Reviewer Confidentiality vs. Mentor Responsibilities: A Conflict of Obligations

This is a very interesting case. At first, it appears to be about a conflict of obligations, but as one works through it, the conflict disappears and attention focuses on fundamental questions about ownership and credit for ideas and the obligations of reviewers. As I wrestled with Dr. Ethicos' obligation to her graduate student, Sarah Tonin, it became clear to me that the weight of Dr. Ethicos' decision (to give Sarah information about possible interaction between survivin and GFX) rests almost entirely on her responsibilities as a reviewer. Her obligation to her graduate student cannot entail doing something immoral to assist her. In other words, if it were clear that Dr. Ethicos has an obligation not to reveal anything she learns from reviewing a paper, then it would follow that she should not reveal anything to Sarah - whether she is distressed or not.

The problem is that the responsibilities of a reviewer (in this case Dr. Ethicos) with regard to what she learns when reviewing a paper are just not as clear as they should be. The responsibilities of reviewers and the rights of authors have been poorly articulated by the scientific community and continue to be open to a variety of interpretations. While I could only speculate about why the scientific community does not clarify the rights of authors and the responsibilities of reviewers, ideas about these rights and responsibilities seem to vacillate between trying to achieve a fair system of credit and a system of intellectual property rights. It is helpful to think through Dr. Ethicos' situation in terms of credit and property.

In the intellectual property system that prevails in the United States, it is quite clear that no one can own ideas. In the patent system, individuals can invent devices or processes that make use of abstract ideas, laws of nature and mathematical algorithms, but they cannot own the ideas, laws of nature or algorithms. Similarly, in the copyright system, authors can own the expression of ideas but not the ideas themselves. If we think through the review process in these terms, it seems that the idea that survivin and GFX interact to extend the survival-promoting effects of survivin, is not patentable or copyrightable. It is simply an idea, and no one can own an idea. In this framework, there would be nothing wrong with Dr. Ethicos giving this idea to her student.

What has traditionally prevailed in science is a credit system, which is much more informal and less clear than intellectual property. Here the idea seems to be that individuals should be given credit for the work that they do and for being first to come up with an idea. Credit systems generally do not give authors control of ideas or information, although an author may also have a copyright on text describing the work done and/or ideas expressed in a particular way. In a credit system, the important thing is that an author (the right person) be given credit. Hence, in this case it would seem that Dr. Ethicos could also tell her student about the idea. She should credit it to Dr. Spacely, and when and if Sarah Tonin's research is published, Sarah should cite Dr. Spacely's paper - either as an unpublished manuscript or as a now published article.

Some might argue that this approach is not fair to Dr. Spacely, because Dr. Spacely submitted her/his manuscript to the journal in confidence. It seems, however, that there are and should be limits on the expectations of confidentiality. That is, it is reasonable for an author to expect that reviewers will not go back to their labs and duplicate the research they read about and try to beat the author to publication of an idea. On the other hand, it seems unreasonable to expect that reviewers will not absorb ideas. It is unreasonable to suppose that reviewers will not learn things from reviewing articles, things that will help them in their research. One of the reasons scientists agree to review articles is because they learn from doing reviews; reviewing helps scientists keep up in their area of specialty. I admit that there may be some gray area here, but it seems important to acknowledge that it is appropriate for reviewers to use some ideas they discover when reviewing unpublished manuscripts. Science progresses collectively, and any system that interferes with building on one another's ideas would be counterproductive. With these thoughts in mind, I now turn to the discussion questions at the end of the case.

Should Dr. Ethicos have refused to review this paper? I don't see any reason why Dr. Ethicos should have refused to review the paper. She was probably selected as a reviewer because the paper is in the area of her expertise. If reviewers were to refuse to review papers in their areas of expertise, then papers could only be reviewed by nonexperts.

Should Dr. Ethicos suggest that Sarah try adding GFX? Yes. I don't see any reason not to mention this possibility to Sarah. The problem from the point of science, of course, is that the interaction has not been established. Sarah will probably have to do some work to establish the connection, and this work might overlap with Dr. Spacely's research. However, Sarah is primarily interested in using the interaction for another purpose. Whatever she does with the idea, she should cite Dr. Spacely.

How long would it be necessary to wait before mentioning this experiment? Given what I have already said, I don't think time is important here.

Would your answers to Questions 2 and 3 be different if Sarah came to Dr. Ethicos frustrated, dejected and ready to give up the project? I don't think Sarah's level of distress is relevant here. Either it's okay for Dr. Ethicos to tell her, or it's not okay to tell her. If it's okay for Dr. Ethicos to tell Sarah, then she should tell her before she becomes distressed.

If you were Dr. Ethicos, would your course of action be any different if another professor independently mentioned to you that you had heard a rumor that there might be an interaction between the two proteins? According to my analysis, this variation does not make a difference. However, the fact that it is possible to hear the idea as a rumor further illustrates how ideas (not texts or inventions) move about in science and how they cannot and should not be owned.

