Stanford University Office of the Dean of Research

  Human Research Protection Program (HRPP)

DOMAIN II:  RESEARCH COMPLIANCE OFFICE, INCLUDING IRBs

 

 

Chapter 12:  Informed Consent

 

STANFORD* has the following written policies and procedures requiring informed consent from participants or their legally authorized representatives (sometimes referred to as “surrogates”), and it verifies this requirement is met.  (AAHRPP Standard II-7)  The purpose is to assure knowledgeable decision-making and voluntary participation. 

 

 

12.1     The Process of Informed Consent

 

The IRBs evaluate compliance with policies and procedures on seeking informed consent from participants, and assent, when possible, from participants who cannot give consent.  (AAHRPP Element II.7.A)  The IRBs review the content of the consent process, including the consent document, and the process through which informed consent is obtained from each participant, focusing on measures to improve participant understanding and voluntary decision-making.  (AAHRPP Element II.7.C)

 

Protocol Director Prepares and Submits Consent Information

The IRBs require that the Protocol Director (PD) submit consent information, including any consent document and explanation of the circumstances under which informed consent will be sought, with his or her protocol application at initial, continuing, or revision review times.  The IRBs maintain electronic informed consent templates (Documents F.3.e.-g.), including VA specific templates (Documents F.3.h. and F.3.i.) and other specific consent situations (Documents F.3.f. and F.3.m.-o.), for use by and guidance to investigators.  To assist PDs in preparing consent documents comprehensible to lay persons (i.e., approximately 8th grade level), the IRBs maintain an electronic Glossary of Lay Terms (Document F.3.d.).

 

In addition to covering the eight basic informed consent elements and six optional elements (as described in Section 12.1.1), the PD may also need additional information (as described in Section 12.1.2).  Examples include a statement that participants do not waive liability rights for personal injury by signing the consent, an examination of the consent to eliminate exculpatory language, and inclusion of financial assistance for the costs of medical treatment of complications.  The IRB informed consent templates address these elements as well as other specific consent situations in which certain additional information may need to be disclosed to participants. 

 

The PD also must address the circumstances under which consent will be sought.  The protocol application requires information that enables the IRB to determine whether the proposed consent process adequately protects participants, such as whether they will have sufficient time to discuss and decide whether to participate in the research, and whether the possibility of coercion and undue influence is minimized. 

 

A guidance in the form of an informed consent checklist is also made available by the IRB to investigators (Document F.3.a.).

 

IRB Checklist and Other Substantive Review

Once submitted, the consent information is reviewed by IRB staff using the Informed Consent Checklist (Document F.3.a.).  If needed, the IRB staff contacts the PD with questions and requests for revisions.  (See comment codes at Document F.5.f.).  The IRB staff gives the completed IRB checklist to the primary member reviewer(s).  The primary member reviewer(s) examines the consent in conjunction with the protocol and, where applicable, the Investigator’s Brochure or the federal grant, regarding the purpose, risks, and benefits of the research.  During continuing or revision reviews, any new information that could impact participants’ risks (e.g., adverse events) or procedure changes are also examined to ensure any updated language is appropriately contained in the consent document.  If needed, the primary reviewer(s) submit further questions and requests for revisions, until satisfied that the protocol and consent document can be approved as expedited or submitted to a convened IRB meeting for consideration. 

The IRB review also considers the relationship between the person who will solicit and obtain consent and the person giving consent, and pays attention to the person who explains the consent document to the potential participant.  See the New Protocol Application Forms (Documents F.1.a.-c.) for questions regarding how consent is obtained.  The IRBs require that the circumstances of the consent process be culturally and linguistically appropriate for the intended participants, and protective of participants through minimizing the possibility of coercion and undue influence and allowing adequate time for them to discuss and decide whether to participate in the research.  The IRBs require this to be delineated before protocol approval. 

