One of the most difficult policy issues that arose during this time involved the protection of those entangled in misconduct cases. There was evidence that some whistleblowers, especially if they were students or young scientists, had been ostracised, threatened, or otherwise retaliated against.45 Scientists who were the targets of malicious or unfounded allegations themselves became victims of the political pressure to investigate. Every case seemed to attract unpleasant publicity, and a finding of innocence sometimes came too late to salvage a professional reputation. Those who wrote about or analysed misconduct also became the targets of vilification, drawing attacks simply for writing academic analyses or speaking out on ethical issues.
The concern for whistleblowers owes much to the tribulations of a single postdoctoral researcher, Margot O'Toole.When O'Toole repeatedly questioned data presented in an article co-authored by, among others, Thereza Imanishi-Kari and David Baltimore, she was warned that her scepticism would be harmful to her career.25'46 Years later, an NIH investigation showed her questions to have been reasonable, O'Toole was praised as a hero, and The New York Times lauded her strength of character.47 In the interval, however, her career had been damaged and, for many years, she was unable to find work as a scientist, while opponents caustically questioned her scientific competence and accused her of prolonging the dispute out of vindictiveness.48,49
To his credit, David Baltimore eventually apologised to O'Toole, and conceded that Congress indeed had the responsibility to oversee and investigate federally funded research.50 He acknowledged that he had failed to treat a junior colleague's well-meant questions with appropriate respect, and later observed that, "This entire episode has reminded me of the importance of humility in the face of scientific data."51 As a result of the controversy surrounding O'Toole, protections for whistleblowers received important attention early in the development of regulations.
Regulations cannot, however, reconstruct ruined careers. "Whistleblowers in American society have not fared well even when their allegations have eventually been substantiated," Mark Frankel notes.5 Studies by the Office of Research Integrity have shown that the majority of whistleblowers experience some negative consequences, and many observers have argued that whistleblowers should therefore be allowed to make allegations anonymously. The close relationships within laboratories and departments can make it uncomfortable even to raise questions in good faith. One study found that while 30% of senior biochemists who "personally knew of severe incidents of misconduct" had taken no action, the majority had indeed acted, in ways ranging from direct confrontation to formal administrative report; however, the biochemists also indicated that they weighed any such action against the potential for harm to their own careers and potential embarrassment to the accused.6 Yet, because federal regulations now require that every credible allegation be investigated, and a cry of "scientific misconduct" is an effective tool with which to punish a rival, enemy, or former employer, many scientists argue that all accusers should be forced to place their complaints and names on the record. If you instigate an inquiry, then you should be willing to be held accountable.
The quandary for universities and federal agencies has been to develop procedures that balance such views and protect the rights of both the accused and the accuser. If hearings and investigations are completely open and on the record, will that leave whistleblowers vulnerable to retaliation? If the process is closed and confidential, then does that inordinately increase the power of malicious or misguided accusations? One solution adapted by the NIH ethics office has been to offer limited anonymity, although few complaints have remained anonymous beyond the first contact, and even fewer of those have been substantive enough to warrant formal investigation.52
Whilst retaliation against a whistleblower who makes a report in good faith is now itself cause for inquiry by the National Science Foundation, and is condemned by many of the ethics guidelines published by professional societies, the biomedical agencies continue to maintain that retaliatory action, whilst wrong, should not be considered "scientific misconduct", leaving it to the institutions to investigate and punish according to their own rules. This issue, then, continues to attract debate and controversy, as all parties search for policies and procedures that will be fair, just, and effective.
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