Legal requirements
There are no statute laws about research on human beings in the UK, unlike research on animals. The law therefore relies heavily on people to protect themselves by their personal (or parental) consent or refusal. No law compels researchers to observe ethics guidelines on consent. However, if by any chance researchers were sued, the courts would want to know that reasonable ethical standards had been met. Beyond that legal position, there is a question of institutional liability for the conduct of individual researchers.
If your research is being conducted in your capacity as an employee, your employer will have insurance that offers you professional indemnity against actions brought against you due to negligence in carrying out your duties. However, your employers’ legal liability for your conduct is likely to depend on you following your institutional policy and procedures in relation to research conduct and research ethics review.
For organisations that receive Research Council Funding, policies and procedures in relation to staff and students will be related to the standards set out in documentation such as the RCUK (Research Councils UK) Code of Conduct on the Governance of Good Research Conduct. In addition, institutions that receive funding from the ESRC must follow the requirements of their Framework for Research Ethics.
The Government Social Research Unit sets out the main areas of law that are relevant to research ethics, and these are summarised below. If you are uncertain about any issues concerning legal rights and obligations, seek advice from your research office, which should be able to access appropriate legal advice if necessary.
Confidentiality
There is no specific legislation related to confidentiality in social science research, but there is a common law duty of confidentiality. According to Home Office advice, this duty is based on an actual or deemed agreement to keep information secret – and as such, could be interpreted to be applicable to the agreement of confidentiality between researcher and participant. However, case law has recognised that confidentiality has limits, and the Home Office guidance states that:
‘The courts have generally recognised that a public authority may ignore the duty of confidence it owes with regard to a particular information item:
- Where there is legal requirement (either under statute or a court order) to disclose the information (for instance, notification of certain diseases to public health authorities);
- Where there is an overriding duty to the public (for instance, the information concerns the commission of a criminal offence or relates to life-threatening circumstances); or
- Where the individual to whom the information relates has consented to the disclosure.’
According to the Government Social Research Unit guidance, the question of ‘duty of confidence’ is a complex and developing area of law. In practice, most professional guidelines for social science research recognise that there may be exceptional situations which over-ride a duty of confidence to the research participant, in line with the guidance highlighted above. However, this guidance does not constitute legal advice, and (as with all the legislation described in this section) if you must seek specific legal advice (through your organisation’s research office) where necessary.
See our section on confidentiality for a more detailed discussion of the ethics considerations in this area.
Consent
Government Social Research Unit guidance stipulates that for consent to be valid it must be freely given by a person, acting voluntarily, who has the necessary capacity and is sufficiently informed. See our section on the Mental Capacity Act for information about the legal position in relation to research with adults (aged 16 and over) who lack capacity to consent. See our section on research with children for a discussion of seeking consent from those under the age of 16.
As with all the legislation described in this section, seek specific legal advice (through your organisation’s research office) where necessary.
See our section on consent for a more detailed discussion of the ethics considerations involved.
