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The Tunnel at the End of the Light? Development of the Tri Council Policy Statement in Canada

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Big Picture Bioethics: Developing Democratic Policy in Contested Domains

Part of the book series: The International Library of Ethics, Law and Technology ((ELTE,volume 16))

Abstract

In 1998, the three major government funding Councils put in place the Tri-Council Policy Statement (TCPS) to regulate all research involving humans in Canada funded by them. In this paper, we examine the process of developing the TCPS, a historic and very important document in Canada’s research ethics landscape, and the application of the concepts of democratic legitimacy, transparency, representation, accountability and community engagement in that process. This exercise, important as it is, has been only marginally conducted elsewhere in the past. We attempt to put the process in historical, legal and political context, and argue that efforts were made to ensure basic democratic values in the process, but that these attempts should have been taken farther. The objective of this paper is to highlight the extent to which these values have shaped research ethics policy in Canada and draw lessons for how future policies in this area and other areas that are possibly as contentious may profit from this experience. As this paper was being written, the TCPS was under revision. As the process of drawing up a second edition was ongoing, we also considered, briefly, the direction in which that process appeared headed, and what, if any, lessons could be drawn from the process of putting in place the first edition. The text that follows is current to Fall 2009.

Professor Bernard Dickens used the expression “the tunnel at the end of the light” in his presentation at the 1998 Canadian Bioethics Society Annual meeting in Toronto when he was reflecting on the process of the drafting and ultimate publication of the Tri-Council Policy Statement.

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Notes

  1. 1.

    For a description of the cases mentioned here, see Downie 2003.

  2. 2.

    The final draft of this revision prepared by the Interagency Advisory Panel on Research Ethics (PRE) is expected to be submitted to the funding agencies in February 2010. See Interagency Advisory Panel on Research Ethics (2008).

  3. 3.

    See Starkman 1998, 272–3.

  4. 4.

    Interagency Advisory Panel on Research Ethics. Introducing the TCPS: Development of Canadian Guidelines. http://pre.ethics.gc.ca/english/tutorial/00_intro_overview_context.cfm. Accessed 14 Apr 2008.

  5. 5.

    Some commentators have also observed that the study undertaken by the National Council of Bioethics on Human Research (NBCHR) (now the National Council on Ethics in Human Research), which found that the MRC guidelines did not provide a functional environment for research ethics in Canada and that there existed a disarray in procedures and processes in Canadian REBs was motivated the establishment of the policy on integrity. The NBCHR recommended many procedural revisions, including increased regulation of REBs and research ethics in Canada. See Kinsella.

  6. 6.

    This had been the initial task set by the Chair of the Working Group, that is, the revision of the MRC guidelines. See Working Group on Ethics Guidelines for Research with Human Subjects, Minutes of Meeting, Toronto, June 1994 at 7, cited in Feminist Health Care Ethics Research Network 1998, 234.

  7. 7.

    See McDonald (2009) for an overview of the motivations for creating the TCPS.

  8. 8.

    See for example, Scissons 1997.

  9. 9.

    Interagency Advisory Panel on Research Ethics. About us: Mandate. http://pre.ethics.gc.ca/eng/panel-group/about-apropos/mandate-mandat/. Accessed 14 Apr 2008.

  10. 10.

    See section 4 of the Act for other objectives of the CIHR.

  11. 11.

    This has, however, been criticized by several researchers in the humanities.

  12. 12.

    Even with increasing commercial funding of research, the three Councils remain, as Palys puts it, “an important and valued source of research funding in Canada.” See Palys 1996a.

  13. 13.

    See the Memorandum of Understanding online at: http://www.nserc-crsng.gc.ca/institution/mou_e.htm. Accessed 20 Mar 2008.

  14. 14.

    See for example, the CIHR 2010.

  15. 15.

    See Panel on Research Ethics.2009. FAQs: About the TCPS. http://www.pre.ethics.gc.ca/eng/panel-group/faq/tcps-eptc/. Accessed 14 Oct 2009. See Hadskis 2007, 263.

  16. 16.

    See Hadskis 2007, 263.

  17. 17.

    The author notes, however, that a common conclusion in reports and the literature is that research ethics is becoming a matter of following rules and procedures—a bureaucratic process—as required by funding agencies or regulators and implemented by REBs. See also McDonald 2000.

  18. 18.

    Quebec’s Civil Code has provisions on research involving humans. Other provinces have legislation which impact research involving humans in several respects, including Newfoundland which has recently passed a legislation making ethics review a law. Also, Health Canada, in its role as the federal health regulator regulating drugs and medical devices under the Food and Drugs Act has introduced regulations governing the conduct of clinical trials for drugs, the Regulations Amending the Food and Drug Regulations (1024 - Clinical Trials) (Clinical Trials Regulations).

