of records concerning them – and to how this material will be used.

Signed formal written consent to keep someone's personal data is not a legal requirement in the UK. However, ethics committees, following the practices of the medical profession, have been keen that research respondents should give signed ‘informed consent’, or at minimum, tape recorded verbal consent, to participation. In medical practice such ‘signing’ is designed to provide legal protection to the organisation making interventions on individuals. Thus, when a drugs trial at Northwick Park hospital in North London went catastrophically wrong leaving six young men very seriously ill, the Medicines and Healthcare products Regulatory Agency (MHRA) found that Parexel, the company carrying out the tests, had followed the correct protocols, including obtaining signed informed consent (MRHA, 2006). The men received a one-off payment of £10,000 each from TeGenero, the drug manufacturer, which went bankrupt very soon afterwards. The men had no claim against Parexel. The process of ‘signing’ in effect gives legal, contractual meaning to an interaction between people.

Such processes purport to empower respondents and protect them by giving them formal rights and control over ‘their’ data. The ethical bureaucracy appropriates a position of guardian with regard to respondents, ensuring that explanatory leaflets are adequate and that all respondents have ‘signed’. Yet, as we noted above, such respondents' rights can be illusory and the form may itself supplant the person behind it, becoming ‘the bureaucratic term for the person’ (Jacob, 2007: 250). Notions of ‘informed’ and ‘consent’ are brought together in this over-easy phrase in a manner that demands consideration. Informed consent is a highly problematic concept once it steps beyond the banal designed to provide legal protection.

Writing about research on criminality, Coomber (2002) makes the point that criminal participants, or those engaged in socially stigmatised activities are unlikely to be willing to sign meaningful consent forms and may end up signing themselves as ‘Mickey Mouse’:

Is this a problem? Not, I would argue for the research, the researcher or the participant. It is a problem however for REC's. By asking for a procedure to be carried out that is not in the interests of anyone involved they create a structure whereby researchers, acting (reasonably and appropriately) in the interests of the participants are forced to play a game with REC's in order to get approval of the research project. Consent forms are signed (as is required) but they are rarely signed with a true name and the objective of the signing has been lost. This is what actually happens and any pragmatic policy that is not merely symbolic needs to address what happens in reality (Coomber, 2002: paragraph 1.8).

The notion of being ‘informed’ extends not just to knowing that one is participating in a research study, but also to knowing the use to which the materials generated will be put and to whom they will be communicated. Problematically, social researchers themselves may well not know in detail how they will use the materials generated with respondents to construct and refine the explanations that they ultimately derive. The explanations, stories or narratives that emerge from the research process will quite often surprise. The use to which such explanations are put may be similarly unpredictable and, once they are in the public domain, beyond the control of the researcher.

‘Informing’ research participants also purports to forewarn them of the possibility of unknown risks of harm. This transfers the risk of the unknown onto the participant and may tacitly permit the researcher to abrogate their responsibilities as a consequence. In social research, the potential for harm may vary considerably between individuals and, unlike medical research, this variability cannot be controlled for by selecting respondents with similar characteristics such as age or health. For example, research on sexual identities may be very distressing for some respondents but liberating for others despite similar backgrounds, age and so on.

‘Consent’ is similarly problematic in the context of the power, social relations and information and understanding asymmetries inherent to the research process. First, respondents may feel constrained by issues of social class or the authoritative position of the researcher. Individuals may not have sufficient knowledge or understanding of either the research process or the likely outputs of such processes for their consent to be in any sense meaningful. Such problems become readily apparent in the case of research with children (see, for example, Epstein, 1998; Renold, 2002; Renold and Holland, 2006). Second, there is an underlying assumption that researchers are always and inevitably more powerful that the researched, with little recognition that it is sometimes powerful people and groups which are the subject of research and that requiring their consent is a way of protecting the powerful, allowing them to escape the scrutiny of research.