Additionally, the IRBs review any direct advertising (Document F.4.r.) (e.g., newspaper, TV or radio ads, posters, flyers, letters or postcards, e-mails, postings on bulletin boards/ internet/ world wide web), since it is considered by the FDA “to be the start of the informed consent and subject selection process.”  In order to approve them, the IRBs determine that the direct advertising is not unduly coercive and does not promise a certainty of cure or favorable outcome or other benefits beyond what is outlined in the consent and the protocol.  (This is discussed in more detail in Chapter 10.)

 

IRB Criteria for Approval of Consent Information

The IRBs must find that all the relevant requirements in the Common Rule in 45 CFR 46.111 and 46.116, and in the FDA regulations in 21 CFR 50.20 and 50.25, that are applicable to the consent process and the consent document, are satisfied in order to approve them.

 

Consideration at Convened Meeting or Under Expedited Review

At a convened meeting, if minor revisions to the consent document are necessary and able to be dictated verbatim at that time, the protocol is approved contingent upon the revisions being made.  This is subject to an assigned IRB member reviewer confirming the dictated minor revisions in the consent document.  If the PD objects to the dictated revisions, he or she submits a new consent document for consideration at a future convened meeting.  If revisions are greater than minor or cannot be dictated verbatim at the convened meeting, the protocol is tabled, and the consent document is referred back to the PD for the drafting of the revisions and submission at a future convened meeting. 

The PD puts two dates on the consent form, as instructed by the IRB staff - the approval date and the expiration date.  These instructions are given on the New Protocol Application Regular Medical and Nonmedical (Documents F.1.a.-b.).  See Approval Period and Determination of Expiration Date in Chapter 7.1.

Consent Form Audits

The IRB staff evaluates the accuracy of the approved consent forms by comparing signed consents to approved consent forms for a specific period of time.  This process is described in Documents D.3.f.i.-ii. and D.3.f.iv.  See also 12.10, Observation of Consent Process.

 

 

12.1.1 Specific Cautions about Elements of Informed Consent

Eight Basic Requirements of Consent

The IRBs require that the consent document and information given to participants include the eight basic informed consent elements mandated by the Common Rule at 45 CFR 46.116(a) and the FDA regulations at 21 CFR 50.25(a), outlined below, and explained in more detail in the Guidance on Basic Research Consent Requirements in Document F.4.cc.  The IRBs have a poster with the basic and additional elements of informed consent on display in its conference room as a part of its educational tools for IRB members and staff (Document C.1.c.ii.).

 

Research Statement (Requirement #1)

Consents should not say "treatment."  They may describe a goal as determining if the item or procedure is an effective treatment for a disease or condition.  

FDA Investigational Drugs, Devices, or Biologics:  If the test article is an investigational drug, device or biologic, the IRBs require that the consent disclose that it has not been approved by the FDA.  If the drug/device has been approved in certain situations but is being investigated for different situations, the consent document should disclose that also.  E.g., "Drug X has been approved for the treatment of bone cancer, but not for the treatment of brain cancer.  We are investigating if Drug X is safe and effective for the treatment of brain cancer."

The IRBs require that all consent forms for studies of investigational drugs, biologics and devices include a statement that a purpose of the study is to evaluate the safety of the test article.  In studies that also evaluate the effectiveness of a test article in addition to safety, consent documents should include both purposes, but should not contain claims that the article has been proven to be effective.

Phase 1 drug studies often have the exclusive purpose of determining the pharmacological activity of the investigational drug and how high a dosage can be administered before unacceptable toxicity is reached.  The IRBs do not permit the consent document for such phase 1 studies to describe the evaluation of effectiveness as a study purpose.  If, however, a phase 1 protocol includes the collection of data relating to possible effectiveness, the IRBs may permit the consent document to list this as a secondary purpose.  In such situations, the IRBs require the consent document to be explicit in describing the limited experience to date in administering the investigational drug to humans (e.g., "this is the first time use in humans of drug X" or "To date, drug X has been administered to 10 human beings").  Moreover, in such situations the benefits section should include a statement to the effect that most phase 1 drug studies do not result in benefit to the participants.  (E.g., "It is possible that you will (describe potential benefits).  However, you should be aware that most phase 1 studies do not result in benefit to participants.")

