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Richard Smith: Should scientific fraud be a criminal offence?

9 Dec, 13 | by BMJ

Richard SmithAt Britain’s first and only summit meeting on research misconduct in 2000, Alexander McCall Smith, a professor of medical law and ethics, argued that research misconduct (the gentlemanly phrase for scientific fraud) should be a criminal offence. The idea seemed outrageous. Nobody took it seriously, but 13 years later Nature has published an editorial not promoting but contemplating the idea. To me it begins to look like an inevitability that research misconduct will eventually become a criminal offence.

Despite searching, I can’t find McCall Smith’s paper online, but my memory is that he had two main arguments. Firstly, he argued that scientific fraud is really no different from financial fraud, which is a criminal offence, in that resources are misused. We might use the word stolen. Secondly, scientific fraud needs careful investigation and collection of evidence, procedures that are very familiar to the police and unfamiliar to university authorities. He might have added (and perhaps he did) that scientific fraud might do much more harm than financial fraud in that it could lead to global misunderstanding, including perhaps widespread use of ineffective and dangerous treatments.

By 2000 I had been interested in research misconduct for nearly 20 years. My interest was prompted by my predecessor as editor of the BMJ, Stephen Lock, who was widely perceived as “somewhat nutty” when it came to scientific fraud. Now he looks like a man far ahead of his time. Although I’d been watching the scientific establishment fail completely to address the problem of research misconduct, I couldn’t take McCall Smith’s argument seriously. Now I do.

The scientific establishment has standard arguments to brush away research misconduct: it’s rare, science is self-correcting, and nobody is harmed. All the arguments now look threadbare.

A systematic review has shown that research misconduct is common, terrifyingly common. (Anybody who is sceptical about research fraud should sign up to the brilliant Retraction Watch that will bring you several cases every week of scientific misconduct.) There is such a crisis around much of science being plain wrong and never reproduced that an initiative, supported by Science and Nature, has been launched to encourage studies to be reproduced. And examples of people being harmed by fraudulent research mount: the many children who have contracted measles because of misleading information about the MMR vaccine; the women with breast cancer treated unnecessarily with bone marrow transplants because of fraudulent research; and millions of patients who have had their postoperative pain mismanaged because of fraudulent studies.

What is also highly unsatisfactory is how hundreds of studies (and probably many more) that are fraudulent remain in the scientific literature without any signal that they are inventions. I’ve been involved closely with two fraudulent researchers who between them have generated more than a hundred studies that are not retracted. Science is failing in its duty to the public.

I’ve also come to realise first hand the difficulty that research institutions have in investigating cases and gathering evidence. Fraudsters escape because of the incompetence of the institutions, whereas investigation and collection of admissible evidence is the daily job of the police.

It’s time, sadly, to criminalise research fraud.

Richard Smith was the editor of the BMJ until 2004 and is director of the United Health Group’s chronic disease initiative.

Competing interest: RS has been writing about research misconduct and bemoaning lack of progress for 30 years. He’s a founder member of the Committee on Publication Ethics, a trustee of the UK Research Integrity Office, and has been involved in many cases of research misconduct (not yet as an offender). These views are his own.

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  • Paul Garner

    Really helpful blog, Richard. Just one to add one point: some researchers still do not publish trials because the results are not in keeping with what the researcher, the funder, or the scientific community want to hear. Researchers withholding this information from the public may result in false or misleading research summaries. Good research practice is to commit before the trial starts to publish the results irrespective of what they show: and equally, failure to do this amounts to research misconduct.

  • jlmel

    We should start with the ADHD fraud. An absolute invention and fraud. There is absolutely no evidence that supports the idea that any ADHD case has a broken or sick brain. Yet they are harmed when mislead into believing they suffer from a mythical abnormality and are being brain damaged by psychotropic drugs.

  • jhnoblejr

    Hmm . . . why has it taken so long to embrace the obvious? As a retired academic, I don’t agree that incompetence of research institutions stands in the way to organizational prosecution and dismissal of miscreants for cause. It is easy enough to hire outside investigators experienced in police work to develop evidence that would support firing and branding of fraudsters against all future employment.

    The reason why it isn’t done is a culture of false liberalism, if not libertarianism, and guilty worry. Many researchers in research organizations worry about the corners they have cut in the conduct of their own research. I’ve sat on enough faculty promotion committees to know the politics of “make believe” about the intellectual value and contributions of members whose research and teaching records come up for review. And, gosh, one doesn’t have to be a wizard to know that journal editors are often hard-pressed to find manuscripts that can pass muster for publication in the allotted pages of the next issue.

    This is but one more instance where the bare-naked emperor of the academic and publishing communities is strutting about.

  • Matt

    Actually there is a lot of evidence to suggest ADHD exists. Just do a search on pubmed…

  • Bill Skaggs

    I can’t agree with this. The repercussions of a fraud accusation are already so unpleasant that criminalizing it is unlikely to exert much of an extra deterrent effect. More likely it will cause honest people to waste time on documenting every last detail to avoid any chance of going to jail.