The enforced requirement to contractualise, to give legal force, to certain aspects of the researcher-respondent relationship will inevitably transform those relationships in ways that neither respondent nor researcher will necessarily deem desirable or generative. In particular, the formalisation may lead to a diminishment of trust and an interference with the building of relationships in a way that impoverishes social research and reduces the ethical protection afforded to participants.

Utilising an ideology of individuation, ethical bureaucracies claim to empower respondents through the ritual of informed consent. But this is an empty ritual that creates and embeds a fantasy of respondent control. As part of this process researchers have lost control over certain aspects of the research process – over how we engage with respondents and seek their consent, what we tell them and how. That is, the manner in which we seek out and build important research relationships is now constrained by external bureaucratic forces. Whilst respondents and researchers have lost power as a result of these new rituals, the ethical bureaucracies have gained it through new-found abilities to regulate and control the nature of interactions between researchers and the researched.

The constitution of the vulnerable

New ethical regulation processes conjoin ‘informed consent’ and the protection of ‘vulnerable’ people – those deemed incapable of giving informed consent. The contestable nature of ‘informed consent’, inter alia, makes the concept of vulnerability highly problematic.

In deploying the concept of vulnerability, ethical bureaucracies acknowledge that research potentially implicates people in complex relations of power, from which some participants require particular protection. Notwithstanding the definitions in law of certain groups as ‘vulnerable’ (for instance, children under 16 or adults who are dependent on personal services from others due to illness or incapacity), vulnerability is a highly contested concept not amenable to objective classificatory regimes. The rich white businessman may be vulnerable to the risk of their shortcomings being exposed just as the child may be vulnerable to distress. Consequently, laws designed to protect the human rights of certain groups of individuals may not be easily or appropriately translated into decision-making on research ethics.

In the absence of objective classificatory regimes regarding ‘vulnerability’, it follows that the capacity to define some people as vulnerable (and, by implication, denying extended protection to others) is the exercise of power. Classification as vulnerable may give others the power to debar those so labelled from participating in research even where they have a strong desire to do so. For instance, those engaged in research with children may well find that parents prevent their offspring from participating even where the children wish to do so. Being labelled as vulnerable can, therefore, be deeply silencing.

The a priori classification of some people as vulnerable, and therefore as incapable of giving informed consent, denies the potential for the researcher to build relationships with respondents that will satisfactorily protect their legitimate interests. By the same token, relationships of trust engendered as part of the research process may, unpredictably, predispose respondents into placing themselves in vulnerable positions. At the same time, by categorising people as vulnerable and therefore unable to decide for themselves whether or not to participate in research, ethics committees are accreting to themselves these people's power of exercising voice or devolving it to others, such as parents or carers, deemed responsible.

Pre-emptive accountability

Enfolded as they are in discourses of risk-avoidance, ethical approval processes call for us to be accountable in advance of the research process – pre-emptively accountable. That is, we must specify in advance of undertaking the research the micro-details of what we will do. ‘Tweaking’ of ethical rules has meant that social researchers who, as we all do, subsequently need to amend their research protocols, are invited to return to the committee for further, amended approval. Failure to be pre-emptively accountable in this way exposes us, given the nature of the research process, to risk of institutional sanctions.

Failure to follow the University's policy and guidance for the ethical review and approval of research may result in disciplinary action (Cardiff University – School of Social Sciences, no date, accessed on 5 May 2008).

‘Accountability’ here is a further victim of passive revolution (Epstein, 1993) – the exercise of power rather than an aspect of democratisation. That which can be subject to accountability – what is observable-reportable, rational and moral (Garfinkel, 1967) – is constructed by and embedded in the procedures as defined by ethical bureaucracies. Regimes of accountability have been so constructed that it is problematic for researchers to both comply and retain control of the research process.

Pre-emptive accountability requires accounts in advance of whom we might be talking to, what we might be observing, what use the data will be put to and assurances that participants will not be harmed. This kind of clarity in advance of entering the field may not simply be impossible but also unwise. Usually, critical qualitative researchers emphasise how their research is exploratory, and that its purpose is to find things out that are taken for granted, implicit and not already ‘known’. When Clifford Geertz (1973) followed the Balinese and their cockerels, he had no idea in advance that the detailed examination of the meaning of cock-fighting or the place of cockerels in the ordering of social relations would help him to understand and interpret Balinese life. Ethnographers emphasise making mistakes, not being too predetermined; Strathern speaks of ‘indirection’, and of how significance comes into view after leaving the field, through processes of triangulation and literation (sic) in the analysis and writing (1991; 2005).

