Disagreement over the legal definition of misconduct

Without clear and consistent terminology, policing can be tricky.

9 January 2018

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A dispute between Australia’s major research funding agencies and universities over the definition of research misconduct has revealed global inconsistencies in the way misconduct is defined and regulated, as well as its ambiguous legal status.

The 2007 Australian Code for the Responsible Conduct of Research, which is under review, included a definition that many universities say make it difficult to establish misconduct. It required institutions to prove that acts of fabrication, falsification and plagiarism were intentional and deliberate, as well as that negligence or recklessness had taken place. Many universities did not adopt the description.

“There are a variety of behaviours that scientists consider to be seriously unethical,” says David Resnik, a bioethicist at the NIH National Institute of Environmental Health Sciences in the United States. The challenge is “deciding which are the most important to prevent.” Australia in the hot seat.

In 2015, Paul Taylor, director of Research Integrity, Governance and Systems at RMIT University, and Daniel Barr, principal research integrity advisor at RMIT University surveyed publicly available research misconduct policies at more than 30 Australian universities, among which they found a total of 42 different definitions of research misconduct. Only one exactly matched the 2007 Australian code description.

Fourteen definitions “appeared to be individual and had no obvious relation with the Australian code description,” according to Taylor and Barr. The results will be published in a paper titled ‘The Problem with Research Misconduct’.

A draft revision of the code, released in 2017, did not include a definition for the term ‘research misconduct’, explains Taylor, who was on the drafting committee. Stakeholders could not agree whether there should be a legal definition, with some wanting more leeway for institutions to decide what constitutes misconduct. But, the exclusion “has caused some concerns among the research community,” he says in his paper.

It was argued in public consultations that misconduct had to be legally defensible.

A new draft including a definition addresses this criticism, says Sue Thomas, chief executive officer of the Australian Research Council.

Thomas says the code is supported by a guide, which sets out how to investigate an alleged breach. “The guide recognises that breaches of the code occur on a spectrum of seriousness and requires institutions to consider the nature of the breach (whether it is major or minor) and the appropriate corrective actions.”

“Institutions will be able to label major/serious breaches as ‘research misconduct’ should the institution wish to apply the term,” she says. The final documents are expected to be released by mid-2018.

Global divergence

As Australia finds compromise, the rest of the world remains at odds. In 2014, Resnik surveyed research misconduct policies in the 40 countries which spend most on research and development. Of the 22 countries that had national policies, all included fabrication, falsification and plagiarism in their definition of misconduct. Beyond that, there was considerable diversity.

Unethical authorship, which includes unattributed or honorary authors, was mentioned in 54.6% of the definitions, and unethical publication practices such as multiple submissions and conflicts of interest in 36.4%. Fewer than a third included unethical peer review, poor record-keeping, violation of confidentiality or human and animal research violations.

Even the definition for plagiarism is “culture dependent”, says Danny Chan, a stem cell biologist at The University of Hong Kong and a member of the Asian and Pacific Rim Research Integrity network, with many researchers in Asia not deeming plagiarism a form of misconduct.

Resnik argues that with increasing collaboration, there is a critical need for common international standards of research integrity.

“Investigating and adjudicating misconduct allegations related to international collaborations can be difficult because different countries may have conflicting laws, regulations and policies pertaining to research misconduct,” he says. In recent years, ethical guidelines have been drawn up to consolidate conflicting definitions, including by the Organisation for Economic Cooperation and Development (OECD), the European Science Foundation and the [World Conference on Research Integrity](http://www.singaporestatement.org/downloads/singpore statement_A4size.pdf). But the guidelines have no legal clout, and have not been accepted by many research funders, Resnik’s paper notes.

Legal latitude

Whether research misconduct should be enshrined in law is in itself a fraught question. Around the world “there is a genuine debate about whether a legal definition is appropriate for something that is really an academic judgment rather than a legal one,” says Taylor.

The United States has a legal definition for the term, but Canada does not, instead setting out clear principles on research integrity.

Denmark enshrined misconduct into law in 2005, and has since revised the definition several times. In the most recent amendment of 2017, the narrow focus on fabrication, falsification and plagiarism was broadened to include questionable research practices (such as only reporting data which support the researcher’s hypothesis), says Mathias Willumsen, special advisor at the Danish Agency for Science and Higher Education, who was involved in writing the latest version of Denmark’s misconduct law.

The Danish law responds to misbehaviour with varying degrees of severity. Cases of fabrication, falsification and plagiarism are dealt with by the Danish Committee on Scientific Dishonesty, while research institutions oversee investigations into questionable research practices.

Approaches should be as standardized as possible, particularly as there could be legal ramifications stemming from the definition in misconduct cases, including discrimination and unfair dismissal counter-lawsuits, says Australian lawyer, Ian Freckelton, author of a book on scholarly misconduct law, regulation and practice.

Drafters of the code in Australia have yet to confirm whether the document will have legal weight.