Reasonably Foreseeable Risks or Discomforts (Requirement #2)

Risks should be listed in descending order of probability and magnitude (risk of death, even if remote, before risks associated with blood draw, for example).  For a fuller description of risk, see Chapter 9.

 

Reasonably Expected Benefits to Participants or Others (Requirement #3)

If no direct benefit to the participant is anticipated, the IRBs require this be clearly stated in the informed consent discussion and consent document.  An example is a phase 1 drug study, whether in healthy or ill participants, directed solely at investigating the pharmacological activity or safety of the investigational drug. 

FDA Phase I:  The protocols for some phase 1 drug studies include the evaluation of effectiveness as a secondary purpose of the study.  In such situations, the IRBs may allow the consent document to describe potential benefits, together with a statement to the effect that most phase 1 drug studies do not result in benefit to the participants. 

Clinical Trial with a Placebo:  If the research involves a placebo-controlled trial in which some participants never receive the investigational item, the consent document should include a statement about the placebo arm and that if the participant is assigned it, it is not anticipated that he or she will receive any direct benefit from participation in the research. 

 

Appropriate Alternatives (Requirement #4)

Enough detail must be presented so that the participant can understand and appreciate the nature of alternatives and their relative risks and benefits.  It is not sufficient simply to state, “the doctor will discuss alternatives to participating.”  

 

Extent of Confidentiality (Requirement #5)

In some research, loss of privacy may be the greatest risk of participation.  For example, during the course of research an investigator may learn about incidents of child or elder abuse that the investigator is required by law to report to public authorities.  This is addressed in greater detail in Chapter 11.

Agency Audit Statement.  The substance of the following statement is required for FDA-regulated research:

Because this research involves articles regulated by the Food and Drug Administration (FDA), the FDA may choose to inspect and copy medical or research records that identify individual research participants.

A comparable statement is recommended for research subject to audit or inspection by any funding agency or sponsor.

 

 

 

Compensation or Treatment for Injury (Requirement #6)

In accordance with VA policy, the IRBs require a statement that veteran-participants shall receive medical care and treatment for injuries suffered as a result of participating in a VA research program.  That language is included in the VA consent form template in Documents F.3.h.-i.  This requirement is discussed in more detail in Chapter 16.2.

When questions arise regarding research-related injuries at Stanford University, SHC, and LPCH facilities, the IRB staff work closely with the Research Management Group and the Office of Sponsored Research to review and compare the contractual language in the sponsored research agreement with the language in the consent document. 

See Chapter 16.2 for a more detailed discussion of STANFORD policies and practices about compensation or medical treatment for a research-related injury.

 

Contact Information (Requirement # 7)

Information must include opportunities for potential participants to ask questions at all times during the consent process and throughout the duration of the research.  The information must include details, including telephone numbers, about whom to contact in specific situations:

  • For concerns, complaints, or specific questions about the research, the consent form must explain to participants how to contact the research team or PD.
  • For concerns, complaints, or general questions about the research, the consent form must explain to participants how to contact a person independent of the research team (the Stanford IRB).
  • For situations when the research staff cannot be reached or participants wish to talk to someone other than the research staff, the consent form must explain to participants how to contact a person independent of the research team (the Stanford IRB).
  • For answers to questions about participants’ rights, the consent form must include contact information for the Stanford IRB.
  • In the event of a research-related injury, the consent form must identify the emergency contact.

 

Voluntary Participation Statement (Requirement #8)

For example, when research is conducted within the prison system, in the classroom or other setting, the IRBs ensure that the informed consent information explains to participants that they are free to decline participation or to withdraw at any time without negative consequences.  (This is also covered in Chapter 10.)

 

Six Possible Additional Requirements of Consent

The following six additional elements must be included in the informed consent information unless it is not appropriate.  See the Common Rule, 45 CFR 46.116(b), the FDA regulations, 21 CRF 50.25(b), and the Guidance on Basic Research Consent Requirements (Document F.4.cc.). 