  19. 19.

    In this respect, Montpetit observes that: “Input-oriented legitimacy emerges not just when people are listened to and heard but when more people are listened to and heard” (Montpetit 2003, 102).

  20. 20.

    See for example, Palys 1996a.

  21. 21.

    And this would appear to be the case, see McDonald 2009, 13.

  22. 22.

    They also included ex-officio members plus two ex officio members, the Honourable Mr. Justice T. David Marshall, chair of the MRC’s Standing Committee on Ethics, and Dr. Abbyann Lynch, president of the National Council on Bioethics in Human Research. See Squires 1994.

  23. 23.

    Information from conversation with Prof. Bernard Dickens (May 8, 2008).

  24. 24.

    Indeed in Section 6 of the TCPS, it is pointed out that: “During the drafting of this Policy Statement, suggestions were made to create a section dealing with research involving Aboriginal Peoples. The Agencies, however, have not held sufficient discussions with representatives of the affected peoples or groups, or with the various organizations or researchers involved. The Agencies have therefore decided that it is not yet appropriate to establish policies in this area. The text of Section 6, which builds on the extensive literature on research involving Aboriginal Peoples, is intended to serve as a starting point for such discussions” (TCPS, 1998, Section 6). See also, McDonald 2000, 82.

  25. 25.

    Another essay however suggests that the criticisms may not stand under scrutiny. See Ells and Gutfreund 2001.

  26. 26.

    See generally, Baylis et al 1997.

  27. 27.

    Ted Palys, for instance, in his criticism of the 1997 draft of the Working Group’s Code notes a change of a tone in the document different from the tone employed in the previous drafts. This must have been a result of the consultations and communications received by the Working Group. See Palys 1997 and Palys 1996b. See Adair 2001, 30–31 describing his partial success with having several wordings changed at the Council level. He had been a member of the Working Group.

  28. 28.

    Open meetings, it must be noted, are not necessarily always the best option in all policymaking situations. As Weijer notes, “openness is a clear expression of commitment to democratic process, but closed meetings may allow for greater consensus building” Weijer 1997.

  29. 29.

    See also Baylis et al. 1999.

  30. 30.

    See Joly 2001, 155. The Code stated: “Public health officers may be mandated by law to undertake research and in such cases REB approval is not required; this does not, however, exempt public health officers from seeking REB approval when the research is outside their mandate. In such case, REB approval is mandatory and, in all cases, respect for persons must be observed.” The TCPS has no equivalent provision.

  31. 31.

    See also, for instance, Flagel 2000. In the area of psychological research, the word “deception” which was allowed in the Working Group’s draft code was eliminated in order to ensure that it would pass through the scrutiny of the Department of Justice. See Adair 2001, 31. See also, McDonald 2009, 18.

  32. 32.

    Interagency Advisory Panel on Research Ethics. About Us: Mandate. http://pre.ethics.gc.ca/eng/panel-group/about-apropos/mandate-mandat/. Accessed 14 Oct 2009.

  33. 33.

    Ibid. See for instance, Jones 2007.

  34. 34.

    Ibid.

  35. 35.

    Comments made here are based on the provisions of the forthcoming edition as at October 2009.

  36. 36.

    Chapter 10 of TCPS (PRE 2008).

  37. 37.

    Generally, a placebo control is considered appropriate when there is no proven treatment for the study condition. Where established treatment exists, placebos should not be used, except in extraordinary circumstances, in keeping with the principle of clinical equipoise. See Freedman 1987, 141.

  38. 38.

    See also, National Placebo Working Committee 2004.

  39. 39.

    See AREI PRE 2008.

  40. 40.

    CIHR. Aboriginal Ethics Policy Development. http://www.cihr-irsc.gc.ca/e/29339.html. Accessed 14 Oct 2009.

  41. 41.

    CIHR. Aboriginal Ethics Policy Development. http://www.cihr-irsc.gc.ca/e/29339.html. Accessed 14 Oct 2009.

  42. 42.