  • Jeanne Lenzer

    After seeing so much research fraud and the downstream harms
    it has caused, my first reaction is Yes! Lock the bastards up! But on reflection, I must agree with Bill Skaggs; I doubt criminalizing research fraud is likely to reduce the behavior, and could even have a paradoxical effect of allowing it to persist to an even greater degree. If people are reluctant to report their colleagues now, might they be even more reticent if they knew their (possibly incorrect) suspicions would mean their colleague would be dragged through public proceedings and possibly put in jail? But far more important is that criminalization targets us at the level of the individual rather than the system that creates this behavior. To me, this is no different than how the low-level soldiers who put naked prisoners at Abu Ghraib on leashes and were treated as renegades while the U.S. government at every level supported and promoted torture far worse than that and continues to do so under the dubious sobriquet of “enhanced interrogation techniques.” If we want to reduce research fraud, we need to do two things; 1.) remove financial incentives for the production of research by putting researchers on salary and ending grant awards on an individual basis and 2.) stop rewarding bad behavior by acknowledging that publishing 200 articles per year cannot represent careful work. Pogo was right – we have met the enemy, and he is us.

  • AntiDepAware

    The “chemical imbalance” fraud has made millions and cost lives. It can’t be regarded as anything other than criminal.

  • János Weltner

    I do agree. Fraud is fraud. Misleading thousands of doctors resulting in mistreating millions is criminal. And it should be seen and treated as a criminal.

  • jhnoblejr

    Jeanne,

    We both agree that it’s the “system” that provides incentives to cheat. But to quote Machiavelli’s The Prince, “ We must bear in mind, then, that there is nothing more difficult and dangerous, or more doubtful of success, than an attempt to introduce a new order of things in any state. For the innovator has for enemies all those who derived advantages from the old order of things, whilst those who expect to be benefited by the new institutions will be but lukewarm defenders. This indifference arises in part from fear of their adversaries who were favoured by the existing laws, and party from the incredulity of men who have no faith in anything new that is not the result of well-established experience. Hence it is that, whenever the opponents of the new order of things have the opportunity to attack it, they will do it with the zeal of partisans, whilst the others defend it but feebly, so that it is dangerous to rely upon the latter.’’

    For that reason, I’ve always tilted toward retributive justice, despite all odds against succeeding, to at least eliminate one bad actor at a time . . . “victims” that some may argue they are of the “system.” Ethics and morality at root relate to the agency of individuals regardless of the context in which decisions are made. That individuals must decide between good and bad choices with consequences for themselves and others–sometimes within the context of tremendous systemic pressures to do wrong–doesn’t absolve them from culpability, albeit sometimes mitigated, for making wrong and harmful choices. I believe the criminal law operates on this premise.

    That said, I think we must do whatever we can, despite Machiavelli’s assessment of the odds against succeeding, to reform the system that incentivizes the wrong and harmful behavior of individual researchers who make fraudulent claims in the name of “science.” They debase the entire scientific enterprise on which human action and progress in large part depends. It is appalling to see the physician’s “standard of care” sullied and misdirected by the false claims of researchers and commercial interests.

    By way of analogy, the US Department of Justice now and then exacts large fines on corporations for the egregious harms that they do. But until the leadership is sentenced to jail, the fines are written off as part of the cost of doing business. In this context, exacting a fine is but the first step toward eradicating the problem. So, I think, it may also happen if researchers are held criminally liable in cases where scientific fraud and misrepresentation can be proven. The actions of such researchers reflect the behaviors of knaves and not fools. These are not stupid people. They know what they are doing. Accordingly, they should be held criminally responsible in furtherance of the common good of all now living and future generations.

  • Julian Crane

    Scientific fraud is to be condemned and rooted out, but legal prosecution across many countries isn’t going to work and
    nor is it going to deter the sort of fraud we have seen recently and will simply benefit lawyers. Just defining it legally will be a nightmare and will drag in editors and reviewers and make all completely paranoid. There appears a systemic problem at
    the heart of science publishing and dissemination that fuels fraud. We now have a trend for celebrity journals obsessed with impact at the expense, or at least with a serious COI, with science, as Randy Schekman, suggests in the Guardian recently. This is reminiscent of Hollywood not science. Furthermore, we now have a proliferation of junk journals that will publish anything for anyone for a vastly inflated price. International
    meetings suffer similar problems with a few celebrity ‘A listers’ turning up to attract a crowd, deliver their talks and
    fly off to the next appointment, Discussion at these events has all but disappeared. It is perhaps not surprising that this artificial celebrity culture brings in its wake a few who feel they need to try and get there by a quick and dirty route. Let’s start with
    cleaning up this nonsense before trying to criminalize scientific fraud.

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