 

Unforeseeable Risks to Participants, Embryos, or Fetuses (Additional #1) 

If the research involves any investigational drugs or devices or the risk profile of all research-related interventions is not well known, the consent process must disclose that the particular treatment or procedure may involve risks to the participant which are currently unforeseeable.  If the research includes women of child bearing potential or includes pregnant women, AND the risk profile of any research interventions or interactions on embryos and fetuses is not well known, the consent process must disclose that the particular treatment or procedure may involve risks to the embryo or fetus, if the participant is or may become pregnant, which are currently unforeseeable.  

 

Investigator-Initiated Termination of Participation (Additional #2)

If it is anticipated that the investigator may terminate the participant’s participation without regard to the participant’s consent, the consent process must disclose anticipated circumstances under which this could occur.  Some rationales might include participant non-compliance with research or participant not benefiting from research.

 

Additional Costs (Additional #3)

If there are any costs to the participant that may result from participation in the research, the consent process must disclose those additional costs to the participant.   

 

If veteran participants are involved, any such costs must be consistent with VA policy concerning veterans' eligibility for medical care and treatment.  Those policies are discussed in Chapter 16.2 and explained in the VA informed consent template (Documents F.3.h.-i.).

 

Early Withdrawal/Procedures for Termination (Additional #4)

 If there are any adverse consequences (physical, social, economic, legal, or psychological) of a participant’s decision to withdraw from the research, the consent process must disclose the consequences of a participant’s decision to withdraw from the research. If there are procedures that the participant desiring to withdraw from the research should follow to prevent harm, the consent process must discloses procedure for orderly termination of participation by the participant.  For example, some studies involve medications or procedures that would be dangerous for participants to discontinue abruptly.  For studies of this nature, the informed consent information must provide participants with knowledge of the consequences affecting a decision to withdraw.  In addition, if there are procedures regarding how to withdraw safely from the research, these must also be described.  It is not appropriate for research staff to administer any additional research-oriented questionnaires or interventions that are not designed to protect the safety of participants who have decided to withdraw. 

 

Significant New Findings (Additional #5) 

If the research is taking place over a span of time in which it is possible that significant new findings may occur during the course of the research which may relate to the participant’s willingness to continue participation, the consent process must disclose that significant new findings developed during the course of the research which may relate to the participant’s willingness to continue participation will be provided to the participant. 

 

Approximate Number of Participants (Additional #6) 

If the approximate number of participants involved in the study (locally and in total) might be important to a decision to take part in the research, the consent process must discloses the approximate number of participants (locally or in total) involved in the study.  For example, the number of anticipated participants might be relevant to an individual enrolling in a clinical trial for an investigational drug or devices, particularly if the numbers are very small or very large.

 

Other Additional Requirements

The IRBs may also require that information in addition to these six additional elements be given to participants when in the IRBs judgment the information would meaningfully add to the protection of the rights and welfare of participants.  This requirement is addressed in the Common Rule in 45 CFR  46.109(b) and in the FDA regulations at 21 CFR 56.109(b) and is discussed in the Guidance on Basic Research Consent Requirements.

Two such situations are:

  • Conflict of Interest:  After the relevant conflict of interest review process, the IRBs require a clear statement in the consent document concerning any conflict of interest by the investigators involved with the protocol or the institution that has not been eliminated.  Potential conflicts of interest and the review process are addressed in detail in Chapters 3.7 and 14.
  • Exculpatory language:  The IRB requires that the consent document be free of exculpatory language where the participant waives or appears to waive any of her or her legal rights, or releases or appears to release the protocol director, the sponsor, the institution or its agents from liability for negligence.  The IRB prescribes consent form language that explicitly states that the participant does not waive any liability rights (e.g., for personal injury) by signing the consent document.  The IRB requires that this language appear in the consent document.  See the informed consent templates.  For example: “By agreeing to this use, you should understand that you will give up all claim to personal benefit from commercial or other use of these substances.”  An acceptable replacement: “Tissue obtained from you in this research may be used to establish a cell line that could be patented and licensed.  There are no plans to provide financial compensation to you should this occur.”

