Police Involvement in Potentially Unethical Research (Updated 12/13/13)

Posted: November 20, 2013 in Courts, Law, Policing, Research
Tags: , , ,

I ran across a disturbing blog post recently about police involvement in a roadside research study currently being conducted by the federal National Highway Safety Traffic Administration (NHTSA) in Texas.

King-of-Prussia-PA-DUI-lawyer-checkpoints

According to a news story by the local NBC affiliate in that region:

Some drivers along a busy Fort Worth street on Friday were stopped at a police roadblock and directed into a parking lot, where they were asked by federal contractors for samples of their breath, saliva and even blood. It was part of a government research study aimed at determining the number of drunken or drug-impaired drivers.

If true, this raises a number of troubling ethical and legal questions.

I wasn’t able to locate specific information about the current study (it may be that NHTSA hasn’t yet published any specifics, but let me know if you can find anything on the interwebs), but I was able to locate a pilot study that appears to be the basis for the data collection method described above.

According to that document, entitled “Pilot Test of New Roadside Survey Methodology for Impaired Driving,” NHTSA developed and tested a way to generate a random sample of motorists by having police officers flag down cars and direct them into a designated area for screening by researchers.

NHTSA map

According to the pilot study, which was conducted in 2005, sites in six states were selected, and police cooperation was sought and obtained to support the study.

Interestingly, though, not all police departments asked to participate were willing to do so:

The major barrier to carrying out this staged sampling scheme was obtaining police department support for the survey. In some localities, city attorneys or the police leadership believed that legal limitations to stopping vehicles or potential liability prevented their participation in the surveys.

It would appear that the departments and city attorneys who balked at participating were experiencing the same problem many reasonable people likely would when confronted with the approach that NHTSA was proposing.

Interesting as well, while DWI checkpoints have been ruled constitutional by the U.S. Supreme Court (as long as certain rules are followed) they are not legal in Texas, reportedly due to that state’s interpretation of the U.S. Constitution.

And yet, the Fort Worth police department was apparently willing to engage in what amounts to a checkpoint that effectively detained motorists and directed them into a confined area where body fluid samples were requested by researchers.

Site Supervisor's Sketches of Site Layouts

Site Supervisor’s Sketches of Site Layouts

This is an important detail that creates additional ethical and legal concerns in terms of federal laws that regulate research involving human subjects. These laws were enacted in response to past atrocities involving human beings who were subjected to horrendous treatment in the name of science.

According to the National Institutes of Health:

The German atrocities of World War II, some of which were committed in the name of science, led to the Nuremberg Code of international ethics, which in part spelled out the requirement that any human subject must give informed consent to the research undertaken. The disaster of thalidomide in Europe and Canada was largely averted in the United States, but thousands of patients had taken doses without being informed of the drug’s experimental nature. The brush with thalidomide helped the U.S. pass the 1962 Kefauver-Harris amendments, which strengthened federal oversight of drug testing and included a requirement for informed consent. A 1966 study of abuses, written by Dr. Henry K. Beecher, helped inform government policies adopted in that year. Likewise, the discovery in the 1970s that unwitting subjects had been allowed to suffer syphilis in the 1930s Tuskegee Experiment preceded a call for tighter regulation of federally-funded human research.

Obtaining the informed consent of any participant in a research study is a foundational element of research ethics. There are very specific guidelines that must be followed, including the below, which must be presented in writing to any potential participants:

A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits, to which the subject is otherwise entitled.

Such protections are also enshrined in federal laws related to protection of human research subjects, such as Title 45 of the Code of Federal Regulations, which has this to say about informed consent:

§46.116 General requirements for informed consent.

Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject’s legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.

The term “investigator” above doesn’t refer to a police investigator, but rather a researcher who is directly involved in the study.

There is little doubt that the researchers involved in the Fort Worth study are obtaining what they believe to be informed consent.

However, it stretches the bounds of credibility to believe that being flagged down by a uniformed officer standing near a police cruiser with its emergency lights flashing, and then being directed by that officer to a confined space for further processing “minimizes the possibility of coercion or undue influence” as required by federal law.

In fact, one of the people caught up in the Fort Worth roadside survey made this point very clearly:

The National Highway Traffic Safety Administration, which is spending $7.9 million on the survey over three years, said participation was “100 percent voluntary” and anonymous.

But Cope said it didn’t feel voluntary to her — despite signs saying it was.

“I gestured to the guy in front that I just wanted to go straight, but he wouldn’t let me and forced me into a parking spot,” she said.

Once parked, she couldn’t believe what she was asked next.

“They were asking for cheek swabs,” she said. “They would give $10 for that. Also, if you let them take your blood, they would pay you $50 for that.”

At the very least, she said, they wanted to test her breath for alcohol.

She said she felt trapped. 

“I finally did the Breathalyzer test just because I thought that would be the easiest way to leave,” she said, adding she received no money.

That does not sound to me like someone who was fully aware of her right not to participate in the study, which, to my mind, makes the sampling method not only unethical, but a potential violation of federal law related to human subjects research as well.

To their credit, the Fort Worth Police Department has apologized to any drivers involved, but that doesn’t mean that their actions were acceptable in any sense, or that the ongoing research is a viable, or legal, method, for collecting data.

What are your thoughts on this?

Update – 12/13/13: St. Louis area cops recently said they felt “duped” as well by researchers who used some of their officers to flag down and direct drivers into a testing area. According to the St. Louis County chief of police:

“I don’t think it’s proper use of law enforcement authority to flag people to the side of road for the voluntary testing of anything.”

I couldn’t agree more.

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