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Capacity, Vulnerability, and Informed Consent for Research

Published online by Cambridge University Press:  01 January 2021

Abstract

This article presents an overview for clinician investigators on the concepts of decision-making capacity and vulnerability as related to human subjects research. Tools for capacity assessment and unacknowledged sources of vulnerability are discussed, and the practical gaps in current informed consent requirements related to impaired capacity and potential vulnerability are described. Options are suggested for research discussions when full regulatory consent is not possible and an exception from informed consent does not apply.

Type
Symposium Articles
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

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References

Association of Clinical Research Professionals, Code of Ethics and Professional Conduct (2016), available at <www.acrpnet.org/about/code-of-ethics> (last visited January 16, 2017); American College of Cardiology Foundation and the American Heart Association, “The ACCF and AHA Codes of Conduct in Human Subjects Research,” Journal of the American College of Cardiology 44, no. 8 (2004): 1724-1728; American College of Emergency Physicians, Policy Statement: Code of Ethics for Emergency Physicians (2017), available at <www.ACEP.org/clinical-practice> (last visited January 16, 2017).+(last+visited+January+16,+2017);+American+College+of+Cardiology+Foundation+and+the+American+Heart+Association,+“The+ACCF+and+AHA+Codes+of+Conduct+in+Human+Subjects+Research,”+Journal+of+the+American+College+of+Cardiology+44,+no.+8+(2004):+1724-1728;+American+College+of+Emergency+Physicians,+Policy+Statement:+Code+of+Ethics+for+Emergency+Physicians+(2017),+available+at++(last+visited+January+16,+2017).>Google Scholar
Lidz, C. W. et al., “How Closely do Institutional Review Boards Follow the Common Rule?” Academic Medicine 87, no.7 (2012): 969974.Google Scholar
National Commission for the Protection of Human Subjects of Biomedical and Behavior Research, The Belmont Report (1979), available at <https://www.hhs.gov/ohrp/regulations-and-policy/belmont-report/> (last visited January 16, 2017).+(last+visited+January+16,+2017).>Google Scholar
Grady, C., “Enduring and Emerging Challenges of Informed Consent,” New England Journal of Medicine 372, no. 9 (2015): 855862.Google Scholar
Henderson, G., “Is Informed Consent Broken?” American Journal of the Medical Sciences 342, no. 4 (2011): 267272.Google Scholar
See Grady, supra note 4; Henderson, supra note 6.Google Scholar
See Henderson, supra note 6.Google Scholar
Kim, S. at al., “Do Clinicians Follow a Risk-Sensitive Model of Capacity-Determination? An Experimental Video Survey,” Psychosomatics 47, no. 4 (2006): 325329; D.V. Jeste et al.,“A New Brief Instrument for Assessing Decisional Capacity for Clinical Research,” Archives of General Psychiatry 64, no. 8 (2007): 966-974.Google Scholar
Institutional Review Board, Office for Human Research Protection, Mayo Clinic, Informed Consent and Assessment of Capacity to Consent to Research, (2016), available at <http://mayocontent.mayo.edu/irb> (March 1, 2017).+(March+1,+2017).>Google Scholar
Triebel, K. L. et al., “Decision-making Capacity and Competency,” in Budd, M. A. et al., eds., Practical Psychology in Medical Rehabilitation (Cham, Switzerland: Spiner International Publishing, 2017): at 343352.Google Scholar
Karlawish, J. et al., “Cognitive Impairment and PD Patients’ Capacity to Consent to Research,” Neurology 81, no. 9 (2013): 801807. See also Triebel et al., supra note 11; I. Moran-Sanchez et al., “Assessment of Capacity to Consent to Research Among Psychiatric Outpatients: Prevalence and Associated Factors,” Psychiatric Quarterly 87, no. 87 (2016): 89-105.Google Scholar
See Moran-Sanchez et al., supra note 12.Google Scholar
Bracken-Roche, D. et al., “The Vulnerability of Psychiatric Research Participants: Why This Research Ethics Concept Needs to be Revisited,” Canadian Journal of Psychiatry 61, no. 6 (2016): 335339.Google Scholar
See Kim et al., supra note 9; Jeste et al., supra note 9.Google Scholar
See Karlawish et al., supra note 12.Google Scholar
Appelbaum, P. S. and Grisso, T., MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) (Sarasota, FL: Professional Resources Press, 2001): at 11.Google Scholar
See Kim et al., supra note 9; Grady, supra note 4.Google Scholar