Part 1

The objective of this case was to create a situation where two aspects of being a successful and ethical scientist come into conflict. In this case, maintaining reviewer confidentiality challenges the scientist's ability to honor her responsibilities as a mentor. In an ideal situation, this case will engender a discussion of both the importance of reviewer confidentiality and the specifics of being a responsible mentor. It may also help the discussants to think about situations where they will be forced to juggle the various aspects of a scientific career. These situations may push the ethical scientist to look for solutions that may not be obvious at first.

Question 1. This question brings up the inherent conflict of the skilled reviewer. A scientist who is knowledgeable and prominent within a particular field will often be working on questions related to the work being reviewed. The individuals most qualified to review a paper will also be those who stand to gain or lose the most from the information it contains. A discussion focusing on this question should address the fact that there are no universal criteria detailing the situations in which it is acceptable to review a paper. It is almost entirely up to the individual reviewers to decide whether they will be able to maintain objectivity or whether reviewing the paper will present a conflict of interest. How do those reading this case think they would make a decision like this? Can any absolute criteria or considerations be identified?

Question 2. This question addresses the heart of the conflict. If Dr. Ethicos suggests that Sarah add GFX to the cells, she will be acting on information received in confidence. Furthermore, her suggestion will open a can of worms if Sarah ever wants to publish her results, especially if the original reviewed paper remains unpublished. Essentially, Dr. Ethicos and Sarah would be claiming credit for an idea that belonged on some level to someone else.

That brings up another very tricky question that often causes problems in scientific research: Who (if anyone) owns an idea? The discussion of this question could focus on who would be affected by Dr. Ethicos' decision and how would they be affected. Clearly in the short term Sarah (and Dr. Ethicos by extension) would probably benefit from the suggestion to add GFX, or at the very least they certainly would not be harmed. However, Dr. Spacely could certainly be harmed by Dr. Ethicos' decision. The scientific community itself could be harmed if there were a general perception that reviewer confidentiality was not being honored.

This scenario has the added complication that Dr. Ethicos wouldn't be proposing that Sarah analyze the interaction between GFX and survivin (which was the essence of the reviewed paper) but simply that she use GFX as a tool to help with her cultures. Even though Dr. Ethicos would only be mentioning the idea to Sarah in the hopes of getting her cultures up and running, without intending for Sarah to focus on the GFX-survivin interaction itself, this is still starting down a slippery slope. The questions of where ideas come from and whether or not the origin of ideas can be regulated are additional powerful, subtle and tricky questions that the discussants may or may not wish to take up.

Question 3. The discussion of this question should bring up the mentoring side of the conflict: that it would be better to tell Sarah ASAP, but it should also bring up the reviewer side of the conflict: If Dr. Ethicos is going to remain an ideally ethical reviewer, she should wait until the paper is published or the information is made public at a conference or a talk or something of that nature. In some ways, this is a lose-lose situation. No matter how long Dr. Ethicos decides to wait, someone ends up losing out.

Question 4 simply serves to add even more weight to the scale on the side of mentor responsibilities without decreasing Dr. Ethicos' reviewer responsibilities. This question is designed to show how frustrating and tricky a situation like this could be. If the discussion is confined to the conflict itself, the discussants may find they have hit a wall. At first glance there seems to be no ideal ethical solution.

Question 5 throws another red herring of sorts into the discussion. One could see how easy it would be for Dr. Ethicos to convince herself that no real harm would be done by mentioning GFX to Sarah and that the information contained in the paper she reviewed will get out into the public domain somehow or another. However, essentially this rationalization does nothing to address the inherent conflict. Even if some other reviewer or individual had indeed broken reviewer confidentiality, that should have no bearing on Dr. Ethicos' ethical decision. To quote a useful cliché: Two wrongs don't make a right.

It is possible that the discussion will break down at some point. Some of the group may feel that reviewer confidentiality should really take precedence in this case, while others might feel mentor responsibilities should predominate. This case is designed in some ways to lead to this type of standoff.

However, at some point during the discussion a successful resolution to this dilemma might be brought forward with the realization that it is in fact possible to break reviewer confidentiality in special cases and reveal oneself to the author of the reviewed publication (ideally with the blessing of the journal editor). If Dr. Ethicos revealed herself to Dr. Spacely and explained her desire to assist Sarah in a way that should not harm Dr. Spacely's research, a satisfactory solution might be achieved.

This type of solution would preserve the inherent tenet of reviewer confidentiality, which is essential to a functional peer review system in any field, scientific or otherwise. It would also be an example of exemplary mentor responsibility, where a scientist is willing to expend extra time and energy to help further the prospects of her student while still remaining an admirable role model for that student. Lastly, this situation emphasizes the value of what might be considered lateral thinking. Ethical situations are complex and often require creative solutions that may not be immediately obvious to those facing the ethical dilemma. In some ways practice, in the form of the discussion of hypothetical situations, is the only way to try to prepare oneself to handle the inevitable ethical conflicts that will arise.

It is possible that the discussants may arrive at this solution early in the discussion before they have seen the zero sum game nature of the original conflict. The discussion leader might then want to introduce the question of what to do if Dr. Spacely refuses to allow Dr. Ethicos to mention the GFX to Sarah, which brings the discussion back to the initial problem.