    For example, distilling of ethical principles which numbered seven in the TCPS One (Respect for Human Dignity, Respect for Free and Informed Consent, Respect for Vulnerable Persons, Respect for Privacy and Confidentiality, Respect for Justice and Inclusiveness, Balancing Harms and Benefits, Minimizing Harm, Maximizing Benefit into three, namely: Concern for welfare; Respect for autonomy; and Respect for the equal moral status of all humans); Article 2.1 of TCPS Two: Change of definition of “research;” from systematic investigation which produces generalisable knowledge as stated in TCPS One p.1.1; Allowing for the use of deception in clearer terms (taking into consideration the concerns of researchers in the social sciences like psychologists); A more exhaustive list of types of research exempt from REB review (research using information exclusively from publicly available information, creative practices, public policy research, quality assurance and quality improvement studies, program evaluation, and performance reviews or testing within normal educational requirements. Article 6.4 - Composition – TCPS Two – community member must have relevant training and experience; Composition – TCPS Two – member knowledgeable in law (not risk manager or legal counsel, and not restricted to biomedical research as in TCPS One); Article 6.2 (see Application) Conflict of interest – senior administrators not to serve on REBs, A fuller section on conflict of interest in TCPS Two, Chapter Seven; Provisions on privacy and confidentiality in the context of internet research in TCPS Two, Article 10.3 has no equivalent in TCPS One; Ad hoc appeal boards not allowed in TCPS Two (Art. 1.11), but may be allowed under TCPS Two (Article 6.19, application); A fuller section on multi-centre research, including choice of model of REB; More details on research in public health emergencies, Article 6.21 in TCPS Two; More details on international research; Article 11.12 – New requirement for Clinical trial registries; and so on. See also PRE. What’s New in the TCPS. http://www.pre.ethics.gc.ca/policy-politique/initiatives/docs/What’s%20New%20in%20the%20TCPS.pdf. Accessed 12 Oct 2009.

  43. 43.

    What’s New in the TCPS. http://www.pre.ethics.gc.ca/policy-politique/initiatives/docs/What’s%20New%20in%20the%20TCPS.pdf. Accessed 12 Oct 2009, 2. For a list of these reports, see PRE 2009a, b, c.

  44. 44.

    Some of these comments are publicly available online. See for example, Palys and Lowman 2009; Sherwin 2009; Halperin et al. 2009.

  45. 45.

    See Baylis et al 1999. See also, McDonald 2009.

  46. 46.

    The past and current members of the Panel are listed on the website. PRE. About Us: Panel Members Interagency Panel on Research Ethics. http://pre.ethics.gc.ca/eng/panel-group/about-apropos/members-membres/. Accessed 12 Oct 2009.

  47. 47.

    There are currently four women on the Panel, not including the Executive Director of the Secretariat on Research Ethics. See PRE. About Us: Panel Members Interagency Panel on Research Ethics. http://pre.ethics.gc.ca/eng/panel-group/about-apropos/members-membres/. Accessed 12 Oct 2009. It will be recalled that the Feminist Network complained of the gross gender imbalance on the Working Group. See Baylis et al. 1997 and accompanying text.

  48. 48.

    See McDonald 2009; Palys 1996a.

  49. 49.

    See also PRE. Conference Presentations. http://www.pre.ethics.gc.ca/eng/activities-activites/events-actualites/conferences/. Accessed 29 Sept 2009.

  50. 50.

    Several comments available online requested an extended period for comment. See for example, Palys and Lowman 2009, 21. See also, Sherry Ann Chapman, Letter to the PRE by Community-Partnerships for Health : RE: Extension of consultation time period and engagement strategy for community feedback. http://www.noveltechethics.ca/pictures/File/Health_Policy_Private/TCPS%20Documents/CCPH-Letter-031809.pdf. Accessed 21 Sept 2009.

  51. 51.

    Sherry Ann Chapman, Letter to the PRE by Community-Partnerships for Health : RE: Extension of consultation time period and engagement strategy for community feedback. http://www.noveltechethics.ca/pictures/File/Health_Policy_Private/TCPS%20Documents/CCPH-Letter-031809.pdf. Accessed 21 Sept 2009, 2.

  52. 52.

    Ibid.

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Acknowledgements

This study was undertaken in conjunction with the Australian Research Council Discovery Project grant “Big Picture Bioethics: Policy-Making and Liberal Democracy” (DP0556068), and a Neuroethics New Emerging Team (NET) grant funded by the Canadian Institutes of Health Research.

This chapter is a substantially revised version of: Cheluchi Onyemelukwe and Jocelyn Downie. 2011. The tunnel at the end of the light? A critical analysis of the development of the Tri-Council Policy Statement, Canadian Journal of Law and Society: 159–176.

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Correspondence to Jocelyn Downie .

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Downie, J., Onyemelukwe, C. (2016). The Tunnel at the End of the Light? Development of the Tri Council Policy Statement in Canada. In: Dodds, S., Ankeny, R. (eds) Big Picture Bioethics: Developing Democratic Policy in Contested Domains. The International Library of Ethics, Law and Technology, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-319-32240-7_8

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