 

12.1.2       California Experimental Subject’s Bill of Rights

In addition to the basic and additional elements of informed consent described above, the IRBs require that participants be given a list of their rights, if participating in a “medical experiment” under California law, in the form included in the STANFORD informed consent templates for medical research (Documents F.3.e. and h.) and specified in CA Health and Safety Code 24172. 

 

12.1.3       Additional VA-Specific Consent Requirements - VHA Handbook 1200.5

1.      Department of Veterans Affairs Form 10-1086;  Must be Used as the Consent Form:  This form is available in written or electronic form, and must be completed in its entirety.  The IRBs may require the addition of other elements to this form.  The VA informed consent template (Documents F.3.h.-i.) incorporates the Form 10-1086 requirements.  It should be used for both long and short forms of consent documentation.

2.      Payment by Veteran Participants for Treatment:  Informed consent information must include a statement that veteran-participants shall not be required to pay for treatment received as a participant in a research program.  Investigators should note, however, that veterans in the "discretionary work load" category are subject to co-payments, if so indicated by a means test.  The IRBs suggest that this co-payment requirement be described in the consent document using language substantially similar to: “Some veterans are required to pay co-payments for medical care and services provided by VA.  These co-payment requirements will continue to apply to medical care and services provided by VA that are not part of this study.”  

3.      Required Signatures:  The informed consent document must be signed and dated by the participant or the participant’s legally authorized representative, a witness and the person obtaining consent.  The participant must initial and date each page of the consent document.  A copy of the signed form must be given to the participant or the participant’s legally authorized representative.

4.      IRB Approval Date:  The consent form must be the most recent IRB-approved consent form, and this approval must be documented by the use of a stamp or preprinted box on each page of the consent form that indicates the date of the most recent IRB approval of the form. 

 

 

12.2     Consent Disclosures Required for Specific Types of Research

 

12.2.1  Protocols involving HIV Testing or Research on AIDS

PHS Funded Research:  If the protocol is supported by funding from the Department of Health and Human Services and includes testing for HIV, the consent documentation must state that identifiable participants will be informed of their results and provided with the opportunity for counseling.  The IRBs require this except in cases where it is not required by PHS policy. 

AIDS Records:  In addition, the IRBs require, consistent with California Health & Safety Code § 121080, that individually identifiable research records generated by AIDS-related research are confidential and may only be disclosed with the prior written consent of the participant.  Any authorized disclosure must include a written statement similar to:

This information has been disclosed to you from a confidential research record, the confidentiality of which is protected by state law and any further disclosure of it without specific prior written consent of the person to whom it pertains is prohibited.

 

12.2.2        Protocols including Genetic Testing

If a protocol includes genetic testing, the IRBs require that the informed consent information disclose the risks specific to this type of testing.  Genetic testing includes research that studies the characteristics, genes, and gene versions that are transmitted by parents to offspring.  This may include many types of information, such as personal appearance and biochemistry, gene sequences, genetic landmarks, individual or family medical histories, reactions to medication, and responses to treatment.  The IRBs include detailed provisions and issues in its informed consent template (Documents F.3.e. and F.4.g.) that should be considered by the protocol director for his or her consent document that includes genetic testing.  The template is also used by IRB staff and members as a guide for their review of such a consent document.

 

12.2.3       Protocols including Data and Tissue Repositories

The IRBs make available its Guidance on Data and Tissue Repositories (Document F.4.dd.) to investigators who collect data or tissues of participants for repositories, and IRB staff and members who review such protocols.  The guidance includes an exemplary consent for a pathology tissue bank (as exhibit #1) that also identifies the type of provisions, information and issue that should be covered in a consent document. 

