Number 97-01
Human Subjects Protections
Revised (p. 2)
October 31, 1996
Subject: Informed Consent Requirements in Emergency Research
Dear Colleague:
This letter advises Institutional Officials and Institutional Review Board (IRB) Chairs of
responsibilities related to informed consent when research subjects are enrolled in emergent
circumstances.
As in the past, the regulations for protection of human subjects of the Department of Health and
Human Services (HHS) at 45 CFR Part 46 stipulate requirements for obtaining (Section 46.116)
and documenting (Section 46.117) informed consent. And, the regulations give IRBs authority to
alter or waive the required consent in certain circumstances (Sections 46.116(c)-(d)).1 These
provisions of HHS regulations remain unchanged and in full force.
On October 2, 1996 (Federal Register, Vol. 61, pp. 51531-51533), the Secretary, HHS,
announced, under Section 46.101(i), a waiver of the applicability of the 45 CFR Part 46
requirement for obtaining and documenting informed consent for a strictly limited class of
research, involving research activities that may be carried out in human subjects who are in need
of emergency therapy and for whom, because of the subjects' medical condition and the
unavailability of legally authorized representatives of the subjects, no legally effective informed
consent can be obtained. This waiver, which provides a third route through which IRBs may
approve research in this class, takes effect November 1, 1996.
This waiver applies to the Basic HHS Policy for Protection of Human Research Subjects
(Subpart A of 45 CFR Part 46) and to research involving children (Subpart D of 45 CFR Part 46).
However, because of special regulatory limitations relating to research involving fetuses, pregnant
women, and human in vitro fertilization (Subpart B of 45 CFR 46), and research involving
prisoners (Subpart C of 45 CFR Part 46), this waiver is inapplicable to these categories of
research.
___________________
1A previous "Dear Colleague" letter (OPRR Reports 93-3, August 12, 1993) describes this
authority of IRBs to alter or waive the requirement for informed consent.
Emergency Research Consent Waiver
Pursuant to Section 46.101(i), the Secretary, HHS, has waived the general requirements for
informed consent at 45 CFR 46.116(a) and (b) and 46.408, to be referred to as the "Emergency
Research Consent Waiver" for a class of research consisting of activities, each of which have met
the following strictly limited conditions detailed under either (a) or (b) below:
In addition, the IRB is responsible for ensuring that procedures are in place to inform, at the
earliest feasible opportunity, each subject, or if the subject remains incapacitated, a legally
authorized representative of the subject, or if such a representative is not reasonably available, a
family member, of the subject's inclusion in the research, the details of the research and other
information contained in the informed consent document. The IRB shall also ensure that there is
a procedure to inform the subject, or if the subject remains incapacitated, a legally authorized
representative of the subject, or if such a representative is not reasonably available, a family
member, that he or she may discontinue the subject's participation at any time without penalty or
loss of benefits to which the subject is otherwise entitled. If a legally authorized representative or
family member is told about the research and the subject's condition improves, the subject is also
to be informed as soon as feasible. If a subject is entered into research with waived consent and
the subject dies before a legally authorized representative or family member can be contacted,
information about the research is to be provided to the subject's legally authorized representative
or family member, if feasible.
For the purposes of this waiver "family member" means any one of the following legally
competent persons: spouses; parents; children (including adopted children); brothers, sisters, and
spouses of brothers and sisters; and any individual related by blood or affinity whose close
association with the subject is the equivalent of a family relationship.
On October 2, 1996 (Federal Register, Vol. 61, pp. 51498-51531), the FDA published a
final rule which amends FDA regulations to authorize a waiver of informed consent in research
which is regulated by FDA. The joint publication of these actions permit harmonization of the
HHS and FDA regulations regarding research in emergency circumstances. The HHS waiver, just
as the FDA regulatory change, provides a narrow exception to the requirement for obtaining and
documenting informed consent from each human subject or his or her legally authorized
representative prior to initiation of research if the waiver of informed consent is approved by an
IRB. The waiver authorization applies to a limited class of research activities involving human
subjects who are in need of emergency medical intervention but who cannot give informed
consent because of their life-threatening medical condition, and who do not have available a
legally authorized person to represent them. The Secretary, HHS, is authorizing this waiver in
response to growing concerns that current regulations, absent this waiver, are making high quality
research in emergency circumstances difficult or impossible to carry out at a time when the need
for such research is increasingly recognized.
Sincerely,
/s/ | /s/ |
---|---|
Gary B. Ellis, Ph.D. Director Office for Protection from Research Risks |
Melody H. Lin, Ph.D. Deputy Director Office for Protection from Research Risks |
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