University of California at San Diego Research Protections Program, Decision-making Capacity Guidelines, available at <http://irb.ucsd.edu> (last visited 1/16/17); University of Pittsburgh Human Subjects Protection Program, Decision-making Capacity, available at <http://irb.upitt.edu> (last visited January 16, 2017); University of Kentucky Office of Research Integrity, Impaired Consent Capacity Policy, available at <http://www.research.uky.edu/ori/ORIForms/62-Impaired-Consent-Capacity-Policy.pdf>(last visited January 16, 2017); see also supra note 10.+(last+visited+1/16/17);+University+of+Pittsburgh+Human+Subjects+Protection+Program,+Decision-making+Capacity,+available+at++(last+visited+January+16,+2017);+University+of+Kentucky+Office+of+Research+Integrity,+Impaired+Consent+Capacity+Policy,+available+at+(last+visited+January+16,+2017);+see+also+supra+note+10.>Google Scholar
See University of Kentucky Office of Research Integrity, supra note 20.Google Scholar
See Appelbaum and Grisso, supra note 17.Google Scholar
See Moran-Sanchez et al., supra note 12. See also Appelbaum and Grisso, supra note 17.Google Scholar
Dunn, L. B. et al., “Prevalence and Correlates of Adequate Performance on a Measure of Abilities Related to Decisional Capacity; Differences Among Three Standards for the MacCAT-CR in Patients with Schizophrenia,” Schizophrenia Research 89, no. 1-3 (2007); 110118.Google Scholar
Appelbaum, P. S., “Assessment of Patients' Competence to Consent to Treatment,” New England Journal of Medicine 357, no. 18 (2007): 18341840.CrossRefGoogle Scholar
See Jeste et al., supra note 9.Google Scholar
See Appelbaum and Grisso, supra note 17.Google Scholar
Council for International Organizations of Medical Sciences (CIOMS), “International Ethical Guidelines for Biomedical Research Involving Human Subjects” (Geneva, Switzerland: 2002); International Conference on Harmonisation (ICH) Steering Committee,” ICH Harmonized Tripartite Guideline,” (1996).Google Scholar
See National Commission, supra note 3. See also CIOMS, supra note 28.Google Scholar
See ICH, supra note 28; CIOMS, supra note 28.Google Scholar
Rogers, W. et al., “Why Bioethics Needs a Concept of Vulnerability,” International Journal of Feminist Approaches to Bioethics 5, no. 2 (2012): 1122; J. Aldridge, “Working with Vulnerable Groups in Social Research: Dilemmas by Default and Design,” Qualitative Research 14, no. 1 (2014): 112-130; F. Luna, “Elucidating the Concept of Vulnerability: Layers Not Labels,” International Journal of Feminist Approaches to Bio-ethics 2, no. 1 (2009): 121-139.Google Scholar
See Aldridge, supra note 31.Google Scholar
See Luna, supra note 31; Bracken-Roche et al., supra note 14.Google Scholar
U.S. Department of Health and Human Services (DHHS), “General Requirements for Informed Consent,” 45 C.F.R. § 46.116, available at <https://www.hhs.gov/ohrp/regulations-and-policy/regulations/45-cfr-46/index.html#46.116>(last visited January 16, 2017).(last+visited+January+16,+2017).>Google Scholar
See ICH, supra note 28; supra note 34.Google Scholar
University of Minnesota Human Research Protection Program, Policy-Research Involving Adults with Absent, Diminished, or Fluctuating Capacity to Consent to Participate in Research (2017), available at <http://www.research.umn.edu/irb/toolkit.html> (last visited January 16, 2017).+(last+visited+January+16,+2017).>Google Scholar
U.S. Department of Health and Human Services (DHHS), 21 C.F.R. § 50.24 (1996); Ellis, G. and Lin, M., Office for Protection from Research Risks, U.S. Department of Health and Human Services (DHHS), Informed Consent Requirements in Emergency Research (1996), available at <https://www.hhs.gov/ohrp/regulations-and-policy/guidance/emergency-research-informed-consent-requirements> (last visited January 16, 2017).+(last+visited+January+16,+2017).>Google Scholar
U.S. Department of Health and Human Services (DHHS), Waiver of Informed Consent Requirements in Certain Emergency Research 45 C.F.R. 46 (1996).Google Scholar
See ICH, supra note 28; see supra note 3.Google Scholar
U.S. Department of Health and Human Services (DHHS), IRB Waiver or Alteration of Informed Consent. 45 C.F.R. § 46.116d (1996).Google Scholar
McKinney, R. E. et al., “Use of Altered Informed Consent in Pragmatic Clinical Research,” Clinical Trials 12, no. 5 (2015): 494502; B. Koenig, “Have We Asked Too Much of Consent?,” Hastings Center Report 44, no. 4 (2014): 33-34.Google Scholar
Dickert, N. W. et al., “Confronting Ethical and Regulatory Challenges of Emergency Care Research with Conscious Patients,” Annals of Emergency Medicine 67, no. 4 (2016): 538545.Google Scholar
Biros, M. H. et al., ”Balancing Ethical Goals in Challenging Individual Participant Scenarios Occurring in a Trial Conducted with Exception from Informed Consent,” Academic Emergency Medicine 22, no. 3 (2015): 340346.Google Scholar