When such repositories collect individually identifiable health information of participants, the HIPAA privacy regulations in 45 CFR Parts 160 and 164 must also be satisfied (Document F.4.i.).  This may require either a written HIPAA authorization from the participants or a waiver of authorization by the IRBs.  These requirements are discussed in Chapter 11.

 

12.2.4       Protocols Involving Xenotransplantation

In reviewing protocols and informed consent involving xenotransplantation, the IRBs act in accordance with the Guideline on Infectious Diseases Issues in Xenotransplantation issued by the federal Public Health Service (PHS) on January 19, 2001.  The PHS Guidelines require that various other administrative panels (e.g., Biosafety Committee) in addition to the IRBs review such protocols.

Xenotransplantation is defined as any procedure that involves the transplantation, implantation, or infusion into a human recipient of either (A) live cells, tissues, or organs from a nonhuman animal source or (B) human body fluids, cells, tissues or organs that have had ex vivo contact with live nonhuman animal cells, tissues, or organs.  (As of September 1, 2005, the IRBs had not received or reviewed any protocol involving xenotransplantation.)

The PD should consult the PHS Guideline prior to drafting the consent document, since they contain detailed guidance about the content of the informed consent information provided to potential xenotransplantation product recipients.  For example, they must be informed of the importance of complying with long-term or life-long surveillance necessitating routine physical evaluations and the archiving of tissue or body fluid specimens. 

 

12.2.5        Protocols Involving Stem Cell Research

Stanford University’s policy on human embryonic stem cell research can be found at RPH 10.7 (Document A.3.y.).  The IRBs recognize the special concerns and ethical issues that stem cell research presents for some individuals.  In reviewing protocols involving the derivation or use of stem cell lines, the IRBs will act in accordance with the standards adopted by the Independent Citizen's Oversight Committee (ICOC) established pursuant to the California Stem Cell Research and Cures Initiative (Proposition 71).  Until such time as these standards are adopted, the IRBs will take into consideration the recommendations on informed consent issued by the National Academy of Sciences in its report entitled "Guidelines for Human Embryonic Stem Cell Research" issued April 26, 2005. 

Furthermore, the IRBs will require that individuals whose excess embryos, originally created for fertility purposes, are to be utilized to derive new stem cell lines consent to such use and receive the information that California providers of fertility treatment are required to disclose under Section 125215 of the California Health and Safety Code.  Specifically, the following information or its equivalent must be conveyed:

·         That the early human embryos will be used to derive human pluripotent stem cells for research and that the cells may be used, at some future time, for human transplantation research

·         That all identifiers associated with the embryos will be removed prior to the derivation of human pluripotent stem cells

·         That the donors will not receive any information about subsequent testing on the embryo or the derived human pluripotent stem cells

·         That derived cells or cell lines, with all identifiers removed, may be kept for many years

·         That it is possible that the donated material may have commercial potential, and that the donor will not receive financial or any other benefits from any future commercial development

·         That the research is not intended to provide direct medical benefit to the donor

·         That early human embryos donated will not be transferred to a woman's uterus, will not survive the stem cell derivation process, and will be handled respectfully, as is appropriate for all human tissue used in research.

 

 

12.3        Special California Consent Requirements

 

The IRBs recognize that California laws impose additional informed consent requirements when certain procedures are involved.

1.      When Special Consent Requirements Apply to a Procedure that is Being Studied in the Research Protocol:  If these procedures are part of what is being studied in the research protocol, the IRBs prefer that the special consent requirements be incorporated into the research consent form for the protocol, unless the law or the circumstances dictate that it be kept separate. 

2.      When Special Consent Requirements Apply to a Procedure that is Related to – but not the Subject of – the Research Protocol:  If these procedures are not part of what is being studied in the research protocol, and are purely for treatment purposes, the IRBs expect that the review by the IRB staff and members will confirm that the protocol director is aware of the special consent requirements and will satisfy those requirements, separately and in addition to the requirements of the consent process for the research protocol. 

 

Procedure and uses that require special informed consent processes include, but are not limited to, the followi