This accountability in advance for that which may not be known and which may be beyond the control of the researcher places us in a difficult position. Either we can continue as before and run the risk of disciplinary action, or we can act with caution and frame our research in such a way as to avoid personal risk. Either way, accountability has been turned into the exercise of power over the research community.

Governing the soul – effects on the researcher

The regimes of control described above institute technologies of the self that require researchers to become ‘docile bodies’ within the research process, self-regulating and self-disciplining their own actions against particular ideas of what is standard and good. This reduces the researcher's autonomy and capacity for exercising their imagination and doing innovative work. For example, they may begin to change what they feel they can research, or the way they design studies, developing projects in ways that fit the procedures and have a chance of getting past the apparatus of approval. In these ways the regulatory apparatuses may change knowledge practices at a basic level. As with research funding, researchers channel their energy and effort into the construction of their research intentions to fit a particular set of norms manifested through a bureaucratic apparatus (Boden and Epstein, 2006). Those who act in an authoritative capacity within such new ethical bureaucracies may derive a sense of power from this that is seductive. They may be well motivated or motivated by less principled objectives such as intervening politically to prevent certain sorts of research.

So people fold themselves, to use Deleuze's (2006) term, into these technologies. It is interesting to ponder why researchers subjectify themselves – become subjects in the Foucauldian sense – in this way. It may be that ethics procedures offer a security blanket of correct comportment, relieving the individual, allowing them to abrogate their personal responsibility to behave in an ethical way, as defined within and by the communities of practice within which they operate as social researchers. In this process there is a shift of power from researchers to regimes of ethical control. But the security offered is a chimera because it also creates sites of ambiguity and uncertainty that expose the researcher to the risk of ‘getting it wrong’. For instance, what is a project? At what point do you have to seek ethical approval? So the ambiguity drives people on to greater and greater self-regulation and self-discipline and subjecting themselves to procedures which will never – cannot – deliver ethical safety.

4. Responses and consequences

These transitions provoke consideration of possible modes of personal response. We offer, here, four exemplary characters to illustrate some possible personal identities and their consequences. We have chosen to draw these characters as ‘ideal types’ or stereotypical examples of possible positions within the academy. However they are all based on real experiences and real people who, as types, seem to exist in all universities.

1) The refusenik

Ivana does excellent ethnographic research on health care facilities and her work is at the frontier of understanding in her field. She has a strong feminist standpoint and intellectual and political objections (such as those raised in this paper) to the managerial processes involved in getting projects through research ethics committees; she will not subject herself or her research ideas to such processes. She has, in the past, been a frequent recipient of research council grants. Her work is highly rated, which is not important to her, but is to her department. However, her refusal to engage means that she can no longer gain access to NHS facilities nor win such grants. She risks disciplinary action if she continues to fail to comply.

2) The strategically complicit

Elisabetta is a self-assured, very competent but mainstream researcher. Whilst critical of the new ethical bureaucracies, she believes she can master the one at her university and work to change and/or ameliorate things from the inside. She has a good record of gaining research funding, but finds herself increasingly apt to constrain herself in her research proposals to gain approval. Consequently, she is beginning to feel quite frustrated, alienated and uninspired by her research. It is becoming a chore rather than a joy and she finds herself spending more time preparing proposals and accounting for them than actually doing her research.

3) The abject

Dolly is a new academic on a fixed-term contract who has never known any other system. She is very capable and has great potential as a researcher, but has yet to define her personal intellectual project. She is mentored by and relies heavily on a senior academic who was her doctoral supervisor.

There is significant pressure on her to gain funding and publish so that her contract can be renewed. She has developed little self-confidence and follows ethical approval procedures meticulously. She is conscientious and works very long hours to the detriment of her personal life and health. Unfortunately, she feels so overwhelmed by the amount of paper work, form filling, and other procedural matters that she has made little or no progress in developing her research ideas.

4) The quisling

Regan is extremely ambitious and has a track record of gaining research funding for policy-driven research, mostly from government departments. She is committed to academic management, including of research, and believes that this is the path towards improving research quality: she was appointed after cogently arguing to the appointments panel that such management was the key to gaining excellent research ratings. She has been instrumental in establishing the faculty ethics committee and chairs it enthusiastically, making sure that, in her terms, research is 100 per cent compliant. She takes no intellectual risks in her research, but enjoys holding power in the institution. She feels she is flourishing institutionally and in terms of her research because she is instrumental in the definition of ‘good research’.

Whilst any resemblance to persons, living or dead, is, of course, entirely unintended, elements of these characters have the potential to exist within us all and, indeed, we all slip between the interpellations of these different discursive positions that are brought into and kept in play by managerial technologies of control.

5. How can we do things differently?

This paper is located in a critical tradition that examines the new technologies of managing what Shore and Wright (2000) and Strathern (2000) have termed ‘audit cultures’ in universities. We have explored the particular technologies and social processs of ethical regulation – the specificities of the forms and the committees, the power relations that they put into play, and the cultural preoccupations which they help reinforce or accomplish. Our aim has been to contribute to a platform from which to reassert approaches to the design and conduct of research that ensure that research is ethical but that do not interfere with the production and consumption of critical social science.

Our argument is that the apparatus for the regulation of research is doing something other than benignly managing our ethical conduct. Rather, this brave new world of the regulation of research ethics can be understood as one amongst many strategies recently introduced into British academia which install the need for us to stand in advance of ourselves (Heidegger, 1993) and our knowledge practices, to account for these practices ahead of their conduct in ways that elicit conformity through a disciplinary effect. We suggest that these apparatuses are embedded in and help reinforce mantras of ‘transparency’ and ‘informed choice’, and institute individualisation in ways that may fatally subvert critical social research. As we have shown, the risk (or reality?) is that such processes are fundamentally reconstitutive of knowledge creation in ways that are wholly destructive to critical social science because the apparatus of ethical regulation elicits the pursuit of correctness rather than truth (Heidegger, 1993).

If we leave the argument here we risk abandoning ourselves to nihilism. So we conclude by making a few positive suggestions about alternative ways of being ethical researchers. A first requirement is that people sensitise their ethical consciousness to the hidden operations of power and their effects. The second stage is to move beyond intellectual critique and recognise that ethical practice is embedded in the epistemological/ontological positions of researchers as members of a community and as individuals. As Rose and Miller (1992) comment, new managerial apparatuses have intruded on and colonised a tradition in Western thought that conscience and ethics rest on accounting to the self, displacing it with the power of bodies exogenous to the researcher. We need to recover the idea that ethics are relational and ultimately and inherently personal.

The problem for our four characters is that they have, in one way or another, become subject to the individualisation (Beck and Beck-Gernsheim, 2002; Waring, 2007) that inheres in managerial procedures and strategies. Even Refusenik Ivana is inscribed in these processes and endangered by them. A positive way forward that values individuality over individualisation would be for those critical of these processes to align themselves and collectively critique them, thus opening up discussion and debate throughout the academy. Such approaches can yield results. At some UK universities, ethical bureaucracies have largely been confined to research which is clinical, medico-scientific or where the requirements of the NHS make it unavoidable. Revealingly, in at least two such institutions that we know of, it has been those embedded in the critical management disciplines, not sociologists, who have taken the lead in initiating resistance – perhaps because those analysing management technologies are more likely to question and be critical of managerial processes.

Footnotes

1

Égarement – ‘an action of getting a distance from what is defined as morality, reason, and the norm, and the state that ensues’ (Le Robert dictionary)

2

We would particularly like to thank ‘Reviewer 3’ of this paper for drawing our attention to this point.

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